"Home Cooking" for Texas in Abortion Case?

             The state of Texas seems likely to get a generous serving of “home cooking” when a panel of three federal appellate judges hear the state’s effort on Tuesday [October 12] to salvage the state’s patently unconstitutional ban on abortions after the sixth week of pregnancy. The panel, with two Republican appointees and one Democratic appointee, already gave the state a boost on Friday (October 9) by temporarily lifting the injunction that a federal district court judge issued earlier in the week to block enforcement of the law.

Two of the three judges on the panel have deep roots in the state’s conservative Republican politics: Catharina Haynes, a former state court judge appointed to the Fifth Circuit in 2008 on the recommendation of the state’s two Republican senators, and James Ho, a former Texas solicitor general appointed to the appeals court by President Trump in 2018. Ho may have the decisive vote in the appeal if, as seems likely, Haynes and the Democratic appointee on the panel, Carl Stewart, a former state appellate judge in Louisiana, disagree.

            In issuing the injunction against the law on Wednesday (Oct. 6), U.S. District Court Judge Robert Pitman emphatically rejected the state’s effort to avoid judicial review by vesting enforcement not with state officials but with private citizens he called “anti-abortion vigilantes.” Any private citizens suing to enforce the law, Pitman concluded, would be “state actors” subject to a federal court injunction.

Specifically, the so-called Texas Heartbeat Act incentivizes private citizens to enforce the law by allowing a private citizen to be awarded $10,000 for successfully suing anyone who performs or induces an abortion or aids and abets an abortion after “cardiac activity” in an embryo can be detected, usually around the sixth week of pregnancy.

The lawyer who designed the act’s unprecedented enforcement scheme was Jonathan Mitchell, a former state solicitor general and ex-law clerk to Supreme Court Justice Clarence Thomas. As it happens, Ho appears to be on ideologically compatible terms with Mitchell; Ho served as moderator with Mitchell as a panelist on a Federalist Society program at the University of Chicago Law School in February 2019.

Ho is also no stranger to abortion-related cases engineered by the Texas state legislature. Within months of taking his seat on the Fifth Circuit, Ho voted in July 2018 to uphold a Texas law requiring burial or cremation of fetal remains after an abortion. He added in his opinion that the Catholic bishops defending the law had the right “to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.”  

Pitman, appointed to the federal bench in Austin by President Obama in 2014, wrote a comprehensive 113-page opinion that thoroughly answered all of the state’s defenses of the law and all of the state’s objections to the United States’ suit seeking to invalidate the law. Pitman began by stating what was surely obvious to the Texas legislators in enacting SB8. “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman’s decisive action was in sharp contrast with the Supreme Court’s earlier decision on Sept. 1 to allow SB8 to take effect. The five Republican-appointed conservatives in the majority authored an unsigned, one-paragraph opinion that acknowledged “serious questions” about the constitutionality of the law, but they threw up at their hands because of the “procedural questions” created by the state’s private enforcement scheme. The abortion clinics who brought the case to the Supreme Court, Whole Woman’s Health v. Jackson, Judge, named as defendants the class of state court judges in Texas empowered to entertain the private enforcement suits authorized by the law.

Pitman circumvented the procedural question by directing the state to publish on “all of the public-facing court websites . . .  a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman further instructed the state to distribute copies of his preliminary injunction to all of the state’s judges and all of the state’s court clerks. Pitman acknowledged that the court might not be in the best position to dictate the particulars and, instead, ordered the state to submit its plan for disseminating the information to him for “review and approval.”

If reviewed by a non-stacked panel, Pitman’s meticulous opinion would warrant an affirmance with an acknowledgment of its scholarly thoroughness In issuing the injunction against the law, Pitman sent the state’s lawyers packing by refusing to consider the state’s application for a stay pending the inevitable appeal.

The state, Pitman wrote at the end of his opinion, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Other courts may rule differently, Pitman acknowledged, but he was unshaken in his decision. “This Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote in conclusion.

The Fifth Circuit panel took only five hours on Friday before issuing the temporary administrative stay to allow the law to go back into effect pending next week’s appeal. The panel wrote nothing by way of explanation for putting Pitman’s decision on hold; Haynes and Ho have their work cut out for them to come up with legal rationales to uphold the law, as they surely hope to do.