Texas abortion law survives injunction effort; Supreme Court challenge next

Denver Newsroom, Oct 15, 2021 / 18:12 pm

A federal appeals court has allowed a heartbeat-based Texas ban on abortion to remain in effect, rejecting the U.S. Department of Justice’s efforts to reinstate an injunction. Biden administration officials have pledged to ask the Supreme Court to reinstate an injunction.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on Oct. 14 ruled 2-1 that the Texas Heartbeat Act, Senate Bill 8, may continue. Their decision follows a temporary ruling last week that overturned an injunction against the law.

Texas’ law, which is designed to be enforced through private lawsuits, prohibits abortions after a fetal heartbeat can be detected, around six weeks gestation, except in medical emergencies.

The law allows for awards of at least $10,000 for successful lawsuits against those who perform or “aid and abet” illegal abortions. Women seeking abortions cannot be sued under the law, which first took effect Sept. 1.

The law was designed to avoid judicial review, the Washington Post reports.

Justice Department spokesman Anthony Coley said Oct. 15 the Justice Department “intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8.”

In early September the Supreme Court declined to block the law in a 5-4 decision. It said foes of the law had raised “serious questions” about its constitutionality but the abortion providers challenging the law had not shown they were challenging the proper defendants.

President Joe Biden has called the law “an unprecedented assault on a woman’s constitutional rights” and promised a “whole-of-government” effort to maintain abortion access in Texas.

He directed federal agencies, including the Justice Department, to review what actions could be taken “to ensure that women in Texas have access to safe and legal abortions as protected by Roe.”

An Oct. 6 ruling from a federal district judge had barred Texas from actions such as awarding damages to successful lawsuits or enforcing judgements in such cases. A three-judge panel of the 5th U.S. Circuit Court of Appeals then temporarily reversed that decision Oct. 8.

In a legal complaint filed in a federal district court Sept. 9, the Justice Department argued the state acted “in open defiance of the Constitution” in restricting “most pre-viability abortions,” and requested a preliminary injunction to block the law.

In late September, two non-Texas residents sued a Texas abortion doctor who announced he had performed an abortion in violation of the new law. A Texas pro-life group criticized those lawsuits, however, calling them “imprudent” and “self-serving,” saying that neither was filed “to save innocent human lives.”

Pro-life leaders in the state estimate that the law has saved more than 4,700 babies from abortion. Some clinics could be forced to close permanently.

Abortions generally halted in Texas after the law took effect, but many women seeking abortions are traveling to nearby states. At least six abortion clinics resumed performing abortions during the period when the law was enjoined.

The Texas state legislature has increased public benefits for low-income mothers, expanding Medicaid coverage for new mothers and securing $100 million in annual funding for the Alternatives to Abortion program.

Texas Gov. Greg Abbott recently signed into law a ban on the use of abortion-inducing drugs in the state seven weeks into a pregnancy. The measure is set to take effect in December.