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In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.
Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.
In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.
On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.
In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.
Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.
This is exactly what abortion opponents are hoping for.
“While all of these complicated legal questions are untangled, we already every day have our victory,” said John Seago, legislative director for Texas Right to Life. “Courts have allowed this law to stay in effect.”
The odds were clear even before the judges gaveled in on Friday morning. When the court agreed to take up the case, Higginson, who was appointed by President Barack Obama in 2011, wrote a scathing dissent arguing that there was no reason for the 5th Circuit to even hear the case and should instead send it directly down to the district court.
Lawyers for the abortion providers agreed and even filed a motion with the U.S. Supreme Court asking it to intervene. The Supreme Court has taken no action on that motion.
At the hearing, Higginson argued that it was an exceptional step for the 5th Circuit to certify, or send, a case to the Texas Supreme Court after the U.S. Supreme Court had already weighed in. He challenged the lawyer for the state of Texas to provide an example of a time when that had happened before, which she could not do.
Houston appellate lawyer Raffi Melkonian routinely practices before the 5th Circuit and listened to Friday’s hearing. He agreed that it was atypical to get to this stage before certifying to the state level.
“Certifying isn’t weird. Doing it later on in a case isn’t weird. None of that is weird,” he said. “What’s weird is the [U.S.] Supreme Court issued a ruling. And now the 5th Circuit is considering certifying to the state court.”
But Jones argued that it was a necessary step because state courts ultimately have the authority to decide state law, and the judges would have “egg on our faces” if the Texas Supreme Court eventually disagrees with their ruling.
Duncan also raised the question of whether this challenge was actually all that important. At this point, the case is only about whether medical licensing officials can discipline medical providers who violate the abortion law. An injunction in this case would do nothing to change the crux of this law, which allows for countless citizen lawsuits of at least $10,000 against abortion providers.
“The principal injury that you’re seeking to redress here is that the threat of [Senate Bill 8] lawsuits puts a chill on your clients’ provision of abortion services,” said Duncan. “So how would an injunction against these licensing officials redress that at all?”
Marc Hearron, senior counsel at the Center for Reproductive Rights, challenged whether that was the question the 5th Circuit was called to address, but ultimately said it would lessen the burden upon medical providers if their licenses were secure. In an interview after the hearing, Hearron acknowledged that the U.S. Supreme Court had "gutted" their case.
"Regardless of what happens today, the fact of the matter is that any relief that may or may not eventually come in this case would be against these [medical licensing] officials and would not block the vigilante lawsuits," he said.
The three-judge panel will now consider whether to send the case to the Texas Supreme Court. State supreme courts do not have to take up cases that are certified to them by federal courts, but Melkonian said it’s extremely likely that Texas will.
“The Texas Supreme Court invariably accepts cases now,” he said. “That wasn’t always the case in the ’80s or ’90s, and it contrasts with other [states] in the 5th Circuit, but it’s clearly evident that they accept every case.”
There is still a pending motion before the U.S. Supreme Court, filed by lawyers for the abortion providers, asking for the case to be sent to district court.
"If they certify this case to the Texas Supreme Court, that petition becomes all the more important," said Hearron in an interview after the hearing. "The Supreme Court treated this whole case with expedition, and Chief Justice [John] Roberts said the district court ought to enter appropriate relief without delay...This is creating more delay, which is the overall strategy."
It’s hard to say what the Texas Supreme Court could do with the case, but abortion providers worry it’s a process that could extend the legal limbo they now find themselves in. It also gives state legislators an opportunity to revise the law in a way that explicitly removes medical licensing officials from potential challenge, as Seago said they plan to do.
Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, said this delay is harming pregnant patients in Texas who cannot access abortions after about six weeks of pregnancy, a point at which many don’t even know they are pregnant.
“And it puts providers in a terrible position to deny care patients deserve, that we’re fully trained to provide,” she said. “It’s us that are looking these folks in the eye and saying no. Lawmakers aren’t seeing the impact this is having on real people.”
While it seems likely that the 5th Circuit will rule to send the case to the Texas Supreme Court, Jones did raise another option that would be no better for abortion providers. She asked whether the court should wait to rule on this case until the U.S. Supreme Court had weighed in on Dobbs v. Jackson, another abortion case on their docket.
The high court heard arguments in Dobbs, which concerns a 15-week abortion ban in Mississippi, in December. Those arguments indicated that there may be enough support on the court to significantly weaken or completely overturn Roe v. Wade, the 1973 case that established a constitutional protection for abortion.
“I didn’t expect her to say that,” said Melkonian. “I didn’t think it was an impossible result. I was just surprised to hear it raised explicitly as a suggestion.”