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Challenge to Texas abortion law returns to Fifth Circuit

Abortion providers want the case remanded back to federal district court, but Texas officials argue the state’s high court should decide a question about the law’s enforceability.

(CN) — The Fifth Circuit heard oral arguments Friday in a challenge to Texas’ six-week abortion ban, the most restrictive in the country.

U.S. Circuit Judges Edith Jones, Kyle Duncan and Stephen Higginson are weighing if they should ask the all-Republican Texas Supreme Court for guidance on whether state licensing officials are the correct defendants in lawsuit over the state's near-total abortion ban.

The Texas Heartbeat Act, also known as Senate Bill 8, has been in effect since Sept. 1, 2021, and bans abortions once a fetal heartbeat is detected, about six weeks into pregnancy – before many women know they are pregnant.

Private citizens have been given the power to enforce the law through civil lawsuits against abortion clinics, staff and anyone who helped someone get the procedure. Claimants can be awarded a minimum of $10,000 and attorneys fees if their lawsuit is successful. The unique enforcement method makes challenging the law more difficult. 

Friday's hearing comes nearly a month after the U.S. Supreme Court allowed the case to move forward. In their ruling, the justices dismissed claims filed by abortion providers against state officials such as the Texas attorney general or judges since they are not responsible for enforcing the law.

However, the high court declined to dismiss claims against medical licensing officials, finding they may be able to indirectly enforce the law by revoking the medical licenses of those who provide abortions. The justices remanded the case back to the Fifth Circuit, where the state has asked for the question of whether licensing officials can enforce the law to be sent to the Texas Supreme Court.

Arguing on behalf of the state Friday, Texas Assistant Solicitor General Natalie Deyo Thompson said the nine-justice state high court should settle the issue because it's a matter of state law.

“Certification is consistent with the [Supreme Court's] opinion, which repeatedly stressed that this is a novel question of Texas law,” said Thompson. 

Marc Hearron, a lawyer with the Center for Reproduction Rights representing the abortion providers in the case, countered that both precedent and standing directs the Fifth Circuit to remand the case back to the federal district court. 

“The Supreme Court ordered that the claims against the licensing officials must be allowed to proceed past the motion to dismiss stage,” said Hearron. 

Since the Supreme Court left intact the claims against the licensing officials, Hearron said the Fifth Circuit’s next move should be to let the case play out in district court.

Duncan, a Donald Trump appointee, took issue with Hearron’s assertion, explaining that if the Supreme Court wanted the case to be sent back to the district court, it would have ordered so.

Higginson, a Barack Obama appointee, asked Hearron what it would mean for the court to send the question to the Texas Supreme Court. Hearron responded that it would be the equivalent of second-guessing the Supreme Court. Arguing instead for a remand to the district court, he said sending a certified question to the Texas justices would cause the case to languish for weeks.

Friday's oral arguments mark the second time the case, Whole Woman's Health v. Jackson, has come before the Fifth Circuit. The New Orleans-based appeals court in October overturned a federal judge's injunction temporarily enjoining the law from being enforced.

In addition to the federal case challenging SB 8, a lawsuit at the state level is still ongoing after a judge ruled the law violates both the U.S. and Texas Constitutions. But despite ruling against the abortion ban, District Court Judge David Peeples did not go as far as issuing an injunction enjoining the law's enforcement.

Abortion clinics in Texas have stopped offering many services over fears of being sued, leading to many Texas residents seeking to end a pregnancy crossing state lines to get an abortion.

The Fifth Circuit panel, rounded out by Ronald Reagan-appointed Jones, did not indicate when it would issue a ruling.

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