Members Only | October 8, 2021 | Reading Time: 4 minutes
Federal judge stops Texas’ abortion vigilante law after dismantling it in written opinion
Robert Pitman is your new favorite person.
Another week, another development in the bounty hunter Texas abortion law. But this time with good news (momentarily, at least).
This week Robert Pitman, US District Judge for the Western District of Texas, and my new favorite person, issued a preliminary injunction stopping the enforcement of the law that bans abortions after six weeks through private enforcement, otherwise known as the bounty hunter law. Judge Pitman wrote a brilliant, thorough and gender-inclusive opinion addressing every argument, and every possible argument from the state of Texas. The opinion gives a medical lesson on abortion and its safety. It calls existing upheld regulations burdensome. While Texas has already filed notice that it will appeal the ruling to the Fifth Circuit, a conservative leaning court, and we’re still facing the United States Supreme Court considering a 15-week abortion ban this term, this injunction gives us reason to celebrate.
The only way for this law to survive, Judge Pitman wrote, is for judges to ignore not only decades of precedent, but also more than a century’s worth of law regarding standing, equity, judicial review and the involvement of private actors requiring state enforcement.
SB8, the six-week abortion ban, was passed over the summer and went into effect on September 1 after the Supreme Court declined to issue an emergency injunction. The law was designed to obfuscate the federal court system and avoid judicial consideration on the constitutionality of pre-viability abortion bans (they’re unconstitutional as long as Roe is still law) by placing enforcement of the law in the hands of private individuals, not state actors.
However, in order to place enforcement in the hands of private individuals, the law had to create a bizarre avenue for dragging people into court and suing them if they “aided or abetted” in performing an abortion. That’s why this law is being called a “bounty hunter” law.
This mechanism for enforcement is particularly nonsensical, because it requires ignoring major principles of civil law, namely standing and damages. Normally, for a person to bring a civil suit, they have to be personally harmed. In the case of SB8, individuals are encouraged to bring suits to collect damages, $10,000, on behalf of the state. While the Supreme Court was utterly dumbfounded by the procedural complexities, Judge Pitman saw through the blatant attempts to deny pregnant people a constitutional right and enjoined all state and private actors from enforcing the abortion ban.
The opinion shows plainly the only way for SB8 to survive is for judges to ignore not only decades of precedent, but also more than a century’s worth of law regarding standing, equity, judicial review and the involvement of private actors requiring state enforcement.
Judge Pitman writes:
The State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates, because Texas was fully aware that depriving citizens of the right to abortion through state enforcement would be blatantly unconstitutional.
Ironically, considering the procedural nonsense of SB8 itself, Texas tried to assert that the federal government didn’t have standing to bring the suit challenging the abortion ban in federal court. Judge Pitman acknowledges that the US government has a “personal stake” in two ways. It is prevented from carrying out abortion-related services, and the law exposes third parties to liability, and that the US is injured, and has a “personal stake,” whenever a state violates the Constitution.
The opinion goes through requirements for standing interpreted by section III of the Constitution purportedly to show the US government has standing but Judge Pitman also seems to be trolling the Texas law a bit. He cites conservative precedence dating back to 1895 (In re Debs), which supported state intervention in labor strikes when there were issues of interstate commerce. Texas acknowledges the effect on interstate commerce in that it argues SB8 doesn’t ban abortions since people can seek abortions in other states (yes, seriously).
Judge Pitman highlights that the law prevents any other redress than an emergency injunction sought by the federal government through disallowing many defenses and prohibiting defendants from recovering lawyers’ fees if they prevail in fighting the suit. He even cites ultra conservative Justice Scalia to support the long established principle of judicial review and equitable remedies, methods of redress in civil law, through suits when there’s no legislative remedy, as there isn’t in this case. Judge Pitman points out that pregnant people are most harmed by this law, as they can’t access abortion, and have no redress at all to challenge the law since they can’t be sued under it.
Judge Pitman goes through many important aspects of relevant law but his discussion of state versus private actors is particularly important in (hopefully) preventing further harm of similar laws. As I said, Judge Pitman acknowledges that the law was specifically designed to avoid the obvious unconstitutionality of involving state actors in enforcing this abortion ban. He cites relevant civil rights cases like Shelley v. Kraemer concerning the enforcement of racial covenants to show that if private actors require state actors, like judges, to enforce something it necessarily involves state actors and is subject to federal judicial review. The lawyer for Texas basically admitted enforcement involved state actors through the courts when Judge Pitman asked what would be done if an injunction was issued.
While the Fifth Circuit might overturn the injunction, or the Supreme Court might, and Roe might be overturned by the Supreme Court when it hears Jackson Women’s Health Organization v. Dobbs, for now this is all good news. For now Texas abortion providers can go back to work. While some are concerned the law will still scare people away, Amy Hagstrom Miller, president of abortion provider Whole Woman’s Health, which operates four clinics in Texas, has stated that the clinics will resume providing abortion care up to 18 weeks of pregnancy.
Addendum: Unfortunately the 5th circuit has already issued a temporary stay on Judge Pitman’s order, but there will be a hearing to consider it fully on Tuesday. We haven’t heard the last word on SB8 yet.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.