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Analysis: Judge's ruling on Texas abortion ban a warning to copycats, for now

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The clinic doctor at Houston Women's Reproductive Services discusses ultrasound results with a patient at an abortion clinic in Texas, U.S, October 1, 2021. REUTERS/Evelyn Hockstein/File Photo

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WASHINGTON, Oct 7 (Reuters) - A U.S. federal judge's decision blocking Texas' near-total abortion ban is a warning to other states considering similar measures, though it too could be overturned by a higher court in the coming weeks.

Texas' law banning the procedure from six weeks, a point when many women may not even be aware they are pregnant, took effect last month after the U.S. Supreme Court rejected a request to halt it from taking effect, in a late-night decision that took no stance on the law's constitutionality.

Rather, the Supreme Court allowed it to stand due to an unusual mechanism that leaves it up to private citizens to enforce the ban through civil lawsuits against anyone who "aids or abets" a woman obtaining an abortion - and provides a $10,000 bounty for those who do.

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U.S. District Judge Robert Pitman in Austin late Wednesday blasted the law as a "flagrant violation" of Roe v. Wade, the landmark 1973 decision that recognized a constitutional right to abortion.

Pitman, who was appointed by Democratic President Barack Obama, said he was particularly troubled by how the law named S.B. 8 outsources enforcement to private citizens, calling this an "unprecedented and aggressive scheme" to limit legal challenges.

That, legal experts said, was a clear warning to at least 12 other states contemplating similar action, including Florida, South Carolina and South Dakota, that there is now a route for the U.S. Department of Justice to challenge the structure of the ban.

"We are still at the early stages, and a lot depends on the court and judge assigned to the case," said David Noll, a professor at Rutgers Law School. "But this is a first cut at the what the DOJ can do in response to this sort of law."

Since the law went into effect, the four Whole Woman's Health abortion clinics across Texas have seen patient visits plummet, some staff quit, and recruitment efforts falter. After the decision it said it was making plans to resume abortions up to 18 weeks "as soon as possible."

DESIGNED TO AVOID CHALLENGE

By deputizing enforcement to private citizens, the law deliberately tried to insulate Texas from legal challenges filed in the federal court system, Pitman said.

"Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process," the judge wrote. "It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates."

Texas Attorney General Ken Paxton, a Republican defending the law in court, said in a statement that his office disagreed with Pitman's decision and was appealing to the U.S. Fifth Circuit Court of Appeals.

"The sanctity of human life is, and will always be, a top priority for me," Paxton said.

At a recent court hearing, Paxton's office argued the law was not designed to evade judicial review, and that offering incentives for private lawsuits is neither unusual nor unlawful.

For now, Pitman's ruling is "a warning" to anti-abortion lawmakers who want to mimic the Texas approach to enforcing an abortion ban, said Jessica Levinson, a professor at Loyola Law School in Los Angeles.

Florida Republicans have already introduced a copycat bill with this mechanism, and lawmakers in Georgia, Arizona and West Virginia have said they want to follow Texas' private enforcement approach.

But Levinson cautioned that Pitman's ruling could be reversed, either by the Fifth Circuit or eventually the Supreme Court.

"I hope I'm wrong but I just don't see a long lifespan for Judge Pitman's ruling," said Levinson, who called the Fifth Circuit the most conservative of the intermediate federal appeals courts one step below the Supreme Court.

The Supreme Court, which has a 6-3 conservative majority, on Dec. 1 hears arguments in a separate case involving a Mississippi law that bans abortions after 15 weeks of pregnancy. Mississippi has asked the high court to overturn Roe v. Wade.

John Seago, the legislative director for anti-abortion group Texas Right to Life, said the organization believes Judge Pitman will be reversed on appeal.

"We believe Senate Bill 8 is going to be upheld," Seago said, adding that a "typical route" for this sort of case is a federal judge in Western Texas ruling in favor of liberal advocates but then getting reversed on appeal.

Florida State Representative Anna Eskamani, a Democrat from Orlando, said Republican lawmakers in her state should take heed from Pitman's ruling and drop their plans for copying S.B. 8's approach to enforcement.

"This sends a really strong message to those politicians that this sort of scheme is unlawful," she said.

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Reporting by Jan Wolfe; Editing by Scott Malone and Rosalba O'Brien

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