In a move praised by pro-life groups and opposed by the abortion facilities and supporters in the case, the Fifth Circuit Court of Appeals certified key questions of their lawsuit to SCOTX on Monday evening in a 2 to 1 decision.
SCOTX will consider whether state agencies have the authority to enforce the Heartbeat Act, a question that divided the U.S. Supreme Court.
The Fifth Circuit is a federal appellate court, while SCOTX is the court of last resort for civil cases in the state court system. In the Fifth Circuit’s opinion, delivered by Judge Edith Jones, the court said that federal courts need guidance from Texas courts on interpreting questions of state law at the heart of the case.
“Here, there is a possibility that federal courts could declare S.B. 8 constitutionally infirm even though our conclusions might be based entirely on a faulty understanding of Texas law. To avert creating needless friction with a coequal sovereign in our federal system, this court reasonably seeks the Texas Supreme Court’s final word on the matter,” Jones wrote.
Several abortion providers, funds, and other proponents sued in July to stop the Texas Heartbeat Act, passed during the 87th Texas legislature as Senate Bill (SB) 8, before it took effect. Because the law forbids the government from enforcing it, instead authorizing citizens to sue anybody besides the mother herself that performs or aids a post-heartbeat abortion, the plaintiffs sued a state court judge and clerk alongside the Texas attorney general, a slew of state agencies that can regulate abortion, and a private pro-life activist who they believed would sue them under the law.
Even though SB 8 forecloses government enforcement, the plaintiffs say that these state agencies — the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission — still have some residual authority to punish post-heartbeat abortions.
The U.S. Supreme Court declined the plaintiffs’ emergency request to stop the law on the eve of its effective date but later agreed to hear the case after it had followed the typical route through district court and then the Fifth Circuit Court of Appeals.
In a split decision, the U.S. Supreme Court dismissed the private activist, attorney general, and state judge and clerk from the case but said the plaintiffs may continue their suit against the state agencies. It later remanded the case back to the Fifth Circuit Court of Appeals.
The defendants requested certification to SCOTX from the Fifth Circuit, claiming that they cannot enforce SB 8.
The plaintiffs, a coalition of abortion industry members that includes Whole Woman’s Health and Planned Parenthood, opposed certifying the case to SCOTX because they said it would stall the process. Instead, the plaintiffs wanted the case to go back to district court Judge Robert Pitman, who has already twice shown disfavor to the law.
The Fifth Circuit wrote on Monday that handing the case over to SCOTX is consistent with the U.S. Supreme Court’s opinion since it did not rule with certainty whether these agencies can actually enforce SB 8.
“Based on the parties’ limited representation of Texas law to the Supreme Court of the United States, the Court did not specifically construe Texas law, certainly not the swath of bare citations with which it was confronted. The Court thus surmised that Plaintiffs’ interpretation was correct at a preliminary stage of the case, but took care to reserve the ultimate interpretation for Texas courts,” Jones wrote.
The Fifth Circuit’s decision was not unanimous. Judge Stephen Higginson dissented, calling the move unprecedented and defiant.
“On remand, we should not grant a certification motion that was filed only after the defendants argued and lost this issue in the Supreme Court. Again, counsel for the defendants acknowledged at oral argument that they know of no inferior court, ever before, seeking such intercession on remand from the Supreme Court,” Higginson said.
“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.”
Pro-life advocacy group Texas Right to Life lauded the decision.
“This is great news for Texas because such action is more likely to ensure a just and favorable ruling, compared to that which could be expected from a pro-abortion federal district judge, to whom the abortion industry asked to send the case,” the group stated.
“Beyond this, sending the lawsuit to the Supreme Court of Texas is appropriate because the only defendants left in the case are state agencies.”
Regardless of how the case proceeds, the central mechanism of SB 8 is likely to remain intact.
When the U.S. Supreme Court dismissed the other defendants from the case, it undercut the plaintiffs’ challenge to SB 8’s unique lawsuit-based enforcement mechanism. The plaintiffs included the attorney general, state judge and clerk, and activist in the lawsuit on the grounds that they could each play a role in suing SB 8 violators. With those defendants now gone from the case, the plaintiffs lack an obvious way to claim injury from the law’s civil enforcement mechanism.
Now, the plaintiffs can only assert that the remaining state agency defendants might enforce the law indirectly. Even if SCOTX agrees, it could order these agencies not to enforce SB 8, but that same order is already built into the law.
The plaintiffs had made a third bid to the U.S. Supreme Court on January 3 to stop certification.
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