NEW ORLEANS (CN) — The Fifth Circuit over the weekend dealt a blow to abortion providers in Texas challenging a sweeping set of restrictions set to take effect Wednesday when it canceled a hearing that had been scheduled in the case and then denied an emergency request to block the law without explanation.
The law, passed along party lines in the Republican-controlled Texas Legislature and signed by Governor Greg Abbott in May, prohibits abortions once a fetal heartbeat is detected, as early as six weeks, unless a medical emergency necessitates the procedure. It also hands power over to private citizens to sue doctors, or anyone who aids and abets the procedure, with fines of at least $10,000 per violation.
Just over 20 abortion providers across Texas were set to present witness testimony and legal arguments Monday in Austin federal court against Senate Bill 8, which they claimed “creates a bounty hunting scheme” that encourages the general public to target abortion providers.
But on Friday evening the Fifth Circuit, viewed as one of the most conservative appeals courts in the country, issued a three-paragraph order that effectively canceled the hearing. An emergency motion filed by the abortion providers asking for a temporary stay, or for the case to be sent back to the lower court, was denied Sunday.
“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop," Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a statement. “Texas has shown it will stop at nothing to force this law into effect and push abortion out of reach for as many Texans as possible."
On Monday, clinics across the state remained opened and continued providing abortion care. But with just hours before the new law takes effect, anti-abortion organizations praised the Fifth Circuit orders as a “big victory” for the pro-life movement.
“We were just astounded by the flurry of activity over the weekend,” Joe Pojman, executive director of Texas Alliance for Life, said in an interview. “This law is a law that we support because it is a statement by the state of Texas that human life should be protected in the womb.”
But Pojman added that the law still has “a very high hill to climb in the federal courts because of what we consider to be a terrible Roe v. Wade and Planned Parenthood v. Casey case law.”
“We’re expecting a lot of activity to continue over the coming days and weeks and we haven’t even gotten to the place where an abortion provider or someone who assists in someone getting an abortion is sued by a private actor,” he said.
By Monday afternoon, attorneys for the providers, including the Center for Reproductive Rights, the ACLU and the Lawyering Project, filed an emergency request with the U.S. Supreme Court in a last-ditch attempt to block the law.
“No one should be forced to drive hundreds of miles or be made to continue a pregnancy against their will, yet that’s what will happen unless the Supreme Court steps in,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement.
Hagstrom said the clinics will provide the full scope of abortion care services “up until the minute this law takes effect.”
“We urge the Supreme Court to protect patients’ health and allow us to continue providing the essential health care Texans deserve,” she said.
“This is a fascinating thing,” Pojam said of the legal challenges, adding that it will be interesting to see if the abortion providers file a lawsuit in federal court to enjoin the law once it takes effect on Wednesday.
“That’s another possibility; we’re not even there,” Pojam said. “That will be a whole different ballgame.”
Similar six-week bans in other states have been struck down by the courts. The Supreme Court is set to consider whether all pre-viability abortion bans are unconstitutional when it hears a Mississippi case involving a 15-week ban.
Oral arguments have not been scheduled, but a decision is expected by the end of the court’s term in June 2022.
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