Texas asks full 5th circuit to allow it to enforce its ban on the dismemberment of living unborn children

By Dave Andrusko

When we last wrote about Senate Bill 8, the Texas law banning the dismemberment of living unborn babies, it was to update you on proceedings in the 5th Circuit in New Orleans. A three-judge panel, which had previously heard oral arguments regarding a 2017 decision by a Federal District Court out of Austin to place an injunction on the law, was now asking the two parties involved to submit supplementary briefs (and replies to one another’s briefs) in light of the Supreme Court’s recent June Medical Services, L.L.C. v. Russo decision.

As you recall, in a 5-4 decision, the Justices overturned the requirement that Louisiana abortionists have admitting privileges at a hospital within 30 miles of where they perform their abortions in case of emergency. But, as you may also recall, while Chief Justice John Roberts supplied the crucial fifth vote, he did not agree with the reasoning of the other four justices.

Last week, that same three-judge panel “declined a Texas motion to allow enforcement of the law while it prepares its ruling,” according to ABC News []. “So, Texas officials on Tuesday asked the full 17-member court to consider the matter, essentially doing an end run around the panel.”

If it seems as if this case has dragged on forever, it has. The panel first heard the dispute in November 2018. On March 13, 2019, the three judges issued an order placing the case in abeyance pending a decision in June Medical. That decision came down on June 29, 2020.

What did the state of Texas say to the full 5th Circuit in its “Petition for Rehearing En Banc”?

Josh Blackman quoted an excerpt from the Petition [internal citations omitted]:

In November 2017, the district court below enjoined the enforcement of an important Texas abortion regulation. Texas filed a notice of appeal the same day. This appeal has been pending ever since. Though the Panel assigned to this case heard oral argument almost two years ago, it has not yet issued its decision, and it has denied Texas’s motion to stay the injunction below pending resolution of this appeal. Whether a State may enforce a duly enacted law is a question of exceptional importance. Furthermore, the Panel’s order creates an acknowledged circuit split with the Eighth Circuit’s decision in Hopkins v. Jegley. Therefore, Texas now asks the en banc Court to stay the district court’s injunction and allow Texas to enforce its law immediately.

[Hopkins v. Jegley refers to a recent case in which several Arkansas pro-life laws were upheld, including a ban on the dismemberment of living unborn babies.]

Enough is enough. If the panel is unable to make a timely decision, the full circuit (“en banc”) should immediately take it over.