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Texas clinics on Saturday canceled appointments they had booked during a 48-hour reprieve from the most restrictive abortion law in the United States, which was back in force as weary suppliers once again turn to the Supreme Court.
The Biden Administration, which sued Texas over the law known as Senate Bill 8, has yet to say whether it will go down that route again after a federal appeals court reinstated the law. Friday night. The latest twist came just two days after an Austin lower court suspended the law, which bars abortions once heart activity is detected, usually about six weeks before some women know they are pregnant. It makes no exceptions in cases of rape or incest.
The White House had no immediate comment on Saturday.
For now at least, the law is in the hands of the 5th United States Circuit Court of Appeals, which has allowed the restrictions to resume pending further arguments. In the meantime, abortion providers and patients in Texas are back where they have been for most of the past six weeks.
Out-of-state clinics already inundated with Texas patients seeking abortions were once again the closest option for many women. Providers say others are being forced to carry pregnancies to term or wait in hopes that the courts will strike down the law which came into effect on September 1.
There are also new questions — including whether abortion advocates will try to punish Texas doctors who performed abortions during the brief time the law was suspended from Wednesday night to Friday night. Texas leaves law enforcement solely in the hands of private citizens who can collect $10,000 or more in damages if they successfully prosecute abortion providers who flout restrictions.
Texas Right to Life, the largest anti-abortion group in the state, has set up a hotline to receive reports from violators. A dozen appeals came after U.S. District Judge Robert Pitman suspended the law, said John Seago, the group’s legislative director.
Although some Texas clinics said they briefly resumed abortions on patients older than six weeks, Seago said his group has no pending lawsuits. He said the clinics’ public statements did “not match what we’ve seen on the ground,” which he said includes a network of observers and crisis pregnancy centers.
“I have no credible evidence at the time of litigation that we would present,” Seago said on Saturday.
Texas had about two dozen abortion clinics before the law took effect. At least six clinics resumed performing abortions after six weeks of pregnancy during the reprieve, according to the Center for Reproductive Rights.
At Whole Woman’s Health, which has four abortion clinics in Texas, president and chief executive Amy Hagstrom Miller said she doesn’t have the number of abortions performed at her sites for patients outside of Texas. beyond six weeks, but that she had “a certain number”. She said her clinics were once again complying with the law and acknowledged the risks her doctors and staff had taken.
“Of course we’re all worried,” she said. “But we also feel a deep commitment to providing abortion care when it’s legal to do so, which is what we’ve been doing.”
Pitman, the federal judge who stopped the Texas law on Wednesday in a searing 113-page opinion, was nominated by President Barack Obama. He called the law an “offensive denial” of the constitutional right to abortion, but his decision was quickly overturned – at least for the time being – in a one-page order by the 5th Circuit Court Friday night.
That same appeals court previously allowed the Texas restrictions to go into effect in September in a separate lawsuit filed by abortion providers. This time, the court gave the Justice Department until 5 p.m. Tuesday to respond.
What happens after that is unclear, including how soon the appeals court will act or whether it will ask for more arguments. Texas is asking the appeals court for a permanent injunction that would allow the law to remain in effect while the case unfolds.
In the meantime, Nancy Northup, president of the Center for Reproductive Rights, urged the Supreme Court to “step in and stop this madness.” Last month the High Court allowed the law to go ahead in a 5-4 decision, although it did so without ruling on the law’s constitutionality.
A 1992 Supreme Court ruling prevented states from banning abortion before viability, the time when a fetus can survive outside the womb, around 24 weeks into pregnancy. But the Texas version has thwarted the courts because of its new enforcement mechanism that leaves enforcement to private citizens and not prosecutors, which critics say amounts to a premium.
The Biden administration could take the case to the Supreme Court and ask it to quickly restore Pitman’s order, though it’s unclear whether it will.
“I’m not terribly optimistic about what might happen to the Supreme Court,” University of Richmond law professor Carl Tobias said of the Justice Department’s chances.
“But there aren’t many downsides either, are there?” he said. “The question is, what’s changed since the last time they saw him? There’s this full opinion, this full hearing before the judge and the record. So that may be enough.”