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Top Court Sends Texas Abortion Case to Court That Backed Ban (1)

Dec. 16, 2021, 5:26 PM

The U.S. Supreme Court formally returned a case over Texas’ six-week abortion ban to a federal appeals court, rejecting a request by clinics and doctors to send the matter directly to a trial judge who once blocked the law.

The order Thursday came six days after a divided Supreme Court left the law in force and let abortion providers press only a narrow part of their challenge. The new order was signed by Justice Neil Gorsuch, who wrote the majority opinion in the case.

The justices normally wait 25 days to issue a formal judgment, and the decision to do so ahead of schedule was a partial victory for the providers. But by sending the case to the 5th U.S. Circuit Court of Appeals, which has repeatedly backed the law, the high court left open the possibility of further delays.

Texas officials led by Attorney General Ken Paxton told the high court they plan to ask the 5th Circuit to request that the Texas Supreme Court interpret a key provision before the case goes back to the trial court level. That process could take weeks, if not months.

The providers are seeking to get their suit back before U.S. District Judge Robert Pitman, who has been receptive to claims that the law infringes the constitutional right to abortion. When the Supreme Court ruled Dec. 10, four justices indicated in a partial dissent they hoped Pitman would move 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 Roberts wrote for himself and the court’s three liberals.

Hard to Block

It’s not clear how much Pitman would be able to do even if the case makes its way back to him. The providers’ lead lawyer, Marc Hearron, has said the decision made it impossible for the challengers to get the kind of statewide injunction they need. The law delegates enforcement power to private parties, a provision Texas included to make the law hard to block.

“The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed,” Hearron, a lawyer with the Center for Reproductive Rights, said Thursday in an emailed statement. “It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.

“Meanwhile, Texans have been without abortion access for more than 100 days, and there is no end in sight. The Supreme Court has let Texas nullify constitutional rights and upend our system of justice.”

Paxton’s office didn’t immediately respond to a request for comment.

Read More: Supreme Court ‘Green-Lit’ Texas Abortion Ban, Clinic Lawyers Say

The Supreme Court normally returns federal cases to the appeals court level. But the Texas dispute was unusual because the Supreme Court was directly reviewing Pitman’s decision without an intervening 5th Circuit ruling. The providers said that was a reason to send the matter all the way back to the trial judge.

The provision that could be referred to the Texas Supreme Court involves the authority of state licensing officials to take enforcement action against providers who violate the abortion law. The U.S. Supreme Court said “it appears” those officials have enforcement power, making them legitimate defendants for the providers’ legal challenge.

But the high court also said that “Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” leaving ambiguity as to how the case might play out.

The case is Whole Woman’s Health v. Jackson, 21-463.

(Updates with reaction from providers’ lawyer in eighth and ninth paragraphs.)

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Steve Stroth

© 2021 Bloomberg L.P. All rights reserved. Used with permission.