A new era of defiance: 5th Circuit may ask Texas Supreme Court to pass on SB8

Update - Whole Women's Health has moved for a Writ of Mandamus to remand the case to the District Court, rather than certify it to the Texas Supreme Court as the 5th Circuit suggests.

Having found a statute unconstitutional, it is elementary that a court has power to enjoin all those charged with its execution. Normally, these are officers of the executive branch, but when the legislature itself seeks to act as executor of its own laws, then, quite obviously, it is no longer legislating and is no more immune from process than the administrative officials it supersedes. As Chief Justice Marshall said in Marbury v. Madison, 5 U.S. 137: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing [an injunction] is to be determined."

Bush v. Orleans Parish and State of Louisiana, 188 F. Supp. 916 (E.D. La. 1960)

RIVES, Circuit Judge, and CHRISTENBERRY and WRIGHT, District Judges.

Affirmed, 368 U.S. 908 sub nom Legislature of Louisiana v. United States

The Fifth Circuit Court of Appeals, led by the Republican Judge John Minor Wisdom, was once an ally of the Supreme Court's civil rights rulings.  It was a bastion of support for the effort to dismantle the southern system of legal racial segregation of public school.  And in Bush v. Orleans a three judge District Court (28 USC 2281) voided an  "interposition law" which declared that school desegregation orders  "based solely and entirely on the the pronouncements of Brown v. Topeka Board of Education," are "null, void and of no effect as to the State of Louisiana."

The Brown v. Board of Education mandate to cease intentional legal segregation was for a decade met by massive resistance by southern legislators, governors, and local governments.  Statutorily mandated or sanctioned racial segregation was finally defeated by an alliance of the Supreme Court and the Congress which passed the Civil Rights Act of 1964.  After that foot dragging and indifference perpetuated racial segregation of southern public schools.  And in 1974 in Milliken v. Bradley the Supreme Court abandoned the effort in the north - refusing to cross the City-suburb line to remedy racial segregation.

But now a new era of state resistance and defiance has emerged, focused on the constitutional right to elect abortion.  The State of Texas has, via SB 8, in the spirit of Terry v. Adams, 345 U.S. 361 [1953] (frustrating African American voting rights) successfully evaded a constitutional command  by "subbing out" enforcement of a plainly unconstitutional law to private parties.    That there is a constitutional personal right to elect abortion was uncontested fact.  Until the point of viability neither federal nor state government may place any "undue burden" on a woman's exercise of that right.  Until now.  The Supreme Court - a majority hostile to the right - has allowed Texas to outlaw abortion beyond six weeks of gestation.  The possible remedy in Whole Women's Health v. Jackson was limited to continuing a pre-enforcement action against the state's medical licensing officers.

By remanding to the Circuit Court of Appeals, rather than the District Court, the Supreme Court, as feared, opened the door to substantial further delays in vindication of the right the court itself has recognized for nearly half a century.  By placing the matter in the hands of the overwhelmingly conservative 5th Circuit Court of Appeals a return to the Judge who held the Texas law unconstitutional delay seemed inevitable. 

 Now a panel of the New Orleans based appellate court has set January 7 for oral argument to discuss whether the plaintiff medical clinic shall be compelled to ask the Texas Supreme Court for its opinion whether the law knowns by its pre-passage acronym SB-8 satisfies Texas state law.  Enforcement of the right will be further delayed if the Texas high court accepts the certified question and decides whether SB 8 itself complies with the Texas state Constitution and laws.

Circuit Judge Stephen A. Higginson (a 2011 Obama appointee) has filed a memorable and powerful dissent.  He sounds an alarm loud enough that it raises the likely vain hope that the Whole Women's health challenge will return to the District Judge Robert Pitman who granted the plaintiff medical clinic a preliminary injunction against Texas law SB-8 which deputized private litigants to seek large statutory rewards for reporting abortions barred by the state after six weeks gestation. 

- GWC

54965th Circuit en bank whole-woman-s-health-v-jackson-ca5-certification-argument-scheduling-order.pdf

Stephen A. Higginson, Circuit Judge, dissenting: 

I respectfully disagree with the majority’s decision to hear oral argument on this remand from the United States Supreme Court. 

I do not read the Supreme Court’s judgment [in Whole Women's Health v. Jackson], especially in a case of this magnitude and acceleration, to countenance such delay. I would immediately remand the case to the district court, denying without oral argument the defendants’ motion to certify [the question to the Texas Supreme Court] and alternative motion to set a briefing schedule. 

However, having been unpersuasive, upon an appropriate motion, I would preliminarily enjoin the defendant licensing officials from enforcing S. B. 8 against the plaintiffs, in accordance with the Supreme Court’s near unanimous holding that “sovereign immunity does not bar the [plaintiffs’] suit against these named defendants at the motion to dismiss stage.” Whole Woman’s Health v. Jackson, No. 21-463, 2021 WL 5855551, at *8 (U.S. Dec. 10, 2021). 

I would deny the defendants’ motion to certify. I am confident that the Court did not intend an unintelligible perhaps when it concluded that the plaintiffs’ suit may proceed against four “executive licensing official[s] who may or must take enforcement actions against the [plaintiffs] if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.” Jackson, 2021 WL 5855551, at *8 (citing Tex. Occ. Code § 164.055(a)).