Fifth District Panel Temporarily Reinstates Texas Heartbeat Law

By Dave Andrusko

In a ongoing swirl of events, a 5th Circuit Court of Appeals panel temporarily reinstated Texas’s six-week abortion law late Friday and  directed the U.S. Department of Justice to respond to the emergency motion by 5 p.m. tomorrow (October 12) . The effect of the panel’s decision was to “hold in abeyance” a preliminary injunction granted to the Biden administration earlier this last week by Federal Judge Robert Pitman, an Obama nominee, preventing the Texas Heartbeat Bill from going into effect.

In a one-sentence order, the panel wrote, “It is ordered that Appellant’s emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel.” 

In a tweet sent out Friday, Texas Attorney General Ken Paxton wrote  

Great news tonight, The Fifth Circuit has granted an administrative stay on #SB8. I will fight federal overreach at every turn.

Friday’s decision by a three judge panel blocked Judge Pitman order while litigation over S.B. 8’s legality continues. Judge Pitman’s 113 page decision fairly boiled over in anger:

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.

According to National Review Online’s Caroline Downey

The series of rulings come after the Justice Department filed a lawsuit against Texas on September 9 and sought a temporary injunction against the law. During a hearing earlier this month, the DOJ argued that the law violates the U.S. Constitution and the Supreme Court’s 1973 Roe v. Wade decision, which legalized abortion nationwide. The department also contended that the state law impedes the federal government’s ability to provide for abortion-related services. …

Last month, the Supreme Court dismissed review of the law in a 5-4 ruling, allowing it to go into effect, although the decision did not make substantive judgements about the law or the constitutionality of its enforcement mechanism.

The legal debate over S.B.8 centers around a provision which empowers a individual to sue anyone who knowingly performs or aids an abortion after a fetal heartbeat has been detected. This effectively transfers enforcement responsibility from the state government to citizens. The mother is not legally liable.