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Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenge

An ultrasound machine sits next to an empty patient bed at Whole Woman’s Health of Austin on...
An ultrasound machine sits next to an empty patient bed at Whole Woman’s Health of Austin on Sept. 1.(Jordan Vonderhaar for The Texas Tribune)
Published: Oct. 14, 2021 at 9:15 PM CDT
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Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenge” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Texas’ near-total abortion ban can continue to be enforced while the law’s constitutionality is decided, a panel of federal appellate judges ordered late Thursday.

The three justices of the 5th Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — chose to keep enforcement of the law in place after considering arguments from the Biden administration and state of Texas. The vote was 2-1, with Judge Carl Stewart dissenting.

A U.S. District court previously blocked enforcement of the law for two days before the 5th Circuit froze the order. Now, after hearing new arguments, the panel has agreed to hear oral arguments in the underlying lawsuit and to continue the enforcement of the law while court proceedings unfold.

The appellate court will now take over this legal challenge that was being overseen by U.S. District Judge Robert Pitman. The U.S. can now seek an emergency appeal from the U.S. Supreme Court, asking for it to overrule the 5th Circuit. The Supreme Court previously allowed the law to take effect without ruling on its constitutionally after abortion providers asked the high court to step in.

Oral arguments have not yet been scheduled, but it could be months before they take place.

The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. That case was brought on by abortion providers and also overseen by Pitman. The 5th Circuit is set to hear oral arguments in the abortion provider’s case no earlier than December.

The same panel of 5th Circuit judges will consider both cases.

“We are very grateful,” said Kim Schwartz, media and communication director for the anti-abortion group Texas Right to Life. “We ultimately believe that we’ll be victorious.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/10/14/texas-abortion-restrictions-appeal/.

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