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Texas Fetal Heartbeat Law Lives, As Lower Court Challenge Process Is In Limbo

Texas Fetal Heartbeat Law Lives, As Lower Court Challenge Process Is In Limbo

Today the U.S. Supreme Court denied a request to force the 5th Circuit Appeals Court, which has certified questions of state law to the Texas Supreme Court, to send the case back to the District Court for a decision on the merits.

I’m so old, I remember when the pro-abortion supporters snickered about a partial victory at the Supreme Court, which back on December 10, 2021, Left The Texas Fetal Heartbeat Law In Place, But Allowed Limited Future Lower Court Challenges.

The Court didn’t rule on the constitutionality of the law, but whether anyone could challenge it. The Court paved a narrow road forward, as we wrote at the time:

In a complicated decision by Justice Gorsuch, the Court has left in place the Texas Fetal Heartbeat Law (the validity of which was not directly before the court, only whether pre-enforcment challenges could be made against state officials where those state officials had no enforcement power under the law), dismissed most defendants, but left an avenue for challengers to pursue on lower courts. Much of Gorsuch’s opinion was responding to the dissent by Justice Sotomayor.

From Gorsuch’s Opinion:

…. The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.

So there was a path forward to challening the legislation in the District Court, right? Well, not really. Rather than remanding the case directly to the District Court, the case was remanded to the 5th Circuit Court of Appeals for a decision as to the next procedural steps. That was a big blow to the plaintiffs, and their worst fears are coming true.

The 5th Circuit decided that it was premature to give the case back to the District Court, what was needed was an certified opinion as to state law from the Texas Supreme Court. That’s a prodecure federal courts sometimes use where there is a disputed issue of state law; state courts decide state law, not federal courts.

From the 5th Circuit Opinion:

…. The Supreme Court remanded this case “for further proceedings consistent with this opinion.” Whole Woman’s Health, 142 S. Ct. at 539. Against the backdrop of ongoing state court litigation and the remand from the United States Supreme Court, this panel5 is tasked with determining the scope of remand and the most efficient way to decide the remaining issues on appeal. For the following reasons, the court concludes that certification is a “proceeding[] consistent with [the Court’s] opinion.” The unresolved questions of state law must be certified to the Texas Supreme Court and further briefing will await that court’s decision on certification.6

The following questions were certified to the Texas Supreme Court:


For the reasons discussed above, we hereby certify the following questions of state law to the Supreme Court of Texas:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

We disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the questions certified. The answer provided will determine the remaining issues in this case. The recordin this case and copies of the parties’ briefs are transmitted herewith.

The panel retains cognizance of the appeal in this case pending response from the Supreme Court of Texas and hereby certifies the above questions of law.

To put it mildly, the plaintiffs were not happy with this stall. So unhappy they petitioned the Supreme Court for a Writ of Mandamus forcing the 5th Circuit to send the case back to the District Court. Today the Supreme Court denied the request:

The petition for a writ of mandamus is denied

Justice Sotomayor, joined by Breyer and Kagan, dissented:

It has been over four months since Texas Senate Bill 8 (S. B. 8) took effect. The law immediately devastated access to abortion care in Texas through a complicated private bounty-hunter scheme that violates nearly 50 years of this Court’s precedents. Today, for the fourth time, this Court declines to protect pregnant Texans from egregious violations of their constitutional rights.1 One month after directing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own commands. 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 Court may look the other way, but I cannot…..

Breyer wrote a separate dissent, joined by Sotomayor and Kagan:

In Whole Woman’s Health v. Jackson, 595 U. S. ___ (2021), this Court was clear. We said: “[E]ight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young,” the state licensing-official defendants. Id., at ___ (slip op., at 17). When the mandate issued, I had thought that the Court of Appeals would quickly remand the case to the District Court so that it could reach the merits and enter relief consistent with our ruling….

Instead, the Court of Appeals ignored our judgment. It kept the case and certified questions about the licensingofficial defendants to the Texas Supreme Court. See Whole Woman’s Health v. Jackson, 2022 WL 142193, ___ F. 4th ___ (CA5 2022). As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over four months. For these reasons, as elaborated by JUSTICE SOTOMAYOR, I would grant the writ petitioners seek.

So abortion rights advocates have not yet succeeded in aborting the Texas Fetal Heartbeat Law. It lives in the limbo of court process, awaiting a ruling on the certified questions from the Texas Supreme Court, and then back to the 5th Circuit. And then?

This process could take several months, conceivably into June. And it’s in June SCOTUS will rule on the Mississippi abortion case, which directly puts Roe v. Wade on the table. So what SCOTUS and the 5th Circuit have stalled may not require a decision on the merits if SCOTUS overturns Roe.

I’m not suggesting there is some master plan to keep the Texas Fetal Heartbeat Law alive long enough for the decision on Roe, but I am noting the curious timing.


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I would bet a large amount of cash that Roberts and Kavanaugh cave in on the Mississippi case and side with the Leftist 3. Roberts’ legal gymnastics in the Obamacare case, Obergefell, and most recently the health care vaccine mandate case show he hasn’t the guts to stand up and interpret the Constitution as it is plainly written. He practically rewrote the Obamacare law to allow it to pass muster, and bent over backwards in agreeing with Kennedy’s science fiction “interpretation” of the Due Process clause. Kavanaugh is evidentally living in fear of abortion rights activists, and will NOT cast the deciding vote to overturn Roe. After rewatching his tearful breakdown at his confirmation hearing, it is obvious that he has parted his mooring somewhat as regards controversial decisions. Pelosi and Co. are spending millions supposedly investigating the January 6 protests, when they should be investigating the abortion terrorists invasion of the SCOTUS building and Senate at the end of Kavanaugh’s confirmation vote.

Today the Ninth Circuit ruled that California’s closure of gun stores in response to COVID was an unconstitutional violation of the Second Amendment.

Two years ago… in 2020.

In the meanwhile, two lower courts affirmed the state’s action, and have now been overruled.

Abortion proponents have had to wait four whole months?

The horror! The horror!

Put on your big girl panties, ladies, and prepare yourselves for the long haul. You made the rules, not us.

The key idea here is where does the moral authority and decision-making power over abortion and similar issues lie — the states or the federal government? Since the 1970s, pro-choice Americans viewed these issues resting with the federal government, and put their resources in electing pro-choice Senators who used a litmus test to select federal jurists.

Pro-Life advocates argue that abortion is a part of the broad police powers of the states. By sending back this decision to the Supreme Court of Texas, the 5th Circuit is lollowing this view.

Abortion will not be the last important policy issue to return to the states.

Wherever abortion is decided, Republicans will be voted out if they support banning it earlier than the point of maximum support. That is to say, dogmatists will kill the party.

Abortion is murder, by it own definition. It’s a difficult and often horrifying realization for many young , we’d and unwed women to realize they are with child, it’s such a commitment, but it’s life and it’s a blessing. A healthy child that is. I am sure those with autistic children and other issues would differ with me, with good standing.I have known many and it is a lifetime burden. I don’t know the answer.
There are so many avenues to prevent pregnancy now, options for men really need to be explored more.
But it is what it is… life

    Dathurtz in reply to gonzotx. | January 21, 2022 at 10:20 am

    It horrifies me to think that between 1/4 and 1/3 of my generation was murdered in the womb.

      henrybowman in reply to Dathurtz. | January 21, 2022 at 4:13 pm

      Put it in historical perspective, however… before our age of advanced medical care, that was the fate of just about as many babies… not just prior to birth, but out to age one or so.

A heartbeat at the beginning and end of life. That said, we should be wary of normalizing elective abortion (“sacrifice”) of viable human life for social, redistributive, and fair weather causes. A woman and man have four choices, and self-defense through reconciliation. The wicked solution is neither a good nor exclusive choice.

Lucifer Morningstar | January 21, 2022 at 1:31 pm

I’m confused at how this is even a viable case for the courts to consider given that the Fetal Heartbeat Act authorizes private individuals for enforcement of the law and not the TX Attorney General, TX Medical Board,, TX Board of Nursing, TX Pharmacy Board, or Texas Health and Human Services Commission to enforce the Fetal Heartbeat Law. That is the whole point of the law as it is written. The state doesn’t do the enforcement. It is done by private individuals in a civil action. Not criminal. The state is not officially involved in any manner in the civil cases that might be brought under the Fetal Heartbeat Law. And to throw this idea out that somehow the “state” will be able to enforce the S.B. 8 through the various medical boards and thus it’s unconstitutional just seems to be a desperate maneuver by the pro-abortionists to get the law ruled unconstitutional and removed from the books.

    Perhaps Prof. Jacobson could elaborate. The basic idea is that if the Texas Medical Board will take “state action” to enforce the law, then people challenging the Texas Fetal Heartbeat Act can take the Texas Medical Board to court. If no “state action” is involved in enforcing the law, then there is nobody to sue and enjoin. So, the Texas Supreme Court must answer the question regarding what is the role of the Texas Medical Board in enforcing the new law, If there is no role, then the case is thrown out, and does not come back to court until a citizen goes after an abortion doctor and that case comes up to the Supreme Court years from now.

    From a litigation perspective, the Texas Legislature was very clever. If it works, some blue states might try the same thing to fight Second Amendment issues or drunk driving issues. The riddle is, “Can you write a law whose enforcement is very hard to enjoin?”

    It’s not clear whether the law does authorize those boards to enforce it. The plaintiffs claim that it does, and they should be enjoined from doing so. The boards themselves say they have no such power, so they don’t understand why they should be enjoined from doing something they can’t do anyway. The Supreme Court looked at it and said “Maybe”. It’s a question of state law, and it’s plausible that they do have such power, in which case they must not use it. So the appeals court said, fine, let’s ask the Texas Supreme Court. They’re the experts in Texas law, so they can tell us whether these boards can enforce this. If they can, we’ll order them not to.