Federal appeals court allows Texas abortion ban to stay in place while it considers Biden administration lawsuit

·3 min read
Abortion rights activists rally at the Texas State Capitol against SB 8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, on September 11, 2021 in Austin, Texas.
Abortion rights activists rally at the Texas State Capitol against SB 8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, on September 11, 2021 in Austin, Texas. Jordan Vonderhaar/Getty Images
  • A federal appeals court is allowing Texas' abortion ban to stay in place for now.

  • A panel of the conservative Fifth Circuit rejected the DOJ's attempt to block the law.

  • The abortion ban will stay in effect while federal courts consider the lawsuit against it.

A federal appeals court on Thursday issued a ruling allowing Texas' strict "heartbeat" abortion ban to stay in place for now while it considers a lawsuit brought by the Department of Justice seeking to block the ban.

A three-judge panel of the Fifth Circuit Court of Appeals rejected the Biden administration's attempt to block enforcement of the law while agreeing to hear oral arguments in the case, the Texas Tribune reported.

US District Court Judge Robert Pitman on October 6 ruled in the DOJ's favor and moved to preliminarily block enforcement of the ban. But his ruling was overturned two days later by the conservative Fifth Circuit, which granted Texas' appeal to allow the ban to go back into effect. The Tribune reported that it could be "months" before the Firth Circuit hears oral arguments in the Biden administration's lawsuit.

The DOJ's lawsuit, which was filed on September 9 in the US District Court for the Western District of Texas and names the state itself as a defendant, seeks a declaratory judgment finding the law to be "invalid, null, and void" on its face and an injunction "prohibiting any and all enforcement of S.B. 8" by actors of the state and private parties.

Texas' law, which is known as Senate Bill 8 and went into effect on September 1, bans abortions when fetal cardiac activity can be detected, which happens around six weeks of pregnancy, with no exceptions for rape or incest. Courts, including the US Supreme Court, have so far allowed it to stand thanks to its highly unusual enforcement mechanism.

Instead of tasking state officials, like law enforcement, with implementing the ban, the law outsources enforcement to private citizens, giving citizens the ability to file civil lawsuits against abortion providers and anyone else who aids or abets in an abortion. Successful plaintiffs can win up to $10,000 in damages, plus attorneys fees, from defendants.

The DOJ's lawsuit claims that the Texas statute is invalid under the Supremacy Clause of the Constitution - which prioritizes federal over state laws - because it violates the right to due process guaranteed under the Fourteenth Amendment.

and the Fourteenth Amendment of the Constitution. It also says the ban is preempted by federal law and violates the doctrine of intergovernmental immunity.

It further argues that the Texas law unconstitutionally interferes with the activities of federal agencies, like the Department of Health and Human Services and the Bureau of Prisons, that are involved in providing reproductive health services.

Pitman, an Obama appointee, described the law as an "unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right" in his opinion blocking the law.

The Biden administration's next course of action could be to appeal the Fifth Circuit's ruling to the US Supreme Court.

On September 1, the high court rejected a separate emergency lawsuit from plaintiffs seeking to block courts from hearing cases brought under the law in a 5-4 decision, with Chief Justice John Roberts joining the court's three liberals in dissenting.

The court's majority, in a paragraph-long opinion, said it wasn't clear whether they could block state judges from taking up suits filed under the law's parameters, but emphasized its order "is not based on any conclusion about the constitutionality of the law."

Roberts, in his dissent, called the Texas law "not only unusual but unprecedented."

"The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime," he wrote in his dissenting opinion.

Oma Seddiq contributed reporting.

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