Texas Abortion Fight Heads Back to Supreme Court

Texas abortion providers are back at the Supreme Court, this time asking the justices to accelerate the litigation in the lower courts, as the six-week abortion ban remains in place.

“For more than four months, thousands of Texans have been unable to exercise their federal constitutional right to terminate their pregnancy,” the providers told the justices Tuesday.

The Supreme Court Dec. 10 remanded the case back to the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, with a narrow path for the providers to challenge the law in federal court.

Before sending the case back to the trial court to consider that narrow path, the Fifth Circuit scheduled oral argument Jan. 7 on whether the case should first go to Texas state courts to sort out a question of state law.

Such a move would delay the litigation, even as the Supreme Court has worked with unusual speed.

“Allowing the court of appeals to flout this Court’s mandate and derail indefinitely the timely resolution of the merits of this case by the district court would render” the extraordinary solicitude the court has received “effectively meaningless and compound the ongoing harm to pregnant Texans under S.B. 8,” the providers said.

They’ve asked the justices to order the state to respond by Wednesday.

The case is In re Whole Woman’s Health, U.S., No. 21-962.