Friday’s deliberations followed a December ruling by the US Supreme Court that left Texas law intact but allowed for some challenges – including whether Texas officials can use the law to help doctors and nurses who have abortions after about six weeks of gestation carry out revocation of medical approval. The 5th Circuit will determine the venue for this challenge, although a decision can be made in the next few weeks.
The providers want the case referred back to US District Judge Robert Pitman, who granted a motion by the Biden government in October to block enforcement of the law. The 5th circle overturned Pitman’s decision.
Even if clinics prevail and this law is blocked, abortion providers would face civil charges under an unusual private enforcement mechanism in the law that allows citizens to sue anyone who performs an abortion or helps someone perform an abortion.
Judge Stuart Kyle Duncan on Friday quoted the way the US Supreme Court has effectively closed most other avenues to challenge the law and asked why the appeals court should feel obliged to do something with the case.
“I don’t understand the urgency of this particular lawsuit considering how the Supreme Court has restricted the universe of options,” he said.
But Duncan, who was appointed by former President Donald Trump, also seemed ready to grant Texas’s motion to send the case to the state’s Supreme Court, arguing that his contribution was required because it was ” a matter of Texan law “act.
Friday’s hearing was tense as the judges kept sniffing at each other and the lawyers argued over the case. Jones once criticized Marc Hearron of the Center for Reproductive Rights, who argued on behalf of the Texas clinics that the hearing was “not a press conference.”
Hearron argued Friday that it was unnecessary to send the case to the Texas Supreme Court and could add months to the effects of the September abortion ban. He also said the failure to refer the case back to the US District Court amounted to a “second presumption” in the US Supreme Court ruling in December.
The Supreme Court is also considering a petition from the abortion clinics contesting the law and is asking the judges to order the 5th District to refer the case back to the District Court. The vendors argue that if the 5th District were allowed to deal with the case or it would be detoured, it would “undo the timely resolution of the case indefinitely” and “increase the continuing harm to pregnant Texans” to send to the Texas Supreme Court. The US Supreme Court could rule on this request on Friday or Monday, but is unlikely to go along with demands from abortion providers.
Despite the dire outlook for the side of the case by the clinics, further efforts to block the abortion ban are pending, including one being sued by a San Antonio doctor who publicly stated he had broken the law and the constitutionality of the abortion ban self.