Constitutional Law

Once again, 5th Circuit keeps Texas abortion law in effect

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shutterstock_Abortion Restriction paper, gavel and stethoscop

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Updated: The 5th U.S. Circuit Court of Appeals at New Orleans has once again kept Texas’ restrictive abortion law in effect—this time with a preliminary injunction pending an appeal.

The appeals court’s Oct. 14 order came less than a week after it issued an administrative stay that also kept the law in place. Both actions block a federal judge’s decision that halted enforcement of the law, which bans abortions in Texas at about six weeks of pregnancy.

The Washington Post, the New York Times and the Texas Tribune are among the publications with coverage of the 2-1 order, which also granted an expedited appeal. The 5th Circuit order was issued in a lawsuit filed by the U.S. Department of Justice.

The DOJ said Friday it will ask the U.S. Supreme Court to block the law during the litigation, the Washington Post reports. The Supreme Court previously allowed the law to take effect in a different challenge.

The law relies on the general public, rather than the state, for enforcement. It authorizes lawsuits by private parties who may seek $10,000 or more in damages for anyone who aids an abortion.

When U.S. District Judge Robert Pitman of the Western District of Texas enjoined enforcement of the law, he said it “was designed to stymie judicial review” because it sought to eliminate the state as a potential defendant.

Texas Attorney General Ken Paxton has argued that the law does exactly that. The federal government can’t sue Texas officials to block the law, he has argued, because they have no responsibility for enforcement.

Pitman had rejected that argument, saying he could issue an injunction against Texas because “the state has its prints all over the statute.” Republican Texas Gov. Greg Abbott signed the bill into law, the state created a private enforcement scheme, the state judiciary must hear the lawsuits, and the state must carry out court orders regarding the law.

See also: “Convicted ex-lawyer files bizarre suit against doctor under Texas abortion law” “DOJ explores ways to challenge Texas abortion law; judge grants TRO against anti-abortion group” “How could the DOJ counter Texas abortion restrictions? Law prof suggests prosecution” “SCOTUS formally rejects request to block Texas abortion ban”

Updated Oct. 15 at 11:15 a.m. to include information on the U.S. Department of Justice asking the Supreme Court to block the law.

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