Procedural ruling by Supreme Court could prolong fight over Texas abortion ban

The Supreme Court on Thursday issued a procedural ruling that legal experts say could effectively prolong efforts by abortion providers to block a controversial Texas law that bans abortion after six weeks.

The move is a follow-on to a ruling last week in which a divided court allowed the controversial Texas law to remain in effect, while carving a narrow path for legal challenges to be brought in federal court.

But last week’s ruling did not specify where the next round of litigation would play out or how quickly — a degree of uncertainty that sparked a fresh round of fighting this week.

Abortion providers opposed to the Texas law, S.B. 8, had asked the Supreme Court to swiftly return the case to a federal district court; the judge presiding over the case there has been generally receptive to their challenge.

Texas state officials defending the law, by contrast, asked the justices to return the case to a largely sympathetic conservative New Orleans-based federal appeals court that has allowed S.B. 8 to remain in effect while the case plays out.

The brief order issued Thursday by Justice Neil Gorsuch resolved this skirmishing, but in a manner that some legal experts say could further prolong the already protracted court clash.

Gorsuch, a staunch conservative, agreed with the abortion providers’ request to fast-track the process. But, more significantly, he sided with the Texas defendants and returned the case to the conservative New Orleans-based U.S. Court of Appeals for the 5th Circuit.

“We know the Court of Appeals is inclined to slow walk this challenge and allow Texas to enforce the law relative to District Court,” said Leah Litman, a law professor at the University of Michigan.

The dispute over S.B. 8 arose after a group of abortion providers, led by Whole Woman’s Health, brought a federal lawsuit this summer to block the law prior to its Sept. 1 effective date. The group identified Texas state and judicial officials as defendants, as well as private defendants whom the abortion providers believed would try to enforce S.B. 8.

S.B. 8 authorizes citizens to file private lawsuits against those who perform, aid or abet an abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy — a period before most women know they are pregnant. Successful suits under S.B. 8, which contains no exceptions for rape or incest, fetch at least $10,000.

Texas’s six-week ban conflicts with Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to abortion before a fetus is viable, typically around 24 weeks of pregnancy.

The Texas defendants asked the federal judge overseeing the dispute to dismiss the case, which he declined to do. On appeal, the 5th Circuit paused the district court proceedings and in the interim allowed the six-week abortion ban to remain on the books, dramatically curtailing abortion access in Texas.

Although the Supreme Court last week carved a narrow path for federal court challenges against S.B. 8, that path’s survival may depend on what the 5th Circuit does next.

The justices’ ruling last week permits abortion providers to sue only one group of defendants in federal court: Texas state licensing officials. If successful, these suits would prevent licensing officials from seeking to enforce violations of the abortion ban.

But one scenario could see the 5th Circuit set in motion a legal process that winds up erasing abortion providers’ narrow path to federal court.

The 5th Circuit could ask the top Texas state court for its interpretation — a process called “certification” — of a key component of S.B. 8. Specifically, the circuit court could ask the state court whether S.B. 8 gives licensing officials authority to enforce the law.

If the Texas state court decides that licensing officials lack such authority, the doors to the federal courthouse that the Supreme Court cracked open last week would be slammed shut.

Given the federal circuit court’s handling of the case so far, some experts believe a scenario involving the circuit seeking the state court’s certification is a plausible one.

“The circuit court has taken extraordinary steps to go out of its way to put a stop to this litigation and allow the law to be enforced,” Litman, of the University of Michigan, said.