Texas' restrictive abortion law temporarily restored by federal appeals court

Madlin Mekelburg
Austin American-Statesman

A federal appeals court late Friday allowed a Texas law banning most abortions to be enforced, suspending a lower court ruling from two days before that had blocked the measure.

Attorneys for Texas filed an appeal with the 5th U.S. Circuit Court of Appeals earlier Friday, asking the court to take action "as soon as possible" to ensure that the state is not "held in contempt for the actions of third parties it cannot and does not control."

U.S. District Judge Robert Pitman issued a preliminary injunction Wednesday that blocked the law, ruling that it was a clear violation of the constitutional right to an abortion as established by the U.S. Supreme Court.

Friday's action by the 5th Circuit is temporary and stands while the court considers whether to grant a longer stay. 

The three-judge appeals court panel gave no reasons for its action in a one-page order. Two panel members were Republican appointees — Judges Catharina Haynes, nominated by President George W. Bush, and James Ho, named by President Donald Trump. The third, Judge Carl Stewart, was nominated by President Bill Clinton.

While defending the law in court proceedings, the Texas attorney general's office has argued that any court action intended to block the state from enforcing Senate Bill 8 is meaningless because the state does not have the authority to enforce the law.

"SB 8 is enforced exclusively through private civil lawsuits," Friday's appeal says. "The prohibition on post-heartbeat abortions cannot be enforced by any state or local government official."

More:Abortions after 6 weeks of pregnancy resume in Texas, after judge blocks new law

Women's March ATX rally at the Texas State Capitol, Saturday, Oct., 2, 2021. The march was a response to controversial legislation recently passed by Texas lawmakers banning abortions after six weeks of pregnancy.

As written, the law that took effect Sept. 1 prohibits abortions after about six weeks of pregnancy and allows any private individual to sue abortion providers or those who aid or abet an illegal abortion. Successful litigants would collect at least $10,000 plus legal fees.

The law prohibits government officials from enforcing the ban, a strategy Pitman described as leading to an "offensive deprivation" of a constitutional right.

"A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established," Pitman wrote. "Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, (Texas) contrived an unprecedented and transparent statutory scheme to do just that."

Wednesday's preliminary injunction prevented judges or court clerks in the state from accepting lawsuits sanctioned by SB 8 and required the state to publish a copy of the injunction on its court websites "with a visible, easy-to-understand instruction to the public that SB 8 lawsuits will not be accepted by Texas courts."

More:Federal judge blocks Texas law banning most abortions

In Friday's appeal, lawyers for Texas argued that by extending the injunction to state judges, Pitman's order violates past court precedent. They wrote that the 5th Circuit and "the Supreme Court have repeatedly forbidden federal district judges from enjoining state judges."

Two lawsuits have been filed under the law and made public, both from out-of-state litigants who sued Dr. Alan Braid of San Antonio. Braid said in an opinion piece in The Washington Post that he had performed an abortion after six weeks of pregnancy.

After Pitman's ruling, at least one abortion clinic in Texas said it had resumed offering procedures otherwise prohibited under the law. Others have shared few details about their plans, citing concerns that, under the law, providers could be liable for procedures performed while under a court order blocking enforcement.

SB 8 bans abortions after fetal or embryonic cardiac activity, which generally begins in the sixth week of pregnancy, can be detected.

Abortion opponents praised the appeals court for allowing SB 8 to continue.

"This is an answered prayer," Texas Right to Life spokeswoman Kimberlyn Schwartz said. "The Texas Heartbeat Act saves approximately 100 lives from abortion per day, and we're grateful that this tremendous impact will continue."

Abortion rights advocates were disappointed and angry.

"By once again allowing this horrific ban on abortion to stand, the 5th Circuit Court of Appeals is depriving millions of people of their ability to access abortion care in Texas," said Adrienne Kimmell, acting president of NARAL Pro-Choice America.

The appeals court panel gave the U.S. Department of Justice, which had requested the injunction granted by Pitman, until 5 p.m. Tuesday to respond to Texas' appeal.

Nancy Northup, president and CEO of the Center for Reproductive Rights, urged the Biden administration to act quickly.

“The Supreme Court needs to step in and stop this madness. It’s unconscionable that the 5th Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas," she said.