The 5th Circuit panel is deciding what should come next in abortion clinics’ federal lawsuit challenging the ban after the Supreme Court kept the case alive in a decision handed down last month.
“Maybe we should just sit on this until the end of June,” Judge Edith Jones said Friday, citing a separate challenge to Roe v. Wade already at the high court.
“By that time, it is very possible the hot potato will be in the seat of the Supreme Court,” she added.
The clinics say the case should be sent to US District Court Judge Robert Pitman, who blocked the law last October in a separate case brought by the Justice Department, only for that order to be frozen by the 5th Circuit.
The providers’ request got no apparent traction with two of the three judges on the appellate panel. The third judge — the panel’s sole Democratic appointee — had already said he would grant the request in a dissent that decried the “impermissible delay to the vindication of the constitutional rights of Texas women in federal court.”
Instead, the appellate panel’s Republican-appointed majority seems poised to grant a request from Texas and the ban’s other legal defenders to send the case to the Texas Supreme Court. The defenders say that, before the federal lawsuit moves any further, the Texas Supreme Court needs to weigh in on state law questions that they say were left unresolved by the US Supreme Court’s decision last month.
Jones, an appointee of President Ronald Reagan, appeared to agree. She warned that the federal courts are “all going to have egg on our faces” if the Texas State Supreme Court interpreted the state law in a way that was at odds with how the federal judges were approaching the case.
She also floated the idea that the 5th Circuit could just sit on the case until the US Supreme Court handed down its decision in a separate abortion case it heard last month, where the conservative justices may make significant changes to the court precedent that protects abortion rights.
Circuit Judge Kyle Duncan, an appointee of President Donald Trump, meanwhile questioned whether there was really any urgency in moving the federal lawsuit along, given the ways the US Supreme Court had already scaled back the clinics’ case.
Four months and counting that most abortions have been illegal in Texas
The legal issues before the 5th Circuit are extremely technical. But at stake is whether abortion providers will have any shot in the coming months to get an order that would at least partially block enforcement of the law.
The clinics have already asked the Supreme Court to intervene yet again in the 5th Circuit’s handling of the case. So far, the justices have not taken any action on that request, which was filed Monday night.
For more than four months, a law that bans a majority of abortions in the country’s second most populous state has been in effect. Given the legal risks that come with violating the ban, which outlaws abortions when fetal cardiac activity is detected, clinics have been unwilling to offer the procedure in those instances — a point around six weeks into the pregnancy, before many women even realize they’re pregnant.
So far, the Texas ban’s unique enforcement mechanism has allowed it to stand in the face of Supreme Court precedent that protects abortion rights before a fetus is viable — a point around 23 weeks into the pregnancy when the fetus can survive outside the womb.
Rather than impose criminal or administrative penalties for clinics that conduct abortions after six weeks, the Texas law allows private citizens to sue those providers — or anyone else who assists the person obtaining the abortion — in state court, with the threat of damages of at least $10,000.
When the US Supreme Court reviewed the case last year, it said the clinics could not get federal court orders preemptively blocking state court officials from accepting those lawsuits. But eight of the justices said their lawsuit could proceed against a select group of state licensing who could in theory revoke providers’ medical licenses for violating the six-week ban.
On Friday, comments from Duncan illuminated why the Supreme Court decision had left clinics with little hope for effective relief in federal court from the law, known as SB8.
“The principal injury that you’re seeking to redress here is the threat of SB8 lawsuits puts a chill on your clients’ provision of abortion services, right?” Duncan told Marc Hearron, a senior counsel for the Center for Reproductive Rights who is representing the providers.
“So how would an injunction against these licensing officials redress that at all?” Duncan asked, later adding that, given that reality, he was struggling to see the urgency of moving the federal lawsuit along quickly.
A clock ticking on a separate Supreme Court case that could bolster Texas’ ban
In the background of these procedural maneuverings is an even bigger threat to abortion rights not just in Texas — but nationwide.
The Supreme Court last month heard a separate abortion case out of Mississippi that gives the conservative majority the opportunity to gut — and perhaps, outright reverse — current precedent protecting pre-viability abortions.
The idea of waiting until a summer ruling on the Mississippi case and Roe v. Wade drew vehement pushback from the clinics’ attorney, who called it “completely inconsistent” with how quickly the Supreme Court handled had the Texas case so far.
Even the attorney for Texas, Assistant Solicitor General Natalie Thompson acknowledged that Texas is not asking for that delay, under persistent grilling from Judge Stephen Higginson, who was appointed by President Barack Obama.
Nerves were frayed among the judges as the 45-minute hearing wore on. Not only did the Republican-appointed judges express repeated dissatisfaction with how Hearron, the clinics’ attorney, was handling their questions, they exchanged shots with Higginson.
Jones interjected in one line of tough questions Higginson had for Texas’ attorney: “Normally this court isn’t litigating on behalf of on one side or the other,” Jones said.
Higginson asked Thompson, the Texas attorney, if there had be any unfair question to her. She said no and he continued with his questions.
