After Two-Day Pause, Abortion Ban Reinstated

Women's March ATX supporters protest outside the Texas State Capitol on Oct. 2 (Photo by Jana Birchum)

Following a 48-hour pause last week, the Texas Senate Bill 8 abortion ban is back in effect, after the largely conservative 5th U.S. Circuit Court of Appeals sided with the state and allowed the nation's most extreme anti-choice law to remain in place while challenges move through the courts.

A short-lived victory for reproductive rights advocates and the U.S. Department of Justice, which has sued Texas to overturn SB 8, came Oct. 6. when U.S. District Judge Robert Pitman issued a preliminary injunction against what he deemed an "offensive deprivation" of Texans' constitutional rights under the landmark 1973 Roe v. Wade ruling, which is itself being challenged at the U.S. Supreme Court. The Texas law, which took effect Sept. 1 and includes no exception for rape or incest, bars abortion care after embryonic cardiac activity can be detected, which is typically around six weeks, before many people know they're pregnant and long before the fetus is viable outside the womb (the Roe threshold). In an attempt to dodge advocates' efforts to block the law in court, SB 8 is enforceable by any private citizen, anywhere, who can sue abortion care providers or any other person or group that "aids or abets" abortion care – and claim a $10,000 bounty if they prevail.

As intended, this vigilante scheme made it possible for the 5th Circuit to slow-walk an emergency challenge by providers and allow SB 8 to take effect, and for SCOTUS, now with three new anti-choice justices, to decline via its "shadow docket" to intervene in a 5-4 ruling in early September. That's when the U.S. DOJ filed suit; Attorney General Merrick Garland called Pitman's order "a victory for women in Texas" and for the rule of law.

"From the moment Senate Bill 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution," wrote Pitman, whose court sits in Austin, in his scathing 113-page order. "That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right."

Just two days later, the 5th Circuit suspended Pitman's order as requested by Texas Attorney General Ken Paxton, reinstating SB 8 and asking for briefs to be filed this week by both sides. On Monday, Oct. 11, DOJ obliged, writing in its brief that allowing SB 8 to remain in effect would cause "substantial harm to the United States' sovereign interests and would disserve the public interest." By "both defying the Constitution and frustrating judicial review, Texas has not merely protracted its assault on the rights of its citizens; it has repudiated its obligations under our national compact."

For 40 days, almost all abortion care in Texas has ceased. In its filings, the DOJ recounts providers' descriptions of the devastating and traumatic impact on Texas patients, and the backlogs and longer wait times at out-of-state clinics. Stressing the "endless cruelty" of the law, Nancy Northup, president of the Center for Reproductive Rights, which led the legal challenge against SB 8 from providers, noted that clinics and doctors who provided abortion care during the 48 hours Pitman's injunction remained in effect still face the threat of being sued retroactively.