As expected, federal district judge Robert Pitman (an Obama appointee) embraced DOJ’s arguments in his ruling yesterday evening enjoining the state of Texas from enforcing the Texas Heartbeat Act. Some observations:
1. The Texas Heartbeat Act remains in effect in important ways. While Pitman’s preliminary injunction currently prevents enforcement of the Act in Texas courts, violators will be liable for unlawful abortions while the injunction is in effect if the injunction is stayed or vacated on appeal. (The Fifth Circuit could issue a stay pending appeal as early as today.)
Further, out-of-state plaintiffs remain free to file private enforcement actions in federal court under federal diversity jurisdiction. They would have to satisfy federal standing and amount-in-controversy requirements, but those are not huge obstacles (as I explained in point 3 here).
2. Given how fast things are likely to move, I am not going to undertake a critique of Pitman’s reasoning on the important jurisdictional questions DOJ’s complaint raises. I’ll instead refer interested readers to Texas’s opposition to DOJ’s preliminary-injunction motion and to this post by Josh Blackman.
I will observe that Pitman’s foundational intuition—that the “American legal system cannot abide a situation where constitutional rights are only as good as the state allows”—ignores the reality that the American legal system relies on Supreme Court review of constitutional challenges to state private civil remedies after they are litigated through the state-court system. It’s routine, for example, for defendants in defamation actions to invoke and litigate their First Amendment defenses in state court.
Further, DOJ routinely relies on doctrines like sovereign immunity and absence of a federal cause of action to deny all federal-court remedies for the federal government’s own deprivations of legal rights. So it’s particularly odd that Pitman makes DOJ the beneficiary of the mistaken proposition that “traditional principles of equity” must be available as a backstop to vindicate federal rights.
There is no reason to think, much less presume, that Texas courts will fail to abide by the Supreme Court’s abortion precedents. Indeed, the Act itself expressly provides that a defendant may assert as an affirmative defense that “the relief sought by the claimant will impose an undue burden on [a] woman or [a] group of women seeking an abortion.” The sole response that Pitman provides—that “the [Act] itself prohibits defendants from raising the defense that they believed the law to be unconstitutional” (emphasis added)—is irrelevant to the point that defendants can raise the defense that the law, as applied, violates Roe and Casey. And if the defendants believe that that prohibition is unconstitutional, they can challenge it in the state-court litigation.
3. I don’t understand why Pitman, after taking nearly a month to rule on DOJ’s preliminary-injunction motion, wouldn’t grant Texas a temporary stay, even if only for a few days, to enable Texas to request a stay pending appeal from the Fifth Circuit.
4. Pitman avoids referring to “pregnant women,” as he states that he “recognizes that not all pregnant people identify as women.”