The Corner

Law & the Courts

Don’t Go Up in a Balloon over the Minor Texas Abortion Case Ruling

(Cotorreando/Getty Images)

There seems to be significant misunderstanding about an order issued by federal district judge Robert Pitman yesterday in the Justice Department’s lawsuit against Texas in connection with the Fetal Heartbeat Law (a.k.a “abortion ban”).

To be clear, Judge Pitman did not, as some are suggesting, rule against the merits of the Justice Department’s complaint (which relies on a dubious interpretation of the 14th Amendment, as Ed Whelan explains here).

Here’s what happened. The Biden Justice Department’s suit seeks a preliminary injunction which would suspend the law until the court can decide the merits of the case. That calls for a preliminary injunction hearing, at which the DOJ would have to show (among other things) a likelihood of success when the case is fully submitted.

Not content with that, so alarmed is the Biden administration by “the near-unavailability of constitutionally permitted abortions in Texas since [the law] went into effect,” that the DOJ decided to seek “emergency relief” — a temporary restraining order (TRO), which would suspend the law immediately, based on little more than the federal government’s filing of its lawsuit.

Texas does not believe there is any emergency, but agreed to negotiate an expedited schedule on the motion for a TRO or preliminary injunction. Based on these negotiations, Judge Pitman issued a scheduling order: Texas is to submit its brief by September 29, and the DOJ to respond by October 1, before the hearing the court has scheduled for that day. By court standards, that is fast.

Still, the DOJ was not satisfied. It submitted an “emergency motion” insisting that the court should issue a TRO. It proposed that Texas should file a brief by noon on Monday (September 20), and that the court should then hold a TRO hearing the following day. By the DOJ’s lights, it would win the TRO hearing, and then — with the law suspended — the court could set a briefing schedule for the preliminary injunction. (And, of course, no need to do that on an expedited basis if the court has issued a TRO suspending the law — take all the time you need!)

It was this latter emergency motion that Judge Pitman denied. All this denial means is that he is sticking with his original expedited schedule. His short order from yesterday opines that “this case presents complex, important questions of law that merit a full opportunity for the parties to present their positions to the Court.” Pitman expressed no view on whether there should be an injunction against the operation of the law, nor did he in any way signal how he may come out on the merits.

Most observers believe Pitman, an Obama appointee, will be inclined to rule in the DOJ’s favor. I still think so. He was right not to allow the Justice Department to bully him into picking up the pace. But yesterday’s order was just on a minor matter of timing and the efficiency of conducting a proceeding that, while prompt, gives each side adequate time to brief significant issues. It is not a major victory for Texas or a sign that the court will rule against the DOJ on the important questions.

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