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District Court Judge Issues Temp Restraining Order Blocking Texas Abortion Law

District Court Judge Issues Temp Restraining Order Blocking Texas Abortion Law

U.S. District Judge Robert Pittman of the Western District of Texas, Austin Division, placed a Temporary Restraining Order on the Texas pro-life bill. It bans abortions after a doctor can detect a heartbeat.

The law also has “a private right of action against individuals who commit or aid and abet an abortion that violates the law.” It does not include the woman who has the abortion.

The Fifth Circuit Court of Appeals rejected the requests for a stay from abortion providers. They went to the Supreme Court.

I am shocked…SHOCKED…that SCOTUS allowed the law to go into effect. They’ve been such wimps, relying on precedent instead of following the science and medical technology that proves life begins at conception.

Our devout Catholic president’s administration filed a motion to block the law.

Pittman did just that.

Pittman wrote: “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials. Rather than challenging the right to abortion via the appropriate process of judicial review, the State went so far as to draft the law in such a way as to attempt to preclude a review of the constitutionality of the statute by federal courts who have [a] responsibility to safeguard the very rights the statute likely violates.”

The words abortion and privacy do not appear in the Constitution. Even late Supreme Court Justice Ruth Bader Ginsburg did not like the composition of the Roe v. Wade ruling.

Pittman hates that the state structured the bill “so that no adequate remedy at law exists by which to test its constitutionality.”

“By purporting to preclude direct enforcement by state officials, the statutory scheme is intended to be insulated from review in federal court,” argued Pittman. “The State itself concedes that the law’s terms proscribe review by federal courts, limiting review to state court alone.”

Pittman pointed out that state court’s “opportunities for review are severely constrained.”

“By limiting the defenses that a defendant may raise in state court, the law’s authors effectively cut off any hope that a defendant will prevail,” said Pittman. “The State makes much of potential defendants’ ability to challenge the constitutionality of the statute in state court.”

So Pittman thinks the law violates the 14th Amendment, but also because it places “an undue burden in a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” (Casey, 5050 U.S. at 877)

Pittman also wouldn’t pick and choose which parts of the bill should stay or go: “Like the Hellerstedt Court, this Court will not attempt the legislative exercise of picking and choosing what portions of S.B. 8 could remain in effect, if any, to avoid the substantial risk of causing the ‘inconsistent application of only a fraction of interconnected regulations’ in Chapter 171 of the Texas Health and Safety Code.”

The state of Texas plans to appeal the ruling to the Fifth Circuit Court of Appeals.

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Comments

The judge’s analysis that the Texas law is blatantly unconstitutional would be completely correct if Roe v Wade had had anything whatever to do with the Constitution. It would be nice for some judge, somewhere, to admit that that’s not the case.

    Juris Doctor in reply to irv. | October 7, 2021 at 11:40 am

    You should probably try reading Roe because the constitutional basis is methodically set forth.

      Colonel Travis in reply to Juris Doctor. | October 7, 2021 at 1:09 pm

      Is this sarcasm?

      ruralguy in reply to Juris Doctor. | October 7, 2021 at 1:32 pm

      Very true. Both the majority opinion (7-2) and the dissent are rigorous. The case exemplifies the problems of unwanted births. The facts are quite straightforward. The girl, Norma McCorvey (pseudonym Jane Roe, because of past use of Jane Doe), had three unwanted pregnancies, by three different men. She had a ninth-grade education and was gay, both of which suggests she was preyed upon. She gave up the first two children to adoption.

      The case follows legal principles. The constitutionality argument said strict U.S. Constitutional interpretation is difficult because the U.S. Constitution relied on English statutory and case law, so that its principles are more far reaching than within the confines of the document.. The beginning of life was never decided. Instead, the focus was on the harmful effect of the unwanted child on the mother’s life, even considering her giving up the first two for adoption. The logic is far more complex than this. But, as a conservative, I definitely have seen the harmful effects of unwanted births, even to parents who adopt these poorly functioning children. To believe we are all equal is nonsense. A life matters only if it achieves something beyond being a drag on the nation. We have huge underclasses of children who should never had been born, because their parent’s simply were unable to raise them and because the children will almost certainly be a drag on the nation.

      The dissent has very good legal arguments, but I think the majority opinion correctly identified the harm that ensues from unwanted births.

        daniel_ream in reply to ruralguy. | October 7, 2021 at 2:23 pm

        A life matters only if it achieves something beyond being a drag on the nation.

        Jesus Tapdancing Christ, that’s your argument? A longwinded version of Arbeit Macht Frei?

          ruralguy in reply to daniel_ream. | October 7, 2021 at 5:24 pm

          Hardly, more like a “stitch in time save nine.” Ignoring problems doesn’t solve them. Norma McCorvey was a white teenage alcoholic mother who drank while pregnant, committed crimes from the age of ten, and joined a world of indolent black men who father children whom they have no intention of raising. Is that the type of world you want to create? Is that the type of moral behavior you are promoting? You are helping to create a very immoral and indolent environment by supporting unwanted pregnancies. Crime and Alcoholism are genetic. Stopping this unwanted pregnancy solves nine problems down the road.

          The National labor participation rate is 63%. We have a population that increasingly demands social safety nets to support an indolent lifestyle. Our nation has become intolerably dysfunctional. Yet, the world’s excess poor population is flocking here from failed nations. You have a choice. Do you support this immorality or do you vote to stop it. By preventing unwanted pregnancies, like Norma McCorvey, you would be on much higher moral grounds.

          Milhouse in reply to daniel_ream. | October 7, 2021 at 6:21 pm

          Thank you Herr Schickelgruber. Or Herr Marx.

          By the same logic, since most shooting victims are gang members who are “drags on the nation”, states should be forbidden from making it illegal to shoot people.

          For that matter, I bet if you look into the stats you’ll find that the average “unwanted child” is less of a “drag on the nation” than the average black person, wanted or not. So it should be unconstitutional for a state to ban the murder of black people. Or at least enslaving them and putting them to useful work. It’s perfectly logical, isn’t it?

          A person’s value does not depend on what they do for the “nation”. A person’s rights do not depend on what they do for the “nation”. You do not get to send people to the gas chamber because they’re “drags on the nation”. And what the hell does any of that have to do with the constitution?

        geronl in reply to ruralguy. | October 7, 2021 at 2:38 pm

        There is nothing in the Constitution that gives them that power. It is unconstitutional to rely on English common law or whatever

        E Howard Hunt in reply to ruralguy. | October 7, 2021 at 3:20 pm

        Hey, urallgay,

        The most fervently desired babies who went to the best schools and live in the lap of luxury are the ones dragging our nation down.

        1. To quote a great legal mind, “The constitution says what it says, and doesn’t say what it doesn’t say”. -Famous supreme court justice The constitution has to be contorted to justify abortion.
        2. Science has proven that a small child in the womb is a separate and distinct human being. It IS NOT a “body part” of the mother.

        3 if it were a “body part” we, as a society, would consider those who electively cut off their own arms, legs or other major body parts and those who support such procedures, as mentally deranged.

        Summary, no constitutional or scientific rational for elective abortion.

    Milhouse in reply to irv. | October 7, 2021 at 11:49 am

    Roe‘s relationship to the constitution is very simple: Article 3 vests the judicial power in the supreme court and the inferior federal courts. The judicial power is the power to say what the law is. Not to make new law, but to say what the law already is.

    The supreme court has said the constitution guarantees a birthing person’s right to have her baby murdered; therefore that is the law, until it changes its mind and says that it is not the law. When it does that it will have never been the law.

    That’s how the judicial power works. And that’s how the common law evolves.

      geronl in reply to Milhouse. | October 7, 2021 at 2:35 pm

      The Constitution does not give the courts the power to create law. The Constitution also does not make the courts, even the SCOTUS the final arbiter of what is Constitutional.

        Milhouse in reply to geronl. | October 7, 2021 at 6:24 pm

        The courts don’t create law. They merely say what the law is. And the constitution explicitly gives them that power. And yes, that means it does in fact make them the final arbiter of what is constitutional, since the constitution is the law, so they get to say what it is.

        lichau in reply to geronl. | October 7, 2021 at 7:32 pm

        Sadly, the Constitution means whatever five appointed for life bureaucrats in black robes say it says.
        If they say that the law says that the moon is made of green cheese, legally it is.

          Milhouse in reply to lichau. | October 7, 2021 at 7:35 pm

          Until their successors say they were mistaken, at which point what they said was never the law after all.

      felixrigidus in reply to Milhouse. | October 8, 2021 at 4:53 am

      Your position is a weird mixture of extreme nominalism and positivism. Still, you manage to make any law obsolete because, according to you, whatever insanity an activist judge comes up with “is the law” “until” “it isn’t”.

      Which, if we were to take you seriously, would mean any appeal is frivolous because it asks the superior court to violate the law by (your) definition. Since the lower court misapplied the law that misapplication has become the law in this case and therefore any correction is a violation of the law. But of course, if the court of appeals reverses that is the law, and the law magically says something entirely different from what it said a second ago. However, obviously at no point during these changes of the law has the legislature taken any action at all.

      Behold the law according to Milhouse.

      Please, stop. Explain why and how a decision has a rational connection to the law it purports to apply. Or explain what the law means. Don’t subject us to the Milhouse theory of law.

      By your logic, the SCOTUS is not limited by the constitution. Such thinking is clearly unconstitutional and is why we got Roe v Wade, gun control and other limits on freedom. Liberals/communists love your way of thinking.

The 5th circuit is the most conservative I believe

Lucifer Morningstar | October 7, 2021 at 11:40 am

.

“By purporting to preclude direct enforcement by state officials, the statutory scheme is intended to be insulated from review in federal court,” argued Pittman. “The State itself concedes that the law’s terms proscribe review by federal courts, limiting review to state court alone.”

So if the federal courts are unable to review or to rule on the constitutionality of the law due to the fact that it was written to preclude any federal court interference then how does the federal court presume to have the authority to hang a “temporary injunction” on the law. Especially seeing as how no causes of action (lawsuits) have been initiated by any private actor under this law. (ie. How does he federal court plan to remedy any damages when those damages haven’t occurred yet.)

    Simple. By aggregating the power by the naked assertion. Pittman’s following the example of Mayor Frank Hague,

    https://politicaldictionary.com/words/i-am-the-law/

    “I am the law” is a phrase attributed to Frank Hague, the mayor of Jersey City from 1917 until he retired in 1947. He is remembered as the ultimate political boss, in an era when bosses ruled local politics.

    Hague was famous for bending the law to his own purposes and wielding absolute power of his small corner of the world. In one famous story, he declared, “I am the law.”

      fscarn in reply to fscarn. | October 7, 2021 at 1:07 pm

      Shades too of the Sun King,

      Louis XIV brought France to its peak of absolute power and his words ‘L’etat c’est moi’ (‘I am the state’) express the spirit of a rule in which the king held all political authority. His absolutism brought him into conflict with the Huguenots and the papacy, with damaging repercussions.

      Lucifer Morningstar in reply to fscarn. | October 7, 2021 at 2:15 pm

      So the Texas Legislature could simply declare, “We are the law.” and ignore this judge’s “temporary injunction” preventing the application of legally adopted Texas state law, right? Right?!?

You are not supposed to ask questions like that.

I think it likely the Fifth Circuit will stay any TRO/preliminary injunction pending the Supreme Court’s decision in the Mississippi abortion case which should tell us if Roe v. Wade and Planned Parenthood v. Casey remain good law.

FortesFortunaJuvat | October 7, 2021 at 12:50 pm

The time is coming . . .

Federal courts have no jurisdiction on this, Constitutionally

The majority in Roe vs Wade created a completely dishonest argument about some “penumbra” of the Bill of Rights that protected a woman’s right to abort her baby. There is no such right under the Constitution, and the Supreme Court’s decision was political and not Constitutional. It is long past time to overrule Roe vs Wade.

Josh Blackman explains where Pitman went wrong.

Of course, it’s an Obama judge

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.” thus spake the Obama judge.
Presumably, because some “birthing persons” are not a woman, in the fevered mind of the woke?

But setting that aside, how is a child with a heartbeat not viable when first world health care can (if not easily and with 100% rate of success) secure the survival of the child outside the womb?

By the way, what has changed that allows any judge to “stay” a law? These may be niceties that are below an activist judge, but these niceties seem to be vital for the rule of law.

At what point is the blatant disregard of the law by a judge a criminal offense?

Steven Brizel | October 8, 2021 at 2:00 pm

Both the late Alexander Bickel and John Hart Ely ,two of the most preeminent authorities on constitutional law ,viewed Roe v Wade as one of the worst decisions in the history of the court, because SCOTUS created a law on a matter and issue that was a matter of national dispute . Roe v Wade had no basis in the Constitution other than the judicially created”penumbras” of theBill of Rights and a never sanctioned “right to privacy.”Roe truly ranks with Dred Scott and the awful cases on the Establishment Clause and search and seizure as one of the worst decisions in the history of SCOTUS

Steven Brizel | October 8, 2021 at 2:03 pm

One issue that may be worth watching is how SCOTUS views a fetus in light of the advances in sonography since 1973 when the SCOTUS in Roe devised its three trimester statute . Sonograms today clearly depict fetal development in the first trimester,

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