Now: The 5th Circuit has issued a new order in the SB 8 case brought by abortion providers, and the short version is that it leaves the law in place for now.
It explains why it's keeping a stay in place that prevents any action in the district court: s3.documentcloud.org/documents/2106…
This order does a few things:
- First, the 5th Circuit says the state defs (state judges, clerks, medical licensing officials, AG Paxton) win in arguing immunity — they don't enforce SB 8, so they can't be enjoined from doing anything, so they're not proper parties
- Next, there's the matter of antiabortion activist Mark Lee Dickson. Dickson can't claim immunity, and the district judge rejected his other args for dismissal. 5th Circuit says it'll hear his appeal of all that on an expedited basis, and keep the district court case on hold
The 5th Circuit notes that anyone who is sued can raise a constitutional challenge as a defense, but the order does not address the immediate harm argument raised by providers, which is that the law has had the effect of stopping abortions in Texas altogether
"...we cannot allow proceedings to go forward while our court considers whether the federal judiciary has any power to entertain this novel lawsuit"
SB 8's structure was designed to avoid the kind of swift injunction other abortion bans have faced, and that's what's happened
Final thing to note for now about this 5th Circuit order is that it concludes by saying the case will be assigned to the "next available" panel for argument. That means the judges who entered orders to date may not hear the next phase (but the 5th is conservative, generally)
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