In the latest setback for abortion clinics that have challenged in federal court Texas’ six-week ban on the procedure, the 5th US Circuit Court of Appeals said Monday night that it was sending the case to the Texas Supreme Court.
The move means it will be weeks, and perhaps months, before the case goes back to the federal trial judge who has ruled against the law in the past – if the case makes it back to that judge at all.
The Texas abortion law has been in effect since September 1.
Previously, the US Supreme Court dismissed much of the clinics’ federal lawsuit, and the justices said 8-1 that the lawsuit could proceed against a narrow set of state licensing officials. The case then went back to the 5th Circuit. Now the federal appeals court is asking the Texas Supreme Court to weigh in on the role those licensing officials have to play in enforcing the abortion ban and whether the federal lawsuit can proceed against them.
Clinics had vehemently opposed the move to send – or “certify” – the case to the Texas Supreme Court. The move had been requested by the defenders of Texas’ law.
In the opinion explaining why the 5th Circuit panel’s majority – Circuit Judges Edith Jones and Kyle Duncan – was sending the case to the Texas Supreme Court, Jones wrote that the US Supreme Court had used hedged language in its opinion determining that the case could move forward against the licensing officials.
The justices’ “reasoning bespeaks at least uncertainty and the need to defer to state law,” Jones wrote, referring to the relevant section of Justice Neil Gorsuch’s opinion where he was joined by other conservatives on the court.
US Circuit Judge Stephen Higginson dissented from the 5th Circuit’s order, writing that it was giving the defendants a “second bite” at an issue they had already lost at the US Supreme Court.
“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” Higginson wrote.
The clinics also have a petition at the US Supreme Court asking the justices to intervene again in the case, given how the 5th Circuit has handled it. The justices have not yet taken action on that petition.