After a federal judge in Austin blocked enforcement of the Texas abortion ban on Wednesday, half a dozen or so clinics resumed serving women seeking procedures prohibited by that law. But most clinics are not doing that yet. They are still worried about the litigation threat the law continues to pose—with good reason.
The problem is not just that the protection offered by U.S. District Judge Robert Pitman's preliminary injunction probably won't last, since the U.S. Court of Appeals for the 5th Circuit seems inclined to overrule him. Under the Texas law, which took effect at the beginning of September, people who perform or facilitate abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, can be sued even if they do that while Pitman's injunction is still in effect.
The law, S.B. 8, allows "any person" to sue "any person" who performs a banned abortion, "aids or abets" it, or "intends" to do so. Lawsuits can be brought up to four years after the conduct on which they are based, and plaintiffs need not claim any personal injury or interest. S.B. 8 promises prevailing plaintiffs at least $10,000 in "statutory damages" per abortion, plus reimbursement of their legal expenses. Defendants, by contrast, cannot recover their legal fees even if they win.
In addition to creating that lopsided fee-shifting rule, S.B. 8 limits the defenses available to targets of the lawsuits it authorizes. Among other things, it says defendants cannot rely on a court's determination that the statute is unconstitutional if that ruling is later overturned—even if that did not happen until after the conduct that gave rise to the lawsuit. In other words, Texas clinics that perform prohibited abortions now cannot cite Pitman's ruling as a defense if the 5th Circuit overrules him, as seems likely.
Pitman, who was responding to a lawsuit by the Justice Department, found that "the United States is substantially likely to succeed on the merits of its claims." As he explained at length, S.B. 8 is clearly inconsistent with the Supreme Court's abortion precedents.
The law effectively bans the vast majority of abortions—something like nine out of 10. Its cutoff for legal abortions, about six weeks, is before many women even realize they are pregnant and long before "viability." S.B. 8 allows an exception for a "medical emergency" but not for rape, incest, or predictably lethal fetal defects.
"Indisputable, binding precedent holds that pre-viability bans on abortion are unconstitutional," Pitman noted. "Indeed, the Supreme Court has long held that 'a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.'" That's a quote from the Court's 1992 decision in Planned Parenthood v. Casey, which reaffirmed the "central holding" of Roe v. Wade, the 1973 ruling that said the 14th Amendment protects a woman's right to obtain an abortion.
"Seen in light of the nearly half-century of precedent in this line," Pitman said, "'the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas.'" That's a quote from Justice Sonia Sotomayor's dissent when the Court rejected a petition for an emergency injunction against S.B. 8 in Whole Woman's Health v. Jackson, another case challenging the law.
The five justices in the majority declined to intervene because of the "complex and novel antecedent procedural questions" raised by S.B. 8's unusual enforcement mechanism, which was designed to frustrate pre-enforcement challenges. But they noted that the petitioners had "raised serious questions regarding the constitutionality of the Texas law at issue," which is an understatement given what the Supreme Court has said about constitutional limits on abortion regulations. Pitman left no doubt that S.B. 8 cannot be reconciled with those precedents, saying "this Court will not sanction one more day of this offensive deprivation of such an important right."
For the time being, Pitman's injunction bars Texas courts from hearing lawsuits authorized by S.B. 8. But that will no longer be true if the 5th Circuit stays his injunction, as the state is asking it to do.
What happens then? If people are sued because of abortions performed before the 5th Circuit responds to the state's appeal, you might think, they could argue that they acted in good-faith reliance on a federal judge's conclusion that S.B. 8 is unconstitutional. But the law explicitly forecloses that possibility. The arguments that don't count as a defense against an S.B. 8 lawsuit include "a defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter."
As The New York Times notes, that means "clinics can be sued retroactively for up to four years for any abortions they provide while the measure is blocked." Jeffrey Hons, president and chief executive of Planned Parenthood South Texas, told the Times "we look forward to resuming abortion care the moment we sense the relief in place is durable."
Amy Hagstrom Miller is president of Whole Woman's Health, which operates four abortion clinics in Texas and was the lead plaintiff in the earlier lawsuit. "We have reopened our schedule to expand beyond that six-week limit in our Texas clinics," she told the Houston Chronicle yesterday. "In fact, last night, we reached out to some of the patients that we had on a waiting list to come in to have abortions today, folks whose pregnancies did have cardiac activity earlier in September, and we were able to see a few people as early as eight, nine this morning, right away."
Still, Hagstrom Miller said, the possibility of being sued for abortions performed while enforcement is blocked "gives people pause." As South Texas College of Law professor Josh Blackman noted in an interview with the Chronicle, the decisions clinics make now "could result in crippling liability."