Attorney General Ken Paxton (R) had asked the appeals court to reverse the injunction by U.S. District Judge Robert L. Pitman, who sided with the Biden administration Wednesday night and characterized the abortion ban as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”
A three-judge panel of the conservative-leaning court gave the Justice Department until 5 p.m. Tuesday to respond to the appeal.
Paxton told the appeals court that the Justice Department has no legal authority to sue the state and said the appeals court must intervene immediately to lift the injunction. The lower-court judge overstepped, Paxton said, by halting a law that is enforced by private citizens, not state government officials.
“A court ‘cannot lawfully enjoin the world at large’ let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent,” the filing states.
It asked the court to rule on that issue by Tuesday morning and to temporarily suspend Pitman’s injunction “as soon as possible.”
The brief order from the 5th Circuit, issued about five hours after the appeal was filed, did not rule on the merits of the state’s request. Any decision from the 5th Circuit could put the issue back before the Supreme Court, which declined to block the law when it took effect Sept. 1 but said it raises serious constitutional questions.
In response to the appeals court’s order, Nancy Northup, president of the Center for Reproductive Rights, said: “The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.”
For the nearly 48 hours that the ban was lifted, abortion providers scrambled to decide whether to resume terminating pregnancies beyond the six-week mark — a point at which many patients do not yet know they are pregnant.
At Whole Woman’s Health, one of the state’s largest abortion providers, the decision was left to individual doctors. Some decided to again offer the procedure after Pitman’s order, but many said they would comply with the ban at least until the appeals court acted, to limit their legal risk.
Planned Parenthood said in a statement late Friday that scheduled appointments for patients seeking abortions after six weeks of pregnancy would be canceled, a result of the appeal court’s order.
“This is a major loss for Texas patients and abortion providers, who have navigated the law’s devastating effects on abortion access for over a month now,” Planned Parenthood president Alexis McGill Johnson said in a statement. “The Fifth Circuit has again disregarded half a century of precedent upholding the constitutional right to abortion.”
Bans on abortion after six weeks have been blocked in several other states by federal judges because they are at odds with the Supreme Court’s landmark Roe v. Wade decision, which guarantees the right to abortion before viability, usually around 22 to 24 weeks.
The Texas law is different because it is not enforced by state officials. Instead, it relies on private citizens, who can sue anyone who helps someone in Texas get an abortion. The Supreme Court cited that enforcement mechanism when it declined to block the law from taking effect.
In his ruling late Wednesday, Pitman — a nominee of President Barack Obama — also took issue with the law’s enforcement mechanism, among other things.
Instead of directly banning abortion after the six-week limit, Pitman said, the state had contrived a “transparent statutory scheme” that allows citizens with no connection to the person seeking an abortion to interfere with a constitutional right through the state’s judicial system.
Pittman’s injunction on enforcing the ban extended to state court judges and courthouse clerks to block any proceedings in civil suits filed under the law.
Abortion providers, however, could still be liable for performing the procedure while the litigation is underway. If Pitman’s injunction is permanently reversed, individuals who provided or assisted in abortions while it was in place can still be sued, according to the statute — a provision that critics say also raises legal concerns.
In his filing Friday, Paxton said federal judges do not have the power to interfere with state court operations. Pitman’s injunction, he said, “grossly and irreparably interferes with Texas state-court operations.” “It also places state courts and their employees under imminent threat of contempt based on the actions of third parties that they cannot control.”
Pitman’s injunction lifting the ban came in response to a lawsuit the Justice Department filed against Texas after the Supreme Court allowed the law to stand. The high court was responding to a separate challenge to the ban filed by abortion providers.
The justices said last month that the providers “raised serious questions” about the constitutionality of the law. But in a 5-to-4 decision, the high court’s conservative majority said opponents had not shown they were suing the proper defendants.
All of the dissenting justices wrote separately, with the court’s three liberals characterizing the Texas law as an end run around the Constitution and court precedent.
The lawsuit filed by abortion providers is scheduled to be reviewed by the 5th Circuit in December. Providers have asked the Supreme Court a second time to intervene in the case and to rule before the appeals court considers it.
A three-judge panel of the 5th Circuit previously called off a hearing Pitman had scheduled in that case to consider blocking the law before it took effect Sept. 1.
The Supreme Court is separately scheduled in December to review Mississippi’s 15-week abortion ban. State officials in that case are directly asking the justices to overrule Roe v. Wade.
Caroline Kitchener contributed to this report.