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Fifth Circuit Will Hear Texas Abortion Law Referral Jan. 7

Dec. 27, 2021, 7:47 PM

The Fifth Circuit will hear oral arguments Jan. 7 on whether it should ask the Texas Supreme Court to answer questions over a state law banning abortions after six weeks of pregnancy, the federal appeals court said Monday.

Texas administrative officials asked the U.S. Court of Appeals for the Fifth Circuit to certify to the state’s top court the issue of whether Texas administrative officials are proper defendants in a suit challenging the law’s constitutionality.

The provision known as S.B. 8 is the strictest abortion law in the country, as it forbids abortions at a time when most people don’t yet realize they’re pregnant. It also gives enforcement power to private citizens—a provision that’s proven problematic for abortion providers fighting the law.

The U.S. Supreme Court allowed the law to remain in effect earlier this month. But it also said the providers couldn’t sue state judges, county clerks, the state’s attorney general, and an anti-abortion advocate. This left the administrative officials as the only defendants.

Texas’ top court has never had an opportunity to rule on whether S.B. 8 gives the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission direct power to enforce it, the board members told the Fifth Circuit in their motion.

The question is crucial to whether the providers’ case can proceed, the officials said.

The providers opposed the certification motion in a brief filed Dec. 22. The Supreme Court’s decision left the Fifth Circuit with no room to do anything other than send the case back to the federal district court in which it originated, the providers said.

The Supreme Court already has made the decision that the case can proceed against the administrative officials, the providers said.

The motion to certify the question to the state’s top court is merely “a transparent attempt to forestall relief” and “indefinitely prevent plaintiffs from obtaining any effective relief from the district court in the face of a law that is clearly contrary to Supreme Court precedent,” they said.

The oral arguments will begin at 9 a.m. in New Orleans, the Fifth Circuit 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, hearing date set 12/27/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com

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