AUSTIN, Texas (AP) — Abortions quickly resumed in some Texas clinics Thursday after a federal judge halted the most restrictive abortion law in the U.S., but doctors across the state did not rush to resume normal operations with the court battle far from over.
The order by U.S. District Judge Robert Pitman late Wednesday was meant to give Texas clinics cover to resume seeing most patients for the first time since early September, when the law known as Senate Bill 8 went into effect, banning abortions once cardiac activity is detected, usually around six weeks.
Amy Hagstrom Miller, president of Whole Woman's Health, said her four Texas clinics called in some patients early Thursday who were on a list in case the law was blocked at some point. Other appointments were being scheduled for the days ahead, and phone lines were again busy, she said.
But the relief felt by Texas abortion providers was tempered by the possibility of an appeals court reinstating the law in the coming days. Some Texas physicians, meanwhile, were still declining to perform abortions, fearful they might be held liable despite the judge's order.
Josh Blackman, a constitutional law professor with the South Texas College of Law, said Pitman's decision was very intricate but he doesn't know how much it changes right away.
“It basically says that every single judge in Texas is barred from even hearing a case and that every person in Texas is prohibited from actually filing a case. It basically tries to knock out the law in its entirety from the root.”
He believes Texas will seek an emergency stay with the Fifth Circuit Court of Appeals which would put Pitman’s ruling on hold.
Blackman said, “If a clinic starts performing abortions today, right now as we speak, and let’s say tomorrow the court of appeals puts the ruling on hold, that clinic can then be sued for performing an abortion in violation of SB8.”
If a stay is granted Blackman says the case would head to the Supreme Court as early as next week.
“Unless the U.S. Supreme Court says Texas stop it the clinics still face liability if they allow abortions to proceed.”
Texas' new abortion law leaves enforcement solely in the hands of private citizens, who are entitled to collect $10,000 in damages if they bring successful lawsuits against abortion providers who violate the restrictions. Planned Parenthood, which had said it was hopeful the order would allow clinics to resume abortion services as soon as possible, did not immediately offer an update on its plans Thursday.
Republican Texas Attorney General Ken Paxton's office quickly served notice of the state's intent to appeal but had yet to do so Thursday.
“The sanctity of human life is, and will always be, a top priority for me," Paxton tweeted.
Pitman's order amounted to the first legal blow to Senate Bill 8, which had withstood a wave of earlier challenges. In the weeks since the restrictions took effect, Texas abortion providers said the impact had been “exactly what we feared.”
In a 113-page opinion, Pitman took Texas to task, saying Republican lawmakers had “contrived an unprecedented and transparent statutory scheme” by leaving enforcement solely in the hands of private citizens, who can collect damages if they bring successful lawsuits against abortion providers who violate the restrictions.
“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 bench by former President Barack Obama.
“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."
The lawsuit was brought by the Biden administration, which has said the restrictions were enacted in defiance of the U.S. Constitution. Attorney General Merrick Garland called the order “a victory for women in Texas and for the rule of law.”
The law had been in effect since Sept. 1.
“For more than a month now, Texans have been deprived of abortion access because of an unconstitutional law that never should have gone into effect. The relief granted by the court today is overdue, and we are grateful that the Department of Justice moved quickly to seek it,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.
Texas Right to Life, the state's largest anti-abortion group, said the order was not unexpected.
“This is ultimately the legacy of Roe v. Wade, that you have activist judges bending over backwards, bending precedent, bending the law, in order to cater to the abortion industry," said Kimberlyn Schwartz, a spokeswoman for the group. “These activist judges will create their conclusion first: that abortion is a so-called constitutional right and then work backwards from there.”
Abortion providers say their fears have become reality in the short time the law has been in effect. Planned Parenthood says the number of patients from Texas at its clinics in the state decreased by nearly 80% in the two weeks after the law took effect.
Some providers have said Texas clinics are now in danger of closing while neighboring states struggle to keep up with a surge of patients who must drive hundreds of miles for an abortion. Other women, they say, are being forced to carry pregnancies to term.
Other states, mostly in the South, have passed similar laws that ban abortion within the early weeks of pregnancy, all of which judges have blocked. A 1992 decision by the U.S. Supreme Court prevented states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy.
But Texas’ version had so far outmaneuvered the courts because it leaves enforcement to private citizens to file suits, not prosecutors, which critics say amounts to a bounty.
The Texas law is just one that has set up the biggest test of abortion rights in the U.S. in decades, and it is part of a broader push by Republicans nationwide to impose new restrictions on abortion.
On Monday, the U.S. Supreme Court began a new term, which in December will include arguments in Mississippi’s bid to overturn 1973’s landmark Roe v. Wade decision guaranteeing a woman’s right to an abortion.
Last month, the court did not rule on the constitutionality of the Texas law in allowing it to remain in place. But abortion providers took that 5-4 vote as an ominous sign about where the court might be heading on abortion after its conservative majority was fortified with three appointees of former President Donald Trump.
Ahead of the new Supreme Court term, Planned Parenthood on Friday released a report saying that if Roe v. Wade were overturned, 26 states are primed to ban abortion. This year alone, nearly 600 abortion restrictions have been introduced in statehouses nationwide, with more than 90 becoming law, according to Planned Parenthood.
Texas officials argued in court filings that even if the law were put on hold temporarily, providers could still face the threat of litigation over violations that might occur before a permanent ruling.