Abortion providers in Texas, eager to restore access to the procedure there, asked a federal appeals court on Wednesday to immediately return their case to a district judge in Austin who previously blocked the nation’s most restrictive abortion law.
The legal wrangling over the law, which bans most abortions after six weeks, follows a Supreme Court decision this month that left the ban in place, while granting a narrow path for providers to challenge the law’s unusual enforcement structure.
Abortion rights advocates say any diversion from the district court would impede their effort to invalidate the law, which has halted most abortions in Texas and forced patients across state lines to terminate pregnancies beyond the six-week mark.
The effort by Texas officials, they said, is a “transparent attempt to forestall relief” and to “indefinitely prevent plaintiffs from obtaining any effective relief from the district court in the face of a law that is clearly contrary to Supreme Court precedent,” according to the filing Wednesday on behalf of Whole Woman’s Health, Planned Parenthood and other Texas abortion clinics and physicians.
After the Dec. 10 ruling, Justice Neil M. Gorsuch sent the case back to the 5th Circuit for further proceedings. Attorney General Ken Paxton (R) wants the Texas Supreme Court to interpret a provision of state law before the case is sent back to the district court.
The appeals court could rule at any time and has several options. It could temporarily send the case to the Texas high court; schedule additional briefing and argument before a three-judge panel; or return the case to district court.
The Texas law, known as S.B. 8, prohibits abortions after a physician has detected cardiac activity and makes no exceptions for rape or incest. The law is not enforced by state government officials, but instead allows any member of the public to sue anyone who performs an abortion or helps a patient get one after about six weeks. Successful lawsuits result in an award of at least $10,000 per abortion.
The law is at odds with Supreme Court precedents, including Roe v. Wade, the nearly 50-year old decision protecting the right to abortion before viability, usually around 23 weeks into pregnancy.
But the justices are set to rule in a separate case involving a Mississippi abortion law that mostly bans the procedure after 15 weeks. At oral argument in that case, the court’s conservative justices seemed open to overturning Roe.
In its decision in the Texas case, the Supreme Court majority said abortion providers could proceed with their lawsuit only against a small group of Texas licensing officials who can discipline physicians, pharmacists and nurses if they participate in an abortion performed after the six-week mark.
Abortion providers say the 5th Circuit must now return the case to U.S. District Judge Robert Pitman in Austin and note that Chief Justice John G. Roberts Jr. specifically urged in his concurring opinion the district court to “resolve this litigation and enter appropriate relief without delay.”
To do otherwise, they said, would contradict the Dec. 10 ruling.
“The Supreme Court’s decision leaves no room for this Court to do anything else,” the lawyers told the 5th Circuit.
But Texas says that the state’s highest court must first decide whether the licensing officials even have the enforcement power the U.S. Supreme Court suggested. Paxton told the 5th Circuit that state officials believe the six-week ban prevents licensing officials from enforcing the law either directly or indirectly, and that the justices did not definitively resolve whether abortion providers have legal grounds to sue.
How quickly and before which court the lawsuit is reviewed is critical to the outcome of the case, according to abortion providers.
In October, Pitman blocked enforcement of the Texas law, which he called an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Less than 48 hours later, the 5th Circuit reinstated the ban.