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Abortion providers ask for Supreme Court intervention in challenge against Texas’ near total ban on the procedure

Abortion providers challenging a Texas law banning almost all abortions in the state asked the Supreme Court Monday to order the Fifth Circuit of Appeals to send their case to a federal district court in an attempt to avoid a delay in its resolution.

The plaintiffs argue in their petition that without intervention the case could drag on for several more weeks or months than necessary, because the Fifth Circuit is "posed to entertain questions already decided by the Court in direct violation of this Court's mandate."

Senate Bill 8 — also known as the Texas Heartbeat Act — prohibits abortions after six weeks of pregnancy and conflicts with the high court’s precedents in Roe v. Wade and Planned Parenthood v. Casey. The law, which went into effect in Septemeber 2021, is enforced by private citizens — who are empowered to sue anyone who provides abortion — rather than government officials. This unique mechanism has allowed the law to evade the type of pre-enforcement review that typically happens in similar cases.

The Supreme Court initially declined to block the law from going to effect but agreed in October to hear arguments from the abortion providers and the Biden administration, which is also challenging the law. 

Less than a month ago, the justices issued a narrow ruling in the abortion providers’ favor, allowing their case to proceed but only against medical licensing officials in the state. Following that opinion, the plaintiffs asked for the case to be remanded directly to the district court on an expedited basis instead of abiding by the normal 25-day waiting period. Instead, the court remanded the case to the Fifth Circuit for further proceedings. 

The defendants then asked that the Fifth Circuit to certify to the Texas Supreme Court the question of whether licensing officials had the authority to discipline doctors who violated SB 8. They also asked for a briefing schedule to be set to resolve some remaining issues in the case. A divided panel of the Fifth Circuit decided there needed to be oral arguments before a ruling could be issued on the defendants' request, and scheduled them for Jan. 7. 

The abortion providers are now asking the Supreme Court to act quickly to get the case out of the Fifth Circuit and sent down to the district court. In their motion to expedite, the plaintiffs requested that the defendants be directed to file their opposition by Wednesday.

“With a clear majority of this Court having held that the case may proceed past the motion-to-dismiss stage, the Fifth Circuit has no issues left to resolve on the appeal before it and no authority to retain jurisdiction,” the petition for writ of mandamus states. “Its only remaining task is to remand the case to the district court for further proceedings consistent with this Court’s opinion. Because it has refused to do so, Petitioners respectfully request that this Court issue a writ of mandamus directing such remand.” 

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The licensing officials claim issues still remain as to whether the abortion providers have Article III standing to sue and on claims related to SB 8’s fee-shifting provision, while the plaintiffs say the Supreme Court already answered the Article III questions. 

“The Court recognized that plaintiffs ‘have plausibly alleged that S.B. 8 has already had a direct effect on their day-to-day operations,’ and that there is a credible threat of enforcement by the licensing officials which is sufficient to establish Article III standing,” the petition states. 

Abortion providers claim the licensing officials are trying to use the Fifth Circuit to argue issues they did not present to the court during oral arguments. 

“Defendants are not entitled to a second bite at the apple now that this Court has fully resolved their appeal, and the Fifth Circuit lacks authority to do anything else beyond remanding the case to the district court,” the petition continues.

The high court's intervention and speediness is necessary in this case, the plaintiffs argue, because women in Texas have been unable to "exercise their federal constitutional right to terminate their pregnancy" or are being forced to travel out of state to do so.

"Given the magnitude of the constitutional questions presented, this case 'has received extraordinary solicitude,' and for good reason," the petition states.

"Allowing the court of appeals to flout this Court's mandate and derail indefinitely the timely resolution of the merits of this case by the district court would render this extraordinary solicitude effectively meaningless and compound the ongoing harm to pregnant Texans under S.B. 8," it adds.

Another group of abortion providers led by Planned Parenthood is also challenging the ban in state court where they received a favorable ruling in December from State District Court Judge David Peeples who found the law unconstitutional. However, he did not enjoin the law, which means it remans in effect today. 

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The Supreme Court initially declined to block the law from going to effect but agreed in October to hear arguments from the abortion providers and the Biden administration, which is also challenging the law.

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