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Judge Shoots Down Texas Abortion Ban in Legal Challenge by Biden Administration

Reproductive rights advocates celebrated the ruling, but noted that the fight isn’t over.

Protesters take part in the Women's March and Rally for Abortion Justice at the State Capitol in Austin, Texas, on October 2, 2021.

A federal judge has blocked enforcement of the near-total Texas abortion ban that went into effect last month, which has been condemned by reproductive rights advocates as dangerous and outright cruel.

In a 113-page decision, the U.S. District Judge Robert Pitman denounced the ban as “flagrantly unconstitutional,” siding with President Joe Biden’s Department of Justice, which brought the suit. “From the moment S.B. 8 went into effect,” Pitman wrote, people “have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution.”

S.B. 8 is the most restrictive abortion ban in the country; legal experts say it doesn’t just undermine rights protected by Roe v. Wade, but also international law. The law bans abortion so early on in the pregnancy that most people don’t even know they’re pregnant, and doesn’t allow exceptions for cases of rape or incest.

S.B. 8 also places the onus of enforcement on private citizens rather than the state, an especially cruel move that incentivizes bounty hunters to seek out abortion providers, or anyone else who may have aided a person in ending their pregnancy, by rewarding them with a minimum of $10,000 from the state.

Attorney General Merrick Garland hailed Wednesday’s decision, calling it a “victory” for Texans and “for the rule of law.”

“It is the foremost responsibility of the Department of Justice to defend the Constitution,” he said. “We will continue to protect constitutional rights against all who would seek to undermine them.”

Abortion rights advocates also praised the ruling. “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. “While this fight is far from over, we are hopeful that the court’s order blocking S.B. 8 will allow Texas abortion providers to resume services as soon as possible.”

However, the ban may soon go back into effect, as Texas officials swiftly filed an appeal to the decision. They are planning to seek an emergency stay from the conservative 5th U.S. Circuit Court of Appeals, which has previously upheld the ban.

Since the law took effect in September, abortion clinics have experienced a massive chilling effect on their services. “Exactly what we feared would happen has come to pass,” said Melaney Linton, president of Planned Parenthood Gulf Coast, in a court filing.

In his decision, Pitman pointed out that the abortion ban is not only causing fear and uncertainty in Texas — it’s also overburdening abortion clinics in other states.

“Texas residents forced to leave the state must also contend with the abortion restrictions and backlogs in other states,” the judge wrote. “The Court finds credible the evidence showing that the inundation of Texas patients overburdens abortion services in other states, many of which are already stretched to the breaking.”

Pitman then shared the story of an abortion provider in Oklahoma. Before S. B. 8, patients from Texas represented only about a quarter of her patient load. Now, Texans represent about two-thirds of her overall patients, and she has had to delay abortions because of increased demand.

Oklahoma Planned Parenthood facilities have described the surge of patients from Texas as “unprecedented,” and they fear that delayed abortions will end up driving people away from having the procedure altogether.

Reproductive rights advocates fear that more abortion restrictions may be on the horizon. In December, the Supreme Court is set to hear arguments by the state of Mississippi in a case that seeks to challenge Roe v. Wade. If the Court ruling sides with the state, abortion rights may be endangered in states ruled by conservative lawmakers.

Last month, in response to the Texas law, House Democrats passed a bill that would guarantee abortion rights across the country. But the bill faces long odds of passing in a Senate deadlocked by the filibuster.

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