87th LegislatureJudicialAbortion Providers, Texas Agencies Spar Over Proper Path for Texas Heartbeat Act Lawsuit

The Fifth Circuit Court of Appeals heard oral arguments today over where the last major challenge to the Texas Heartbeat Act should proceed.
January 7, 2022
Litigants in the last major challenge to the Texas Heartbeat Act are fighting over where the case may proceed, a crucial detail that could determine the survival of the law.

In December, the U.S. Supreme Court dismissed the Biden administration’s lawsuit against Texas over the Heartbeat Act, a state law passed as Senate Bill (SB) 8, but allowed a group of abortion facilities and other stakeholders to continue their lawsuit against certain state agencies at the Fifth Circuit Court of Appeals.

Now, the abortion proponents and the defendants are each vying to find favorable paths forward. Both sides presented oral arguments today to the Fifth Circuit.

The group of abortion proponents, led by Whole Woman’s Health, originally challenged SB 8 in July with an unusual lawsuit crafted to match an unusual law before it took effect. SB 8 bans abortions after cardiac activity can be detected in the womb but forbids the government from enforcing this law. Instead, it authorizes private citizens to sue anybody besides the mother herself that performs or aids a post-heartbeat abortion.

Rather than simply sue the State of Texas itself, as the Biden administration later unsuccessfully attempted, Whole Woman’s Health and the other plaintiffs sued a state judge and clerk in an attempt to bring a class-action lawsuit against the entire Texas court system. Their lawsuit also targets several state agencies such as the Texas Medical Board and the Texas Board of Nursing, claiming that these agencies have residual power to enforce SB 8 even though the law forecloses government enforcement.

The Texan Tumbler

The U.S. Supreme Court dismissed their claims against the court system but allowed their claims against the agencies to continue and remanded the case to the Fifth Circuit.

Shortly thereafter, the defendants asked the Fifth Circuit to let the Supreme Court of Texas (SCOTX) answer the question of whether these agencies — the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission — can actually enforce SB 8.

If SCOTX agrees that they lack enforcement power, that means the plaintiffs’ challenge to the law must crumble, the defendants argue.

“It is the executive officials’ view that Texas law precludes them from enforcing SB 8, whether directly or indirectly, and courts must defer to the interpretations of state law adopted by state officials,” the agency leaders wrote.

Additionally, although the state and federal court systems tend to remain parallel, the defendants say a move to SCOTX would comply with regular procedure. The Texas Rules of Appellate Procedure say that SCOTX may answer questions of law sent to it by any federal appellate court if that court is presented with questions that lack SCOTX precedent. While there is another challenge to SB 8 in state court, it hasn’t reached SCOTX yet.

In response, the plaintiffs accused the defendants of stalling to give SB 8 further time in effect and asked the Fifth Circuit to send the case back down to the district court instead.

“At bottom, defendants’ motion is a transparent attempt to forestall relief by sending this case to the Texas Supreme Court, to indefinitely prevent plaintiffs from obtaining any effective relief from the district court in the face of a law that is clearly contrary to Supreme Court precedent,” the abortion proponents wrote.

If the Fifth Circuit were to remand the case back down to district court, it would go before Judge Robert Pitman, who has twice ruled against SB 8.

Even though the U.S. Supreme Court directly remanded their case to the Fifth Circuit, the plaintiffs argue that the appellate court has nothing left to decide and can only comply with the U.S. Supreme Court by sending the case back down further to Pitman again.

“Because the Supreme Court stepped into this Court’s shoes and determined this Court’s judgment on the defendants’ appeal from the district court’s order, there is nothing left for this Court to do but remand to the district court,” the plaintiffs wrote.

Meanwhile, all evidence shows that the Fifth Circuit will likely act favorably to SB 8 and the defendants. Known for being a conservative court, the Fifth Circuit quickly restored effect to the law once before. It also upheld the state’s ban on dismemberment abortions as well as other abortion restrictions, including laws that the U.S. Supreme Court would later enjoin.

Before presenting oral arguments today, the plaintiffs again asked the U.S. Supreme Court to intervene and stop the case from going to SCOTX.


Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.

Get “KB's Hot Take”

A free bi-weekly commentary on current events by Konni Burton.

Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.