The Supreme Court on Thursday rebuffed abortion providers’ latest legal maneuver in their challenge to Texas’ 6-week ban, which has sharply reduced abortion access in the state since taking effect nearly five months ago.
The order, issued without comment, was unsigned but appeared to divide the court along ideological lines, with the court’s three liberal justices writing in dissent.
At issue is a procedural fight over which tier of the lower federal courts the case should return to after a divided Supreme Court ruled last month that abortion providers could contest the ban in federal court and list Texas state licensing officials as defendants.
Abortion providers had asked the Supreme Court to send the case back to a federal district court, where the judge presiding over their challenge had previously blocked the Texas law. But the justices instead returned the case to the conservative U.S. Court of Appeals for the 5th Circuit, which has allowed the ban to remain while the case proceeds.
The 5th Circuit has since added a new layer of litigation. In a 2-1 vote, the federal appeals court panel asked the top Texas state court to interpret the law, S.B. 8, and determine whether state licensing officials are appropriate defendants.
This legal mechanism, known as state certification, has at a minimum prolonged the litigation and, depending on how the Texas Supreme Court rules, could wind up erasing abortion providers’ narrow path to federal court.
As the certification process got underway, abortion providers went back to the Supreme Court to ask that the justices return their case to the federal trial court to avoid undue delay, a request the majority denied in Thursday’s order.
Justice Sonia Sotomayor blasted the majority in a dissent that was joined by fellow liberal justices Stephen Breyer and Elena Kagan.
“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. “The Court may look the other way, but I cannot.”
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