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Federal Appeals Court Sends Texas Six-Week Abortion Ban to Texas Supreme Court

AP Photo/Jose Luis Magana

A law in Texas banning abortions after fetal heartbeat detection will remain in effect after the U.S. Court of Appeals for the 5th Circuit rejected a request from abortion providers to return their case to the U.S. District Court, The Washington Post reported.


On Monday, the 5th Circuit transferred the case, Whole Woman’s Health v. Jackson, to the Texas Supreme Court. Previously, the case was heard at the United States Supreme Court. The Supreme Court returned the case back to the federal appeals court and did not grant abortion provider’s request to return the case to the district court, where an Obama-appointed judge previously ruled in their favor.

The law at the center of the case, S.B. 8, bans abortions after fetal heartbeat detection and allows private citizens to pursue legal action against anyone who provides an illegal abortion or aids or abets someone seeking an illegal abortion. Those who successfully bring lawsuits under S.B. 8 can receive $10,000. The law took effect Sept. 1. 

The Post noted that the Texas Supreme Court could leave the case in limbo for months. In the meantime, Texas women seeking an abortion will likely cross state lines to obtain the procedure.

“In a 2-to-1 decision, the U.S. Court of Appeals for the 5th Circuit temporarily transferred the case to the Texas Supreme Court, a step requested by state officials that could leave the dispute in limbo for months.

The court’s majority said its decision was ‘consistent’ with the Supreme Court’s ruling last month and necessary to avoid “creating needless friction” with the state court over interpretation of the Texas law.

Abortion providers had warned the 5th Circuit that any diversion from the district court in Austin would continue to restrict access to the procedure after about six weeks into pregnancy, when many women do not yet realize they are pregnant.

The latest development follows a U.S. Supreme Court decision that left the ban in place while allowing providers to challenge the law’s unusual enforcement structure. The high court has twice refused to block the Texas law, which makes no exception for rape or incest and is at odds with the landmark Roe v. Wade decision guaranteeing a right to abortion before viability, usually around 23 weeks.”


On Dec. 1, the Supreme Court heard oral arguments in another case surrounding abortion. The case, Dobbs v. Jackson Women’s Health Organization, surrounds a 15-week abortion ban in Mississippi. Dobbs could overturn landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey.

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