The Biden administration’s latest attempt to block an unique legislation that has become the nation’s largest restriction on abortion in almost 50 years was denied by a federal appeals court, allowing Texas to continue prohibiting most abortions.
The judgment on Thursday may put the legislation closer to a retrial before the United States Supreme Court, which has previously allowed the limitations to go into force without deciding on their constitutionality. The state of Texas prohibits abortions after heart activity is discovered, which generally occurs around six weeks and before some women are aware that they are pregnant.
Since the legislation went into effect in early September, Texas women have traveled to neighboring states to find abortion facilities, some traveling hours into the night and including patients as young as 12 years old. In situations of rape or incest, the law offers no exceptions.
“We hope the Department of Justice challenges this ruling to the Supreme Court as soon as possible,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project.
The Justice Department did not immediately respond to the judgment, and as of late Thursday, a spokeswoman had no comment.
A three-judge panel of the 5th U.S. Circuit Legal of Appeals approved Texas’ request to leave the legislation in place while the court action is being resolved in a 2-1 ruling. The conservative-leaning appeals court has now agreed with Texas and upheld the limitations for the third time.
The panel stated that the appeal will be expedited and that oral arguments would be scheduled, although it did not specify when this would happen.
The judgment was hailed by the Texas Attorney General’s Office as “proof that we are on the right side of the law and life.”
It’s another setback for the Justice Department and Texas abortion clinics in their efforts to overturn the legislation, which has so far been successful because to a unique system that delegated enforcement to private citizens. Anyone who successfully sues an abortion provider for breaking the law is entitled to at least $10,000 in damages, which the Biden administration describes as a reward.
Despite several legal challenges both before and after the rule went into effect on Sept. 1, only one court has ordered the ban to be lifted — and that ruling only lasted 48 hours.
Some Texas clinics raced to perform abortions on patients who were past the six-week mark during that limited window, but many more appointments were canceled after the 5th Circuit hastily reinstated the rule last week.
Before the legislation went into effect, Texas had around two dozen abortion clinics, and owners have indicated that if the limitations remain in place for much longer, some of them may be compelled to close.
Already, the stakes for the future of abortion rights in the United States are high in the coming months. Mississippi’s attempt to overturn the famous Roe v. Wade ruling, which protects a woman’s right to an abortion, will be heard by the Supreme Court’s new conservative majority in December.
A Supreme Court ruling in 1992 barred states from prohibiting abortion before viability, or the moment at which a fetus may survive outside the womb, which occurs approximately 24 weeks of pregnancy. However, because it delegated enforcement to private individuals, Texas’ version has so far outmaneuvered the courts.
The state’s largest anti-abortion group, Texas Right to Life, set up a tipline to accept complaints against abortion providers, but has yet to bring any cases. A spokeswoman for the nonprofit, Kimberlyn Schwartz, said Thursday that the Biden administration was anticipated to move to the Supreme Court next and that the group was “sure Texas will eventually reject these attacks on our life-saving initiatives.”
On Wednesday, 18 state attorneys general, largely from Republican-controlled states, reaffirmed their support for the Texas legislation, urging the court to uphold the limits while accusing the federal government of overstepping in bringing the case in the first place.
The bill has been termed “obviously illegal” by US Attorney General Merrick Garland, who has warned that unless it is overturned, it may become a model for other states.
In a brief filed Wednesday, Indiana Attorney General Theodore Rokita said, “The Attorney General has no power to serve as a roving reviser of state law, challenging as unconstitutional every provision with which he disagrees.”
More than 20 additional states, mainly led by Democrats, had asked the lower court to strike down the law last month.