A federal judge ordered Texas on Wednesday to suspend the most restrictive abortion law in the United States.
The order by US District Judge Robert Pitman calls the law an “offensive deprivation" of a constitutional right by banning most abortions in the nation's second-most populous state since September.
It is the first legal blow to the legislation, which until now had withstood a wave of early challenges.
In the weeks since the restrictions took effect, Texas abortion providers say the impact has been “exactly what we feared.”
In a 113-page opinion, Pitman took Texas to task over the law, saying Republican lawmakers had “contrived an unprecedented and transparent statutory scheme” by leaving enforcement solely in the hands of private citizens, who are entitled to collect $10,000 (€8,650) in damages if they bring successful lawsuits against abortion providers who violate the restrictions.
The law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once cardiac activity is detected, which is usually around six weeks, before some women even know they are pregnant.
“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,” wrote Pitman, who was appointed to the bench by former President Barack Obama.
“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."
But even with the law on hold, abortion services in Texas may not instantly resume because doctors still fear that they could be sued without a more permanent legal decision. Planned Parenthood said it was hopeful the order would allow clinics to resume abortion services as soon as possible.
Texas set to appeal order
Texas officials swiftly told the court of their intention to seek a reversal from the 5th US Circuit Court of Appeals, which previously allowed the restrictions to take effect.
The lawsuit was brought by the Biden administration, which has said the restrictions were enacted in defiance of the US Constitution. Attorney General Merrick Garland called the order “a victory for women in Texas and for the rule of law.”
The law had been in effect since Sept. 1.
“For more than a month now, Texans have been deprived of abortion access because of an unconstitutional law that never should have gone into effect. The relief granted by the court today is overdue, and we are grateful that the Department of Justice moved quickly to seek it,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.
Texas Right to Life, the state's largest anti-abortion group, said the order was not unexpected.
“This is ultimately the legacy of Roe v. Wade, that you have activist judges bending over backwards, bending precedent, bending the law, in order to cater to the abortion industry," said Kimberlyn Schwartz, a spokeswoman for the group. “These activist judges will create their conclusion first: that abortion is a so-called constitutional right and then work backwards from there.”
Impact in Texas 'exactly what we feared'
Abortion providers say their fears have become reality in the short time the law has been in effect. Planned Parenthood says the number of patients from Texas at its clinics in the state decreased by nearly 80% in the two weeks after the law took effect.
Some providers have said that Texas clinics are now in danger of closing while neighbouring states struggle to keep up with a surge of patients who must drive hundreds of miles. Other women, they say, are being forced to carry pregnancies to term.
Other states, mostly in the South, have passed similar laws that ban abortion within the early weeks of pregnancy, all of which judges have blocked. A 1992 decision by the US Supreme Court prevented states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy.
But Texas’ version had so far outmanoeuvred the courts because it leaves enforcement to private citizens to file suits, not prosecutors, which critics say amounts to a bounty.
“This is not some kind of vigilante scheme,” said Will Thompson, counsel for the Texas Attorney General’s Office, while defending the law to Pitman last week. “This is a scheme that uses the normal, lawful process of justice in Texas.”
The Texas law is just one that has set up the biggest test of abortion rights in the US in decades, and it is part of a broader push by Republicans nationwide to impose new restrictions on abortion.
US Supreme court to rule on Roe v. Wade
On Monday, the US Supreme Court began a new term, which in December will include arguments in Mississippi’s bid to overturn 1973’s landmark Roe v. Wade decision guaranteeing a woman’s right to an abortion.
Last month, the court did not rule on the constitutionality of the Texas law in allowing it to remain in place. But abortion providers took that 5-4 vote as an ominous sign about where the court might be heading on abortion after its conservative majority was fortified with three appointees of former President Donald Trump.
Ahead of the new Supreme Court term, Planned Parenthood on Friday released a report saying that if Roe v. Wade were overturned, 26 states are primed to ban abortion. This year alone, nearly 600 abortion restrictions have been introduced in statehouses nationwide, with more than 90 becoming law, according to Planned Parenthood.
Texas officials argued in court filings that even if the law were put on hold temporarily, providers could still face the threat of litigation over violations that might occur in the time between a permanent ruling.
At least one Texas abortion provider has admitted to violating the law and been sued — but not by abortion opponents. Former attorneys in Illinois and Arkansas say they sued a San Antonio doctor in hopes of getting a judge who would invalidate the law.