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US: Federal appeals court sends abortion case to Texas Supreme Court

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Jan 17 (Reuters) - A U.S. appeals court on Monday handed a defeat to abortion clinics by delaying a legal challenge to a Texas law banning most abortions in that state. A lawyer at the office of Texas Attorney General Ken Paxton did not immediately respond to a similar request. Circuit Judges Edith Jones and Kyle Duncan, both appointed by Republican presidents, voted to send the case to the Texas Supreme Court . They asked the state court to consider whether the Texas attorney general, the Texas Medical Board and other licensing officials can take action to enforce the law if it is violated.

The Texas courts haven’t tried to kill abortion , just limit it. I’m under the impression that Republicans just want to keep this political football in play and they have to do something to continually keep their constituents happy. These people in the supreme court should be punished for this. It's get clear what is happening. There is a law that was created that establishes that women have the right to an abortion .

In the latest setback for abortion clinics that have challenged in federal court Texas' six-week ban on the procedure, the 5th US Circuit Court of Appeals said Monday night that it was sending the case to the Texas Supreme Court.

a close up of a sign: An abortion rights activist holds placards outside of the US Supreme Court before the Court struck down a Texas law placing restrictions on abortion clinics on June 27, 2016 in Washington, DC. © MANDEL NGAN/AFP/AFP/Getty Images An abortion rights activist holds placards outside of the US Supreme Court before the Court struck down a Texas law placing restrictions on abortion clinics on June 27, 2016 in Washington, DC.

The move means it will be weeks, and perhaps months, before the case goes back to the federal trial judge who has ruled against the law in the past -- if the case makes it back to that judge at all.

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The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions , less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court ’s three liberal “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court ’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional

The Supreme Court formally returned a lawsuit over Texas 's six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, as opposed to a district judge who had sought to block it.

The Texas abortion law has been in effect since September 1.

Previously, the US Supreme Court dismissed much of the clinics' federal lawsuit, and the justices said 8-1 that the lawsuit could proceed against a narrow set of state licensing officials. The case then went back to the 5th Circuit. Now the federal appeals court is asking the Texas Supreme Court to weigh in on the role those licensing officials have to play in enforcing the abortion ban and whether the federal lawsuit can proceed against them.


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Clinics had vehemently opposed the move to send -- or "certify" -- the case to the Texas Supreme Court. The move had been requested by the defenders of Texas' law.

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The court , with a 6-3 conservative majority, also raised questions about how it will rule on a more sweeping upcoming case that could curb abortion rights nationwide, as it left in place the ban on abortion after the sixth week of pregnancy. In an unsigned explanation, the court 's majority said the Texas law's unusual construction - leaving enforcement to individuals bringing lawsuits - limited its ability to act and that its decision was not a reflection of the ultimate constitutionality of the law. " Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves," the

In their case before the supreme court , Texas abortion providers are asking the justices to clarify the difference between an actual health measure and an “undue burden” on abortion rights. In doing so, they are hoping to blunt one of the most powerful weapons abortion foes have for limiting abortion access. Where courts have examined all the evidence, however, they have ruled that laws like the one passed in Texas are unnecessary for protecting women’s health. Federal judges in Alabama and Texas castigated those states for deriving most of their evidence from a discredited abortion foe with

In the opinion explaining why the 5th Circuit panel's majority -- Circuit Judges Edith Jones and Kyle Duncan -- was sending the case to the Texas Supreme Court, Jones wrote that the US Supreme Court had used hedged language in its opinion determining that the case could move forward against the licensing officials.

The justices' "reasoning bespeaks at least uncertainty and the need to defer to state law," Jones wrote, referring to the relevant section of Justice Neil Gorsuch's opinion where he was joined by other conservatives on the court.

US Circuit Judge Stephen Higginson dissented from the 5th Circuit's order, writing that it was giving the defendants a "second bite" at an issue they had already lost at the US Supreme Court.

"This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court," Higginson wrote.

The clinics also have a petition at the US Supreme Court asking the justices to intervene again in the case, given how the 5th Circuit has handled it. The justices have not yet taken action on that petition.

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