Protesters of Senate Bill 8 stand at the front steps of the Texas Capitol during a march last weekend. Photo by Michael Gonzalez/The Texas Tribune
Oct. 9 (UPI) -- The 5th U.S. Circuit Court of Appeals late Friday temporarilyallowed Texas' near-total abortion ban -- the strictest in the nation -- to again be enforced after freezing a federal judge's temporary block of the law. The state appealed the order just two days after it was issued.
A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continueuntil at least Tuesday, when a response from the Justice Department is due. After the court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or allow a lower court to once again temporarily block it.
The court would not be determining the overall case's outcome at this point -- but it would decide whether the law could continue to stand while court proceedings unfold.
In their request for an emergency stay, Texas attorneys argued that U.S. District Judge Robert Pitman's order to temporarily block enforcement of the state's abortion restrictions "violates the separation of powers at every turn."
That's because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system against people who perform or assist someone in getting an abortion. The law lays out a penalty of at least $10,000 for people or groups that are successfully sued.
The abortion law allows for retroactive enforcement -- meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.
A day after Pitman's order, at least one major provider in the state -- Whole Woman's Health -- had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions outlawed by the statute would now be vulnerable to lawsuits after Friday's order.
"We do understand that it does open us up to some risk. We have to wait and see," said Amy Hagstrom Miller, CEO of Whole Woman's Health. "We have a lot of lawyers on speed dial these days."
Miller said her organization and physicians in her clinics are on edge.
"But not for a second do we question that it was the right thing to do," she said. "People need our help, and they shouldn't be put through this."
The organization will comply with the law once again, she said. Already several appointments had been made for Monday, so clinics will have to cancel them.
"Unfortunately, there's going to be a lot of phone calls we have to make," she said.
Kim Schwartz, media and communication directorfor the anti-abortion groupTexas Right to Life, said her organization didn't have concrete plans to file lawsuits yet but is "interested" in the possibility.
"Whole Woman's Health is going to be vulnerable to lawsuits because they chose to violate the statute over the last couple days," she said.
The organization previously vowed to seek legal action against any violators of the law when credible evidence exist. Since the law first went into effect, it has not yet filed any lawsuits made possible by SB 8 against those who have helped someone get an abortion.
"This ruling is an answered prayer," Schwartz said. "We're very excited about this ruling and hope to see many more victories to come."
The ACLU released a statement Friday night condemning the 5th Circuit's decision.
"This is a deeply alarming order that will allow Texas' abortion ban to go back into effect at a time when abortion providers were quickly starting to resume abortion care for all patients," Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. "Today's order means that the havoc that this law has created is allowed to restart... we hope the case moves swiftly so the law can be halted again."
In his order, Pitman called the law an "unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right."
Texas attorneys argued in their Friday appeal that the Justice Department's request to block the law was an overstep of the federal government.
"This court's immediate intervention is necessary to vindicate Texas's sovereign interest in preventing a single federal district court from superintending every Texas court," Texas attorneys wrote in Friday's request.
The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas' abortion law. Pitman is also overseeing that case, which was brought on by abortion providers.
James Pollard contributed to this story.
This article originally appeared in The Texas Tribune. Read the original here.The Texas Tribune is a non-profit, non-partisan media organization that informs Texans -- and engages with them -- about public policy, politics, government and statewide issues.