A little over one month since the near-total abortion ban went into effect in Texas, a federal judge has blocked the enforcement of the law known as S.B. 8, which bars women from access to an abortion after six weeks of pregnancy.
The preliminary injunction ordered by U.S. District Judge Robert Pitman in Austin halts the state government from enforcing the law. Pitman sided with the Department of Justice in a lawsuit filed on September 9 claiming that the ban violated the Constitution.
The debate over the law has focused largely on its “vigilante” enforcement structure, which allows private citizens to sue anyone who conducts an abortion after six weeks, recovering legal fees and $10,000 in “damages” if they win the suit. (The Supreme Court did not rule on the constitutionality of S.B. 8, allowing the law to stand in a 5-4 vote on October 1.) The bizarre mechanism circumvents the usual legal avenues to overturn severe abortion restrictions, as Vox’s Ian Millhiser explains:
[I]f Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.
Part of what makes S.B. 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through … private civil actions.”
In his opinion delivered Wednesday, Pitman wrote that Texas Republicans had “contrived an unprecedented and transparent statutory scheme” with the design of “thwarting judicial review for as long as possible.”
“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,” Pitman added. “This court will not sanction one more day of this grave deprivation of such an important right.” The situation on the ground backs up his claim: According to Planned Parenthood, the number of Texans at its clinics in the state plummeted by almost 80 percent in the first two weeks of September.
While the White House and Attorney General Merrick Garland praised the order, it represents a temporary setback for Republicans seeking to restrict abortion access in Texas and provide a template for copycat laws in other GOP-controlled states. At a hearing before Judge Pitman last week, a lawyer with the Texas attorney general argued that if the law was blocked, the state would appeal an injunction to the conservative-leaning U.S. 5th Circuit Court of Appeals. In August, the New Orleans-based appeals court turned down an emergency motion to block S.B. 8.
A larger threat to abortion access may also be coming later in the year, when the conservative-controlled Supreme Court hears Dobbs v. Jackson Women’s Health Organization, a case from Mississippi that challenges the federal precedent blocking states from banning abortion prior to fetal viability.