State appeals SB8 restraining order to Fifth Circuit

I’m sure they expect the usual room service from the appeals court. It’s just a matter of how quickly they can get it.

Texas asked a federal appeals court Friday to step in “as soon as possible” to restore the state’s near-total abortion ban.

The state filed its emergency request for an appeal two days after U.S. District Judge Robert Pitman temporarily blocked the new abortion law in response to a lawsuit brought by the Biden administration. The state quickly filed a notice of its intent to appeal after Pitman’s order on Wednesday night.

In Friday’s request, state attorneys argue that Pitman’s order to temporarily block the law at the United States’ request “violates the separation of powers at every turn.” They ask the 5th U.S. Circuit Court of Appeals — considered to be perhaps the nation’s most conservative appellate court — to stop Pitman’s order.

State attorneys argued the U.S. overstepped by suing the state since it will never be subject to one of the lawsuits allowed by the law and since the state does not enforce the law directly.

“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” attorneys wrote in Friday’s request.


“I think there is a very good chance the court grants a stay [to block Pitman’s order],” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. He said Pitman already faced many barriers to issuing his temporary order.

“Congress never authorized the United States to sue a state in this context,” Blackman explained. “And there is no history of previous suits by the federal government against an allegedly unconstitutional law. The federal government lacks a ‘cause of action’ to sue Texas.”

See here for the background. I dunno, I figure if a law can be passed to take away a right in such a way that it’s basically impossible to challenge it in court, then it wasn’t actually a right to begin with. And if a state can take away a federal right like that, it sure seems like a design flaw in the system. I don’t expect the Fifth Circuit to give a damn about that, but someone had to say it. By the way, even with this initial court ruling, the right that was taken away still hasn’t really been restored, and who knows when it might be. Like I said, if that can happen to someone’s rights, then was there ever really such a thing as “rights”?

UPDATE: Room service indeed.

The U.S. Court of Appeals for the 5th Circuit granted a temporary emergency stay in the United States v. Texas, the federal government’s suit against the state. As a result of the 5th Circuit’s ruling, a preliminary injunction — which halted the SB 8 from being enforced — no longer stands, and the vast majority of all abortions are once again banned in Texas.

The 5th Circuit has given the federal Justice Department until 5 p.m. CT on Tuesday to respond to Friday night’s action. The Justice Department will need to prepare its argument to counter Texas’ request that such a stay be a permanent one.

When I said that the Fifth Circuit already had an order printed and ready to go staying Judge Pitman’s order? I was only half-joking. Next, we’ll get to see if SCOTUS meant what they said about “procedurally proper challenges” maybe being more successful. The Chron has more.

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4 Responses to State appeals SB8 restraining order to Fifth Circuit

  1. Política comparada says:


    RE: “Like I said, if that can happen to someone’s rights, then was there ever really such a thing as “rights”?

    Good point. Where do asserted rights come from?

    In the U.S.A., the “right to abortion” is a judicial invention. Other countries address this matter through referendum (San Marino, most recently) or through national legislation, which can then be changed over time in response to shifts in the distribution of public sentiments. Or some combination of such democratic processes and related interest group and partisan politics. Accommodation is possible.

    The problem with making national abortion policy by judicial fiat is that it cannot simply be repealed or amended (as is the case with legislatures whose composition changes in response to political currents, value change, and election results), and instead gets frozen into place under the doctrine of binding precedent and stare decisis. And the incumbents on the SCOTUS cannot be voted out of office and held accountable. So, the opportunity for changing the regime (either way, i.e. more restrictive or less) is dependent on turnover on the court. Unsurprisingly, the court becomes the key political actor and the ultimate abortion policymaker instead of representative institutions and/or the people at large deciding for themselves on the strictness of abortion regulation through referendum.

    See, e.g.,

    Roe v. Wade is a very badly reasoned opinion, as numerous law profs have explained over the years, and was rendered in a case that was MOOT by the time it was decided. Moot controversies are supposed to be dismissed for lack of jurisdiction. Jane Roe’s child lived because it was too late for the abortion. The leading case for US-style “abortion rights” was thus misconceived ab initio (if you will) and should be “aborted” in favor of Congress and/or state legislatures finding a compromise on the strictness of regulation.   

  2. J says:

    What this is really about is the ability of religious institutions to force *everyone* to follow their Doctrine de Jour. Church power-wielders have gotten more and more leeway from the right wing courts to get their ideas enacted into law, such as the new pogrom against children who express gender difference. So it is about giving more and more rights to the Church, now with state-sanctioned mob enforcement, with zero consequences for the mob.

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