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Texas Abortion Ban Next Stop Hotly Debated by Appeals Court (1)

Jan. 7, 2022, 5:28 PMUpdated: Jan. 7, 2022, 6:54 PM

A Fifth Circuit oral argument over whether the Texas Supreme Court should weigh in on a Texas law that bans most abortions became so heated Friday that one judge told another “this court doesn’t litigate on behalf of one side or the other.”

The oral argument featured frequent sparring between Judges Edith H. Jones and Stephen A. Higginson, who appeared to disagree on whether the state’s top court should be asked to decide if professional licensing board members are proper defendants in a case challenging the constitutionality of the law barring abortions after about six weeks of pregnancy. The federal court is deciding whether to send that question to the Texas Supreme Court.

It’s an important question because the board members are the only defendants left in the case after the U.S. Supreme Court’s December decision holding that Texas officials like Attorney General Ken Paxton (R), state-court judges, and court clerks are immune from suit.

If the Texas court decides the board members have no power to enforce the law, known a S.B. 8, then the abortion providers’ lawsuit essentially would be over, as there would be no one left in the suit that could be barred from suing providers for alleged violations.

Alternatively, sending the case back to the U.S. District Court for the Western District of Texas at this point would keep it alive, at least until a court decides if the board members are proper defendants—that is, if a judgment against them would give the providers the relief they seek.

Certification Likely

Jones and Judge Stuart Kyle Duncan indicated a willingness to certify a question to Texas’ top court over whether professional licensing board members are proper defendants in the case challenging the law’s validity before sending the suit back to the federal trial court where it started.

Higginson, on the other hand, expressed concerns that by granting certification the Fifth Circuit would be telling the U.S. Supreme Court that its December decision greenlighting the case is nothing more than an advisory opinion.

Jones appeared to accuse Higginson of litigating for the providers, but Higginson insisted he was just trying to get an answer to his questions.

No federal appeals court has certified a question to a state court after the Supreme Court has ruled on it, Higginson said.

Jones is a Reagan appointee, and Higginson is an Obama appointee. Duncan was nominated in 2018 by then-President Donald Trump.

Boards’ Enforcement Power

At issue is whether the Fifth Circuit should ask the Texas Supreme Court to decide if S.B. 8 gives sufficient enforcement power to members of Texas’ professional licensing boards to make them the right defendants in a suit seeking to block the law.

It’s a question of statutory interpretation that should be decided by the state’s top court, said members of the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission.

The certification request is merely one more delay tactic, according to the abortion providers. The law has been in effect since Sept. 1 and has essentially shut down the right to abortion in the state, they said.

Identifying Defendants

From the beginning, the providers’ attempts to get the law blocked have been stymied by its enforcement scheme, which puts that power in the hands of ordinary citizens and expressly says that state officials have no power to enforce the law.

But in a December decision, a majority of the U.S. Supreme Court said S.B. 8 “appears” to give enforcement power to the boards, thereby allowing the suit to proceed against them.

The law says the boards may take disciplinary action against licensees accused of violating it.

Not Normal Case

Normally, federal appeals courts remand cases to the trial courts where they originated after getting them back from the Supreme Court.

In this case, that would be the Western District of Texas, where Judge Robert Pitman has been receptive to claims that the law infringes the constitutional right to abortion.

But Fifth Circuit should grant certification because the U.S. Supreme Court’s decision on the board’s enforcement power is “tentative,” Natalie Deyo Thompson, an attorney arguing for the board members said. Thompson is with the Texas Attorney General’s Office.

Eight justices decided the case could proceed against the board members, that doesn’t sound tentative, Higginson said. Thompson disagreed. The plurality opinion repeatedly stresses that state law controls, and in this case that means the state court should decide if S.B. 8 gives the boards enforcement power, she said.

The nation’s top court made an “Erie guess,” Thompson said, referred to a seminal Supreme Court ruling that state law provides the answer for federal courts deciding state-law questions.

Higginson continued to press Thompson, asking what happens if Texas’ top court decides the Supreme Court’s Erie guess was wrong?

But Thompson agreed with Duncan that the Fifth Circuit needs to know the state court’s answer on whether S.B. 8 gives the boards enforcement power. The court could then decide if it should uphold the lower court’s decision giving the providers standing to sue the boards, she said.

No Option

Marc Hearron, the providers’ attorney, argued the Supreme Court’s decision left the Fifth Circuit with no option but to send the case back to the district court. The justices ruled that the case can proceed beyond the motion-to-dismiss stage as to the licensing boards, he said.

But Duncan said he didn’t understand how an injunction against the boards would help. It wouldn’t stop private citizens from bringing S.B. 8 suits in Texas state courts, he said.

Hearron answered that Duncan’s concern wasn’t at issue in this hearing, but Jones reminded him that “this isn’t a press conference.” She later questioned whether injunctions issued by Texas state courts against S.B. 8 plaintiffs gave providers the ability to continue “business as usual.”

Much of the providers’ presentation turned on what, exactly, the Supreme Court did. The majority of justices ruled on a sovereign immunity question, not a standing question, Hearron said. That issue thus must go back to the district court, he said.

Duncan and Jones both took issue with that characterization.

What should the Fifth Circuit do if it refuses to certify the case, and the Texas Supreme Court later says that S.B. 8 doesn’t give the boards power to enforce the law, she said.

“We’ll all have egg on our faces,” Jones said.

Higginson disagreed, saying certification at this point, after the Supreme Court has spoken, would be second-guessing the high court’s decision.

The judges asked if they should wait on the Supreme Court’s decision on the providers’ petition for a writ of mandamus to stop them from certifying the issue to the Texas Supreme Court. That would result in more delay, as the boards’ response isn’t due until Feb. 3, Jones said.

Jones later asked if the Fifth Circuit should delay the case even further, waiting until the Supreme Court decides if it will overturn Roe v. Wade. That would be contrary to the top court’s directive to the Fifth Circuit to act quickly, Hearron said.

The Texas Attorney General’s Office, Hacker Stephens LLP, and Mitchell Law PLLC represent the defendants. The Center for Reproductive Rights, Morrison & Foerster LLP, American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, Planned Parenthood Federation of America, and Lawyering Project represent the providers.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Whole Woman’s Health v. Jackson, 5th Cir., No. 21-50792, oral arguments 1/7/22.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Peggy Aulino at