Texas’ 6-week abortion ban goes back before a federal appeals court

Plaintiffs said it was unusual for the Fifth Circuit to delay holding oral arguments after the Supreme Court’s ruling and that it simply had to remand the case.


Whole Woman’s Health of Austin has resumed offering abortions to people who are six weeks or more along in their pregnancies.

A federal appeals court is holding oral arguments Friday in a case challenging Texas’ law banning abortions as early as six weeks into a pregnancy. Abortion providers in the state are asking the Fifth Circuit to send the case down to a lower court after the U.S. Supreme Court ruled last month the legal challenge can continue.

Marc Hearron, one of the attorneys representing the plaintiffs, said the Fifth Circuit’s delay holding the hearing is "highly unusual."

"There's really nothing for the Fifth Circuit to do in this case other than just issue the formal order that sends the case back to the district to allow the lower court to proceed," said Hearron, senior counsel for the Center for Reproductive Rights.

This is just the latest stage of what has been a long and complicated legal challenge to Texas' strict abortion law. No other state has been allowed to keep a law in effect that violates the legal precedent set by Roe v. Wade, which legalized abortions in the U.S. up to 24 weeks into a pregnancy.

The law was designed to be enforced by private citizens, instead of the state, making it difficult for plaintiffs to get it blocked by the courts.

Under the law, known as Senate Bill 8, private citizens can sue anyone in civil court for providing an abortion after that six-week limit, which is before many people even know they are pregnant. They can also sue anyone who "aids or abets" a procedure past that timeframe. That includes people who provide logistical or emotional support to a person who gets an abortion, including family members, clergy and rape crisis counselors.

John Seago, the legislative director of Texas Right to Life, told KUT in September that the law was designed to stay in place as long as possible.

"This is a different approach to make sure that we can implement this law," he said.

The Fifth Circuit, one of the most conservative federal appeals courts in the country, threw out a lower court ruling last year, finding the plaintiffs were suing the wrong people. During that legal back and forth, Texas has been allowed to keep the country's most restrictive abortion ban in effect.

After months of public backlash, though, the U.S. Supreme Court heard challenges to the law last month from abortion providers and the Biden administration.

Following an expedited and limited hearing process, the court ruled abortion providers could sue licensing officials in the state, but allowed the law to stay in effect.

Hearron said Friday's hearing is about making sure the case moves forward as the court ordered.

"We are following the Supreme Court's directions," he said. "The Supreme Court ordered that this case can move."

In the meantime, Hearron said, this drawn-out legal process has put many Texans in a tough position. He said the longer SB 8 stays in effect, the more people will be forced to carry out an unwanted pregnancy or go out of state for the procedure, if they have the means.

"It's a pernicious law that denies constitutional rights," he said.