By Reese Oxner
A federal judge temporarily blocked Texas' near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.
But it's unclear how U.S. District Judge Robert Pitman's order may affect access to abortions in the state—or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman's order in the 5th Circuit Court of Appeals, which is known as perhaps the nation's most conservative appellate court.
In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday's order and the state's appeal will affect procedures in the state.
"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. We already know the politicians behind this law will stop at nothing until they've banned abortion entirely," Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. "This fight is far from over, and we're ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make."
Until Pitman's order, Texas' new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That's because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.
The order from Pitman—a 2014 Obama nominee—forbids state court judges and court clerks from accepting lawsuits that the law allows. Pitman ordered the state to publish his order on all "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."
He called the case "exceptional" and ordered that the state and "any other persons or entities acting on its behalf" be blocked from enforcing the statute. He acknowledged that his order could be appealed in another court and added: "this Court will not sanction one more day of this offensive deprivation of such an important right."
After Senate Bill 8 went into effect Sept. 1, it forced all major abortion clinics to stop offering abortions after an embryo's cardiac activity is detected, which can happen before many people know they're pregnant. Some providers have stopped offering the procedure altogether out of fear of litigation.
The law is constructed in such a way that people who violate the law, even while it is being temporarily blocked, could be liable to litigation if the law's enforcement were to be reinstated and any existing suits could continue.
It capped conservative lawmakers' decades-long war to block access to the procedure and Texas' fast appeal to the 5th Circuit was expected.
"The court will likely put the trial court judgment on hold," Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. "Clinics that perform abortions now risk facing liability if the Fifth Circuit stays the ruling."
Planned Parenthood released a statement after Pitman's order but did not say whether its clinics would resume offering abortion procedures.
"While this fight is far from over, we are hopeful that the court's order blocking S.B. 8 will allow Texas abortion providers to resume services as soon as possible. Planned Parenthood providers across the country have reported serving Texas patients, who are heartbroken and furious that they've needed to leave home for essential health care—often at great expense," Alexis McGill Johnson, president of Planned Parenthood Federation of America said in a statement. "Planned Parenthood will continue fighting this ban in court, until we are certain that Texans' ability to access abortion is protected."
Texas Right to Life, a prominent anti-abortion organization, has said that if Pitman's order is reversed, it would consider filing lawsuits against providers or doctors who perform abortions outlawed under SB 8.
"Any abortions that are committed after September 1, 2021—there is a four-year statute of limitations that somebody can retroactively sue for those abortions — so we are going to be vigilant," said Kim Schwartz, the organization's media and communication director.
Schwartz said the organization fully expects the 5th Circuit to step in and reverse Pitman's order. The 5th Circuit has already paused court proceedings in another lawsuit Pitman is overseeing that was lodged by abortion providers over the state's law. The U.S. Supreme Court also eventually could be asked to step in on this case.
Pitman gave a scathing response to Texas' request that the court allow it to seek an appeal prior to blocking the law's enforcement.
"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," Pitman wrote in his order. "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."
Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents "hope to resume full abortion services as soon as they are able." The organization acknowledged that the order is temporary and expected the state would appeal — but called the ruling a "critical first step."
"For 36 days, patients have been living in a state of panic, not knowing where or when they'd be able to get abortion care," Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. "The cruelty of this law is endless."
Whole Woman's Health said it was making plans "as soon as possible" to resume abortions outlawed under Texas' law.
"This is AMAZING. It's the justice we have been seeking for weeks," Amy Hagstrom Miller, CEO of Whole Woman's Health, said in a statement.
The Department of Justice sued Texas on Sept. 9 and alleged the law was deliberately constructed to flout constitutional rights by making it difficult to challenge in court. But the state responded that just because the law is difficult to challenge judicially doesn't mean it should be overturned.
By empowering anyone in the nation to file lawsuits against a provider or person who aids someone in getting an abortion and by barring state enforcement, SB 8 makes it difficult to name the correct defendants in the lawsuits that would block enforcement of the law.
The U.S. House passed a reproductive rights bill late last month that would nullify Texas' controversial near-total abortion ban by codifying the right to an abortion into federal law. However, the legislation appears unlikely to pass in the Senate and therefore is unlikely to become law.
"Tonight's ruling is an important step forward toward restoring the constitutional rights of women across the state of Texas," White House Press Secretary Jen Psaki said in a statement. "The fight has only just begun, both in Texas and in many states across this country where women's rights are currently under attack. That's why the President supports codifying Roe v. Wade, why he has directed a whole-of-government response to S.B. 8."
Earlier this year, the Supreme Court decided to not block the law in a late-night 5-4 vote on the day it went into effect. The court cited procedural difficulties and tossed that legal case back to the 5th U.S. Circuit Court of Appeals, where it currently sits. But justices stressed that the court was not ruling on the statute's constitutionality, namely not overruling Roe v. Wade, which helped established a constitutional right to an abortion.
The Department of Justice's case is one of many lawsuits filed in an effort to block the enforcement of Texas' abortion law.
"Today's ruling enjoining the Texas law is a victory for women in Texas and for the rule of law. It is the foremost responsibility of the Department of Justice to defend the Constitution," U.S. Attorney General Merrick B. Garland said in a statement. "We will continue to protect constitutional rights against all who would seek to undermine them."
