New appeal leads to reinstatement of Texas’s restrictive abortion law

October 9, 2021 • 10:15 am

Most of you know about Texas’s restrictive new abortion law, which bans all abortions after a fetal heartbeat is detected—about six weeks into pregnancy. Past that point, abortions are not allowed even in cases of rape or incest.

To add insult to injury (seriously: you have to carry a rapist’s or relative’s baby to term?), the Texas legislature allowed regular citizens to enforce the law, making it harder to declare it unconstitutional (even though it is). Everyone is “deputized” to enforce the law, allowing citizens to sue anybody who aids in an “illegal abortion” (including the Uber driver taking the woman to a clinic) for $10,000.  Finally, the provision makes the law retroactive even if it is blocked, so if it’s “paused,” as it was for a few days this week, legal abortions conducted during that pause can be considered illegal after the law kicks in again, and the providers sued. It’s nefarious, and designed to make it hard to legally block the law.

Nevertheless, after a request from Biden’s Justice Department, the law was blocked on Wednesday by federal judge Robert Pitman, who didn’t pull any punches in his 113-page decision.

“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,” he wrote in his opinion.

“This court will not sanction one more day of this offensive deprivation of such an important right,” he added.

Well, the exercise of that right lasted just two days. A three judge panel in the conservative Fifth Circuit of Texas ruled that Texas’s law would take effect again, although temporarily. Previously illegal abortions started up again (even though clinics could be sued later), but most clinics suspended activity. The panel gave the Justice Department until 5 p.m. Tuesday to respond to Texas’s appeal, but the unanimity and terseness of the ruling suggests that the Firth Circuit will permanently reinstate the law some time after Tuesday. You can see the two-page ruling here, but here’s the gist:

As you know, the U.S. Supreme Court refused to intervene before the law went into effect, a decision that baffles me because, according to present law, Texas’s law was palpably unconstitutional. That may changes as they move toward overturning Roe v. Wade, which I once thought unlikely but now think probable. So, as of now, the women of Texas are forced to obey an unconstitutional law, seeking abortions in other states if they’re past the sixth week of pregnancy.

A quote from the NYT piece:

“The Supreme Court needs to step in and stop this madness,” Nancy Northup, president and chief executive of the Center for Reproductive Rights, said in a statement. “It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.”

But the Supremes have already refused to step in, and, in an upcoming Mississippi case about a similar law, may step in in a way we don’t like.

18 thoughts on “New appeal leads to reinstatement of Texas’s restrictive abortion law

  1. For me it is this issue and the voting rights issue that makes it essential the democrats in congress take action to correct both of these issue. Of course it means eliminating the filibuster but so what, it must be done. The democrats who presume to control the legislation must act or they will lose everything. It is the only way to stop a court system that has gone republican. It is the only way to stop the madness that is destroying our country.

  2. This situation is even worse than you describe.

    If the bounty hunter who brings suit wins, the victim must pay his/her court costs. If the bounty hunter loses, the victim must pay her own court costs, and is not allowed to attempt recovery of same.


    1. That, if true, cannot possibly be constitutional. An accusation is enough to punish the victim, even if false?

  3. Texas is what you get when you elect ignorant, superstitious people to positions of power, nothing new in Texas. The GOPQ legislates on mythology and outright lies. In 2011, Governor Perry called for “days of prayer for rain” during a drought, exacerbated, by the way, by years of water conservation and management neglect. Apparently, the prayers fell on deaf ears as the Bastrop Fire in September, 2011 that burned for 55 days destroyed 32,000 acres, 1600 homes and four lives. Houston Astronaut Mike Fossum reported seeing the fire from the ISS.

    A few years ago Governor Abbott mobilized the Texas Guard to keep an eye on the US Army (yes, the United States Army) conducting regular training exercises because Abbott fell prey to a Russian troll farm fabricated conspiracy that the Army was going to “round up” somebody, take away their guns and incarcerate them in abandoned WalMarts. Oh, yeah, this happened.

    Then there was the State Board of Education dominated by creationists who just about destroyed the science curriculum led by a dentist who brought in his models of Noah’s Ark as, I guess, a show-and-tell. Lunacy.

    This year the legislature banned the non-existent “critical race theory” from K-12 schools. I think they banned Martians as substitute teachers, too.

    It’s very depressing.

    1. Disclaimer: I grew up in Texas. I agree with everything you say, but not with what you might seem to imply with respect to CRT. It deserves to be banned (teaching it, not teaching about it), and if the ignorant Texans want to ban it, that doesn’t make it good, or non-existent.

    2. I lived in a red state (Wyoming) during the G.W.B. years. You couldn’t pay me to live in one again, especially Texas. It’s sad, because without voter suppression and gerrymandering, Texas would probably be blue, and the nightmare that is this abortion law wouldn’t exist.

  4. Beyond the outrageous denial of (for now) constitutionally protected rights, I am appalled by the cavalier and dismissive approach taken by the Federal courts towards SB8. Specifically, the Supreme Court refused to issue a stay in the first place through the “shadow docket” with nary a substantive word to say re: its reasoning, and now the 5th circuit has done likewise, merely issuing the very terse order you cite. We deserve better.

    1. Yes, we deserve better, but with religious zealots in the majority on SCOTUS and the 5th circuit, we’ll continue our slide into theocracy.

  5. It doesn’t have to be the Supreme Court deciding; I’ve heard that one of the reasons abortion is so much more contentious in the US than in other western countries is that is was decided by the courts, rather than through the legislative process. Let Congress hammer it out. Just don’t make it a Presidential Executive Order; the Constitution wisely keeps the Presidency virtually powerless.

  6. No, the Constitution does not make the president virtually powerless. That would be news to George Washington, Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt and even Donald Trump. Among the powers of the president you are apparently not aware is the right to appoint federal judges (subject to Senate approval), the power to veto legislation, and the role of commander-in-chief.

    1. That is virtually powerless compared to the unconstitutional liberties Presidents have taken in the last several generations. The President does not have the Constitutional power to issue Executive Orders or engage in undeclared wars. The last time Congress constitutionally declared war was in 1942. Every President in the last 140 years has issued over 100 Executive Orders (FDR issued over 3700!); in the first 80 years of the federation, no president issued anywhere near 100 Executive Orders.

  7. Were I a physician in Texas, I would consider with-holding my services until the law is repealed. If not repealed within three months, I would move out of state.

    That law is a product of evil minds.

  8. It’s unfortunate that the GOP has successfully coined the misleading term “fetal heartbeat”.

    First off, at 6-weeks, the group of cells that will eventually become a baby is still called an embryo and it’s the size of a grain of rice. It isn’t until the 8th week of pregnancy when the term fetus is used. More importantly, there is no heart and the “beat” isn’t audible by a stethoscope or any other device. An ultrasound can detect the future heart’s cells that will eventually become its pacemaker (sinus node) because these cells begin to fire electrical signals. This is not a heartbeat, not even close, nor does it prove the heart (or embryo) will even be viable. But now “fetal heartbeat” is the catch phrase that automatically puts the picture of a tiny beating heart in one’s mind. It should be called an “embryonic cellular electrical signal,” but that doesn’t have an emotional attachment.

    It’s a travesty that the need to control women’s bodies and lives becomes so desperate that a bill like this is passed and then upheld. There is no science here, except the science of the ultrasound that can detect an electrical signal at 6 weeks. Abortion bans are always predicated on the emotional need for dominance and subjugation. It is also a given that these bans disproportionately harm the poor and minorities. Way to go America!

    1. Does that law say “fetal heeart beat” or “6 weeks”?
      Since the heart is only formed around 8-9 weeks, the former should give some, admittedly very limited, wriggling room.

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