A Federal Judge Just Smacked Down Texas’ Abortion Ban. So What’s Next?

Photo by Ilana Panich-Linsman for The New York Times

Abortion rights advocates and the Biden Administration are cheering yesterday’s ruling by Judge Robert Pitman, whose 113-page opinion eviscerated Texas’ new six-week abortion ban. Anticipating an immediate appeal, Judge Pitman refused to stay his opinion pending review, and his reasoning is worth reading in full:

 “The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right. From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is their right to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”

Attorney General Merrick Garland, who brought the suit on behalf of the Biden Administration, hailed the decision as a “victory for women in Texas and for the rule of law” and added in a statement that the Department would continue to “protect constitutional rights against all who would seek to undermine them.”

Judge Pitman took strong issue with Republican lawmakers, whom he called out for having “contrived an unprecedented and transparent statutory scheme” by handing off actual enforcement of the law to private citizens who can claim $10,000 bounties if they bring successful lawsuits against abortion providers or anyone else assisting in a prohibited abortion. Anti-abortion activists had anticipated the judge’s adverse ruling, noting that Pitman is an Obama appointee and presumably hostile to their agenda. 

But what caught even them off-guard was the Court’s injunction against state judges and court staff. Pitman ruled that anyone in the state judicial system who has the power to enforce the law in any way would not be able to do so. He directed state officials to publish his injunction on all state court websites with “a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts" and to “inform all state court judges and state court clerks” of his order.

This produced immediate howls from the right, with John Seago, legislative director for Texas Right to Life, calling it an “astonishing and an incredible overreach from a federal judge into state courts.” Perhaps anticipating this criticism, Pitman noted in his ruling that this case is “exceptional” because of how the law was crafted and because of its effect on the constitutional rights of women in Texas. He aimed to discourage other states from moving forward with similar legislation that could impinge on constitutional rights while evading judicial review. “If legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it, then other states are less likely to engage in copycat legislation,” Pitman wrote.

Within 75 minutes of the ruling, the law’s proponents filed a notice of appeal of the decision to the Fifth Circuit. Anti-abortion activists hope that the threat of Pitman’s ruling being overturned will deter abortion clinics from resuming operations in the state. “S.B. 8 says if an injunction is dismissed, you are still accountable for abortions you did while you were protected by that injunction,” said Seago to the New York Times. But that doesn’t seem to worry groups like Whole Women’s Health, which operates four clinics in Texas and has already stated that it is “making plans to resume abortion care up to 18 weeks as soon as possible.”

The victory today is sweet to reproductive rights advocates but might be short-lived. The Fifth Circuit is considered the most conservative in the nation, and they might well take their cue from recent Supreme Court moves which include its surprising decision via its “shadow docket” to allow the Texas law to go into effect and its worrisome grant of review of Mississippi’s restrictive 15-week abortion ban, posing a direct challenge to Roe v. Wade.

If the Fifth Circuit rules in favor of the state, it is possible that this Supreme Court— some of whose members have recently spoken out against the notion that they are politically motivated or are merely “partisan hacks”—might simply refuse to grant review of the decision and let it stand by default. That would open the door to all manner of mischief in other states, including Florida where a similar law was recently proposed. It takes four justices to grant certiorari of a lower court’s opinion, which means that Chief Justice John Roberts, who has unexpectedly become the moderating voice among conservatives, may be all that stands in the way of a slew of anti-abortion or other legislation specifically designed to evade judicial review by handing enforcement to citizen vigilantes. 

And that should certainly concern all of us, left or right, irrespective of how we personally feel about any of our specific rights or freedoms.