Texas Abortion Law Back In Effect As Appeals Court Blocks Injunction

A conservative federal appeals court ruled Friday in favor of Texas, preventing a lower court ruling which would have barred the state's ability to enforce the law while it is being litigated over its legality.

Pro-abortion rights demonstrators march outside the Texas State Capitol, Wednesday, September 1, 2021, in... [+] Austin. Texas. The Washington Post via Getty Images

The Key Facts

The temporary stay by the 5th Circuit Court of Appeals allows Texas Senate Bill 8 (SB 8) to remain in effect until an appeals court can consider the case and issue a final ruling. U.S. District Judge Robert Pitman temporarily revoked SB 8 Wednesday as the legal challenge against the law continues through the courts. Pitman sided with the U.S. Department of Justice, calling the law an offensive deprivation of an important right to abortion. Pitman's decision was likely to be blocked by the 5th Circuit, which is widely considered one of the most conservative federal courts in America. This comes after an earlier challenge to the abortion law had been stopped by the appeals court. Whole Womans Health, an abortion clinic, said that it performed abortions on Thursday after Pitman's ruling. This was before the appeals court made its decision. The 5th Circuit has reinstated the law. This puts at risk the doctors who performed those abortions. SB 8 allows private citizens, including individuals, to sue anyone who assists or abets abortions.

What to Watch

The 5th Circuit ordered the Justice Department to reply to Texas's motion for a stay of proceedings by Tuesday. The court could issue an extended emergency stay of Pitmans' ruling if it does not respond. This would allow SB 8 to continue in force while the litigation continues. Amy Hagstrom Miller of Whole Womans Health told the Washington Post that the abortion clinic had already sought legal representation in the event that doctors are sued retroactively because they performed abortions when the law was not in force. Before the 5th Circuits ruling, she stated that we expect the state will appeal and that when they do, we will also be prepared. As the litigation continues, the appeals court ruling is only temporary. Future court rulings may change the law regardless of whether it remains in force. Biden's administration could appeal to the U.S. Supreme Court, which is currently considering a separate SB 8 challenge. However, that conservative-leaning court ruled once in Texas' favor.

Chief Critic

Nancy Northup, the president and CEO of Center for Reproductive Rights, stated Friday that the Supreme Court must intervene to stop this madness. It is unconscionable that a well-reasoned decision allowing constitutionally protected services to be returned in Texas was halted by the 5th Circuit.

Important Background

SB 8 prohibits almost all surgical abortions in Texas within six weeks of a woman's pregnancy. This blocks an estimated 85% state abortions. Similar abortion bans were swiftly overturned in court. However, SB 8 was designed to avoid judicial scrutiny. It empowers private citizens to enforce the law. This makes it difficult to identify defendants who could be prevented from enforcing it. Pitman evaded these difficulties by preventing courts from accepting lawsuits. He also claimed that the private citizens who bring the cases are state actors, and therefore covered by the ruling. Texas Right to Life, an anti-abortion group, admitted in a statement that it would likely prevent the law being enforced. After the Supreme Court rejected an additional legal challenge from abortion providers and deemed the law unconstitutional, the Biden administration sued Texas. After he stated in a Washington Post opinion that he had violated SB 8, only one doctor has been sued under SB 8. Those lawsuits are currently pending.

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