SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.


A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“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,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

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2 Responses to SB8 lawsuit moves to SCOTx

  1. Kibitzer Curiae says:

    RE: It is pretty wild that eight justices of the Supreme Court ruled that the federal lawsuit against S.B. 8 could move forward—and the 5th Circuit just said “nah, we don’t think so.”

    The paraphrase is misleading. The case * is * moving forward, but in a different venue that’s more Life-friendly.

    The problem was actually created by the SCOTUS. The Fifth Circuit, which is an “inferior” court as to them, had already ruled that the private enforcement mechanism in SB8 was exclusive, leaving no role for the licensing officials. Only Justice Thomas agreed that exclusive actually means exclusive. So this detour to the SCOTX should have been unnecessary. The Fifth Circuit panel that previously addressed the issue hadn’t even realized that there was a purported need for Erie guessing when they took the statutory language as they found it and went with the plain meaning.

    The newly-commenced certified question docket is here:

    While they are at it, the SCOTX should also address the other unresolved state-law issues, but they will probably opine that they are not within the scope of what they were asked to do by the Fifth, and the Peeples opinion-order from the MDL litigation hasn’t yet arrived at the top.

  2. Pingback: SB8 litigation will stay with SCOTx – Off the Kuff

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