The Fifth Circuit Court of Appeals heard oral arguments Friday related to the Texas Heartbeat Act (Senate Bill 8), which restricts abortion after a preborn child’s heartbeat can be detected (usually at about six weeks, though the human heart starts beating around 21 days after fertilization). While the Fifth Circuit previously issued a ruling in the case of Whole Woman’s Health v. Jackson, the Supreme Court of the United States remanded the case back to the court in December after ruling that abortionists can sue state health officials over the law while keeping the private right of action enforcement mechanism intact.
“What’s most telling from today’s hearing is the desperation of the abortion industry,” said Texas Right to Life. “Since September 1, 2021, the abortion industry in Texas has not committed abortions after the preborn child has a detectable heartbeat. […] The abortion industry is losing money quickly.”
The question the Fifth Circuit is now considering is whether or not the case should be sent to the Supreme Court of Texas (what Texas wants) or to a federal district court (what abortionists want). Abortionists have the best shot at ensuring the law is blocked if it is sent to the district court because U.S. District Judge Robert Pitman, an Obama appointee, already blocked the law in October at the request of the Biden administration before the Fifth Circuit reversed his decision.
The third option the court has is to wait, and hold on to the case until the Supreme Court hands down its ruling in Dobbs v. Jackson Women’s Health Organization, expected in June, which concerns Mississippi’s law restricting abortion to before 15 weeks. If the Supreme Court rules in that case to overturn Roe v. Wade, abortion laws would once again be determined at the state level.
Judge Edith Jones asked during oral arguments, “What happens if the Supreme Court, as many expect, says something about Roe v. Wade that implies Senate Bill 8’s prohibition on abortions after heartbeat may be enforceable? What happens then? Is this case alive or dead? Do you think we ought to just sit on this until the end of June?”
Delaying a decision would allow the law to remain in effect in the meantime. Texas Right to Life noted that “Texas is poised to immediately protect all preborn children from elective abortion if Roe is overturned.”
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