Wendy Murphy: Texas abortion law an offense against Democracy

In a case brought by the Department of Justice, a federal judge in Texas blocked a controversial law that bans abortions after six weeks of gestation.

Judge Robert Pitman slammed the Texas law in a 113-page opinion, calling it “offensive” and an obvious violation of women’s constitutional rights.

He also criticized the Texas legislature for including a provision that allows only private persons (rather than the government) to enforce the ban through the filing of lawsuits against abortion providers and supporters.

This made it impossible for courts to overturn the ban unless a lawsuit was filed – and since anti-abortion activists agreed never to file any lawsuits, the ban has remained in effect by default.

Judge Pitman called this a “scheme,” intended to usurp the very foundation of our government by preventing the judicial branch from holding the legislative branch accountable for enacting unconstitutional laws.

Despite this outrageous disregard for American Democracy by Texas lawmakers, the notoriously conservative Fifth Circuit put a block on Pitman’s ruling last Friday. In a one-page decision that did not rule on any legal issues, the court effectively reinstated the Texas abortion ban and ordered the DOJ to file a response by Tuesday.

Alongside Texas’ attempt to take a chainsaw to abortion rights sits another abortion case now pending before the Supreme Court, with arguments set for Dec. 1.

The Court will decide whether a Mississippi law that bans abortion after 15 weeks violates Roe v. Wade.  A lower federal court overturned the Mississippi law, saying it violates Roe, because Roe gives women authority to choose abortion until fetal viability, and 15 weeks is pre-viability.

That lower federal court was the Fifth Circuit, the same court that just blocked Judge Pitman’s ruling. Court watchers are scratching their heads because the Fifth Circuit is supposed to follow the law in its own jurisdiction. But hey, they’re also supposed to obey Supreme Court precedent. And people wonder why the public has no respect for the rule of law.

If the Supreme Court upholds the 15-week Mississippi ban, the Texas law could also be upheld even though 6 weeks gestation is much shorter than 15, because allowing a 15-week ban would be a major departure from fetal viability as the determining factor of when a woman’s right to choose is outweighed by the state’s interest in protecting the unborn.

Worst case scenario, the Supreme Court uses the Mississippi case as an excuse to overturn Roe altogether, which would mean both the Mississippi and Texas laws will be upheld, and abortion will become illegal in those states and the many others that have trigger laws in place to automatically ban abortion in the event Roe is overturned.

In his lengthy decision, Judge Pitman spent little time on Roe v. Wade, because it’s easy to explain why banning abortion at 6 weeks violates Roe.

But he wrote at length about why abortion rights are so vital to women’s equality, well-being, and fundamental ability to live in the world as free human beings. Nearly 50 years after Roe, we shouldn’t have to keep explaining why basic freedom matters to women.

Unfortunately, Judge Pitman’s ruling is weak on the kinds of procedural issues that lawyers like me who practice in federal court have nightmares about — like whether the Department of Justice has standing to sue the state of Texas.

So if the Fifth Circuit wants to overturn Judge Pitman’s decision without deciding the abortion issue, it can simply rule that the DOJ has no right to sue.

And if the Fifth Circuit really wants to get sassy, it can point out the hypocrisy of Joe Biden’s DOJ claiming to care about women’s rights in Texas while simultaneously blocking the Equal Rights Amendment and fighting against it in two federal lawsuits in Massachusetts and D.C.

Even the Fifth Circuit knows that women’s abortion rights would be stronger if Merrick Garland withdrew from lawsuits opposing the ERA and rescinded a memorandum that’s currently blocking the ERA and was issued by Trump’s Attorney General in 2020.

When any legislative body enacts an unconstitutional law, the public should be outraged. But what Texas lawmakers did by intentionally trying to prevent the courts from ruling on a blatantly unconstitutional law is unconscionable.

It’s like passing a law making slavery legal despite the 13th Amendment, and then making sure it stays legal by passing another law to prevent the courts from overturning it.

The Texas abortion law is not just a constitutional insult to women, it’s a treasonous offense against American Democracy. The entire Texas legislature should be impeached.