On Friday night, a federal appeals court cleared the application of a Texas law banning most abortions in the state, staying a lower court ruling two days earlier that had blocked the measure.
Texas attorneys filed an appeal with the 5th U.S. Court of Appeals earlier today, asking the court to take action “as soon as possible” to ensure the state is not “held in contempt of the actions of third parties which it cannot and does not control.”
U.S. District Judge Robert Pitman issued a preliminary injunction on Wednesday, blocking the law. Friday’s 5th Circuit action 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 argued that any legal action to stop the state from enforcing Senate Bill 8 does not make sense because l The state does not have the power to enforce the law.
“SB 8 is enforced exclusively through private civil suits,” the appeal said on Friday. “The ban on post-heartbeat abortions cannot be imposed by any state or local official.”
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As written, the law prohibits abortions after about six weeks of pregnancy and allows any private person to sue abortion providers or those who assist or encourage an illegal abortion. Successful litigants can raise at least $ 10,000.
The law prohibits government officials from enforcing the ban, a strategy Pitman describes as leading to an “offensive deprivation” of a constitutional right.
“A person’s constitutional right to choose to have an abortion before fetal viability is well established,” Pitman wrote. “Fully aware that to deny its citizens this right through direct state action would be patently unconstitutional, (Texas) has designed an unprecedented and transparent legislative regime to do just that.
Wednesday’s preliminary injunction bars judges or state clerks from accepting prosecutions sanctioned by the ban and requires the state to post a copy of the injunction on its courts’ websites “with an instruction visible and easy to understand to the public that SB 8 lawsuits will not be accepted in Texas courts. “
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In Friday’s appeal, Texas attorneys argued that by extending the injunction to state judges, Pitman’s order violated court precedent. They wrote that the 5th Circuit and “the Supreme Court have repeatedly prohibited judges in federal districts from ordering state judges.”
Two lawsuits were filed under the law and made public, both from out-of-state litigants who sued Dr. Alan Braid of San Antonio. Braid said she performed an abortion after six weeks of pregnancy in a Washington Post opinion piece.
Since Pitman’s decision, at least one abortion clinic in Texas has said it has resumed offering procedures otherwise prohibited by law. Others shared few details of their plans, citing concerns that under the law suppliers could be held accountable for proceedings carried out while they were under a court order blocking execution. .