Decision blocking Texas abortion law 'not the final word,' says bill's sponsor - Reuters

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(Reuters) - When I spoke with Texas state senator Bryan Hughes last month about his role as sponsor of his state’s strict new abortion law, he called it “a very elegant use of the judicial system.”

Hughes said in an email to me on Thursday that U.S. District Judge Robert Pitman's decision that temporarily blocked the law, known as S.B. 8, or the Heartbeat Act, is “not the final word.”

The state of Texas has already moved to appeal Pitman’s ruling to the conservative-leaning 5th U.S. Circuit Court of Appeals.

Hughes wrote that he is “confident that the Fifth Circuit will stay and reverse the ruling.” He also said that the law, which bans almost all abortions after about six weeks, remains in effect. Even now, anyone who performs or assists in an abortion after fetal cardiac activity is detected could be sued in federal court based on diversity of citizenship jurisdiction, he said.

"Judge Pitman’s injunction stops state judges and clerks from entertaining citizen suits under the Heartbeat Act. It does not affect federal courts," Hughes wrote. Moreover, he noted, that abortion providers can also “be sued in state court if this injunction is vacated or stayed on appeal.”

In a 113-page decision on Wednesday, Pitman cited the “elegant use” statement that Hughes made to me last month in siding with the Justice Department to temporarily block enforcement of the law while the litigation continues.

“Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process,” Pitman wrote. “It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.”

From a lawyerly point of view, Hughes' 'elegant' description last month struck me as apt. By handing over enforcement of the law to private citizens, opponents were left struggling to find the standing necessary to mount a challenge.

Pitman in his decision blasted the law's design, which he wrote was “designed to stymie judicial review.”

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” the judge wrote. "This Court will not sanction one more day of this offensive deprivation of such an important right."

The state’s largest anti-abortion group, Texas Right to Life, in a statement called his decision “wildly broad” and said Pitman “showed the extreme prejudice motivating his decision.”

Other anti-abortion advocates piled on.

Susan B. Anthony List President Marjorie Dannenfelser in a news release said that “an unelected judge has interfered with the clearly expressed will of Texans.”

Chelsey Youman, Texas state director of Human Coalition Action, in a statement called Pitman’s decision a “shameless example of unfettered judicial activism at its worst” and said it was “more about partisan politics than a fair judgment of the law.”

Palpable as their outrage may be, it’s not in line with Pitman’s history of bipartisan support. The first openly gay federal judge in Texas, Pitman, 58, was appointed to the bench in 2014 by former President Barack Obama, and he was recommended by Texas’ two Republican senators, John Cornyn and Ted Cruz.

Pitman, through his court deputy, declined to comment for this column.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

source: https://www.reuters.com/legal/litigation/decision-blocking-texas-abortion-law-not-final-word-says-bills-sponsor-2021-10-08/

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