The Fifth Circuit Court of Appeals, based in Louisiana, will hear oral arguments Jan. 7 in a case surrounding S.B. 8, a Texas law that bans abortions after fetal heartbeat detection.
The Fifth Circuit Court of Appeals scheduled the hearing after the Supreme Court declined to block the enforcement of S.B. 8, as I covered, and returned the case back to the federal appeals court. While the Supreme Court said the Justice Department could not move forward with their lawsuit against S.B. 8, the Court said they will allow abortion providers in the case Whole Woman’s Health v. Jackson to sue the state over the law.
"The court has decided that oral argument is appropriate before ruling on the state’s motion to certify or alternate motion to set a briefing schedule, and the response thereto. Consequently, the argument will be held at 9 am in New Orleans on Friday, January 7, 2022,” the appeals court said in a filing released on Monday.
Fifth Circuit Judge Stephen Higginson, an Obama-era appointee, disagreed with the court’s decision to hear the case.
“I respectfully disagree with the majority’s decision to hear oral argument on this remand from the United States Supreme Court. I do not read the Supreme Court’s judgment, especially in a case of this magnitude and acceleration, to countenance such delay,” Higginson said in his dissent on Monday. “I would immediately remand the case to the district court.”
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In October, as I covered, the Fifth Circuit Court of Appeals countermanded U.S. District Judge Robert Pitman’s ruling that granted a temporary injunction over S.B. 8. In the two-day window where S.B. 8 was not in affect, some Texas clinics immediately began resuming abortions.
When the Supreme Court formally returned the lawsuit back to the Fifth Circuit, the abortion providers in the lawsuit requested that the case be acted on quickly and be sent directly back to to the District Court. The Supreme Court did not oblige.
In addition to banning abortions statewide after fetal heartbeat detection, which occurs around six weeks gestation, S.B. 8 allows private citizens to pursue legal action against anyone who provides an illegal abortion or aids or abets a woman seeking an illegal abortion. Those who successfully bring lawsuits under S.B. 8 can receive $10,000.
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