The Fifth Circuit U.S. Court of Appeals’ certification of a state-law question drew sharp criticism from Circuit Judge Stephen Higginson, who accused the court of thumbing its nose at the U.S. Supreme Court’s remand instructions in the Texas abortion case.
The circuit court certified a question to the Texas Supreme Court asking how far state law allows certain state officials, particularly licensing officials, to go in enforcing violations of Senate Bill 8. Senate Bill 8, the so-called Heartbeat Bill, bans abortions at the first detection of a fetal heartbeat.
Abortion providers and supporters originally sued Attorney General Ken Paxton and other state officials, most of them heads of licensing agencies. U.S. District Judge Robert Pitman in Texas’ Western District ruled for the plaintiffs.
In a decision Monday by the Fifth Circuit, on remand from the Supreme Court, a three-judge panel over one dissent asked the Texas Supreme Court to determine 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 … 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.”
But in the Fifth Circuit’s opinion certifying the question Judge Edith Jones wrote: “Based on the parties’ limited representation of Texas law to the Supreme Court of the United States, the Court did not specifically construe Texas law, certainly not the swath of bare citations with which it was confronted.” That called for determining “overarching questions of state law,” Judge Jones wrote, which will be determinative for “future proceedings in this federal suit and will materially affect” analysis of the plaintiffs’ claims against each of the state licensing defendants.
“Whether any of these Defendants has authority to enforce violations of S.B. 8 under relevant state law will be critical for potential issues of standing and ripeness,” she wrote.
Hold on, Judge Higginson retorted in his dissent from the 2-1 decision.
“By granting the defendants’ motion,” wrote Higginson, “we exceed the scope of the Supreme Court’s mandate. As the Supreme Court explained almost 200 years ago, issues already decided by that Court cannot be relitigated in lower federal courts such as this one.”
But the majority opinion said the Supreme Court ordered remand in light of Texas’ explicit notice that it would seek certification from the Fifth Circuit, so the remand order cannot be fairly read to have foreclosed certification.
If the circuit court is “free to set an example that fully briefed, argued and decided Supreme Court holdings can be detoured for re-litigation on remand, using certification,” Higginson wrote, “I will be interested not only in revisiting the state law question that the defendants lost, but also the state law question that the plaintiffs lost, which divided the United States Supreme Court more closely than the question we certified: namely, whether the Texas Attorney General has the authority to enforce S. B. 8.”
Josh Blackman, a professor at the South Texas College of Law Houston who teaches constitutional law, said Higginson may be right that a delay by certifying the question can run out the clock on litigation before the Supreme Court decides Mississippi’s challenge to the 1972 abortion ruling. But he said Higginson was being a “little bit” dramatic because state courts ultimately will resolve whether plaintiffs have standing to sue state licensing agencies to thwart prospective enforcement of the Texas law.
The U.S. Supreme Court decided standing to sue the medical-licensing defendants on an “Erie guess” interpreting Texas state law, said Alexandra Albright of Alexander Dubose Jefferson in Austin, a lawyer who is working on a state suit parallel to the case the U.S. Supreme Court remanded to the appeals court.
“By certifying the case,” Albright said, “the Fifth Circuit majority is not accepting the Supreme Court’s ‘Erie guess.’”
In recent years the Texas Supreme Court has accepted any case certified to it by a federal circuit court. Following a routine, the court will likely vote on whether to accept the case after a staff attorney memo.
Susan Hays, founder of Jane’s Due Process, an advocacy and legal referral service for pregnant Texas minors, accused the Firth Circuit panel of playing “procedural games.”
“The rule of law,” she said, “has long been gone when it comes to abortion.” “Constitutional rights mean nothing if the courts aren’t willing to protect them with an injunction pending judicial review.”