Federal appeals court keeps Texas abortion ban in place, sends case to state supreme court

An exam room at the Planned Parenthood South Austin Health Center is shown following the U.S. Supreme Court decision striking down a Texas law imposing strict regulations on abortion doctors and facilities in Austin, Texas, U.S. June 27, 2016. | (Photo: Reuters/Ilana Panich-Linsman)

A federal appeals court has kept Texas’ heartbeat abortion ban in place and sent the lawsuit against the legislation to the Republican-controlled state supreme court, a move celebrated by pro-life activists and opposed by abortion-rights proponents.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 on Monday to send abortion clinics’ challenge against the Texas Heartbeat Act passed last year to the Texas Supreme Court, which will likely allow the law to remain in effect for months before a ruling is handed down. 

Circuit Judge Edith H. Jones, a Reagan appointee, authored the majority opinion stating that “the federal courts are bound by an authoritative determination of state law by the state’s highest court.”

“Here, there is a possibility that federal courts could declare S.B. 8 constitutionally infirm even though our conclusions might be based entirely on a faulty understanding of Texas law,” continued Jones.

“To avert creating needless friction with a coequal sovereign in our federal system, this court reasonably seeks the Texas Supreme Court’s final word on the matter.”

Circuit Judge Stephen A. Higginson, an Obama appointee, dissented. He believes that by sending the case to the state supreme court, the panel is going against an order by the U.S. Supreme Court.

“S. B. 8 and its defenders have challenged Supreme Court authority, first by deliberately nullifying a constitutional right expounded by the Court and now, when checked by that Court, by convincing us, an inferior federal court duty-bound to apply a Supreme Court holding, instead to question that holding,” argued Higginson.

Senate Bill 8 was signed into law last May by Gov. Greg Abbott. The law, which went into effect last September, prohibits most abortions once a baby’s heartbeat can be detected, usually around six weeks into a pregnancy.

The law is unique because it allows private citizens to take civil action against abortion providers or anyone else who helps procure an illegal abortion, with a financial reward for successful suits.

The 5th Circuit’s decision presents concerns for abortion clinics and supporters since the Texas Supreme Court comprises nine Republican justices. 

The pro-life group Texas Right to Life, which supports the law, celebrated Monday’s panel decision, calling the decision “great news.”

“This is great news for Texas because such action is more likely to ensure a just and favorable ruling, compared to that which could be expected from a pro-abortion federal district judge, to whom the abortion industry asked to send the case,” stated the group.

“Beyond this, sending the lawsuit to the Supreme Court of Texas is appropriate because the only defendants left in the case are state agencies. Most exciting of all is that the Texas Heartbeat Act has withstood another court decision and is continuing to save an estimated 100 preborn lives every day.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, a pro-choice advocacy organization, said in a statement that the panel had “defied a Supreme Court ruling and delayed a reckoning on S.B. 8.”

“As a result, Texans will continue to have to travel hundreds of miles to access abortion care, and those without means to do so will be forced to continue their pregnancies,” said Northup. “There is now no end in sight for this injustice that has been allowed to go on for almost five months.”

S.B. 8 has been the subject of extensive litigation, with pro-choice groups and the Biden administration wanting the law struck down as unconstitutional.

Last year, the U.S. Supreme Court allowed the Texas law to take effect. Last December, the nation’s high court allowed some lawsuits against the ban to continue but refused to block the law.

The justices also rejected an appeal by the Biden administration against the law, labeling it “improvidently granted,” or a request that shouldn’t have been brought before the court. 

Follow Michael Gryboski on Twitter or Facebook

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