Legal challenge to Texas abortion law returns to federal court; unclear when 5th Circuit will rule

Betty Q. Hixson

Four months after being enacted, Texas’ Senate Bill 8, the most restrictive abortion law in the nation, was back in court Friday, and there were indications the limited challenge heard Friday could be headed for the state Supreme Court, which plaintiffs fear could delay a decision by months.

Friday’s arguments before the U.S. 5th Circuit Court of Appeals were on limited aspects of Whole Woman’s Health vs. Jackson, a case challenging the law.

The case was argued in the U.S. Supreme Court on Nov. 1, and the ruling on Dec. 10 allowed the law to stand but limited the scope of who could be sued under SB 8.

In Friday’s hearing, the court heard arguments about whether the case should proceed to federal district court or go to the Texas Supreme Court for certification on a question over the role of state medical licensing officials reprimanding doctors or nurses who assist in illegal abortions.

Texas argued that the question needed to be answered in the Texas Supreme Court before proceeding to the federal district court.

During oral arguments, Judge Edith Jones, a conservative, asked Marc Hearron, lead attorney for the plaintiffs, if the case would be “alive or dead” after the Supreme Court rules on another case, Dobbs vs. Jackson, a Mississippi case that directly challenges Roe vs. Wade, the case from Texas that legalized abortion in 1973.

“What happens when the Supreme Court, if the Supreme Court, as many expect, says something about Roe vs. Wade that implies that Senate 8′s prohibition on abortions after heartbeat? Maybe? What happens then?” Jones asked Hearron.

Hearron referenced the U.S. Supreme Court ruling that already said that the case “should enter appropriate relief without delay.”

Jones implied that perhaps the 5th Circuit Court of Appeals should wait on the U.S. Supreme Court to make a decision on Dobbs, which is expected in June, and noted that, by then, “It’s very possible that a hot potato would be in the state of Texas Supreme Court.”

Hearron pushed back on the question because of the Supreme Court’s previous ruling.

“I just want to clarify that, if this court were to sit on this … motion until June, that would be completely inconsistent with the Supreme Court’s issuance of the mandate forthwith, rather than even waiting the usual 25 days. The only thing this court has jurisdiction left to do is remand to the district court and as you do so,” Hearron said.

“It’s not the position of Texas that we should sit on this till Dobbs is issued, is it?” Judge Stephan Higginson, an Obama-era appointee, asked the state’s lawyers.

“No,” said Natalie Thompson, the assistant solicitor general, counsel for the state officials being sued.

The arguments’ primary focus was on whether to send the case to the Texas Supreme Court for certification.

Higginson questioned the validity of a state court such as the Texas Supreme Court issuing an opinion that effectively says to the U.S. Supreme Court that its opinion was advisory.

Thompson argued that it is important for federal courts to abstain when there’s a question of certification on a novel question such as this.

The state argues that the high court’s decision has no substantive claim against the state officials under Texas law.

“The court held that sovereign immunity does not bar it at the motion-to-dismiss stage. But that does not mean that there are no other issues that still remain,” Thompson said during her rebuttal.

Higginson asked Thompson whether defendants would agree to expedite the case if the court decided to send it to the Texas Supreme Court for certification. Thompson said the state would be receptive but did not offer a definite yes.

“Judge Higginson is my new favorite 5th circuit hero,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, wrote on Twitter during the hearing.

During the contentious questioning, judges’ individual opinions seemed clear. Higginson appeared as though he wanted to remand the case to the federal district level, and both Jones and Judge Stuart Duncan seemed open to sending the case for certification, which could bring another delay to a case with already high limits on scope.

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