Supreme Court again declines to intervene in challenge to Texas abortion law

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

The U.S. Supreme Court denied on Thursday abortion providers’ latest request to intervene in the ongoing legal challenge against Texas’ restrictive abortion law, cutting off one of their few remaining paths to a speedy victory.

The case is currently before the 5th U.S. Circuit Court of Appeals, which sent the case to the Texas Supreme Court. That is expected to add months to the legal proceedings.

Abortion providers were hoping the U.S. Supreme Court would direct the 5th Circuit to send the case to federal district court, where a judge previously blocked the law.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas. The law, originally passed as Senate Bill 8, was designed to evade judicial review through a unique enforcement mechanism that allows private citizens to bring lawsuits against anyone who “aids and abets” in a prohibited abortion.

“It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four Texas abortion clinics. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

Since there are no state officials involved in the enforcement of the law, it has been difficult to bring legal challenges against anyone in particular, leaving abortion providers with few avenues to argue for the enforcement of the existing constitutional protections for abortion.

“The law immediately devastated access to abortion care in Texas through a complicated private bounty-hunter scheme that violates nearly 50 years of this Court’s precedents,” Justice Sonia Sotomayor wrote in a dissent, issued Thursday.

Attorney General Ken Paxton’s office did not immediately respond to request for comment on the court’s latest ruling.

In December, the U.S. Supreme Court threw out most of the abortion providers’ arguments against the law, but allowed a narrow challenge to proceed against medical licensing officials. Supreme Court Justice Neil Gorsuch sent that remaining challenge back down to the 5th U.S. Circuit Court of Appeals.

In their latest request to the Supreme Court, abortion providers argued that the 5th Circuit should have sent the case back to district court, and asked the high court to intervene. Three liberal justices agreed, but the motion was denied.

The ruling all but guarantees that the case’s journey through the court system will be long, delaying the final word on the standing of Texas’ controversial abortion law — and extending the extensive limits on abortion in the state — for months.

“I had thought that the Court of Appeals would quickly remand the case to the District Court so that it could reach the merits and enter relief consistent with our ruling,” wrote Justice Stephen Breyer. “Instead, the Court of Appeals ignored our judgment.”

While the U.S. Supreme Court was considering this motion, the 5th Circuit sided with the state and sent the case to the Texas Supreme Court to weigh in on questions of state law. It will then return to the 5th Circuit, at which point it could be sent back to the district court or be challenged again before the Supreme Court.

“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation,” Sotomayor wrote in her dissent. “The Court may look the other way, but I cannot.”

Abortion providers and activists reacted Thursday with frustration that the case seems unlikely to resolve any time soon.

“Once again, the Supreme Court has betrayed the people of Texas, who have been callously stripped of their constitutional right to abortion for more than four months now,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement.

Texas Right to Life, a prominent anti-abortion group, did not immediately respond to a request for comment Thursday. After the 5th Circuit hearing earlier this month, the group’s legislative director John Seago said he was confident the law would survive meaningful legal challenges.

“This law still stands and it’s really encouraging,” Seago said. “There’s unprecedented enthusiasm and passion in the pro-life movement, not just for Texas but for other states that are emulating it.”

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.