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Texas abortion ban returns to high court

by Compiled Democrat-Gazette Staff From Wire Reports | October 16, 2021 at 4:30 a.m.

WASHINGTON -- The Department of Justice said Friday that it will ask the U.S. Supreme Court for an emergency halt to the Texas law that has restricted access to abortion in the nation's second-largest state to an extent not seen in 50 years.

The announcement followed a decision by a federal appeals court Thursday night that allowed the law to remain in effect. A lower-court judge last week said the law was unconstitutional.

The department's announcement means the high court for the second time will be asked to put the law on hold while legal challenges to it continue. In a 5-4 decision last month, the court allowed the law to take effect as the case goes forward, even though the majority said it raised constitutional concerns.

Separately, the court on Dec. 1 will hear a challenge to a Mississippi law that conservatives have urged the court to use to overturn the constitutional right to abortion established nearly a half-century ago in Roe v. Wade.

Mississippi's law would ban most abortions after 15 weeks. Roe and subsequent decisions say a state may not impose undue burdens on the right to choose abortion before fetal viability, normally gauged to be between 22 and 24 weeks. The Mississippi law was put on hold by lower courts.

Texas' law is more restrictive than that. It bars abortion as early as six weeks into a pregnancy, when many women do not realize they are pregnant, and makes no exceptions for rape or incest.

The law is enforced by private citizens, rather than state government officials. Individuals can sue anyone who helps a woman get an abortion after the six-week mark. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.

That unique provision was intended to make it difficult for federal judges to keep the law from taking effect; most challenges to abortion restrictions keep government officials from enforcing them.

When the Supreme Court declined to block the Texas law in September, the majority said abortion providers challenging it had not shown that they were suing the proper defendants.

The Justice Department then entered the fight and won a stay from a district judge, who suspended the law and said he would "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 before fetal viability is well established," U.S. District Judge Robert Pitman, a nominee of President Barack Obama, wrote in a 113-page ruling. "Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that."

During that brief window, some Texas clinics rushed to perform abortions on patients past six weeks.

Texas had roughly two dozen abortion clinics before the law took effect, and operators have said some may be forced to close if the restrictions stay in place for much longer.

Last week, the U.S. Court of Appeals of the 5th Circuit quickly put Pitman's order on hold, and Thursday it said the law would remain in effect, setting a hearing for the week of Dec. 6.

In a 2-to-1 order, the judges did not give detailed reasoning for their action. Judges James Ho, a nominee of President Donald Trump, and Catharina Haynes, a nominee of President George W. Bush, were in the majority. Judge Carl Stewart, a nominee of President Bill Clinton, dissented.

The majority cited a previous ruling in a separate challenge, which said that because the ban is enforced by private individuals and not government officials, it is not clear when and how the law can be challenged in federal court.

"The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit's stay of the preliminary injunction against Texas Senate Bill 8," Justice Department spokesman Anthony Coley said in a brief statement Friday. It did not say when.

The battle over the law's enforcement mechanism has effectively halted almost all abortions in Texas, even though no court has addressed whether the ban violates past Supreme Court decisions guaranteeing the right to an abortion until viability.

Since Sept. 1, patients seeking to terminate their pregnancies have been driving hours to other states, including Oklahoma and Kansas, according to providers and advocates. Those who lack the money to make such trips, or who cannot leave work or child-care commitments, are forced to continue with unwanted pregnancies.

"People are scared, confused, and other than very early abortion, have nowhere to turn to access safe, legal abortion unless they are able to travel hundreds of miles to another state," said Jeffrey Hons, president of Planned Parenthood South Texas, whose clinics have stopped offering all abortion services since the law took effect Sept. 1.

A dozen other states have passed laws that are as restrictive as the one in Texas, which bans abortion after a physician detects cardiac activity in the womb. But federal judges have prevented those laws from taking effect, finding them at odds with Roe and other rulings.

The 5th Circuit said Thursday that its decision to leave the law in effect was based on the high court's reasoning and its own previous decision in that case, in which the appeals court said it was not clear that federal courts have a role in reviewing the Texas law.

Texas Attorney General Ken Paxton, a Republican, has argued that the U.S. government cannot sue Texas officials to block the law, because they are not the ones enforcing the ban. Instead, Paxton said in court filings, the only way to directly challenge the constitutionality of the law is to wait until a doctor is sued under its provisions in state court.

The Texas Attorney General's Office called Thursday night's decision by the 5th Circuit a "testament that we are on the right side of the law and life."

Justice Department lawyers and constitutional law scholars counter that the federal government must be permitted to take action to prevent an end-run around the judicial system.

U.S. Attorney General Merrick Garland has called the law "clearly unconstitutional" and warned that it could become a model elsewhere in the country unless it's struck down.

If the Texas abortion ban is upheld by the courts, they say, state legislatures throughout the country could craft similar laws that infringe on other constitutional rights -- the right to own a gun, for example, or to pray in public.

Elizabeth Wydra, president of the Constitutional Accountability Center, which filed a brief in support of the Justice Department, said Thursday that she expected the federal government to ask the Supreme Court to intervene.

"There is no doubt that the United States has the power to sue to defend itself and its people who have been harmed by Texas's flagrantly unconstitutional law," she said in a statement.

Texas Right to Life spokeswoman Kimberlyn Schwartz applauded the court's order, but said in a statement that "the battle is not finished."

The outcome Thursday night from the appeals court was not unexpected. In a 2018 opinion, Ho lamented the "moral tragedy of abortion." Both Ho and Haynes were in the majority in an August decision upholding a 2017 Texas statute outlawing a common abortion method used to end second-trimester pregnancies.

In that case, reviewed by a full complement of judges on the 5th Circuit, Stewart joined the dissent, which said the Texas law "under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester."

Information for this article was contributed by Robert Barnes and Ann E. Marimow of The Washington Post; and by Paul J. Weber of The Associated Press.

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