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Texas’s near-total abortion ban remains in place as the court agrees to hear legal challenges

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

The three judges in the U.S. 5th Court of Appeal – perhaps considered the nation’s most conservative appeals court – also agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law.

A US district court had previously blocked enforcement of the law for two days before the 5th district initially froze the order. The 5th District Panel of Judges voted 2-1 on Thursday to keep the law in effect until it considers the U.S. Department of Justice’s challenge. Judge Carl Stewart disagreed.

The ruling means the appeals court is taking on the legal challenge of Senate Law 8, which was overseen by U.S. District Judge Robert Pitman.

Oral disputes before the 5th district assembly are not yet planned, but it could take months to take place.

“We are very grateful,” said Kim Schwartz, media and communications director for anti-abortion group Texas Right to Life. “We believe in the end that we will be victorious.”

The Justice Department did not immediately respond to a request for comment late Thursday. At least one abortion provider condemned the decision.

“Once again the Fifth Circuit has shown that it is unwilling to take action to stop the immense damage that Texans are exposed to or to protect Texans’ constitutional right to abortion,” Helene Krasnoff, Vice President for Public Disputes and Law for Planned Parenthood The Federation of America said in a statement. “The Fifth Circle is now complicit in SB 8’s plan to deny Texans access to abortion.”

Texas Attorney General Ken Paxton’s office quickly applauded the 5th District ruling.

“The fifth district has decided on our side – proof that we are on the right side of the law and life,” tweeted the office on Thursday evening. “I will continue to oppose the lawless abuse of the Biden administration.”

The Department of Justice can now file an urgency complaint with the US Supreme Court to overturn the 5th District. The Supreme Court previously let the law go into effect without ruling on its constitutional decision after abortion providers called on the Supreme Court to intervene.

The law prohibits abortions as early as the sixth week of pregnancy, before many people know they are pregnant. It was able to enforce the constitutional right to abortion before fetal viability, established by Roe v. Wade and subsequent judgments were introduced, largely disregarding the unique way it was written.

The law leaves enforcement of the new restrictions to private individuals, rather than state officials, by allowing anyone to file lawsuits through the civil justice system against those performing or assisting in an abortion. The law provides a fine of at least $ 10,000 for individuals or groups who are successfully sued.

Some abortion clinics resumed services prohibited by Texan law during the two days they were locked. The Abortion Act allows for retroactive enforcement – meaning those who helped someone get an abortion while the law was blocked during that period can be sued.

The 5th District issued an emergency stay in late August to stop the district court trial and cancel a hearing on another lawsuit against the Texas Abortion Act. This case was brought up by abortion providers and was also overseen by Pitman. The 5th district will hear oral arguments in the case of abortion providers in December at the earliest.

The same jury of judges from the 5th district will consider both cases.

The Texas Tribune is a non-partisan, nonprofit media organization that educates and engages Texans about public order, politics, government, and statewide issues.

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