A US federal appeals court quickly allowed Texas to ban most abortions again Friday night, just one day after clinics began racing again to serve patients for the first time since early September.
A one-page injunction by the 5th U.S. Court of Appeals reinstated the nation’s strictest abortion law, which bans abortions as soon as heart activity is detected, usually around six weeks. It makes no exceptions in cases of rape or incest.
“Patients are thrown back into a state of chaos and fear,” said Nancy Northup, president of the Center for Reproductive Rights, which represents several Texas clinics that had briefly resumed normal abortion services.
She called on the US Supreme Court to “intervene and stop this madness.”
‘Great news tonight’
Clinics had braced for the New Orleans-based appeals court to act quickly after U.S. district judge Robert Pitman, an appointee of President Barack Obama, on Wednesday suspended a Texas law calling an “objectionable deprivation” of constitutional right. mentioned abortion. Knowing that order might not last long, a handful of clinics in Texas began performing abortions again after six weeks and booked new appointments for this weekend.
But barely 48 hours passed before the appeals court accepted Texas’s request to set Pitman’s ruling aside — at least for now — pending further arguments. It gave the Biden administration, which had filed the lawsuit, until Tuesday to respond.
“Great news tonight,” Republican Attorney General Ken Paxton tweeted. “I will fight federal overreach at every turn.”
Texas had about two dozen abortion clinics before the law went into effect Sept. 1. During the short period in which the law was in effect, many Texas doctors remained unwilling to perform abortions, fearing that doing so could still put them in legal jeopardy.
Abortion providers threatened with lawsuits
The new law threatens Texas abortion providers with lawsuits from individuals, who are entitled to collect at least $10,000 in damages if they succeed. That new approach to enforcement is why Texas had managed to dodge a previous wave of legal challenges before this week.
The 5th Circuit Court of Appeals had already let the law go into effect in September, this time coming just hours after Paxton’s office urged them to take action.
His office told the court that since the state does not enforce the law, he cannot be held responsible for the files of private individuals that Texas cannot prevent.
It’s unclear how many abortions Texas clinics have performed in the short time the law was suspended. At least six abortion providers had resumed normal services or were preparing to do so, according to the Center for Reproductive Rights.
Bans abortion before some women know they are pregnant
Prior to Pitman’s blistering 113-page injunction, other courts had refused to stop the bill banning abortions before some women even know they’re pregnant. So did the Supreme Court, which in September allowed it to proceed without ruling on its constitutionality.
One of the first providers to resume normal services this week was Whole Woman’s Health, which operates four clinics in Texas.
Amy Hagstrom Miller, president of Whole Woman’s Health, said her clinics had called in some patients on a list early Thursday in case the law was blocked at some point. Other appointments were scheduled for the next few days and the phone lines were busy again. But some of the 17 doctors at the clinic still refused to perform abortions because of the legal risk.
Pitman’s order was the first legal blow to Senate Bill 8. In the weeks since the restrictions came into effect, abortion providers in Texas said the impact was “exactly what we feared.”
Patients decreased 80%
Planned Parenthood says the number of patients from Texas at its clinics in the state has fallen by nearly 80 percent in the two weeks after the law went into effect. Some health care providers have said clinics in Texas are now threatening to close as neighboring states struggle to keep up with a wave of patients who have to drive hundreds of miles for an abortion.
Other women, they say, are forced into full term pregnancies.
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It is unknown how many abortions have been performed in Texas since the law went into effect. State health officials say additional reporting requirements under the law will not make September data available on its website until early next year.
A 1992 U.S. Supreme Court decision prevented states from banning abortions before viability, the point at which a fetus can survive outside the womb, around 24 weeks of gestation. But the Texas version has so far outsmarted the courts because it leaves enforcement to individuals to file lawsuits, not prosecutors, which critics say amounts to a premium.
“This is an answered prayer,” said Kimberlyn Schwartz, spokesperson for Texas Right to Life, the state’s largest anti-abortion group.