The Supreme Court on Thursday sent a federal appeals court the case over Texas's six-week abortion ban and denied a request by clinics and physicians to send the matter to a trial judge who previously blocked the law.
Justice Neil Gorsuch, who wrote the majority opinion to leave the law in place last week, once again wrote the majority opinion on Thursday to send the case back to the 5th Circuit Court of Appeals. Justices typically wait 25 days to issue judgment but made the order just six days after the highest court allowed abortion providers a narrow passage to bring legal challenges to the measure while keeping the law in effect.
The Louisiana-based appeals court has repeatedly upheld the law, which allows private citizens to sue abortion providers if they commence a procedure after six weeks of gestation. Texas officials, along with Attorney General Ken Paxton, told the Supreme Court they plan to ask the 5th Circuit to request the Texas Supreme Court to interpret a key provision before the case returns to the trial court level, a process that could take weeks and possibly months.
Following the Supreme Court's decision on Friday, attorneys for abortion providers asked the justices to send the case back down to a district court judge who initially ruled against the law, also known as S.B. 8, to allow a quicker proceeding.
SUPREME COURT WON'T HALT TEXAS ABORTION LAW, THOUGH CLINICS CAN STILL SUE
NEW: Supreme Court formally returns Texas abortion case to 5th Circuit. Providers get immediate judgment they sought but don't get what could be much more important: a remand all the way to the district judge who has been receptive to abortion rights. pic.twitter.com/ap04fqgqfW— Greg Stohr (@GregStohr) December 16, 2021
Despite denying the request, Chief Justice John Roberts wrote: "Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay." Three Democratic-appointed justices on the bench joined on the decision.
Judge John Pittman for the District Court for the Western District of Texas has been open to providers' claims that the law infringes on a constitutional right to abortion, though it's not clear what the judge could do if the case makes its way back to him.
Gorsuch's move to send the case back to an appellate court means the fate of the Texas law could likely be determined by a separate case in Mississippi that the highest court is weighing, according to Zack Smith, a legal and judicial studies fellow at the Heritage Foundation.
"This case of Texas has always been more about the procedural issues than it is about the substantive merits of Roe v. Wade and Planned Parenthood v. Casey," Smith said. "There were some really interesting issues about state sovereignty, about who should be allowed to be sued under an earlier Supreme Court precedent."
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"And the majority said they could not sue," Zack added, noting the Mississippi case surrounds the more "substantive" issues of Roe and Casey versus the "procedural" issues surrounding the mechanisms of the Texas law.