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Abortion clinics' request rejected

Case sent to Texas high court by The Washington Post | January 18, 2022 at 3:34 a.m.

The nation's most restrictive abortion law remains in effect in Texas after a federal appeals court Monday rejected a request from abortion providers to immediately return their legal challenge to a trial court judge who had previously blocked the measure.

In a 2-to-1 decision, the U.S. Court of Appeals for the 5th Circuit temporarily transferred the case to the Texas Supreme Court, a step requested by state officials that could leave the dispute in limbo for months.

The court's majority said its decision was "consistent" with the Supreme Court's ruling last month and necessary to avoid "creating needless friction" with the state court over interpretation of the Texas law.

Abortion providers had warned the 5th Circuit that any diversion from the district court in Austin would continue to restrict access to the procedure after about six weeks into pregnancy, a point at which many women do not yet realize they are pregnant.

The latest development follows a U.S. Supreme Court decision that left the ban in place while allowing providers to challenge the law's unusual enforcement structure.

The high court has twice refused to block the Texas law, which makes no exception for rape or incest and is at odds with the landmark Roe v. Wade decision guaranteeing a right to abortion before viability, usually around 23 weeks.

In effect since Sept. 1, the law has forced Texans to cross state lines to terminate pregnancies after the six-week mark.

The dissenting judge, Stephen Higginson, said Monday that his colleagues were second-guessing the Supreme Court and allowing Texas officials to relitigate an issue they had already lost.

"This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court," wrote Higginson, a nominee of President Barack Obama.

The Supreme Court is separately considering a Mississippi law that bans most abortions after 15 weeks. The court's conservative justices signaled at oral argument that they were open to overturning Roe, a nearly 50-year old decision.

Justice Neil Gorsuch, who wrote the majority opinion in the Texas case, sent the case back to the 5th Circuit as requested the state. Texas officials then asked the 5th Circuit to temporarily transfer the case to the Texas Supreme Court to interpret a provision of state law before the case is sent to the district court.

The Texas law was designed to avoid judicial scrutiny by empowering private citizens, rather than state officials, to enforce the ban. Any member of the public can sue any person who performs an abortion or helps someone get an illegal abortion.

In its December opinion, the U.S. Supreme Court said the legal challenge could continue only against Texas licensing officials who oversee nurses, physicians and pharmacists.

Texas officials said the state's high court must first determine whether those licensing officials in fact have the enforcement power the court suggested to discipline medical professionals who violate the six-week abortion ban. Texas told the 5th Circuit that state officials believe the law prevents licensing officials from enforcing the ban either directly or indirectly, and that the justices did not definitively resolve whether abortion providers have legal grounds to sue.

The 5th Circuit agreed, saying it must defer to the state court's definition.

"This court reasonably seeks the Texas Supreme Court's final word on the matter," wrote Judge Edith Jones, a nominee of President Ronald Reagan, who was joined by Judge Stuart Kyle Duncan, a nominee of President Donald Trump.

Abortion providers say the move to state court is just a delaying tactic to leave the case in limbo and out of the hands of U.S. District Judge Robert Pitman in Austin.

Julie Murray, an attorney with Planned Parenthood Federation of America said: "People in Texas have been stripped of their constitutional right to abortion for more than four months now -- and pregnant Texans are needlessly suffering with no end in sight. We call on the U.S. Supreme Court to enforce its order and send this case back to the district court where it belongs."

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