The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.
Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.
When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.
Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.
Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”
In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.
The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.
Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.
The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.
The appeals court would decide whether to involve the state high court, which would put the case on hold.
See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.
Said another way:
To the surprise of … nobody, Texas is asking the Fifth Circuit to certify a question of state law to the Texas Supreme Court rather than return the #SB8 case to the district court — which would take quite some time, during which the six-week abortion ban would remain in effect.
— Steve Vladeck (@steve_vladeck) 6:40 PM – 16 December 2021
This is really terrible. The 5th Circuit will likely certify a question of state law to the Texas Supreme Court. This will (1) drag out the case, (2) keep the clinics shuttered, and (3) allow the all-Republican SCOTX to close off clinics’ last remaining path to relief.
— Mark Joseph Stern (@mjs_DC) 10:03 AM – 16 December 2021
— Mark Joseph Stern (@mjs_DC) 11:40 AM – 16 December 2021
I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.