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5th Circuit temporarily reinstates controversial Texas abortion ban

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5th Circuit temporarily reinstates controversial Texas abortion ban

  • Abortion protestors at the Texas Capitol Rotunda.
    Ann Harkness|CC BY 2.0Abortion protestors at the Texas Capitol Rotunda.

Texas’ controversial abortion law, the Texas Heartbeat Act, has been lifted from a temporary restraining order issued by a federal judge earlier this week. The Fifth Circuit Court of Appeals struck down the order blocking enforcement of the law Friday evening after the state requested the appeals court step in. 

The federal appeals court's decision to restore the controversial Texas law comes two days after U.S. District Judge Robert Pitman ruled that the law unconstitutionally restricts a person’s access to an abortion, in a case filed by the Biden administration against the state of Texas.

In their unanimous decision, the judges ruled in favor of the state to suspend Pitman’s order and allow for enforcement of the law to continue. The Department of Justice has until Oct. 12 to respond to the ruling, which they likely will appeal to the U.S. Supreme Court.

Texas Attorney General Ken Paxton took to Twitter, voicing his praise of the Circuit Court’s decision.

“Great news tonight, The Fifth Circuit has granted an administrative stay on #SB8. I will fight federal overreach at every turn,” wrote Paxton.

Abortion rights groups have responded with disappointment but were not surprised by the conservative court’s decision. President and CEO of the Center for Reproductive Rights Nancy Northup said in a statement, “ It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.” 

The law at the center of the dispute is one of the strictest anti-abortion laws ever enacted. The Texas Heartbeat Act, also known as Senate Bill 8, bans abortion once a fetal heartbeat is detected, at approximately six weeks of pregnancy. This provision goes against Supreme Court precedent that a person is afforded an abortion until the fetus is viable outside of the womb.

Because six weeks of gestation is before many women are aware they are pregnant, women’s health advocates have argued that the law amounts to a total ban on abortion in the state.

While SB 8 is the strictest law restricting access to an abortion, it is also unique in its method of enforcement. In order to evade judicial review, Texas GOP lawmakers gave private citizens the means to enforce the law by providing a civil cause of action in which people in or out of state may file lawsuits against anyone who “aids and abets” an abortion procedure.

This means that abortion clinics that conduct an abortion, family members who provide financial support to someone seeking an abortion, or a person who drove someone to a clinic may be sued. Plaintiffs in such cases could be awarded $10,000 and attorneys fees if their case is successful.

Abortion rights groups have described the law’s method of enforcement as putting a bounty on the heads of abortion providers and families who are seeking to exercise their rights. As of now, two lawsuits have been filed against an abortion care provider in San Antonio. The suits were filed by two men who are not Texas residents. A state district court judge has blocked other lawsuits against Planned Parenthood clinics in the state from proceeding. The pro-life group Texas Right to Life filed suit once the law took effect.

Since the law took effect on Sept. 1, abortion providers in Texas have stopped offering the procedure. This has driven many Texans to travel out of state to obtain an abortion. Clinics in New Mexico, Oklahoma and Louisiana have reported seeing almost all out-of-state patients over the past month. 

Pitman wrote that the state crafted a “flagrantly unconstitutional” law and that “the State contrived an unprecedented and transparent statutory scheme to” enforce it.

Some clinics in the state did announce they would continue offering abortions after Judge Pitman ordered the law be blocked. Now, with the law being restored, any clinic that provided an abortion may be retroactively sued under SB 8. 

On the same day SB 8 took effect, the U.S. Supreme Court denied an emergency motion to block the law while cases in lower courts play out. This drew widespread criticism of the high court and its use of ruling on emergency orders, often referred to as the shadow docket. Justices left open the opportunity for them to consider the constitutionality of the Texas law once a case has worked through the traditional channels, much like the current case filed by the Justice Department.

The Supreme Court began its term this week. In December, the court will be taking up a Mississippi law that bans abortion within 15 weeks of gestation. With a solidified conservative majority of the court, abortion rights groups fear that case could set the stage for Roe v. Wade, the 1973 case that established a person’s constitutional right to an abortion, to be overturned.

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