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Federal Judge temporarily halts Texas Heartbeat law; state to appeal

by | Oct 7, 2021

By Dave Andrusko

A blistering decision Wednesday temporarily blocking Texas’s “Heartbeat Law” by an Obama appointee will be quickly appealed. Texas notified the 5th Circuit Court of Appeals Wednesday night that it would appeal the ruling.

A decision is anticipated within a few days.

A three judge panel of the same  5th Circuit left “in place an order that paused a lawsuit filed by a coalition of abortion providers challenging the measure [S.B.8.] from proceeding at the federal district court level pending an expedited appeal,” according to reporter Jerry Lambe.

Once the Supreme Court declined to block the law, the Department of Justice then filed an emergency motion requesting an order that would prevent Texas from enforcing S.B. 8. while its lawsuit moves through the courts. It was in response to this request that Judge Robert Pitman handed down his decision on Wednesday.

The judge’s impassioned commentary came as no surprise, given the tenor of his questions last week. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” Judge Pitman wrote in his 113-page decision. “This court will not sanction one more day of this offensive deprivation of such an important right,” he added.

As NRL News Today has reported, S.B. 8. prohibits most abortions after about six weeks of pregnancy. Rather than enforcing the law through the state’s executive branch, ordinary citizens are empowered to sue clinics and others who violate the law.

But what about the current situation–when a judge freezes enforcement–if his decision is later overturned?

According to the New York Times’s Sabrina Tavernise and Katie Benner

The law’s novel legal approach extends to what happens if it is temporarily suspended: Clinics can be sued retroactively for any abortions they provide while it is blocked. That means penalties could be imposed when the suspension is lifted for abortions that happened while it was in place, keeping clinics in a fraught legal environment.

“S.B. 8 says if an injunction is dismissed, you are still accountable for abortions you did while you were protected by that injunction,” said John Seago, the legislative director for the anti-abortion group Texas Right to Life.

They further speculate

So even though Judge Pitman ruled in favor of the clinics, they expressed hesitation on Wednesday night about when they might resume full activity.

While all this is going, the Supreme Court has also agreed to hear a case out of Mississippi which bans  abortion after 15 weeks, with rare exceptions. The question before the High Court in Dobbs v. Jackson Women’s Health Organization is whether all prohibitions on abortions performed pre-viability are unconstitutional.

“But there is, of course, precedent in the Court’s jurisprudence for prohibiting abortions before viability,” said Jennifer Popik, J.D., federal legislative director for NRLC. “The 2003 Partial-Birth Abortion Ban Act banned a particular abortion procedure that was used both before and after what is considered viability. It was found to be constitutional by the U.S. Supreme Court in 2007.”

Popik noted, “The NRLC-led debate over partial-birth abortions broke new ground in the abortion debate and the constitutional finding by the Court clearly paved the way for future rulings.”  

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