The 5th U.S. Circuit Court of Appeals ruling sending Whole Woman’s Health vs. Jackson, a limited challenge to Texas’ Senate Bill 8, the most restrictive abortion law in the nation, to the Texas Supreme Court was criticized by plaintiffs Tuesday, a move they say will only delay the outcome.
The plaintiffs say sending it to the Texas Supreme Court instead of the federal district court will prevent a decision and ultimately delay relief.
“The 5th Circuit has once again defied a Supreme Court ruling and delayed a reckoning on SB 8. As a result, Texans will continue to have to travel hundreds of miles to access abortion care, and those without means to do so will be forced to continue their pregnancies,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
“There is now no end in sight for this injustice that has been allowed to go on for almost five months,” Northup said.
Since Senate Bill 8 was enacted on Sept. 1, abortions have been cut by approximately 50% according to one study done in October. Some women have crossed state lines to obtain abortions after six weeks, as The Dallas Morning News reported some traveling to Oklahoma, New Mexico, Colorado, Kansas, Arkansas and Louisiana.
The primary case challenging the new law was argued before the U.S. Supreme Court on Nov. 1, and the ruling on Dec. 10 allowed SB 8 to stand while allowing some challenges to continue, but with a limited scope of who could be sued.
Monday’s decision sends the case to the Texas Supreme Court to determine whether or not SB 8 would allow state licensing officials to discipline or take away medical licensing from doctors who violate the six-week ban on abortions. Defendants argue that the question requires certification in Texas because it is a question of state law, not federal law.
Texas is arguing that the question regarding state medical licensing officials must be certified in the state Supreme Court because it is a question of state law. If the court decides to accept the case, it will go back to the 5th Circuit and then back to lower federal courts.
‘There is now no end in sight for this injustice,’ Center for Reproductive Rights CEO says. Plaintiffs say sending it to the Texas Supreme Court will only delay the outcome.
The question before the state Supreme Court is:
“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.”
On the three-judge panel, one circuit judge, Stephan Higginson disagreed with the majority opinion stating “by granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.”
David Coale, an appellate lawyer in Dallas, explained that the process at the Texas Supreme Court will not necessarily be speedy.
“There’s no way this is going to move that fast, even if it went back to the district court, the district court would have to send it to the circuit court, there would be stays, and of course in the background is this U.S. Supreme Court case that may overrule Roe entirely in five months,” he said. “I can’t imagine any court really wanting to jump out there in front of Dobbs unless they absolutely have to.”
During oral arguments on Jan. 7, Judge Edith Jones, a conservative appointee, asked Marc Hearron, lead attorney for the plaintiffs, if the case would be “alive or dead” after the Supreme Court rules on another case, Dobbs vs. Jackson, a Mississippi case that directly challenges Roe vs. Wade, the case from Texas that legalized abortion in 1973. A decision is expected on Dobbs in June.
“What happens when the Supreme Court, if the Supreme Court, as many expect, says something about Roe vs. Wade that implies that Senate 8’s prohibition on abortions after heartbeat? Maybe? What happens then?” Jones asked Hearron.
Hearron referenced the U.S. Supreme Court ruling that already said that the case “should enter appropriate relief without delay.”
The Texas Supreme Court could announce its decision to accept or deny the case as soon as Friday.
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