SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

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.

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.

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One Response to SCOTUS finds another way to screw abortion rights

  1. Kibitzer Curiae says:


    SCOTX, SOTTO VOCE: No need for a certified question or answer. The statute says what it says and our colleagues on the Fifth Circuit are well qualified to read it themselves. But since we have been asked, and since the U.S. Supreme Court harbored doubts and expressed incertitude, … let’s take the matter under consideration and in due course confirm at the approriate time that the Texas statute does indeed speak for itself.

    Elaboration for the literati: Subchapter H is the later-enacted part of Chapter 171 (via Senate Bill, duly enacted and signed by the Governor, and officially known as the Texas Heartbeat Act) and constitutes a more specific statutory provision as codified. As such it supersedes and modifies any general abortion rule and provisions for enforcement to the contrary or alleged to be to the contrary.

    Further, as a general rule, except for manifest absurdity, an express statutory provisions governing a particular subject matter precludes the assertion of an implied provision/interpretation to the contrary, and the express provision will be given effect in accordance with the intent of the legislature.


    Tex. Health & Safetey Code Sec. 171.005.

    COMMISSION TO ENFORCE; EXCEPTION. The commission shall enforce this chapter except for Subchapter H [titled “DETECTION OF FETAL HEARTBEAT”], which shall be enforced *exclusively* through the private civil enforcement actions described by Section 171.208 and may not be enforced by the commission. [stars added for emphasis]

    Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.

    Amended by: Acts 2021, 87th Leg., R.S., Ch. 62 (S.B. 8), Sec. 6, eff. September 1, 2021.

    QUESTION POSED AND PENDING: Does exclusive mean exclusive?

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