Here’s how to fight enforcement of Texas’ 'unconstitutional' anti-abortion law: legal expert

On Wednesday, October 6, U.S. District Judge Robert Pitman temporarily suspended enforcement of Texas Senate Bill 8, the state's draconian new anti-abortion law; however, the law went back into effect thanks to a 5^th Circuit Court of Appeals ruling. Legal expert Elie Mystal discusses Pitman's decision and the Texas law in general in an article published by The Nation on October 8, arguing that Pitman laid out a game plan for attacking a blatantly "unconstitutional" law.

Mystal writes, "It is difficult to explain the extent to which Texas' Senate Bill 8 — which bans abortions after six weeks of gestation and empowers private bounty hunters to sue anyone who 'aids and abets' an abortion — is unconstitutional and lawless…. I feel I lack the vocabulary to describe how bad SB 8 is, but U.S. District Judge Robert Pitman gave it a try."

In his ruling, Mystal notes, Pitman "explained the common understanding of 'how the law works'" and "illustrated how SB 8 clearly violates basic legal principles."

"Those who have followed the history of SB 8 know that the legal trick dreamed up by forced-birth advocates was to make private citizens responsible for enforcement of the law, instead of the state government," Mystal explains. "This feature was designed to help the law evade constitutional review, on the bonkers theory that you can't sue the state for violating the Constitution if the state merely deputizes private citizens and puts them in charge of violating the Constitution. Texas is no more law-abiding than an underworld crime boss who employs artful street urchins to steal for him and then claims immunity from criminal prosecution."

Pitman, according to Mystal, "used the purported strength of the Texas law as a reason to strike it down."

Mystal observes, "He writes that Texas created a scheme where no legal remedy is available for the victims of the law: the women who are denied their constitutional rights to bodily autonomy…. The way the law is written, providers who are sued are not allowed to challenge the constitutionality of the law in state or federal court. This scheme essentially denies the possibility of constitutional relief to either women or abortion providers who are denied constitutional rights. Pitman says this cannot be."