Half a dozen of these clinics have resumed providing services to women who need abortions in Texas after Wednesday’s blockade by a federal court in Austin. Most clinics still aren’t doing this yet. They are still worried about the litigation threat the law continues to pose—with good reason.
It’s not that Robert Pitman, the U.S. District Judge of Texas,’s preliminary injunction will likely expire. The U.S. Court of Appeals of the 5th Circuit appears inclined to overrule Pitman. People who assist or perform abortions when fetal cardiac activity is detected (which typically occurs around six weeks after the start of a pregnancy) can be sued. The Texas law went into effect in September.
S.B. 8 is the law. The law, S.B. A lawsuit can be brought within four years of the incident. The plaintiffs are not required to prove any injury or interest. S.B. S.B. The defendants, on the other hand, can’t recover legal fees, even if it wins.
S.B. 8 also creates a lopsided fee shifting rule. 8. limits the options for defense for the plaintiffs in the lawsuits it allows. Among other things, it says defendants cannot rely on a court’s determination that the statute is unconstitutional if that ruling is later overturned—even if that did not happen until after the conduct that gave rise to the lawsuit. Pitman’s decision cannot be used as defense by Texas abortion clinics that offer prohibited abortions if the 5th Circuit rules against him. This seems to be likely.
Pitman was responding to a Justice Department lawsuit and found that the United States “is substantially likely to win on the merits” of its claims. S.B. 8 clearly contradicts the Supreme Court abortion precedents.
The law effectively bans the vast majority of abortions—something like nine out of 10. About six weeks is the cutoff point for legal abortions. It’s before most women realize that they are pregnant, and well before their “viability”. S.B. 8. Allows an exception for “medical emergencies”, but not for incest or predictably fatal fetal defects.
Pitman pointed out that there is “indisputable and binding precedent” which states that abortion bans prior to viability are not constitutional. Pitman stated that, “Indeed,” the Supreme Court long maintained that “a State cannot prohibit any woman making the final decision to terminate her pregnancies before viability.” Here’s an excerpt from the Court’s 1992 case. Casey vs. Planned ParenthoodThis reaffirmed the central holding of Roe v. Wade1973 Supreme Court ruling which stated that the 14th Amendment provides protection for a woman’s rights to choose an abortion.
“Seen in light of the nearly half-century of precedent in this line,” Pitman said, “‘the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.'” Here’s Justice Sonia Sotomayor quoting her dissent after the Court denied a petition seeking an emergency injunction to stop S.B. 8. Whole Woman’s Health V. JacksonAnother case that challenges the law.
S.B. raised “complex and unique antecedent procedural problems” that the majority of justices refused to address. 8’s bizarre enforcement mechanism that was intended to inhibit pre-enforcement difficulties. They noted, however that petitioners “raised serious issues regarding the Constitution of Texas’s Law at Issue,” which is a significant understatement considering what the Supreme Court said about the constitutional limitations on abortion regulations. Pitman did not doubt the fact that S.B. 8, cannot be reconciled to those precedents. Pitman stated that “this Court won’t sanction one more day” of an offensive deprivation.
Pitman’s injunction forbids Texas courts hearing S.B. lawsuits. 8. If the 5th Circuit does not uphold his injunction (as the state asks), then that will be invalid.
Then what? People could be sued if they are accused of aborting their children before the 5th Circuit hears the state’s appeal. They might argue that they trusted the decision by the federal judge to determine that S.B. 8 is inconstitutional. However, the law prohibits this possibility. These arguments are not supported by the law. Don’tAn S.B. defense can be used to count. 8. lawsuit includes “a defendant’s dependence on any court decision overruled by an appeals court or by a later court even though that decision was not overruled at the time that defendant committed conduct that violates this subsection.”
As The New York TimesThat means clinics could be sued retroactively in up to 4 years for all abortions that they performed during the blockade. Jeffrey Hons, the president of Planned Parenthood South Texas and chief executive, spoke to the Times “We look forward to resume abortion care when we feel that the relief is lasting.”
Amy Hagstrom Miller was president of Whole Woman’s Health. The company operates four Texas abortion centers and was the first plaintiff in this lawsuit. She told The Associated Press that she had reopened her schedule in order to grow beyond the six-week limit for Texas clinics. Houston Chronicle yesterday. “In fact last night we reached out and saw some patients on our waiting list for abortions. We were able see several people as soon as 8:09 this morning.
Hagstrom Miller stated that the potential of being sued in a lawsuit for an abortion performed when enforcement is blocked gives people “pause.” Josh Blackman, South Texas College of Law Professor of Law in an interview with The ChronicleClinics’ decisions now could lead to crippling liability