A Texas law that led to a dramatic decrease in abortions will remain on the books after a ruling late Thursday from judges on the 5th U.S. Circuit Court of Appeals.
The law bans doctors from performing abortions if the heartbeat of the unborn child can be detected, which is roughly six weeks into a pregnancy. Similar bills have been proposed in other states and have fallen by the wayside amid legal challenges.
But Texas put a new wrinkle into its law. Instead of the state playing the role of enforcer, private citizens are allowed to sue anyone who violates the law and collect $10,000 if they win.
A week ago, the Justice Department, which had intervened in the Texas law with the energetic backing of President Joe Biden, appeared to have scored a major victory after a district judge appointed by former President Barack Obama denounced the law and the legislators who passed it while issuing an order shelving the law.
But Texas fought back.
A three-judge panel of the 5th U.S. Circuit Court of Appeals issued a temporary stay negating District Judge Robert Pitman’s order that halted enforcement of the law, according to Fox News.
In appealing that ruling, lawyers supporting the state said the so-called right to abortion has no root in the Constitution, NBC News reported.
“The Supreme Court’s interpretations of the Constitution are not the Constitution itself — they are, after all, called opinions,” the attorneys argued. “The federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s, and they have every prerogative to enact laws that deprive the judiciary of opportunities to consider pre-enforcement challenges to their statutes.”
States do not violate the Constitution “by undermining a ‘right’ that is nowhere to be found in the document, and that exists only as a concoction of judges who want to impose their ideology on the nation,” they said.
“Abortion is not a constitutional right; it is a court-invented right that may not even have majority support on the current Supreme Court,” the attorneys said.
Judges James Ho, nominated by former President Donald Trump, and Catharina Haynes, nominated by former President George W. Bush, supported Texas. Judge Carl Stewart, nominated by former President Bill Clinton, dissented.
The case now moves to oral arguments, although it is uncertain when they will take place.
“We are very grateful,” said Kim Schwartz, media and communication director for Texas Right to Life, according to the Texas Tribune. “We ultimately believe that we’ll be victorious.”
The law took effect on Sept. 1 after the U.S. Supreme Court rejected last-minute efforts to block it.
In the ruling since superseded by the appeals court, Pitman wrote that a “person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.”
He called the enforcement mechanism developed by Texas lawmakers “an unprecedented and transparent statutory scheme.”
“Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates,” the judge wrote.
Pitman was firm that abortion was a constitutional right.
“[P]eople seeking abortions face irreparable harm when they are unable to access abortions; these individuals are entitled to access to abortions under the U.S. Constitution; S.B. 8 prevents access to abortion; a preliminary injunction will allow — at least for some subset of affected individuals — abortions to proceed that otherwise would not have,” he wrote.
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