The United States Court of Appeals for the Fifth Circuit Monday ruled that the Texas State Supreme Court must consider questions of enforcement of controversial abortion law SB8 before Whole Woman’s Health v. Jackson can continue in federal court.
When a federal court must consider an unresolved issue of state law, it may ask the state’s highest court to resolve the issue in a certified question.
Two judges in a three-judge panel ruled to order certification for three reasons. First, the Supreme Court did not determine Texas state officials’ duties under S.B.8 when it considered the case. Second, the Supreme Court remanded the case, knowing Texas would seek certification. Third, the Texas Supreme Court’s interpretation of the law will be controlling.
Under the ruling, the Texas Supreme Court will consider:
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, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act.
In dissent, Judge Stephen Higginson argued that the appeals court has no authority to certify the questions. He believes the appeals court has “already unacceptably delayed this remand from the Supreme Court by sitting on it for one month,” and sending the case back to the Texas Supreme Court will only further delay justice.
Additionally, Higginson argued that the court should grant a certification motion filed “only after the defendants argued and lost this issue in the Supreme Court.” He also argued that defendants had challenged Supreme Court authority:
First by deliberately nullifying a constitutional right expounded by the Court and now, when checked by that Court, by convincing us, an inferior federal court duty-bound to apply a Supreme Court holding, instead to question that holding.