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Where Texas’ Heartbeat Law should go next hotly debated by 5th Circuit Court of Appeals Panel

Jan 7, 2022

By Dave Andrusko

According to virtually all media accounts, today’s hearing before a three-judge panel of the 5th Circuit Court of Appeals was contentious and tense. At issue was a highly technical but equally important question: Where should the challenge to S.B.8—Texas’ Heartbeat Law—go next?

The Center for Reproductive Rights wants it returned to Judge Robert Pitman who impatiently (but briefly) enjoined the law. Texas wants the case to go the Texas Supreme Court because they believe there are state law questions that must first be resolved first.

CRR argues this is merely a stalling tactic. “If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect,” according the Texas Tribune’s Eleanor Klibanoff.

“In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law,” Klibanoff wrote.

Judge Edith Jones argued that it was a necessary step for the Texas Supreme Court to weigh in “because state courts ultimately have the authority to decide state law, and the judges would have ‘egg on our faces’ if the Texas Supreme Court eventually disagrees with their ruling,” the Texas Tribune reported.

At issue in Whole Woman’s Health v. Jackson “is whether the Fifth Circuit should ask the Texas Supreme Court to decide if S.B. 8 gives sufficient enforcement power to members of Texas’ professional licensing boards to make them the right defendants in a suit seeking to block the law,” Bloomberg News reported.

While Klibanoff believe it “seems likely that the 5th Circuit will rule to send the case to the Texas Supreme Court, Jones did raise another option that would be no better for abortion providers. She asked whether the court should wait to rule on this case until the U.S. Supreme Court had weighed in on Dobbs v. Jackson, another abortion case on their docket.”

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