© Geoff Frink | Dreamstime.com

© Geoff Frink | Dreamstime.com

The 5th U.S. Circuit Court of Appeals late Friday granted a request from the state of Texas to temporarily reinstate its controversial heartbeat abortion ban while reviewing a lower court’s order blocking enforcement of the law through private civil suits.

A three-member panel consisting of Judges Catharina Haynes, Carl Stewart and James Ho granted the administrative stay sought by Texas Attorney General Ken Paxton.

Reiterating some of the arguments dismissed by U.S. District Judge Robert Pittman of the Western District of Texas days ago, Paxton argued that the U.S. Department of Justice has no standing to contest the law, which outlaws abortion well before the point at which a fetus can survive outside the womb, the standard articulated in Roe v. Wade in 1973.

The Justice Department has until 5 p.m. Tuesday, Oct. 12, to respond to the state’s request for a longer stay pending appeal.

Written to thwart court scrutiny, the Texas law deputizes private citizens to sue abortion providers and anyone who aids or abets the procedure after a fetal heartbeat is detectable – typically as early as six weeks, long before many women discover they are pregnant.

A successful suit nets the plaintiff an award of at least $10,000, while defendants who fend off a claim can’t even recover their legal expenses.

In a 24-page motion excoriating Pittman’s order – which was nearly five times as long – Paxton argued that the Justice Department “obtained an injunction prohibiting the adjudication of suits in state court under a law to which it will never be subject, against a state which can never enforce the law, based on real-world disputes which do not affect it, through a cause of action Congress has never authorized.”

'Procedural' hurdles

The Justice Department sued Texas after the Supreme Court’s conservative majority declined an injunction request from abortion providers seeking to prevent the measure from taking effect earlier this year.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – the last three appointed by former President Donald Trump – said at the time that “serious questions” had been raised about the law’s constitutionality but complex “procedural questions” tied the court’s hands.

Their inaction sparked scathing dissents from the court’s liberal wing and an outcry from abortion-rights supporters so fierce that Thomas, Alito and Barrett have all publicly pushed back on claims of political partisanship.

Notably, the majority’s decision on the injunction request in Whole Women’s Health v. Austin Reeve Jackson specified that justices had reached no decision about the constitutionality of the law and weren’t limiting challenges in lower courts.

'Supreme law of the land'

The Justice Department filed United States of America v. The State of Texas just a week later, asserting that the Texas law violates both the Fourteenth Amendment and its implied right to privacy – which provided the foundation for Roe v. Wade – as well as the Supremacy Clause.

That provision declares that the Constitution and federal laws passed under it are the “supreme law of the land,” overriding any contrary provisions in state laws or constitutions.

Roe v. Wade
© Zimmytws | Dreamstime.com. The Justice Department maintains that a heartbeat abortion ban in Texas violates Constitutional provisions including the Fourteenth Amendment and the Supremacy Clause.

Senate Bill 8, as the Texas law is known, “was deliberately crafted to avoid redress through the courts,” Pittman, the district judge, wrote in his decision. “Yet it is this very unavailability of redress that makes an injunction the proper remedy – indeed, the only remedy for this clear constitutional violation.”

Ku Klux Klan Act

Traditional principles of equity allow the federal government to seek an injunction protecting its sovereign rights “and the fundamental rights of its citizens under the circumstances present here,” he continued, quoting case law asserting that “a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.”

Pittman simultaneously brushed aside Texas’ claim, detailed in a motion to dismiss the government’s suit altogether, that executive branch agencies have no authority to prevent violations of Fourteenth Amendment rights unless Congress specifically confers it through federal law.

Because lawmakers haven’t written a statute authorizing enforcement of abortion rights, the state argues, the Department of Justice lacks the power to do so.

“Under the state’s construction, the United States would have less of a claim to enforce the Fourteenth Amendment than other parts of the Constitution,” Pittman wrote. “This cannot be the case. The suggestion is particularly troubling given the context in which the Fourteenth Amendment was passed and ratified.”

Approved in 1868, after the end of the Civil War, the amendment barred states from restricting any of the privileges of U.S. citizens or depriving any of their residents of equal protection under the law.

Among the bills Congress passed to enforce the law was the Ku Klux Klan Act of 1871, authorizing the president to intervene in states where equal protection was denied through tactics including vigilantism.

'Sword and shield'

The Department of Justice itself was created in the same period, to further the same goals, Pittman added. “Thus, the power to sue to vindicate the constitutional rights of citizens against states that would infringe them strikes at the core of the mandate of the Department of Justice and the essence of the Fourteenth Amendment,” he wrote.

As for the state’s argument that it isn’t enforcing the law itself and wouldn’t be sure what its responsibilities were under an injunction, the judge was equally dismissive.

Texas “has its prints all over the statute,” he wrote. “The operation and enforcement of S.B. 8 requires the state and its employees to act, whether those acts are the maintenance of a lawsuit or carrying out a court order regarding the enforceability of S.B. 8. The state enacted S.B. 8 when Governor [Greg] Abbott signed it into law; the law represents the state’s pre-viability abortion policy; the state chose to partially delegate its enforcement authority to private individuals; and the state’s judiciary accepts and hears S.B. 8 lawsuits.”

Finally, “the state continues to defend S.B. 8, disclaiming responsibility by pointing the finger at the private individuals who the state deputized as enforcers,” he wrote. “A private cause-of-action enforcement scheme is meaningless without state action. Yet, the state endeavors to use it as a sword (to effectuate its regulation of abortion) and a shield (to insulate those regulations from federal review).”