“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judge James Ho cast the deciding vote in a 2-1 decision to grant Texas’ motion to stay a district court’s preliminary injunction against its draconian abortion law while it appeals the injunction. This effectively means the prohibition will remain in place for months or more, unless the Supreme Court takes prompt action on the Justice Department’s announced plan to ask it to vacate the stay. The October 2021 Fifth Circuit order was in US v Texas.
As explained earlier in this blog, Texas recently passed what has been called the “nation’s strictest” abortion law, which prohibits abortion as soon as a fetal heartbeat can be detected, after about six weeks of pregnancy. The law also sets up a “bounty hunting scheme” to enforce the law, under which any person who is not a government official can file a civil lawsuit against anyone they think performed or helped someone get an abortion that violated it and, if they succeed, receive statutory damages of at least $10,000 per abortion, plus costs, attorneys’ fees, and injunctive relief.
After both the Fifth Circuit and the Supreme Court peremptorily refused to grant an injunction against the law sought by abortion care providers, the Justice Department filed a landmark suit against Texas, contending that the law, which had begun to take effect, was unconstitutional. District judge Robert Pitman issued a 113-page opinion granting a preliminary injunction against the law on October 6, stating that the court “will not sanction one more day” of the “offensive deprivation” of the “important right” of “women [who] have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.” Texas immediately appealed and sought a stay of the order while its appeal is pending, and a Fifth Circuit panel granted an administrative stay less than 48 hours later while it considered the motion.
After extensive briefs from both the Justice Department and Texas, the panel issued an unsigned one-paragraph order that granted Texas’ motion on October 14. The only explanation in the order was that it was for the “reasons stated” in the previous Supreme Court and Fifth Circuit brief orders denying an injunction sought by providers, and it did not even mention the Justice Department suit or the 114-page order against it. Judge Carl Stewart dissented, so that the deciding vote was provided by Trump judge Ho, an avowed opponent of reproductive rights who has criticized what he has termed the “moral tragedy of abortion.”
Even though no court other than Judge Pitman has specifically addressed whether the Texas law violates the Constitution and Supreme Court precedent, the edict has “effectively halted almost all abortions in Texas,” with people who can afford it “driving hours to other states” while those who cannot “are forced to continue with unwanted pregnancies.” Although the panel agreed to expedite the appeal, unless the Supreme Court grants the motion to vacate the stay that the Justice Department has already stated that it will file promptly, that situation will remain in Texas at least for months. Abusive laws like those in Texas are being considered in other states as well.
The Supreme Court may well decide the future of reproductive rights for all during this term, whether in a pending case from Mississippi or the Texas litigation. This case shows the importance, as part of our fight for our courts, of promptly confirming fair-minded judges at all levels of the federal judiciary, including courts like the Fifth Circuit, to help protect reproductive and other rights for all.