AUSTIN, Texas — A conservative federal appeals court Thursday evening granted the state of Texas' request to block a lower court ruling that stopped enforcement of the state's controversial new abortion law while it's constitutionality is litigated. 

What You Need To Know

  • An appeals court on Thursday allowed the state of Texas to continue enforcing the Heartbeat Act, which bans abortion when a fetal heartbeat can be detected

  • A district judge earlier blocked enforcement of the restrictive law, but that temporarly overturned by Texas' conservative 5th Circuit Court of Appeals. That court has now allowed the law to proceed three times since August 

  • It is now likely President Joe Biden's Department of Justice will ask the U.S. Surpreme Court to step in 

  • Abortion providers say that Texas women since then have inundated clinics in neighboring states, some of whom have driven hours through the middle of the night for care

It was the latest act in the legal saga over the restrictions, which have sparked an outcry by abortion rights advocates and efforts in other Republican-led states to enact similar legislation. It is likely now that the Department of Justice will ask to the U.S. Supreme Court to step in; otherwise, Senate Bill 8 would be in effect for months or years. 

Cristina Parker works as the communications director for the Lilith Fund, which financially supports Texans seeking abortion care. She told Capital Tonight they are getting fewer calls since Senate Bill 8 went into effect on Sept.1. The law bans abortions after six weeks, which is when cardiac activity is detected and usually before pregnancy is known. Parker said some of the people they recently helped were getting the procedure out of state, but she said that is another barrier given most of their clients are low-income.

“People absolutely are struggling with this. This has a huge impact on people's lives, their their mental and physical well-being. We're also hearing a lot of confusion,” Parker said. “It makes people feel like they don't know what to do or where to turn.”

The confusion is over the ongoing legal battle. There was a two-day period last week when U.S. District Judge Robert Pitman blocked enforcement of the law. The appeals court reinstated it temporarily, and Paxton urged them to issue a longer decision to let Texas’ restrictive abortion ban stay in effect while its constitutionality is litigated. 

 In his latest filing to the appeals court, Texas Attorney General Paxton argued the federal government does not have the legal right to sue the state of Texas over the law, to which the DOJ disagrees. 

Paxton wrote, "The federal government’s position boils down to a simple, but erroneous claim: Any law that avoids pre-enforcement review in federal district court is an 'open threat’ to our constitutional order. That is a historical nonsense. Such laws have been enacted, and how such laws have historically been reviewed is telling."

Joshua Blackman, a constitutional law professor at South Texas College of Law Houston, said he is skeptical Pitman’s ruling will be put back in place.

 “There's no reason why DOJ is bringing this lawsuit. Congress has never created a vehicle by which the U.S. government can sue the states. DOJ hasn’t pointed to any previous cases that follow this sort of pattern where the U.S. government comes in and sues states having allegedly unconstitutional laws,” Blackman said.

Officials with the Justice Department argue it is an unprecedented and extraordinary law because it empowers private citizens rather than the state to enforce the restriction, a mechanism designed to make it harder to legally challenge. Attorneys for the federal government also said they believe they have a stake in the fight because the law affects federal workers.

Caroline Mala Corbin, a constitutional law professor at the University of Miami, called the Texas abortion law “blatantly unconstitutional” and said she believes the U.S. is a proper party.

"Federal workers may be liable under the Texas law, because there are all kinds of federal laws requiring that federal employees help women facilitate abortions,” Corbin said. “For example, federal prison officials have a responsibility under federal law to help women in prison, federal prisons get abortions. So if they were to execute their federal law responsibilities, they would clash with the Texas law.”

 ​Rebecca Parma, senior legislative associate at Texas Right to Life, said they have celebrated each day the law has been in place. The organization helped to pass the bill at the Texas Legislature.

"We're confident that the Texas Heartbeat Act will survive this legal challenge from the Biden administration and be able to succeed where other states' heartbeat bills have not," she said. 

Abortion providers in other states including Oklahoma, Colorado and Kansas sided with the DOJ in court and said the Texas restriction means more are coming to their states for care. One provider in Oklahoma told Capital Tonight they have seen a “substantial and consistent increase” in people seeking abortions there. Fearing the people in their own states will be affected, they hope the federal judge’s stay of the Texas law is eventually upheld.

“We're not just morally and ethically right, helping people get abortions and making sure that people have the access to get abortions when they need them, but we think we're legally right, too,” Parker said.​

The Associated Press contributed to this report.