Texas Abortion Ban Remains in Effect as Appeals Court Sends Case to State's Supreme Court

A pro-life campaigner displays a plastic doll representing a 12-week-old fetus as she stands outside the Marie Stopes Clinic in Belfast, Northern Ireland, on April 7, 2016. (Charles McQuillan/Getty Images)

An abortion ban that went into effect in Texas last September will remain as such for the foreseeable future, after a federal appeals court sent a case challenging the ban to the state's Supreme Court, dealing the abortion clinics challenging the law a small defeat.

The U.S. Court of Appeals for the 5th Circuit, which is perceived as a conservative appellate court, in a 2-to-1 decision, sent the case to the Texas Supreme Court.

“The unresolved questions of state law must be certified to the Texas Supreme Court,” wrote Judge Edith Jones, joined by Judge Stuart Kyle Duncan. Jones was nominated by President Ronald Reagan, and Duncan was nominated by President Donald Trump.

The decision effectively delays a legal challenge by abortion clinics against the Texas Heartbeat Act, also known as Senate Bill 8 (SB 8). The abortion ban, which applies after a heartbeat is detected—usually around six weeks after conception—unless a medical emergency exists, will for now remain in place.

Jones stated that the case is a matter of judicial procedure and not about the merits of the abortion ban itself.

"[T]he issues before this court are not about abortion, nor about whether S.B. 8 is consistent with the federal Constitution, nor about the wisdom of S.B. 8, but about the constitutional authority of federal courts to entertain this pre-enforcement suit against a state law," she wrote.

Circuit Judge Stephen Higginson, who was nominated by President Barack Obama, said sending the case to the Texas Supreme Court would "contravene" the U.S. Supreme Court's mandate, adding, "Justice delayed is justice denied."

Currently, there is no timetable for when the state supreme court might take up the case.

In December, the U.S. Supreme Court refused to stay the Texas abortion ban, and in a. 8-1 ruling, kept it in place and allowed only a narrow challenge against it to proceed. The case was then sent to the 5th Circuit Appeals court at the request of Texas officials.

Abortion providers wanted their lawsuit sent back to a federal district court in Austin that so far had been receptive in general to the challenge to the Texas abortion ban and had previously blocked it for a few days.

But the case is now in the hands of the Texas Supreme Court, which has nine justices, all of whom are Republicans.

The appeals court is asking the state's Supreme Court's opinion on the role of Texas medical licensing officials to enforce the abortion ban, and whether the lawsuit can proceed against them.

Separately, the U.S. Supreme Court is due to rule by the end of June on the constitutionality of a law in Mississippi that bans abortion after 15 weeks of gestation.

Mississippi asked the Supreme Court to take up the case, which it agreed to in May 2021. The case is Dobbs v. Jackson Women’s Health Organization 19-1392.

Mississippi Attorney General Lynn Fitch asked the court in a filing to overturn Roe v. Wade so the state can uphold its law.

The 1973 Roe v. Wade ruling prohibited states from banning abortions prior to when the fetus is deemed “viable”—that is, potentially able to live outside its mother’s womb—deemed at the time usually around the second trimester of pregnancy at 24 weeks.