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Texas abortion law remains in place as judges decide who gets to hear the case next

The 5th Circuit Court of Appeals will decide if the case heads to district court or, in a step that might add months to a final decision, to the Texas Supreme Court.

DALLAS — Comments by appeals court judges Friday in New Orleans indicate the justices might opt to send Texas' controversial abortion law on a longer decision-defining route than pro-choice activists would prefer. 

Pro-life activists, however, celebrated the jurists' signal that the law will remain unchanged at least for several months more.

Last month, the U.S. Supreme Court threw out most of the challenges to SB 8, the law that bans most abortions after about six weeks of pregnancy and allows private citizens to sue anyone involved in an abortion. 

But SCOTUS also allowed abortion providers to continue their legal challenges of the law. Friday's hearing before the 5th U.S. Circuit Court of Appeals was to determine the next venue for the case: which court gets to hear the case next.

Judges Edith H. Jones and Stuart Kyle Duncan seemed to favor sending the case to the Texas Supreme Court to have state law questions answered. 

Judge Stephen A. Higginson argued that federal district court would be the appropriate next step: a route favored by abortion providers where they have received favorable decisions before.  

Abortion opponents, however, prefer the case go next to the Texas Supreme Court, adding time to the ultimate final decision making process and leaving the law, enacted this past September, to remain in place.

"We'll just have to keep watching and seeing. But in the meantime, the pro life movement is celebrating more lives being saved every day here in Texas," said John Seago the legislative director for Texas Right to Life. "They're allowing the law to stay in effect and it's saving lives every day. And that's the most important part of this whole fight for the pro-life movement."

"The Supreme Court's directive last month was clear: our clients are entitled to pursue their remaining claims in district court," said Planned Parenthood's senior staff attorney Julie Murray in a written statement. "Yet the Fifth Circuit has delayed our case once again, and despite today's oral argument in that court, there is no clear end in sight. The court has no authority to erect this most recent barrier to justice for our clients, and by defying the Supreme Court and further delaying resolution of the case, the court is complicit in the ongoing harm to pregnant Texans."

"Every day that S.B. 8 remains in effect, Texans are cruelly deprived of essential health care, and providers are forced to deny their patients the compassionate care that is their calling, It is indefensible that the court of appeals once again stands aside while the state continues its open assault on Texans' constitutional rights."

Rights that may actually be decided first in Mississippi. Judge Jones on Friday suggested waiting to decide anything about Texas until the U.S. Supreme Court rules on Mississippi's abortion ban first.

Opponents and supporters of SB 8 now wait for the three judge panel to decide where the arguments travel next.

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