Texas abortion ban will remain in effect, federal appeals court says

The panel vote was 2-1.

Texas law prohibits abortions after detection of fetal heart activity, which typically occurs about six weeks after a pregnancy begins and often before a woman knows she is pregnant. It has been the subject of heated litigation since before it went into effect early last month.

The Justice Department challenged the law in federal court. On October 6, U.S. District Judge Robert Pitman blocked the ban. Texas appealed, and two days after Pitman’s order, a three-judge panel of the appeals court briefly stayed the order. This appeal panel has now extended that wait until it reviews Pitman’s order on appeal.

Appeals judges Catharina Haynes, appointed by George W. Bush, and James Ho, appointed by Donald Trump, voted to keep the law in effect. Justice Carl Stewart, appointed by Bill Clinton, dissented.

With the latest 5th Circuit ruling, the Justice Department is expected to turn to the Supreme Court with a request to quash the law.

The Supreme Court had refused to block the law after clinics requested intervention earlier this year.

Law’s new approach thwarts attempts to block him

The next morning of Pitman’s prescription, some clinics in Texas resumed aborting patients who were over six weeks pregnant. They did so with some legal risk, as Texas law allows enforcement actions for abortions performed while a court order blocking the law is in effect, if the order is subsequently overturned. by a higher court.

Rather than tasking government officials with enforcing the ban, through criminal or administrative penalties, the law directs private citizens to take legal action against caregivers or anyone who assists a woman in obtaining a abortion after detection of fetal heart activity.

The design of this enforcement mechanism was most successful in limiting other legal attempts – by clinics and others – to gain enforcement, as it complicated the usual route of seeking court orders against individuals. specific government officials who are typically responsible for implementing restrictive abortion laws.

“Fully aware that depriving its citizens of this right through direct state action would be patently unconstitutional, the state has put in place an unprecedented and transparent legislative regime to do just that,” Pitman wrote in his order. who temporarily suspended the law last week.

“Since the entry into force of SB 8, women have been unlawfully prevented from exercising control over their lives in a constitutionally protected manner,” Pitman said. “It is up to them to decide whether other courts find a way to avoid this conclusion; this Court will not one more day sanction this offensive deprivation of such an important right.”

Texas says federal government can’t sue

Texas Attorney General Ken Paxton had urged the 5th Circuit earlier Thursday to let the law remain in effect during the appeal process.

Paxton argued that the Biden administration did not have a legal right to sue in the case, even though the law was designed in such a way as to avoid review by a federal court.

“The federal government’s position boils down to a simple – but mistaken – assertion: a law that avoids pre-execution review by a federal district court is an open threat to our constitutional order,” the attorney general wrote. of the republican state. “This is ahistoric nonsense.”

A key question in the case is whether the federal government has the legal right or “standing” to bring the challenge. The Department of Justice says it does, in part because individuals who bring an action act as agents of the state and the government has the power to protect the basic rights of its citizens.

US Attorney General Merrick Garland, announcing the lawsuit last month, called the law a “draft” and said it “is clearly unconstitutional under a long-standing Supreme Court precedent.”

“The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the assertion of those rights,” a- he declared.

But Paxton says the federal government has no right to intervene.

It is supported by a brief by Jonathan Mitchell, one of the architects of the law now representing three people interested in suing those who might violate it.

Mitchell wrote that states “have tools in their arsenal to limit opportunities for the judiciary to declare their statutes unconstitutional.”

Mitchell said states can structure their laws to “reduce or eliminate” that they are not challenged before they are enforced. “And that’s what Texas did,” he said. “By prohibiting state officials from applying the law and allowing citizens to apply the law through private civil actions, Texas has prevented the judiciary from considering” such challenges.

Mitchell added that abortion is “not a constitutional right” but “a right invented by the court which may not even have the support of the majority in the current Supreme Court.”

The Supreme Court directly challenges the Roe v. Wade of 1973, which legalized abortion nationwide, in December.

This story was updated with additional details on Thursday.

CNN’s Ariane de Vogue contributed to this report.

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