Texas abortion ban still in effect after appeals court again sides with state; DOJ to appeal to Supreme Court

A Texas law banning most abortions is still in effect, after a federal appeals court sided with Texas officials a second time and again suspended a lower court ruling that had blocked the law.

A three judge panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 late Thursday, refusing a request from the U.S. Department of Justice to allow a lower court ruling blocking enforcement of the Texas law to stand. The law prohibits abortions after six weeks of pregnancy.

Texas Attorney General Ken Paxton celebrated the decision in a tweet, calling it "a victory for life!"

Anthony Coley, spokesman for the Justice Department, said it plans to appeal Thursday's ruling to the U.S. Supreme Court, which previously allowed the law to go into effect by declining to intervene at the request of Texas abortion providers.

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“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8,” Coley said.

The Texas law is the most restrictive in the nation and includes a unique enforcement provision that is at the center of the ongoing legal battle.

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Senate Bill 8 prohibits government officials from enforcing the ban and instead allows any private individual to sue abortion providers or those who aid or abet abortions in violation of the law. Successful litigants can collect at least $10,000.

The federal government sued the state over the ban on Sept. 9, a little more than a week after it took effect. On Oct. 6, U.S. District Judge Robert Pitman, an Obama appointee in Austin, blocked the law from going into effect.

Thousands gathered at the Austin Capitol to demand lawmakers reconsider the recent abortion legislation.

In his 113-page decision, Pitman said the Texas law is an "offensive deprivation of such an important right" and creates an "unprecedented and transparent statutory scheme," allowing the state to skirt traditional avenues of judicial review.

Texas Attorney General Ken Paxton and attorneys on his staff have argued that the state is not responsible for enforcing the law and therefore cannot be the target of a lawsuit over the law.

After Pitman's ruling, at least one abortion provider in the state resumed offering procedures that would violate the law, despite concerns about future liability. The law states that providers could still be subject to litigation for abortions performed under a temporary court order blocking the law.

Two days after the law was blocked, the 5th Circuit, among the most conservative appellate courts in the nation, issued an emergency order restoring the law. Thursday's decision is more formal, and will stand while the panel hears oral arguments in the underlying lawsuit.

Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said "time and again" the 5th Circuit has allowed unconstitutional abortion restrictions to go into effect, and SB 8 is no different.

“It’s outrageous but unsurprising that the Fifth Circuit has once again denied Texans their fundamental reproductive rights," she said in a statement. "We hope the Department of Justice urgently appeals this order to the Supreme Court to restore Texans’ ability to obtain abortion care after six weeks in pregnancy and we hope the Supreme Court will put an end to harms this law is causing.”

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