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Federal appeals court reinstates Texas’ six-week abortion ban — for now

An exam room at Whole Woman's Health of Austin.
Michael Minasi
An exam room at Whole Woman's Health of Austin. Texas' new abortion law bans abortions after about six weeks.

A federal appeals court has temporarily reinstated a Texas law that bans abortions as early as six weeks into a pregnancy.

The Fifth Circuit Court of Appeals, which is considered the most conservative federal appeals court in the country, granted the state's request for a temporary halt to a lower court order blocking enforcement of the law. The U.S. Justice Department, which is the plaintiff in this case, has been given until Oct. 12 to respond.

The temporary stay on the lower court ruling is slated to be in effect until then.

Brigitte Amiri, the deputy director of the ACLU Reproductive Freedom Project, called the ruling “deeply alarming” because it will allow Texas’ abortion ban to go back into effect “at a time when abortion providers were quickly starting to resume abortion care” for patients who are further along than six weeks into their pregnancy.

“Today’s order means that the havoc that this law has created is allowed to restart,” she said. “Make no mistake: The devastating impacts of this ban will be just as bad this time around. We hope the case moves swiftly so the law can be halted again.”

Texas Right to Life, a major proponent of Texas' abortion ban, said in a statement, however, that the ruling was a victory.

"This is an answered prayer,” said Kimberlyn Schwartz, the group’s spokesperson. “We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will continue to defeat these attacks on our life-saving efforts."

Texas' law, Senate Bill 8, was in effect for roughly five weeks before the lower court intervened. In that time, providers say they were forced to turn away hundreds of people seeking abortions.

Because most women don’t realize they're pregnant until after six weeks, that means the majority of people seeking an abortion in Texas were unable to get one. Texas’ law makes no exception for victims of rape or incest. The only exception to the ban was to save the life of the pregnant person in a medical crisis.

Besides being one of the most restrictive abortion laws in the country, SB 8 was also uniquely designed to evade court action.

Texas lawmakers drafted the law to be enforced by private citizens rather than state agencies. SB 8 allows anyone — including people who don’t live in Texas — to sue someone they believe provided an abortion after six weeks. It also holds anyone liable who “aids or abets” someone who gets the procedure after that limit. The law offers a minimum of $10,000 in damages for a successful lawsuit.

Since the law went into effect Sept. 1, many clinics have stopped all abortion services or have adhered to the strict limit. Amy Hagstrom Miller, the CEO and founder of Whole Woman’s Health, recently told reporters her staff has been living with the fear of being sued.

“These folks don’t have attorneys or funds to hire attorneys,” she said. “Many of our physicians have opted out of providing care while SB 8 is in effect; it being just too risky for them to do so.”

Abortion providers in Texas say the lower court ruling that temporarily blocked the law provided a short reprieve. Anticipating the Fifth Circuit would quickly overturn the ruling, only a few clinics in the state expanded their abortion services past six weeks.

Abortion providers have said they are hoping to get more permanent relief from the U.S. Supreme Court.

Nancy Northup, the president and CEO of the Center for Reproductive Rights, said in a statement Friday night that “the Supreme Court needs to step in and stop [the] madness” caused by the Fifth Circuit’s decision.

“Patients are being thrown back into a state of chaos and fear, and this cruel law is falling hardest on those who already face discriminatory obstacles in health care, especially Black Indigenous, and other people of color, undocumented immigrants, young people, those struggling to make ends meet, and those in rural areas,” she said. “The courts have an obligation to block laws that violate fundamental rights.”

The nation’s highest court was asked to intervene shortly before the law went into effect, but justices declined. Abortion providers petitioned the court again, but it has yet to respond.

Providers say one of the longer term concerns is what will happen to clinics if the law continues to stay in effect. Hagstrom Miller said clinics are facing serious financial strains as they turn away the majority of people seeking an abortion.

She said access to the procedure in the state could be permanently altered if the law isn’t blocked while the challenges to it move through the courts.

“If clinics close because SB 8 is enforced long enough,” Hagstrom Miller said, “the damage will be done, even if it’s eventually struck down.”

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Ashley Lopez covers politics and health care. Got a tip? Email her at Follow her on Twitter @AshLopezRadio.
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