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Texas asked a federal appeals court Friday to step in “as soon as possible” to restore the state’s near-total abortion ban.
The state filed its emergency request for an appeal two days after U.S. District Judge Robert Pitman temporarily blocked the new abortion law in response to a lawsuit brought by the Biden administration. The state had quickly filed a notice of its intent to appeal in both courts after Pitman’s order on Wednesday night.
In Friday’s request, state attorneys argue that Pitman’s order to temporarily block the law at the United States’ request “violates the separation of powers at every turn.” They ask the 5th U.S. Circuit Court of Appeals — considered to be perhaps the nation’s most conservative appellate court — to stop Pitman’s order.
The new Texas law bans abortions as early as six weeks into a pregnancy, but the state doesn’t enforce it. Rather, ordinary people are empowered to file lawsuits against people or entities perceived to be helping someone get an abortion in the state in violation of the law. The law lays out a penalty of at least $10,000 of people or groups that are successfully sued.
Pitman — a 2014 Obama nominee — forbade state court judges and court clerks from accepting lawsuits that the law allows. He ordered the state to publish his order on all “public-facing court websites with a visible, easy-to-understand instruction to the public that SB 8 lawsuits will not be accepted by Texas courts.”
In court filings on Thursday and Friday, Texas sought approval for how it would alert the courts, saying it would cooperate in “good faith” with the judge’s order until and if the 5th Circuit intervenes.
Senate Bill 8 went into effect Sept. 1, forcing all major abortion clinics to stop offering abortions after an embryo’s cardiac activity is detected, which can happen before many people know they’re pregnant. Some providers stopped offering the procedure altogether out of fear of litigation.
But at least one major provider in the state — Whole Woman’s Health — quickly began performing abortions that had been outlawed, a day after Pitman’s order.
The 5th Circuit already issued an emergency stay late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. Pitman is also overseeing that case, which was brought on by abortion providers.
“I think there is a very good chance the court grants a stay [to block Pitman’s order],” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. He said Pitman already faced many barriers to issuing his temporary order.
He explained: “Congress never authorized the United States to sue a state in this context. And there is no history of previous suits by the federal government against an allegedly unconstitutional law. The federal government lacks a ‘cause of action’ to sue Texas.”