By Reese Oxner/Texas Tribune
A federal judge temporarily blocked Texas’ near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.
U.S. District Judge Robert Pitman in Austin — a 2014 Obama nominee — issued a temporary restraining order to block enforcement of the law after the court held arguments from federal and state attorneys on Friday.
It’s unclear how Pitman’s order may affect access to abortions in the state — or if it’s likely to at all. The law forced all major abortion clinics to stop offering abortions barred under the law and some have stopped offering the procedure altogether — out of fear of litigation. The law is constructed in a way where people who violate the law, even while it is being temporarily blocked, could be liable to litigation if the law’s enforcement was reinstated and any existing suits could continue.
It’s also unclear how long the order will stand. Pitman’s ruling almost certainly will be appealed to the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court. The court has already paused court proceedings in another lawsuit Pitman is overseeing that was lodged by abortion providers over the state’s law. The U.S. Supreme Court could eventually be asked to step in on this case.
The ruling is the strongest judicial action so far against Texas’ abortion law, which went into effect more than a month ago.
Pitman’s order primarily forbids state court judges and court clerks from accepting suits that the law, passed as Senate Bill 8, allows. Pitman ordered the state to publish his order on all “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.”
The Department of Justice sued Texas on Sept. 9 and alleged the law was deliberately constructed to flout constitutional rights by making it difficult to challenge in court. But the state responded that just because the law is difficult to challenge judicially doesn’t mean it should be overturned.
The statute bars abortions in the state as early as six weeks — a period before many know they’re pregnant. It has been able to survive legal challenges unscathed before Friday because of the novel way the law was written.
By empowering anyone in the nation to file lawsuits against a provider or person who aids someone in getting an abortion and barring state enforcement, SB 8 makes it difficult to name the correct defendants in the lawsuits that would block enforcement of the law.
Earlier this year, the Supreme Court decided to not block the law in a late-night 5-4 vote — on the day it went into effect. The court cited procedural difficulties and tossed that legal case back to the 5th U.S. Circuit Court of Appeals, where it currently sits. But justices stressed that the court was not ruling on the statute’s constitutionality, namely not overruling Roe v. Wade, which helped established a constitutional right to an abortion.
The Department of Justice’s case is one of many lawsuits filed in an effort to block the enforcement of Texas’ abortion law.
This story is republished with permission of The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Cover photo: A sign in the parking lot of the now-closed Hill Top Women’s Reproductive Clinic in Central El Paso warns that trespassers will be prosecuted. The clinic closed in March 2020, before Texas’ new abortion restrictions took effect. (Corrie Boudreaux/El Paso Matters)