Constitutional Law

After appeals court revives Texas abortion law, docs could be liable for abortions performed in prior 2 days

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A federal appeals court on Friday temporarily revived Texas’ restrictive abortion law, raising the possibility that abortion providers could be sued for any procedures performed in a two-day window when the law was blocked.

On Oct. 8, the New Orleans-based 5th U.S. Circuit Court of Appeals issued an administrative stay of a federal judge’s Oct. 6 ruling that had blocked the law. The federal government has until Tuesday to respond to Texas’ request for a stay pending appeal that would keep the law intact for a longer time period.

The New York Times and the Texas Tribune are among the publications with coverage.

Judges on the panel that issued the administrative stay were Carl Stewart, Catharina Haynes and James Ho, who is a former Texas solicitor general.

U.S. District Judge Robert Pitman of Austin, Texas, had called the law “flagrantly unconstitutional” when he issued an Oct. 6 preliminary injunction that blocked it. The law bans abortions in Texas after a fetal heartbeat is detected, which happens at about six weeks of pregnancy.

Pitman said the law “was designed to stymie judicial review” because it switched enforcement from the state to members of the general public, who may seek $10,000 or more in damages in lawsuits against anyone who aids an abortion.

The lawsuits must be brought within four years.

After Pitman ruled, at least six clinics began providing or scheduling abortions that would be banned under the law, the New York Times previously reported. Four of the clinics are operated by Whole Woman’s Health.

The abortion providers could face lawsuits for abortions provided during two days when the law was paused because of a retroactive provision of the law. It states that those sued may not raise as a defense their “reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant” aided the abortion.

Amy Hagstrom Miller, CEO of Whole Woman’s Health, told the Texas Tribune the group will once again stop providing abortions banned under the law. She said the group understood that performing the abortions “does open us up to some risk. We have to wait and see.”

“We have a lot of lawyers on speed dial these days,” Miller said.

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