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Protesters take part in march for abortion rights at the State Capitol in Austin, Texas, on Oct .3, 2021.
Protesters take part in march for abortion rights at the State Capitol in Austin, Texas, on Oct .3, 2021.Sergio Flores / AFP - Getty Images

Appeals court reinstates Texas Republicans' abortion ban (for now)

A district court halted Texas' abortion ban. An appellate court considered the nation's "most dangerous" brought it back.


To the extent that the public notices the federal courts, it's the U.S. Supreme Court that generates the most attention. At face value, that makes sense: Nine justices comprise the nation's highest and most powerful bench, and those justices' rulings can have an enormous impact on society.

But just below the Supreme Court are federal appellate courts, which hear far more cases, and which are nearly as important. Take the 5th U.S. Circuit Court of Appeals, for example.

The Washington Post's Ruth Marcus recently described the 5th Circuit — with jurisdiction over Texas, Louisiana, and Mississippi — as the nation's "most dangerous" court, in large part because it gives "a helping hand for litigants whose causes they favor." She quoted Stephen Vladeck, a law professor at the University of Texas, saying the 5th Circuit is "as conservative a federal appeals court as any of us have seen in our lifetimes."

There's ample evidence to bolster the point. The Associated Press reported on Friday night:

A federal appeals court Friday night quickly allowed Texas to resume banning most abortions, just one day after clinics began racing to serve patients again for the first time since early September. A one-page order by the 5th U.S. Circuit Court of Appeals reinstated the nation's strictest abortion law, which bans abortions once cardiac activity is detected, usually around six weeks. It makes no exceptions in cases of rape or incest.

One member of the three-judge panel was James Ho, a Trump appointee who's publicly lamented the "moral tragedy of abortion."

For those who might need a refresher, it was on Sept. 1 when five Republican-appointed U.S. Supreme Court justices gave the green light to Texas' new abortion ban, effectively halting Roe v. Wade protections in the nation's second largest state. But even at the time, it was clear that the ruling would not be the final word on the subject, and the conservative justices had not issued an opinion on the merits of the case.

Last week, a federal district court granted the Justice Department a temporary injunction, blocking enforcement of Texas' abortion ban.

As Rachel noted on the show, lawyers representing the state asked the district court judge to hold off on issuing an injunction until they could file an appeal. Pitman rejected the call.

"The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right," the judge added.

The restoration of reproductive rights in the Lone Star State did not last: 48 hours after the district court ruling, the 5th Circuit reinstated the abortion ban at Texas Republicans' request.

The Justice Department could take the matter back to the U.S. Supreme Court, though the justices' recent record on the matter doesn't exactly make it a hospitable venue.

The 5th Circuit gave the Justice Department until tomorrow to reply. In the meantime, the on-again, off-again abortion ban is back on, and those in Texas who wish to terminate an unwanted pregnancy will have to leave the state to do so.