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Texas Abortion Ban Put on Hold by Judge Calling It ‘Contrived’

Oct. 7, 2021, 3:40 AM

A federal judge temporarily blocked Texas’s new ban on most abortions, saying the law outsourcing enforcement to bounty-hunting members of the public was “contrived” to get around a constitutional right.

The ruling Wednesday by U.S. District Judge Robert Pitman in Austin is a major early victory for the Biden administration, which sued to overturn the ban after it took effect Sept. 1. With the injunction in place, the strictest such law in the nation will go on hold during the rest of the case, at least for now.

The law prohibits abortions after about six weeks of pregnancy -- before many women know they’re pregnant -- and has no exceptions for rape or incest. While the ruling clears medical professionals to once again offer most abortions, they face risks if Texas ultimately prevails because the law allows suspected violators be sued retroactively.

Pitman wrote that “a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.”

“Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that,” wrote Pitman, an appointee of former President Barack Obama.

Texas filed notice that it will challenge the ruling in the Fifth Circuit Court of Appeals, which leans heavily conservative. The U.S. Supreme Court may have the final say on the injunction and eventually on the law itself.

The Justice Department argued the law should be put on hold due to the severe impact it is already having on women, forcing many to drive hundreds or thousands of miles to other states to seek reproductive care -- if they have the time and money to do so.

Amy Hagstrom Miller, president of abortion provider Whole Woman’s Health, said that she’s making plans to resume abortion care up to 18 weeks as soon as possible.

“Our clinic staff has been bending over backward to help as many of our patients as we can,” she said in a statement. “This is the justice we have been seeking for weeks and we are grateful that the court has finally stepped in to curb some of the harm Texans have faced.”

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U.S. Attorney General Merrick Garland hailed the ruling as “a victory for women in Texas and for the rule of law,” while White House Press Secretary Jen Psaki said in a statement that the fight “has only just begun” in Texas and across the U.S.

Texas Right to Life, a group that has supported the law, said in a statement that the judge’s injunction is “wildly broad” and that it expects a “fair hearing” on appeal.

“We are confident that the Texas Heartbeat Act will ultimately withstand this legal challenge and succeed where other states’ heartbeat bills have not,” the group said. It also warned that “those who aid or abet abortions, even if currently permitted by this ruling, could eventually be sued for their actions today.”

Democratic state attorneys general who for months have criticized the Texas law as an attempt to overturn the landmark Supreme Court ruling in Roe v. Wade were also quick to weigh in on the ruling.

“Texas’ abortion ban is a blatantly unconstitutional scheme to undermine Roe,” Massachusetts Attorney General Maura Healey said in a statement. “For weeks, patients in Texas have been forced to travel thousands of miles to nearby states to access safe, legal abortion.”

Closely Watched Case

The case has been closely watched by other Republican-led states that view the law as a template for restricting abortions and evading federal legal challenges. Conservatives nationwide are racing to rein in the procedure while seeking to weaken or overturn Roe v. Wade, which guarantees access to it.

Texas lawmakers, like those in many other Republican-led states, say it’s needed to protect life once the first signs of cardiac activity are detected in the fetus. The law had already triggered a handful of lawsuits, though they were also filed by people who believe in a woman’s right to choose and wanted to undermine the law.

QuickTake: How Texas Abortion Law Turns Public Into Enforcers

The novel statute also aims to avoid lawsuits against the state by outsourcing enforcement to private citizens, empowering them to sue doctors or anyone else suspected of violating the ban and to seek bounties of at least $10,000 per illegal procedure.

The judge said an injunction is warranted because the U.S. is well poised to win the case on the merits. He rejected Texas’s contention that the state couldn’t be sued because it wasn’t enforcing the ban, as well as the state’s claim that private citizens couldn’t be enjoined because they aren’t parties to the DOJ’s suit.

Pitman said people seeking the $10,000 bounties were acting “in active concert with the state” to enforce the ban and “potentially deprive Texans of their constitutional rights.” The judge pointed to the “absurdity and perversity of a law that incentivizes people who do not disagree with abortion care to sue abortion providers to make a quick buck.”

The injunction, the first major setback for Texas in its defense of the law, will apply to private citizens who could file lawsuits as well as to state court judges who would hear such cases.

Read More: Texas Judge Presses State on ‘Unusual’ Design of Abortion Law

The Supreme Court has already signaled deference to the Texas law. The court stunned pro-choice activists and civil rights groups when it allowed the ban to take effect in a 5-4 decision in a different suit, brought by Texas abortion providers.

Texas has argued that the U.S. doesn’t have the authority to sue to protect a constitutional right to abortion in the first place.

Texas Attorney General Ken Paxton has said that a valid legal challenge to the law would require a private citizen to sue someone who assists in an illegal abortion. Paxton has previously expressed confidence that the Fifth Circuit will put an injunction on hold while the litigation plays out.

Paxton’s office didn’t immediately respond to voice mail and email messages seeking comment.

Read More: Texas Says Making Women Travel for Abortions Boosts Commerce

Republicans have expressed optimism that the high court’s new 6-3 conservative majority will rule in their favor in fights over abortion. The court has scheduled arguments for Dec. 1 on its biggest abortion case in a generation, a Mississippi appeal that seeks to overturn Roe v. Wade.

The case is U.S. v. Texas, 21-cv-00796, U.S. District Court, Western District of Texas (Austin).

(Updates with statements from Texas Right to Life and the White House.)

--With assistance from Laurel Calkins, Justin Sink and Chris Strohm.

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Steve Stroth, Peter Blumberg

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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