Forbes News

Texas Abortion Law To Remain In Effect As Appeals Court Blocks District Judge’s Injunction

Topline

Texas’ near-total ban on abortion will stay in effect as the Justice Department’s legal challenge against it plays out, after a conservative appeals court issued a stay Thursday that blocks a lower court injunction of the law.

Key Facts

The 5th Circuit Court of Appeals ruled 2-1 to keep the law in effect, saying Texas was likely to ultimately prevail in “virtually unprecedented suit” because the Justice Department did not have standing to sue and cannot block Texas’ law without violating separation of powers principles.

The appeals court, widely considered one of the most conservative in the country, had previously put Texas’ Senate Bill 8 (SB 8) back into effect on Friday until it could more fully consider the case.

A district court judge had blocked the law from being enforced on October 7 while the Justice Department’s challenge to it works its way through the courts, in a ruling that stated that SB 8—which bans nearly all abortions after approximately six weeks and lets private citizens sue anyone who “aids and abets” an abortion—is an “offensive deprivation” of the “important” right to an abortion.

Texas had argued to the 5th Circuit the law should be reinstated, saying the appeals court needed “to vindicate” the state’s “interest in preventing a single federal district court from superintending every Texas court”—an argument the appeals court agreed made its ruling “necessary.”

The 5th Circuit said the lower court’s injunction “grossly and irreparably interferes with Texas state-court operations” by blocking state lawsuits under SB 8, and said if SB 8 remained blocked, Texas would suffer “irreparable harm” because it “places state courts and their employees under imminent threat of contempt.”

The Justice Department had warned the appeals court of lasting consequences should the law be upheld despite it violating U.S. Supreme Court precedent, writing in a brief that if the law is deemed “permissible, no constitutional right is safe from state-sanctioned sabotage of this kind.”

Crucial Quote

“The United States has obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a State which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized,” the appeals court wrote, saying the lower court’s decision “violates the separation of powers at every turn.”

What To Watch For

The court’s ruling means SB 8 will stay in effect for the immediate future as the DoJ’s challenge to it makes its way through the courts, though the Biden administration could choose to appeal the ruling to the U.S. Supreme Court. The conservative-leaning high court has already ruled in favor SB 8 once in a lawsuit brought by abortion providers, but only because the majority believed it was too soon for the litigation to be brought. The court did not rule on the constitutionality of the law itself, however, and said its ruling shouldn’t stop other cases on the law from being brought in the future.

What We Don’t Know

How many abortion providers and others in Texas could now face legal liability because the law’s back in effect. At least one major abortion clinic in Texas resumed abortion procedures after six weeks when the law was briefly overturned, though the 19th reports only a few abortions were ultimately performed due to the state’s mandatory 24-hour waiting period. Thanks to a provision in the law that doesn’t let anyone sued under SB 8 defend themselves by saying the law was blocked at the time they facilitated an abortion, that means those providers can now be sued by any private citizen.

Tangent

A coalition of 19 medical organizations had sided with the Biden administration, filing an amicus brief in the appeals court saying SB 8 “violates the core principles governing the practice of medicine and endangers the lives and well-being of women of reproductive age.” Among those signing onto the brief were the American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American Academy of Nursing, National Association of Nurse Practitioners in Women’s Health and the American Psychiatric Association.

Key Background

SB 8 went into effect September 1 and has become a major source of national controversy, as the law marks the most restrictive abortion laws to take effect in the U.S. since Roe v. Wade was decided in 1973. The Biden administration sued Texas in early September after an attempt by abortion providers to block SB 8 failed, arguing the state had violated the federal government’s sovereignty by outlawing nearly all abortions. SB 8’s provision empowering private citizens and not government officials to enforce the law was crafted to make it harder for such lawsuits to succeed, because without the government taking action it’s more difficult to sue defendants that can actually be blocked from enforcing the law. Texas tried to use that defense when arguing the case before U.S. District Judge Robert Pitman, but the judge ruled that Texas courts couldn’t accept lawsuits filed under SB 8, classifying any private citizen that sues under the law as a “state actor”—a tactic that the 5th Circuit ruled “violated binding precedent” from the appeals court and U.S. Supreme Court. The 5th Circuit’s ruling on SB 8 could have national implications beyond Texas, as lawmakers in a number of other states have expressed their intention to pass laws that copy SB 8 because of the likelihood they won’t be overturned. A Florida lawmaker became the first to introduce such legislation in September, and a legislator in Arkansas said he will introduce a bill when a special session of the state legislature starts on October 25.

Further Reading

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

Texas’ Abortion Law Has Been Struck Down—For Now. Here’s Why That Might Not Last For Long. (Forbes)

Biden Administration Sues Texas Over Abortion Ban (Forbes)

In Court Battle On Abortion Law, Texas Claims An Injunction Couldn’t Be Enforced (Forbes)

Federal Judge Temporarily Blocks Texas’ Near-Total Ban On Abortions (Forbes)

Related Articles

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button