Texas Abortion Ruling Overcame a Ban Designed to Thwart Courts

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The state asked a conservative-leaning appellate court to lift the injunction that blocked its nearly complete abortion ban

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That was until U.S. District Judge Robert Pittman of Austin granted an injunction Wednesday that at the request of the U.S. Justice Department stayed the law — at least for a while.

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The Texas Attorney General’s office filed a motion Friday with the Fifth U.S. Circuit Court of Appeals seeking an emergency stay of Judge Pittman’s decision, which would keep SB8 in effect while Texas appeals his order. “Intervention is necessary to justify Texas’ sovereign interest in preventing a federal district court from overseeing every Texas court,” Texas Solicitor General Judd E. Stone said in a New Orleans-based appeals court filing.

Judge Pittman’s ruling—filling more than 100 pages—contained vague exceptions to legal concepts familiar to English doctrine, sovereign immunity of the state, and child-custody cases before the Constitution. All this led to the exercise of federal power over a state-court system: an order that forbids the public from prosecuting violators of SB8 and prohibits the Texas judiciary from taking cases under the law.

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Within hours of the decision, some abortion clinics in Texas resumed normal operations after closing their doors to most patients starting Sept. 1, when SB8 took effect. The tarnished victory of the abortion-rights movement is likely to be overturned by the conservative-leaning benches of Judge Pittman’s ruling over him: the Fifth Circuit and the U.S. Supreme Court. Legal scholars say parts of their opinion are vulnerable to reversal.

“It’s not so clear that this decision will survive,” said George Washington University Law School professor Jonathan R. Siegel, pointing to the “technical hurdles” for the Justice Department’s trial that the judge has tried to overcome in constructive ways. Found.

The law’s authors have stated that it was designed to address such challenges. Unlike other abortion restrictions, SB8 gave the state government no enforcement role. Instead, it deputizes the public, giving anyone in the country the right to sue clinics and their insurers or anyone who helps a patient get an abortion.

The law’s private enforcement scheme closed the normal avenues for clinics to challenge pre-viability abortion restrictions. Threats of damages and protracted litigation in state court proceedings forced clinics to comply.

That was the status quo until Judge Pittman, a former federal prosecutor appointed to the bench by President Barack Obama in 2014, accepted the Biden administration’s request for a preliminary injunction.

A small portion of Judge Pittman’s opinion pertains to Roe or subsequent Supreme Court decisions that affirmed the constitutional right to abortion. “There is no doubt that SB8 serves as a ban on pre-viability abortion in contravention of Roe v. Wade,” they wrote.

Central to the decision are the federal government’s power to sue, the court’s authority to hear the case, and who can be ordered to do what. Much of the extensive legal discussion in the ruling centers around the federal government’s role as the plaintiff.

Standing in the sharpest points of disagreement between Texas and the Department of Justice has to do with the concept of constitutional requirement that, among other things, a plaintiff demonstrates that some tangible harm has been or is about to be caused by the defendant. .

The judge said the law exposes federal agencies and employees to legal liability for assisted abortions, noting the Federal Bureau of Prison Rules that authorizes prison medics to arrange elective abortions requested by inmates. Is.

The judge went a step further. He wrote that America’s position also rests on a legal concept that recognizes the role of the government as the protector of the people. This is the principle referred to in law as a parent (Latin for “parent of the people”), a term often applied in the context of juvenile court when the state assumes custody over a neglected child. The doctrine enables states to prosecute private defendants accused of harming or infringing on the rights of the general public.

Texas argued that the doctrine is reserved for lawsuits brought by the states, not the federal government. Judge Pittman disagreed, writing that the US government is “the ultimate parent of every American citizen.”

The decision has raised concerns that the federal government may initiate lawsuits against states with greater frequency, but Judge Pittman said it was an exceptional case.

“The judge went out of his way to say that the relief order being ordered would not open the floodgates,” said Michael Dorff, a Cornell University constitutional law professor.

The judge also addressed the question of what the United States actually has a right to prosecute, while again rejecting Texas’ arguments. Pro. According to Siegel, this part of the court’s analysis may lead to the most scrutiny in appeals.

The right to seek redress in court is limited. Common grounds are either a statute or common law, such as a negligence lawsuit. From time to time, courts have exercised their powers to provide so-called equitable relief to prevent state officials from acting unconstitutionally – remedies that the law does not specifically authorize.

Question for the Court: Can a judge exercise that power here because there was no other practical legal route to stop SB8 and restore abortion rights in Texas? Judge Pittman decided he had that power.

“If this Court had not acted on its sound authority to provide relief to the United States, how many states could legislate which deprives citizens of their constitutional rights, no one to challenge that deprivation.” Not a legal remedy, without the concern that a federal court would file an injunction,” he wrote.

The only way to stop law enforcement is to prevent people from bringing cases and judges from hearing them. The Supreme Court has held that judges are free from lawsuits for damages, but they can be prosecuted for injunctive relief. Cited in the lawsuit is a 1948 Supreme Court case that barred Missouri courts from enforcing racially restrictive housing contracts that excluded blacks from occupying the housing they purchased.

Texas argued in court papers that the Supreme Court “has not generally allowed the federal government to challenge alleged constitutional violations.”

[email protected] . on Jacob Gershman

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