Texas clinics on Saturday canceled deals they had ordered during a 48-hour suspension from the most restrictive abortion laws in the United States, which were back in effect when tired providers once again turned their eyes to the Supreme Court.
The Biden administration, which sued Texas over the law known as Senate Bill 8, has yet to say whether it will go that route again after a federal appeals court reinstated the law late Friday. The latest twist came just two days after a lower court in Austin suspended the law banning abortions once cardiac activity is detected, usually about six weeks before some women know they are pregnant. It makes no exceptions in case of rape or incest.
The White House had no immediate comment Saturday.
For now, the law is at least in the hands of the 5th U.S. Circuit Court of Appeals, which allowed the restrictions to resume pending further arguments. Meanwhile, abortion providers and patients in Texas are right back where they have been for most of the last six weeks.
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Out-of-state clinics that were already flooded with Texas patients seeking abortion were again the closest solution for many women. Providers say others are being forced to carry the pregnancy to term or are waiting in hopes that courts will repeal the law, which went into effect on September 1st.
There are also new questions — including whether anti-abortion lawyers will try to punish doctors in Texas who performed abortions during the short window in which the law was paused from late Wednesday to late Friday. Texas leaves enforcement solely in the hands of private citizens who can charge $ 10,000 or more in compensation if they successfully sue abortion providers who fail the restrictions.
Texas Right to Life, the state’s largest anti-abortion group, created a tip line to receive reports of violators. About a dozen calls came after U.S. District Judge Robert Pitman suspended the law, said John Seago, the group’s legislative director.
Although some Texas clinics said they had briefly resumed abortions on patients longer than six weeks, Seago said his group had no lawsuits pending. He said the clinics’ public statements did not “match what we saw on the spot”, which he says includes a network of observers and crisis centers.
“I do not have credible evidence in the trial that we would present,” Seago said Saturday.
Texas had about two dozen abortion clinics before the law went into effect. At least six clinics resumed abortions after six weeks of pregnancy during the postponement, according to the Center for Reproductive Rights.
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At Whole Woman’s Health, which has four abortion clinics in Texas, President and CEO Amy Hagstrom Miller said she did not have the number of abortions her places performed for patients beyond six weeks, but put it at “quite a few.” She said her clinics again complied with the law and acknowledged the risks her doctors and staff had taken.
“Of course we’re all worried,” she said. “But we also feel a deep commitment to providing abortion care when it is legal to do so, so we did.”
Pitman, the federal judge who stopped the law in Texas on Wednesday in a blistering 113-page statement, was appointed by President Barack Obama. He called the law an “offensive deprivation” of the constitutional right to an abortion, but his sentence was quickly overturned — at least for the time being — in a one-sided ruling at the 5th Circuit Court Friday night.
The same appeals court previously allowed the Texas restrictions to take effect in September in a separate lawsuit filed by abortion providers. This time, the court gave the Justice Department time until 5 p.m. Tuesday to respond.
What happens next is unclear, including how quickly the appellate court will act or whether it will request more arguments. Texas is asking the appellate court for a permanent injunction that would allow the law to stand while the case unfolds.
Meanwhile, Nancy Northup, chair of the Center for Reproductive Rights, called on the Supreme Court to “step in and stop this madness.” Last month, the district court allowed the law to move forward in a 5-4 decision, even though it did so without ruling on the law’s constitution.
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A 1992 Supreme Court ruling barred states from banning abortion before viability, the time a fetus can survive outside the womb, around 24 weeks’ gestation. But the Texas version has outmaneuvered courts because of its new enforcement mechanism, which leaves enforcement to private citizens and not prosecutors, which critics say amounts to a bounty.
The Biden administration could bring the case back to the Supreme Court and ask it to quickly restore Pitman’s order, although it is unclear whether it will do so.
“I’m not very optimistic about what might happen at the Supreme Court,” said Carl Tobias, a law professor at the University of Richmond, referring to the Justice Department’s chances.
“But there’s not the big downside either, is there?” he said. “The question is, what’s changed since they last saw it? There’s this full meaning, this full hearing for the judge and the record. So that may be enough.”