Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

Supreme Court Deals Clinics New Rebuff on Texas Abortion Law (2)

Jan. 20, 2022, 11:25 PM

The U.S. Supreme Court ensured that Texas’ six-week abortion ban will stay fully in effect for the time being, refusing for a second time to let abortion providers return to a federal trial court to keep pressing their challenge.

The decision, which came with no explanation, drew a scathing dissent from Justice Sonia Sotomayor on behalf of the court’s three liberals. She said Thursday the majority was countenancing delaying tactics by the state and a federal appeals court to keep an unconstitutional law in force.

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” Sotomayor wrote for herself and Justices Stephen Breyer and Elena Kagan. “I will not stand by silently as a state continues to nullify this constitutional guarantee.”

The clinics and doctors say the 5th U.S. Circuit Court of Appeals is stalling after the Supreme Court ruled in December that part of their lawsuit could go forward. The 5th Circuit this week asked the Texas Supreme Court to interpret a key provision, a move that could add months to the case.

The providers say the 5th Circuit should have immediately sent the case back to U.S. District Judge Robert Pitman, and they were asking the Supreme Court to order the appeals court to take that step.

“Texans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban,” said Nancy Northup, president of the Center for Reproductive Rights, which is leading the challenge to the law. “It is allowing the state of Texas to deprive people of a constitutional right.”

The skirmishing comes as the Supreme Court deliberates over a Mississippi case that could overturn the landmark 1973 Roe v. Wade decision, which legalized abortion nationwide. The court is scheduled to rule in that case by the end of June.

Roberts Silence

When the Supreme Court ruled on Dec. 10, Chief Justice John Roberts and the three liberals indicated in a partial dissent that they hoped Pitman, who at one point blocked the law, would move quickly.

Earlier: Supreme Court Justices Suggest Sweeping Pullback on Abortion

“Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote for the group then. He gave no indication Thursday that he objected to the latest order.

The Dec. 10 ruling said the suit could proceed against members of the state medical, nursing, and pharmacy licensing boards because “it appears” they had authority to enforce aspects of the law.

But the majority also said the Texas courts were the “final arbiters” of what authority those officials had. That line gave Texas -- and the 5th Circuit -- an opening to ask the Texas Supreme Court to offer its interpretation.

Days after the Supreme Court ruling, the providers asked the high court to remand the case directly to Pitman and bypass the 5th Circuit, one of the country’s most conservative appeals courts. The Supreme Court instead returned the case to the 5th Circuit without explicitly saying what should happen next.

The latest case is In Re Whole Woman’s Health, 21-962.

(Adds law remaining in effect in first paragraph.)

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

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

John Harney

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

To read more articles log in.

Learn more about a Bloomberg Law subscription.