The potential detour for the lawsuit challenging the Texas abortion law and what it means

Madlin Mekelburg
Austin American-Statesman

The 5th U.S. Circuit Court of Appeals on Friday will hear oral arguments in an ongoing legal challenge to Texas’ six-week ban on abortion and decide whether to ask the Texas Supreme Court to resolve a central question in the lawsuit, a highly unusual move that could significantly delay a resolution in the case.

The unprecedented nature of the Texas abortion ban has resulted in complicated legal battles playing out across local, state and federal courtrooms. These cases have fueled national debates about access to abortion, the sanctity of constitutional rights and when states can be sued over their laws.

All the while, providers in Texas have largely stopped performing abortions.

“What makes this so dramatic and significant in this case is that, so long as Roe and Casey are still the law of the land, (Senate Bill 8) is still unconstitutional,” said Steve Vladeck, a University of Texas School of Law professor, referencing two landmark Supreme Court decisions that establish a constitutional right to abortion. “The urgency here is the reality that every day, private people in Texas are being deprived of their constitutional rights.”

More:Supreme Court allows clinics to challenge Texas' abortion law, lets Senate Bill 8 stand

The Supreme Court declines to inter

The U.S. Supreme Court has, on three separate occasions, declined to intervene and block the law from being enforced, including in December, when justices permitted a legal challenge to the law to advance through a lower court in Texas but kept the ban in effect.

The law employs a unique enforcement mechanism that lets any private individual sue abortion providers or people who aid and abet an abortion past six weeks gestation. Successful litigants can collect at least $10,000.

This mechanism has made it difficult for providers to seek relief from the courts. Attorneys for Texas argue that the state and state officials cannot be sued as a means of blocking enforcement of the law because the state is not responsible for enforcing the law.

Abortion providers had initially sued several state officials in an effort to block the law, but a divided U.S. Supreme Court said the bulk of those challenges should be dismissed — except for one filed against medical licensing officials.

More:How Texas' abortion law, the nation's most restrictive, got to this point

The providers had hoped the narrowed case would be returned to a federal district courtroom in Austin friendly to their plight, but justices instead sent it to the 5th Circuit, which is considered one of the country's most conservative appellate courts.

“It’s worth acknowledging the elephant in the room, and that is that it is no secret that the 5th Circuit is incredibly hostile to abortion,” Vladeck said. “There is a not unreasonable concern that the court of appeals will manifest that hostility in procedural devices.”

Procedural mechanisms

Raffi Melkonian, a Houston attorney who practices before the 5th Circuit, said typically, if the Supreme Court wants to return a case to a District Court, justices issue a mandate to the circuit court directing them to remand the case to the District Court and the circuit court complies within days of receiving the mandate.

But in this case, attorneys for Texas asked that the case first be certified to the Texas Supreme Court to determine whether the medical licensing officials can be sued by the providers.

In a split decision, the 5th Circuit decided to hear oral arguments on the issue before deciding whether to certify the case to the Texas Supreme Court or remand it to the District Court in Austin.

More:As Supreme Court weighs Texas abortion law, opposing sides focus on its impact

Melkonian said the request by the state and the 5th Circuit's decision to hear oral arguments have created highly unusual circumstances that will delay progress in the case.

In response, abortion providers have again turned to the U.S. Supreme Court and asked the justices to stop Friday’s oral arguments and direct the case back to the District Court, arguing that allowing the case to remain before the 5th Circuit will “delay further resolution of this case in the district court by at least weeks, and potentially months or more."

“Allowing the court of appeals to flout this Court’s mandate and derail indefinitely the timely resolution of the merits of this case by the District Court would render this extraordinary solicitude effectively meaningless and compound the ongoing harm to pregnant Texans under SB 8,” the request reads.

Constitutional rights

Abortion providers have largely stopped performing procedures banned by the law since it went into effect, opting instead to direct people to other resources or clinics across state lines. Texans reportedly have traveled to abortion providers in neighboring states in high volumes since the law was passed.

Abortion opponents have celebrated the declining number of abortions occurring in Texas, pointing to the dramatic drop in the frequency of the procedure as evidence that SB 8 is working as intended.

“Texans are being deprived of their constitutional rights, and every day, a larger number of them are being permanently deprived of them,” Vladeck said. “The notion that we are going to spend weeks or months pingponging this case between different courts while this right is going unvindicated, I think would be a lot more offensive to a lot more people if it weren’t abortion.”

As the court battles over the Texas law continue, the foundation of the argument against the law could crumble, depending on how the U.S. Supreme Court handles a challenge to a Mississippi law that bans abortion after 15 weeks of pregnancy.

More:How the Supreme Court's ruling on a Mississippi abortion law will affect Texas

Melkonian said Texas abortion providers have to be prepared for an opinion that could undermine past landmark decisions establishing that constitutional right.

“They’ve got to hope that the (Mississippi) case is not as bad for them as it seems from the oral arguments,” he said. “If that goes the wrong way for them, then all this ancillary litigation around SB 8 is irrelevant because Texas doesn’t have to use these mechanisms, it could just ban abortion.”

Texas is one of several conservative states that has adopted a so-called trigger ban, which would criminalize abortion to the extent permitted by the Supreme Court. The law would take effect 30 days after a relevant ruling from the court and would not require the involvement of the Legislature or any other official to be implemented.

Similar to SB 8, the law would not include exceptions in cases of rape or incest and would only permit abortion under rare circumstances, including when a woman’s life is in danger. The law would not rely on private lawsuits for enforcement. Instead, abortion providers who perform illegal abortions could be charged with a second-degree felony and face fines of at least $100,000.

Protesters rally at the Capitol in October against the new state law banning abortions after six weeks of pregnancy.