Restrictive Texas abortion law back in effect as appeals court issues temporary stay

Written by on October 9, 2021

(DALLAS) — A panel of judges on the Fifth Circuit Court of Appeals has issued a temporary administrative stay Friday night that will allow state courts in Texas to continue accept lawsuits under the state’s restrictive abortion law.

President Joe Biden’s Justice Department had sued the state of Texas last month after it instituted a ban on abortions once doctors detect cardiac activity — about six weeks into a pregnancy and often before a woman would even know she was pregnant. The law, which is civil instead of criminal, allows anyone to sue someone they “reasonably believed” provided an illegal abortion or assisted someone in getting it in the state.

The ruling late Friday will again reinstate the law, at least as the appeals process continues to unfold.

“IT IS ORDERED that Appellant’s emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel,” the Fifth Circuit Court of Appeals wrote in its ruling. “Appellee is directed to respond to the emergency motion by 5 pm on Tuesday, October 12, 2021.”

“IT IS ORDERED that Appellant’s alternative motion for a temporary administrative stay pending the court’s consideration of the emergency motion is GRANTED,” the court, comprised of Judges Carl E. Stewart, Catharina Haynes and James C. Ho, added.

On Wednesday, U.S. District Judge Robert Pitman had issued an emergency injunction barring enforcement of the controversial new abortion law and effectively allowing abortions after six weeks again.

The state of Texas immediately appealed that injunction to the Fifth Circuit Court of Appeals.

In addition to the emergency injunction, Pitman had denied Texas’ request to put a pause on his ruling while the state appeals it. But that was undone Friday.

“That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote.

In the meantime, as the appellate court waited to rule Friday, some abortion providers in Texas had already begun to offer services again to people past six weeks into pregnancy.

“We reached out to some of the patients that we had on a waiting list to come in to have abortions today, folks whose pregnancies did have cardiac activity earlier in September,” Whole Woman’s Health founder Amy Hagstrom Miller said during a press briefing with the Center for Reproductive Rights Thursday. “And we were able to see a few people as early as, 8, 9 this morning, right away when we opened the clinic.”

The 113-page ruling from Pitman Wednesday was scathing in targeting the state in how he says it schemed to evade judicial review in its implementation of this law.

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

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