Abortion providers ask Supreme Court for another look at Texas six-week ban

WASHINGTON – Abortion rights groups on Thursday asked the Supreme Court to take another look at blocking a Texas law that bans the procedure after six weeks of pregnancy, though the request appeared unlikely to resolve the controversy quickly.

A 5-4 majority of the Supreme Court declined to block the Texas law earlier this month in a ruling that did not reach whether the law is constitutional, prompting an outcry from abortion rights advocates who noted the ban conflicts with the court's abortion precedents. The underlying questions raised by the case are still pending in lower courts. 

In an unusual appeal Thursday, the groups asked the Supreme Court to take their challenge before the New Orleans-based U.S. Court of Appeals for the 5th Circuit resolves the case. The new appeal focuses on the law's unusual enforcement mechanism and asks the high court to intercede given that the Texas law allows individuals to sue abortion providers rather than relying on state officials to enforce the ban.

Acknowledging the appeals court had not yet fully resolved the case, lawyers for the providers told the Supreme Court "the writing is on the wall" in terms of the 5th Circuit's view of the ongoing challenges to the law. The providers noted that the 5th Circuit will not hold arguments in the case until "December at the earliest."

The providers filed their request Thursday on the high court's regular docket, not the one used for emergency appeals. That means the case is unlikely to move as quickly as the earlier effort to unwind the six-week ban and, if the court takes the appeal, the justices would schedule oral arguments.

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The Supreme Court recently announced that on Dec. 1 it will hear arguments in a separate case challenging Mississippi's ban on abortion after 15 weeks of pregnancy, a law that raises similar constitutional questions as the Texas 6-week ban.     

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"Texans are in crisis," the attorneys wrote. "Faced with the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability if they violate the ban, abortion providers have been forced to comply."

Texas Attorney General Ken Paxton did not immediately reply to a request for comment.

The latest filing added another twist to the squirrely legal battle unfolding over the law, including litigation pending in state court and a separate federal lawsuit that was filed by President Joe Biden's administration shortly after the Supreme Court ruled earlier this month.    

The Texas law, signed by Republican Gov. Greg Abbott in May, bans abortions when a fetal heartbeat is detected, which can occur at six weeks. The law doesn't include exceptions for rape or incest but allows women to have the procedure for "medical emergencies." 

Similar laws in Georgia, Kentucky and other states have been blocked by federal courts.

Nearly 50 years ago the Supreme Court ruled in Roe v. Wade that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Years later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – about 24 weeks.