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U.S. Federal Courts

U.S. Fifth Circuit Court of Appeals allows Texas abortion ban to start again

The order granting isn’t permanent- the court will now decide whether to grant Texas’s request for longer-term

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West courtroom, U.S. 5th Circuit Court of Appeals, New Orleans (Photo Credit: U.S. Courts/GSA)

NEW ORLEANS – In a late Friday evening ruling, a three Judge panel of the U. S. Fifth Circuit Court of Appeals temporarily overturned an injunction issued by U.S. District Court Judge Robert Pitman in Austin, Texas this past Wednesday night that had blocked Senate Bill 8, the Texas abortion ban, from being enforced.

Attorneys for the state of Texas had filed a request with the appellate court earlier in the day Friday. The state’s attorneys argued that Pitman’s order to temporarily block enforcement of the state’s abortion ban “violates the separation of powers at every turn.”

The ruling to suspend Pitman’s injunction came just one day after clinics across Texas began rushing to serve patients again for the first time since early September.

“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” the state’s attorneys argued in the request to the Fifth Circuit.

The order from the three-judge panel granting what’s known as an “administrative stay” isn’t permanent — the court will now decide whether to grant Texas’s request for a longer-term hold that would keep the law, Senate Bill 8, in effect while the state appeals its loss in front of Judge Pitman. The 5th circuit ordered the U.S. Justice Department to respond by this upcoming Tuesday at 5 p.m. (Central Time)

Abortion providers in Texas had been expecting the 5th U.S. Circuit Court of Appeals to act quickly.

Senate Bill 8 went into effect Sept. 1, forcing all major abortion clinics to stop offering abortions after an embryo’s cardiac activity is detected, which can happen before many people know they’re pregnant. Some providers stopped offering the procedure altogether out of fear of litigation, the Texas Tribune reported.

But at least one major provider in the state — Whole Woman’s Health — quickly began performing abortions that had been outlawed, a day after Pitman’s order the paper noted.

Pitman, who had blocked enforcement of the controversial law that bans all abortions without exception after 6 weeks, a point when most women aren’t even aware they are pregnant, writing in his 113 page order labeled the law an “offensive deprivation of such an important right” referring to women’s reproductive rights then added;

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

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U.S. Federal Courts

Tennessee lesbian rejected by refugee foster care program files suit

There are more unaccompanied refugee children in the federal government’s care than there are eligible foster homes available

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U.S. District Court for the District of Columbia (Photo Credit: U.S. Courts/GSA)

WASHINGTON – Americans United for Separation of Church and State and Lambda Legal, together with the law firm Orrick, Herrington & Sutcliffe LLP, filed a federal lawsuit Wednesday against the U.S. Department of Health and Human Services for enabling discrimination against LGBTQ foster parent applicants by organizations that receive taxpayer funds to care for unaccompanied refugee children.

The case, Easter v. HHS, was filed on behalf of Kelly Easter, from East Nashville, Tenn., who wishes to become a foster parent for a child in a federal foster care program for immigrant children.

Easter’s inquiry to the U.S. Office of Refugee Resettlement (ORR) was directed to the only entity participating in the program in her area: Bethany Christian Services, a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services.

Bethany refused to permit Easter to apply to be a foster parent solely because she is a lesbian. Easter reported this discrimination to ORR. When Bethany’s national leadership announced earlier this year that it had changed its policy and would now accept LGBTQ families, Easter again attempted to apply.

However, a representative from Bethany informed her that she still would not be permitted to apply to the program near her home because Bethany operates that program as a sub-grantee of USCCB, which continues to exclude LGBTQ foster parent applicants from participation. 

For years the federal government has known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families. Yet HHS officials continue to enable and sanction this discrimination.

“I am heartbroken. It hurt to be turned away – twice – solely because of my identity. I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me. I also know that LGBTQ people can have thriving families and that they are as important and deserving as any other. How can the government tell me that my beliefs are wrong?” Easter said.

Kelly Easter via Facebook

“But I’m more concerned about the children. The federal government is supposed to be helping them, but by denying a loving home to a child or young person in need, they are not doing that; they are actually hurting them. I am qualified and can provide a safe and stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?” She added.

“There are more unaccompanied refugee children in the federal government’s care than there are eligible foster homes available for these children. By allowing USCCB to require its subgrantees to use religion to discriminate against LGBTQ people, the federal government is harming prospective parents and vulnerable children who are denied the opportunity to find safe, loving homes. By sanctioning and enabling discrimination and favoring certain religious beliefs, the government is violating the First and Fifth Amendments of the U.S. Constitution.” a spokesperson for Lambda Legal said in an emailed statement.

Karen L. Loewy, senior counsel at Lambda Legal added: “The federal government cares for thousands of immigrant children in foster care programs. Ms. Easter would like to provide a safe and nurturing home to a child in need. However, our government excludes her from applying by knowingly funneling millions of dollars of taxpayer money into a child welfare organization that refuses to allow LGBTQ people to apply to be foster parents. This kind of discrimination not only hurts the people turned away—it hurts the children in these programs by reducing the number of available homes, and depriving these children of the opportunity to be considered for placement in loving homes that may best serve their individual needs.”

“The foundational American principle of church-state separation promises freedom without favor and equality without exception for everyone. The federal government is reneging on that constitutional promise by allowing a taxpayer-funded agency to discriminate against Kelly Easter because she doesn’t live according to its religious beliefs,” Rachel Laser, president and CEO of Americans United for Separation of Church & State said.

“Our laws cannot allow anyone to use their religious beliefs to harm others, and especially not vulnerable children and the commendable people like Kelly who want to help them,” she added.

The lawsuit was filed in the U.S. District Court for the District of Columbia, where another case of the federal government permitting discrimination against prospective foster parents who are a same-sex couple is pending. 

In Marouf v. HHS, a sub-grantee of USCCB rejected Fatma Marouf and Bryn Esplin from applying to foster unaccompanied refugee children because, as a married same-sex couple, they didn’t “mirror the Holy Family,” as the agency requires. Lambda Legal and Americans United also represent Marouf and Esplin.

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U.S. Federal Courts

Justice Department asks appellate court to suspend Texas abortion ban

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind”

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Robert F. Kennedy Department of Justice building, Washington D.C. (Photo Credit: U.S. Government/GSA)

NEW ORLEANS – In a late night filing the U.S. Department of Justice petitioned the U.S. 5th Circuit Court of Appeals to reverse its ruling that allows the controversial Texas abortion ban law known as SB8 temporarily reinstated.

In its brief filed Monday evening, Justice Department attorneys argued that if the law is upheld, states could violate any right provided they left enforcement up to private citizens and not the state itself. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department stated then added, “A stay would prolong [the law’s] substantial harm to the United States’ sovereign interests and would disserve the public interest.”

In a late Friday evening ruling last week, a three Judge panel of the U. S. Fifth Circuit Court of Appeals temporarily overturned an injunction issued by U.S. District Court Judge Robert Pitman in Austin, Texas this past Wednesday night that had blocked Senate Bill 8, the Texas abortion ban, from being enforced.

Attorneys for the state of Texas had filed a request with the appellate court earlier in the day Friday. The state’s attorneys argued that Pitman’s order to temporarily block enforcement of the state’s abortion ban “violates the separation of powers at every turn.”

“The Department of Justice’s request is on strong legal ground. SB 8 violates clearly established constitutional law, and the Fifth Circuit’s stay is a blatant attempt to elevate politics over the law,”   Shannon Minter, Legal Director for the National Center for Lesbian Rights told the Blade in an email Tuesday.

The ruling to suspend Pitman’s injunction came just one day after clinics across Texas began rushing to serve patients again for the first time since early September.

Senate Bill 8 went into effect Sept. 1, forcing all major abortion clinics to stop offering abortions after an embryo’s cardiac activity is detected, which can happen before many people know they’re pregnant. Some providers stopped offering the procedure altogether out of fear of litigationthe Texas Tribune reported.

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U.S. Federal Courts

U.S. District Court blocks Texas S.B. 8 abortion ban

Depriving citizens by direct state action would be flagrantly unconstitutional, Texas contrived an unprecedented & transparent scheme instead

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United States Federal Courthouse, Austin, Texas (Photo Credit: U.S. Courts/GSA)

AUSTIN – Late Wednesday evening U.S. District Court Judge Robert Pitman blocked enforcement of the controversial Texas law S.B. 8 that bans all abortions without exception after 6 weeks, a point when most women aren’t even aware they are pregnant.

Writing in his 113 page order, Pitman labeled the law an “offensive deprivation of such an important right” referring to women’s reproductive rights then added;

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman said “people seeking abortions face irreparable harm when they are unable to access abortions” and that temporarily blocking Texas’ law from going into effect would allow abortions to proceed “at least for some subset of affected individuals.”

“From the moment (the law) went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” he wrote.

Pitman also took aim at the provisions in the law that allows any private individual to sue abortion providers or those who aid and abet procedures that violate the law. Successful litigants can collect $10,000 under the law’s provisions.

“The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion,” he wrote.

Pitman then called out the Republican lawmakers who drafted the measure: “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers, notably its author, State Senator Bryan Hughes, to “find another way” around resistance to enforcement of laws criminalizing abortion.”

He then castigated them writing, “The State contends that S.B. 8 does not constitute an outright “ban” on pre-viability abortions; rather it attempts to characterize the law as a regulation that poses “mere obstacles” to pre-viability abortion access. But there can be no question that S.B. 8 operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and “equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.”

The judge also noted the burden the restrictions had placed on women; ‘Texas residents forced to leave the state must also contend with the abortion restrictions and backlogs in other states. The Court finds credible the evidence showing that the inundation of Texas patients overburdens abortion services in other states, many of which are already stretched to the breaking.”

Pitman then outlined the harm caused by the law: “Despite the State’s attempts to obscure the question, the irreparable harm inquiry is in reality quite clear: people seeking abortions face irreparable harm when they are unable to access abortions; these individuals are entitled to access to abortions under the U.S. Constitution; S.B. 8 prevents access to abortion; a preliminary injunction will allow—at least for some subset of affected individuals—abortions to proceed that otherwise would not have.94 The harm from S.B. 8 has already materialized, as “[t]he civil penalties and burdens of litigation threatened by this ban are severe and . . . . have already prevented abortion providers from carrying out [their] medical and ethical duties.”

Wednesday’s preliminary injunction prevents judges or court clerks in the state from accepting lawsuits sanctioned by the ban and requires the state to publish a copy of the injunction on its public-facing court websites “with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts,” the Austin American-Statesman reported.

In a statement issued by the White House Wednesday evening, Press Secretary Jen Psaki said; 

Tonight’s ruling is an important step forward toward restoring the constitutional rights of women across the state of Texas. S.B. 8 not only blatantly violates the right to safe and legal abortion established under Roe v. Wade, but it creates a scheme to allow private citizens to interfere with that right and to evade judicial review.

The fight has only just begun, both in Texas and in many states across this country where women’s rights are currently under attack. That’s why the President supports codifying Roe v. Wade, why he has directed a whole-of-government response to S.B. 8, and why he will continue to stand side-by-side with women across the country to protect their constitutional rights.”

United States Attorney General Merrick Garland said in a statement released by the U.S. Department of Justice that the decision “is a victory for women in Texas and for the rule of law.”

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