October 24, 2021

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The Decision Blocking Texas’ Abortion Ban Is A Meticulous Rebuke To The Supreme Court – Slate

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On Wednesday night, U.S. District Judge Robert Pitman blocked S.B. 8, Texas’ six-week abortion ban, which sought to evade judicial review by empowering bounty hunters to sue abortion providers and anyone who “abets” them. Pitman’s 113-page opinion is a rebuke to the Supreme Court’s one-paragraph, back-of-the envelope order refusing to halt the law on Sept. 1, after it had already gone into effect. Pitman, who heard lengthy oral arguments in this case last Friday, painstakingly explains why federal courts must prohibit the Texas judiciary from entertaining suits by anti-abortion vigilantes. In so doing, he answers the many “complex and novel” questions that SCOTUS found too befuddling to address last month when it declined to enjoin the law. Pitman also illuminates the rolling crisis for Texans who remain in dire need of abortion care, depicting the harrowing consequences of the ban over the last five weeks. Higher courts may well reverse Pitman’s decision, but they will have a difficult time pointing to a flaw in his meticulous and fact-based opinion.

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The Texas’ law is an explicit attempt to get around Roe v. Wade. The act prohibits doctors from terminating a pregnancy after six weeks, when about 85% of abortions take place, with no exception for rape and incest. Notably, it does not allow state officials to enforce this regulation. Instead, S.B. 8 allows random people to file a $10,000 lawsuit in Texas state court against those who perform an abortion or “aid or abet” one. Abortion providers thus sued the state judges and court clerks who would docket, hear, and decide these suits. Pitman was poised to assess S.B. 8 before it took effect on Sept. 1 when the 5th U.S. Circuit Court of Appeals abruptly stopped him from holding a hearing, then refused to freeze the law. Near midnight the same day, the Supreme Court declined to halt S.B. 8 by a 5–4 vote, citing “complex and novel antecedent procedural questions.”

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The result was immediate and profound in clinics around the state. Many Texas clinics simply stopped providing abortion services for fear of violating the law. Accounts of pregnant Texans begging for services and clinic employees facing  harassment followed.

On Sept. 9, the U.S. Department of Justice got involved, filing a separate lawsuit to take down S.B. 8 on federal grounds. The DOJ came in with a major advantage: Because it represents the United States, it can file a suit directly against a state, something individual private plaintiffs cannot do. By suing Texas itself, the Justice Department leapt over the “procedural question” that had tripped up the previous plaintiffs. At arguments last week the state of Texas attempted to argue that S.B. 8 had been deliberately crafted to comply with the constitutional rules set forth in Roe and Planned Parenthood v. Casey and that to its knowledge, no woman had been precluded from having an abortion in the weeks since S.B. 8 had gone into effect. The state’s argument was a tour de force of gaslighting that flew in the face of every fact reported over the past several weeks.

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The DOJ’s bet that agents of the state could be subject to suit paid off, particularly in the face of mounting evidence that pregnant Texans had been materially harmed as a result of the law. Pitman’s decision has moments of powerful rhetoric, but it is largely devoted to the “complex and novel” threshold issues the majority of the Supreme Court was too exhausted to probe when they allowed the law to stand. “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers,” he wrote, to “preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” This effort failed, he noted, because the United States has standing to represent its citizens in their effort “to vindicate federal rights.” On behalf of these citizens, it also has authority to enforce the 14th Amendment against a state attempting to “supersede” it. As Pitman put it, “when the machinations of the state effectively cut off private access to the federal courts,” the scheme warrants “equitable action by the United States.”

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Because the DOJ clears these hurdles, Pitman wrote, it had properly challenged S.B. 8. And on the merits, there is no question as to foundational facts: Texas’ law plainly violates Roe because it outlaws abortions well before fetal viability. In order to block the law, Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “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.”

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p data-uri=”slate.com/_components/slate-paragraph/instances/ckugergtq00183h6czpvlmaqv@published” data-word-count=”96″ class=”slate-paragraph slate-graf”>Notably, Pitman denied Texas’ request for an immediate stay of his decision. “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,” he explained. To be clear, this hardly means Texas clinics will begin providing constitutionally protected abortions services tomorrow. If Pitman’s decision is eventually overturned, doctors who perform abortions in the interim can still be sued.  But at least for now, the playing field tilts against the states too-clever-by-half effort to harm women while skirting judicial review.

Perhaps most importantly, Pitman chose not to center the sufferings of the Supreme Court justices who feel beleaguered by the demands of the shadow docket, or of Texas, which seeks to overturn Roe v Wade without being hassled by precedent or legal arguments. Instead, in footnote after footnote, Pitman centers the pregnant people who have relied on the courts to vindicate their rights, and excoriates the state for hurting them, for lying about it, and for its cynical attempts to circumnavigate the rule of law. “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,” he wrote. “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.”

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p data-uri=”slate.com/_components/slate-paragraph/instances/ckugergvu001a3h6cnftv422y@published” data-word-count=”95″ class=”slate-paragraph slate-graf slate-paragraph–tombstone”>One can only guess what will happen to Pitman’s order at the 5th Circuit—which could quickly halt his injunction. It is even less clear what could happen at the Supreme Court, where five ultra-conservative justices seem to think S.B. 8’s devious design lets them off the hook. But for the first time in over a month, Texas women were visible and their needs were urgent to a federal court. And while that may not suffice to reinstitute the right to choose, it is the first glimpse of justice since the twisted Texas law took effect.

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