Some justice for now, but we’ll see how long it lasts.
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.
But it’s unclear how U.S. District Judge Robert Pitman’s order may affect access to abortions in the state — or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman’s order in the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.
In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday’s order and the state’s appeal will affect procedures in the state.
“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they’ve banned abortion entirely,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. “This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”
Until Pitman’s order, Texas’ new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.
The order from Pitman — a 2014 Obama nominee — forbids state court judges and court clerks from accepting lawsuits that the law 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. 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.”
[…]
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.”
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 expected the state would appeal — but called the ruling 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.”
Whole Woman’s Health said it was making plans “as soon as possible” to resume abortions outlawed under Texas’ law.
“This is AMAZING. It’s the justice we have been seeking for weeks,” Amy Hagstrom Miller, CEO of Whole Woman’s Health, said in a statement.
See here for the previous update. We didn’t have to wait long for this ruling, but it will be likely even less time before the rogue Fifth Circuit steps in and does its damage. After that, we’ll see if SCOTUS still claims to be confused by this issue, or if they have decided to care about the constitution.
Slate provides some highlights from Judge Pitman’s opinion.
The DOJ’s bet that agents of the state could be subject to suit paid off, particularly in the face of mounting evidence that pregnant Texans had been materially harmed as a result of the law. Pitman’s decision has moments of powerful rhetoric, but it is largely devoted to the “complex and novel” threshold issues the majority of the Supreme Court was too exhausted to probe when they allowed the law to stand. “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers,” he wrote, to “preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” This effort failed, he noted, because the United States has standing to represent its citizens in their effort “to vindicate federal rights.” On behalf of these citizens, it also has authority to enforce the 14th Amendment against a state attempting to “supersede” it. As Pitman put it, “when the machinations of the state effectively cut off private access to the federal courts,” the scheme warrants “equitable action by the United States.”
Because the DOJ clears these hurdles, Pitman wrote, it had properly challenged S.B. 8. And on the merits, there is no question as to foundational facts: Texas’ law plainly violates Roe because it outlaws abortions well before fetal viability. In order to block the law, Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “publish this preliminary injunction on all of its 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.”
Notably, Pitman denied Texas’ request for an immediate stay of his decision. “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,” he explained. To be clear, this hardly means Texas clinics will begin providing constitutionally protected abortions services tomorrow. If Pitman’s decision is eventually overturned, doctors who perform abortions in the interim can still be sued. But at least for now, the playing field tilts against the states too-clever-by-half effort to harm women while skirting judicial review.
I’ll be shocked if the Fifth Circuit allows this to stand going into the weekend, but for now we’re in a better place. Daily Kos, The 19th, the Chron, and the Trib have more.
This from Paxton’s litigation shop in response to the Pitman injunction:
DEFENDANT’S ADVISORY REGARDING COMPLIANCE WITH THE COURT’S PRELIMINARY INJUNCTION ORDER
Defendant the State of Texas has appealed this Court’s order granting the motion for a preliminary injunction, but it is also making good-faith efforts to comply with the injunction.
Defendant files this advisory in response to the Court’s invitation to propose the “means of disseminating th[e] information” required by the injunction “for this Court’s review and approval.” ECF 68 at 110.
Defendant believes it has found a state agency that will be able to effectively disseminate the notices to state courts and court clerks required by the preliminary injunction and is working out the details of how to ensure this is done properly. Defendant is finalizing the plan with the relevant agency and anticipates updating the Court tomorrow with additional details.
COMMENT:
This is ludicrous. The obvious Texas state entity is the Office of Court Administration (OCA) overseen by the Texas Supreme Court, and the Supreme Court could just issue an administrative order regarding the federally-imposed halt on new SB8 suit, like they did repeatedly to provide for implementation of various pandemic arrangements (current iteration is Emergency Order No. 43).
Whether our supremes want to submit to the yoke imposed by a federal judge appointed by Obama, of course, is a different matter. And Obama or no Obama, this is a big deal because the SCOTX is, well, supreme in the state, and administratively in charge of the entire Texas judicary. Chief Hecht must be having a rough day.
The state believes …
Blah … The state is a juridical entity, so the state don’t do no thinking and believing.
If we nevertheless attribute human qualities to “the State” (rather than using “the State” as short reference to “Ken Paxton” or Paxton’s e-signing OAG staff attorney in this case more particularly, the State need do no believing ’cause the State already knows that that of its constituent parts is called the judicial department (established by Article V of the Texas Constitution), and that the latter includes the Office of Court Administration, a creature of the Texas lege that allows the Supreme Court to be more effective and efficient in the administration of statewide justice:
See Texas Government Code Chapter 72
https://statutes.capitol.texas.gov/Docs/GV/htm/GV.72.htm
The OAG also misrepresented the modalities of implementation regarding the ability to identify and intercept SB8 suits at take-in by the court clerks.
There is indeed a statewide e-file system plus an associated search capability (re:Search). And all submitted filings are reviews by deputy clerks before they are *filed* by the clerk (i.e. FILED-stamped and placed on the electronic docket, which now is basically a database, rather than a physical file/folder).
As for classification of cases at the point of filing/intake, the new case type category could be created for SB8 suits, or for SB8-related suits (like the 14 declaratory judgment actions in Travis County, and the oddball filing by Felipe Gomez in Bexar County), and those could then be diverted for “special treatment”, which might involve transfer to the Multi-District Litigation (MDL) court once the Pitman injunction is stayed by the Fifth Circuit.
Of course, to cater to the clamoring coat-hanger brigade, the same administrative infrastructure could be used to compile a list of SB8 plaintiffs to be posted on the electronic equivalent of a public pillory like is currently being done with vexatious litigants. Gomez wants to lead the pack because he says he won the race to the courthouse, so he should get the top spot.
For public scorning & shaming short of lynching or guillotine.
Let the heads roll, or at least the eye balls.
The 5th Circuit issued the order this evening staying the lower court’s order. I suppose they had to wait for the AG’s appeal to arrive before they could issue it.
Sure, the Fifth Circuit needed a motion to take action, and the arguments are pretty compelling. A 5-10 minute read would suffice.
As you may have gathered by now if you read the comment space of Kuff’s blog, this Kibitzer is no fan of AG Paxton, but don’t take his word for it as for the quality of the Solicitor General’s argumentation (not to mention late on a Friday night). If you don’t have time to check out the law prof rumination on REASON and other erudite fora, just have a look at the emergency motion here:
https://reason.com/wp-content/uploads/2021/10/2021-10-08-stay.pdf
Okay folks, so if you are an “Abortion Rights Ueber Alles” partisan, you are going to be upset now and this stay order is just going to confirm to you how horrible the Fifth Circuit is. Alright. Exasperation acknowledged.
But here is the problem: this 110+ trial court PI opinion boils down to a verbose excuse for the following proposition:
We are the Feds, and we call the shots.
It’s an analogue of “there can be only one master and that master is Greg Abbott” in the COVID-order litigation ecology at the state level.
The Honorable federal judge here stamps the work product with the brand mark “EQUITY JURISPRUDENCE” because — you know — it sounds good. Who is going to be against equity? Abortion Rights Ueber Alles. So why not Equity Ueber Alles, too.
As previously translated into the vernacular: We are the sovereign, and we need not stinkin’ cause of action. So we just make it up as the circumstances and exigencies dictate. And call it equity. Just inherently, you know, the right thing to do.
ADEQUATE STATE-SIDE REMEDY? – OF COURSE NOT, IF SUPPRESSED
It’s also intellectually dishonest to pretend that the SB8 lawsuits are the problem here and need to be enjoined. Massive liability? Are you kidding me? Three (N=3) have been filed so far, and all by pro se litigants because Texas attorneys won’t touch the hot potato (not the mention expecting to lose a case base on a law that most in the know seem to agree is unconstitutional at least as to previability abortions, so why bother?).
And if there is universal agreement on blatant unconstitutionality, how could there be a realistic fear of liability? All it will take to swat down SB8 suits by “random bounty hunters” will be a run-of-the-mill motion to dismiss after a single test case results in a precedent-setting appellate opinion holding SB8 unconstitutional. And that first case is surely worth spending a bit of money on.
As of now Dr. Braid, the scofflaw (as to SB8) and test-case solicitor, has had good luck. He has been sued by three claimants for the single admitted SB8 violation on September 6, 2021, and doesn’t run the risk of a shift of attorney’s fees because disbarred lawyers and nonlawyers can’t get any. And he had already lined up his own legal team prior to the Washington Post advertorial, and is now poised to obliterate 3 bona-fide idiots he has lured and trapped into suing him. He has filed an interpleader action in Chicago far away from the jurisdiction of the SCOTX and the Fifth Circuit, and the state-court litigation was enjoined by Judge Pitman. How clever. With a dozen lawyers to pounce on the three wretches, no less.
And Judge Pitman somehow thinks it’s a sovereign imperative to prohibit state judges to hear these 3 pending SB8 cases (now in the process of being outsourced to a federal judge in Illinois) and a few others that might trickle in, or else it’s going to be armageddon! — Gee. Like the MDL Panel couldn’t handle if if there really were to materialize a flood.
I mean … what a waste of law clerk/staff attorney talent, probably working all night!
And now the disappointment that all that fine late-night legal footwork was for naught. Let’s hope Judge Ho’s law clerks will be as diligent and lay out all that is wrong with this unprecedented federal judicial arrogation of power over the entire state judiciary and their clerks.
And think about this headscratcher of strategy for a moment: The abortion providers scream they can’t get a judicial review of the constitutionality of SB8 and what do they do?
They get TROs and injunctions to prevent and stall test cases in which the defense of unconstitutionality can be raised and duly adjudicated. Including test cases that are already in the pipeline.
This Kibitzer has one word to sum it all up: Chutzpah.
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