5th Circuit sends Texas Heartbeat Law to Texas Supreme Court rather than to federal judge who had briefly blocked the law

By Dave Andrusko

A divided three-judge panel of the 5th Circuit sided with attorneys for the state who have asked them to send Texas’s Heartbeat Law to the Texas Supreme Court for further clarification. S.B.8. protects unborn children whose hearts have begun to beat, usually at about 6 weeks of pregnancy.

“The 2-1 court decision held that there was too much ambiguity around the meaning of the Texas law to allow federal courts to continue to act on the legal challenge without definitive guidance from Texas’s top court,” according to Politico’s Alice Miranda Ollstein and Josh Gerstein.

The Supreme Court, in its December 10th opinion, said the legal challenge could continue but only against Texas licensing officials who oversee nurses, physicians and pharmacists. “[T]he U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law,” Eleanor Klibanoff wrote.

Texas officials countered, saying “the state’s high court must first determine whether those licensing officials in fact have the enforcement power the U.S. Supreme Court suggested to discipline medical professionals who violate the six-week abortion ban,” according to the Washington Post’s Ann E. Marimow. “[Texas Attorney General Ken] Paxton told the 5th Circuit that state officials believe the law prevents licensing officials from enforcing the ban either directly or indirectly, and that the justices did not definitively resolve whether abortion providers have legal grounds to sue.”

The 5th Circuit panel agreed. “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,” wrote Judge Edith H. Jones. “This court reasonably seeks the Texas Supreme Court’s final word on the matter, With no limit placed by the Supreme Court’s remand, this court may utilize the ordinary appellate tools at our disposal to address the case—consistent with the Court’s opinion.”

Judge Stephen Higginson vigorously dissented. “By certifying this question and, worse, by simultaneously carrying a motion for further briefing to us with the case, we are only causing further delay, indeed delay without specified end,” he wrote. “This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court.”

“Higginson’s two conservative colleagues countered that because the U.S. Supreme Court’s ruling on the Texas law was split on several key issues about the Texas abortion ban, the state’s Supreme Court should be permitted to step in and offer guidance,” Marimow wrote.

The law took effect September 1 and except for a day or two has been saving babies every day since. The Center for Reproductive Rights wanted the 5th Circuit to return the case to the trial judge– U.S. District Judge Robert L. Pitman in Austin– who blocked enforcement of the law. In an opinion that minced no words, he characterized the law as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”

The Supreme Court is separately considering Mississippi’s Gestational Age Act law that protects unborn babies after 15 weeks. “At oral argument this month, Jones suggested that the Texas case may not be resolved before the Supreme Court rules in the Mississippi matter and asked whether the 5th Circuit should just wait to rule until then,” according to the Post.

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