Judge Tells Texas Abortion Ban OH NO YOU F*CKING DON'T

Last night a federal judge in Texas enjoined the enforcement of SB 8, the state's near-total abortion ban.

US District Judge Robert Pitman's meticulous 113-page opinion can only be read as a stinging rebuke of the Fifth Circuit and the Supreme Court, which refused to acknowledge the clear constitutional issues and allowed the law to go into effect with a few sentences professing themselves unequal to the task of imagining whether an abortion ban explicitly designed to evade legal scrutiny might in fact ban abortion and evade legal scrutiny.

"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," Judge Pitman 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."

The opinion is everything the one-paragraph brush-off from five Supreme Court justices was not: thorough, reasoned, and grappling with both the inherent bad faith of Texas legislators and the reality of women's lives.

"The State attempts to distance the law from its consequences, but let us be clear: S.B. 8 prevents individuals from exercising their right to obtain abortions in Texas, and an injunction will restore that right," the court wrote.

Texas's law was deliberately crafted to evade judicial review by depriving plaintiffs of a defendant to sue. The state attempted to immunize itself by outsourcing enforcement to civil litigants, allowing the Supreme Court to profess ignorance as to whether any such litigant might appear. And the Fifth Circuit claimed that it could do nothing to enjoin the law since state officials had nothing to do with enforcing it and were thus not proper defendants.

"S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any 'enforcement connection' to S.B. 8 and are not amenable to suit under Ex parte Young, 209 U.S. 123 (1908)." the Fifth Circuit chirped on September 10.

Which left no one to sue, as the drafters of the law intended.

In this case, the Justice Department sued the state of Texas, arguing that state officials deputized potential bounty hunters as plaintiffs to do what the state could not, converting those plaintiffs into state actors. And Judge Pitman agreed:

Private individuals who file S.B. 8 lawsuits help effectuate the State's blueprint to potentially deprive Texans of their constitutional rights. Before S.B. 8, these individuals would have had neither a cause of action to obtain relief in a suit against abortion care providers nor standing to bring such a suit. The State chose to deputize them; the State chose to remove any requirement that they suffer an injury to bring suit (an injury is almost always required to bring suit); and the State chose to incentivize them by automatically awarding them damages of at least $10,000 if their suit is successful.

Indeed the bounty hunters made clear that they view themselves as agents of the state, with one man who filed an intervenor action admitting that he hoped to sue doctors who provide illegal post-viability abortions in liberal districts where prosecutors refuse to bring charges, effectively making himself a law enforcement officer.

But more than just conscripting private citizens to do what the government can't, Texas's government does participate in enforcing the illegal anti-abortion law by creating a cause of action and instructing the state's judges to assess penalties under it.

"In addition to allowing its judiciary to enforce a likely unconstitutional S.B. 8, the State designed S.B. 8's private cause of action enforcement mechanism and authorized private individuals to bring suit on its behalf, and the private individuals who bring an S.B. 8 suit 'make extensive use' of the state judicial system," the court wrote.

And unlike the rest of his judicial brethren, Judge Pitman didn't shrink from the reality of women's lives. He explained that pregnancy is dated from the date of a woman's last period, which means that she's considered about two weeks pregnant on the day of conception; he clarified that the so-called "heartbeat" doctors are hearing at six weeks is an electrical impulse, but that there's no heart tissue until later in fetal development; he talked about how people experience pregnancy and menstruation differently, so many women are quite likely to be beyond the "six week" cut-off before they even know they're pregnant; he laid out how difficult it is for all women, especially those in poor, rural areas, to access abortions in Texas, citing affidavits from providers who have had to turn women away because the "heartbeat" developed during the mandatory waiting period between the first and second appointments; and he explained exactly how woman were being targeted in "Texas Bounty Hunter" subreddits and by avowed predators who aimed to target abortion providers with hundreds of lawsuits and settle them cheaply at nuisance value of perhaps $100 each.

Judge Pitman had little time for the state's defenses, which were utter bullshit. The state literally cited Dr. Alan Braid, the doctor who deliberately violated the law and wrote about it in the Washington Post, as proof that abortions were still taking place in Texas.

The State makes a half-hearted attempt to establish that pregnant persons are still able to access abortions since S.B. 8 went into effect on September 1. But its assertions only illustrate how effective the ban has been. The State cites only one case of an abortion being performed in post-S.B. 8 Texas. (Resp., Dkt. 43, at 50) ("Even as everyone is adjusting to the new law, women have been able to obtain post-heartbeat abortions. Dr. Alan Braid, for example, reports that at least one of his patients received an abortion 'beyond the new legal limit[.]'")). With this claim, the State appears to argue that abortion services remain available because providers are willing to act in violation of S.B. 8—in other words, the law is constitutional because people will violate it. The absurdity of this reasoning speaks for itself.

In a stunning admission of bad faith, Texas insisted that staying the law would be pointless, since legislators had included a provision allowing for bounty lawsuits over abortions performed during a stay if the law should ever go into effect. Describing this provision as "of questionable legality," the court refused to be manipulated, citing testimony of providers who said they would, indeed, recommence providing abortion care if the law were stayed.

"But even if the desired chilling effect of this provision does materialize, such speculation is no reason for the Court to tie its own hands," Judge Pitman wrote.

Similarly, Texas argued that it was fine to ban abortion within its own borders, because women could just travel to Oklahoma, New Mexico, Kansas, or Colorado to get the care they needed. Irrespective of the added cost and inconvenience to patients themselves — Oklahoma has a 72-hour waiting period — Texas blithely shrugs off questions about the capacity of clinics in those other states to serve patients denied their constitutional rights where they actually live. And, as the court notes drily, there's nothing to stop other states from passing anti-abortion laws, too, if Texas is allowed to get away with this.

"All this is to say that the State does not exist in a vacuum," Judge Pitman wrote. "Indeed, if Texas's neighbors, much less every other state, were to pass laws similar to S.B. 8—which if S.B. 8 is constitutional they are free to do—there would be no other states to which pregnant people could travel to obtain an abortion."

And perhaps most importantly, Judge Pitman acknowledges the reality that allowing one state to gut a constitutional right through legal trickery guts that right in all 50 states. This evasion of judicial review simply cannot be allowed to persist in a country of laws.

The United States has demonstrated that it is in its interest—and therefore the public's interest—to prove that the Constitution is not only as strong as one state's thinly veiled attempt to restrict constitutional rights and preclude judicial review. "[T]here is the highest public interest in" preserving "constitutional guarantees, including those that bear the most directly on private rights." United States v. Raines, 362 U.S. 17, 27 (1960). Conversely, the State can have no interest in enforcing a law that is likely unconstitutional on its face, nor can it have any valid interest in shielding an arguably unconstitutional law from judicial review.

The state has already appealed to the Fifth Circuit, which is stacked with crazy people who may overturn the stay at any moment. But for now at least, women in Texas have the right to bodily autonomy.

Keep shouting, it's working.

[US v. Texas, docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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