A divided panel of the U.S. 5th Circuit Court of Appeals sided with Texas on Monday and sent a challenge to the state's privately enforced restrictive abortion law to the Texas Supreme Court, where it is expected to linger as the law stays in effect. "This decision now keeps the case in limbo — and abortion after 6 weeks in the nation's second-largest state — a dead-letter, indefinitely," University of Texas law professor Steve Vladeck wrote on Twitter.
The Texas abortion clinics challenging the law had requested that their case be sent to a federal district judge in Austin who has previously blocked the law, until the conservative 5th Circuit appellate court reversed the decision less than 48 hours later. The appellate panel decided in a 2-1 decision that before the federal judge gets the case again, the Texas Supreme Court needs to determine whether state law allows the clinics to sue state licensing officials, as the U.S. Supreme Court allowed.
Judge Stephen A. Higginson, a Democratic appointee, disagreed with his two GOP-appointed colleagues, arguing that the U.S. Supreme Court already decided that matter. "This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court," he wrote in his dissent.
Judge Edith H. Jones, who wrote the panel's majority decision, said the U.S. Supreme Court gave the appellate court ample room to interpret how to carry out its ruling, and suggested in oral arguments earlier this month that perhaps the 5th Circuit court should sit on the case until the Supreme Court rules this summer in a Mississippi case that could overturn or weaken Roe v. Wade's recognized constitutional right to abortion. "Maybe we ought to just sit on this until the end of June," she said.