Pro-Abortionists, Sad About the Texas Heartbeat Act? Blame Judge Pitman

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Starting today, elective abortions on babies with a detectable heartbeat are enforceably banned in Texas—not that the abortion industry didn’t attempt to stop this date from transpiring. They did, firing a flurry of farcical, slapdash lawsuits that ignore basic elementary legal principles. None of these lawsuits have stopped the act from going into effect and the abortion industry has directed incandescent criticism towards the reliably conservative United States Court of Appeals for the Fifth Circuit. But the true blame lies with Judge Robert Pitman, the sympathetic jurist who tried to circumvent the legal process and bequeath the abortion industry a cheap and hasty victory.

The Texas Heartbeat Act is a monumental victory for the Pro-Life movement, which has thus far been powerless to enforce any abortion restriction this strong. Other states have passed laws that are nearly identical in substance, but lawsuits from an abortion industry hungry to protect their murder-for-hire enterprise have hamstrung each of those laws. 

Typically, before an abortion ban goes into effect, the abortion industry sues state actors to block enforcement of the law. These lawsuits—which are always anticipated, like the sun’s rising each morning—have been universally successful when targeting a heartbeat law by suing state actors. However, this is where the Texas Heartbeat Act diverges from sister statutes from around the country: State actors don’t enforce the law, so the abortion industry must find people elsewhere to sue.

This idiosyncratic formulation is not just a random novelty; the Texas Heartbeat Act is structured without state enforcement precisely to frustrate the abortion industry, which adores the decorative insides of a courtroom. Executive agencies, licensing boards, and state and district attorneys have nothing to do with this law and indeed possess no enforcement power. The only people who can enforce the Texas Heartbeat Act are private citizens, who may sue someone who violates this law. Given this, the abortion industry can’t exactly sue random or theorized, unascertained persons.

Of course, that didn’t stop the abortion industry from trying—they always sue. So, they filed a (first) lawsuit against some common characters—the attorney general, the commissioner of the Health and Human Services Commission, the executive directors of professional licensing boards—and some fresh faces, like Mark Lee Dickson of East Texas Right to Life. However, naming these parties as plaintiffs is plainly preposterous. The named state actors have categorically nothing to do with the law. Mark Dickson could have something to do with the law, but that is merely conjecture. He is named because the abortion industry needed a scapegoat. 

For a lawsuit to even proceed to fact-finding and a review of the merits, the court must first consider standing. Is there an active legal dispute between the parties or is the dispute merely imaginary or hypothetical? No one can sue a random person out of pleasure, malice, or ignorance. This legal doctrine, called the case and controversy requirement, ensures a court doesn’t waste time on theoretical questions. Courts exist not to issue pronouncements on contemporary legal controversies but to resolve real disputes between parties. But before a court can even resolve a dispute, the dispute must first exist.

This is where Judge Pitman enters the frame. After he dismissed all defendants other than Mark Dickson, Pitman chose to ignore standing and move straight toward the merits, expediting proceedings to presumably stop the Texas Heartbeat Act. Despite his frantic attempt, he can’t do that. Whether or not there is an active case or controversy between the abortion industry and Dickson is a contested question—if anything, there obviously isn’t such a case or controversy. Sure, the abortion industry might be despairing at the prospect of the Texas Heartbeat Act taking effect and they might really detest Dickson. But, again, that doesn’t feign a legal dispute. 

So, when Mark Dickson appealed Judge Pitman’s refusal to address standing, the Fifth Circuit only had one sensible option: to stay all proceedings on the merits until the standing question is resolved. The Supreme Court should let the Fifth’s ruling stand. Meanwhile, the Texas Heartbeat Act has taken effect despite Judge Pitman attempting to evade the critical jurisdictional questions still in play, like standing.

Cheap legal victories are frequent in an era of resistance judging. Because of venue shopping, the abortion industry often finds the exact judge they would like to oversee their case. However, cheap victories rarely endure in a fair and just system. What the Fifth Circuit did was fair and just. What Judge Pitman did was not. And as a result, the Texas Heartbeat Act is in full effect starting today!

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