It is difficult to explain the extent to which Texas’s Senate Bill 8—which bans abortions after six weeks of gestation and empowers private bounty hunters to sue anyone who “aids and abets” an abortion—is unconstitutional and lawless. Even calling the law “unconstitutional” is like calling the Marianas Trench “deep”: It’s true, but it fails to capture the abysmal quality of the thing. I feel I lack the vocabulary to describe how bad SB 8 is, but US District Judge Robert Pitman gave it a try. On Wednesday, he ordered a temporary injunction suspending enforcement of SB 8 and dedicated 113 pages to explaining why.
This week’s decision is not the first time Pitman has pushed back against SB 8. He denied Texas’s motion to dismiss a case brought by Texas abortion provider Whole Women’s Health over the summer, before the law took effect. But he was overruled by the radically conservative Fifth Circuit Court of Appeals and eventually the Supreme Court of the United States.
With that law now in effect, and pregnant people in Texas systematically denied access to their constitutional rights, Attorney General Merrick Garland and the Department of Justice sued Texas for its brazen violation of constitutional law. That gave Judge Pitman another opportunity to rule SB 8 unconstitutional, which he did this week.
Most likely, Pitman will be overruled by the Fifth Circuit. Soon. Perhaps by the time I’m finished writing this sentence. But when the seemingly inevitable conservative clapback comes, you should know that the conservative courts will be acting in service of their political agendas, unbound by strictures of law. We know that because in his decision Judge Pitman explained the common understanding of “how the law works,” which seems to have escaped conservatives on the Fifth Circuit and Supreme Court, and then illustrated how SB 8 clearly violates basic legal principles.
Those who have followed the history of SB 8 know that the legal trick dreamed up by forced-birth advocates was to make private citizens responsible for enforcement of the law, instead of the state government. This feature was designed to help the law evade constitutional review, on the bonkers theory that you can’t sue the state for violating the Constitution if the state merely deputizes private citizens and puts them in charge of violating the Constitution. Texas is no more law-abiding than an underworld crime boss who employs artful street urchins to steal for him and then claims immunity from criminal prosecution.
But the Fifth Circuit and the Supreme Court acted like the Texas scheme was so novel, so creative, that it flummoxed the entire judicial system and prevented it from upholding the Constitution. The Supreme Court performed what people now call “weaponized incompetence.” It pretended to be too stupid to know how to help.
In response, Judge Pitman used the purported strength of the Texas law as a reason to strike it down. He writes that Texas created a scheme where no legal remedy is available for the victims of the law: the women who are denied their constitutional rights to bodily autonomy. Because the Texas law denies these rights by allowing bounty hunters to sue the providers of abortion services, a person seeking an abortion has no cause of action (against the state or the bounty hunter) in state or federal court. Moreover, the way the law is written, providers who are sued are not allowed to challenge the constitutionality of the law in state or federal court. This scheme essentially denies the possibility of constitutional relief to either women or abortion providers who are denied constitutional rights.
Pitman says this cannot be. And since it cannot be, the principle of “equitable remedies” is available to the federal government (in this case, Garland and the DOJ), which sued on behalf of victims who otherwise have no access to their constitutional rights. That means the DOJ can ask for an injunction against the state of Texas in order to block the law, as opposed to pursuing bounty hunters for monetary damages (“legal remedies” in the jargon) who enforce Texas’s law.
Essentially, Pitman argues, Texas was too clever by half. By privatizing enforcement and denying folks a chance to argue their constitutional rights, the state left the federal government as the only entity that can sue, and the state of Texas as the only entity that can be sued, for failing to uphold the Constitution.
Having established that the DOJ can sue and Texas can be sued, Pitman spends the last part of his opinion making the easy case that SB 8 is unconstitutional on its face, under the controlling precedents of Roe v. Wade and Planned Parenthood v. Casey.
Working through the legal thicket can make it sound like Pitman pulled off his own series of legal tricks to overturn SB 8, but he really didn’t. His argument and conclusion are entirely obvious. You can’t design a law to break the law and then get a commendation for cleverness. This isn’t the Kobayashi Maru. You can’t reprogram the judicial review system so that you can never lose. If you summarized Pitman’s entire opinion down to one sentence, that sentence would be: “I see what you did there.” Any judge, any person functionally literate in legal-speak would come to Pitman’s conclusion, because Pitman’s conclusion is the only one that makes sense in a system of laws.
So why is it likely to be overturned? Why is the Fifth Circuit probably writing up a one-paragraph repudiation of Pitman’s order as we speak?
Pitman is going to get overruled because the argument about SB 8 has never been about “the law”; it has always been about the Republican agenda to end abortion. SB 8 is a terrible law and a dangerous precedent. Nobody in good faith thinks that states should be able to get around the Constitution by empowering private citizens to do their dirty work. Nobody in good faith thinks that constitutional rights should be left up to Dog the Bounty Hunter. Conservatives don’t want that. They don’t want Smith & Wesson or Walmart or Ted Cruz to be sued for $10,000 every time a child gets shot in this country.
What conservatives want is to take away the rights of women to control their own bodies. SB 8 lets them do that, and so they’re for it. SB 8 lets the virulent Republican base play along, and so they’re excited by it. The Fifth Circuit will overturn Pitman, not because he’s wrong about the law but because they don’t like the law and are willing to smash it as they rush to take away a person’s right to choose by any means necessary.
Judge Pitman wrote 113 pages about what the legal system objectively requires. And most conservatives are going to look at that and say, “I don’t care.” Abortion rights have transcended legal discussions in this country. It’s just about power—and right now, conservatives are the ones who have it. They will wield that power, against the rights of women, until the opposition does something to stop them.