U.S. District Judge Robert L. Pitman’s 113-page opinion is something to behold. Pitman first dispenses with the argument that the federal government lacks standing to bring the suit. “Insofar as [the Texas law] impedes the federal government’s ability to provide abortion-related services mandated by regulations, statutes, and case law, the United States has met its burden to demonstrate a concrete, particularized, and actual injury,” he finds. He further concludes that the federal government has standing to sue “for probable violations of its citizens’ Constitutional rights,” giving the stamp of approval for filing a cause of action based directly on the Constitution. Pitman finds a sufficient basis for “standing where the government’s interest is preventing harms to ‘the general welfare’ and the ‘public at large.’”
In short, the state’s attempt to stave off legal review gets a thumbs-down from the court:
No cause of action created by Congress is necessary to sustain the United States’ action; rather, traditional principles of equity allow the United States to seek an injunction to protect its sovereign rights, and the fundamental rights of its citizens under the circumstances present here. This case strikes at the core function of the equitable cause of action, as, “[w]hether acting through its judiciary or through its Legislature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.” … The American legal system cannot abide a situation where constitutional rights are only as good as the states allow.
On the merits, Pitman emphatically declares the law to be unconstitutional. “There can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”
Even if not an outright ban, the court holds that the law imposes an “undue burden” on those seeking an abortion. Indeed, the law has already compelled abortion providers to shut down. For that reason, Pitman writes, a preliminary injunction is necessary to prevent irreparable harm.
The decision delivers a stern rebuke to states trying an end run around the Constitution: “Had this Court not acted on its sound authority to provide relief to the United States, any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction,” Pitman writes. Moreover, he warns, “Equally plausible is that states at the other end of the political spectrum could use a similar tactic to ban or impermissibly limit another constitutional right, like a right grounded in the Second Amendment, to further a political agenda.”
Finally, Pitman scoffs at the state’s request to enjoin relief while it appeals. “The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” he finds. “From the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.” Other courts may find differently, Pitman declares, but “this Court will not sanction one more day of this offensive deprivation of such an important right.”
Wow. What just happened here? First, Pitman’s ruling makes a mockery of the Supreme Court’s thin argument that the law was so “complex” that the court couldn’t possibly agree to issue an injunction on an emergency basis. There is nothing complex — or constitutional — about Texas’s scheme to set up bounties for those who seek abortions.
Second, Pitman lays bare the deceitful crafting of a bill that seeks to rob people of their constitutional rights. And unlike the Supreme Court, he is not willing to play along with a ruse that would emasculate federal courts. Apparently, he has more institutional reverence for the federal judiciary than do the right-wing Supreme Court justices who allowed state lawmakers to skirt around the courts.
And finally, it is clear that had Republicans not pulled power plays to keep Garland off the Supreme Court and to jam through Justice Amy Coney Barrett’s nomination, an injunction like this likely would have come from the Supreme Court. (Chief Justice John G. Roberts Jr. joined with the court’s liberals in dissenting on the decision not to block the Texas law.) In a real sense, Republicans’ stacking the Supreme Court has turned the highest court into a cynical enabler of right-wing extremists in the states rather than a guardian of the Constitution. Pitman’s clarity is worth celebrating, even if a right-wing U.S. Court of Appeals for the 5th Circuit and a Supreme Court of “partisan hacks” is likely to overturn his fine opinion.