Texas abortion ban keeps making its way through court system

Appeals court ruling likely sets up Supreme Court action next

Abortion rights and anti-abortion protesters demonstrate in front of the Supreme Court on Oct. 4. (Bill Clark/CQ Roll Call file photo)
Abortion rights and anti-abortion protesters demonstrate in front of the Supreme Court on Oct. 4. (Bill Clark/CQ Roll Call file photo)
Posted October 15, 2021 at 9:38am

A federal appeals court late Thursday allowed Texas to keep its abortion ban in place while courts contemplate a legal challenge from the Justice Department, a ruling that likely tees up another quick appeal to the Supreme Court over the new law.

The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, sided with Texas in the latest twist in the legal drama over the law. Known as SB 8, it all but bans abortion after about six weeks of pregnancy.

The Justice Department sought an emergency order to block a law it described as “unconstitutional on its face,” and argued that Texas has essentially nullified rulings from the Supreme Court that established a constitutional right to abortion.

[House Oversight Committee debates Texas abortion law]

The Biden administration says the law has banned about 85 percent to 95 percent of all abortions in Texas, and at a time before many women know they are pregnant. It says many Texas women are crossing state lines to get abortions, while others struggle to find the time and resources to do so.

Last week, U.S. District Judge Robert Pitman sided with the Justice Department and entered an emergency order for Texas to prevent state officials and judges from doing anything to enforce the law. Pitman wrote that the law was unlawfully preventing women from exercising their constitutional rights.

“That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote.

But Texas appealed that emergency order to the 5th Circuit, and now that order is on hold, and the law in effect, while the appeals court handles the lawsuit.

The action comes six weeks after the 5th Circuit and the Supreme Court declined to stop the Texas law from going into effect, part of a separate lawsuit brought by abortion providers.

Both courts in that first case cited the unusual way that Texas crafted the law so that private citizens file lawsuits to enforce it. That design has outflanked the typical legal process for challenges from abortion rights advocates, particularly questions about how a court would order it to not go into effect.

On Thursday night, the 5th Circuit cited those same reasons in a one-paragraph order in the Justice Department case. And the appeals court set up an expedited review at the 5th Circuit for both the Justice Department and abortion providers cases. The Justice Department likely won’t want to wait, and could ask the Supreme Court to step in to restore the district court’s emergency order to halt the Texas law.

The Justice Department request would have some of the same legal tangles as the abortion provider case, where a 5-4 majority of the Supreme Court cited the “complex and novel” procedural questions in a decision not to step in and stop the law.

And the Justice Department lawsuit also adds an extra dollop of uncertainty about whether the Justice Department has the right to bring such a lawsuit against Texas in the first place.