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Rowdy Fifth Circuit Flouts High Court on Abortion With No Rebuke

Jan. 28, 2022, 11:00 AM

I’m back with another edition of Opening Argument, a reported column where I unpack complicated legal fights, dig into issues dividing appellate courts, and even explore the odd turns a case can take. Today, a look at the unusual posturing of the ongoing battle over Texas’s new abortion law.

The Fifth Circuit is getting bolder.

Last week the appeals court further delayed the lawsuit challenging Texas’s ban on abortion after six weeks of pregnancy by kicking the case over to the state Supreme Court instead of sending it back down to the trial court to play out there.

It was an unusual move because the U.S. Supreme Court had already ruled the abortion providers could sue members of the state medical, nursing, and pharmacy licensing boards to challenge the constitutionality of the law and sent the case back to the appeals court with the understanding it would quickly send it to the district court.

The U.S. Court of Appeals for the Fifth Circuit, however, didn’t do that. It said the Texas Supreme Court needed to decide if state professional licensing board members have the power to enforce the law first. Since the U.S. Supreme Court had already said they do, it seemed like a decision the highest court wouldn’t let stand. Yet it did.

Sara Rosenbaum, a law professor at George Washington University said the Fifth Circuit is “like a completely out of control child” and the Supreme Court is letting it run wild.

“Adult supervision has basically disappeared and worse behaviors this court has been capable of for years now are pouring out,” she said.

Other legal scholars say we’re seeing the effects of a more conservative Fifth Circuit that’s emboldened by a more conservative Supreme Court.

“It’s fair to say that some lower courts, including the Fifth Circuit, have taken note of the Supreme Court’s changed valence and that it is affecting some of their decisions on the margin,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law.

“They may be more aggressive in some cases because they are less concerned about being reversed,” he said.

The Fifth Circuit’s decision is a big deal because it indefinitely stalls the litigation over the Texas law, known as SB 8, which has essentially cut women off from being able to get an abortion in the state. The law was designed specifically to evade judicial review by giving private citizens the enforcement authority instead of state officials. It allows private citizens to sue any provider who performs an abortion after six weeks of pregnancy, as well anyone who aids and abets in that abortion, for $10,000 in damages.

Timothy Jost, an emeritus professor at Washington and Lee University School of Law, said the Supreme Court was “complicit in what the Fifth Circuit and Texas have been trying to do, which is delay the case indefinitely.” Or at least until the Supreme Court decides whether to gut abortion rights.

The justices at the beginning of December heard a direct challenge to the cases that established and affirmed a constitutional right to abortion — Roe v. Wade and Planned Parenthood v. Casey. A decision isn’t expected until the end of June.

Rosenbaum said the Fifth Circuit judges in this case assume they’re going to get a better ruling from the state Supreme Court, one that cuts off any avenue for the Texas law to be challenged.

Abortion providers had asked the U.S. Supreme Court in January to take the case away from the Fifth Circuit after the appeals court scheduled arguments over whether the Texas Supreme Court needed to decide if the licensing boards, the attorney general, or the Texas Health and Human Services Commission have the power to enforce the law. The U.S. Supreme Court, however, refused.

In a scathing dissent, Justice Sonia Sotomayor said the appeals court had defied the Supreme Court’s judgment.

“This Court should not accept such an egregious distortion of its decision,” she wrote.

It’s not the first time the Fifth Circuit has flouted a U.S. Supreme Court decision on abortion. In 2018, the appeals court upheld a Louisiana law that required abortion clinics to have admitting privileges at a hospital within 30 miles of where the abortion is performed even though the Supreme Court a year earlier had ruled an almost identical Texas law was unconstitutional.

The case was appealed and ultimately overturned based on that U.S. Supreme Court’s prior decision. Justice Ruth Bader Ginsburg was on the bench then and Chief Justice John Roberts sided with the court’s liberal wing in the 5-4 ruling.

Though no explanation accompanied the U.S. Supreme Court order last week refusing to take the SB 8 case away from the Fifth Circuit, Roberts didn’t join the court’s three liberal members in their dissent.

“He knows he just doesn’t have the votes,” Rosenbaum said. “I think that he decided to turn the other cheek because five justices were turning the other cheek.”

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editor responsible for this story: Andrew Childers at; Jo-el J. Meyer at

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