Texas Abortion Law: Federal Court of Appeals Likely to Extend Months or More Before Case Is Resolved

HOUSTON, Texas – In a controversial hearing Friday, a federal appeals court said it is likely to send Texas’ abortion-restricting laws to the state’s supreme court, a move that could have It may take several months or more before the case is resolved.

The video above is from an earlier report.

As of September 1, abortions after about six weeks of pregnancy have been banned in Texas through a new law that allows private citizens to sue anyone who “assists or abets” a proceeding. forbidden. The law explicitly removes the enforcement authority of public officials, making trial in court extremely difficult.

In December, the US Supreme Court brought most of the challenges to the law and only made state medical licensing officials the target of lawsuits because they could revoke a physician’s license. , nurse or pharmacist if they break the law.

On Friday, a panel of three judges from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case should go next. Judges Edith H. Jones and Stuart Kyle Duncan said they believe there are questions of state law that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson does not at all. agreed, arguing that the case should be referred to federal district court.

In a move that surprised court watchers, Jones also raised the idea of ​​not taking action on the case for months, until the U.S. Supreme Court issues a ruling on the case. Abortion in Mississippi could upset the constitutional protections of the procedure.

Abortion providers’ attorneys believe the federal district court route is their best hope of passing the law, which was initially passed as Senate Bill 8, to be rejected. cancel. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, bringing the law into effect.

This is exactly what anti-abortion advocates are hoping for.

“Despite all of these complex legal questions left unresolved, we have victories every day,” said John Seago, legislative director for Texas Right to Life. “The courts have allowed this law to go into effect.”

RELATED: Texas now bans medical abortions after 7 weeks of pregnancy

Friday’s hearing

The odds were clear even before the referees considered it on Friday morning. When the court agreed to hear the case, Higginson, who was appointed by President Barack Obama in 2011, wrote a bitter dissent arguing that there was no reason for Fifth Street to hear the case. and should instead go directly to the district court.

Lawyers for the abortion providers agreed and even filed a petition with the U.S. Supreme Court asking them to intervene. The Supreme Court took no action on that petition.

At the hearing, Higginson argued that it was a special step for 5th Street to certify, or send a case to the Texas Supreme Court after deliberation by the U.S. Supreme Court. He challenged the Texas state attorney to provide. an example of a time when it had happened before, which she couldn’t do.

Houston appellate attorney Raffi Melkonian regularly practices before Circuit 5 and listens to Friday’s hearing. He agrees that getting to this stage before state certification is atypical.

“Certification is not strange. Doing it later in a case is not strange at all. There is nothing strange at all,” he said. “The strange thing is that the Supreme Court (USA) has made the ruling. And now 5th Street is looking at the certification for the state court.”

But Jones argues it’s a necessary step because state courts ultimately have the authority to decide state law, and judges would “throw eggs in our faces” if the Texas Supreme Court ultimately does. disagree with their verdict.

Duncan also raises the question of whether the challenge is really that important. At this point, the case is only about whether medical licensing officials can discipline health providers who violate abortion laws. An injunction in this case would do nothing to change the bottom line of this law, which allows for countless lawsuits by citizens for as little as $10,000 against abortion providers. .

“The main wound you’re looking to fix here is the threat of lawsuits (Senate Bill 8) giving your clients chills about providing abortions,” Duncan said. “So how would an order on licensing officials fix that a bit?”

Marc Hearron, senior adviser at the Center for Reproductive Rights, challenged whether that was the question Circuit 5 was called to address, but ultimately said it would ease the burden on providers. provide medical services if their authorization is confidential. In an interview after the hearing, Hearron admitted that the US Supreme Court had “gutted” their case.

“Whatever happens today, the fact of the matter is that any relief measures that may or may not come in this case will be against the officials,” he said. ) and will not block vigilance lawsuits,” he said.

RELATED: New poll finds most Americans oppose Texas abortion laws, other states’ abortion clinic restrictions

Next step

The three-judge panel will now consider whether to send the case to the Texas Supreme Court. The state’s supreme courts do not have to hear cases that have been certified by federal courts, but Melkonian said it is likely that Texas will.

“The Texas Supreme Court has always accepted cases,” he said. “That didn’t always happen in the 80’s or 90’s, and it was the opposite of the other (states) in the 5th Circuit, but they obviously accept every case.”

There is still a pending petition before the US Supreme Court, filed by attorneys with abortion providers, asking to send the case to district court.

“If they certify this case to the Texas Supreme Court, that petition becomes all the more important,” Hearron said in a post-hearing interview. “The Supreme Court has handled this entire case with an investigation, and Chief Justice (John) Roberts said that the district court must render the appropriate relief without delay… create more delays, that’s the overall strategy.”

It’s hard to say what the Texas Supreme Court can do about the case, but abortion providers worry it’s a process that could prolong the legal limbo they’re in. encountered. It also provides an opportunity for state lawmakers to amend the law in a way that clearly Seago said it intends to do that would remove medical licensing officials from potential challenge.

Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, said the delay is harming pregnant Texas patients who are unable to access abortions after about six weeks of pregnancy. pregnancy, a time when many people don’t even know they’re pregnant.

“And it puts providers in the terrible position of denying patients the care they deserve, which we are fully trained to provide,” she said. “It is we who are looking these people in the eye and saying no. The legislators are not seeing the impact this has on real people.”

While it seems likely 5th Street will rule sending the case to the Texas Supreme Court, Jones offered another option that couldn’t be better for abortion providers. She asked if the court should wait to hear the case until the U.S. Supreme Court considers Dobbs v. Jackson, another abortion case on their record.

The high court heard arguments in Dobbs, regarding Mississippi’s 15-week abortion ban, in December. Those arguments indicate that there may be enough court support to substantially undermine it. tell or completely overturn the Roe v. Wade case, the 1973 case that established constitutional protection for abortion.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans – and interacts with them – on public policy, politics, government, and statewide issues. Texas Abortion Law: Federal Court of Appeals Likely to Extend Months or More Before Case Is Resolved

Dais Johnston

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