Condemning the law in unambiguous terms, a federal judge in Austin, Texas, ruling in favor of the U.S. Justice Department, has halted enforcement of the state’s draconian ban on abortion.
However, the state of Texas has already vowed to appeal the decision.
Calling it an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” U.S. District Judge Robert Pitman wrote in his decision that since the law went into effect last month, “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”
Acknowledging that a higher court may rule differently, Pitman added that in the meantime, “this Court will not sanction one more day of this offensive deprivation of such an important right.”
The Texas law bans abortion at just 6 weeks, a direct violation of constitutional precedent established by Roe v. Wade that protects all pre-viability abortions. It also makes no exceptions for rape and incest. But perhaps its most notable component is an enforcement mechanism that amounts to legal vigilantism. The law isn’t enforced by state officials, but by private lawsuits that can be filed against almost anyone suspected of involvement in an abortion that happened after 6 weeks. This includes not only health care professionals but even people who provide transportation or simply information.
Worse, lawsuits can be filed by anyone, even people who live out of state or have no personal connection to case, and no evidence, only expression of suspicion is required. Anyone who succeeds in such lawsuits will will not only have their legal fees paid for, but will also receive a $10,000 bounty from the state of Texas. If they lose a lawsuit, they will be required to pay their legal costs but will otherwise not be punished; defendants will have to pay their own legal costs regardless of outcome.
In his ruling, Pitman took particular issue with that aspect of the law, which he described as a deliberate attempt by Texas lawmakers to evade judicial scrutiny.
“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of people action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials,” Pitman wrote.
“Rather than challenging the right to abortion via the appropriate process of judicial review, the State went so far as to draft the law in such a way as to attempt to preclude a review of the constitutionality of the statute by federal courts who have responsibility to safeguard the very rights the statute likely violates.”
Texas will now appeal the ruling to the U.S. Court of Appeals for the Fifth Circuit — one of the most conservative in the country. If that court upholds the law, it would then go to the U.S. Supreme Court.
Last month, the court’s conservative majority declined to stay the Texas law in a shadow docket ruling that suggested clear support for the bill.