“Maybe we should sit on this until the end of June,” Judge Edith Jones said Friday, citing a separate challenge to Roe v. Wade who is already in superior court.
“By that time, it is very possible that the hot potato is in the seat of the Supreme Court,” he added.
The clinics say the case should be sent to US District Court Judge Robert Pitman, who blocked the law last. October in a separate case brought by the Justice Department, only for that order to be frozen by the Fifth Circuit.
The providers’ request got no apparent traction with two of the three appeals panel judges. The third judge, the only Democratic appointee on the panel, had already said he would grant the request in a dissent criticizing the “unacceptable delay in asserting the constitutional rights of Texas women in federal court.”
Instead, the Republican-appointed majority of the appeals panel appears prepared to grant a request from Texas and the other legal advocates of the ban on sending the case to the Texas Supreme Court. Advocates say that before the federal lawsuit moves forward, the Texas Supreme Court must weigh in on issues of state law that they say were left unresolved by the US Supreme Court decision last month.
Jones, appointed by President Ronald Reagan, appeared to agree. He warned that federal courts “will lay eggs in their faces” if the Texas State Supreme Court interprets state law in a way that does not match the way federal judges were handling the case.
He also raised the idea that the Fifth Circuit could sit on the case until the US Supreme Court renders its decision in a separate abortion case it heard last month, where conservative justices can make significant changes to the precedent. court that protects the right to abortion. .
Meanwhile, Circuit Judge Kyle Duncan, appointed by President Donald Trump, questioned whether there was really any urgency in moving the federal lawsuit forward, given the ways the US Supreme Court had already narrowed the clinics case.
Four months and counting that most abortions have been illegal in Texas
Legal matters before the 5th Circuit are extremely technical. But what is at stake is whether abortion providers will have any chance in the coming months to obtain an order that at least partially blocks the application of the law.
For more than four months, a law has been in force that bans most abortions in the second most populous state in the country. Given the legal risks involved in violating the ban, which bans abortions when fetal heart activity is detected, clinics have been unwilling to offer the procedure in those cases, a point around six weeks of pregnancy, before many women they notice ”. you are pregnant.
So far, the unique enforcement mechanism of the Texas ban has allowed it to face Supreme Court precedent protecting abortion rights before the fetus is viable, a point around 23 weeks of pregnancy when the fetus can survive outside the womb.
When the U.S. Supreme Court reviewed the case last year, it said the clinics could not obtain federal court orders preventing state court officials from accepting those claims. But eight of the justices said their lawsuit could proceed against a select group of state licenses that could, in theory, revoke providers’ medical licenses for violating the six-week ban.
On Friday, Duncan’s comments clarified why the Supreme Court decision had left clinics with little hope of effective relief in federal court of law, known as SB8.
“The main injury you are trying to repair here is the threat that the SB8 lawsuits will chill the provision of abortion services by your clients, right?” Duncan told Marc Hearron, a senior attorney for the Center for Reproductive Rights who represents providers.
“So how could an injunction against these licensing officials correct that?” Duncan asked, then added that given that reality, he was struggling to see the urgency of moving quickly with the federal lawsuit.
A Ticking Clock in a Separate Supreme Court Case That Could Strengthen Texas Ban
In the background of these procedural maneuvers is an even greater threat to abortion rights not just in Texas, but across the country.
Last month, the Supreme Court heard a separate abortion case in Mississippi that gives the conservative majority a chance to eviscerate, and perhaps completely reverse, the current precedent protecting pre-viability abortions.
The idea of waiting until a summer ruling on the Mississippi and Roe v. Wade provoked a vehement rebuff from the clinics’ attorney, who called him “completely inconsistent” with how quickly the Supreme Court handled the Texas case so far.
Even the Texas attorney, Assistant Attorney General Natalie Thompson, acknowledged that Texas is not asking for such a delay, under persistent questioning by Judge Stephen Higginson, who was appointed by President Barack Obama.
Nerves were strained among the judges as the 45-minute hearing progressed. The Republican-appointed judges not only expressed repeated dissatisfaction with the way Hearron, the clinics attorney, was handling their questions, but exchanged shots with Higginson.
Jones chimed in on a tough line of questions Higginson had for the Texas attorney: “Normally, this court is not litigating on behalf of one side or the other,” Jones said.
Higginson asked Thompson, the Texas attorney, if there had been any unfair questions for her. She said no and he continued with his questions.