Multiple cases, courts add to uncertainty over Texas abortion law enforcement

The 5th Circuit Court of Appeals temporarily reinstated SB 8, but further rulings expected soon could put the law in doubt again.

By Rhonda Fanning & Shelly BrisbinOctober 11, 2021 7:27 am,

The 5th Circuit Court of Appeals struck down a federal district court judge’s decision to temporarily block Texas’ restrictive new abortion law. The ruling effectively means that enforcement of the near total abortion ban can resume, at least until Tuesday. The two rulings, and the multiple cases resulting from the new law, have created a clouded legal landscape for abortion providers and those seeking abortion services in Texas.

Elizabeth Sepper is a professor of law at UT-Austin. She told Texas Standard that after the federal district judge blocked enforcement of the law, but before the federal appeals court’s ruling on Friday, some abortion providers in Texas had been providing abortion care. Those providers were potentially risking civil legal action as allowed by the abortion law known as SB 8.

“What’s unusual about SB 8 is that it says that even if an abortion provider or funder or friend who drives someone, does so while the law is blocked, ultimately if the law is allowed to go into effect, the provider could be subject to lawsuits,” Sepper said.

The appeals court ruling came in the case filed by the U.S. Justice Department against the State of Texas, seeking to block SB 8.

“It’s explicitly a temporary, administrative stay of the injunction the United States just won,” Sepper said.

The DOJ must respond to the court by Tuesday, after which the court can decide whether to grant an appeal from the state, or continue the block of SB 8.

Sepper says the 5th Circuit is likely to act quickly, once the Justice Department submits its response.

In December, the 5th Circuit will also hear oral arguments in a case filed by Whole Woman’s Health that seeks to block SB 8.

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