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:
CERTIFIED QUESTIONSFor 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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