“The unresolved questions of state law must be certified to the Texas Supreme Court,” wrote Judge Edith Jones, an appointee of President Ronald Reagan, in an opinion joined by Judge Stuart Kyle Duncan, who was appointed by President Donald Trump.
Jones stressed in her ruling that the case was not about abortion or the merits of Texas’ six-week ban, but strictly a matter of judicial procedure. She rejected arguments from lawyers for abortion providers that the U.S.Supreme Court had essentially foreclosed such a detour for the litigation. Justices in December declined to block the law but allowed some challenges brought by clinics to proceed.
“With no limit placed by the Supreme Court’s remand, this court may utilize the ordinary appellate tools at our disposal to address the case—consistent with the Court’s opinion,” Jones wrote.
However, in a dissenting opinion, Judge Stephen Higginson argued that diverting the case to the Texas Supreme Court compounds the harm being wrought by the abortion ban and flew in the face of the U.S. Supreme Court’s ruling last month.
“By certifying this question and, worse, by simultaneously carrying a motion for further briefing to us with the case, we are only causing further delay, indeed delay without specified end,” wrote Higginson, an appointee of President Barack Obama." This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court."
Higginson compared the Texas law to measures many Southern states used to undermine federal civil rights guarantees in the 1950s. "Then, like now, it is undisputed that the Constitution, necessarily expounded by the Supreme Court, had been subverted by a state legislature," he wrote.
Higginson’s two conservative colleagues countered that because the U.S. Supreme Court’s ruling on the Texas law was split on several key issues about the Texas abortion ban, the state's Supreme Court should be permitted to step in and offer guidance.
The U.S. Supreme Court’s decision last month disappointed abortion rights advocates because it granted no immediate relief against the Texas law, which allows private individuals to sue abortion providers and collect what critics have described as “bounties” of $10,000 or more.
However, the justices did not completely reject the federal court challenge and ruled that it could proceed if focused on the role that Texas medical licensing officials could play in enforcing the statute.
The abortion providers who brought suit over the law returned to the U.S. Supreme Court earlier this month with a motion to force the 5th Circuit to immediately send the case back to the district court for further action. That motion remains pending without a ruling.
Attorney Marc Hearron with the Center for Reproductive Rights gave POLITICO a bleak assessment of the path forward for abortion rights advocates in a conversation following the early January arguments at the appeals court.
“The Supreme Court gave the green light to this vigilante scheme and said if a state wants to pass a law that infringes on a constitutional right and delegate enforcement to the general public, federal courts can’t do anything to stop that. That’s the core of the case,” said Hearron, after he took part in the 5th Circuit argument session in New Orleans.
“There’s a part of our case left against these licensing officials, and it’s an important part of the case, but people need to understand that even what’s left is being delayed and strung out while patients across Texas are denied their constitutional rights,” he said.