The 5th U.S. Circuit Court of Appeals, considered one of the most conservative appellate court in the U.S., has put a temporary hold on a federal judge’s order blocking Texas’ law banning abortions after six weeks.
CNN reported:
The 5th U.S. Circuit Court of Appeals granted Texas' request for an administrative stay of the order. Texas had filed the request Friday afternoon, after U.S. District Judge Robert Pitman issued a sweeping order earlier in the week blocking the law at the request of the U.S. Justice Department, which had brought a legal challenge last month.
On Friday night, the New Orleans-based appellate court also asked for the Justice Department to respond by 5 p.m. local time on Tuesday to a request by Texas that Pitman's order be frozen while its appeal is considered by the 5th Circuit.
On the three-judge appellate panel considering the state's request was Judge Carl Stewart, a Clinton appointee; Judge Catharina Haynes, a George W. Bush appointee; and Judge James Ho, a Trump appointee.
Here is a copy of the appellate court’s order issued Friday night:
Texas Attorney General Ken Paxton had asked the appeals court to reverse Pitman’s injunction blocking the law.
It’s likely that the fight over Pitman’s order could end up again before the Supreme Court.
In early September, the U.S. 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 was seen as a sign that the court’s conservative majority was ready to overturn the landmark 1973 Roe v. Wade decision. In early December, the high court is scheduled to hear a case on a Mississippi law that bans abortions after 15-weeks.
Pitman, who was appointed by President Barack Obama, issued his order on Wednesday. The next day some clinics in Texas resumed providing abortions to women who were beyond six weeks in their pregnancy. Now Texas women will once again have to scramble to find abortion providers in neighboring states.
The American Civil Liberties Union had this reaction to the appellate court’s ruling:
The clinics are at legal risk because Texas’ law has a provision that allows enforcement actions if a judge’s order blocking the law is later reversed by a higher court.
The Texas law tried to skirt around Roe v. Wade by putting enforcement in the hands of private citizens who could sue anyone who performs or aids and abets an abortion after fetal cardiac activity is detected, usually around six weeks into a pregnancy. A woman might not even know she is pregnant at that point.
The Texas law did not make any exceptions for pregnancies resulting from rape or incest. Plaintiffs stood to receive at least $10,000 and recover their legal fees if they won the lawsuit.
In his filing, Paxton, the Republican Texas AG, Paxton told the appeals court that the U.S. Department of Justice has no legal authority to sue the state. He added that Pitman had no basis for halting a law that is enforced by private citizens rather than state government officials.
“A court ‘cannot lawfully enjoin the world at large’ let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent,” the filing states, according to The Washington Post.
Pitman’s strongly worded 113-page ruling effectively rebutted that specious argument put forth by Paxton and other Republican officials in Texas.
“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.
"This Court will not sanction one more day of this offensive deprivation of such an important right."
Pitman added:
“It is ordered that the State of Texas, including its officers, officials, agents, employees and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code.”
Texas Rep. Sheila Jackson Lee had this reaction to the appellate court’s decision.