The Washington Post is reporting that the U.S. Fifth Circuit Court of Appeals on Thursday has rejected the Justice Department’s request to block enforcement of Texas’ restrictive abortion law.
The Post reported:
In a brief 2-1 order, the U.S. Court of Appeals for the 5th Circuit refused the Justice Department’s request to reinstate an earlier court ruling that had blocked enforcement of the Texas law, which bars the procedure as early as six weeks into pregnancy and makes no exceptions for rape or incest.
The brief order, which is expected to be appealed to the Supreme Court, was backed by Judges James C. Ho, a nominee of Donald Trump, and Catharina Haynes, a nominee of George W. Bush.
The order noted the dissent of Judge Carl E. Stewart, a nominee of President Bill Clinton.
Here is a copy of the ruling:
Last Friday, the same panel of judges temporarily reinstated the Texas law, less than 48 hours after U.S. District Judge Robert Pitman issued a sweeping order blocking the law at the request of the Justice Deparment. They gave the Justice Department until Tuesday to file a brief challenging the ruling.
The 5th Circuit is considered one of the most conservative appellate courts in the U.S.
That means that Texas’ restrictive abortion law will remain in effect for now. The law has halted nearly all abortions in the state, sending Texas women scrambling to neighboring states to access their constitutional right to obtain an abortion. But many women are too poor or cannot leave work to make such trips.
The 5th Circuit panel did not address whether the Texas law violates past Supreme Court rulings guaranteeing the right to an abortion until viability, usually about 22 to 24 weeks into a pregnancy.
The website of the Texas branch of the American Civil LIberties Union lists only 19 abortion clinics in the state. The real danger is that some of these clinics may be forced to close if the restrictions stay in place for much longer, even if the Texas law is ultimately declared unconstitutional.
The Texas law bans abortions after a physician detects cardiac activity in the womb. Many women are not even aware they are pregnant at that point.
The Texas law tried to skirt the landmark 1973 Roe v Wade ruling by offloading enforcement solely onto private citizens. They can collect at least $10,000 in damages and recover their legal costs if they successfully sue abortion providers or anyone who aids and abets a woman seeking to end a pregnancy.
In its brief filed Monday night, the Justice Department sent a clear warning to conservative justices on the 5th Circuit and Supreme Court that there could be unintended consequences if they allow Texas’ abortion law to remain in effect.
The Justice Department raised the possibility that if allowed to stand, the legal structure created in enacting the Texas law could be used to circumvent previous Supreme Court rulings on gun rights and campaign financing.
The DOJ brief argued:
“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.
It added that “state sovereignty does not encompass the authority to defy the Federal Constitution.”
Nearly all the big U.S. medical organizations, led by the American Medical Association filed an amicus brief at the 5th Circuit arguing that Texas’ abortion law “undermines longstanding principles of medical ethics” and “intrudes into the patient-clinician relationship.”
Now the case about the Texas law is headed to the U.S. Supreme Court again.
In early September, the Supreme Court, in a 5-4 shadow docket decision, declined to block the Texas law and allowed it to go into effect. The high court did not rule on whether the law and its unorthodox vigilante enforcement method were constitutional.
The Supreme Court’s decision regarding a bill that most legal analysts considered unconstitutional was seen as a sign that the court’s conservative majority was ready to overturn Roe v. Wade. In early December, the high court is scheduled to hear a case on a Mississippi law that bans abortions after 15-weeks.
Pitman’s strongly worded 113-page ruling effectively rebutted the specious arguments put forth by Texas Attorney General Ken Paxton that the Justice Department had no legal authority to sue the state and hold Texas officials accountable for lawsuits filed by private citizens.
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” Pitman wrote in his opinion.