A federal judge in Austin Wednesday blocked a recently enacted Texas law that effectively ended abortion in Texas as of Sept. 1.
The Texas Heartbeat Act allows private citizens to sue providers for damages if they perform abortions after a fetal heartbeat is detected, which can happen as early as six weeks into a pregnancy. In an unusual and perhaps unprecedented step, U.S. District Judge Robert Pitman forbade citizens from filing such suits and Texas courts from accepting them. Pitman said his extraordinary order is a result of the unusual features of Texas's law.
"The American legal system cannot abide a situation where constitutional rights are only as good as the states allow," Pitman wrote.
The abortion debate was nearing fever pitch before the law, also known as S.B. 8, went into effect. Its implementation has only escalated the conflict. Red state legislators are crafting similar pieces of legislation, while House Democrats moved swiftly to guarantee abortion access in federal statute in the event the Supreme Court overturns Roe v. Wade.
Abortions are unlikely to resume in Texas in the near term, Pitman's decision notwithstanding. Clinics can be sued after the fact under S.B. 8 if they perform abortions while the law is blocked, supposing the injunction is lifted by a higher court. Whole Woman's Health, which operates four abortion clinics in Texas, was noncommittal as to whether it will resume abortions in the state.
"We aren't sure what this means for care yet," the organization said. "We are working with our staff and doctors to resume providing the full scope of abortion care as soon as possible."
The White House similarly acknowledged that the decision, while an important development, is not a definitive result. A regional appeals court will review Pitman's decision, and an appeal to the Supreme Court will follow. The justices allowed S.B. 8 to take effect on Sept. 2, but they cautioned their decision "in no way limits other procedurally proper challenges."
"The fight has only just begun, both in Texas and in many states across this country where women’s rights are currently under attack," White House press secretary Jen Psaki said. "That’s why the president supports codifying Roe v. Wade, why he has directed a whole-of-government response to S.B. 8, and why he will continue to stand side-by-side with women across the country to protect their constitutional rights."
The Heartbeat Act is difficult to attack by design. Government officials responsible for enforcement are the usual targets of a legal challenge to a given law. If courts strike down the statute, they will issue an order forbidding those same officials from enforcing it. But under Texas's law, private citizens are responsible for enforcement via civil lawsuits. Therefore, it's difficult for clinics and courts alike to home in on a single target and permanently enjoin the law.
Pitman's decision purportedly gets around that problem by barring the entire Texas judiciary from accepting S.B. 8 lawsuits. He also blocked citizens from bringing Heartbeat Act claims in the first place. Those steps are justified, he said, because the state itself designed the private enforcement mechanism. Individuals who take advantage of it are acting on the state's behalf, he continued, and such plaintiffs will "make extensive use of the state judicial system."
"The state has its prints all over the statute," Pitman wrote.
The Biden administration sued Texas in September and asked Pitman to block S.B. 8. The Justice Department said it has a basis to intervene for two reasons. First, the federal government has a special responsibility to ensure the states abide by the Constitution. Second, the federal government itself could be vulnerable to legal attack under the Heartbeat Act because certain federal officials help arrange abortions in Texas. For example, officials in federal prisons are required to provide abortions when pregnant inmates request them. Pitman agreed with both arguments.
Texas asked the Fifth U.S. Circuit Court of Appeals to pause Pitman's injunction for the time being about an hour after his decision was published. Such an order could come in a matter of days and would reinstate the heartbeat law while litigation continues.
S.B. 8 is thought to have stopped almost 5,000 abortions, according to Marjorie Dannenfelser of the pro-life Susan B. Anthony List.
The case is U.S. v. Texas in the U.S. District Court for the Western District of Texas.