The vote of the panel was 2-1.
The Texas law bans abortions after fetal cardiac activity is detected, which usually happens about six weeks into a pregnancy and often before a woman knows she is pregnant. It’s been the subject of heated litigation since before it took effect at the beginning of last month.
Appellate Judges Catharina Haynes, a George W. Bush appointee, and James Ho, a Donald Trump appointee, voted to let the law remain in place. Judge Carl Stewart, a Bill Clinton appointee, dissented.
With the 5th Circuit’s latest move, the Justice Department is expected to turn to the Supreme Court with a request to halt the law.
The Supreme Court had declined to block the law after clinics requested an intervention earlier this year.
Law’s novel approach stymies attempts to block it
Rather than task government officials with enforcing the ban, via criminal or administrative penalties, the law deputizes private citizens to bring state court litigation against providers or anyone who assists a woman in obtaining an abortion after fetal cardiac activity is detected.
The design of this enforcement mechanism has been mostly successful in limiting other legal attempts — by clinics and others — to get the law enjoined, because it complicated the usual route of seeking court orders against specific government officials who are usually in charge of implementing restrictive abortion laws.
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” Pitman said. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
Texas says feds can’t sue
Paxton argued that the Biden administration does not have the legal right to bring suit in the case, even if the law were crafted in a way to avoid review in federal court.
“The federal government’s position boils down to a simple — but erroneous — claim: A law that avoids pre-enforcement review in federal district court is an open threat to our constitutional order,” the Republican state attorney general wrote. “That is ahistorical nonsense.”
US Attorney General Merrick Garland, in announcing the lawsuit last month, referred to the law as a “scheme” and said it “is clearly unconstitutional under longstanding Supreme Court precedent.”
“The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” he said.
But Paxton says the federal government doesn’t have the right to step in.
He is supported by a brief filed by Jonathan Mitchell, one of the architects of the law now representing three individuals who are interested in bringing lawsuits against those who may violate it.
Mitchell wrote that the states “have tools in their arsenal to limit the judiciary’s opportunities to pronounce their statutes unconstitutional.”
Mitchell said that states can structure their laws in a way that “reduces or eliminates” them from being challenged before they are enforced. “And that is what Texas has done,” he said. “By prohibiting state officials from enforcing the statute and by authorizing the citizenry to enforce the law through private civil-enforcement actions, Texas has boxed out the judiciary from entertaining” such challenges.
Mitchell added that abortion is “not a constitutional right” but “a court-invented right that may not even have the majority support on the current Supreme Court.”
This story has been updated with additional details Thursday.
CNN’s Ariane de Vogue contributed to this report.