Federal Judge Hints to Congress to Codify Roe

In referring to the 14th Amendment and the Supremacy Clause in his latest ruling to protect abortion rights, a US Federal Judge hints that federal legislation that codifies Roe v. Wade may be the key.

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The Texas Capitol is seen on the first day of the 87th Legislature, when Republican Gov. Greg Abbott called the legislature into a special session and asked lawmakers to prioritize his agenda on July, 8, 2021. (Photo by Tamira Kalifa/via Getty Images)

A federal judge has ordered that Texas suspend their newly implemented and extremely restrictive SB-8 abortion law, calling the ban an “offensive deprivation” of a constitutional right and issuing a temporary restraining order to halt enforcement. The law was signed by Texas’ Republican Gov. Greg Abbott in May and went into effect in September and it prohibits abortions once cardiac activity in the fetus is detected — which is usually around six weeks — before some women even know they are pregnant.

US District Judge Robert Pitman issued his 113-page opinion that directly challenged the motivations of state lawmakers in Texas by condemning Republican lawmakers for having “contrived an unprecedented and transparent statutory scheme.” The Texas law allows private citizens to enforce the near-total abortion ban in Texas by allowing any US citizen to instigate a legal challenge and collect $10,000 in damages if they bring successful lawsuits against abortion providers and/or women who violate the law.

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On Monday, the Texas Supreme Court denied a request from Planned Parenthood to resume a previous lawsuit that the lower courts refused to hear, that challenges the state’s near-total abortion ban. This follows a recent decision by the US Supreme Court, which refused to hear the case on the constitutionality of the Texas law and ultimately allowed the Texas law to remain in effect.

The restraining order that was issued by Judge Pitman on Wednesday is the first legal blow to those who support SB-8, a law which has caused substantial chaos within the state and served as a template for other Conservative state legislatures intent on denying women access to legal abortions.

A woman carries a sign declaring abortion a part of health care at a rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. (Photo by Jordan Vonderhaar/via Getty Images)

“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” wrote Pitman, who was appointed to the federal bench by former President Barack Obama. Pitman continued, “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”

While Planned Parenthood said it was hopeful this latest order would allow clinics to resume abortion services as soon as possible, they also say that the impact has been “exactly what [they] feared.” Abortion services in Texas are not expected to immediately resume due to the near-instantaneous appeal filed by Texas officials and the concern from local doctors that they could still be sued without a permanent legal decision in place that would protect them.

Dr. Alan Braid, a Texas abortion provider in San Antonio who publicly admitted to violating the law, has already been sued by former attorneys in Illinois and Arkansas in hopes of ultimately getting a judge to invalidate the law. This latest ruling in federal court appears to move those who support abortion protections one step further in terms of resuming health care services back to the pre-September norm in Texas.

This most recent lawsuit, that was decided on Wednesday, was brought by the Department of Justice on behalf of the Biden administration, which has called Texas’ latest restrictions a defiance of the US Constitution.

White House Press Secretary Jen Psaki issued a statement on behalf of the Biden administration saying, “[Wednesday night’s] ruling is an important step forward toward restoring the constitutional rights of women across the state of Texas. The White House also called SB-8 a “blatant violation [of] the right to safe and legal abortion established under Roe v. Wade," as Biden confirmed he supports codifying abortion protections through Congress.

House Speaker Nancy Pelosi (D-CA) speaks during a news conference about the House vote on HR 3755, the “Women’s Health Protection Act” legislation to “establish a federally protected right to abortion access” at the Capitol in Washington, U.S., September 24, 2021. (Photo by Kevin Lamarque/via Getty Images)

Although this new emergency order has done little to instantly reverse the damage that has been done to clinics in Texas, who have seen an 80% drop in services since the SB-8 law took effect and the State of Texas has already launched an appeal, one new glimmer of hope has surfaced.

In his lengthy and scathing opinion on Wednesday, Judge Pitman made a point to denote the substantive lack of federal legislation that exists in the area of protective abortion rights as compared to voluminous “statutory causes of action regarding desegregation.” Pitman also makes a point to say that the lack of regulation on one side does not mean anything legally as compared to the extensive regulation from the other.

Protesters take part in the Women's March and Rally for Abortion Justice at the State Capitol in Austin, Texas, on Saturday, October 2, 2021. (Photo by Sergio Flores/via Getty Images)

Judge Pitman then makes a point to expressly re-emphasize the importance of the Fourteenth Amendment and the Supremacy Clause with regard to determining the outcome of this case, and states that Texas officials are attempting to supersede these laws with the creation of these newest laws that restrict abortion access.

Given Pitman’s ruling and his stated reasoning for that specific conclusion, it stands to reason that federally created laws, intended to strengthen the current laws established decades ago, would not provide an negative effect on precedent, but would only help to support the rights created by Roe.

On Monday, the US Supreme Court began a new term, and in December, the Court will hear arguments in Mississippi’s bid to overturn Roe v. Wade. The current political make-up of the Court concerns many abortion rights activists for the future of well established abortion rights for women across the country.

Pitman makes a point to chastise the recent decision by the Supreme Court to refuse to hear a case for injunctive relief on SB-8 when he says: "That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right."

In his ruling, Judge Pitman has also appeared to sanction the path that Democrats in Congress have already chartered with the Women’s Health Protection Act — while intimating that new federal laws meant to protect the previously established right to abortion through case law — would only serve to bolster the argument against laws like SB-8.

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Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.

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