The U.S. 5th Circuit Court of Appeals is letting Texas’ controversial abortion law remain in effect.
In a ruling 2-to-1 order on Thursday, the court declined the Justice Department’s request to reinstate a ruling from a district court that blocked the law.
Judges Jame C. Ho, who was nominated by former President Donald Trump, and Catharina Haynes, a former President George W. Bush nominee, backed the decision. Judge Carl E. Stewart, a nominee of former President Bill Clinton, dissented.
As The Washington Post explains, “The decision was based on previous rulings in a separate challenge, which said that because the ban is enforced by private individuals, and not government officials, it is not clear when and how the law can be challenged in federal court.”
On Oct. 8, the circuit court temporarily reinstated the law two days after U.S. District Judge Robert Pitman temporarily blocked enforcement of the law.
The temporary reinstatement was in place until the Justice Department responded to the ruling and the court heard arguments from both sides.
At the heart of the matter is a law that bans abortion as early as six weeks into the pregnancy and does not include an exception for rape or incest — the strictest in the nation.
As the Post notes, “No court has addressed whether the ban violates past Supreme Court decisions guaranteeing the right to an abortion until viability, usually about 22 to 24 weeks of pregnancy.”
In a statement on Friday, a Justice Department spokesperson said, “The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8.”
Earlier this year, the high court voted 5-to-4 to uphold the law, as IJR reported.
The justices said that abortion providers did not address “complex and novel antecedent procedural questions” properly.
The decision read, “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.”
“In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” it added.
President Joe Biden called that decision an “unprecedented assault on a woman’s constitutional rights under Roe v. Wade.” And Attorney General Merrick Garland vowed that the Justice Department would explore “all options” to challenge it the law.
In September, the Justice Department brought a lawsuit against Texas over the law which it said was “clearly unconstitutional under long-standing Supreme Court precedent.”
