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Texas Abortion Providers Ask Supreme Court to Invalidate Circuit Court’s Delay

Last week, the Fifth Circuit agreed to hear arguments from Texas that would remand the case to the state court system.

Activists participate in a candlelight vigil on abortion rights in front of the U.S. Supreme Court on December 13, 2021, in Washington, D.C.

Abortion providers seeking to challenge Texas’s restrictive abortion law have filed a brief to the Supreme Court, following a decision by the Fifth Circuit Court of Appeals last week which would delay the litigation process.

The Fifth Circuit is planning to hold additional hearings regarding who can be sued over the law’s enforcement later this week. In a brief filed to the Supreme Court on Monday, abortion providers alleged that this action is time-consuming and unnecessary.

“Absent intervention by the Court, the Fifth Circuit is poised to entertain questions already decided by the Court in direct violation of this Court’s mandate and delay further resolution of this case in the district court by at least weeks, and potentially months or more,” wrote Marc Heron, a lawyer working on behalf of the abortion providers in the state.

Abortion providers want the matter to be returned to a lower federal court instead, so it can remain in the federal judicial system. There, the case can be ruled upon more expeditiously, which is critical because Supreme Court justices have already ruled that the law will remain enforced while it is being challenged.

The Supreme Court has already heard arguments about who abortion providers can sue regarding the law’s constitutionality. Last month, the court decided that state officials on a number of health boards in Texas can face lawsuits from providers in the federal court system.

Last week, the Fifth Circuit ruled that it would hold a hearing on whether the matter can be returned to the state Supreme Court, where that judicial body would decide whether or not state officials can be sued. That hearing is scheduled for January 7.

One judge on the circuit court panel dissented with his colleagues, stating that the federal Supreme Court “could not have been more explicit” in its ruling.

“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,” Judge Stephen Higginson said, adding that the ruling by the Fifth Circuit Court of Appeals would result in an “impermissible delay to the vindication of the constitutional rights of Texas women in federal court.”

Abortion providers are urging the Supreme Court to act quickly, citing the “urgency of the situation” and noting that the delay allows the law to remain intact for longer.

In tweets on Monday, the American Civil Liberties Union (ACLU) agreed with providers’ assertions, claiming that the actions of Fifth Circuit Court ran counter to the Supreme Court’s previous order.

“The Fifth Circuit Court of Appeals is defying the Supreme Court’s opinion by refusing to send our case back to the district court, delaying our challenge against Texas’ extreme ban,” the ACLU wrote. “The Supreme Court must put an end to the appeals court’s attempts to delay our fight. This delay is unconscionable, cruel, and downright dangerous.”

Texas’s abortion law bans the procedure after six weeks of pregnancy, a standard that is far below what the Supreme Court established in prior rulings. But even though the law clearly infringes upon the constitutionally protected right to access abortion services, it has evaded scrutiny from a number of courts — including the Supreme Court — because the law places the onus of enforcement on private citizens rather than the state.

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