Texas on Friday asked a federal appeals court to swiftly reinstate the most restrictive abortion law in the U.S., which until this week had effectively banned abortions after the six-week mark since early September.
The request puts the Texas law known as Senate Bill 8 back before the 5th U.S. Circuit Court of Appeals, which previously allowed the restrictions to move forward.
Even after U.S. District Judge Robert Pitman suspended the law Wednesday, many physicians in Texas are still declining to perform abortions; they’re worried about a state pledge to hit them with charges for any abortions they perform while the measure is in legal limbo if the law is ultimately reinstated. The result is that abortion services in Texas — which had about two dozen clinics prior to the law taking effect Sept. 1 — remain far from normal, even with the law on hold.
The law bans abortions in Texas once cardiac activity is detected, usually around six weeks, and is enforced solely through lawsuits filed by private citizens against abortion providers — a novel approach that helped Texas evade an early wave of legal challenges. Critics say that system is flawed. Involves payments to any private citizens who bring a successul prosecution of anyone assisting in obtaining or performing an abortion, a notion assailed by opponents of the law as effectively creating “bounties” for one citizen turning on another.
Republican Texas Attorney General Ken Paxton’s office told the court that since the state does not enforce the law, it cannot “be held responsible for the filings of private citizens that Texas is powerless to prevent.”
His office asked the court to act by Tuesday, if not sooner.
Pitman had called the law an “offensive deprivation” of the constitutional right to an abortion. The lawsuit was brought by the Biden administration, which has warned that other GOP-controlled states may move to adopt similar measures unless the Texas law is struck down.
It is unclear how many abortions Texas clinics have performed in the short time since the law was put on hold. By Thursday, at least six abortions providers had resumed normal services or were gearing up to do so, according to the Center for Reproductive Rights. But others are leery of resuming the practice, in case the injunction winds up tossed.
Indeed, Republicans crafted the law to allow retroactive lawsuits if the restrictions are set aside by one court, but later restored by another.
Prior to Pitman’s blistering 113-page order, other courts had declined to stop the law, which bans abortions before some women even know they are pregnant. That includes the 5th U.S. Circuit Court of Appeals and the Supreme Court, which allowed it to move forward in September without ruling on constitutionality.
One of the first providers to resume normal services was Whole Woman’s Health, which operates four clinics in Texas.
“There’s actually hope from patients and from staff, and I think there’s a little desperation in that hope,” Amy Hagstrom Miller, president of Whole Woman’s Health, said Thursday. “Folks know this opportunity could be short-lived.”
The Texas law leaves enforcement solely up to private citizens, who are entitled to collect $10,000 in damages if they bring successful lawsuits against not just abortion providers who violate the restrictions, but anyone who helps a woman obtain an abortion.
Hagstrom Miller said her Texas clinics called in some patients early Thursday, drawing from a list in case the law was blocked at some point. Other appointments were being scheduled for the days ahead, and phone lines were again busy.
Pitman’s order amounted to the first legal blow to Senate Bill 8, which had withstood a wave of earlier challenges. In the weeks since the restrictions took effect, Texas abortion providers said the impact had been “exactly what we feared.” Many women seeking abortions are, critics say, being forced to travel long distances to other states for abortions, if they can even afford to do so.
Pitman took Texas to task in his opinion.
“From the moment S.B. 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, who was appointed to the bench by former President Barack Obama.
Abortion providers say their fears have become reality in the short time that the law has been in effect. Planned Parenthood says the number of patients from Texas at its clinics in the state decreased by nearly 80% in the two weeks after the law took effect.
How many abortions have been performed in Texas since the law took effect is unknown. State health officials say additional reporting requirements under the law will not make September data available on its website until early next year.
A 1992 decision by the U.S. Supreme Court prevented states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy. But Texas’ version had so far outmaneuvered the courts because it leaves enforcement to private citizens to file suits, not prosecutors, which critics say amounts to a bounty.