Appeals court sends Texas abortion law challenge to state Supreme Court

Jan. 17 (UPI) -- The 5th U.S. Circuit Court of Appeals on Monday sent a challenge by abortion clinics to the Texas abortion ban to the state's Supreme Court for further interpretation.

The 2-1 decision marks a setback for the clinics that had opposed the move to send or "certify" the case to the Texas Supreme Court instead requesting it be sent back to a lower court that previously blocked the law banning abortions as soon as fetal cardiac activity can be detected, which can be as little as six weeks.

Circuit Judges Edith Jones and Kyle Duncan wrote in an opinion that the U.S. Supreme Court used hedged language in its 8-1 decision last month to leave the law in place but allow challenges to move forward.

Jones wrote that the Supreme Court justices' "reasoning bespeaks at least uncertainty and the need to defer to state law."

"With no limit placed by the Supreme Court's remand, this court may utilize the ordinary appellate tools at our disposal to address the case -- consistent with the Court's opinion," wrote Jones.

Further, Jones stressed that the case was not about abortion or the merits of the law but rather a matter of judicial procedure.

In a dissenting opinion, Judge Stephen Higginson wrote that diverting the case to the Texas Supreme Court escalates the harm caused by the law and clashes with the Supreme Court's decision.

"By certifying this question and, worse, by simultaneously carrying a motion for further briefing to us with the case, we are only causing further delay, indeed delay without specified end," Higginson wrote. "This further second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impending relief ordered by the Supreme Court."

Aside from a brief pause ordered by a lower federal court, the law has been in effect since Sept. 1.

The law is enforced by private citizens through lawsuits against doctors and clinics that perform abortions and comes with a $10,000 penalty against any defendant found to violate it.

The abortion providers have another petition to the U.S. Supreme Court asking the justices to again intervene following the 5th Circuit court's handling of the case but the justices have not yet taken action.