Texas can allow its six-week abortion ban to resume after a ruling from a federal appeals court, as legal battles over Senate Bill 8 continue.
The U.S. Court of Appeals for the 5th Circuit granted a temporary emergency stay in the United States v. Texas, the federal government’s suit against the state. As a result of the 5th Circuit’s ruling, a preliminary injunction — which halted the SB 8 from being enforced — no longer stands, and the vast majority of all abortions are once again banned in Texas.
The 5th Circuit has given the federal Justice Department until 5 p.m. CT on Tuesday to respond to Friday night’s action. The Justice Department will need to prepare its argument to counter Texas’ request that such a stay be a permanent one.
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Any abortion care performed past the detection of cardiac activity on ultrasound while the preliminary injunction was in place is now subject to legal action: Though legal during the time the injunction was in place, it is retroactively illegal now that the 5th Circuit has once again issued a stay on SB 8 and the law once again stands.
The 5th Circuit’s ruling does not come as a surprise to court-watchers. The federal appeals court had previously ruled in favor of the state and let SB 8 stand go into effect.
But the 5th Circuit’s reversal of the federal court’s ruling also now sets in motion a clear path for the case to be heard by the Supreme Court, as the Department of Justice is likely to immediately appeal their decision.
The Supreme Court is already set to hear oral arguments for Dobbs v. Jackson Women’s Health on December 1, a case which stands to potentially overturn or weaken Roe v. Wade. The Dobbs case centers around a Mississippi law that would ban all abortion in the state after 15 weeks into a pregnancy. The Supreme Court will hear the Dobbs case before it could potentially hear the DOJ’s case against Texas, so the decision — which will be issued sometime in 2022 — could potentially supersede the DOJ’s argument.
Depending on how the Supreme Court rules in Dobbs, there are currently 11 states in the United States with “trigger bans” on the books that would immediately take effect should Roe fall (Oklahoma’s trigger law is set to go into effect November 1). Texas is one of these states, and an overturn of Roe would make all abortion in the state illegal, and not just that performed after six weeks.
