Analysis: Intentional loopholes in Texas abortion law draw a judge’s rebuke

_{Editor's note: If you'd like an email notice whenever we publish Ross Ramsey's column, click here.}

_{If you would like to listen to the column, just click on the play button below.}

The federal judge who temporarily blocked enforcement of the new abortion restrictions in Texas said state lawmakers knew the law was unconstitutional and wrote it to try to prevent the federal courts from saying so.

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” U.S. District Judge Robert Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that. … It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.”

Pitman’s order has already been paused. The state asked the 5th U.S. Circuit Court of Appeals to restore the near-total ban, and on Friday, that court said the abortion law should remain in effect until it has heard arguments on Pitman’s ruling. That ruling would have prevented anyone from enforcing Senate Bill 8, which outlaws abortions after detection of early cardiac activity in an embryo — usually around six weeks into a pregnancy. That’s before many people know they’re pregnant.

The law also includes a section that puts enforcement in the hands of private individuals — U.S. Supreme Court Justice Sonia Sotomayor called them “bounty hunters” — instead of state officials.

That mechanism drew Pitman’s particular attention. He focused much of his ruling on the state's attempt to wire around the courts, and around judges like him.

He didn’t like that one bit.

“S.B. 8 is deliberately structured so that no adequate remedy at law exists by which to test its constitutionality,” Pitman wrote. “By purporting to preclude direct enforcement by state officials, the statutory scheme is intended to be insulated from review in federal court. The State itself concedes that the law’s terms proscribe review by the federal courts, limiting review to state court alone.”

This was a lawsuit brought by the federal government against the state government, and he cited the federal argument in making the point about the state’s enforcement plan.

“The final factor identified by the United States will likely carry the most weight, as states can be expected not to deliberately deprive their citizens of redress through the courts,” he wrote.

Later, he added, “State actors worked deliberately to craft a statutory scheme that would avoid review by the courts, and thereby circumvent any pronouncement of its unconstitutionality.”

He said the state hadn’t extracted itself entirely from enforcement anyway, that “the State has its prints all over the statute,” since the law requires state employees and courts to take part, even if they’re not bringing charges against people who help Texans obtain abortions.

And not just state employees. If the state is relying on private citizens to enforce the law through civil actions — to do themselves what the state itself has decided not to do — it has given them its power, and made them “state actors.”

“The State chose to deputize them; the State chose to remove any requirement that they suffer an injury to bring suit (an injury is almost always required to bring suit); and the State chose to incentivize them by automatically awarding them damages of at least $10,000 if their suit is successful,” he wrote.

His injunction was designed to stop enforcement of the law while it’s being litigated and to remove “irreparable harm” Texans face if the law is in effect.

He also made a point that got lost in the first reports of the ruling and subsequent appeals: If the Texas law remains in effect, it will be an example — and not a good one, in Pitman’s view — for other states.

“… 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,” he wrote.

That could happen on abortion laws, or Second Amendment laws or other Constitutional rights, according to Pitman.

“If legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it,” Pitman wrote, “then other states are less likely to engage in copycat legislation.”