The 5th U.S. Circuit Court of Appeals late Friday temporarily allowed Texas’ near-total abortion ban — the strictest in the nation — to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued.
A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continue until at least Tuesday, when a response from the Justice Department is due. After the court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or allow a lower court to once again temporarily block it.
The court would not be determining the overall case’s outcome at this point — but it would decide whether the law could continue to stand while court proceedings unfold.
The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.
A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions outlawed by the statute would now be vulnerable to lawsuits after Friday’s order.
“We do understand that it does open us up to some risk. We have to wait and see,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health. “We have a lot of lawyers on speed dial these days.”
Miller said her organization and physicians in her clinics are on edge.
“But not for a second do we question that it was the right thing to do,” she said. “People need our help, and they shouldn’t be put through this.”
The organization will comply with the law once again, she said. Already several appointments had been made for Monday, so clinics will have to cancel them.
“Unfortunately, there’s going to be a lot of phone calls we have to make,” she said.
See here for the previous entry, which had an update at the end for the Fifth Circuit action. The Justice Department may wait for a ruling from the Fifth Circuit before it appeals (because we all know what the lawless Fifth Circuit is going to do) to SCOTUS, or it may just file an emergency petition with SCOTUS and hope for a faster ruling. SCOTUS has a Mississippi abortion case on its docket this term, so one way or another it’s going to be dealing with the larger issues. It’s just a question of whether they want to allow for a de facto overturning of Roe v Wade before they rule in that case or not. Maybe take a closer look a those approval numbers, guys.
In the meantime, there’s a real danger that it won’t much matter anyway what happens.
Abortion providers have said they are hoping they get more permanent relief from the U.S. Supreme Court.
The nation’s highest court was asked to intervene when the law was first going into effect, but justices declined. Since the law has been in effect, abortion providers have petitioned the court, again. So far, the court has not responded.
Abortion providers have said one of the longer-term concerns is what will happen to their clinics if the law continues to stay in effect. Hagstrom Miller said providers are facing serious financial strains as they turn away the majority of people seeking an abortion.
She said access to abortion in the state could be permanently altered if the law isn’t blocked as the legal challenges move through the courts.
“If clinics close because SB 8 is enforced long enough,” Hagstrom Miller said, “the damage will be done, even if it’s eventually struck down.”
Abortion providers have been begging for relief from this ludicrously unconstitutional law, to no avail so far. The danger that they’ll be forced out of business for financial reasons while they wait is real, and is exactly what happened with the TRAP law that was struck down in a few years ago. Fully half of all clinics went under in the interim, and I guarantee you that was no accident. If it happens again, we may never recover. And again, that was the plan all along.