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Fifth Circuit sets hearing date in Texas abortion case

A three-judge panel will hear oral arguments Jan. 7 over Texas’ six-week abortion ban, the most restrictive in the country, after the Supreme Court allowed providers to move forward with their lawsuit.

(CN) — The Fifth Circuit is set to hear oral arguments next month in a case against Texas’ near-total abortion ban. 

In an order released Monday evening, the New Orleans-based appeals court set Jan. 7 as the date a three-judge panel will hear Whole Woman’s Health v. Jackson to decide if it should ask the Texas Supreme Court for guidance on whether state officials are the correct defendants in the challenge to the restrictive abortion law's constitutionality.

“The court has decided that oral argument is appropriate before ruling on the state’s motion to certify or alternate motion to set a briefing schedule, and the response thereto,” wrote court clerk Lyle Cayce.

He added, "Without limiting the parties’ discretion, the court is particularly interested in questions concerning justiciability as to the defendants remaining in this suit, and the necessity and appropriateness of certification to the Texas Supreme Court."

In an eight-page dissenting opinion, U.S. Circuit Judge Stephen Higginson said that the court should remand the case to the district court instead of going ahead with oral arguments. 

“I would preliminarily enjoin the defendant licensing officials from enforcing S. B. 8 against the plaintiffs, in accordance with the Supreme Court’s near unanimous holding that 'sovereign immunity does not bar the [plaintiffs’] suit against these named defendants at the motion to dismiss stage,'" wrote Higginson, a Barack Obama appointee.

Higginson will be joined on next month's three-judge panel by U.S. Circuit Judges Edith H. Jones and Kyle Duncan, appointed by Ronald Reagan and Donald Trump, respectively.

The Fifth Circuit's scheduling order comes nearly three weeks after the U.S. Supreme Court ruled to allow abortion providers’ challenge to the law to continue, remanding the case back to the appeals court to certify whether state licensing officials have the authority to enforce the law. The court also declined to enjoin enforcement of the law while the challenge continues.

“The court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute,” Justice Neil Gorsuch, a Trump appointee, wrote for the high court. “We conclude that such an action is permissible against some of the named defendants but not others.” 

The Fifth Circuit previously overturned a federal judge's order blocking the law from being enforced. In early October, U.S. District Judge Robert Pitman, an Obama appointee, ruled that the law unconstitutionally restricts access to an abortion. The appellate court unanimously granted the state's request to overrule Pitman's order days later.

Senate Bill 8, also known as the Texas Heartbeat Act, bans abortions once a fetal heartbeat is detected, approximately six weeks into pregnancy. While past attempts to limit abortion access by Texas and other Republican-controlled states were met with successful court challenges, SB 8 has avoided such a fate through its enforcement mechanism. 

Instead of the state enforcing the ban, the law gives private citizens the right to bring lawsuits against anyone who aids and abets in an illegal abortion, making challenges to it much more complicated.

Citizens that bring suit against an abortion provider or someone who helps a person get an abortion could be rewarded a minimum of $10,000 and attorneys fees. The threat of costly litigation and possible bankruptcy has successfully brought clinics that provide the procedure to a standstill and many Texas residents seeking to end a pregnancy traveling out of state.

The Whole Woman’s Health case is not the only pending legal challenge to the Texas abortion law. A state judge recently ruled that the law is unconstitutional. That case was filed by abortion clinics across the state against the anti-abortion group Texas Right to Life. The abortion providers are seeking to prevent the group from enforcing the law. 

State District Court Judge David Peeples ruled in his opinion that the law violates both the U.S. and Texas Constitution, but he did not go as far as to issue an injunction enjoining the law's enforcement. He did, however, block Texas Right to Life from continuing with lawsuits against the clinics. The group has said it plans to appeal the ruling.

Oral arguments in the Fifth Circuit case will begin at 9 a.m. on Friday, Jan. 7, 2022, in New Orleans.

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Categories / Appeals, Health, Law

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