In Heartbeat Act Litigation, Fifth Circuit Sensibly Certifies State Law Question to Texas Supreme Court

As expected, on remand from the Supreme Court, a divided Fifth Circuit panel has asked the Texas supreme court, as the authoritative interpreter of Texas law, to advise it whether state licensing officials have authority to enforce the Texas Heartbeat Act (aka S.B. 8).

As I explained in my summary of the Supreme Court’s ruling in Whole Woman’s Health v. Jackson in early December, there was an extremely narrow divide between Justice Gorsuch (joined by Alito, Kavanaugh, and Barrett) and Justice Thomas on the question whether the plaintiff abortion clinics could continue to pursue relief against four state licensing officials:

Gorsuch holds only that sovereign immunity and the Article III adverseness requirement do not bar suit against the licensing officials “at the motion to dismiss stage.” He makes clear that his holding rests on a tentative reading of state law that might turn out to be mistaken. And he expressly agrees with Thomas that the abortion clinics cannot obtain relief against these licensing officials unless they “show at least a credible threat” that the licensing officials will undertake an action against them.

I’ll do my best to present concisely the positions of the panel majority and the dissent and then explain my puzzlement why the abortion providers oppose the panel’s certification of this question to the Texas supreme court.

1. Judge Edith H. Jones, joined by Judge Stuart Kyle Duncan, sets forth three reasons for ordering certification:

First: The Supreme Court “did not conclusively determine the scope of the [licensing] officials’ state law duties, if any, under S.B. 8.” Justice Gorsuch’s opinion “acknowledges uncertainty about Texas law and is laden with qualifiers about the ability of the licensing officials to enforce S.B. 8.” It highlights that “Texas courts and not this one [i.e., not the U.S. Supreme Court] are the final arbiters of the meaning of state statutory directions,” and it only tentatively concludes that “at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S.B. 8.”

Second: The Supreme Court’s remand order “cannot be fairly read to have foreclosed certification.” Texas explicitly told the Court that it wanted to seek certification of the state-law question, and the Court did not remand the case directly to the district court (which can’t certify questions to the Texas supreme court).

Third: The Texas supreme court’s interpretation of state law “will be dispositive as to the position of each Licensing Official at multiple points in the future proceedings,” so certification will promote efficiency and accuracy. Under Supreme Court precedent, certification has “heightened suitability … when federal courts anticipate invalidating a new state law on [federal] constitutional grounds.”

2. In dissent, Judge Stephen Higginson contends that certification “exceed[s] the scope of the Supreme Court’s mandate” and amounts to relitigating issues already decided by the Court. He also contends that the state’s certification request is untimely.

3. In my judgment, the majority clearly has the better of the argument. What’s more, certification does nothing to disadvantage the abortion providers, so it’s difficult to understand why they so vehemently object to this step.

The abortion providers have known since the Court’s ruling in early December that the licensing officials will not be able to enforce S.B. 8 against them. At this point, all that remains is to clarify the legal reason why the licensing officials will not be able to do so.

One possible answer is that they lack legal authority to do so. Only the Texas supreme court can provide that answer, and certification is the quickest way to receive it.

Another possible answer is that licensing officials possess state-law authority to enforce S.B. 8 against the abortion providers but that doing so would violate the abortion providers’ rights under Roe v. Wade and Planned Parenthood v. Casey. That is an answer that the federal district court on remand might provide, but the lack of any imminent threat of enforcement by the licensing officials might well mean that the abortion providers are not entitled to any relief at any time in the foreseeable future.

Many people seem to imagine that a ruling by the federal district court that enforcement by licensing officials would violate the abortion providers’ rights under Roe and Casey would be some sort of gamechanger for S.B. 8. But I don’t see how that argument makes any sense.

Everyone has known from the outset that the heartbeat threshold is inconsistent with the viability threshold of Roe and Casey. But the abortion providers have been deterred from violating S.B. 8 by the massive monetary liability they face, especially if Roe and Casey are overturned. Relief against the licensing officials would do nothing to alter that exposure.

Simply put, in terms of real-world consequences, it is difficult to see how it makes any difference to the abortion providers whether or not they are able to obtain relief against the licensing officials. That’s exactly why they have continued to refrain from post-heartbeat abortions even after the Court’s ruling made clear that, one way or another, licensing officials will not be able to enforce S.B. 8 against them.