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.
The state of Texas quickly appealed the order to the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.
U.S. District Judge Robert Pitman in Austin — a 2014 Obama nominee — issued the temporary restraining order to block enforcement of the law after the court heard 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 will 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.
The state's rapid appeal to the appeals court was expected.
"The court will likely put the trial court judgment on hold," Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. "Clinics that perform abortions now risk facing liability if the Fifth Circuit stays the ruling."
Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents "hope to resume full abortion services as soon as they are able." The organization acknowledged that the order is temporary and that the state will likely appeal — but called it a "critical first step."
“For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care," Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. "The cruelty of this law is endless."
The 5th Circuit 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 also eventually be asked to step in on this case.
Texas Right to Life, a prominent anti-abortion organization, has said it would consider filing lawsuits against providers or doctors who perform abortions outlawed under S.B. 8 — if Pitman's order is reversed.
"Any abortions that are committed after September 1, 2021 —there is a four year statute of limitations that somebody can retroactively sue for those abortions — so we are going to be vigilant," said Kim Schwartz, the organization's media and communication director.
Schwartz said the organization fully expects the 5th Circuit to step in and reverse Pitman's order.
The ruling from Pitman 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."
He called the case "exceptional" and ordered that the state and "any other persons or entities acting on its behalf" be blocked from enforcing the statute. Pitman gave a scathing response to Texas' request that the court allow it to seek an appeal prior to blocking the law's enforcement.
"The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right," Pitman wrote in his order. "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."
He acknowledged that his order could be appealed in another court and added: "this Court will not sanction one more day of this offensive deprivation of such an important right."
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.