For now, the Texas Fetal Heartbeat Law is alive and kicking.
The Texas Supreme Court just answered a Certified Question from the 5th Circuit Court of Appeals which likely forecloses the last remaining federal court challenge to the Texas Fetal Heartbeat Law.
The legal issue revolved around whether abortion clinics and other private inidividuals or groups had “standing” to sue. The law was structured so that no government entitities or officials had enforcement authority. Rather, the law provided private causes of action against persons and entities involved in abortion after a fetal heartbeat is or could be detected. Since government ostensibly had no role in this, suit for alleged constitutional violations arguably could not proceed.
We last covered this case in late January 2022, Texas Fetal Heartbeat Law Lives, As Lower Court Challenge Process Is In Limbo:
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 ruled that state court judges and clerks could not be sued, but left open whether medical license officials could be sued, a narrow road forward. We 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….
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.
Separately, the U.S. Supreme Court dismissed its prior acceptance for review of a suit by the federal Department of Justice challenging the law.
The following questions were certified to the Texas Supreme Court (emphasis added):
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.
The Texas Supreme Court just issued it’s Opinion on the Certified Questions:
We address in this case a certified question from the United States Court of Appeals for the Fifth Circuit,1 asking whether Texas law authorizes certain state officials to directly or indirectly enforce the state’s new abortion-restriction requirements. We conclude it does not.
There are another 20 pages of explanation for this conclusion. But since this is a question of state law, the Texas Supreme Court ruling as to state law cannot be challenged in federal court. Here’s the conclusion:
Conclusion and Answer
Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly. We answer the Fifth Circuit’s certified question No.
This answer is being universally viewed as the end of abortion clinic challenges to the law, at least in federal court. Ed Whelan writes at National Review:
The Texas Supreme Court’s ruling should lead to the dismissal of the abortion providers’ lawsuit.
The Texas Supreme Court’s ruling provides clarity on who can, and who cannot, enforce the Heartbeat Act. But, as I have explained, it is unlikely to have any real-world consequences. Texas abortion providers have been deterred from violating the Heartbeat Act by the massive monetary liability they face, especially if Roe and Casey are overturned. Relief against the licensing officials would have done nothing to alter that exposure.
As U. Texas Law Professor Steve Vladeck notes
There’s still (1) suits against individual defendants to prevent *them* from enforcing SB8; and (2) state court litigation. There’s also still DOJ’s suit vs. TX. But this is yet another ruling that keeps SB8 on the books, denying millions of Texans of their constitutional rights.
BREAKING: The Texas Supreme Court ruled that our lawsuit against Texas’ ban on abortion at 6 weeks of pregnancy, SB8, cannot proceed.
SB8 will remain in place in Texas for the foreseeable future.
This is a devastating blow for abortion rights in Texas and across the country.
— ACLU (@ACLU) March 11, 2022
For now, the Texas Fetal Heartbeat Law is alive and kicking. The next step would be actual lawsuits brought under the law, and whether those hold up on Texas state courts.DONATE
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