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 U.S. Court of Appeals for the 5th Circuit 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, when many women do not yet realize they are pregnant.
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, second-guessing 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, the nearly 50-year old decision.
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, R. 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 just 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 a statement Monday, Julie Murray, an attorney with Planned Parenthood Federation of America said, “People in Texas have been stripped of their constitutional right to abortion for more than four months now – and pregnant Texans are needlessly suffering with no end in sight. We call on the U.S. Supreme Court to enforce its order and send this case back to the district court where it belongs.”
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.
At oral argument this month, Jones suggested that the Texas case may not be resolved before the Supreme Court rules in the Mississippi matter and asked whether the 5th Circuit should just wait to rule until then.
What happens, she asked the lawyer for abortion providers, if the Supreme Court “as many expect says something about Roe v. Wade that implies that [the law’s] prohibition on abortions after heartbeat may be enforceable?”
“Maybe we ought to just sit on this until the end of June,” she said referring to the traditional end of the Supreme Court’s term.
Marc Hearron, the lawyer for the Center for Reproductive Rights, said waiting until then would be “completely inconsistent” with the Supreme Court’s expedited order.
He referred to the dissent from Chief Justice John Roberts Jr., who said, “Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay.”