Topline
The Texas near-total abortion ban will remain in place as the Justice Department's legal challenge to it continues. A conservative appeals court issued Thursday a stay that stops a lower court from injuncting the law.
Pro-abortion rights demonstrators march down Congress Avenue to protest outside of the Texas state... [+] capitol, May 29, 2021 in Austin. Getty Images
The Key Facts
The 5th Circuit Court of Appeals ruled 2-1 in favor of keeping the law in force. Texas won in a virtually unprecedented case because the Justice Department didn't have standing to sue. Texas cannot block Texas law without violating the separation of powers principles. This appeals court is widely considered to be one of the most conservative in America. It had previously reinstated Texas Senate Bill 8 (SB 8) into effect on Friday so that it could fully examine the case. The law was blocked by a district court judge while the Justice Department's challenge to it moves through the courts. A ruling stated that SB 8, which bans almost all abortions within six weeks and allows private citizens to sue anyone who aids or abets, is an offensive deprivation. Texas had argued that the law should be restored by the 5th Circuit, arguing that the appeals courts needed to protect the state's interest in preventing a single Texas district court from supervising all Texas courts. A ruling that stated that SB 8which bans almost all abortions after approximately six weeks and allows private citizens to sue anyone who aids and abets an abortionis an offensive deprivation of the right to an abortion.
Important Quote
The United States obtained an injunction against the adjudication in state courts of suits under a law it won't be subject to, against a State that can never enforce it, based upon real-world disputes that do not affect it.
What to Watch
The court ruling means that SB 8 will remain in effect while the DoJs challenge to them goes through the courts. However, the Biden administration may choose to appeal to the U.S. Supreme Court. In a case brought by providers of abortion, the conservative-leaning high courts has already ruled in favor SB 8 once. However, the majority felt it was too early to bring the lawsuit. Although the court didn't rule on constitutionality, it said that its ruling should not prevent future cases regarding the law.
What we don't know
The laws are now in effect and could lead to legal liability for many Texas abortion providers. After six weeks of the law being temporarily overturned, at least one major Texas abortion clinic resumed procedures. However, due to the 24-hour waiting period in Texas only a handful of abortions were performed. A provision in the law allows anyone who is sued under SB 8 to defend themselves by saying that the law was blocked when they facilitate an abortion. This means that private citizens can sue those providers.
Tangent
A coalition of 19 medical associations had sided in favor of the Biden administration and filed an amicus brief in court saying that SB 8 violates core principles governing medicine and endangers women of reproductive age.
Important Background
The law, SB 8, went into effect on September 1, and has been a source of controversy for the nation. It is the most restrictive abortion law to have come into effect in the United States since Roe v. Wade was ruled in 1973. After an unsuccessful attempt by abortion providers in September to block SB 8, the Biden administration sued Texas. They argued that the state had violated federal sovereignty by banning nearly all abortions. Because the law's enforcement is not a matter of government action, it makes it more difficult for lawsuits to succeed. The SB 8 provision that empowers private citizens to enforce the law and not government officials was created to make it more difficult to sue defendants who can be stopped from doing so. Texas attempted to use this defense in arguing the case before U.S. district Judge Robert Pitman. However, the judge ruled that Texas courts could not accept lawsuits filed pursuant to SB 8. This classifies any private citizen who sues under the law under the law as a State Actor. This tactic was a violation of binding precedent from both the appeals court (and the U.S. Supreme Court). Because of the possibility that they won't be overturned, the 5th Circuit's decision on SB 8 could have broad implications. Legislators in other states have indicated their intent to adopt laws similar to SB 8. In September, a Florida lawmaker was the first to present such legislation. A legislator from Arkansas stated that he would introduce a bill in the special session of Arkansas' state legislature which begins on October 25.
Continue reading
Texas Abortion Law Now in Effect, As Appeals Court Blocks Injunction
Texas' Abortion Law has been repealed. These are the reasons that this law may not last for long. (Forbes)
Biden Administration Sues Texas Over Abortion Ban (Forbes)
Texas Claim An Injunction Couldn't Be Enforced in Court Battle on Abortion Law (Forbes).
Temporarily, Texas Near-Total Ban on Abortions (Forbes) is Block by Federal Judge
