The Texas Heartbeat Act, which prohibits abortions after a fetal heartbeat can be detected – usually at six weeks gestation – has now survived its third legal challenge since the law went into effect September 1.
The latest challenge, brought by the U.S. Department of Justice (DOJ), resulted in a short-lived injunction last week issued by a federal judge in Austin, Texas, which blocked the law’s enforcement. However, two days later the 5th U.S. Circuit Court of Appeals temporarily blocked (aka stayed) that lower court order. The action by the 5th Circuit reinstated the law until such time as a three-judge panel of that court can address the state’s request for a longer stay.
If you’re keeping score, you’ll note that the heartbeat law is now 3-0 against attempts to have it declared unconstitutional, albeit only until further court hearings run their due course.
First, as you may recall, several abortion sellers in Texas filed a constitutional challenge against the law during the summer in the same federal courtroom as the DOJ did recently. That first lawsuit earned a favorable early ruling from U.S. District Court Judge Robert Pitman. However, that ruling was immediately overturned as both the 5th Circuit and the U.S. Supreme Court issued orders allowing the law to take effect while the lawsuit proceeded in the lower courts.
Then Planned Parenthood sued in a Texas state court and obtained an order blocking the law, only to see that order reversed by the state supreme court.
The DOJ entered the legal fray in early September with its own lawsuit, claiming it was suing on behalf of women’s constitutional rights, as well as asserting that several federal programs operating in Texas were jeopardized by the new law. Judge Pitman originally denied DOJ’s request for an emergency injunction, but later held a hearing which ultimately resulted in the October 6 injunction that the 5th Circuit promptly overturned.
Why does the Texas law keep on winning?
As we’ve explained before, the abortion industry doesn’t like to take risks. Until the Texas legislature passed this particular bill, abortionists typically went to federal court before a law went into effect and obtained injunctions against state officials preventing them from enforcing new abortion laws. Those injunctions lasted until the lawsuits ran their course and a judge entered a final order declaring such laws unconstitutional.
By its own terms, however, the Texas law isn’t enforced by state officials, but by private citizens who are allowed to sue abortionists in the Texas state courts. And the identities of those private citizens won’t be known until they bring the lawsuits. Since they can’t be identified in advance, the abortion industry’s main weapon for blocking the law – an injunction preventing the enforcement of the law – has thus far been unavailable. As the law is written, abortionists wanting to challenge the law have to violate it first and wait to be sued before they are afforded an opportunity to contest the law’s constitutionality.
That’s too risky for abortionists, who care more about the money side of their business than the women they purportedly serve. That’s why they’re currently complying with the law, while exerting every legal option they can come up with, including getting the DOJ involved.
And while some pregnant women are reportedly traveling out of state to obtain abortions, others are choosing life for their babies. Texas Right to Life’s Director of Media and Communication Kimberlyn Schwartz made this point in a press release celebrating the 5th Circuit’s most recent ruling.
“This is an answered prayer,” Schwartz said. “The Texas Heartbeat Act saves approximately 100 lives from abortion per day, and we’re grateful that this tremendous impact will continue. We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will continue to defeat these attacks on our life-saving efforts.”
All three of these lawsuits will proceed with more hearings, briefs and perhaps even trials. At some point a court might even declare the law unconstitutional. But that will only serve to tee up the constitutional issue for the U.S. Supreme Court, which is already scheduled to hear arguments on December 1 that Roe v. Wade should be overturned. That case is Dobbs v. Jackson Women’s Health Organization.
And in the meantime, babies are being saved.
Photo from Shutterstock.