The Texas Abortion Ban May Be Headed Back to the Supreme Court

The strictest abortion law in the country will stay in effect for now.
Demonstrators rally against anti-abortion and voter suppression laws at the Texas State Capitol on October 2, 2021 in Austin, Texas.
Demonstrators rally against anti-abortion and voter suppression laws at the Texas State Capitol on October 2, 2021 in Austin, Texas. (Photo by Montinique Monroe/Getty Images)

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Texas’ six-week abortion ban, the strictest abortion law in the country, will remain in effect, a federal appeals court ordered Thursday night.


In a four-sentence order, three justices on the 5th U.S. Circuit Court of Appeals, which oversees Texas, said that the law will stay in place while its constitutionality remains up for debate. The justices will hear oral arguments in the case, which was brought by the Justice Department.

Although they ordered the appeal to be “expedited,” the Justice Department may appeal the order to the Supreme Court.

“The Fifth Circuit has ruled on our side—a testament that we are on the right side of the law and life,” the Texas attorney general’s office tweeted Thursday.

Enacted on Sept. 1, the Texas law prohibits abortion as early as six weeks of pregnancy—before many people even know they’re pregnant. So far, the ban has survived the legal attempts to strike it down due to its unique structure: Rather than relying on the state government to enforce the ban, ordinary people can sue anyone who they believe has assisted in procuring an illegal abortion. Abortion providers, individuals who help pay for abortions, and even people who drive abortion patients to a clinic could be at risk of being sued.

The ban has, predictably, ping-ponged through various court challenges. Over the summer, a group of Texas abortion providers sued to stop the law from taking effect at all, but the majority-conservative Supreme Court ultimately declined to halt it. (The justices did not rule on the law’s constitutionality.)

After the Justice Department sued over the law, a U.S. district court judge froze it in early October. Two days later, the 5th Circuit ended that freeze, putting the ban back into effect.

“It’s outrageous but unsurprising that the Fifth Circuit has once again denied Texans their fundamental reproductive rights,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement Thursday. “We hope the Department of Justice urgently appeals this order to the Supreme Court to restore Texans’ ability to obtain abortion care after six weeks in pregnancy and we hope the Supreme Court will put an end to harms this law is causing.”