Texas' restrictive abortion law temporarily restored by federal appeals court

By Madlin Mekelburg

AUSTIN, Texas — A federal appeals court late Friday allowed a Texas law banning most abortions in the state to be enforced, suspending a lower court ruling from two days prior that had blocked the measure.

Attorneys for Texas filed an appeal with the 5th U.S. Circuit Court of Appeals earlier in the day, asking the court to take action "as soon as possible" to ensure that the state is not "held in contempt for the actions of third parties it cannot and does not control."

U.S. District Judge Robert Pitman issued a preliminary injunction on Wednesday, blocking the law. Friday's action by the 5th Circuit is temporary and stands while the court considers whether to grant a longer stay.

While defending the law in court proceedings, the Texas attorney general's office has argued that any court action intended to block the state from enforcing Senate Bill 8 is meaningless, because the state does not have the authority to enforce the law.

"SB 8 is enforced exclusively through private civil lawsuits," Friday's appeal said. "The prohibition on post-heartbeat abortions cannot be enforced by any state or local government official."

Texas has asked a federal appeals court to lift a temporary block of the state's near-total ban on abortion.

As written, the law prohibits abortions after about six weeks of pregnancy and allows any private individual to sue abortion providers or those who aid or abet an illegal abortion. Successful litigants can collect $10,000.

The law prohibits government officials from enforcing the ban, a strategy Pitman described as leading to an "offensive deprivation" of a constitutional right.

"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, (Texas) contrived an unprecedented and transparent statutory scheme to do just that."

Wednesday's preliminary injunction prevents judges or court clerks in the state from accepting lawsuits sanctioned by the ban and requires the state to publish a copy of the injunction on its court websites "with a visible, easy-to-understand instruction to the public that SB 8 lawsuits will not be accepted by Texas courts."

In Friday's appeal, lawyers for Texas argued that by extending the injunction to state judges, Pitman's order violates past court precedent. They wrote that the 5th Circuit and "the Supreme Court have repeatedly forbidden federal district judges from enjoining state judges."

Two lawsuits have been filed under the law and made public, both from out-of-state litigants who sued Dr. Alan Braid of San Antonio. Braid said he performed an abortion after six weeks of pregnancy in an opinion piece in the Washington Post.

Since Pitman's ruling, at least one abortion clinic in Texas said it had resumed offering procedures otherwise prohibited under the law. Others have shared few details about their plans, citing concerns that, under the law, providers could be liable for procedures performed while under a court order blocking enforcement.

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