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Federal Judge Blocks Texas Judges, Clerks, and Other State Actors from Enforcing ‘Flagrantly Unconstitutional’ Anti-Abortion Law

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas.

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas. (Photo by Jordan Vonderhaar/Getty Images.)

A federal district court judge on Wednesday evening blocked a series of state actors from enforcing a restrictive anti-abortion law in Texas.

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Judge Robert Pitman wrote in a 113-page order. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

The order was but a few hours old when the State of Texas filed an immediate notice appeal.

For now, however, the judge’s sweeping Wednesday evening preliminary injunction applies to “the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf.” That includes “state court judges and state court clerks” who are together banned from “accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to” an anti-abortion statute signed this past summer.

The law is perhaps best known by its legislative moniker S.B. 8 or simply as the “Heartbeat Act,” its factually erroneous title.  It is technically now enshrined within the Texas Health and Safety Code, though Judge Pitman effectively neutered its enforcement.

The unique statute — vexing in the minds of its opponents and brilliant in the minds of its supporters — created a private civil right of action against abortion providers and others connected to the provision of abortion services.  Any termination of a pregnancy after embryonic cardiac activity could be detected — generally around six weeks — could have resulted after S.B. 8 became law in a civil lawsuit.  The lawsuits could mean potentially limitless civil damages awards due to the way S.B. 8 was structured.

As Law&Crime has extensively reported, a few private plaintiffs have already attempted to cash in on the legal scheme against abortion providers.  A few others promised to file similar cases.  Naturally, Texas abortion providers began severely curtailing services because of the financial risks S.B. 8 created, and patients began fleeing to neighboring states.

Judge Pitman explained more precisely what was wrong with S.B. 8 at the beginning of his order:

The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion. Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials. Rather than challenging the right to abortion via the appropriate process of judicial review, the State went so far as to draft the law in such a way as to attempt to preclude a review of the constitutionality of the statute by federal courts who have responsibility to safeguard the very rights the statute likely violates.

Pitman declined to credit legal arguments by the State of Texas that its judges and court clerks could not be enjoined from enforcing S.B. 8.  The state argued that its judges would handle the constitutional questions posed by the statute when individual civil cases were inevitably filed and argued in Texas courts.

As part of the injunction, Judge Pitman ordered the state to post conspicuous proclamations that S.B. 8 litigation was, in essence, closed for business:

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.  IT IS FURTHER ORDERED that the State of Texas shall inform all state court judges and state court clerks of this preliminary injunction and distribute this preliminary injunction to all state court judges and state court clerks. The Court recognizes that it may not be in the best position to dictate the particulars. Accordingly, the State may propose different means of disseminating this information—that still achieve the goals of informing the state judiciary and plainly informing the public of this preliminary injunction and its effect—for this Court’s review and approval.

The judge explicitly credited language penned by the U.S. Department of Justice attorneys who sought the injunction — at times quoting their legal reasoning in full block quotes.  The DOJ argued vociferously last week that S.B. 8 was an “end run around the supremacy clause” of the U.S. Constitution which should not be allowed to stand.

Judge Pitman also explained that his decision was necessary to prevent an avalanche of litigation connected to “other divisive political issues” from upending the American legal system as a whole.

“[H]ad this Court not acted on its sound authority to provide relief to the United States, any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction,” the judge ruled.

He cited a Los Angeles Times piece which fretted over the future of litigation if states opened the floodgates to myriad civil actions — some of which the judge said might infringe on the Second Amendment rights conservatives cherish.  He also named immigration as a potential area of concern for similar state legal schemes.

But the judge also tacitly admitted the injunction would almost certainly be immediately appealed:

This Court’s preliminary injunction, should it stand, discourages states from doing so:  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. Thus, rather than increase the number of suits by the United States, this Court’s preliminary injunction maintains the status quo of very few such suits and preserves this cause of action for exceptional cases like this one.

In concluding the order, Pittman said:

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 theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.

The judge declined to accept a request by the Texas Attorney General’s Office to honor the law’s severability clause and to keep parts of S.B. 8 intact.  Pitman said the “severability clause does not require this Court to perform legislative work” and that he would not engage in the “exercise of picking and choosing what portions of S.B. 8 could remain in effect, if any.”

Pitman is a Barack Obama appointee in the Western District of Texas (Austin Division).

Reaction to the judge’s Wednesday evening preliminary injunction was swift.

“Today’s ruling enjoining the Texas law is a victory for women in Texas and for the rule of law,” said Attorney General Merrick Garland. “It is the foremost responsibility of the Department of Justice to defend the Constitution. We will continue to protect constitutional rights against all who would seek to undermine them.”

“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “A month ago, five Supreme Court Justices shrugged their shoulders and allowed this horrific law to take effect. The result has been devastating: people who need abortion care and have resources have been forced to flee the state and those without resources or the ability to travel have been forced to remain pregnant against their will. The law has impacted the most marginalized the harshest, including people of color and young people.”

Michigan Attorney General Dana Nessel (D), whose state was among a list of jurisdictions which filed Amici briefs in the matter, reacted similarly.

“We can celebrate this win tonight, but the work continues tomorrow to ensure a woman’s right to make decisions in respect to her own body is protected,” Nessel said. “The ruling in Texas will no doubt be challenged, and the fight is just beginning. I am proud to be among the attorneys general who supported the Department of Justice in this effort and remain committed to countering continued attacks on reproductive rights.”

New York Attorney General Letitia James (D) echoed similar thoughts.

“We fought this unconstitutional abortion ban in Texas, and now a court has ruled to immediately block this law,” James said on Twitter. “We will continue to fight to protect the right to an abortion in Texas and across our entire nation.”

The Texas Attorney General’s Office released had not reacted to the judge’s order on Twitter or on its website as of the time of this report. Nor had Texas Attorney General Ken Paxton addressed the injunction on his personal Twitter account.

The full 113-page order is below.

Editor’s note: this piece, which began as a breaking news report, has been significantly updated.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.