Texas’s restrictive abortion law, which prohibits the procedure after six weeks of pregnancy and allows individuals, rather than the state, to enforce the ban through lawsuits, will remain in place after a legal challenge to the law’s constitutionality was remanded to the state court system, likely delaying the appeals process by months.
The Fifth Circuit United States Court of Appeals rejected a request from abortion providers in the stateA case challenging the law would be returned to the original judge who ruled it unconstitutional. Instead, the Fifth Circuit Court’s panel of three judges is transferring this case to the Supreme Court of Texas. Here, the question of who can sue will be addressed.
The move ensures that the law will remain in force in Texas while being adjudicated in the state — rather than in the federal court system — for what could be a period of several more months.
In a 2-1 ruling, the majority opinion of the Fifth Circuit Court panel said that the decision was “consistent” with the Supreme Court’s ruling last month. But the High Court had already ruled that state officials — including those on the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission — could be sued over enforcement of the law.
Last month, when the Fifth Circuit agreed to hear an appeal brought on by state officials who wanted the state Supreme Court to decide on the matter, critics lambasted the decision to go forward with the idea, noting that it would ultimately lead to a longer delay on the question of the law’s legality.
Judge Stephen Higginson, in his dissident opinion against Monday’s ruling, agreed with these concerns.
“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.
Observers who are following the case said that the way the case was being handled — first with the federal Supreme Court allowing it to remain enforced, even as it’s being further deliberated, and now with the Fifth Circuit’s decision this week — parallels how the law itself was designed to evade legal challenges.
“The gyrations from courts to avoid issuing a stay rival the law itself for elaborate lawlessness,” wrote Harry Litman, a former U.S. attorney.
Alice Miranda Ollstein is another health reporter. Politico, observed that the appellate court’s decision seemed to be an intentional attempt to keep the matter open until the Supreme Court decides on other challenges regarding abortion access later in the year.
“The judge who wrote tonight’s ruling explicitly floated running out the clock during oral arguments, saying: ‘Maybe we should just sit on this until the end of June and leave the hot potato with the Supreme Court,’” Ollstein wrote.
Marc Hearron is an attorney at the Center for Reproductive Rights. blasted the decision by the Fifth Circuit Court. The appeal of the law, Hearron said, is “being delayed and strung out while patients across Texas are denied their constitutional rights.”
