When Texas’ near-total abortion ban was reintroduced, SCOTUS called for “stopping this madness”

The break in Texas’ near-total abortion ban lasted just two days before a federal appeals court reinstated the ban Friday night at the Texas Attorney General Ken Paxton‘s request. The Republican AG had asked a panel of three conservative 5th Circuit judges to overturn an order from the U.S. District Judge Robert Pitman. Last week, Pitman sided with the Department of Justice when he ordered Texas to halt the ban on abortions after six weeks – before many people know they are pregnant. But now, with the ban temporarily back while lawsuits continue, some abortion rights activists have had enough and want the Supreme Court to intervene.

The law, known as SB 8, is an attack on the constitutional right to abortion guaranteed by Roe v. Wade. That was the purpose of GOP legislators who designed the law’s unique enforcement system, which relies on private citizens, rather than government officials, to implement it. Paxton appeared to be arming the unusual enforcement mechanism in his application to the Court of Appeals following Pitman’s ruling. The state cannot be held “responsible for the filing of private citizens that Texas is powerless to prevent,” he claimed. He also argued that Pitman “overturned” his decision last week because “the Department of Justice has no legal authority to sue the state,” according to Washington Post.

The Court of Appeals panel issued a one-sided ruling that complied with Paxton’s request to reintroduce the ban, while considering his state’s appeal and giving the Justice Department time to respond. Friday’s brief statement from the panel “did not determine the reasons for the state’s request,” it said Post noted that “any decision of the 5th District could bring the matter back to the Supreme Court.” BuzzFeed reports that the Department of Justice, which filed the lawsuit against Texas, “could ask the entire appellate court to reconsider the three-judge panel’s decision to grant what is called a stay, and ultimately ask the U.S. Supreme Court to step in.”

The Conservative majority in the Supreme Court rejected abortion providers’ request to block the law earlier this year, citing “complex” and “new” procedural obstacles. That refusal caused outrage among dissenting judges, with Elena Kagan describes the decision as “[rewarding] Texas scheme to isolate its law from judicial review ”and Sonia Sotomayor scored the Conservative majority for “[opting] to bury their heads in the sand. That’s why Pitman’s decision came last week as a reassuring, albeit fleeting, moment of justice. “Fortunately, this district court acted where SCOTUS refused,” Senator Elizabeth Warren tweeted.

Still, Friday’s decision did not come as a surprise, it New York Times notes, given “the fifth circuit is among the most conservative in the country” and had previously allowed the ban to take effect. The panel’s decision on Friday ”sent a strong signal that the appellate court would not agree with the decision made by Judge Pitman, who was appointed by the president Barack Obama, “according to Gange. “The interesting question now is whether the federal government is going directly to #SCOTUS to lift the (temporary) administrative stay or waiting for the panel to decide on a stay awaiting appeal,” the law professor said. Stephen Vladeck tweeted after Friday’s order and added that his “money is on the former.”

Abortion rights lawyers called on the Supreme Court to intervene. “The Supreme Court must step in and stop this madness. It is inconceivable that the Fifth Circuit remained such a well-founded decision to allow constitutionally protected services to return to Texas. ” Nancy Northup, president and CEO of the Center for Reproductive Rights – which “represents several Texas clinics that had briefly resumed normal abortion services,” according to the Associated Press – in a statement Friday. “The courts have an obligation to block laws that violate fundamental rights,” she added, stressing the “state of chaos and fear” that the legal whiplash has inflicted on patients.

The abortion ban is back until at least Tuesday, but even after Pitman lifted the ban, some abortion providers were already unsure of resuming operations. This is because a new provision in SB 8 states that people who violate Texas law – even if a court decision blocking it – can later be held liable if the ruling is eventually overturned. “It really is the retroactive clause that gives people a break,” Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates four clinics in the state, said Texas Tribune. “Many of our doctors and staff are afraid that if the ban is lifted in the future, these vigilantes will come back and sue us for every abortion we did in the meantime.” Those who resumed services may face new legal risks as the law continues to find its way through the courts.

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