October 16, 2021
Use this link to find analyses of and access to full text documents filed in the Texas abortion case. The Texas abortion case began when the United States Supreme Court, in a case titled “Whole Women’s Health v. Austin Reeve (Supreme Court) (9.1.21),” declined to strike down a newly enacted Texas law allowing citizens to act as “abortion vigilantes” by empowering them to sue anyone who helps a woman obtain an abortion once fetal cardiac activity can be detected — usually around six weeks after a woman’s last menstrual period (for a more detailed explanation of the Texas abortion law read the Washington Post article “What To Know About The Texas Abortion Law“). The Supreme Court’s order, filed on September 1, 2021, with blistering dissents by justices Kagan and Sotomayor, effectively overruled the longstanding Supreme Court case Roe v. Wade, which held that women had a constitutional right to abortions. Further analysis of the Supreme Court’s order and the full text of the order can be found by clicking here: United States Supreme Court Order Allowing Texas Abortion Law To Stand.
When the United States Supreme Court allowed the draconian Texas abortion law to stand, the Department of Justice (DOJ) under Attorney General Merrick Garland began a lawsuit on September 9, 2021, by filing a complaint in the United States District Court for the Western District of Texas. The DOJ’s complaint was fiercely direct, opening with the statement: “It is settled constitutional law that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” Thus, concluded the DOJ, “Texas enacted S.B. 8 in open defiance of the Constitution.” Further explanation of the DOJ’s complaint and the full text of the complaint (which changed the name of the case to “United States of America v. The State of Texas”) can be found by clicking here: DOJ Complaint Challenging Texas Abortion Law.
After filing its complaint, and aware of the urgent health crisis created by the Texas abortion law, the DOJ just five days later, on September 14, 2021, filed an emergency motion for a temporary restraining order, or preliminary injunction, to prevent the abortion law from being implemented. In its motion, the DOJ noted that “[t]he devastating effects warned of in the pre-enforcement litigation immediately became a reality for patients and providers in Texas.” The DOJ established the factual basis for its motion by describing a litany of harrowing experiences suffered by Texas women as a direct result of the anti-abortion law. The DOJ’s description of the dire state of affairs in Texas and the full text of the emergency motion can be found by clicking here: United States’ Emergency Motion For A Temporary Restraining Order Or Preliminary Injunction.
The United States District Court was quick to respond to the DOJ’s motion. On October 6, 2021, United States District Judge Robert Pitman filed a 113-page order in favor of the DOJ issuing a temporary restraining order, or preliminary injunction (whether termed a “restraining order” or “preliminary injunction” the legal effect is the same). The consequence of this order was that the Texas abortion law could not be enforced. As described in a Vox article published on October 9, 2021, Judge Pitman blasted the Texas abortion law as an “unprecedented and transparent statutory scheme” to deprive Texas women of their constitutional abortion rights under Roe v. Wade. In an article published on October 17, 2021, the Guardian observed that Judge Pitman used “some of the strongest language ever heard from a federal judge,” noting that “Judge Pitman’s opinion explained that Texas concocted a transparent ‘scheme’ to ‘end run’ the constitution . . . [and] laid out the elaborate ‘machinations’ Texas devised to avoid a court doing anything about a clearly unconstitutional law.” The full text of Judge Pitman’s order can be viewed or downloaded by clicking here: U.S. v. Texas Judge Pitman Order Blocking TX Abortion Ban 10.6.21.
The District Court’s order stopping the Texas abortion law from being enforced was short lived. On October 8, 2021, the State of Texas filed a motion with the 5th Circuit Court of Appeals (the intermediate appellate court between federal district courts and the United States Supreme Court) asking for a stay of the preliminary injunction issued by Judge Pitman. The full text of the motion filed by Texas can be found by clicking here: U.S. v. Texas Motion To Stay Preliminary Injunction. The United States filed its opposition to the Texas motion on October 11, 2021. The full text of the United States’ brief can be found here: U.S. v. Texas DOJ Opposition to Motion to Stay. Also on October 11, 2021, a large group of prestigious organizations opposing the Texas abortion ban (particularly as a matter of women’s health) filed an Amici Curiae (i.e., “friend of the court”) brief in support of the United States’ opposition to the Texas motion. The full text of the Amici Curiae brief can be found here: U.S. v. Texas Amicus Briefs in Support of U.S.. On October 14, 2021, a three-judge panel of the 5th Circuit Court of Appeals in a 2-1 decision issued a perfunctory one paragraph order staying the preliminary injunction filed by Judge Pitman just five days before. The legal consequence of the 5th Circuit’s order was to reinstate the Texas abortion ban, once again depriving the women of Texas the constitutional rights to an abortion guaranteed by Roe v. Wade. The full text of the 5th Circuit’s order can be viewed by clicking here: U.S. v. Texas 5th Circuit Panel Stays Preliminary Injunction.