Appeals court grapples over next steps in Texas abortion law case

A federal appeals court on Friday grappled with how to proceed with a legal challenge against the controversial Texas abortion law known as S.B. 8 after the Supreme Court declined to strike it down but allowed lawsuits against it to move forward.

During a hearing, a three-judge panel for the 5th Circuit Court of Appeals heard arguments from lawyers for the state and abortion providers challenging the law, who disagree on procedural issues over the next steps for the case.

Two of the three judges, both appointed by Republican presidents, appeared sympathetic toward the state’s argument that the case should be sent to the Texas Supreme Court for further litigation over the law. Abortion providers argue that the case should be returned to the federal district court and have even asked the Supreme Court to intervene to prevent the 5th Circuit from stalling the case.

“Any further delay would be inconsistent with how the Supreme Court has handled this case,” Marc Hearron, an attorney for the plaintiffs, said during Friday’s hearing.

Judge Kyle Duncan responded by saying that the Supreme Court did not outline how the case should proceed.

“I really question that premise, Mr. Hearron, because the Supreme Court had multiple opportunities to grant an injunction against S.B. 8, to send it directly to the district court, and it didn’t do any of that,” said Duncan, who was appointed by former President Trump.

The issue now before the 5th Circuit involves extremely technical procedural issues, but how it’s decided could determine the pace of the remaining legal challenges.

S.B. 8 bans abortion procedures when a heartbeat is detected, typically about six weeks into a pregnancy, which many legal scholars say flies in the face of previous Supreme Court precedent. But the law was designed to frustrate judicial review with a provision that leaves enforcement entirely to private individuals filing civil suits against medical personnel or anyone else who facilitates the banned procedures.

In December, the Supreme Court narrowed the abortion providers’ suit but allowed it to proceed against certain Texas licensing officials, while dismissing a legal challenge from the Biden administration.

The high court remanded the case to the 5th Circuit, which abortion providers believe is disinclined to handle the lawsuit with the appropriate urgency.

Lawyers for the reproductive clinics took the extraordinary step this week of asking the Supreme Court to step in and order the circuit court to dispatch the case to the district court level where the next steps can be litigated.

“Absent intervention by the Court, the Fifth Circuit is poised to entertain questions already decided by the Court in direct violation of this Court’s mandate, and delay further resolution of this case in the district court by at least weeks, and potentially months or more,” Hearron wrote in a Supreme Court brief on Monday. “Therefore, Petitioners have no recourse in any other court.”

It’s unclear when the 5th Circuit or the Supreme Court will rule in the case.