U.S. COURT LEAVES TEXAS ABORTION BAN IN EFFECT
Case shifted to Texas Supreme Court as state officials asked
The nation’s most restrictive abortion law remains in effect in Texas after a federal appeals court on Monday rejected a request from abortion providers to immediately return their legal challenge to a trial court judge who had previously blocked the measure.
In a 2-to-1 decision, the 5th U.S. Circuit Court of Appeals temporarily transferred the case to the Texas Supreme Court, a step requested by state officials that could leave the dispute in limbo for months.
The court’s majority said its decision was “consistent” with the Supreme Court’s ruling last month and necessary to avoid “creating needless friction” with the state court over interpretation of the Texas law.
Abortion providers had warned the 5th Circuit that any diversion from the district court in Austin would continue to restrict access to the procedure after about six weeks into pregnancy.
The latest development follows a U.S. Supreme Court decision that left the ban in place while allowing providers to challenge the law’s unusual enforcement structure. The high court has twice refused to block the Texas law, which makes no exception for rape or incest and is at odds with the landmark Roe v. Wade decision guaranteeing a right to abortion before viability, usually around 23 weeks.
In effect since Sept. 1, the law has forced Texans to cross state lines to terminate their pregnancies after the six-week mark.
The dissenting judge, Stephen A. Higginson, said Monday that his colleagues were second-guessing the Supreme Court and allowing Texas officials to re-litigate an issue they had already lost.
“This further, secondguessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” wrote Higginson, a nominee of President Barack Obama.
The Supreme Court is separately considering a Mississippi law that bans most abortions after 15 weeks. The court’s conservative justices signaled at oral argument that they were open to overturning Roe.
Justice Neil Gorsuch, who wrote the majority opinion in the Texas case, sent the case back to the 5th Circuit as requested by Attorney General Ken Paxton. Texas officials then asked the 5th Circuit to transfer the case temporarily to the Texas Supreme Court to interpret a provision of state law before the case is sent to the district court.
The Texas law was designed to avoid judicial scrutiny by empowering private citizens, instead of state officials, to enforce the ban. Any member of the public can sue any person who performs an abortion or helps someone get an illegal abortion.
In its Dec. 10 opinion, the Supreme Court said the legal challenge could continue only against Texas licensing officials who oversee nurses, physicians and pharmacists.
Texas officials said the state’s high court must first determine whether those licensing officials in fact have the enforcement power the U.S. Supreme Court suggested to discipline medical professionals who violate the six-week abortion ban. Paxton told the 5th Circuit that state officials believe the law prevents licensing officials from enforcing the ban either directly or indirectly, and that the justices did not definitively resolve whether abortion providers have legal grounds to sue.
The 5th Circuit agreed, saying it must defer to the state court’s definition.
“This court reasonably seeks the Texas Supreme Court’s final word on the matter,” wrote Judge Edith H. Jones, a nominee of President Ronald Reagan, who was joined by Judge Stuart Kyle Duncan, a nominee of President Donald Trump.
Abortion providers say the move to state court is a delay tactic to leave the case in limbo and out of the hands of U.S. District Judge Robert L. Pitman in Austin.
In October, Pitman 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 5th Circuit reinstated the ban.