The Supreme Court on Thursday afternoon rejected abortion providers’ request to order a federal appeals court to send their challenge to a Texas law banning almost all abortions in the state promptly back to the friendlier confines of a federal district court in that state. The providers argued that failing to do so would “derail indefinitely the timely resolution of the merits of the case” and “compound the ongoing harm to pregnant Texans under” the law, which has been in effect since Sept. 1, but a majority of the court turned aside their plea without comment. Three justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicated that they would have granted the providers’ request.
The law at the center of the case, S.B. 8, prohibits almost all abortions after about six weeks of pregnancy, and it relies on private citizens to enforce the ban through lawsuits against anyone suspected of performing or aiding an abortion. On Dec. 10, the Supreme Court ruled that the providers’ constitutional challenge to the law 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 challenge. The justices 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 put the law on hold in a short-lived decision that was quickly overruled by the conservative U.S. Court of Appeals for the 5th Circuit. On Dec. 16, the Supreme Court rejected the providers’ plea to send the case back to Pitman, instead returning the dispute to the 5th Circuit.
The state licensing officials then asked the 5th Circuit to seek a ruling from the Texas Supreme Court on whether the officials have any power to enforce S.B. 8. In the alternative, they asked the 5th Circuit 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.
Telling the justices that Texas officials “are not entitled to a second bite at the apple,” the providers came back to the Supreme Court on Jan. 3, again 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 contended, the Supreme Court’s decision effectively takes the place of the lower court’s ruling. And here, the providers reasoned, 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 stressed the need for the Supreme Court to step in because of the “extraordinary, urgent circumstances of this case.” “For more than four months,” they emphasized, “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 noted, causing backlogs at clinics there, while others must continue “pregnancy and childbirth against their will.” They urged the justices to fast-track their request, suggesting that the Texas officials be required to file their opposition – which would otherwise be due on Feb. 3 – in just two days.
The justices did not direct the Texas officials to move quickly, and the 5th Circuit heard oral argument as scheduled on Jan. 7. Earlier this week, the 5th Circuit granted the state officials’ request to seek a ruling from the state supreme court on the scope of the power given to them by state law. Judge Stephen Higginson dissented from the court’s order, complaining that the court of appeals was “only causing further delay, indeed delay without specified end.”
In a one-sentence order on Thursday afternoon, the justices turned down the providers’ request, ensuring that the litigation will remain at the Texas Supreme Court and not return to the federal district court for the foreseeable future. Breyer penned a one-page dissent, joined by both Sotomayor and Kagan, in which he explained that he would grant the providers’ request because the 5th Circuit had “ignored” the Supreme Court’s instructions in its Dec. 10 opinion. “As a result,” Breyer noted, “an unconstitutional 6-week abortion ban remains in effect in Texas — as it has for over four months.”
The main dissent, however, came from Sotomayor. In a seven-page opinion joined by both Breyer and Kagan, Sotomayor criticized the 5th Circuit’s decision to seek a ruling from the Texas Supreme Court as a “transparent effort” to stave off review of the merits of the providers’ challenge. Indeed, she observed, one of the judges who heard oral argument in the case suggested that the court of appeals could “just sit on this until the end of June,” when the Supreme Court could issue a decision (in the term’s other high-profile abortion case) overruling its landmark rulings in Roe v. Wade and Planned Parenthood v. Casey. By rejecting the providers’ request to return the case immediately, Sotomayor lamented, the Supreme Court “accepts yet another dilatory tactic by Texas.” Therefore, she continued, the federal district court “will remain powerless to address S.B. 8’s unconstitutional chill on abortion care, likely for months to come.” Although her colleagues in the majority “may look the other way,” she wrote, “I cannot.”
This post is also published on SCOTUSblog.