Federal appeals court keeps Texas fetal heartbeat law in place again

A divided federal appeals court Thursday rejected the Biden administration’s attempt to stop Texas from enforcing the state’s law prohibiting abortions once a fetal heartbeat is detected — leaving the measure in place while the courts decide its ultimate fate.

The three-judge panel of the Fifth Circuit Court of Appeals voted 2-1 to reject the Justice Department’s bid to stay a preliminary injunction allowing the law to stand.

The law, known as SB8, went into effect last month after the Supreme Court denied an emergency appeal filed by abortion providers. While similar measures in other states have been struck down by federal courts, the Texas law has so far prevailed in part due to its unusual structure that leaves enforcement up to private citizens.

Anyone who brings a successful lawsuit against an abortion provider for violating the law is entitled to claim at least $10,000 in damages, leading the Biden administration and pro-abortion activists to accuse Texas legislators of putting a bounty on women who seek to terminate their pregnancies.

Texas Right to Life, the state’s largest anti-abortion group, set up a tipline to receive allegations against abortion providers but has not filed any lawsuits.

The law prohibits abortions once medical professionals can detect cardiac activity — which usually happens at around six weeks, before some women know they’re pregnant. No exceptions are made in cases of rape or incest.

A woman protesting abortion at a building housing an abortion provider in Dallas, Texas on October 7, 2021.
AP Photo/LM Otero

Texas had roughly two dozen abortion clinics before the law took effect, and operators have said some may be forced to close if the restrictions stay in place for much longer.

The Biden administration could now seek a rehearing or go straight to the Supreme Court, just as abortion providers unsuccessfully tried in August.

The ongoing controversy over the Texas law comes months before the high court is scheduled to hear a case involving a Mississippi law that prohibited abortions after 15 weeks, but was successfully challenged by the state’s only abortion clinic.

Women protesting the law at the Texas state Capitol building on September 1, 2021.
Women protesting the law at the Texas state Capitol building on September 1, 2021.
Jay Janner/Austin American-Statesman via AP, File

In briefs filed at the Supreme Court this summer, Mississippi Attorney General Lynn Fitch has argued that the justices should overturn the 1973 decision in Roe v. Wade, as well as a 1992 decision prohibiting states from banning abortion before viability, the point at which a fetus can survive outside the womb.

“Under the Constitution, may a State prohibit elective abortions before viability? Yes,” Fitch wrote. “Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion.”

With Post wires

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