SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.


In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

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One Response to SB8 plaintiffs want their lawsuit moved back to district court

  1. Kibitzer Curiae says:


    Re: “not a thing that appellate courts normally do.”

    Actually, it is a thing that appellate courts normally do, especially in important cases. The “hearing” is in the nature of ORAL ARGUMENT (OA), and it’s only for legal argument, i.e.  nonevidentiary. It’s all lawyers doing the talking, not parties and witnesses.

    Arguably, oral argument was/is unnecessary in this case on remand because “exclusive” (as to the private enforcement mechanism for Subchapter H) plainly means exclusive and a panel of the Fifth had already ruled in accord previously, but – whether it be called good, bad, ugly, or merely expedient – the SCOTUS majority found ambiguity (or wiggle room if you will) as to the authority of state licensing officials (which is a question of state law), so the ball is back in the inferior court.

    If the SCOTUS majority had wanted to, they could have remanded to Judge Pitman, or issued more explicit directive to the Fifth Circuit than Chief Roberts separately. Or they could have requested that the Texas counterpart Supremes weigh in while the case was still pending before them on pre-judgment cert. Or they could have said that exclusive does indeed mean exclusive, and that such truism therefore precludes the Texas licensing officials from enforcing SB8 categorically. Stangely, confirming that the Texas statute says what it says would have been the gutsy – rather than the merely obvious — under the prevailing incendiary circumstances.

    By way of hyperbole and rhetoric critique … calling for a gutting of the Fifth Circuit when they don’t rule in a way we want them to? …. Hmmmm. Let’s give that a thought for a moment.

    Unlike the members of the SCOTX, the 5th Circuit judges don’t stand for election and thus can’t be “gutted” in no primary; not to mention a general election, and that’s true no matter which political party holds sway in the political arena. And the gutting of guts obviously refers to a living organism, not an institution. So what is the call to the grand “gutting” really for here? Another insurrection? This time at the fittingly named Wisdom Courthouse? … If the proposed “gutting” referred to a physical structure housing a government institution rather than those living and breathing the law inside of it.

    Suffice it to point out that assassinating judges who don’t rule in our favor is not normally what we do in a civilized society, not to mention disembowel the corpus once the dastardly deed is done. Leave that to the coroner. And the Mesoamerican practice of cutting hearts from capturted enemies as much as select family offspring for ritualistic sun-God-pleasing purposes has long fallen into disuse.

    This Kibitzer would urge a toning down of the rhetoric and more discerning use of metaphors when it comes to “attacking” members of the contemporary high priests of the legal realm. And perhaps any “attacks” should focus on the merits of issues and decisions, whether procedural or substantive, rather than being directed at the person or being purely driven by gut-level feelings about a procedural ruling, or by the outcome in a particular case and its real-wordl impact. No matter how gut-wrenching the issue, such as the current controversy over extractions of human organic content from down South of the chest and abdominal cavities implicated in heart-ripping and gutting, respectively.

    The docket for the latest supreme court iteration is here:

    This time, it’s a mandamus. Hence the “In re” in In re Whole Woman’s Health


    Texas Health & Safety Code Chapter 171 (Abortion) 

    Sec. 171.005.  COMMISSION TO ENFORCE; EXCEPTION.  The commission shall enforce this chapter except for Subchapter H, which shall be enforced exclusively through the private civil enforcement actions described by Section 171.208 and may not be enforced by the commission.

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