Texas police separate anti-abortion protestors from pro-choice protestors during a Women’s March in Austin, Texas, October 2, 2021. (Evelyn Hockstein/Reuters)

The 5th U.S. Circuit Court of Appeals on Monday sent the case of Texas’s heartbeat abortion law to the state’s Supreme Court, likely delaying any decision on the statute, which allows private citizens to sue providers who perform abortions after a heartbeat can be detected.

The move comes as the U.S. Supreme Court decided that most legal challenges against the abortion law should be dismissed, aside from one filed against medical licensing officials. That case was sent to the 5th Circuit in New Orleans.

The 5th U.S. Circuit Court of Appeals judges wrote in a 2-1 decision Monday that the Texas Supreme Court must certify the case and determine whether the U.S. Supreme Court was right to allow the challenge against the licensing officials to move forward.

Circuit Judges Edith H. Jones and Stuart Kyle Duncan said the state’s Supreme Court should decide whether the Texas attorney general, the Texas Medical Board, and other licensing officials can enforce the law if it is violated.

The third judge, who dissented, argued the U.S. Supreme Court had already ruled on the matter.

“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,” Judge Stephen A. Higginson wrote in his dissent.

Lawyers told the Texas Tribune it is unusual to ask the state Supreme Court to step in after the U.S. Supreme Court has already weighed in. The move could mean it will be months before a decision is made in the case. In the meantime, the law will remain in effect.

While other state-level bans on abortion before 24 weeks have been blocked by the courts due to Supreme Court precedent, the Texas law has a unique enforcement mechanism that allows any individual to sue anyone who knowingly performs or aids in an abortion after a fetal heartbeat has been detected, removing the responsibility of enforcement from the state’s executive branch and placing it into the hands of citizens. Plaintiffs can earn up to $10,000 in damages through litigation.

As state officials are not in charge of enforcing the law, it has been difficult for opponents of the law to bring successful challenges against it.

“While all of these complicated legal questions are untangled, we already every day have our victory,”John Seago, legislative director for Texas Right to Life, told the Texas Tribune earlier this month. “Courts have allowed this law to stay in effect.”

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