Texas Abortion Ban Temporarily Reinstated by Appeals Court
(Bloomberg) -- A Texas ban on most abortions is back in force after a federal appeals court temporarily lifted a judge’s order blocking enforcement of the law.
A three-member panel of the New Orleans-based appeals court put a temporary injunction on hold and ordered the U.S. to respond by Oct. 12.
The Texas law, known as SB-8, prohibits abortions after about six weeks of pregnancy -- before many women know they’re pregnant -- and has no exceptions for rape or incest. The law was drafted to make it difficult to challenge in court by delegating enforcement to individuals, who can sue anyone who performs abortions or helps, even by simply driving a woman to an abortion clinic.
The case is being closely watched in other Republican-led states that view the law as a template for restricting abortions and evading federal legal challenges. Conservatives nationwide are racing to rein in the procedure while seeking to weaken or overturn the landmark Supreme Court ruling in Roe v. Wade, which guarantees access to it.
The Supreme Court has already signaled deference to the Texas law. The court stunned pro-choice activists and civil rights groups when it allowed the ban to take effect in a 5-4 decision in a different suit, brought by Texas abortion providers.
Civil rights advocates were quick to criticize the appeals court ruling.
“Today’s order means that the havoc that this law has created is allowed to restart,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “The devastating impacts of this ban will be just as bad this time around.”
But Texas Attorney General Ken Paxton welcomed the ruling and said on Twitter that he’ll continue to fight against what he called federal overreach.
U.S. District Judge Robert Pitman in Austin temporarily blocked enforcement of the law on Oct. 6 at the request of the Justice Department, saying outsourcing enforcement of it to bounty-hunting members of the public was “contrived” to get around a constitutional right.
Pitman wrote that “a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.”
“Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the state contrived an unprecedented and transparent statutory scheme to do just that,” wrote Pitman, an appointee of former President Barack Obama.
Texas appealed the ruling but the appeals court also put on hold the state’s request for an emergency preliminary injunction until its appeal is resolved. The panel granted an administrative stay of the lower court judge’s order while it considers Texas’s request.
The ruling was issued by Judge Carl Stewart, a nominee of former President Bill Clinton, Judge Catharina Haynes, who was nominated by George W. Bush, and Judge James Ho, a Donald Trump nominee.
The 5th Circuit appeals court is seen as a particularly hostile venue for abortion clinics, which routinely win protective orders from trial judges only to lose those protections on appeal. Six of the 14 active judges on the appeals court were appointed by former president Donald Trump. They joined several veteran judges who have often ruled against abortion providers in prior cases.
The Justice Department argued the law should be put on hold due to the severe impact it is already having on women, forcing many to drive hundreds or thousands of miles to other states to seek reproductive care -- if they have the time and money to do so.
Democratic state attorneys general have criticized the Texas law as an attempt to overturn Roe v. Wade.
“It’s hard to fathom any court’s decision to temporarily allow a blatantly unconstitutional law to continue against the context of devastating harm to so many,” Massachusetts Attorney General Maura Healey said in a text message after the appeals court ruled. “Nevertheless, we are prepared and committed to fighting this affront to personal dignity, liberty and equality as we move forward in the courts.”
©2021 Bloomberg L.P.