The law, passed during the regular legislative session as Senate Bill (SB) 8, authorizes citizens to sue anybody besides the mother herself that performs or aids an abortion of an unborn child with detectable cardiac activity. Fathers that conceived the child by rape or incest cannot sue, nor can government officials. SB 8 forbids the government from enforcing it in any way.
Judge Robert Pitman of the U.S. District Court for the Western District of Texas paused this unique enforcement action in a manner “commensurate in scope” with the law itself: by forbidding all state judges and clerks in the Texas court system from hearing or even accepting lawsuits under SB 8.
Pitman’s order is part of a lawsuit between the Biden administration and the State of Texas over SB 8. The U.S. Department of Justice sued the state shortly after the law took effect, its path cleared by an unsuccessful petition to the U.S. Supreme Court in a separate challenge.
Although the law was crafted to shield the state from responsibility by allowing civil rather than governmental enforcement, Pitman said the state could still be held responsible and enjoined through the court system.
“Indeed, the State has its prints all over the statute. The operation and enforcement of SB 8 requires the State and its employees to act, whether those acts are the maintenance of a lawsuit or carrying out a court order regarding the enforceability of SB 8,” the injunction order reads.
“[T]he State’s scheme to disguise its enforcement role and disclaim accountability collapses upon cursory inspection. The State enacted SB 8 and created a private enforcement scheme that clothes private individuals with the State’s enforcement power.”
Furthermore, Pitman wrote that private citizens can be treated as arms of the state in this case and therefore enjoined. For support, Pitman cited the reasoning of some citizens that joined the case as intervenors.
Three Texans intervened in the case to side with the state, claiming they intend to sue violators of the Heartbeat Act. Another citizen, an Arkansas lawyer who sued the first admitted violator of the law in a partly facetious attempt to find it unconstitutional, also joined the case to side with Texas in an effort to protect his “investment” in seeking monetary damages from the abortion physician he sued under the law.
Pitman argued that these intervenors, though ranging in sincerity, understand SB 8 to deputize them as enforcers.
“The fact that the Texas Intervenors understand that their interests would be impacted if this Court enjoins enforcement of SB 8 drives home the point that the Texas Intervenors recognize that they are carrying out state policy and enforcement and that an injunction of SB 8 would interfere with their rights to enforce state laws,” Pitman wrote.
“Setting aside 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, Stilley explicitly states his perception that the State delegated part of its enforcement power, i.e., bringing suits, to him.”
The Biden administration successfully secured its claim to standing since, among other reasons, Pitman wrote that “the offending law implicates interstate commerce.”
“Its harms affect the public at large, as it affects any person with reproductive capacity, who engages in sexual contact with a person with reproductive capacity, or who can conceivably be sued under SB 8,” the injunction reads.
As the Biden administration argued in its original complaint, the federal government also pays for certain abortions that could be illegal under the Heartbeat Act. For example, federal prisons pay for elective abortions of women prisoners, and the Department of Labor requires contractors to ensure that enrollees in certain programs have access to “information and services related to abortion.”
Abortion facilities have said the Heartbeat Act decimated abortions in Texas, but it remains unclear whether they will return to their August levels after the injunction.
Pro-life advocacy group Texas Right to Life expressed disappointment with the order but said the risk of enforcement for violators of the law remains if his order is overturned.
“Pitman’s effort to obstruct state judges and court clerks from fulfilling their lawful duties is astonishing,” the group stated.
“This is the legacy of Roe v. Wade: Judges catering to the abortion industry, crafting a conclusion first and then searching the depths of legal literature for a rationale later. However, even with this ruling, abortionists can still be held liable for any abortions they commit in violation of the law… Those who aid or abet abortions, even if currently permitted by this ruling, could eventually be sued for their actions today.”
Fund Texas Choice, a group that pays the travel costs of women seeking abortions, said the results of the injunction have not entirely unfolded.
“As we wait to see the immediate impact of this ruling on abortion access in our state, Texans are still being forced to travel out of state, sometimes for hundreds of miles, to access abortion care,” executive director Anna Rupani stated.
State Sen. Bryan Hughes (R-Mineola), the bill’s author, released a statement claiming the law is still in effect.
“Judge Pitman’s ruling is not the final word on the Heartbeat Act. The injunction will be immediately appealed to the US Court of Appeals for the Fifth Circuit, and we are confident that the Fifth Circuit will stay and reverse the ruling,” Hughes wrote.
“In the meantime, the Texas Heartbeat Act is still in effect. Anyone who performs or assists a post-heartbeat abortion in Texas remains subject to lawsuits in federal court, and they will also be sued in state court if this injunction is vacated or stayed on appeal.”
The state did in fact appeal shortly after the order.
The Fifth Circuit is currently handling Whole Woman’s v. Jackson, the putative class-action suit against the Texas court system by a group of abortion providers. The case traveled through Pitman’s court, where he denied the state’s motions to dismiss it, before going to the Fifth Circuit.
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