On Wednesday, a U.S. judge temporarily blocked enforcement of a recent Texas law that bans most abortions. The law, known as S.B. 8, allows private citizens to sue anyone who provides an abortion or aids and abets or intends to aid and abet an abortion.
The Justice Department sued Texas over the law on September 9. In his remarks announcing the lawsuit, Attorney General Merrick Garland said that the law was “clearly unconstitutional” and that its enforcement scheme, allowing private citizens to “serve as bounty hunters,” is an “obvious — and expressly acknowledged” attempt to prevent individuals from exercising their constitutional rights by evading judicial review. On September 1, the U.S. Supreme Court voted 5-4 to allow the law to take effect.
The complaint seeks a declaratory judgment that S.B. 8 violates the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity. It also seeks a permanent and preliminary injunction prohibiting enforcement of the law.
On September 15, the Justice Department filed an emergency motion requesting a temporary restraining order or preliminary injunction to enjoin the enforcement and effect of S.B. 8. Its motion stated that the vast majority of individuals seeking abortions in Texas were being turned away, that some individuals were being forced to seek care in other states, that Texans were claiming 50-75% of appointments in other states, creating scheduling backlogs, and that the state was losing health care professionals for fear of liability.
U.S. District Court Judge Robert Pitman began his October 6 opinion by stating, “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.”
Citing existing Supreme Court precedent, including precedent holding that pre-viability bans on abortion are unconstitutional, Judge Pitman found that the Justice Department was substantially likely to succeed on the merits of its claims. The opinion also found that irreparable harm was likely if the court did not grant the preliminary injunction and that the balance of equities and public interest favored granting the preliminary injunction.
Judge Pitman ended his opinion by stating, “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…. this Court will not sanction one more day of this offensive deprivation of such an important right.”
Additional Reading
A U.S. judge blocks enforcement of Texas’ controversial new abortion law, NPR (October 6, 2021)
October 6, 2021 Order, United States of America v. The State of Texas (October 6, 2021)
Attorney General Merrick B. Garland Delivers Remarks Announcing Lawsuit Against the State of Texas to Stop Unconstitutional Senate Bill 8, The United States Department of Justice (September 9, 2021)
Lawsuit Challenges Texas’ Newest Abortion Ban, Justia (July 15, 2021)
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