WASHINGTON — The Supreme Court on Thursday declined once again to order the Texas abortion case back to the original trial judge for further proceedings – a move that would have accelerated the ability of the challengers to try to get some relief.
The groups challenging the nation’s most restrictive abortion law said the case should have been returned to the initial court in Texas as soon as the Supreme Court issued its ruling in December. Instead, the case was sent to the 5th Circuit Court of Appeals, which earlier this week ensured that legal proceedings will drag out even longer by sending a question to the Texas courts about who the challengers can sue.
The second rejection by the Supreme Court, while not wholly unexpected, was another procedural setback for opponents of the law.
Justice Stephen Breyer wrote a dissent for himself and Justices Sonia Sotomayor and Elena Kagan.
“When the mandate issued, 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,” Breyer wrote. “Instead, the Court of Appeals ignored our judgment. It kept the case and certified questions about the licensing-official defendants to the Texas Supreme Court. As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over four months.”
The Supreme Court last month rejected a claim by Texas that the law known as S.B. 8 was immune to challenges in federal court, but the ruling limited opponents of the law to suing state medical licensing officials. That meant abortion providers in Texas could only seek to block those officials from taking away their medical licenses.
The ruling also meant opponents were unable to block the most novel feature of the Texas law, which allows anyone to sue an abortion provider and seek a minimum of $10,000.
Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.