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Texas Supreme Court Ruling Ends Remaining Challenge To “Fetal Heartbeat” Law

Texas Supreme Court Ruling Ends Remaining Challenge To “Fetal Heartbeat” Law

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.

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.


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David stood up to Goliath

It used to be that babies coming out of the womb had about the same odds as Marines landing on Iwo Jima. Now they have a fighting chance. At least in Texas.

Groundhog Day | March 11, 2022 at 1:31 pm

“For now, the Texas Fetal Heartbeat Law is alive and kicking.”

And so is the baby… 🥰

    From her first to last heartbeat. Think of granny!

    Planned parent/hood is a wicked solution, is neither a good nor exclusive choice.

2smartforlibs | March 11, 2022 at 2:14 pm

The left didn’t care about this since 72. As too many said this was law. It was always a court decision never law and we couldn’t be happier.

I worry about having a law where any person can sue someone who has done something that does not affect the person who sues. I can imagine a law in California where anyone can sue anyone with a gun, or with a particular type of gun. That would get around the 2nd amendment, since the state is not the one enforcing the law. California politicians have already floated such an idea.

but, but, but…. muh penumbrums!

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.

I think the plaintiffs hoped that by suing these state officials on the grounds that the entire law is unconstitutional, they could get a court to officially rule that this is so, and that would strike it down completely.

Now the TX court has said they can’t sue the officials, because the official are unable to enforce the law against them; and they can’t sue individuals who might enforce the law against them, because they don’t know who those people are. Therefore until someone actually takes action against them they can’t do anything, and must live under the constant threat that at any time someone might take such action. Which is exactly what the TX legislature intended to happen.

Now we just have to hope that nobody is so stupid as to actually take action under this law, thus giving the plaintiffs an opportunity to get it struck down.

    OldProf2 in reply to Milhouse. | March 11, 2022 at 3:08 pm

    Milhouse– The CA governor has already introduced a similar bill to get around the 2nd amendment, allowing citizens to sue industry:

    If this bill is successful, he could easily expand its reach to include all gun owners rather than just the industry. Do you think this might be a successful way for him to get around the 2nd amendment protections?

      n.n in reply to OldProf2. | March 11, 2022 at 3:16 pm

      The same principle can be applied to scalpel manufacturers, vacuum manufacturers, Green industry, transgender conversion advocates, immigration activists, coup plotters (e.g. Slavic Spring), diversity/inequity/exclusion (e.g. racism), “fat is beautiful/healthy at any weight” activists… a progressive path and grade.

        n.n in reply to n.n. | March 12, 2022 at 12:51 am

        Car manufactures, specifically SUVs… recently used to open a mass abortion field of grannies and children, and a leading cause of annual, global excess death and injury by Choice (e.g. premeditated) or happenstance.

      CommoChief in reply to OldProf2. | March 11, 2022 at 4:18 pm

      What would be the basis of a suit by those opposed to the 2nd Amendment? Misuse, broadly speaking, of firearms? That’s already a criminal violation and a route to a civil suit already exists for those harmed. Sue gun dealers? For what? They are highly regulated; criminal and civil penalties already exist for transfer of a firearm to an ineligible person. Sue manufacturers or ammunition companies? They are not responsible for misuse of their products any more than Ford is when that wacko drove his Ford Escape into the Parade last year.

      The other barrier is that the 2nd amendment has been ‘incorporated’ to apply to State and local govt. There are explicit limits as to how far States can go not because they are a govt body but because of the individual liberty rights of the 2nd amendment. The decisions of Heller and McDonald are pretty straightforward, not that the 9th Circuit has noticed.

        maxmillion in reply to CommoChief. | March 12, 2022 at 7:18 pm

        A blue state 2nd Amendment use of this approach would mean anybody and everybody has a cause of action against (i.e., can civilly sue) any retailer who sells a gun that ends up killing any person. Blue states would be free to statutorily create such a tort, including strict liability.

      Milhouse in reply to OldProf2. | March 13, 2022 at 12:01 am

      A statute like this would be ineffective against individual gun owners, because the moment anyone actually sued them under it, it would be struck down — just as would happen to the TX statute if anyone is ever stupid enough to sue under it. The effect of this statute comes from the fact that anyone could use it, but no court can do anything about it until someone does.

      That potential threat has proved to be an effective weapon against abortion providers, who are afraid of facing litigation. It might prove to be a good weapon also against gun retailers. But individual owners could safely ignore it. If one is ever actually sued there would be plenty of lawyers willing to represent them pro bono.

      But bear in mind that nothing prevents CA from doing this anyway, regardless of what happens in TX.

The baby/granny duality: viable from the first to last heartbeat. #HateLovesAbortion

This is a devastating blow for abortion [rites] in Texas and across the country.

The ancient faith (“Twilight”), religion (“Pro-Choice” or “ethical”/relativistic/”=”), ideology (“liberal” or divergent), and practice of elective abortion or human rites for social, redistributive, clinical, and fair weather causes. Think of “our Posterity”!

I sure do hope who ever came up with the law in this format has been well looked after by Florida!

What about the babies who are younger than the age for fetal heartbeat? Are they subhuman?

    Milhouse in reply to ChayaLoo. | March 13, 2022 at 12:02 am

    Maybe. Judaism says they are.

      JackinSilverSpring in reply to Milhouse. | March 13, 2022 at 11:48 am

      Millhouse, tell me where Judaism says so?

        In many places, I have no time right now to look up details, but there seems to be a comprehensive discussion of the topic here. Basically, Judaism’s view is that it takes 40 days for an embryo, which is not a person, to become a foetus, which is a person. That happens to correspond very nicely to the first detectable brain activity, as well as heartbeat.