It’s hard to explain how unconstitutional and lawless is Texas Senate Act No. 8 – which prohibits abortion after six weeks of gestation and empowers private bounty hunters to sue anyone who sponsors an abortion. Even calling the law “unconstitutional” is like calling the Mariana Trench “deep”: it is true, but it does not capture the abysmal quality of the matter. I feel like I lack the vocabulary to describe how bad SB8 is, however US District Judge Robert Pitman tried it once. On Wednesday, he has ordered an injunction Suspension of the enforcement of SB8 and devoted 113 pages to explain why.
This week’s ruling isn’t the first time Pitman has pushed back against SB8. He disputed Texas’s motion to dismiss a case from Texas-based abortion company Whole Women’s Health the summer before the law went into effect. But he was outvoted by the radically Conservative Fifth District Court of Appeals and, ultimately, by the United States Supreme Court.
With this law now in place and systematically denying pregnant people in Texas access to their constitutional rights, Attorney General Merrick Garland and the Justice Department have sued Texas for its blatant violation of constitutional law. That gave Judge Pitman another opportunity to declare SB8 unconstitutional, which he did this week.
Most likely, Pitman will be outvoted by the Fifth Circuit. Soon. Maybe when I’ve finished writing this sentence. But when the seemingly inevitable Conservative setback comes, know that the Conservative courts will act in the service of their political agenda, regardless of legal restrictions. We know this because Judge Pitman’s ruling outlined a general understanding of “how the law works” that apparently escaped the Conservatives in the Fifth Ward and the Supreme Court, and then illustrated how SB8 clearly violates fundamental legal principles.
Anyone who has followed the history of SB8 knows that the legal ploy used by the advocates of compulsive birth was to hold private individuals responsible for enforcing the law instead of the state government. This feature was designed to help the law bypass a constitutional review of the insane theory that if the state only represents individuals and holds them accountable for violating the Constitution, if the state is only representing and holding private individuals responsible for violating the Constitution, you cannot sue the state for violating the Constitution. Texas is no more law-abiding than an underworld crime boss who hires artful street boys to steal for him and then claims immunity from prosecution.