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Federal appeals court temporarily reinstates Texas' 6-week abortion ban

People take part in the Women's March ATX rally, Oct. 2, at the Texas State Capitol in Austin. The march was a response to a Texas law that bans most abortions.
Stephen Spillman
People take part in the Women's March ATX rally, Oct. 2, at the Texas State Capitol in Austin. The march was a response to a Texas law that bans most abortions.

The 5th U.S. Circuit Court of Appeals has struck down a lower federal court ruling that temporarily blocked Texas from enforcing its ban on abortions as early as six weeks into a pregnancy.

The Department of Justice now has until Oct. 12 to reply to the ruling, and the ban remains in effect until then.

Before a lower court intervened, Texas was allowed to keep its abortion law, Senate Bill 8, in effect for roughly five weeks. In that time, providers say they were forced to turn away hundreds of people seeking abortions.

Because most people don't realize they are pregnant until after six weeks, the majority of people seeking abortions in Texas were unable to get the procedure. Texas' law makes no exception for victims of rape or incest. The only exception to the ban was to save the life of the pregnant person in a medical crisis.

Aside from being one of the most restrictive abortion laws in the country, it was also uniquely designed to evade court action.

Instead of being enforced by state agencies, Texas lawmakers drafted the law to be enforced by private citizens. SB 8 allows anyone — including people who don't live in Texas — to sue someone they believe provided an abortion after "cardiac activity" was detected, usually at about six weeks, for a minimum of $10,000 in damages. It also holds anyone liable who "aids or abets" someone who gets the procedure after the limit.

Near-total shutdown of abortions

Out of fear of possible litigation, many providers had shut down all abortion services or have adhered to the strict limit. Amy Hagstrom Miller, the CEO and founder of Whole Woman's Health, recently told reporters that her staff had been living with the fear of being sued.

"These folks don't have attorneys or funds to hire attorneys," she said. "Many of our physicians have opted out of providing care while SB 8 is in effect — it being just too risky for them to do so."

Abortion providers in Texas say a lower court ruling that temporarily blocked the law provided a short reprieve from SB 8 restrictions. Anticipating the federal appeals court would quickly overturn the lower court ruling,only a few clinics in the state expanded their abortion services past six weeks.

Abortion providers have said they are hoping they get more permanent relief from the U.S. Supreme Court.

The nation's highest court was asked to intervene when the law was first going into effect, but justices declined. Since the law has been in effect, abortion providers have petitioned the court, again. So far, the court has not responded.

Abortion providers have said one of the longer-term concerns is what will happen to their clinics if the law continues to stay in effect. Hagstrom Miller said providers are facing serious financial strains as they turn away the majority of people seeking an abortion.

She said access to abortion in the state could be permanently altered if the law isn't blocked as the legal challenges move through the courts.

"If clinics close because SB 8 is enforced long enough," Hagstrom Miller said, "the damage will be done, even if it's eventually struck down."

Copyright 2021 KUT 90.5

Ashley Lopez joined KUT in January 2016. She covers politics and health care, and is part of the NPR-Kaiser Health News reporting collaborative. Previously she worked as a reporter at public radio stations in Louisville, Ky.; Miami and Fort Myers, Fla., where she won a National Edward R. Murrow Award.