Texas law prohibits abortion after fetal heart activity is detected, which usually happens around six weeks into pregnancy and usually before a woman knows she is pregnant. It has been the subject of heated lawsuits since it went into effect early last month.
The Justice Department challenged the law in federal court. U.S. District Judge Robert Pitman on Oct. blocked the ban. Texas appealed, and two days after Pitman’s order, the appeals tribunal’s three-judge panel put on a short administrative hold on order. The appeals board is extending the deadline as it evaluates Pitman’s appeal.
The Appeals Judges, Catharina Haynes, appointed by George W. Bush, and James Ho, appointed by Donald Trump, voted to allow the law to remain in effect. Judge Carl Stewart, appointed by Bill Clinton, disagreed.
With the last move of the 5th Chamber, the Ministry of Justice is expected to apply to the Court of Cassation for the suspension of the law.
The Supreme Court refused to block the law after clinics requested an intervention earlier this year.
Law’s new approach stymies trying to thwart him
The morning after Pitman’s order came, some clinics in Texas continued to provide abortions to patients those who are more than six weeks pregnant. They did so at some legal risk, as Texas law allows enforcement proceedings for abortion to be initiated while a court order blocking the law is in effect if the order is later overturned by a higher court.
Rather than task government officials with enforcing the ban through criminal or administrative penalties, the law mandates private citizens to file lawsuits in state court against individuals or providers who assist a woman in obtaining an abortion after fetal cardiac activity has been detected.
The design of this enforcement mechanism has mostly been successful in limiting other legal attempts by clinics and others to enforce the law, often complicating the usual way of seeking court orders against specific government officials responsible for enforcement. restrictive abortion laws.
“fully aware that depriving its citizens of this right by direct state action would be clearly unconstitutional, the State has devised an unprecedented and transparent legal plan to do just that,” Pitman said. an order that temporarily suspends the law last week.
“Since the enactment of SB 8, women have been unlawfully prevented from exercising control over their lives in ways protected by the Constitution,” Pitman said. Said. “It is up to them to decide whether other courts can find a way to avoid reaching that conclusion; this Court will not allow another day of this aggressive deprivation of such an important right.”
Paxton argued that even though the law was drafted to avoid scrutiny in federal court, the Biden administration was not legally entitled to sue the case.
“The stance of the federal government is reduced to a simple but faulty claim: A law that prevents pre-enforcement review in federal district court is a clear threat to our constitutional order,” the Republican state attorney general said. “This is nonhistorical bullshit.”
A key issue in the case is whether the federal government has the legal right or “status” to bring the challenge. The Justice Department says so.in part because the private individuals suing act as agents of the state and the government has the power to protect the fundamental rights of its citizens.
When US Attorney General Merrick Garland announced the case last month, he called the law a “plan” and said it was “clearly unconstitutional according to long-standing Supreme Court precedents.”
“The United States has the authority and responsibility to ensure that no state deprives individuals of their constitutional rights through a specially designed legislative plan to prevent the defense of these rights,” he said.
But Paxton says the federal government has no right to intervene.
He is supported by a lawsuit filed by Jonathan Mitchell, one of the law’s architects, who currently represents three people interested in suing people who might violate the law.
Mitchell wrote that states “have the means in their arsenal to limit opportunities for the judiciary to declare their statutes unconstitutional.”
Mitchell said states can structure their laws to “reduce or eliminate” opposition to them before they are enforced. “And that’s what Texas does,” he said. “By banning government officials from enforcing the statute and giving citizens the power to enforce the law through specific acts of civil execution, Texas has distanced the judiciary from such challenges”.
Mitchell added that abortion is not “a constitutional right,” but “a court-invented right that may not have majority support in the current Supreme Court.”