Texas Abortion Ban Injunction Could Be Ineffective and Quickly Overturned

A federal judge in Texas issued an injunction against the state's controversial six-week abortion ban on Wednesday, but that decision is expected to be swiftly reversed and may not protect people from lawsuits.

U.S. District Judge Robert Pitman, an Obama appointee, issued the order forbidding the state's judges and court clerks from accepting suits brought under Senate Bill (SB) 8.

The law is not enforced by state authorities but through private citizens suing those who have assisted women in getting abortions. Critics charge that this novel enforcement mechanism was specifically designed to make it more difficult for courts to injunct or strike down the law.

The plaintiff in the case before Pitman was the United States. The Department of Justice had previously pledged to sue Texas over SB 8 and its initial steps appear to have been successful.

However, there is a great deal of uncertainty following Pitman's order. The state of Texas has lodged an appeal with the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit is often considered the most conservative in the country and is very likely to quickly reverse the injunction against SB 8.

Major abortion providers in the state had stopped offering services out of the fear of litigation and it is unclear to what extent their services will return.

The Center for Reproductive Rights and Whole Woman's Health said on Wednesday they were looking to resume offering services in light of the ruling. However, a statement about the injunction from Planned Parenthood did not say if the organization's clinics would resume offering abortion services.

There are also ongoing concerns about a provision in SB 8 that deals directly with the possibility of an injunction. Any abortions performed during the period of an injunction could still be subject to lawsuits if that injunction is later lifted.

Steve Vladeck, a legal scholar and expert on the courts at the University of Texas School of Law, pointed to that section of the law in his commentary on Pitman's order in a Twitter thread on Wednesday. He cited the appeal to the Fifth Circuit.

"In the interim, it's not clear whether providers will resume offering services. One of the many novel provisions in #SB provides that abortions performed while a preliminary injunction is in effect can *still* be a basis for liability if the injunction is later stayed/reversed," Vladeck wrote.

In the interim, it's not clear whether providers will resume offering services. One of the many novel provisions in #SB8 provides that abortions performed while a preliminary injunction is in effect can *still* be a basis for liability if the injunction is later stayed/reversed.

— Steve Vladeck (@steve_vladeck) October 7, 2021

Texas asked the district court to grant a stay of the injunction pending the appeal but Pitman refused.

"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," the judge wrote in his order.

"From the moment SB 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution," he said.

Pitman has instructed the state to publish his order on all "public-facing court websites with a visible, easy-to-understand instruction to the public that SB 8 lawsuits will not be accepted by Texas courts."

The Texas abortion ban is a key test for the longstanding precedent established in 1973's landmark Supreme Court case Roe v. Wade, which established a constitutional right to abortion. On September 1, the Supreme Court declined to grant a stay of the law by a 5-4 vote.

Anti-Abortion Activists Gather at the Supreme Court
Anti-Abortion activists gather in opposition in front of the Supreme Court during the annual Women’s March October 2, 2021 in Washington, DC. A federal judge has granted an injunction against a controversial Texas abortion ban. Tasos Katopodis/Getty Images