5th Circuit Courts lets Texas abortion law stand — for now

Texas Senate Bill 8, which went into effect on September 1, isn't the first anti-abortion "heartbeat law" that defenders of abortion rights have vowed to fight in the courts. But it is by far the most extreme and draconian, outlawing all abortions after about six weeks into a pregnancy and allowing civil lawsuits against anyone who "aids and abets" an abortion after that amount of time. U.S. Attorney General Merrick Garland announced, this week, that the U.S. Department of Justice had filed a lawsuit against the law.

But the 5^th Circuit Court of Appeals, as initially reported by BuzzFeed News reporter Zoe Tillman, has issued an order that "leaves the law in place for now." The decision was in response to a lawsuit by Texas abortion providers.

In a Twitter thread, Tillman explains, "This order does a few things: - First, the 5th Circuit says the state [defendants] (state judges, clerks, medical licensing officials, AG Paxton) win in arguing immunity — they don't enforce SB 8, so they can't be enjoined from doing anything, so they're not proper parties."

Tillman also notes some ways in which the ruling affects anti-abortion activist Mark Lee Dickson.

"Dickson can't claim immunity, and the district judge rejected his other args for dismissal," Tillman observes. "5th Circuit says it'll hear his appeal of all that on an expedited basis, and keep the district court case on hold."

According to Tillman, "The 5th Circuit notes that anyone who is sued can raise a constitutional challenge as a defense, but the order does not address the immediate harm argument raised by providers, which is that the law has had the effect of stopping abortions in Texas altogether…. SB 8's structure was designed to avoid the kind of swift injunction other abortion bans have faced, and that's what's happened"

The 5th Circuit Court of Appeals covers Texas, Louisiana and Mississippi, all three of which are red states. Tillman notes that the 5^th Circuit leans "conservative."

Legal expert Steve Vladeck, weighing in on the 5th Circuit decision, tweeted: