A federal district judge halted enforcement of the law on October 6, granting a request from the Biden administration in a lawsuit between the U.S. Department of Justice (DOJ) and the State of Texas. The state appealed to the Fifth Circuit Court of Appeals, which restored effect to the law on October 8 with a temporary stay of the lower court’s order.
Attorney General Ken Paxton praised the Fifth Circuit’s stay order, calling it “great news.”
The Fifth Circuit will consider a more lasting order after receiving a response from the United States, due Tuesday afternoon.
Because of the law’s unusual enforcement process, it was unclear during the two-day reprieve whether abortions would return to their August levels.
The Heartbeat Act, passed during the regular Texas legislature as Senate Bill (SB) 8, bans abortions once a fetal pulse can be detected but forbids the state from enforcing it. To comply with Supreme Court precedent that bars governments from unduly burdening abortion access, SB 8 instead allows citizens to sue anybody, other than the mother herself, that performs, aids, or pays for post-heartbeat abortions. Fathers that conceived the aborted child by rape or incest cannot sue. Claimants that win these lawsuits are entitled to damages of at least $10,000 from the defendant.
The October 6 injunction, ordered by Judge Robert Pitman, forbade all state courts in Texas from hearing any lawsuits brought against violators under SB 8.
Some abortion funds and providers celebrated the injunction on October 6 but remained cautious. Other providers, like Whole Woman’s Health, resumed abortions “the moment it was a possibility.”
Meanwhile, proponents of SB 8 claimed that violators of the law could still eventually be sued for actions taken during Pitman’s injunction. Texas Right to Life, a pro-life activist and lobbying group, pointed to a provision in the text which states that a belief in the law’s unconstitutionality is not a suitable defense for violators in court.
“Notwithstanding any other law, the following are not a defense to an action brought under this section… A defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional; [or] a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter,” the law reads.
However, provided with opportunities to sue under the Heartbeat Act, pro-life supporters of the law have so far balked.
For the most part, the mere threat of lawsuits has steeply curbed abortions in Texas. However, one abortion provider admitted in a national opinion column that he performed a post-heartbeat abortion on September 6, days after SB 8 took effect. So far, the only two claimants to sue him have been opponents of the law, one seeking to overturn it and another seeking to at least profit from it.
The undisguised motives of the latter, a disbarred attorney named Oscar Stilley serving a house arrest sentence for tax fraud in Arkansas, influenced Pitman’s injunction after Stilley joined the Biden administration’s lawsuit against Texas. Pitman said that an injunction against private citizens would be proper since some, like Stilley, recognized themselves to be the law’s enforcers, making them agents of the state.
“Setting aside the absurdity and perversity of a law that incentivizes people who do not disagree with abortion care to sue abortion providers to make a quick buck, Stilley explicitly states his perception that the State delegated part of its enforcement power, i.e., bringing suits, to him,” Pitman wrote.
The lawsuit between the DOJ and the State of Texas is also intertwined with another challenge to the Heartbeat Act: an attempted class-action lawsuit by several abortion providers, led by Whole Woman’s Health, against every state judge and clerk in Texas. The plaintiffs also targeted a number of state agencies and a lone private defendant named Mark Lee Dickson, an activist behind the “Sanctuary Cities for the Unborn” initiative who they argued would likely sue them under SB 8.
The Supreme Court rejected these abortion providers’ emergency petition in a 5 to 4 decision on the eve of the law’s effective date, arguing that an injunction against state agencies would do nothing to stop the law. The case now proceeds at the Fifth Circuit Court of Appeals, lately joined by United States of America v. State of Texas.
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