A federal appeals court on Friday night allowed Texas to ban most abortions, the first time since early September that clinics across the state began rushing to serve patients again.
Abortion providers in Texas were forced to act swiftly for the 5th U.S. Court of Appeals, even as they booked new appointments and lost their lives during a brief respite from legislation known as Senate Bill 8. The doors reopened, which bans abortion when cardiac activity is detected, usually around six weeks.
On Wednesday, US District Judge Robert Pittman, President Barack Obama’s appointee, suspended a Texas law he called an “aggressive deprivation” of the constitutional right to abortion. But in a one-page order, a New Orleans-based appeals court temporarily set aside Pittman’s decision while it considers the state’s appeal.
The court gave the Biden administration, which brought the lawsuit, until Tuesday to respond.
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The Center for Reproductive Rights, which represents several Texas abortion clinics, urged the US Supreme Court to “step in and stop this madness.”
“Patients are being thrown back into a state of chaos and fear,” said organization president Nancy Northup.
There were about two dozen abortion clinics in Texas before the law took effect on September 1, and not all Texas abortion providers resumed services during the 48 hours the law was put on hold. Many physicians feared such a swift reversal from the appeals court, which risks putting them in legal jeopardy.
The new law threatens Texas abortion providers with lawsuits from private citizens who, if successful, are entitled to collect at least $10,000 in damages. That novel approach to enforcement is the reason Texas was able to avoid an earlier wave of legal challenges earlier this week.
The same appeals court allowed the law to take effect in September, and it stepped in just hours after Republican Texas Attorney General Ken Paxton’s office urged him to act.
His office told the court that since the state does not enforce the law, it “cannot be held responsible for the filing of private citizens that Texas is powerless to prevent.”
It is unclear how many abortions Texas clinics have performed in the short time since the law was struck down. As of Thursday, at least six abortion providers had resumed normal services or were gearing up to do so, according to the Center for Reproductive Rights.
Prior to Pittman’s 113-page blundering order, other courts had refused to stop the law, which bans abortions before some women become pregnant. That includes the 5th US Circuit Court of Appeals and the Supreme Court, which allowed it to proceed in September without ruling on the constitutionality of the law.
One of the first providers to resume normal services was Whole Women’s Health, which operates four clinics in Texas.
Amy Hagstrom Miller, president of Whole Women’s Health, said her clinic called early Thursday some patients who were on the list in case the law was blocked at some point. Other appointments were in the process of being scheduled for days to come, and the phone lines were busy again. But 17 physicians from some clinics were still refusing to perform abortions, fearing they could be held liable despite the judge’s order.
Pittman’s order dealt the first legal blow to Senate Bill 8, which had faced earlier challenges. In the weeks after the restrictions went into effect, Texas abortion providers said the impact was “exactly what we feared.”
Pittman took Texas to task in his opinion.
“Ever since SB 8 took effect, women have been barred from taking control of their lives in ways protected by the Constitution,” wrote Pittman, who was appointed to the bench by former President Barack Obama.
Abortionists say their fear has become a reality in the short time the law came into force. Planned Parenthood says the number of patients at its Texas clinics in the state has decreased by about 80% in the two weeks since the law took effect.
Some providers have said Texas clinics are now in danger of closure, while neighboring states struggle with a surge of patients who have to drive hundreds of miles to get an abortion. He says other women are being forced to conceive.
It is unknown how many abortions have occurred in Texas since the law took effect. State health officials say the additional reporting requirements under the law will not make the September data available on their website until early next year.
A 1992 decision of the US Supreme Court prohibited states from banning abortions before viability, at which point the fetus can survive outside the womb, around 24 weeks of pregnancy. But the Texas version had so far overtaken the courts because it leaves it to private citizens to file lawsuits, not prosecutors, which critics say equates to a bounty.
Associated Press Writer Jamie Stengel contributed from Dallas.