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Fifth Circuit Agrees to Hold Hearing on Texas Abortion Law in January

One judge on the court dissented with the decision, calling it an “impermissible delay” to the Supreme Court’s orders.

Pro-choice demonstrators rally outside the U.S. Supreme Court on November 1, 2021, in Washington, D.C.

On Monday, a federal appeals court agreed to hear arguments relating to Texas’s restrictive abortion ban on January 7, a move that one of the dissenting judges on the court said is an “impermissible delay” to deciding whether the statute is constitutional.

Earlier this month, the U.S. Supreme Court heard a challenge to the law from abortion providers. The court ruled that those plaintiffs had a right to challenge the law’s legality in federal courts, but allowed the law to remain in place until it is litigated further.

The law bans abortion after six weeks of pregnancy — before many individuals even know they are pregnant — and makes no exceptions for rape or incest. Instead of enforcing the statute through the state, the legislation allows lawmakers to avoid lawsuits by strategically placing the onus of enforcement on private individuals, who can sue abortion providers for sums of up to $10,000.

Although the Supreme Court accepted the argument that abortion providers have the right to sue over the law, it stated that they can’t file lawsuits against Texas judges, county clerks, the state Attorney General’s office or anti-abortion crusaders who advocated for the law. Providers are only allowed to sue administrative officials on the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission.

Texas officials in favor of upholding the law responded to the Supreme Court’s ruling by filing a lawsuit of their own, demanding that the Fifth Circuit Court of Appeals remand the case to the state Supreme Court, allowing the state court to determine whether lawsuits could be filed against officials on those boards and commissions. Abortion providers argued against that action, saying that the move was nothing more than “a transparent attempt to forestall relief” and “indefinitely prevent plaintiffs from obtaining any effective relief from the district court in the face of a law that is clearly contrary to Supreme Court precedent.”

In spite of those protestations, the Fifth Circuit Court agreed to hear the Texas officials’ arguments, setting a date of January 7 to consider transferring the case to the state Supreme Court.

There is a high likelihood that the Fifth Circuit Court, which is widely considered the most conservative of the 13 appellate courts in the country, will agree to Texas officials’ demands to move the case to the state Supreme Court. If that happens, Texas abortion providers may appeal that decision, sending it right back to the federal Supreme Court to decide whether or not the move was appropriate.

Judge Stephen Higginson, a circuit judge on the Fifth Circuit Court, dissented with his colleagues’ decision to hear the case, arguing that the federal Supreme Court was clear in its previous ruling that the matter should return to the federal court system.

“The Court majority could not have been more explicit, declaring that it ‘approves today’ the plaintiffs’ challenges in federal court,” Higginson wrote in his dissent. “In its exact holding, the Court stated, ‘we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage.'”

“What this court does today adds impermissible delay to the vindication of the constitutional rights of Texas women in federal court,” Higginson went on.

The decision by the Fifth Circuit Court of Appeals to consider additional ways to impede abortion providers’ challenges to the Texas law comes as the Supreme Court is considering whether to undo federal abortion protections that have been established for almost 50 years. In December, the court heard challenges to a Mississippi abortion law, in which state officials argued in favor of dismantling the Supreme Court’s ruling in the Roe v. Wade case of 1973.

Conservative bloc justices, who compose a majority of the Supreme Court’s bench, appeared receptive to those arguments, asking questions and making comments that indicated their openness to upending the long-established precedent. This would undoubtedly result in states imposing harsher abortion restrictions without consideration for the rights of individuals or providers.

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