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A U.S. judge blocks enforcement of Texas' controversial new abortion law

6October 2021

Protesters take part in the Women’s March and Rally for Abortion Justice at the State Capitol in Austin, Texas, on Saturday.

Sergio Flores/AFP via Getty Images

Sergio Flores/AFP via Getty Images

A federal judge has blocked enforcement of Texas’ controversial new abortion law, granting an emergency request from the Justice Department.

The DOJ sought the halt in enforcement just days after the department sued Texas over its new abortion law. Known as SB 8, the law bans almost all abortions in the state after about six weeks of pregnancy, even in cases of rape, sexual abuse and incest.

It includes a novel enforcement mechanism to achieve this, allowing private citizens to bring civil suits against anyone who helps a woman get an abortion, and to collect $10,000 in damages if they prevail in court.

In its lawsuit, the Justice Department says the Texas law is unconstitutional. It says the bill violates the Supremacy Clause as well as the equal protection afforded under the 14th Amendment. It also violates Supreme Court precedent on abortion, it says.

The Texas law’s enforcement scheme, meanwhile, the department says is an unconstitutional attempt to sidestep judicial review to prevent women and providers from challenging the law in federal court.

U.S. District Judge Robert Pitman agreed in his 113-page ruling Wednesday night.

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” he wrote. “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.”

He added later:

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. 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.

Attorney General Merrick Garland warned when he announced the lawsuit that the Texas bill and its enforcement scheme, if allowed to stand, could provide a model for other states to pass a similar law to restrict abortion or other constitutionally protect rights.

In its request for a temporary injunction, the Justice said the law already has had “devastating effects.”

“SB8 has gravely an irreparably impaired women’s ability to exercise their constitutional right to an abortion across the state,” it says.

The department says some women have had to travel hundreds—sometimes thousands–of miles to neighboring states to get terminate their pregnancy.

“One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion,” the federal government says in its filing.

It has also had an impact on the rights of women in other states, such as Oklahoma, Kansas, Colorado, Nevada and New Mexico, where Texas patients are frantically trying to get appointments, the department’s filing say.

Texas had urged the court to deny the federal government’s motion and dismiss the case.

In its filing, the state argued that the Justice Department hadn’t met the legal threshold to warrant an emergency injunction and, more fundamentally, the state argued that the law is constitutional.

“The federal government has not clearly shown that the Texas Heartbeat Act is unconstitutional, that a preliminary injunction would remedy irreparable harm, or that the balance of equities and public interest favor extraordinary relief,” the state said in its filing.

It also said the entire suit lacked merit because state authorities aren’t the ones enforcing the new law since that falls on private citizens.

“The fact that private parties may rely on the challenged statute in other litigation does not create a case or controversy against the sovereign,” Texas wrote. “It simply shows that those other cases would be the proper cases for deciding the constitutionality of the challenged statute.”

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