Telling the Supreme Court that Texas officials “are not entitled to a second bite at the apple,” a group of abortion providers asked the justices to order a federal court of appeals to send their challenge to Texas’s restrictive anti-abortion law promptly back to the friendlier confines of a federal district court in that state. The case is currently in the conservative U.S. Court of Appeals for the 5th Circuit, which has scheduled oral argument for Friday, but the providers argue that allowing the case to remain in the court of appeals will “derail indefinitely the timely resolution of the merits of the case” and “compound the ongoing harm to pregnant Texans” from the law, which has been in effect since Sept. 1.
The law at the center of the case, S.B. 8, prohibits almost all abortions after about six weeks of pregnancy. On Dec. 10, the Supreme 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 as defendants in their lawsuit. The court also left S.B. 8 in place while the case continues 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.
On Dec. 13, the providers asked the justices to formally issue their judgment and send the case back to U.S. District Judge Robert Pitman, who in October granted a request from the Biden administration to put the law on hold. (The 5th Circuit quickly reversed Pitman’s decision.) Three days later, the court agreed to put its ruling into effect immediately, but it rejected the providers’ plea to send the case back to Pitman, instead returning the dispute to the 5th Circuit.
The state licensing officials asked the 5th Circuit to seek a ruling from the Texas Supreme Court on whether the officials have the power to enforce S.B. 8. In the alternative, they asked the court of appeals to set a briefing schedule for what they characterized as the remaining issues in the case – for example, whether the providers have a right to sue the licensing officials. On Dec. 27, a divided three-judge panel issued an order scheduling oral argument on the officials’ request for Jan. 7. Legal experts described the decision to hear oral argument in these circumstances as highly unusual.
The providers came back to the Supreme Court on Monday, asking the justices to intervene and order the court of appeals to return the case to Judge Pitman. When the Supreme Court grants review before the court of appeals weighs in, as it did in this case, the providers contend, the Supreme Court’s decision effectively takes the place of the lower court’s ruling. And here, the providers reason, a majority of the Supreme Court agreed that the providers’ case against the licensing officials could move forward, so there is nothing left for the 5th Circuit to do but send the case back to the district court.
The providers stress the need for the Supreme Court to step in because of the “extraordinary, urgent circumstances of this case.” “For more than four months,” they emphasize, “thousands of Texans have been unable to exercise their federal constitutional right to terminate their pregnancy.” Those who can afford to do so are traveling to other states, they note, causing backlogs at clinics there, while others are having to continue “pregnancy and childbirth against their will.” They urge the justices to fast-track their request, suggesting that the Texas officials be required to file their opposition by Wednesday.
This post is also published on SCOTUSblog.