Legal Insurrection by William A. Jacobson 3/11/2022
For now, the Texas Fetal Heartbeat Law is alive and kicking.The Texas Supreme Court just answered a Certified Question from the 5th Circuit Court of Appeals which likely forecloses the last remaining federal court challenge to the Texas Fetal Heartbeat Law.
The legal issue revolved around whether abortion clinics and other private inidividuals or groups had “standing” to sue. The law was structured so that no government entitities or officials had enforcement authority. Rather, the law provided private causes of action against persons and entities involved in abortion after a fetal heartbeat is or could be detected. Since government ostensibly had no role in this, suit for alleged constitutional violations arguably could not proceed.
We last covered this case in late January 2022, Texas Fetal Heartbeat Law Lives, As Lower Court Challenge Process Is In Limbo:
I’m so old, I remember when the pro-abortion supporters snickered about a partial victory at the Supreme Court, which back on December 10, 2021, Left The Texas Fetal Heartbeat Law In Place, But Allowed Limited Future Lower Court Challenges.
The Court didn’t rule on the constitutionality of the law, but whether anyone could challenge it. The Court ruled that state court judges and clerks could not be sued, but left open whether medical license officials could be sued, a narrow road forward. We we wrote at the time:
In a complicated decision by Justice Gorsuch, the Court has left in place the Texas Fetal Heartbeat Law (the validity of which was not directly before the court, only whether pre-enforcment challenges could be made against state officials where those state officials had no enforcement power under the law), dismissed most defendants, but left an avenue for challengers to pursue on lower courts….
Rather than remanding the case directly to the District Court, the case was remanded to the 5th Circuit Court of Appeals for a decision as to the next procedural steps. That was a big blow to the plaintiffs, and their worst fears are coming true.
The 5th Circuit decided that it was premature to give the case back to the District Court, what was needed was an certified opinion as to state law from the Texas Supreme Court. That’s a prodecure federal courts sometimes use where there is a disputed issue of state law; state courts decide state law, not federal courts.
More:
https://legalinsurrection.com/2022/03/texas-supreme-court-ruling-ends-remaining-challenge-to-fetal-heartbeat-law/
