The 5th U.S. Circuit Court of Appeals on Monday asked the Texas Supreme Court to resolve a central question in an ongoing legal challenge to the state’s six-week ban on abortion, a highly unusual move that is expected to delay a resolution in the case.
In a 2-1 vote, a three-judge panel of the 5th Circuit sided with attorneys for the state and agreed to ask the Texas Supreme Court whether the medical licensing officials named in the lawsuit can be sued by the abortion providers behind the challenge.
Abortion providers from across Texas originally sued several state officials in an effort to block enforcement of Senate Bill 8, which took effect Sept. 1, but a divided U.S. Supreme Court said in December all but one of those challenges should be dismissed. Justices said a more narrow case, targeting the licensing officials, could proceed in Texas courtrooms.
Providers had hoped the case would be sent back to a federal district courtroom in Austin with a history of siding with abortion rights advocates, but it was instead sent to the 5th Circuit, considered one of the country’s most conservative appellate courts.
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In a split decision, the 5th Circuit decided to hear oral arguments on the issue earlier this month, before deciding whether to certify the case to the Texas Supreme Court or remand it to the district court in Austin.
Should the Texas Supreme Court agree to take up the case and answer the question posed by attorneys for the state, the resulting legal detour could take weeks, legal experts said.
“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” Steve Vladeck, a University of Texas School of Law professor, said in a tweet.
The Texas law bans abortion after six weeks of pregnancy, often before most people are aware they are pregnant. The law employs a unique enforcement mechanism that lets any private individual sue abortion providers or people who aid and abet an abortion past six weeks gestation. Successful litigants can collect at least $10,000.
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Opponents of the law argue that it denies people in Texas their constitutional right to an abortion, one upheld by two landmark U.S. Supreme Court decisions. But the unique enforcement tool employed in the law has complicated their efforts to find a legal avenue for challenging SB 8.
Attorneys for Texas argue that the state and state officials cannot be sued as a means of blocking enforcement of the law because the state is not responsible for enforcing the law — that responsibility lies with private individuals.
But the constitutional right to an abortion may not be on the books much longer, depending on how the U.S. Supreme Court handles a challenge to a Mississippi law that bans abortion after 15 weeks of pregnancy.
Texas is one of several conservative states that has adopted a so-called trigger ban, which would criminalize abortion to the extent permitted by the Supreme Court. The law would take effect 30 days after a relevant ruling from the court and would not require the involvement of the Legislature or any other official to be implemented.
Similar to SB 8, the law would not include exceptions in cases of rape or incest and would only permit abortion under rare circumstances, including when a woman’s life is in danger. The law would not rely on private lawsuits for enforcement. Instead, abortion providers who perform illegal abortions could be charged with a second-degree felony and face fines of at least $100,000.
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