Texas Abortion Law Back In Effect As Appeals Court Blocks Injunction - Forbes

Topline

Texas’ near-total ban on abortion has been at least temporarily reinstated after a conservative federal appeals court ruled in favor of the state Friday, blocking a lower court ruling that barred the state from enforcing the law while litigation over its legality plays out.

Key Facts

The 5th Circuit Court of Appeals issued a temporary stay that puts Texas’ Senate Bill 8 (SB 8) back in effect until the appeals court is able to consider the case and issue a more lasting ruling.

U.S. District Judge Robert Pitman temporarily struck down SB 8 Wednesday while the legal challenge against it proceeds through the courts, siding with the U.S. Department of Justice and calling the law an “offensive deprivation” of the “important” right to an abortion.

The 5th Circuit is widely considered among the most conservative federal courts in the country and was expected to block Pitman’s decision, after the appeals court previously halted a different challenge against the abortion law.

Abortion clinic Whole Woman’s Health said Thursday it had performed abortions Thursday in light of Pitman’s ruling, before the appeals court came out with its decision.

With the 5th Circuit reinstating the law, it puts the doctors that provided those abortions at risk of litigation, as SB 8 allows private citizens to sue anyone who “aids and abets” an abortion—including when the law is blocked by a court ruling if it’s later reinstated.

What To Watch For

The 5th Circuit directed the Justice Department to respond to Texas’ motion for a stay by Tuesday. Once it responds, the court could issue a lengthier emergency stay of Pitman’s ruling that would keep SB 8 in effect while the litigation plays out. Amy Hagstrom Miller, the head of Whole Woman’s Health, told the Washington Post the abortion clinic has already contacted legal representation in case doctors are sued retroactively for performing abortions while the law wasn’t in effect. “We do expect the state to appeal, and when they do we will also be ready,” she said before the 5th Circuit’s ruling was issued. The appeals court’s ruling applies temporarily as the litigation continues to play out, meaning future court rulings could still change whether or not the law remains in effect. The Biden administration could also appeal the ruling to the U.S. Supreme Court—which is already considering a separate SB 8 challenge—though that conservative-leaning court has already ruled once in favor of the Texas law.

Chief Critic

“The Supreme Court needs to step in and stop this madness,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement Friday about the ruling. “It’s unconscionable that the 5th Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.”

Key Background

SB 8 bans nearly all surgical abortions in Texas after approximately six weeks into a pregnancy, blocking an estimated 85% of the state’s abortions. While similar abortion bans have been swiftly struck down in court, SB 8 was crafted to evade judicial scrutiny through its provision empowering private citizens to enforce the law, since that makes it harder to name defendants that could actually be blocked from enforcing it. Pitman got around those difficulties in his injunction by blocking courts from accepting lawsuits and saying the private citizens who bring them are “state actors” and thus covered by the ruling, which anti-abortion group Texas Right to Life admitted in a statement “would likely stop” the law from being enforced. The Biden administration sued Texas over the policy after the Supreme Court rejected a separate legal challenge from abortion providers, arguing the law was unconstitutional and violated the federal government’s sovereignty. Only one doctor has so far been sued under SB 8 after he said in a Washington Post op-ed he had violated the law, and those lawsuits are now pending.