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Enforcement of the new abortion law in Texas is blocked by a federal judge


A federal judge says it is not, in fact, OK for Texas to pass an unconstitutional abortion law. The judge ruled last night on the Texas law that bans abortions after six weeks or so. The law was elaborately designed so that it would be hard to take to court. But the Justice Department sued anyway, and the judge allowed it.

Let's start our coverage with NPR justice correspondent Carrie Johnson. Carrie, good morning.

CARRIE JOHNSON, BYLINE: Good morning, Steve.

INSKEEP: So I've been reading this judge's ruling. He uses the phrase flagrantly unconstitutional three different times. What is the reasoning?

JOHNSON: Some strong language here from Judge Robert Pitman - he said Texas concocted what he called an unprecedented scheme to block most abortions in the country's second-largest state. The judge said the state drafted the law intentionally to make it hard for federal courts to review any of these legal challenges. And he found the Justice Department did have the right to sue because some federal employees could be exposed to liability under the Texas law and because the federal government was fighting to vindicate people's fundamental constitutional rights. Judge Pitman went so far as to say, this court will not sanction one more day of this offensive deprivation of such an important right. And his preliminary injunction means that he says no civil lawsuits can be filed, accepted or ruled on by state court clerks or judges while litigation in this case continues.

INSKEEP: Wow. The court clerks can't even receive a lawsuit, which seems important because civil lawsuits by random people was supposed to be the enforcement mechanism here.

JOHNSON: Yeah, that's exactly what Texas did to get around judicial review, the judge says. You mentioned earlier this law bans almost all abortions in the state after about six weeks of pregnancy. There's no exception for rape or incest. And six weeks is a time when many people don't know they're pregnant. The Texas law actually allows private citizens to bring civil lawsuits against anyone who helps a woman getting an abortion. That could even be, like, an Uber driver. And these plaintiffs could collect at least $10,000 in damages if they win in court. Of course, the Justice Department says the Texas law is unconstitutional and violates decades of precedent at the Supreme Court.

INSKEEP: Which is now what the federal judge has said in this emergency order - but what happened during the 36 days that the law was in effect?

JOHNSON: Well, abortion providers say it's put people in some terrible and desperate situations. They've had to turn patients away crying. People from Texas have been frantically trying to get appointments for abortions in other states like Oklahoma, Kansas, Colorado, Nevada. The judge cited evidence that as many as half or three-quarters of appointments in some of those states have been filled by people from Texas. But some Texans can't travel, Steve. So these providers say they're in an impossible situation.

INSKEEP: Although, now the judge has set aside the law for the moment - paused the law. Does this mean that people in Texas who want or need abortions after six weeks of pregnancy can get them now?

JOHNSON: Well, that's not clear right now, and here's why. Almost immediately, the Texas attorney general filed a notice of appeal. They're likely to ask the 5th Circuit Court of Appeals, a very conservative court, to reverse this ruling. And abortions might not instantly resume in the state because doctors fear they still could be sued unless this matter is permanently resolved. The group called Whole Woman's Health, which operates about four clinics in Texas, says it's working with its staff and doctors to resume providing the full scope of abortion care as soon as possible. But they tweeted, there's a long road ahead. And abortion rights opponents also see more ahead. This group Texas Right to Life said they're confident the law is going to ultimately withstand legal challenge.

INSKEEP: Well, let's remember here - multiple levels of federal courts - this is a district court. You mentioned an appeal to the 5th Circuit Court above that. How likely is it the case would go all the way up to the Supreme Court?

JOHNSON: It's pretty likely this case will wind up at the Supreme Court. And even if it doesn't, the court is already going to review a different law in Mississippi that seeks to ban abortions after 15 weeks. That's coming in December.

INSKEEP: Carrie, thanks so much.

JOHNSON: Thank you.

INSKEEP: That's NPR justice correspondent Carrie Johnson. Transcript provided by NPR, Copyright NPR.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Carrie Johnson is a justice correspondent for the Washington Desk.

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