The Texas Abortion Ban Is on Pause. But Can Texans Get Abortions?

In a 113-page ruling, a federal judge attacked the ban's plan to turn ordinary people into what critics have called “anti-abortion vigilantes.”
October 7, 2021, 2:14pm
Demonstrators hold up signs at a pro choice abortion protest outside the Texas state capitol on May 29, 2021 in Austin, Texas.
Demonstrators hold up signs at a pro choice abortion protest outside the Texas state capitol on May 29, 2021 in Austin, Texas. (Photo by Sergio Flores/Getty Images)

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A federal judge has put the most restrictive abortion law in the United States on pause—but the reprieve may be fleeting for Texans who want abortions. 

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Late Wednesday, U.S. District Judge Robert Pitman blocked SB8, a Texas law enacted Sept. 1 that bans abortion as early as six weeks into pregnancy. Although a handful of conservative states have tried to enact similar bans, the Texas law has a unique legal twist: It deputizes ordinary people to enforce it, by letting individuals sue anyone who “aids or abets” an abortion that breaks the law. If they win, those individuals can get $10,000 in damages.

In his 113-page ruling, Pitman took direct aim at that scheme, which critics have said amounts to vigilantism and bounty hunting.

“The state created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion,” Pitman wrote. “Rather than subjecting its law to judicial review under the Constitution, the state deliberately circumvented the traditional process.”

The Texas ban, Pitman said, undermines the constitutional right outlined by Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, and the years of Supreme Court rulings that followed it. Under that jurisprudence, states can’t totally ban abortion prior to fetal viability, which takes place around 24 weeks of pregnancy. 

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Now, thanks to Pitman’s order, state court judges and clerks are now blocked from “accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit” that arises from breaking SB8.

But that doesn’t mean that all abortion providers in Texas will rush to start offering abortions past six weeks of pregnancy. Even if SB8 is blocked and reinstated, it contains a provision that allows people to retroactively sue those who violated the law when it was not in effect.

Whole Woman’s Health, an abortion clinic group with multiple locations in Texas, tweeted Wednesday that its workers “aren’t sure what this means for care yet.”

“We are working with our staff and doctors to resume providing the full scope of abortion care as soon as possible,” the group added.

“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”

Texas has already filed a notice that it will appeal Pitman’s ruling to the U.S. Court of Appeals for the 5th Circuit. The case will likely end up back at the Supreme Court, which declined to halt the law in September, although it’s not clear how long it may take for the courts to act.

Roughly 85 percent of abortions in Texas take place after the six-week mark, according to abortion providers. Since the Texas ban took effect, people seeking abortions have fled the state, as Pitman outlines in his ruling. 

Two-thirds of the calls to one abortion clinic in Oklahoma are now from Texas, while about half of the patients of a Kansas clinic now come from Texas, according to his ruling. Some people are traveling over a thousand miles just to obtain abortion-inducing pills.

“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 wrote.