The Supreme Court on Thursday morning agreed to immediately put into effect last week’s ruling in the battle over a Texas law banning almost all abortions in the state. But the justices rejected a request from abortion providers to send the case back to the friendlier confines of a federal district court in Texas, instead returning the case to the conservative U.S. Court of Appeals for the 5th Circuit – which could mean that the providers’ surviving claims may not proceed for some time, if at all.
Thursday’s order was the latest chapter in the challenge by abortion providers to S.B. 8, which bans virtually all abortions after about six weeks of pregnancy. On Dec. 10, a divided court ruled that the providers’ lawsuit can go forward against a group of state medical licensing officials, although not against the state-court judges and clerks whom the providers had also named in their lawsuit. The court also left the ban in place while the challenge moves forward in the lower courts, even though it conflicts with current Supreme Court precedent establishing a constitutional right to an abortion up until the point at which the fetus can survive outside the womb.
Under the court’s normal procedures, the ruling would not have gone into effect for at least 25 days after the opinion was released. On Monday, the providers asked the justices to formally issue their judgment and immediately send the case back to U.S. District Judge Robert Pitman, who in October granted the Biden administration’s request to put the law on hold (a decision that was quickly reversed by the 5th Circuit). They stressed that since the law went into effect on Sept. 1, “thousands of Texans have been unable to exercise their federal constitutional right to terminate their pregnancy.”
The state licensing officials urged the court to send the case back to the 5th Circuit, on the normal schedule. The officials told the justices that they plan to ask the 5th Circuit to seek a ruling from the Texas Supreme Court on an important question in the case – whether, under Texas law, they can play any role in enforcing S.B. 8 in the first place. Sending the case back to the district court now, they wrote, would rob them of their ability to seek the state court’s views.
In a short order signed by Justice Neil Gorsuch, the author of last week’s opinion, the court granted the providers’ request to fast-track the transmission of the opinion and the judgment. But the court denied the request to send the case directly back to Pitman. Instead, the case will return to the court of appeals, which (among other things) in October granted the state’s request to reinstate S.B. 8 while it appealed Pitman’s order putting the law on hold and denied an earlier request from the providers to expedite their appeal.
This post is also published on SCOTUSblog.