In a prior case challenging the law, the 5th Circuit said state judges were not appropriate defendants.
by Jacob Sullum
Reason.com
The U.S. Court of Appeals for the 5th Circuit said last month that state judges are not proper defendants in lawsuits challenging the constitutionality of S.B. 8, the Texas abortion ban. Yet the preliminary injunction that Robert Pitman, a federal judge in Austin, issued yesterday bars state courts from hearing the civil actions authorized by that law, which bans abortions after fetal cardiac activity can be detected. The crucial difference, Pitman says, is that the earlier case involved private plaintiffs, while his injunction was a response to a lawsuit brought by the federal government.
The 5th Circuit’s ruling dealt with Whole Woman’s Health v. Jackson, a lawsuit in which Texas abortion providers and abortion rights supporters challenged S.B. 8, which prohibits the vast majority of abortions but leaves enforcement to private litigants.