(Bloomberg) -- A Texas judge temporarily sided with abortion rights advocates that challenged a state law from the 1920s banning the procedure, in the wake of the US Supreme Court’s decision last week to overturn Roe v. Wade.
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The judge permitted abortions up to six weeks of pregnancy to resume in Texas for now. The ruling, issued Tuesday, blocks Texas from bringing criminal charges against doctors, clinics and others who facilitate abortions until the judge determines whether the long-dormant law was resuscitated by the high court’s decision.
“The court finds that Texas’s pre-Roe ban is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution,” according to the order, which says the threat of the ban’s enforcement “creates a probable, irreparable and imminent injury for which plaintiffs and their physicians, nurses, pharmacists, other staff and patients throughout Texas have no adequate remedy.”
The temporary restraining order will remain in effect until a hearing on the matter is held in Houston on July 12.
The order essentially returns Texas to the same abortion rules it had prior to the Supreme Court decision, Dobbs v. Jackson Women’s Health Organization. The Texas lawsuit was filed Monday by the Center for Reproductive Rights and the American Civil Liberties Union.
Hodgepodge of Laws
It’s the third such court order preventing states from immediately implementing laws that criminalize or sharply restrict abortion access since the high court’s June 24 opinion against Roe, which protected abortion as a constitutional right for half a century. State judges temporarily blocked so-called trigger laws in Louisiana and Utah on Monday, while abortion rights advocates have asked other courts to suspend trigger bans in Arizona, Florida, Kentucky and Ohio.
Meanwhile, an appeals court on Tuesday allowed Tennessee’s ban on abortion after six weeks of pregnancy to take effect, highlighting the hodgepodge of state laws coming into play after the Dobbs decision.
Read More: Supreme Court Overturns Roe, Transforming Abortion-Rights Fight
Owners of nine abortion clinics on Monday sued Texas’ Republican attorney general, leaders of state medical licensing boards and district attorneys in the counties where the clinics operate, to buy time to perform as many abortions as possible before Texas’ own trigger ban takes effect.
After Tuesday’s court order in Texas, Whole Woman’s Health said it would resume abortion services at its four clinics in the state. They will be able to provide abortions only in cases where fetal cardiac activity can’t be detected, usually no more than six weeks into pregnancy, before many women know they’re pregnant.
“We now have the opportunity to open our doors in Texas before the trigger ban takes effect,” President Amy Hagstrom Miller said in a statement, adding that the organization is reaching out to the patients on its waiting lists.
The Southwestern Women’s Surgery Center in Dallas also is resuming abortions. The clinic had been urging clients to seek out the procedure at its Albuquerque, New Mexico, location since halting the service in Texas in response to Dobbs.
“We will resume providing care to the furthest extent allowed under the law,” spokesperson Robin Sikes said in an email.
The Texas attorney general’s office didn’t immediately respond to requests for comment on the court order. On Monday, Attorney General Ken Paxton tweeted his determination to fight the clinics’ bid to stay open while they can.
The number of abortions performed in Texas plummeted after the state in September outlawed abortions after about six weeks. The figure for January was down 50% from a year earlier, according to Texas Health and Human Services.
The Texas Legislature last year crafted a further, near-total abortion ban, imposing criminal penalties and stiff fines on abortion providers and facilitators, to be triggered 30 days after the high court officially enters its judgment overturning Roe. For technical reasons, that judgment won’t be entered for at least two more months. During that time, the clinics say, they want to continue performing early-stage abortions they claim should still be legal until the trigger ban kicks in.
Read More: Anti-Abortion Movement Faces Divisions in Post-Roe Politics
In their lawsuit, the clinics argued that the pre-Roe statute and the new trigger law conflict with each other and violate constitutional due-process guarantees by failing to clearly identify what is considered a crime and what punishments might result.
Texas’ lawyers responded to that argument by contending that “whether a person is prosecuted under one statute or the other, the conduct is still illegal.” They said in a court filing that if abortion providers weren’t aware the older statute could be resurrected if Roe fell, “they are on notice of that legal position now” and “that is all that is required for due-process purposes.”
Directed to Prosecute
Within hours of the Supreme Court’s ruling Friday, Paxton declared that district attorneys could immediately begin prosecuting abortion crimes under the 1925 statute, which lawmakers had never repealed even though Roe rendered it unenforceable. The Supreme Court declared that very statute unconstitutional in its 1973 Roe decision.
Texas stripped the 1925 abortion ban from its list of civil and criminal statutes almost 40 years ago, but the clinics say it suddenly reappeared in online versions of the state’s official legal code after Paxton gave prosecutors the green light to go after abortion providers.
“Abortion services stopped immediately in Texas last week after the Supreme Court’s crushing decision, but we will fight to maintain access for as long as we can,” Center for Reproductive Rights President Nancy Northup said in a statement Monday. “Every day, every hour that abortion remains legal in Texas is a chance for more people to get the care they need.”
The case is Whole Woman’s Health v. Paxton, 202238397, 269th Judicial District Court of Harris County, Texas (Houston).
Read More: LGBTQ Americans Worry for Their Rights After Roe Reversal
(Adds Surgery Center response in third section and background on Texas law in last three paragraphs. An earlier version of this article incorrectly identified the judge.)
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