Texas abortions resume, but future still uncertain
WASHINGTON >> Abortions in Texas can resume under a federal judge’s ruling late Wednesday, but for how long? A conservative federal appeals court, and ultimately the Supreme Court, might take a more skeptical look at President Joe Biden’s administration’s lawsuit over Texas’ six-week abortion ban.
The state law prohibiting abortions once cardiac activity is detected, usually around six weeks, had been in effect for more than a month. U.S. District Judge Robert Pitman temporarily blocked it in a 113-page ruling that found the law violates a woman’s right to an abortion.
But the legal fight over the law at this point isn’t focused on abortion rights but rather on who has the ability to mount a legal challenge to it and what a court can do.
Both the Supreme Court and the 5th U.S. Circuit Court of Appeals previously rejected pleas from abortion providers to keep the law from taking effect until courts could definitively rule on its constitutionality. It’s not clear how they will rule in the new case or when they might be expected to weigh in.
Texas already has said it will appeal to the 5th Circuit and the loser there almost certainly will ask the high court to intervene. The justices are separately hearing a major challenge to abortion rights in a case from Mississippi that could dramatically curtail a woman’s right to an abortion in roughly half the states. But that case, being argued in December, won’t be decided until next spring. In the meantime, Roe v. Wade and Planned Parenthood v. Casey, the court’s two most significant abortion rulings, remain in effect.
The administration said it was suing Texas because its law is clearly unconstitutional under those rulings. What’s more, the administration argued, Texas lawmakers wrote it in a way to evade early federal court challenges. Private citizens, not the state, have the power to enforce the law through civil lawsuits from which they can receive $10,000 a suit.
Federal government lawsuits against a state are not common, and when they occur as they sometimes do in the area of voting rights, they usually are based on a provision of federal law explicitly authorizing the Justice Department to sue. In his ruling Pitman laid out point by point why he felt the federal government had a claim in the case. The question is whether his reasoning will hold in higher courts.
There’s no such federal law addressing the current situation, but then the Texas provision is itself unusual.
“It does feel novel for the federal government to sue a state on this relatively diffuse basis,” said University of Notre Dame law professor Samuel Bray. “But novel things happen. The way the Texas statute is set up is novel. Novel serve, novel return.”