Texas Abortion Law Again In Effect After Appeals Court Temporarily Pauses Injunction Against State

For a five-week stretch, abortion was almost abolished in the country’s second-most populous state—the result of a law called the Texas Heartbeat Act, or SB 8, that had defied constitutional protections under Roe v. Wade and eluded judicial review.

That changed briefly when U.S. District Judge Robert Pitman of Austin on Wednesday granted an injunction that halted the law at the request of the U.S. Justice Department.

The Texas attorney general’s office, in a motion filed Friday with the Fifth Circuit, urged the appeals court to intervene and “vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court.”

Judge Pitman’s ruling—filling more than 100 pages—included English doctrine predating the Constitution, obscure exceptions to state sovereign immunity and legal concepts familiar to child-custody cases. It all led to an exercise of federal power over a state-court system: an order forbidding the public from suing violators of SB 8 and prohibiting the Texas judiciary from taking cases under the law.

Within hours of the decision, some abortion clinics in Texas resumed normal operations after closing their doors to most patients since Sept. 1, when SB 8 took effect. Clouding the victory for the abortion-rights movement is the possibility that Judge Pitman’s decision could be overturned by the conservative-leaning benches above him: the Fifth Circuit and the U.S. Supreme Court. Legal scholars say parts of his opinion are vulnerable to reversal.

“It’s not so clear this ruling will survive,” said Jonathan R. Siegel, a professor at George Washington University Law School, pointing to what he called “technical barriers” to the Justice Department’s lawsuit that the judge found creative ways to overcome.

The law’s authors have said it was designed to fend off such challenges. Unlike other abortion bans enacted and struck down elsewhere, SB 8 gave the state government no enforcement role. Instead, it deputizes the public, empowering anyone in the country to file lawsuits against clinics and their insurers or anyone helping a patient get an abortion.

The law’s private enforcement scheme choked off the normal avenues that clinics have for challenging pre-viability abortion bans. The threat of damages and protracted litigation in state court proceedings compelled clinics to comply.

That was the status quo until Judge Pitman, a former federal prosecutor appointed to the bench by President

Barack Obama

in 2014, granted the Biden administration’s request for a preliminary injunction.

A small part of Judge Pitman’s opinion dealt with Roe or subsequent Supreme Court rulings affirming the constitutional right to an abortion. “There can be no question that S.B. 8 operates as a ban on pre-viability abortions in contravention of Roe v. Wade,” he wrote.

The heart of the decision dealt with the federal government’s right to sue, the authority of the court to hear the lawsuit and who can be ordered to do what. Much of the sprawling legal discussion in the ruling centers around the federal government’s role as plaintiff.

Among the sharpest points of disagreement between Texas and the Justice Department has to do with the concept of standing, the constitutional requirement that, among other things, a plaintiff show that it has—or is about to—suffer some concrete harm caused by the defendant.

The judge said the law exposes federal agencies and employees to legal liability for assisting abortions, noting Federal Bureau of Prisons regulations that authorize prison medics to arrange for elective abortions requested by inmates.

The judge took a step further. He wrote that the U.S. position also rests on the legal concept that recognizes the government’s role as guardian of the populace. It is the doctrine referred to in law as parens patriae (Latin for “parent of the people”), a term more often invoked in the context of juvenile court when the state assumes custody over a neglected child. The doctrine enables states to sue private defendants accused of harming or violating the rights of the general public.

Texas argued that the doctrine is reserved for lawsuits brought by states, not the federal government. Judge Pitman disagreed, writing that the U.S. government is the “ultimate parens patriae of every American citizen.”

The decision has raised concerns that the federal government could begin suing states with more frequency, but Judge Pitman said this was an exceptional case.

“The judge goes out of his way to say that the relief being ordered is not going to open the floodgates,” said Cornell University constitutional law professor Michael Dorf.

The judge also tackled the question of what exactly is the cause of action entitling the U.S. to sue, again rejecting Texas’s arguments. This part of the court’s analysis could draw the most scrutiny in appeals, according to Prof. Siegel.

The right to seek redress in court is limited. The usual basis is either a statute or common law, such as negligence suits. From time to time, courts have exercised their powers to grant so-called equitable relief—remedies the law doesn’t specifically authorize—to prevent state officials from acting unconstitutionally.

The question for the court: Could the judge use that power here because there was no other practical legal pathway to stop SB 8 and restore the right to abortion in Texas? Judge Pitman decided he had that power.

“Had this Court not acted on its sound authority to provide relief to the United States, any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction,” he wrote.

The only way to stop enforcement of the law is to stop people from bringing suits and to stop judges from hearing them. The Supreme Court has held that judges are immune from suits for damages but may be sued for injunctive relief. Cited in the litigation is a 1948 Supreme Court case that barred Missouri courts from enforcing racially restrictive housing covenants that excluded Blacks from occupying housing they had purchased.

Texas, in court papers, argued that the Supreme Court has never permitted “the federal government to generally challenge alleged constitutional violations.”

—Brent Kendall contributed to this article.

Write to Jacob Gershman at jacob.gershman@wsj.com