Judge Robert Pitman spent 113 pages to reach a conclusion that had to be reached and yet defied clear judicial review through the mechanations of Texas’ preclusion of the State, itself, having any putative involvement in making it happen. Unless, of course, you consider enacting a law that was facially unconstitutional and providing the courtrooms, judges, clerks and people with guns that enforce any law or judgment in the usual course.
Judge Pitman used sharp language to criticize the law, known as Senate Bill 8, which was drafted to make it difficult to challenge in court by delegating enforcement to private individuals, who can sue anyone who performs abortions or “aids and abets” them.
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” he wrote in his opinion.
“This court will not sanction one more day of this offensive deprivation of such an important right,” he added.
One can fairly criticize the legal system for putting its full heft behind some rights and not others, even when it shrugs off enumerated rights while decrying the denial of emanations and penumbras, but that doesn’t change the inarguable fact that, as the state of the law now stands, Judge Pitman is correct that women have a right to an abortion before a fetus becomes viable. Bad law or bad reasoning aside, it is firmly established, and Judge Pitman was not going to allow the state to impair that right.
Finally,the State has requested, in the event the Court preliminarily enjoins enforcement of S.B. 8, that the Court stay any injunction until the State has the opportunity to seek appellate review. 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. 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.That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.
Of course, the Fifth Circuit may well disagree, as appellate courts are authorized to do. And there would be sound legal arguments in support of such disagreement, from the very real question of whether the United States has a cause of action against Texas to whether the district court has the authority to preliminarily enjoin a state court system from entertaining an extant cause of action otherwise permitted by law.
Activists against the law, of which there are many, don’t really care much about the “legal niceties” involved. The law, SB8, is bad (which it is) and must be stopped (which it must). Since there is no question but that it flies in the face of Roe and Casey, and there really isn’t any question given the state of abortion law at this point, concern about all the “technicalities” of law, from standing to jurisdiction, are irrelevant. It must be stopped no matter what, and they would have been just as happy with a one page decision that read “this law sucks and it’s stayed, so bite me, Texas.”
In a weird way, this might have been a more legitimate rationale for the stay than whatever took 113 pages to explain. Whether Texas has managed to come up with the secret sauce to circumvent judicial review of a law the unconstitutionality of which can’t be seriously questioned will be a matter of some difficult consideration. But until that issue is fully resolved on its merits, the bottom line that an extant constitutional right has been abridged is the overarching concern.
The courts need breathing room to decide the question, and while the issues like standing and jurisdiction are not merely technicalities, as those who cynically slough them off when it serves their cause, but legitimate questions that will need to be faced, denial of a constitutional right during the pendency of those issues is independently intolerable. Judge Pitman may very well have issued an ultra vires stay, but as he concluded, “this Court will not sanction one more day of this offensive deprivation of such an important right” while the process proceeds in the ordinary course of judicial review. Something had to give, and Judge Pitman decided that it would not be the constitutional right to an abortion.