The Texas law to protect the life of an unborn baby whose heartbeat can be detected is back in effect – at least for now.
The Fifth Circuit Court of Appeals in New Orleans temporarily stayed late Oct. 8 a preliminary injunction blocking enforcement of the Texas Heartbeat Act (S.B. 8). A three-judge panel instructed the U.S. Department of Justice to reply by 5 p.m. Oct. 12 to an emergency motion to halt the injunction.
The Fifth Circuit Court’s action reinstated the ban only two days after a federal court granted the injunction requested by the Biden administration. The judges will determine whether the ban will remain in effect while it is challenged in court. The law, which took effect Sept. 1, prohibits abortions as early as five to six weeks into pregnancy.
Tony Wolfe, associate executive director of the Southern Baptists of Texas Convention (SBTC), expressed gratitude for the temporary stay.
“And we pray that as ‘God’s servant for good’ (Romans 13:4), those entrusted by the Texan and American people with the great responsibility of making, interpreting and enforcing law in the days ahead will rise to this opportunity to protect unborn life,” Wolfe said in a written statement.
“The signing of the Texas Heartbeat Act into law was a matter of great rejoicing for those who celebrate human life as a gift from God. It brought a measure of victory in the fight for life that was long worked for. The SBTC will always advocate in favor of laws that preserve life for those who are among the most vulnerable of Texan Americans – those yet in the womb.”
Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), said in written comments, “While the Fifth Circuit is stepping in here to reinstate the law, it is a shame that courts have to intervene to stop the advance of the predatory abortion industry. It shouldn’t be this difficult to save preborn lives.”
At least six clinics in Texas resumed providing abortions banned by the law or were preparing to provide them after federal judge Robert Pitman halted enforcement of the heartbeat ban, according to The Associated Press. The Fifth Circuit’s stay only two days later again brought an end to the legality of such abortions.
Some of the clinics of abortion provider Whole Woman’s Health were among those that performed the procedure while the law was barred from enforcement.
“Frankly, we knew this would happen and that is why we provided abortions beyond six weeks the moment it was a possibility,” according to a tweet from Whole Woman’s Health after the court’s order Oct. 8.
On Oct. 9, Whole Woman’s Health tweeted, “Every abortion we performed in Texas during the injunction was a (say it if you know it!) win.”
Clinics that performed abortions while the injunction was in effect, however, apparently could be held liable for violating the law if Pitman’s order is vacated.
The Texas law has been the target of criticism not only because of its early prohibition on abortion but because of its means of enforcement. In an unusual move, the law prohibits any government official from enforcing the ban but authorizes a private citizen to bring a civil lawsuit against someone who performs a prohibited abortion or assists in the performance of such a procedure. Under the law, a court is to award at least $10,000 to a successful plaintiff.
Estimates by pro-life organizations of the number of unborn children saved in the five weeks the law was in effect before Pitman’s injunction vary from more than 3,000 (National Right to Life) to more than 4,700 (Susan B. Anthony List).
The Texas law is the only ban on abortion after a fetal heartbeat to be in effect in the United States. About 85 to 90% of abortions in Texas are performed on women who are six weeks or more pregnant. At least 10 other states have enacted fetal heartbeat bans, but courts have blocked the others from going into effect.
The U.S. Supreme Court issued a Sept. 1 order that permitted the Texas law to go into effect. In a 5-4 split, the justices in the majority said their action “is not based on any conclusion about the constitutionality of Texas’s law” and does not restrict “other procedurally proper challenges” to the measure.
The Supreme Court already has agreed to rule in its current term on a Mississippi law that prohibits the abortion of an unborn child whose gestational age is more than 15 weeks. The court will hear oral arguments Dec. 1 in that case, Dobbs v. Jackson Women’s Health.
The ERLC, other pro-life organizations and the state of Mississippi have filed briefs in the Dobbs case that urged the Supreme Court to reverse the 1973 Roe v. Wade opinion that legalized abortion and the 1992 Planned Parenthood v. Casey decision, which affirmed Roe but permitted some state regulation of the procedure.
“We remain hopeful that, with the upcoming Dobbs case before the justices, the court will decide that the disastrous Roe v. Wade decision must be overturned,” Leatherwood said.
The Texas ban, which was enacted in May, includes an exception for a medical emergency in a mother but none for a pregnancy that is the result of rape or incest.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)