The Department of Justice on Monday asked an appeal’s court to pause Texas’ near-ban on abortions, arguing that it represents an “assault on the rights of its citizens.”
The legality of abortions in America’s second most populous state has been in flux in recent days as multiple courts have issued rulings on S.B. 8, the controversial law that bans the procedure after fetal cardiac activity is detected. That comes at point in gestation – about six weeks – before most women know they’re pregnant.
The timeline codified in the law clearly violates existing Supreme Court precedent, which allows abortions until fetal viability occurs, typically between the 22nd and 24th week of pregnancy.
But S.B. 8 uses a novel legal strategy – it empowers private citizens to enforce the law – that has made it challenging to appeal.
“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court on Monday.
Here’s a brief rundown of the back-and-forth on the law:
- The bill was signed into law by Texas Gov. Greg Abbott, a Republican, in May. It went into effect on September 1st.
- A day later, the Supreme Court denied a request brought by abortion providers to block the law. The conservative majority said they weren’t ruling on its constitutionality. Instead, they rejected the appeal because it failed to address the “complex and novel” procedural issues at play. (Read Justice Sotomayor’s withering dissent).
- Last Wednesday, October 6th, U.S. District Judge Robert Pitman suspended the law. In a 113-page opinion, he said it causes “irreparable harm” and represents an “offensive deprivation.”
- The Texas Tribune reports, “A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw.”
- But on Friday, the 5th U.S. Circuit Court of Appeals reinstated the ban while Pitman’s order was reviewed. The reproductive health clinics that resumed abortion during the 48 hour window where the law was struck down now may face legal consequences.
- On Monday night, the DOJ challenged the Circuit Court’s ruling. The Circuit Court is expected to respond in the next few days.
- Ultimately, the legal battle will likely head to the Supreme Court.