The Supreme Court returned the lawsuit over Texas’s restrictive abortion law to a federal appeals court Thursday, rejecting a request by abortion providers to send the case to a district judge who had previously declared the law unconstitutional.
The order came from Justice Neil M. Gorsuch, who last week wrote the majority opinion that left in place the law, which bans most abortions after six weeks. The decision granted a narrow path for providers to challenge the law’s unique enforcement structure.
The Thursday order granted part of the request from abortion providers — returning the case immediately rather than after the court’s standard 25-day delay.
But it sent the case to the U.S. Court of Appeals for the 5th Circuit, as requested by Texas officials led by Attorney General Ken Paxton (R).
He told the Supreme Court that Texas plans to ask the 5th Circuit to direct the Texas Supreme Court to interpret a provision of state law before the case is sent back to the district court. It is unclear how long that could take.
The move by the state is “a transparent attempt to forestall relief,” abortion providers told Gorsuch in a filing.
The state’s request means to “indefinitely prevent petitioners from obtaining any effective relief from the district court in the face of a law that is clearly contrary to this Court’s decisions,” wrote Marc Hearron, a lawyer for the Center for Reproductive Rights, which is representing challengers to the law.
The Supreme Court’s four dissenters in the case seemed to believe that U.S. District Judge Robert Pitman would get the lawsuit quickly.
“Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay,” Chief Justice John G. Roberts Jr. wrote for himself and the court’s three liberal justices.
Hearron said after Gorsuch’s decision that Texas is “determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”
With its decision to send the case back to the 5th Circuit and not the district court, he added, the Supreme Court “has let Texas nullify constitutional rights and upend our system of justice.”
Texas said in its filing to the court that returning the case to the appeals court is normal after a decision and that it was the challengers asking the court for unusual relief. The state opposed the effort to waive the usual 25-day delay.
The complicated legal wrangling is pretty much the point of the Texas law.
Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. It effectively has stopped the availability of abortion in Texas after six weeks, before many know they are pregnant. It has no exception for rape or incest.
S.B. 8’s unique enforcement regime leaves state officials largely on the sideline. Instead, it deputizes any member of the public to sue anyone who performs an abortion after the prohibited date or “aids and abets” someone getting the procedure, though not the patient.
The structure was intentional, to make it difficult procedurally for federal judges to stop the law before it took effect, even though its terms violate the Supreme Court’s precedents.
The issue of abortion has come to dominate the court’s term, with the justices set to rule on a separate Mississippi law that mostly bans the procedure after 15 weeks into pregnancy. At oral argument in that case earlier this month, the court’s conservative justices seemed open to overturning Roe v. Wade, the nearly 50-year-old decision guaranteeing a fundamental right to abortion.
The court’s Dec. 10 decision a week later in the Texas case said a lawsuit could continue against a small group of Texas licensing officials who govern doctors and others and could have a role in enforcing the law.
“On the briefing and argument before us, it appears that these particular defendants . . . must take enforcement actions against the petitioners if they violate” the law, Gorsuch wrote for the majority. That means they could be proper defendants, he wrote.
But Texas has seized upon that language and says the Texas Supreme Court should decide whether the officials have the power the U.S. Supreme Court presumed.
“It’s yet another obstacle,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, who was among the lawyers asking the court to return the case to the district judge. “This case is going to be stuck in limbo. Even the narrow path the Supreme Court initially afforded us is now off the table.”
In October, Pitman, the federal judge in Austin, blocked enforcement of the law, which he characterized as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Less than 48 hours later, the conservative-leaning 5th Circuit reinstated the six-week ban.
A declaration from a federal judge finding the law itself unconstitutional would be an important step and potentially give abortion providers a legal defense to point to in state court if they were sued for performing an abortion after the six-week mark. But it would not be binding on the state courts.
An injunction would prevent state licensing officials from taking disciplinary action against physicians, pharmacists and nurses, but it would not shield them and others from legal liability. Private individuals could still file civil lawsuits seeking at least $10,000 against anyone who helps someone terminate a pregnancy after about six weeks.
Abortion rights advocates have tried several paths in court to restore access to the procedure in the second-largest state, with limited success in the slow-moving legal system. In one case, brought by Planned Parenthood and others, a state court judge last week declared the law’s private enforcement mechanism unconstitutional.
But the decision from Judge David Peeples did not halt enforcement of the law and did not comprehensively resolve the case, some aspects of which are now on review before an intermediate appeals court.
“The reality of the state court litigation and the reality of the Supreme Court’s devastating decision last week to preclude relief against clerks and judges is that there is not a clear way in which to provide the kind of certainty for abortion providers to go forward without the risk of being sued,” said Julie Murray, a senior attorney with Planned Parenthood, who argued the state case against Texas Right to Life.
The Supreme Court’s decision, she said, “threw out the most promising avenue to relief and full restoration of abortion access in Texas.”
Correction: An earlier version of this article said incorrectly that the Supreme Court’s new action came Wednesday. It was Thursday. The article has been corrected.
The latest: On Dec. 1, the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health Center, a case from Mississippi that legal observers say could weaken or overturn the legal right to an abortion established by Roe v. Wade and Planned Parenthood v. Casey. A ruling is expected sometime in 2022.
More coverage:
4 takeaways from the Supreme Court arguments on abortion
What could happen if Roe v. Wade gets struck down?
What the Supreme Court justices have said about abortion and Roe v. Wade
The Mississippi clinic at the center of the fight to end abortion in America
How U.S. abortion laws, including Mississippi and Texas, compare to other countries
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