Texas fetal heartbeat bill remains in effect with latest ruling by 5th Circuit Court of Appeals

AP Photo/Eric Schultz

The legal challenges to SB 8, the Texas fetal heartbeat law, continue. Keeping up with the judicial decisions since the law went into effect on September 1 feels a lot like watching a ping pong game. Late Thursday night, the 5th Circuit Court of Appeals issued an order that SB 8 can continue to be in effect while the law’s constitutionality is challenged. This means that, at least for today, abortion is banned in Texas after a fetal heartbeat is detected, usually six weeks into a pregnancy.

The three justices on the 5th Circuit Court of Appeals in New Orleans ruled 2-1 in favor of keeping SB 8 in effect while also agreeing to hear oral arguments in the Biden administration’s lawsuit filed against Texas to undo the law. The 5th Circuit Court of Appeals leans conservative in its rulings. The court reasons that Texas will likely prevail in the “virtually unprecedented suit”. The Justice Department does not have the standing to sue. The DOJ’s lawsuit violates the separation of powers principles according to the ruling.

For those keeping track at home, this is the third time the 5th Circuit court has ruled in favor of the Texas law. Judges James C. Ho, who was nominated by Donald Trump, and Catharina Haynes, who was nominated by George W. Bush voted in the affirmative while Judge Carl E. Stewart, a nominee of Bill Clinton, dissented.

A federal judge earlier this month blocked the law. That ruling, though, was only in place for about 48 hours. Abortionists quickly received patients but their resumption of business was short-lived. Biden has condemned the law and the DOJ filed a lawsuit to stop it, arguing that the federal government outranks a state on such laws. That, to me, is why the 5th Circuit’s statement that the DOJ is violating the separation of powers principles sounds particularly compelling. I don’t think a previous ruling has strongly come out in favor of the power of the state. Last week the same panel on the court issued a temporary decision to reinstate the law after a federal judge in Austin, liberal U.S. District Judge Robert Pitman, temporarily stopped the ban. The law was reinstated pending further review.

The 5th Circuit has not scheduled oral arguments yet and it could be months before they take place. Texas Right to Life issued a brief statement, pleased with the latest development. Kim Schwartz, media and communication director for the pro-life group said “We are very grateful. We ultimately believe that we’ll be victorious.” DOJ did not immediately respond. Pro-abortion advocates are not pleased. Abortion is big business with massive amounts of money involved.

“Yet again, the Fifth Circuit has shown that it is unwilling to take action to stop the immense harm Texans are facing or to protect Texans’ constitutional right to abortion,” Helene Krasnoff, vice president for public policy litigation and law for the Planned Parenthood Federation of America said in a statement. “The Fifth Circuit is now complicit in the scheme of S.B. 8 to deprive Texans access to abortion.”

Texas Attorney General Ken Paxton celebrated the victory via tweet when the announcement was made last night.

The uniqueness of this law, as it is written, is that it allows private citizens to enforce abortion restrictions instead of state officials. Anyone can file a lawsuit in the civil court system against abortion providers who perform abortions past the detection of a fetal heartbeat. There is a tip line that citizens can call to report violations and financial rewards are available for the tips. There is a penalty of at least $10,000 for people or groups who are successfully sued. The Texas law is seen as a way to usher in the abolishment of Roe v Wade. In the meantime, professional organizations are coming forward to support the abortion industry.

A coalition of 19 medical organizations had sided with the Biden administration, filing an amicus brief in the appeals court saying SB 8 “violates the core principles governing the practice of medicine and endangers the lives and well-being of women of reproductive age.” Among those signing onto the brief were the American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American Academy of Nursing, National Association of Nurse Practitioners in Women’s Health and the American Psychiatric Association.

Now we wait for the next ping pong ball to be hit over the net. This will drag on for months.