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Last week, a federal judge ordered that Texas suspend their newly implemented and extremely restrictive SB-8 abortion law, calling the ban an “offensive deprivation” of a constitutional right and issuing a temporary restraining order to halt enforcement. The bill had been signed into law by Texas’ Republican Gov. Greg Abbott in May and went into effect in September, and it prohibits abortions once cardiac activity in the fetus is detected — which is usually around six weeks — before some women even know they are pregnant.
US District Judge Robert Pitman issued his 113-page opinion last Wednesday, that directly challenged the motivations of state lawmakers in Texas by condemning Republican lawmakers for having “contrived an unprecedented and transparent statutory scheme.” The Texas law allows private citizens to enforce the near-total abortion ban in Texas by allowing any US citizen to instigate a legal challenge and collect $10,000 in damages if they bring successful lawsuits against abortion providers and/or women who violate the law.
By Friday, a panel of three judges on the US Court of Appeals for the Fifth Circuit had reinstated the Texas law by issuing a temporary stay that halted Judge Pitman’s temporary injunction on SB-8 only two days earlier. The scant two-page ruling upheld the law by granting the stay while the Court considers the emergency motion brought by the State of Texas. The bottom line: by Friday of last week, most abortion services in the state of Texas were illegal again.
At least six clinics in Texas had resumed providing abortion services following the ruling by Pitman, but most of the state’s roughly two dozen clinics have decided to wait until the Court makes their final determination. Although this latest stay has effectively blocked Wednesday’s district court injunction, it’s still undecided whether it will remain in place in the long term and there could be retroactive penalties applied if the law, and the various restrictions to providers and patients, is ultimately upheld.
The Department of Justice filed a response to this latest decision by the 5th Circuit yesterday. In it, the DOJ has asked the Court to reverse the restraining order issued against Judge Pitman’s ruling that reversed Texas' abortion ban. The Justice Department is also arguing that a longer stay that halts enforcement of SB-8 should be implemented because Texas officials will not ultimately succeed on the merits in their appeal.
While the law clearly favors the Department of Justice and the precedent set in Roe v. Wade, the outcome of this appeal does not look good for abortion providers and those who may need their services. The 5th Circuit has jurisdiction over Texas, Louisiana, and Mississippi and has been labeled the nation's "most dangerous" court because it gives "a helping hand for litigants whose causes they favor."
Stephen Vladeck, a law professor at the University of Texas, says the 5th Circuit is "as conservative a federal appeals court as any of us have seen in our lifetimes." One member of the three-judge panel that made the recent decision to halt the restraining order against SB-8 was James Ho, a Trump appointee who made a point to publicly bemoan the "moral tragedy of abortion" in a 2018 opinion.
If the 5th Circuit allows the restrictive Texas abortion law to remain in effect with its next ruling, the last stop in this particular legal saga will be the United States Supreme Court, only if the Supreme Court agrees to hear the case. The Court declined to hear this case when it was petitioned at the beginning of September, issuing just a one-paragraph statement that many saw as a forboding tell about the impending future for abortion rights in this country.
Last Monday, the US Supreme Court began a new term, and in December, the Court will hear arguments in Mississippi’s bid to overturn Roe v. Wade. The current political make-up of the majority of the Supreme Court also tends to mirror the ultra-conservative District Court for the 5th Circuit, a fact that has many abortion rights activists in fear over the future of well-established abortion rights for women across the country.
Last Monday, the Texas Supreme Court denied a request from Planned Parenthood to resume a previous lawsuit that the lower courts refused to hear, that challenges the state’s near-total abortion ban. This follows a recent decision by the US Supreme Court, which refused to hear the case on the constitutionality of the Texas law and ultimately allowed the Texas law to remain in effect. It is very likely that the 5th Circuit will allow the law to remain in effect. If and when this happens, and the US Supreme Court refuses to hear the case again, Texas’ near abortion ban will be allowed to stand.
For more background on Judge Pitman’s ruling that halted SB-8 in Texas last Wednesday, read my SHERO article: Federal Judge Hints to Congress to Codify Roe.
Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at firstname.lastname@example.org or follow her on Twitter @girlsreallyrule.
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