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Texas Abortion Law to Remain in Effect, Federal Appeals Court Rules

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The U.S. Court of Appeals for the Fifth Circuit said Thursday it will allow Texas’s heartbeat abortion law, which allows private citizens to sue providers who perform abortions after a fetal heartbeat can be detected, to remain in effect while it considers an appeal of a judge’s order blocking the new law.

The court issued a 2–1 order siding with the state of Texas, refusing the Justice Department’s request to reinstate an earlier court ruling that had blocked enforcement of the law. The order was backed by Judges James C. Ho, who was nominated by Donald Trump, and Catharina Haynes, who was nominated by George W. Bush. Judge Carl E. Stewart, a nominee of Bill Clinton, dissented.

Thursday’s decision comes after the same panel last week issued a temporary decision to reinstate the law after a federal judge in Austin temporarily halted the ban.

U.S. District Judge Robert Pitman had granted the Biden administration’s request to temporarily block enforcement of the abortion ban and denied the state’s request to pause his ruling pending appeal, saying “this Court will not sanction one more day of this offensive deprivation of such an important right.”

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote in a 113-page ruling. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

However, less than 48 hours after Pitman issued his ruling, the Fifth Circuit Court put the order on hold and reinstated the law pending further review.

The ruling comes after the Justice Department sued Texas on September 9 and sought a temporary injunction against the law. The DOJ argued during a hearing earlier this month that the law violates the U.S. Constitution.

Justice Department attorney Brian Netter called the law an “unprecedented scheme of vigilante justice.”

The legal debate over the law focuses on a provision that allows any individual to sue anyone who knowingly performs or aids in an abortion after a fetal heartbeat has been detected, removing the responsibility of enforcement from the state’s executive branch and placing it into the hands of citizens. Plaintiffs can earn up to $10,000 in damages through litigation.

The Supreme Court declined to block the law last month in a 5–4 decision. However, it did not rule on whether the law or its enforcement mechanism is constitutional.

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