This Footnote in the Texas Abortion Ban Ruling Will Drive Conservatives Batty

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This Footnote in the Texas Abortion Ban Ruling Will Drive Conservatives Batty

Caroline Reilly

"The Court recognizes that not all pregnant people identify as women."

On Wednesday evening, a federal court issued a preliminary injunction stopping the enforcement of Texas’ six-week abortion ban.

In non-legalese, it means that for Texans, abortion is back, baby—at least in early pregnancy (for some). Access in the state is, of course, still fraught with other restrictions.

SB 8, the nation’s most restrictive abortion ban, has been in effect for over a month. It not only banned all abortions as soon as cardiac activity is detected, which can be as early as six weeks after a person’s last menstrual period, it also created a bounty hunting system that deputized any ole Texan to sue abortion providers or people deemed to be “aiding and abetting” (helping) someone getting an abortion. The Supreme Court then basically put its stamp of approval on the law.

Wednesday’s 113-page decision came from Judge Robert Pitman of the U.S. District Court for Western Texas. Pitman temporarily blocked enforcement of SB 8, restoring abortion access to countless Texans across the state.

Roe has collapsed and Texas is in chaos.

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In issuing the decision, Pitman used clear and scientifically accurate language to explain why the law should be stopped and who it would affect.

Seeing SB 8 for exactly what it is, Pitman writes:

There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers … to “find another way” around resistance to enforcement of laws criminalizing abortion. … And the State continues to defend S.B. 8, disclaiming responsibility by pointing the finger at the private individuals who the State deputized as enforcers. The State’s disavowal of S.B.8 is unconvincing.

What Pitman is saying here is: Nice try, Texas, but an abortion ban is an abortion ban. Thanks for playing. But he takes his analysis a step further, committing to the record of the court an abundance of information about abortion accessibility and its status as a common and necessary medical procedure, saying:

The Court finds that abortion is a safe and common medical procedure, based on the credible declarations of abortion providers founded on their education and experience.

Pitman also includes information about the reality of a six-week abortion ban—that it applies before many people even know they’re pregnant—as well as context about who these laws impact: The majority of abortion patients, he notes, are parents already, or plan to be parents in the future.

As Rewire News Group SVP and Executive Editor Jessica Mason Pieklo wrote in this week’s edition of The Fallout (RNG’s newsletter tracking the collapse of Roe v. Wade, which you can sign up for here), this is about more than just language. By including these statements in his decision, Judge Pitman is including them as a factual finding of the court, which basically means these are things that the court has researched and concluded to be true.

In fact, it calls back to the majority opinion in 2016’s Whole Woman’s Health v. Hellerstedt in which Justice Stephen Breyer ruled that abortion restrictions need to be grounded in actual fact and reserach instead of just anti-abortion conjecture. “Do the work,” was the TLDR of that opinion, and that’s what Judge Pitman did.

One piece of language nearly absent from Judge Pitman’s decision? The word woman—or any gendered language, for that matter. In fact, the second footnote in the entire decision reads:

The Court recognizes that not all pregnant people identify as women.

And while folks in the reproductive justice space have long known this to be true, it’s radical and groundbreaking to enter it into a judicial decision, as it sets a progressive and long overdue precedent to remove gendered language from abortion jurisprudence.

The unfortunate news is that Pitman’s injunction is likely not long for this world. The case is headed back to the Fifth Circuit Court of Appeals, which already allowed the law to go into effect once—and then it will eventually head, again, to the Supreme Court.

But just as bad decisions have ripple effects that create precedent in their own way, so do good decisions. Judge Pitman has left the state of abortion access in Texas better than he found it.