Tue. May 17th, 2022

The request, though not unexpected, increases Texas’ uncertainty about access to the procedure. This lawsuit – which was filed by the US Department of Justice – is one of several fronts in which the legal war over the ban is playing out. It is likely that the battle over the executive order issued Wednesday to block the law will end up in the Supreme Court.

Paxton is asking the appellate court to take an administrative position on this ruling as soon as possible and to put an emergency stop to the ruling before Tuesday while the appeal is being processed.

The morning after the district court ruling from U.S. District Judge Robert Pitman fell, some clinics in Texas resumed giving abortions to patients who were longer than six weeks into their pregnancy. They do so with some legal risk, as Texas law allows for coercive measures to be taken for abortions performed, while a court order blocking the law applies if the court order is later overturned by a higher court.

Instead of abandoning government officials to enforce the ban through criminal or administrative sanctions, the law deputies private citizens to sue providers or anyone who helps a woman have an abortion after fetal cardiac activity is detected – a point usually around six weeks inside the pregnancy, but often before a woman knows she is pregnant.

To get around this unusual enforcement mechanism, Pitman’s ruling included a ban on state officials, including judges, from initiating lawsuits against clinics and others accused of violating the ban.

Texas, in its Friday request with the 5th Circuit, said Pitman’s ruling violated precedent for how it targeted state courts, as well as private individuals seeking to bring enforcement proceedings under the abortion ban.

“There is no precedent for the district court order; it grossly and irreparably disrupts Texas state law operations,” Texas wrote in the case. “It also puts state courts and their employees under an imminent threat of contempt based on actions of third parties that they cannot control.”

Until Pitman’s order Wednesday, the design of the ban’s enforcement mechanism had been a success in curbing other legal attempts – by clinics and others – to get the law enforced.

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“Fully aware that depriving its citizens of this right by direct state action would be blatantly unconstitutional, the state had an unprecedented and transparent statutory scheme to do just that,” Pitman wrote Wednesday.

When clinics in their own lawsuit challenging the ban previously asked the 5th District to block the law, the Court of Appeals dismissed, as did the Conservative majority in the U.S. Supreme Court.

“From the moment SB 8 came into force, women have been illegally prevented from exercising control over their lives in ways protected by the Constitution,” Pitman said. “That other courts can find a way to avoid this conclusion is their decision; this court will not punish another day for this offensive deprivation of such an important right.”

This story has been updated with further details.

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