Acting speedily, Texas state officials asked a federal appeals court on Thursday to hand over to the Texas Supreme Court a new plea to stop clinics from challenging that state’s strict new abortion ban (so-called “SB8”).
The officials acted without waiting for that case to formally return from the Supreme Court to the U.S. Court of Appeals for the Fifth Circuit. They filed the transfer case within hours after Supreme Court Justice Neil M. Gorsuch signed an order to send the case down to that tribunal for further review of the Texas law that bans almost all abortions after six weeks of pregnancy – the strictest in the nation.
That kind of haste apparently was thought necessary to assure that the transfer plea would get priority treatment as the clinics’ case moves forward. It seemed likely that the detailed, 13-page filing by state officials had been prepared in advance, waiting for the Supreme Court in Washington to finish with the clinics case and pass it back to the Fifth Circuit Court.
Justice Gorsuch, who took that step at midday Thursday, had been the author of the Supreme Court’s ruling last Friday saying – but only tentatively – that it appeared that four state officials (and no one else) could be sued by the clinics to stop them from enforcing SB8.
The question of who among state officials has the authority to enforce the ban is a question of state law, and the Texas Supreme Court would have the final word on that issue. If it were now asked by the Fifth Circuit Court to provide that answer, the state court presumably would be willing to settle it in a binding way.
The clinics have indicated they will oppose the transfer proposal. They want their case to keep moving in the federal courts toward a prompt resolution, especially since the ban has already been in effect across Texas for 107 days.
It makes a major difference if no state officer has enforcement power because then, it seems, clinics and doctors who perform abortions would have to await prosecutions of them in state courts by private individuals who would have the authority, under SB8’s unusual mechanism for implementing the ban. It might then take months for a final ruling, in some court, on the constitutionality of the Texas ban. Meanwhile, the strict law would remain in effect.
The case being pursued by the clinics and doctors in the federal courts is one of three lawsuits attempting to challenge SB8. The other two – one in federal court by the Biden Administration’s Justice Department, and one by a group of clinics and abortion advocates in state courts – appear to be moving on slower judicial tracks.
The Texas legislature, in enacting the ban earlier this year, did not want state officials enforcing the law because that would have opened them to constitutional challenges in federal courts. So, they crafted the private individuals’ enforcement scheme, to assure that disputes over it remained in state courts – presumably, more friendly to the law.
The clinics and doctors did not wait for SB8 to actually go into effect before they moved both in federal and state courts to challenge it. Shortly afterward, the Biden Administration filed its own case in federal court. The Supreme Court moved swiftly on both cases when the cases were diverted to it from lower courts this Fall. It ruled in the clinics case that the pre-enforcement lawsuit could go ahead, but only against four state officials who supervise medical licensing. It did not rule on the validity of the ban itself. In the Administration’s case, the Supreme Court chose to leave the initial ruling on it to lower courts.
In the state officials’ new filing Thursday in the Fifth Circuit Court, they asked that the case be shifted to Texas’s highest state court to answer this question (partly paraphrased):
“Whether Texas law allows [the 4 medical licensing officials] to take disciplinary or adverse action of any sort against individuals or entities that violate [SB8], given the restrictions on public enforcement in [SB8 and other state health laws].”
If the state tribunal were to answer that question No, there apparently would be nobody that the clinics could sue in the federal courts. That would then leave their fate to Texas state courts in the cases now going through those courts.
The document argued that shifting the case to the state Supreme Court would get a prompt response, noting that the tribunal “is known for its speedy, organized docket.”
If the Fifth Circuit is unwilling to make that transfer, the state officials urged it to set up a schedule to complete the review by the Fifth Circuit Court itself of all remaining issues in the case, rather than shift the case back to a federal trial court in Austin.
The clinics would have preferred to have the case go next to the court in Austin, because they won there in the opening ruling in their case and hoped to do so again. The judge struck down the ban and the enforcement scheme. Texas officials had an appeal from that ruling pending in the Fifth Circuit Court when the Supreme Court in Washington chose to step in, resulting in last Friday’s decision – a preliminary ruling — to allow the enforcement scheme to be challenged in federal court. Justice Gorsuch on Thursday opted to return the case to the appeals court, not to the court in Austin.
