Supreme Court deals another blow to Texas abortion providers

Gorsuch returned the matter to the highly conservative 5th Circuit.

Video byElisa Tang
December 16, 2021, 5:53 PM

Supreme Court Justice Neil Gorsuch has dealt another blow to Texas abortion providers waging war against SB8 in order to restore a constitutional right for millions across the state.

After a sharply divided Supreme Court ruled last week that a very narrow challenge to the law, which is a near-total ban on abortion, could proceed, the providers asked the justices to expeditiously return the case to a lower court so the litigation could get underway.

Normally, there's a 25-day delay between when the Court issues a decision and it's formally registered.

Gorsuch, who authored the majority opinion in the case, granted the request on Thursday. But instead of directing the matter to a U.S. District Court where the proceedings began, he returned the case to the highly conservative 5th Circuit Court of Appeals -- a move that could both slow things down and make it even more difficult for providers to prevail.

Texas has said it will ask the Appeals Court to seek clarification on SB8 from the Texas Supreme Court before moving the case forward. The abortion providers opposed that move as an unnecessary delay.

PHOTO: "Stop Texas Spy and Sue anti-abortion laws" reads the sign as Abortion rights advocates and anti-abortion protesters gathered as the U.S. Supreme Court in Washington, Dec. 1, 2021.
"Stop Texas Spy and Sue anti-abortion laws" reads the sign as Abortion rights advocates and anti-abortion protesters gathered as the U.S. Supreme Court in Washington, Dec. 1, 2021.
Jeff Malet Photography/Newscom

The Gorsuch decision is also striking in that it breaks with what appears to be Chief Justice John Roberts' expectation that the case would have returned to the U.S. District Court for immediate relief. Roberts, in his opinion in the case, said that "the District Court should resolve this litigation and enter appropriate relief without delay."

The federal judge who would have picked up the case was Robert Pittman, the same judge who ruled against SB8 in a sweeping opinion earlier this year.

Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a comment, "The Supreme Court left only a small sliver of our case intact, and it's clear that this part of the case will not block vigilante lawsuits from being filed. It's also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left."

"Meanwhile," he continued, "Texans have been without abortion access for more than 100 days, and there is no end in sight. The Supreme Court has let Texas nullify constitutional rights and upend our system of justice."

PHOTO: The exterior of the U.S. Supreme Court building is seen after justices allowed abortion providers to pursue a legal challenge to a ban on most abortions in Texas, on Capitol Hill, Dec. 10, 2021.
The exterior of the U.S. Supreme Court building is seen after justices allowed abortion providers to pursue a legal challenge to a ban on most abortions in Texas, on Capitol Hill, Dec. 10, 2021.
Sarah Silbiger/Reuters

The Texas law, which was allowed to go into effect this fall, bans physicians from providing abortions "if the physician detects a fetal heartbeat," including embryonic cardiac activity, which can be as early as six weeks into a pregnancy.

While this has reportedly banned a majority of abortions that would've previously been performed, doctors in Texas are still providing abortions in accordance with the law.

Whole Woman's Health, the independent provider organization with several locations in Texas that is fighting SB8, is now providing abortion care -- in accordance with the law -- for free. The clinic is able to do so because of grant funding, Whole Woman's Health confirmed to ABC News.

ABC News' Alexandra Svokos contributed to this report.

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