Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenge

An ultrasound machine sits next to an empty patient bed at Whole Womens Health of Austin on Sept. 1, 2021.
An ultrasound machine sits next to an empty patient bed at Whole Womens Health of Austin on Sept. 1, 2021.

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Texas’ near-total abortion ban can continue to be enforced while the law’s constitutionality is decided, a panel of federal appellate judges ordered late Thursday.

The three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — also agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law.

A U.S. district court previously blocked enforcement of the law for two days before the 5th Circuit initially froze the order. The panel of 5th Circuit justices agreed in a 2-1 decision Thursday to let the law remain in effect until it considers the U.S. Department of Justice’s challenge. Judge Carl Stewart dissented.

The decision means the appellate court will take over the legal challenge to Senate Bill 8 that was being overseen by U.S. District Judge Robert Pitman.

Oral arguments before the 5th Circuit have not yet been scheduled, but it could be months before they take place.

“We are very grateful,” said Kim Schwartz, media and communication director for the anti-abortion group Texas Right to Life. “We ultimately believe that we’ll be victorious.”

The Department of Justice didn’t immediately respond to a request for comment late Thursday. At least one abortion provider denounced the decision.

“Yet again, the Fifth Circuit has shown that it is unwilling to take action to stop the immense harm Texans are facing or to protect Texans’ constitutional right to abortion,” Helene Krasnoff, vice president for public policy litigation and law for the Planned Parenthood Federation of America said in a statement. "The Fifth Circuit is now complicit in the scheme of S.B. 8 to deprive Texans access to abortion."

Texas Attorney General Ken Paxton’s office quickly applauded the 5th Circuit’s ruling.

“The Fifth Circuit has ruled on our side - a testament that we are on the right side of the law and life,” the office tweeted Thursday night. “I’ll continue to fight back against the Biden Administration’s lawless overreach.”

The Justice Department can now seek an emergency appeal from the U.S. Supreme Court, asking for it to overrule the 5th Circuit. The Supreme Court previously allowed the law to take effect without ruling on its constitutionally after abortion providers asked the high court to step in.

The law bans abortions as early as six weeks into a pregnancy, before many people know they are pregnant. It has been able to mostly flout the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings because of the unique way it was written.

The statute leaves enforcement of the new restrictions to private citizens instead of state officials by allowing anyone to file lawsuits through the civil court system against people who perform or assist someone in getting an abortion. The law lays out a penalty of at least $10,000 for people or groups that are successfully sued.

Some abortion clinics resumed services outlawed under Texas’ law during the two days it was blocked. The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked during that period could be sued.

The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. That case was brought on by abortion providers and also overseen by Pitman. The 5th Circuit is set to hear oral arguments in the abortion providers’ case no earlier than December.

The same panel of 5th Circuit judges will consider both cases.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.