The long and winding road of the Texas heartbeat law has taken yet another strange turn with a new ruling by the Fifth Circuit Court of Appeals. The ultimate validity of the law is still unresolved. But the key point is that while litigation continues, the law will continue in effect. And that means fewer abortions in Texas until the fate of this law is finally decided.
This new ruling actually has nothing to do with the merits of the law itself. Instead, it is like a law school exam question, with all sorts of complex twists and turns in federal civil procedure. I’ll try to unravel it.
Recall that SB 8 contained an innovative attempt to shield itself from being struck down: it prohibited state officials from enforcing it, and gave enforcement authority only to private parties. That created a significant problem for abortion clinics—who do you sue if you want to challenge the constitutionality of the law?
The clinics went ahead and challenged the law by suing every public official they could think of. A District Court judge originally put the law on hold pending further litigation. That ruling was later overturned by the Circuit Court, which allowed the law to go into effect.
In December, the Supreme Court took up the case on an emergency appeal. A majority of the Court suggested that there may be a possible defendant—state medical licensing officials. But there was no majority opinion on this crucial point, so the issue wasn’t definitively resolved.
At that point, the Supreme Court did something very interesting. The clinics wanted them to send the case back down to the original District Court. But instead, the Supreme Court sent the case back down to the Circuit Court “for further proceedings.”
This put the Circuit Court in something of a legal Catch-22. There really was no pending issue for the Circuit Court to decide. The only logical “further proceeding” was to send the case back to the District Court for motions to dismiss, and so on.
But for the case to continue in any court, they had to know exactly what the law of Texas was—and that wasn’t clear at all. Texas has insisted all along that those licensing officials don’t have any authority to enforce SB 8. The clinics (desperate for a defendant they can actually sue) naturally disagreed. As the Supreme Court itself made clear for decades, the ultimate authority about a state’s law is that state’s highest court, not a federal court. So if either the Circuit or District Court continued with the case, they ran the very substantial risk of getting Texas law wrong.
There really was only one thing that the Circuit Court could do to escape their dilemma. In technical terms, they “certified a question” to the Texas Supreme Court. This meant formally asking the Texas Supreme Court to decide whether the licensing officials (or any other public official) had the authority to enforce SB 8. That may have been why the Supreme Court sent the case back to the Circuit Court and not the District Court—only the Circuit Court can certify a question to the Texas Supreme Court.
What does all this legal tangle mean? The most immediate result is that the case will be delayed further. There’s no rule that requires the Texas Supreme Court to decide this question anytime soon. It will undoubtedly require a full new set of legal briefs and ultimately an oral argument. That could take months itself, without even counting how long it would take for the court to issue a ruling.
It’s likely that the Texas Court will read SB 8 literally, and say that no public official—even the medical licensing officials—can enforce the law. But no matter what they rule, the case would then go back to the federal Circuit Court for some kind of further proceedings.
And in the meantime, the law will continue in effect, preventing many abortions from taking place. That’s an unqualified good.
But there’s another result that we should be concerned about. There’s a danger that this kind of law will be turned against prolifers. Imagine if a statute were to give anyone the ability to sue the Church, or a hospital, or a doctor over our refusal to refer women for abortions, or to perform gender-reassignment surgery. I could easily see a progressive state or city legislature passing such a law.
The same kind of difficulty that the abortion clinics are having in Texas may be a sign of things to come for us.