Fifth Circuit Reinstates Texas Abortion Ban: “The Fight Is Far From Over”

Update Saturday, Oct. 9, at 8:00 a.m. PT: Late Friday night, the Fifth Circuit Court of Appeals in Louisiana reinstated the Texas abortion ban, reversing a district court’s ruling blocking S.B. 8. The Texas abortion ban is now back in effect.

“For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care.”

Nancy Northup, president and CEO of the Center for Reproductive Rights

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An abortion rights rally outside the Supreme Court in June 2016. On Wednesday, U.S. District Judge Robert Pitman ruled S.B. 8 is an unconstitutional violation of the right to abortion established by the Supreme Court cases Roe v. Wade and Casey v. Planned Parenthood.  (Lorie Shaull)

On Wednesday, a federal district court in Texas temporarily blocked the state’s six-week abortion ban in a lawsuit filed by the U.S. Department of Justice. Since the Supreme Court allowed the law to go into effect on September 1, the ban has forced most Texans to travel out of the state for abortion health care or continue unwanted pregnancies, while others are self-managing abortions by ordering pills online.

“This injunction is a critical first step in restoring abortion rights and services in Texas,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care.”

In a 113-page ruling, U.S. District Judge Robert Pitman in Austin ruled that the law—S.B. 8—is an unconstitutional violation of the right to abortion established by the Supreme Court cases of Roe v. Wade and Casey v. Planned Parenthood.

“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” said Judge Pitman. “This court will not sanction one more day of this offensive deprivation of such an important right.”

U.S. Attorney General Merrick Garland called the court’s decision “a victory for women in Texas and for the rule of law.”

On September 1, most clinics in Texas ceased offering abortion after six weeks. Planned Parenthood has reported an 80 percent drop in the number of patients at its Texas clinics in in the two weeks after S.B. 8 took effect. Patients—if they had the resources—began traveling to neighboring states to obtain abortion health care. The Guttmacher Institute estimates the law has increased average distance travelled to obtain abortion fourteen times, from 17 miles to 247 miles.

Massachusetts Attorney General Maura Healey, who led 24 state attorneys general in filing a brief in support the Justice Department’s lawsuit, described the disastrous impacts of the law.

“For weeks, patients in Texas have been forced to travel thousands of miles to nearby states to access safe, legal abortion. They have driven in the dead of night in secret, for fear of bounty hunters chasing their friends and families. Those who cannot afford the trip have been forced into pregnancy by the state of Texas, forever altering the course of their lives. This law is creating dangerous public health and economic ripple effects nationwide.”

The law has no exceptions for rape or incest.

“A month ago, five Supreme Court justices shrugged their shoulders and allowed this horrific law to take effect,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “The result has been devastating: people who need abortion care and have resources have been forced to flee the state and those without resources or the ability to travel have been forced to remain pregnant against their will. The law has impacted the most marginalized the harshest, including people of color and young people. This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”

Within hours of Pitman’s ruling, the White House issued a statement.

“Tonight’s ruling is an important step forward toward restoring the constitutional rights of women across the state of Texas,” said the White House Press Secretary Jen Psaki. “S.B. 8 not only blatantly violates the right to safe and legal abortion established under Roe v. Wade, but it creates a scheme to allow private citizens to interfere with that right and to evade judicial review.”

The law attempts to make an end run around the Constitution by empowering private citizens—even complete strangers—to sue anyone who helps another person obtain an abortion, rewarding them $10,000 or more plus attorney fees if they win a case to be paid for by the person who is sued. By delegating authority to enforce the law to private individuals, Texas is trying to circumvent the Constitution because abortion rights are protect by the 14th Amendment, which applies to state action but not private action.

As soon as Pitman’s decision came down yesterday, advocates expressed concern that the decision would be overturned on appeal.

“While we are relieved that a court has finally blocked this unconstitutional law, today’s court order is only temporary,” said Naples. “This is not the end. We know the state of Texas will keep defending this malicious ban.”

“Though the court’s ruling offers a sigh of relief, the threat of Texas’s abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they’ve banned abortion entirely,” said Amiri. 

And sure enough, Texas immediately filed notice that it will appeal Pitman’s ruling to the 5th U.S. Circuit Court of Appeals—the court that previously allowed the law to go into effect in a different lawsuit brought by the Center for Reproductive Rights. Texas is expected to seek an immediate stay of Wednesday’s order.

But even with the law temporarily blocked, doctors still fear that they could be sued. S.B. 8 explicitly says defendants sued under the law cannot rely on any decision blocking the law that is  “overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law.

“The clinics and doctors we represent hope to resume full abortion services as soon as they are able, even though the threat of being sued retroactively will not be completely gone until S.B. 8 is struck down for good,” said Naples. “The cruelty of this law is endless.”

Whole Woman’s Health, a network of abortion clinics, said it is making plans to resume abortions up to 18 weeks “as soon as possible.”

Both Attorney General Merrick Garland pledged to continue the fight to uphold women’s constitutional right to abortion.

“It is the foremost responsibility of the Department of Justice to defend the Constitution,” Garland said in a statement. “We will continue to protect constitutional rights against all who would seek to undermine them.”

The Supreme Court, which opened a new term last Monday, will hear arguments on December 1 in an abortion case—Dobbs v. Jackson Women’s Health Organization—to decide whether pre-viability abortion bans are unconstitutional. With Donald Trump’s three appointments to the court, advocates fear the new 6-3 anti-abortion supermajority will overturn Roe v. Wade and end the constitutional right to abortion established almost 50 years ago. Meanwhile, the U.S. House of representatives voted on September 24 to pass the Women’s Health Protection Act to protect abortion rights.

“The fight has only just begun, both in Texas and in many states across this country where women’s rights are currently under attack,” said Psaki. “That’s why the president supports codifying Roe v. Wade, why he has directed a whole-of-government response to S.B. 8, and why he will continue to stand side-by-side with women across the country to protect their constitutional rights.”

“Just a single day of S.B. 8 being in effect was too many, let alone 36,” said Sen. Patty Murray (D-Wash.), chair of the Senate Committee on Health, Education, Labor and Pensions (HELP). “Make no mistake: Extreme Republicans are still pushing to enforce Texas’s abortion ban, and across the country and in the Supreme Court, Roe is still on the line. We must protect the right to abortion and ensure everyone has control over their own bodies—and that starts with passing the Women’s Health Protection Act in the Senate.”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Chair of American Studies and a professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.