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Fifth Circuit Court of Appeals Allows Texas Anti-Abortion Law to Again Take Effect — At Least for Now

Pro-choice and anti-abortion activists protest alongside each other during a demonstration outside of U.S. Supreme Court on October 4, 2021 in Washington, D.C. (Photo by Kevin Dietsch/Getty Images.)

Pro-choice and anti-abortion activists protest alongside each other during a demonstration outside of U.S. Supreme Court on October 4, 2021 in Washington, D.C.

The Fifth Circuit Court of Appeals issued a temporary stay late Friday night against a district court judge’s injunction against the State of Texas.  The district court’s injunction blocked the state from enforcing a restrictive anti-abortion measure.  The Fifth Circuit’s stay means S.B. 8, also called the “Texas Heartbeat Act,” is back in effect.

District court judge Robert Pitman — a Barack Obama appointee to the bench in the Western District of Texas (Austin Division) — on Wednesday night called S.B. 8 “flagrantly unconstitutional.”   The three-judge panel that on Friday jettisoned Pitman’s two-day-old injunction was comprised of circuit judges Carl E. Stewart (a Bill Clinton appointee), Catharina Haynes (a George W. Bush appointee), and James C. Ho (a Donald Trump appointee).  The three circuit judges issued the stay “per curiam” — an order of the complete court.  None signed it individually.

S.B. created sweeping and seemingly limitless civil liabilities for abortion providers who terminate pregnancies after cardiac activity is detectable in a human embryo — generally about six weeks into pregnancy.  The bill allows private parties — literally anyone — to sue abortion providers and connected parties who perform such abortions.  Critics of the law say S.B. 8 conflicts with U.S. Supreme Court precedent which currently forbids state governments from placing an “undue burden” on pregnant parties who wish to seek abortions prior to the point a fetus is viable outside the womb.

Some patients seeking abortions have fled the state.

The Fifth Circuit’s one-page order granted an emergency motion filed by the State of Texas immediately after the district judge’s preliminary injunction went into effect.  It says the injunction would be “held in abeyance pending further order by this motions panel.”

The U.S. Department of Justice sued the State of Texas to block its court clerks, judges, and other government parties from accepting S.B. 8 lawsuits by private parties.  The DOJ must respond to the emergency motion by Tuesday, Oct. 12 at 5:00 p.m.

Attorneys for the State of Texas said the Fifth Circuit needed to act immediately to protect the sovereignty of its political processes:

The United States has obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a State which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized. This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court.

The DOJ previously argued at the district court level that S.B. 8 challenged the supremacy of federal law and that drastic action was necessary.

The State of Texas again countered:

The district court’s injunction violates the separation of powers at every turn. First, the district court exceeded Article III’s limits. The federal government is an improper plaintiff because it has no standing to “merely litigat[e] as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976) (per curiam). And Texas is an improper defendant because it “has no interest ad- verse to” those challenging the constitutionality of S.B. 8, which is enforced through private litigation. Muskrat v. United States, 219 U.S. 346, 361 (1911).

Second, the district court wrongly granted an injunction in a proceeding Congress never authorized. Indeed, Congress’s detailed remedial scheme for the enforcement of Fourteenth Amendment rights precludes recognition of the free-float- ing cause of action “at equity” that the district court found. The United States can- not seek such an extraordinary, novel form of equitable relief when Congress has denied it a cause of action through which to do so.

The state continued by pointing out additional alleged sins by the district court judge who issued the injunction against S.B. 8 just days prior:

Third, a federal court cannot enjoin a state court “from proceeding in [its] own way to exercise jurisdiction,” Ex parte Young, 209 U.S. 123, 163 (1908), let alone enjoin all of a State’s courts from doing so. Such an injunction—which the district court ordered—is “a violation of the whole scheme of our government.” Id.; see also Whole Woman’s Health v. Jackson, No. 21-50792, 2021 WL 4128951, at *5 (5th Cir. Sept. 10, 2021) (per curiam). A court “cannot lawfully enjoin the world at large,” Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (Hand, J.), let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent.

The ACLU balked at the Fifth Circuit’s move by warning that S.B. 8 “incentivizes anyone — including abusive partners, estranged relatives, and complete strangers — to act as bounty hunters and take doctors, health centers, and anyone who helps another person access abortion to court.”

“If successful, they could collect at least $10,000 for each abortion, paid by the person who is sued,” the ACLU cautioned in a press release.

“This is a deeply alarming order that will allow Texas’ abortion ban to go back into effect at a time when abortion providers were quickly starting to resume abortion care for all patients,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “Today’s order means that the havoc that this law has created is allowed to restart. Make no mistake: The devastating impacts of this ban will be just as bad this time around. We hope the case moves swiftly so the law can be halted again. We also need the Senate to quickly pass the Women’s Health Protection Act, a federal safeguard that has never been more urgent in light of the nightmare Texans now find themselves in and the grim future people in other states could soon face.”

“The Fifth Circuit has failed again to preserve a critical right that has long existed in the United States,” said Adriana Piñon, senior staff attorney at the ACLU of Texas. “We’ve already seen the devastation caused by allowing this extremist law to exist for a few weeks. Texans are traveling hundreds of miles to access abortion care in overwhelmed clinics outside the state. People without the money to travel will be forced to continue with pregnancies they decided not to carry. That reality will especially impact communities of color. Black women have a maternal mortality rate three times that of white women, and this law will only make that worse. Abortion is critical health care, and no one should be denied safe and legal access to it.”

Read the Fifth Circuit’s order and the state’s emergency motion to stay the preliminary injunction below:

[Photo by Kevin Dietsch/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.