WASHINGTON — A federal appeals court said on Thursday that a nearly complete ban on abortion in Texas could remain in effect while the courts decide whether the law violates the constitution.
The U.S. Court of Appeals for the Fifth Circuit ruling last week upheld its own previous injunction that temporarily reinstated the law after a federal district judge blocked it.
The decision, which was 2 to 1 by a panel of three judges, is expected to appeal to the Supreme Court.
Texas law prohibits abortion when heart activity is detected, around six weeks of pregnancy, and makes no exceptions for rape or incest, making it one of the strictest in the nation.
But the Justice Department is suing Texas over the law’s unique enforcement mechanism, which the Department says violates the Constitution by allowing the state to essentially ban abortion while technically complying with court rulings that prohibit such prohibition by any state.
The law encourages private parties to file lawsuits by awarding $10,000 to any plaintiff who successfully charges someone accused of performing or assisting in an abortion that violates the statute.
Attorney General Merrick B. Garland called the enforcement mechanism an “unprecedented” attempt to deprive women of their constitutionally protected right to abortion.
The department argued in its lawsuit that Texas law is invalid under the Constitution’s supremacy clause, which gives federal law precedence over state law, and under the guarantees of equal protection of the 14th Amendment.
A federal district judge last week granted the department’s request to halt enforcement of the law as the legal challenge makes its way through the justice system, earning a short-lived victory for the Biden administration. But two days later, the appeal panel intervened.
The law immediately stopped most abortions in Texas when it went into effect in early September after the Supreme Court declined to intervene. Demand in clinics in nearby states such as Oklahoma has skyrocketed as women in Texas who wanted to have an abortion after six weeks were forced to leave the state.