A Texas law that would ban abortions after as early as six weeks is poised to take effect Wednesday, after a federal appellate court’s rulings stymied efforts to block the law.
On Friday night, the 5th U.S. Circuit Court of Appeals canceled a hearing planned for Monday, at which more than 20 abortion providers had hoped to persuade a federal district court in Austin to block the law from taking effect.
Providers have sued to overturn the law, which they say is the nation’s strictest and would create what they call a “bounty hunting scheme” in allowing members of the general public to sue those who might have violated the law. The law, Senate Bill 8, would prohibit abortions after a fetal heartbeat can be detected without specifying a time frame, before many women know they are pregnant.
Late on Saturday, provider groups, including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance, filed emergency motions with the 5th Circuit, essentially asking it to send the case back to district court or for the appellate court itself to issue a stay that would temporarily block the law’s enforcement.
The 5th Circuit denied the emergency motions Sunday afternoon.
“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop,” Marc Hearron, senior counsel at the Center for Reproductive Rights, which represents providers, said in a statement. The state’s strategy, he said, has been to “circumvent the court system and the constitution itself,” he said, in order to “push abortion out of reach for as many Texans as possible.”
Abortion providers and supporters have braced for SB 8 for months. Texas women could completely lose access to abortions for a time, warned Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America.
“It’s quite possible that it could create chaos and problems on the ground, including the closing of health centers,” Krasnoff said.
Even if clinics stay open, the law could affect most of the abortions now being performed in Texas. Whole Woman’s Health, which also provides gynecological care for women, said in a press release that 90% of the abortions they perform are after the six-week mark.
“To be clear: our health centers remain open, and Planned Parenthood providers will see as many patients as they can, as long as they can within the law. But without the courts stepping in, on Wednesday, Texans will be denied their constitutional right to abortion in violation of fifty years of precedent,” said Julie Murray, senior staff attorney for Planned Parenthood Federation of America.
Marva Sadler, one of the named plaintiffs in the abortion providers’ lawsuit and senior director of clinical services for Whole Woman’s Health, said the appellate decisions make it much more likely SB 8 will go into effect Sept. 1.
On Sunday, she said she was rushing to her organization’s clinic in Fort Worth, where at least eight patients were seeking abortions before they become illegal.
Cancellation of the hearing “was definitely a surprise,” Sadler said.
“I’ve been really focused on how things will look on Wednesday, when we have to start turning most patients away,” she said.
See here and here for the background. I confess, I don’t understand the machinations of the appellate court canceling a district court hearing. I figured we’d get the usual procession of the lower court issuing a restraining order and then the Fifth Circuit tossing it aside. The plaintiffs have now petitioned SCOTUS to step in on the grounds that the Fifth Circuit canceling the hearing was an abuse of their discretion. It’s the only card they have to play, but I would not get my hopes up. I wish I had something optimistic to say here, but I don’t. We need to vote these people out, there’s no other way forward at this time. The Chron, the 19th, and Slate have more.
UPDATE: Here’s a Trib story about the SCOTUS appeal. Let’s see if I have to update this draft again before it publishes in the morning…
Justice Alito has asked the defendants to respond by 5 p.m. EDT tomorrow—eight hours before SB8 is set to go into effect. That means (1) we shouldn’t expect anything from #SCOTUS sooner; and (2) only the Fifth Circuit could give the district court enough time to rule before then.
— Steve Vladeck (@steve_vladeck) 4:53 PM – 30 August 2021
In other words, we won’t hear anything from SCOTUS until the last minute tonight at the earliest.