Abortion Providers Say Appeals Court Is Slow-Walking Texas SB 8 Lawsuit, Petition Supreme Court To Intervene

Topline

Abortion providers asked the Supreme Court Monday to consider their lawsuit challenging Texas’ near-total ban on abortion for a third time, in hopes of speeding up the case after a conservative appeals court refused to immediately send it back to a lower court more likely to rule in the providers’ favor.

Pro- and anti-abortion rights demonstrators rally outside the U.S. Supreme Court on November 01, … [+] 2021 in Washington, DC.

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Key Facts

The petition asks the Supreme Court to order the 5th Circuit Court of Appeals to send the case back to a lower district court.

The Supreme Court ruled in December that the abortion providers have the right to sue some defendants named in their lawsuit challenging Texas’ Senate Bill 8, which bans nearly all abortions after six weeks and allows private citizens to bring lawsuits against anyone who “aids or abets” an abortion.

The high court then sent the case back to the 5th Circuit, which is widely considered one of the most conservative-leaning courts in the country and previously ruled against a separate SB 8 challenge brought by the Biden Administration.

Rather than sending the challenge back to the district court—which is more likely to rule in abortion providers’ favor, as it already briefly blocked the law once, and would allow the case to move through the court system faster—the 5th Circuit instead scheduled a hearing to consider whether the case should be sent instead to the Texas Supreme Court, which would then determine how the case moves forward.

The American Civil Liberties Union, one of the organizations representing the abortion providers, said in a statement the 5th Circuit is “needlessly delaying” the case by doing so, and the providers note in their petition the appeals court’s actions could “derail” the proceedings “indefinitely” and harm Texans seeking abortions by keeping the law in place.

Crucial Quote

“Absent intervention by the Court, the Fifth Circuit is poised to entertain questions already decided by the Court…and delay further resolution of this case in the district court by at least weeks, and potentially months or more,” the abortion providers told the Supreme Court.

What To Watch For

The 5th Circuit has scheduled its hearing in the case for Friday morning. The petitioners have asked the Supreme Court to request a response from Texas officials by Wednesday as a result, which would allow the high court to potentially rule before the Friday hearing.

Tangent

Even if the case is sent back to the lower court and it rules in the abortion providers’ favor, it won’t fully block SB 8. The Supreme Court limited the lawsuit’s scope in its December ruling, stipulating the abortion providers can only sue medical licensing officials tasked with punishing doctors and nurses that perform abortions, but not state judges or other state officials who also play a role in enforcing the law.

Key Background

Monday’s Supreme Court petition is the latest twist in litigation challenging SB 8, which has so far avoided being struck down in court like other state abortion bans because of its lawsuit enforcement mechanism. The abortion providers first asked the Supreme Court to rule on the law before it took effect on September 1, and the justices decided to leave it in place because they ruled it was too soon to bring a legal challenge. The case was then brought back to the court a second time in September—also arguing the 5th Circuit was slow-walking the case—and the Supreme Court heard oral arguments on that lawsuit and the Biden Administration’s challenge. The court’s 8-1 decision to let the abortion providers sue only some defendants was viewed by abortion rights advocates as a narrow win at best, as it severely limited the lawsuit, and the conservative-leaning court dismissed the federal government’s lawsuit and declined to rule in the case.

Abortion Providers Say Appeals Court Is Slow-Walking Texas SB 8 Lawsuit, Petition Supreme Court To Intervene — Again