Texas’ anti-abortion law has been suspended. Then suddenly it wasn’t.

A Texas law severely restricting access to abortion by allowing citizens to sue abortion providers was reinstated after a two-day hiatus.

Friday, the fifth The Circuit Court of Appeals granted an administrative stay of a previous ruling stopping SB 8, which effectively bans abortion after about six weeks of pregnancy, in response to a request for temporary stay from the state of Texas. The stay blocks an injunction Wednesday by a federal district court in Texas, which briefly suspended the law on the grounds that it violated the constitutional right to access abortion.

The temporary stay is just the latest development in a September lawsuit by Biden’s Justice Department against the state of Texas, which argues SB 8 is unconstitutional.

The lawsuit has sparked a whiplash back-and-forth through the courts this week with the reproductive health care situation in Texas at stake. For now, Friday’s stay has blocked the court order. district – but it is still not decided whether it will stay in place for the long term.

According to the court order on Friday, Biden’s Justice Department has until Tuesday to respond to the Texas emergency petition to stay the district court injunction. The Fifth Circuit panel could then decide to extend the stay.

As Anna North of Vox explained last month, SB 8 has dramatically affected the lives of pregnant people in Texas since its adoption on September 1, forcing them to carry unwanted pregnancies or leave the state to receive care while potentially incurring significant costs for travel, accommodation, and childcare, in addition to lost wages due to missed work.

Already, according to a PBS NewsHour report, at least 300 Texans seeking abortions have sought care in Oklahoma, straining not only them, but also the resources of Oklahoma providers and patients.

Judge Robert Pitman’s sharp 113-page ruling on Wednesday temporarily suspended SB 8, granting a two-day reprieve to patients seeking abortions and facilities that perform them.

Pitman’s decision, which describes SB 8 as an “unprecedented and transparent statutory regime,” offered a clear defense of abortion rights, and for a brief period after Wednesday’s injunction, some abortion providers resumed perform abortions after six weeks – but with a sense of foreboding, according to the Texas Tribune.

Abortion opponents in Texas wereted no time in calling for a stay of the Pitman decision. Texas Attorney General Ken Paxton on Friday filed the state’s request as part of his appeal of the decision, arguing that the DOJ cannot sue the state in the case because SB 8 is dependent on citizens – not law enforcement – to carry IT out.

The Fifth Circuit panel that granted the administrative stay includes conservative, anti-abortion judge James Ho, a Trump-appointed person who previously called abortion a “moral tragedy.”

SB 8 is deliberately difficult for courts to engage with

As the prosecution of SB 8 progresses, the single law enforcement mechanism continues to complicate these challenges.

Specifically, the measure is designed so that state officials do not enforce the law – citizens do, by bringing civil suits against those they accuse of “aiding or abetting” the obtaining of the law. ‘an abortion after health professionals detect cardiac activity in the embryo. This makes the legal challenge of the law incredibly complicated.

As Vox’s Ian Millhiser explains, it’s no accident:

The law appears to have been drafted to intentionally thwart lawsuits challenging its constitutionality. And Texas, with the help of a right-wing appeals court, has so far manipulated the litigation process to prevent any judge from considering whether SB 8 is legal.

Normally, if abortion rights advocates wanted to challenge the constitutionality of a law, they would sue a state law enforcement official.

But since no state officer is authorized To enforce SB 8, opponents of the law cannot, for example, prosecute a police officer or state health authority. Instead, according to Millhiser, the challenges of SB 8 will come from abortion providers, who “can argue in court that they should not be required to pay this premium because it is unconstitutional.”

Specifically, under SB 8, abortion providers and anyone who assists a patient in obtaining abortion care are now potentially responsible for an abortion. minimum $ 10,000 in damages – which, as Millhiser points out, could be much higher if the premium is decided by “a judge with particularly strong views against abortion.”

And the law could also have a long-term crippling effect on access to abortion in Texas, even if the injunction is again allowed to take effect pending appeal. The statute of limitations for bringing such a civil action under SB 8 is four years, and many providers have chosen not to provide long-term care for the brief period this week that SB 8 does. was not in force lest they be sued retroactively

The success of Texas law in blocking access to abortion also inspired at least one copycat bill: in Florida, Republican State Representative Webster Barnaby introduced anti-abortion legislation using a framework similar to that in SB 8 that would make the proposed law difficult to challenge in court. courts.

The fifth circuit is likely to side with the Texas

The Fifth Circuit’s decision to grant an administrative stay of Pitman’s injunction is only temporary, but it could be a sign of what’s to come as the court considers the Texas appeal.

As the New York Times reported on Friday, some legal experts believe this temporary order is just a prelude to a full stay, allowing SB 8 to remain in effect, and that the Conservative Fifth Circuit is likely to end. ranger on the Texas side.

The Texas appeal itself is based on three arguments: the Department of Justice does not have the right to sue the state of Texas, because of the way SB 8 is drafted and applied; the trial of the government will not succeed on the merits; and the federal district court violated precedent by preventing the state of Texas itself from enforcing the law, while the text of the law says the state does not enforce it – private citizens do .

Texas has requested an expedited review of the appeal, and depending on the outcome, the case could end with the Fifth Circuit ruling. Specifically, according to the New York Times, “there is no guarantee that the Justice Department’s civil lawsuit against Texas will make it to the Supreme Court” if the Fifth Circuit sides with Texas. Instead, it is possible that the conservative majority in the court will refuse to hear the appeal, allowing the Fifth Circuit ruling to remain in effect.

However, the DOJ lawsuit is not the only way currently testing the constitutionality of SB 8. Two lawsuits are also pending against Dr. Alan Braid, who admitted in a Washington Post editorial last month that he had provided abortion care after the Texas legal deadline. Anti-abortion groups are not among the plaintiffs, but two barred lawyers, none of whom resides in Texas, have filed a lawsuit against Braid. One of the plaintiffs, Felipe Gomez, is not seeking damages, according to KSAT, an ABC subsidiary in the San Antonio area.