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Supreme Court refuses to speed up challenge to Texas abortion law

The high court refused to send a challenge to the most restrictive abortion ban in the country to a district court to move forward, allowing a Texas Supreme Court detour to continue.

WASHINGTON (CN) — In an apparent 6-3 decision, the Supreme Court late Thursday denied Texas abortion providers' request to speed up their litigation against a law banning almost all abortions in the state by sending it back to a district judge who once blocked enforcement of the law. 

Abortion providers asked the justices to force the Fifth Circuit to send the case back to the district court at the beginning of the month after the appeals court seemed to be slow-walking their challenge to the Texas Heartbeat Act, also known as Senate Bill 8, which prohibits abortions before most women know they are pregnant. The law directly conflicts with the Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v. Casey but is enforced by private citizens instead of government officials, creating legal hurdles to challenging the ban. 

The majority offered no opinion on the order. Justices Stephen Breyer and Sonia Sotomayor both wrote dissents, both of which Justice Elena Kagan joined. 

While Sotomayor said she had some hope that the district court would be able to offer relief following the high court’s decision to allow the challenge to move forward on a narrow ground, she was wrong. 

“Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory,” the Barack Obama appointee wrote. 

Sotomayor did not mince words in her view of the majority’s decision and the Texas law.

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote. “I will not stand by silently as a State continues to nullify this constitutional guarantee.” 

Since S.B. 8 was enacted in September, the abortion providers have tried to block its enforcement to no avail. The narrow ruling from the justices in December allowed the law to stay in place while proceeding against only one of the defendants abortion providers wished to pursue. Those with authority over medical licenses could be sued but not judges and clerks of the state court system. 

Following the Supreme Court’s decision, the abortion providers asked the justices to fast-track the case by sending it back to the district court on an expedited basis instead of waiting 25 days. The justices agreed to speed up the case on that occasion but sent it to the Fifth Circuit instead. 

The Fifth Circuit decided to set oral arguments over whether the New Orleans-based appeals court should send the case to the state high court, which led to the ruling to further delay the litigation. 

The abortion providers’ challenge now sits with the Texas Supreme Court — of which every member is Republican — where earlier this week it was asked to decide the same issue already decided by the Supreme Court: whether abortion providers named the right defendants in their challenge to the law. 

Breyer’s dissent says the Fifth Circuit ignored the Supreme Court’s judgment, leaving an unconstitutional ban in effect. His brief dissenting opinion allowed Sotomayor to be the mouthpiece for the liberal’s grievances toward the ruling. 

“The Court of Appeals ignored our judgment,” the Bill Clinton appointee said. “It kept the case and certified questions about the licensing-official defendants to the Texas Supreme Court. As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over four months. For these reasons, as elaborated by Justice Sotomayor, I would grant the writ petitioners seek.” 

Sotomayor noted that this was the fourth time the court refused to protect pregnant Texans. She said while her colleagues may be able to look away, she cannot. 

“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Sotomayor wrote. 

Stating that the Fifth Circuit should have immediately sent the case back to the district court, the dissent notes the Texas Supreme Court is now deciding a question the nation’s highest court has already spoken on. 

“Texas moved to certify to the Supreme Court of Texas the question this Court had just decided: whether state licensing officials had authority under state law to enforce S. B. 8,” Sotomayor wrote. “Texas never asked the Fifth Circuit to certify this question during its first pass through that court, nor did it ever ask this Court to do so.” 

Abortion providers expressed exasperation over the ruling and continued fight to guarantee abortion rights for Texans. 

“Make no mistake: Texans are still suffering every single day under this law. It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said the court’s decision has allowed copycat bans to go in place across the country and urged the Senate to pass the Women’s Health Protection Act. 

“Texans have been without abortion access for almost five months now, and there is no end in sight because the Supreme Court has done nothing to stop this unconstitutional ban,” Northrup said in a statement.

She added, “It is allowing the state of Texas to deprive people of a constitutional right. Seven other states have already introduced copycat bans now that the Court has let Texas get away with this ploy. It’s time for the Senate to take action and pass the Women’s Health Protection Act, which has already passed the House and has the Biden administration’s support.”

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