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Appeals court allows Texas abortion ban to remain in effect


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Zelda Caldwell - published on 10/15/21

The court refused the Justice Department’s request to lift a ban on abortions as early as six weeks of gestation.

Texas’ abortion ban, considered the most restrictive abortion law in the nation, will remain in effect, a federal court ruled on Thursday. 

The law, which was enacted on September 1, bars abortion after the point where a fetal heartbeat is detected, at around six weeks gestation. 

In its ruling, the U.S. Court of Appeals for the 5th Circuit denied the Biden Administration’s Justice Department’s request to reinstate a federal district judge’s decision to block the ban. Thursday’s order follows a temporary decision last week by the same court to reinstate the ban which had, two days earlier been suspended.

The decision is expected to be appealed to the U.S. Supreme Court, which on September 2 declined to block the law in a suit filed by abortion providers and pro-abortion activists. The High Court did not decide on the constitutionality of the law at that time, rather their decision was based on whether the law should remain in place while it goes through the appeals process.

Deputization of citizens to sue abortion clinics

The Texas law is unique in that it prohibits public officials from enforcing it. Ordinary citizens are are authorized to sue abortion clinics that violate the ban for at least $10,000 per illegal abortion.

This novel arrangement has made it difficult for abortion advocates to stop the ban in the courts as it is not clear whether the federal government has the legal standing to challenge the law.

According to a CNN report, Jonathan Mitchell, one of the architect’s of the Texas law, filed a brief, arguing that the judiciary is limited in its ability to declare such a law unconstitutional.

In it he wrote that the states “have tools in their arsenal to limit the judiciary’s opportunities to pronounce their statutes unconstitutional.”

CNN reported:

Mitchell said that states can structure their laws in a way that “reduces or eliminates” them from being challenged before they are enforced. “And that is what Texas has done,” he said. “By prohibiting state officials from enforcing the statute and by authorizing the citizenry to enforce the law through private civil-enforcement actions, Texas has boxed out the judiciary from entertaining” such challenges.

Supreme Court to take up major abortion case 

While the Texas law represents an interesting development in the crafting of abortion legislation, all eyes are a case set to soon come before the Supreme Court. On December 1 the Court will hear arguments on a case that could result in the overturning of Roe v Wade, the 1973 decision that legalized abortion.

The case, Dobbs v. Jackson Women’s Health Organization, involves a challenge to a Mississippi law that restricts abortion after 15 weeks of pregnancy.

The law, which was enacted in 2018, was blocked by the Federal District Court, and then upheld by the U.S. Court of Appeals for the 5th Circuit.

The High Court will look at whether all restrictions on abortions performed pre-viability are unconstitutional. Roe v. Wade, allowed abortion before the viability of the fetus, at 24 weeks of pregnancy. 

Pro-life advocates have made the case that since 1973, advances in scientific research have changed our understanding of the development of the unborn child.

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