Texas abortion law has been scrapped – for now. Here’s why it might not last long.

Topline

A federal judge blocked Texas’ near-total abortion ban on Wednesday night, meaning doctors in the state can start performing the procedure again, but with the case currently before a conservative appeals court and a disposition of the law putting abortion providers at risk even if the law is struck down, abortion rights in the state are still in jeopardy.

Highlights

District Judge Robert Pitman on the side of the Department of Justice and barred Texas from enforcing Senate Bill 8 (SB 8), which bans nearly all abortions after six weeks of pregnancy, including banning “officers, servants, agents, employees and any other person or entity acting on its behalf”. ” to take measures to block abortions.

SB 8 is enforced by private citizens who bring suits against anyone “aiding and abetting” an abortion, rather than government officials, so Pitman’s injunction prevents Texas courts from accepting any lawsuits brought under it. of the law and classifies private citizens suing under SB 8 as “state actors” and prohibits them from suing.

It is expected that at least some abortion providers in the state Continue abortion procedures in light of the ruling, such as the Whole Woman’s Health Clinic noted On Wednesday, it was working “to resume the provision of full abortion care as soon as possible.”

Texas, however, appealed the case to the conservative 5th Circuit Court of Appeals, which has already blocked further challenges to SB 8 and is widely expected to reverse Pitman’s decision and reinstate the law.

People prosecuted under SB 8 cannot defend themselves by saying the law was blocked when they assisted in an abortion, the law states, meaning that if the appeals court reinstates SB 8, the Anti-abortion advocates could still sue anyone aiding or abetting an abortion when the law was temporarily overturned.

Washington Post Journalist Caroline Kitchener reports abortion providers have mixed feelings about abortion, a doctor would have saying many Whole Womans Health physicians intend to continue to comply with the ban for fear of being sued.

To monitor

The appeals court is expected to rule quickly on the Texas case and likely issue a stay that would block Pitman’s decision and reinstate SB 8. If that court sides with Texas, the Justice Department could appeal the case to the United States Supreme Court, which is already considering a separate challenge to SB 8 – although the conservative-leaning court has already ruled in favor of the law once, telling abortion providers who sued to block SB 8 that it was too early to sue.

crucial quote

“Today’s court order is only temporary. This is not the end,” Nancy Northup, CEO of the Center for Reproductive Rights, in a statement late Wednesday.

Chief Spokesperson

Texas Right to Life, the anti-abortion group that helped draft SB 8, said Wednesday that Pitman’s decision was “very broad” and motivated by “extreme bias,” but expressed confidence in the law. “will ultimately stand up to this legal challenge and succeed where other states have.” heartbeat bills did not.

Key Context

SB 8 went into effect September 1 as the most extreme abortion restrictions to go into effect in the United States since Roe v. Wade in 1973, affecting approximately 85% of abortions in Texas. Prosecutions under SB 8 have so far only been deposited against a Texas doctor who said in a Washington Post op-ed he had violated the law, which are now pending and the doctor is trying to block in court. The Ministry of Justice sued texas after the abortion providers’ lawsuit failed in the Supreme Court and stalled in lower courts, the filing of a lawsuit that argues that SB 8 is unconstitutional and violates the sovereignty of the federal government.

Surprising fact

Pitman’s decision to block the law came despite the fact that SB 8 was designed to avoid judicial review and not be struck down in court like so many other state abortion bans. Its prosecution provision was meant to make it more difficult to identify defendants who might in fact be barred from enforcing the law, and the state’s attorney claims during a court hearing that a decision overturning SB 8 would have no real effect because government officials can do nothing to stop enforcing a law they are already not authorized to enforce. (Pitman circumvented this argument by including courts and private citizens in his decision, since they were also prohibited from enforcing the law.) Prior to Pitman’s decision, courts had only blocked SB 8 in narrow decisions that just barred specific plaintiffs like Planned Parenthood from being sued by certain individuals or organizations.

What we don’t know

How the lawsuits could affect plans from other states follow in the footsteps of Texas. Republican lawmakers in a number of states have expressed their intention to pass legislation that copies the provisions of SB 8 specifically because the law is apparently expected to be harder to block in court, with a Florida lawmaker becoming the first to introduce such a bill.

Further reading

After Judge’s Ruling, One of Texas’ Largest Abortion Providers Will Resume Abortions for Up to 18 Weeks (The 19)

Biden administration sues Texas for abortion ban (Forbes)

In court battle over abortion law, Texas says injunction could not be enforced (Forbes)

Federal judge temporarily blocks near-total abortion ban in Texas (Forbes)

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