Texas officially appealed two days after a federal judge temporarily blocked the new law.
The 5th U.S. Circuit Court of Appeals late Friday allowed Texas’ near-total abortion ban to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued.
The 5th Circuit restored enforcement of the law hours after the state requested the court step into a lawsuit that the U.S. Justice Department filed against the state. Texas attorneys argued that U.S. District Judge Robert Pitman’s order to temporarily block enforcement of the state’s abortion restrictions — the strictest in the nation — “violates the separation of powers at every turn.”
Texas Attorney General Ken Paxton applauded the appellate court’s decision.
“Great news tonight, The Fifth Circuit has granted an administrative stay on #SB8,” Paxton tweeted. “I will fight federal overreach at every turn.”
Senate Bill 8 bans abortions as early as six weeks into a pregnancy, before many people know they are pregnant. The law has mostly flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system against people who perform or assist someone in getting an abortion. The law lays out a penalty of at least $10,000 for people or groups that are successfully sued.
The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.
A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions would now be vulnerable to lawsuits after Friday’s order.
“Frankly, we knew this would happen and that is why we provided abortions beyond six weeks the moment it was a possibility. Our patients deserve better. Texans deserve better,” Whole Woman’s Health tweeted shortly after the ruling.
Late Wednesday, Pitman — a 2014 appointee of former President Barack Obama — forbade state court judges and court clerks from accepting lawsuits that the statute allows as part of a lawsuit brought by the U.S. Department of Justice. Texas quickly appealed that ruling.
“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” Texas attorneys wrote in Friday’s request.
The law went into effect Sept. 1, forcing all major abortion clinics to stop offering abortions after an embryo’s cardiac activity is detected. Some providers stopped offering the procedure altogether out of fear of litigation.
The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. Pitman is also overseeing that case, which was brought on by abortion providers.
Photo: Protesters of Senate Bill 8 stood at the front steps of the Texas Capitol during a march last weekend. Credit: Michael Gonzalez/The Texas Tribune