The judge’s order means that the law will remain in force for the time being.
Although the Justice Department asked the judge to immediately freeze the law, the government could still prevail after a full hearing. Court order says Western District Judge Robert Pitman wants an opportunity to make a formal decision, pending further litigation, before Texas can appeal to the Conservative Federal Court of Appeals of New Orleans.
If Pitman ultimately issues a preliminary injunction, some clinics could resume abortions currently covered by the law. But others may refuse to do so until appeals to higher courts are completed. Indeed, under the law, a clinic could still be held liable if it performed a legally prohibited abortion while the court order was in effect, if that same order was subsequently overturned by a higher court.
In his brief order, Pitman noted that Texas “wanted to be heard” before the court resolved the issue, so he set an expedited briefing schedule. He requested that Texas respond by September 29 and that the GM then respond by October 1.
“Judge Pitman seems to be following the book here,” said Steve Vladeck, CNN legal analyst and University of Texas law professor.
“The Court of Appeals has already halted efforts to hold a similar hearing in the challenge of SB8 by Texas abortion providers,” Vladeck said. “By not issuing a temporary restraining order here, it effectively prevents Texas from asking the Court of Appeals to also block this hearing before it takes place.”
In court documents filed late Tuesday night, the Justice Department argued that the law has “severely and irreparably hampered the ability of women to exercise their constitutional right to abortion statewide.”
The DOJ says clinics in Texas stopped performing abortions after six weeks, in the absence of a medical emergency, and that a Planned Parenthood clinic that had performed 205 abortions in the week before entering law enforcement only performed 52 abortions the following week.
A 5-4 Supreme Court allowed Texas law to remain in effect earlier this month in a separate court challenge. By law, abortion is prohibited when a fetal heartbeat is detected, which is often before a woman knows she is pregnant. There is no exception for rape or incest, although there is an exemption for “medical emergencies”.
In passing the law, the Texas legislature adopted a new legal strategy preventing Texan authorities from enforcing the law, and instead allowing private citizens – anywhere in the country – to bring civil action against any person who assists a pregnant person seeking an abortion in violation of the law.
According to the Department of Justice, clinics in neighboring states “are receiving panicked calls from Texas patients and continue to see a sharp increase in the number of underage patients, survivors of sexual assault, patients with a maternal or fetal diagnosis and of patients with a later pregnancy. age.”
Women with the ability to travel, according to the brief, “are forced to travel hundreds – and sometimes thousands – of kilometers to obtain an abortion under heart-wrenching circumstances amid a wave of COVID,” the DOJ argued in court documents.