In a brief order that should have surprised no one, the Fifth Circuit yesterday evening granted Texas’s motion to stay pending appeal the district judge’s preliminary injunction against its enforcement of the Texas Heartbeat Act. (It had previously granted a temporary administrative stay while the parties completed briefing on the motion.)
The Department of Justice has already announced that it intends to ask the Supreme Court to vacate the Fifth Circuit’s stay.
Never mind that, like the abortion providers’ request for emergency relief before the Act took effect on September 1, DOJ’s request will present a set of “complex and novel antecedent questions” on which DOJ will not be able to make a strong showing of a likelihood of success on the merits—and therefore should likewise be denied by the Court on that basis.
Never mind that (as I explain more fully in points 2 and 3 here) an order vacating the stay and restoring the district judge’s preliminary injunction would be of little or no use to abortion providers in Texas, both because they would remain liable in state court for any post-heartbeat abortions that they do in the interim if the injunction is vacated on appeal and because the injunction does not forbid private lawsuits brought in federal court by residents of other states under federal jurisdiction.
Never mind that the preliminary injunction is indisputably overbroad, as it would apply, for example, against lawsuits seeking recovery for nontherapeutic post-viability abortions.
In short, it ought to be clear that DOJ’s request will be, above all, political theater aiming to intimidate the five justices who properly denied the abortion providers’ earlier request.