Federal Appeals Court sends abortion case to Texas Supreme Court

The move means it will be weeks and perhaps months before the case goes back to a federal trial judge, who has ruled against the law in the past—if the case does return to that judge.

Previously, the US Supreme Court dismissed most of the clinics’ federal lawsuits and judges where 8-1 That lawsuit could proceed against a narrow group of state licensing officials. The matter then went to the 5th circuit. Now the federal appeals court is asking the Texas Supreme Court to determine the role those licensing officers play in enforcing the abortion ban and whether federal lawsuits can proceed against them.

The clinics strongly opposed the move to send — or “certify” — the case to the Texas Supreme Court. The move was requested by defenders of Texas law.

Explaining why the majority of the 5th Circuit panel—Circuit Judges Edith Jones and Kyle Duncan—were sending the case to the Texas Supreme Court, Jones wrote that the US Supreme Court, in its opinion, had used hedged language, determining There may be a case against the Licensing Officers

Justice’s “argument at least reflects the uncertainty and need to defer state law,” Jones wrote, referring to the relevant section of Justice Neil Gorsuch’s opinion, where he was joined by other conservatives in court.

US Circuit Judge Stephen Higginson disagreed with the 5th Circuit’s order, writing that it was giving defendants a “second bite” on an issue they had already lost in the US Supreme Court.

Higginson wrote, “This further, without time limit, second-estimated redundancy, deepens my concern that justice delayed is justice denied, hindering the relief granted by the Supreme Court here.”

The clinic also has a petition in the US Supreme Court asking the judges to intervene in the case again, seeing how the 5th Circuit has handled it. The judges have yet to act on that petition.