Supreme Court Sends Texas Abortion Case To More Conservative Court, Against Wishes Of Abortion Providers

On Thursday, the Supreme Court sent a case regarding Texas’s abortion law back to an appeals court, receiving some pushback from pro-abortion advocates in the process.

As The Washington Post reported, the case was sent back to a federal appeals court, but it was reportedly not given to the court preferred by abortion advocates. The U.S. Court of Appeals for the 5th Circuit is considered to be more conservative.

Attorneys for the abortion providers had asked for certain stipulations concerning the case earlier this week, including that Justice Neil Gorsuch, who wrote the opinion in the case, go around the typical 25-day time period in order to move faster and send the necessary documents to a judge in a district court. 

They also requested that he give the case to a district court judge who had previously said the Texas legislation was unconstitutional. 

Justice Gorsuch instead sent the suit to the U.S. Court of Appeals for the 5th Circuit, as Texas authorities had called for. 

The Post noted, “[Attorney General Ken Paxton] told the Supreme Court that Texas plans to ask the 5th Circuit to direct the Texas Supreme Court to interpret a provision of state law before the case is sent back to the district court. It is unclear how long that could take.”

CNN reported, “[The 5th US Circuit Court of Appeals] previously allowed the law to remain on the books and is now likely to send the case to the Texas Supreme Court to resolve questions concerning the enforcement authority of the licensing officials. That process could take months and is likely to mean that abortion providers in the state will still be unwilling to perform the procedure after six weeks for fear of harsh penalties set out in the law.”

Last week, the Supreme Court issued its rulings concerning two cases regarding a Texas pro-life law that bans most abortions after fetal cardiac activity can be detected. 

The high court decided to allow abortion providers to continue with a lawsuit against the state, but it is allowing the legislation to stay in effect as the legal battles continue. “The ruling is procedural and will not be the final word on the law’s constitutionality,” Fox News reported

The Supreme Court also got rid of a challenge brought by the Department of Justice against the Texas pro-life measure.

The two cases concerning the law were brought before the Supreme Court last month. The high court had declined to halt the law but agreed to give the two cases expedited review.

Texas’ Heartbeat Act effectively outlaws abortion after the sixth week of pregnancy, when fetal cardiac activity can be detected. As The Daily Wire previously reported, “The Texas law allows citizens to sue abortion providers and those who ‘aid and abet’ illegal procedures for a financial reward if the lawsuit is successful.” 

The high court’s opinion was written by Justice Gorsuch, who responded to several of Justice Sonia Sotomayor’s objections to the ruling.

He wrote:  

JUSTICE SOTOMAYOR offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles. 


Nor does JUSTICE SOTOMAYOR explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it 

He also stated: 

To the extent JUSTICE SOTOMAYOR seems to wish even more tools existed to combat this type of law, Congress is free to provide them. … But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.”

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