AUSTIN, Texas — Abortions have resumed in some Texas clinics after a federal judge in Austin blocked enforcement of the new state law that bans the procedure after six weeks of pregnancy. The decision was a victory for abortion rights advocates and the Biden administration, which sued to overturn the law. But the state quickly appealed. Some abortions are being performed, but other providers are holding off for now.
What You Need To Know
- A federal judge in Austin dealt the first blow to the state’s near-total ban on the procedure, blocking enforcement while the law’s constitutionality is litigated
- Some clinics have resumed abortions for those up to 18 weeks pregnant
- The state of Texas is appealing to the 5th U.S. Circuit Court of Appeals
While abortion rights advocates know their fight is far from over, they have won a battle. A federal judge dealt the first blow to the state’s near-total ban on the procedure, halting enforcement while the law’s constitutionality is litigated. It is the strictest abortion law in the country, and it also contains a novel provision that empowers private citizens to enforce it. The provision is designed to make legal challenges more difficult.
An Obama appointee, U.S. District Judge Robert Pitman temporarily halted Texas’ new six-week abortion restriction. In his more than 100-page ruling, he wrote, “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. 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."
Following the ruling, Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, said they are grateful that the court stepped in.
“We know this is not the end and that the back and forth will continue in the courts, all the while subjecting providers and the people we are devoted to serving to ongoing uncertainty and cruelty," Hagstrom Miller said.
Whole Woman’s Health runs four clinics in Texas, and as of Thursday morning, some but not all of their doctors resumed abortions for those up to 18 weeks pregnant. It is a risk physicians are willing to take, given a section in the Texas law does not shield providers from lawsuits during any legal pause on enforcement.
"Anyone who performs or assists a post-heartbeat abortion in Texas remains subject to lawsuits in federal court, and they will also be sued in state court if this injunction is vacated or stayed on appeal," said Sen. Bryan Hughes, R-Mineola, the abortion law's author in a statement.
Paul Schiff Berman, Walter S. Cox professor of law at George Washington University, suspects that retroactive provision would be challenged as unconstitutional, too.
"Federal judges, no matter their position on abortion, should be outraged at a statutory scheme designed by the Legislature to block judicial review. That creates constitutional problems in and of itself," Schiff Berman said. "You could imagine a more liberal Legislature passing the same kind of statute except dealing with a different issue and trying to block judicial review of that, and so this is just a very slippery slope."
Still, some providers are reluctant to resume services while the law goes through court challenges. As expected, the state of Texas is appealing to the 5th U.S. Circuit Court of Appeals. Rebecca Parma, senior legislative associate for Texas Right to Life, said she expects a decision to come soon. The organization played a significant role in getting the abortion law passed in the Legislature.
“Roe v. Wade came to us, legalized abortion throughout our country. That was a court case, and so that's how we're going to overturn Roe is through a court case," Parma said. "We're not afraid for these laws to be challenged.”
Hagstrom Miller said women considering abortions are paying close attention to the judicial battle, weighing whether to go out of state for the procedure or remain in Texas.
“There's actually hope from patients and from staff, and I think there's a little desperation in that hope," she said. "Folks know that this opportunity could be short-lived.”
It is likely that the conservative appeals court could reinstate the law in the coming days. The U.S. Supreme Court could also eventually be asked to step in on this case.
"We are regularly assessing what’s possible during this period of uncertainty, but given the state's appeal, our health centers may not have the days or even weeks it could take to navigate new patients through Texas’ onerous abortion restrictions," said the executives at Planned Parenthood South Texas, Planned Parenthood Gulf Coast and Planned Parenthood of Greater Texas in a joint statement.
Joanna Grossman, a law professor at Southern Methodist University, said only the Supreme Court has the ability to override its own precedent.
“It’s unimaginably confusing. It’s already a confusing time even before this law took effect. Texas law has a very complex abortion landscape you have to navigate in order to end up exercising this constitutional right, especially for minors who have to go through a whole other set of hoops,” Grossman said. “Even the women who are successfully able to get abortions in this current window, it’s going to be complicated, and for many, it’s just going to be out of reach."