Judge Pitman's Abortion Ruling Illustrates Flaws of Texas Senate Bill 8
Civil Rights Policy Brief #176 | By: Rodney A. Maggay | October 15, 2021
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Texas Senate Bill 8 (SB8) bans abortions approximately six weeks after pregnancy. Under the new law any person may sue a Texas health care provider to prevent them from performing an abortion and gives those persons who bring a lawsuit money damages of $10,000 if they are successful in their lawsuit against the health care provider.
On July 13, 2021 the American Civil Liberties Union (ACLU) brought a lawsuit to have the Texas abortion law declared unconstitutional based on existing court precedents such as Roe v. Wade. Whole Women’s Health v. Jackson eventually made its way to the Supreme Court but the high court instead refused an order for a temporary restraining order against the law and the Texas law was allowed to go into effect on September 1, 2021.
In response to the Supreme Court’s order Attorney General Merrick Garland announced on September 9, 2021 that the Department of Justice (DOJ) would initiate a lawsuit on a different basis. While Whole Women’s Health was brought on behalf of state abortion providers, the suit brought by DOJ – United States v. Texas – was pursuant to the Freedom of Access to Clinic Entrances Act and would be brought because SB8 “illegally interferes with federal interests.”
On October 6, 2021 U.S. District Judge Robert Pitman issued a 113-page order granting a temporary restraining order prohibiting SB8 from going into effect. However, an immediate appeal was again taken and on October 8, 2021 the United States Court of Appeal for the Fifth Circuit ordered a stay which blocked Judge Pitman’s order. The end result is that now the SB8 law banning abortions in Texas can continue while the trial on the case moves forward. LEARN MORE, LEARN MORE, LEARN MORE
While Whole Women’s Health and the DOJ case are very similar and have proceeded on an equivalent litigation track Judge Pitman’s sweeping ruling was able to put to paper the rationales as to why Senate Bill 8 is so troubling. The Whole Women’s Health case did not have this opportunity as the appeals process in that case moved rather swiftly and was primarily focused on whether a court could and should intervene with a temporary restraining order.
What DOJ lawyers did was focus on two main points that allowed Judge Pitman to expand on those points and give him a legal basis to temporarily suspend the law. First, the judge noted SB8’s novel enforcement scheme – allowing private citizens to bring lawsuits instead of Texas state officials – by calling it a “contrived” and “unprecedented” scheme to sidestep likely review by a judicial court.
The officials in Texas knew that SB8 directly contradicted Roe v. Wade and so the law was intentionally written in a way that allowed the state to prohibit abortions without having to take any legal responsibility for the new law. A woman’s right to have an abortion cannot be deprived simply by creating a different enforcement mechanism. Roe v. Wade established a constitutional right for women to have the procedure and that right doesn’t change by trying to sidestep the law by having private citizens instead of state officials bring lawsuits.
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And, when the DOJ lawsuit was initiated, Attorney General Merrick Garland stated his concern that SB8 would become a model for other states to pass laws that could prohibit more than just abortion rights.
In his ruling Judge Pitman emphasized that this was another basis on why stepping in now was so important. He stated his concern that “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.” Judge Pitman recognized clearly that he needed to step in and, at least for now, push back on how SB8 was constructed.
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Other states could easily try to model laws after Texas SB8. The danger as Judge Pitman saw was depriving people of not just abortion rights but other constitutionally guaranteed rights. With a brilliant analysis and ruling by Judge Pitman parties in other lawsuits and courts around the country can now point to Judge Pitman’s order as legal precedent if states try to implement some kind of law that mirrors SB8’s enforcement mechanism.