In a 6 to 3 decision Thursday, the court refused to send the lawsuit back to district court. The decision will allow the Fifth Circuit Court of Appeals to continue with their request to let the Supreme Court of Texas (SCOTX) consider the major remaining questions of the case, a procedural move called certification that the abortion providers and funds in the lawsuit opposed.
The defendants claim certification to SCOTX is proper and will inform the Fifth Circuit’s decisions about the law. The plaintiffs say certification will slow down the lawsuit.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the decision to let the move take place.
“One month after directing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own commands,” Sotomayor wrote.
“Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation.”
The other six justices have not issued an opinion.
The case at hand began when several abortion providers and supporters sued a slew of defendants in an effort to stop the Texas Heartbeat Act, passed during the 87th Texas legislature as Senate Bill (SB) 8. The law outlaws abortions after cardiac activity can be detected in the womb but forbids the government from enforcing this ban. Instead, it creates a private right of action, authorizing citizens to sue anybody besides the mother herself that performs or aids a post-heartbeat abortion.
In an attempt to stop this lawsuit-based enforcement, the plaintiffs sued a state judge and clerk, the attorney general, and a private pro-life activist assumed to be a probable claimant under the law, along with several Texas agencies that the plaintiffs claim still wield power to enforce SB 8 indirectly. Those agencies are the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission. Originally, plaintiffs sought an injunction against those agencies to keep them from enforcing SB 8 and against the entire Texas court system to prevent enforcement lawsuits from proceeding anywhere in the state.
After the case went through district court and then the Fifth Circuit Court of Appeals, SCOTUS agreed to hear the case. The court dismissed every defendant but the state agencies and remanded the case back to the Fifth Circuit.
The agency defendants asked the Fifth Circuit to certify the question of whether or not they can enforce SB 8 to SCOTX. The plaintiffs opposed this motion and asked SCOTUS to send the case back to district court instead, where Judge Robert Pitman has twice shown disfavor to the law, claiming that certification would slow the lawsuit down. On Monday the Fifth Circuit agreed to have SCOTX weigh in, and today’s decision from SCOTUS allows the certification to take place.
According to the Texas Rules of Appellate Procedure, SCOTX may deny the certification request, thereby refusing to consider the case.
If SCOTX agrees to the certification, it will decide whether or not these state agencies actually have the indirect power to punish violators of SB 8, despite the law’s explicit provision that the government cannot enforce it.
This question divided the Supreme Court.
The Fifth Circuit panel that agreed to certify the case made the decision on a 2 to 1 vote. In the majority opinion, Judge Edith Jones said certification would let the federal appellate court take guidance from the state supreme court on this narrow issue of state law. The dissenting judge, Stephen Higginson, called the move unprecedented and agreed with the plaintiffs that it would slow their challenge to the law.
Previously, SCOTUS denied the plaintiffs’ emergency request to stop enforcement of the law before it took effect, then dismissed the defendants who were crucial to the plaintiffs’ challenge to SB 8’s lawsuit-based enforcement, and dismissed the Biden administration’s parallel challenge to the law the same day, making today’s decision the fourth time SCOTUS has allowed the law to remain effective.
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