The law was already in effect since the Fifth Circuit issued a temporary stay one week ago, and yesterday’s order continues to keep it in effect. However, even though it doesn’t change the force of the law, yesterday’s order is a major step forward in the case.
The law, passed in the regular Texas legislature at Senate Bill (SB) 8, bans abortion once a fetal pulse can be detected. It forbids the government from enforcement, instead authorizing citizens to sue anybody besides the mother herself that performs or aids a post-heartbeat abortion. Fathers that conceived the aborted child by rape or incest cannot bring these lawsuits.
On October 6, federal district Judge Robert Pitman granted the DOJ’s request for an injunction and barred state courts from taking lawsuits brought under the law. The Fifth Circuit reversed his order just two days later, restoring the law’s effect.
Today’s order achieves essentially the same purpose — denying efforts to stop the law — but marks an important legal milestone. Now that the court has issued a more conclusive order, the Biden administration may seek emergency intervention from the Supreme Court.
The court also set oral arguments for the week of December 6.
The case went before Judges Carl Stewart, Catharina Haynes, and James Ho. Stewart dissented from the decision yesterday.
Stewart has broken from the Fifth Circuit’s majority before with regards to Texas abortion law. In a case over the state’s ban on dismemberment abortions, Stewart dissented from an en banc ruling that upheld the law.
In the same ruling, Ho and Haynes joined the majority, with Ho writing a long concurring opinion that meditated on the evolution of medical ethics. Ho compared the state’s fetal protection efforts to the introduction of handwashing in surgical centers, a development initially jeered by the 19th-century scientific community.
The first major challenge to SB 8 is also pending before the Fifth Circuit. A group of abortion providers led by Whole Woman’s Health are attempting to sue every state judge and clerk in Texas, several state agencies, and a lone citizen defendant — a pro-life activist named Mark Lee Dickson — who the providers believe would likely sue them under SB 8.
This lawsuit also went through Pitman’s court before appeal. The defendants appealed to the Fifth Circuit after Pitman denied their request to dismiss the case. The Fifth Circuit then denied the abortion providers’ request to stop enforcement of the law.
Both courts wrote that an injunction against the State of Texas would not stop the law since it is enforced by civil lawsuits and cannot be enforced by the government.
“[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the collected opinions of the Supreme Court explained.
“The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.”
A DOJ spokesman said the department will ask the Supreme Court to intervene.
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