In the latest setback for abortion clinics in Texas, Justice Neil Gorsuch said Thursday that a conservative federal appeals court should handle the next steps of litigation concerning the state’s six-week ban, a move that will likely leave women seeking abortions in the state in legal limbo for weeks if not months.
Last Friday, the Supreme Court allowed the controversial Texas law to remain on the books, but it did clear a narrow path for providers to try to sue a small subset of Texas licensing officials to try to block enforcement. After the decision, lawyers for the providers asked Gorsuch, who penned the decision, to send the case back down to a district court judge who originally ruled against the law, SB8, so that the proceedings could start up again in short order.
But Gorsuch rejected that request Thursday and sent the case instead to the conservative 5th US Circuit Court of Appeals. That court previously allowed the law to remain on the books and is now likely to send the case to the Texas Supreme Court to resolve questions concerning the enforcement authority of the licensing officials. That process could take months and is likely to mean that abortion providers in the state will still be unwilling to perform the procedure after six weeks for fear of harsh penalties set out in the law.
Women with the means to travel will have to continue traveling outside of the state to obtain the abortion, and low-income women will be left with few options while the appeals process plays out.
“Last week’s decision already made it unlikely that providers would be able to resume offering abortions in Texas after any time soon,” said Steve Vladeck, a CNN legal analyst and a professor of law at the University of Texas School of Law. “Today’s order will only increase that delay, especially if the Court of Appeals certifies a question to the Texas Supreme Court rather than returning the case to the district court,” he said.
Gorsuch, in a brief order did grant the providers request to bypass the normal 25-day waiting period and send the paperwork immediately to the lower court.
In the end, it means a decision concerning the fate of the Texas law could now come after the Supreme Court issues an opinion in a separate case out of Mississippi that is a direct challenge to Roe v. Wade next summer.