Whole Woman's Health v. Jackson ( 2022 )

Case: 21-50792 Document: 00516169171 Page: 1 Date Filed: 01/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 17, 2022
No. 21-50792
Lyle W. Cayce
Clerk
Whole Woman's Health, on behalf of itself, its staff,
physicians, nurses, and patients; Alamo City Surgery
Center, P.L.L.C., on behalf of itself, its staff,
physicians, nurses, and patients, doing business as
Alamo Women's Reproductive Services; Brookside
Women's Medical Center, P.A., on behalf of itself, its
staff, physicians, nurses, and patients, doing business
as Brookside Women's Health Center and Austin
Women's Health Center; Houston Women's Clinic, on
behalf of itself, its staff, physicians, nurses, and
patients; Houston Women's Reproductive Services, on
behalf of itself, its staff, physicians, nurses, and
patients; Planned Parenthood Center for Choice, on
behalf of itself, its staff, physicians, nurses, and
patients; Planned Parenthood of Greater Texas
Surgical Health Services, on behalf of itself, its
staff, physicians, nurses, and patients; Planned
Parenthood South Texas Surgical Center, on behalf of
itself, its staff, physicians, nurses, and patients;
Southwestern Women's Surgery Center, on behalf of
itself, its staff, physicians, nurses, and patients;
Whole Women's Health Alliance, on behalf of itself,
its staff, physicians, nurses, and patients; Medical
Doctor Allison Gilbert, on behalf of herself and her
patients; Medical Doctor Bhavik Kumar, on behalf of
himself and his patients; The Afiya Center, on behalf
of itself and its staff; Frontera Fund, on behalf of
itself and its staff; Fund Texas Choice, on behalf of
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No. 21-50792
itself and its staff; Jane's Due Process, on behalf of
itself and its staff; Lilith Fund, Incorporated, on
behalf of itself and its staff; North Texas Equal
Access Fund, on behalf of itself and its staff;
Reverend Erika Forbes; Reverend Daniel Kanter; Marva
Sadler,
Plaintiffs—Appellees,
versus
Judge Austin Reeve Jackson; Penny Clarkston; Mark Lee
Dickson; Stephen Brint Carlton; Katherine A. Thomas;
Cecile Erwin Young; Allison Vordenbaumen Benz; Ken
Paxton,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-cv-616
Before Jones, Higginson, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge:
A Texas judge recently commenced his interlocutory opinion, which
found some portions of Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021)
(codified at TEX. HEALTH & SAFETY CODE § 171.201, et seq.) (“S.B. 8”)
incompatible with the Texas Constitution, as follows: “This case is about the
Texas Heartbeat Act, Senate Bill 8 . . . . But this case is not about abortion; it is
2
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about civil procedure.”1 Likewise, the issues before this court are not about
abortion, nor about whether S.B. 8 is consistent with the federal
Constitution, nor about the wisdom of S.B. 8, 2 but about the constitutional
authority of federal courts to entertain this pre-enforcement suit against a
state law.3
We do not repeat the facts of this case, since they are sufficiently
articulated in Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 530–31
(2021), and also in Whole Woman’s Health v. Jackson, 13 F.4th 434, 438–41
(5th Cir. 2021). On remand from the Supreme Court’s grant of certiorari
before judgment, the remaining defendants (“Texas Licensing Officials” or
“Texas”) moved for certification of the novel issues of state law at the heart
of this case and for a briefing schedule regarding the two issues that Texas
raised on appeal but that the Supreme Court appears to have passed on
deciding.4 Plaintiffs oppose these motions, arguing that the Supreme Court’s
opinion foreclosed both of these possibilities and that the Fifth Circuit’s only
remaining job is to remand to the district court without further action.
1
Van Stean v. Texas Right to Life, No. D–1–GN–21–004179, at 2 (Dist. Ct. Travis
Cty., Tex., Dec. 9, 2021) (emphasis in original). Fourteen individual suits challenging
S.B. 8 were assigned to Judge David Peeples as presiding judge over the state multidistrict
litigation. Id. at 3. Incidentally, the opinion also noted that “the parties” had agreed to a
temporary injunction whereby “the Defendants”—Texas Right to Life, its legislative
director, and anonymous Does 1–100—would not seek to enforce S.B. 8 pending litigation.
Id. at 2 n.2.
2
Cf. Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 531 (2021) (“In this
preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the
Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of
public policy.”).
3
Whole Woman’s Health, 142 S. Ct. at 535 n.2.
4
These two issues pertain to Plaintiffs’ challenge to Section 4 of S.B. 8 on
attorneys’ fees and Texas’s argument that Plaintiffs do not have Article III standing to sue
the Texas Licensing Officials.
3
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The Supreme Court remanded this case “for further proceedings
consistent with this opinion.” Whole Woman’s Health, 142 S. Ct. at 539.
Against the backdrop of ongoing state court litigation and the remand from
the United States Supreme Court, this panel 5 is tasked with determining the
scope of remand and the most efficient way to decide the remaining issues on
appeal. For the following reasons, the court concludes that certification is a
“proceeding[] consistent with [the Court’s] opinion.” The unresolved
questions of state law must be certified to the Texas Supreme Court and
further briefing will await that court’s decision on certification. 6
Our reasons for ordering certification are threefold. First, when
holding that Plaintiffs’ case against Texas Licensing Officials may proceed
past the motion to dismiss stage, the Supreme Court did not conclusively
determine the scope of the officials’ state law duties, if any, under S.B. 8.
Second, because the Supreme Court ordered remand in light of Texas’s
explicit notice that it would seek certification from the Fifth Circuit, the
remand order cannot be fairly read to have foreclosed certification. Third, if
the Texas Supreme Court accepts certification, its decision interpreting state
law will be controlling, as all judges and parties agree. However, all equally
understand that this court may not use a construction of Texas law to
5
A motions panel of this court originally stayed the district court’s order that
eviscerated S.B. 8 on a number of grounds, and it expedited the case to the next available
oral argument panel. Whole Woman’s Health v. Jackson, 13 F.4th 434, 448 (5th Cir. 2021).
After the Supreme Court’s opinion and its subsequent remand to this court, the case was
assigned to the next available oral argument panel for expedited treatment. This panel
heard oral argument on Texas’s after-filed motion within three weeks following receipt of
the Supreme Court’s mandate.
6
The Texas Licensing Officials’ alternative motion for further briefing is carried
with the case until the conclusion of certification proceedings.
4
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undermine the Supreme Court’s decision that Plaintiffs’ case survives a
motion to dismiss based on allegations sufficient for Ex Parte Young.
We address the second reason before explaining the background for
the certified questions. Following the Supreme Court’s decision, Plaintiffs
sought expedited issuance of the Court’s mandate and prompt remand
directly to the district court. Texas opposed this motion and requested
remand to the court of appeals for the express purpose of “seeking
certification of the controlling state-law question—namely, whether the
licensing-official respondents may ‘indirectly’ enforce SB 8 as a matter of
state law—to the Supreme Court of Texas.” Only in a federal court of
appeals could the parties seek certification pursuant to Texas Rule of
Appellate Procedure 58.1. The Supreme Court granted Plaintiffs’ motion to
expedite but declined to remand directly to the district court. Instead, the
Court remanded to this court “for further proceedings consistent with [its]
opinion.” Notably absent from this order were any instructions on how the
Fifth Circuit should resolve the impending certification issue, nor were there
any instructions to immediately remand to the district court. 7 The Supreme
7
While generic remands are not particularly unusual for the Supreme Court, the
Court could have, and often does, remand with more specific instructions in the “certiorari
before judgment” posture. See McCulloch v. Sociedad Nacional de Marineros de Honduras,
372 U.S. 10, 22, 83 S. Ct. 671, 678 (1963) (“The judgment of the Court of Appeals . . . is
vacated and the cases are remanded to that court, with instructions that it remand to the
District Court for dismissal of the complaint in light of our decision.”). For example, the
Court has issued several orders treating applications for injunctive relief as petitions for
writs of certiorari before judgment. Such orders grant the petitions, vacate the district
court orders, remand to the courts of appeals “with instructions to remand to the district
court for further consideration in light of” some new Supreme Court case that influences
the inquiry. See, e.g., Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 889 (2020); Robinson
v. Murphy, 141 S. Ct. 972 (2020); High Plains Harvest Church v. Polis, 141 S. Ct. 527 (2020);
Clark v. Roemer, 501 U.S. 1246, 111 S. Ct. 2881 (1991); see also Ross v. California, 139 S. Ct.
2778 (2019) (same, but instructing the Ninth Circuit to analyze in the first instance rather
than remanding to the district court).
5
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Court’s order did not prohibit this appellate court from ordering
certification, and it placed no other explicit limitation on this court’s
consideration of these motions.
Judge Higginson objects to certification as untimely and because the
Supreme Court, he contends, left no room in its decision for certification.
Claimed untimeliness is a red herring. For the sake of obtaining speedy
decisions by all three courts that have considered this case, both parties
presented diametrically opposed interpretations of state law at each level.
Simply comparing the district court opinion with that of the Supreme Court,
however, demonstrates a significant disparity in the number and implications
of state statutes referenced as to each of the four Texas Licensing Officials.
Neither court definitively analyzed each of the statutes. Moreover, Texas
consistently relied on S.B. 8’s broad prohibition against enforcement of the
law’s heartbeat limit by any government official.8 Not until the Supreme
Court partially affirmed the district court did it appear that the Texas
Licensing Officials must obtain a comprehensive ruling on state law by state
courts. Perhaps they could have asked the Supreme Court to allow a
certification post-judgment, as Plaintiffs contend, but this has nothing to do
with timeliness. Either the Supreme Court might have certified, or this court
can certify. The “timing” impact on this litigation is the same no matter
which court undertakes to certify. And with no limit placed by the Supreme
Court’s remand, this court may utilize the ordinary appellate tools at our
disposal to address the case—consistent with the Court’s opinion.
This leads to Plaintiffs’ and Judge Higginson’s fundamental objection
that certification “defies” the Supreme Court’s opinion. After careful
8
“Notwithstanding Section 171.005 or any other law, the requirements of this
subchapter shall be enforced exclusively through the private civil actions described in
Section 171.208.” Tex. Health & Safety Code § 171.207(a).
6
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analysis of the opinion, we disagree. The Court stated: “[E]ight Justices hold
this case may proceed past the motion to dismiss stage against [four licensing
officials], defendants with specific disciplinary authority over medical
licensees, including the petitioners.” Whole Woman’s Health, 142 S. Ct. at
539. The Court’s conclusion was supported by two four-member opinions,
with Justice Thomas dissenting, leading to no majority rationale.
Justice Gorsuch’s opinion, written for a plurality on this point,
acknowledges uncertainty about Texas law and is laden with qualifiers about
the ability of the licensing officials to enforce S.B. 8 based on their authority
under Texas law. This opinion’s first statement on the subject notes, “[o]n
the briefing and argument before us, it appears that these particular
defendants fall within the scope of Ex Parte Young’s historic exception to
state sovereign immunity.” Whole Woman’s Health, 142 S. Ct. at 535
(emphasis added). Concluding that paragraph, the Court holds that
plaintiffs’ suit is not barred “at the motion to dismiss stage.” Id.
In the following paragraphs, the opinion jousts with Justice
Thomas’s interpretation that the Licensing Defendants lack the power under
state law to enforce S.B. 8, as the plurality relies on state law citations to
counter those of Justice Thomas. But again, the plurality state only that
Texas law “appears” to impose enforcement duties on the defendants. The
conclusion of the paragraph emphasizes the tentativeness of the state law
discussion in the litigation’s procedural context:
Of course, Texas courts and not this one are the final arbiters of the
meaning of state statutory directions. But at least based on the lim-
ited arguments put to us at this stage of the litigation, it appears
that the licensing defendants do have authority to enforce
S.B. 8.
7
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Id. at 536 (citing Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500
(1941)) (emphasis added).9 The opinion’s concluding reference to Plaintiffs’
allegation of a credible threat of enforcement also repeats the reference to
what state law “appears” to be, which, the Court concludes, “is enough at
the motion to dismiss stage.” Id. at 537.
Contrasting not only in style but substance, four Justices led by the
Chief Justice in a partial concurrence express little doubt about the Licensing
Defendants’ state law authority to enforce S.B. 8. Id. at 544 (Roberts, C.J.,
concurring in part & dissenting in part). Their conclusion consists of one
sentence and lists one provision of the state occupations code. Id. But that
is a minority view. No doubt because of their certainty, these Justices omit
any reference to the Pullman doctrine’s imperative of granting deference to
state court interpretations of state law.
Under these circumstances, there is no controlling rationale for the
Supreme Court’s interpretation of state law. All parties concerned
acknowledge that due to the Pullman and Erie doctrines, the federal courts
are bound by an authoritative determination of state law by the state’s highest
court. Est. of Thornton v. Caldor, Inc., 472 U.S. 703, 709 n.8, 105 S. Ct. 2914,
2917 n.8(1985); see also R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496,
499–500, 61 S. Ct. 643, 645 (1941) (“The reign of law is hardly promoted if
an unnecessary ruling of a federal court is thus supplanted by a controlling
decision of a state court.”). We, the inferior court, are bound by the
governing plurality plus Justice Thomas, whose reasoning bespeaks at least
uncertainty and the need to defer to state law.
9
This sentiment was also repeated in Justice Thomas’s partial dissent. Whole
Woman’s Health, 142 S. Ct. at 542 n.3 (Thomas, J., concurring in part and dissenting in
part) (“Because the principal opinion’s errors rest on misinterpretations of Texas law, the
Texas courts of course remain free to correct its mistakes.”).
8
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Finally, we note the heightened suitability of certification when
federal courts anticipate invalidating a new state law on constitutional
grounds. See Bellotti v. Baird, 428 U.S. 132, 146–47 (1976) (certification “is
appropriate where an unconstrued state statute is susceptible of a
construction by the state judiciary ‘which might avoid in whole or in part the
necessity for federal constitutional adjudication’” (citation omitted)).
Justice Ginsburg once wrote for a unanimous Court:
In litigation generally, and in constitutional litigation most
prominently, courts in the United States characteristically
pause to ask: Is this conflict really necessary? When anticipa-
tory relief is sought in federal court against a state statute, re-
spect for the place of the States in our federal system calls for
close consideration of that core question . . . . [N]ormally this
Court ought not to consider the Constitutionality of a state
statute in the absence of a controlling interpretation of its
meaning and effect by the state courts.
Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 75, 117 S. Ct. 1055, 1072–73
(1997) (internal citations, quotation marks, and footnote omitted).10 Here,
there is a possibility that federal courts could declare S.B. 8 constitutionally
infirm even though our conclusions might be based entirely on a faulty
understanding of Texas law. To avert creating needless friction with a
10
“[W]hen the outcome of a constitutional challenge turns on the proper
interpretation of state law, a federal court’s resolution of the constitutional question may
turn out to be unnecessary. The state courts could later interpret the state statute
differently. And the state court’s different interpretation might result in a statute that
implicates no constitutional question, or that renders the federal court’s constitutional
analysis irrelevant . . . . [C]ertification avoid[s] this risk by deferring a federal court’s
decision on the constitutionality of the state statute until a state court has authoritatively
resolved the antecedent state-law question.” Expressions Hair Design v. Schneiderman,
137 S. Ct. 1144, 1156 (2017) (Sotomayor, J., concurring).
9
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coequal sovereign in our federal system, this court reasonably seeks the
Texas Supreme Court’s final word on the matter.
We turn to the explanation of the request for certification.
CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT
OF TEXAS, PURSUANT TO THE TEXAS CONSTITUTION ART.
5 § 3–C AND TEXAS RULE OF APPELLATE PROCEDURE 58.1.
TO THE SUPREME COURT OF TEXAS AND THE HONORABLE
JUSTICES THEREOF:
STYLE OF THE CASE
The style of the case is Whole Woman’s Health, et al. v. Jackson, et al.,
21-50792. (The full, very lengthy, case style is captioned at the top of this
opinion.) The case is on appeal from an interlocutory judgment of the United
States District Court for the Western District of Texas. Federal jurisdiction
over the issues presented in this case is based on 28 U.S.C. §§ 1331, 1343.
DISCUSSION
This suit is a pre-enforcement challenge to Senate Bill 8 (“S.B. 8”), a
Texas abortion law that took effect on September 1, 2021. S.B. 8, 87th Leg.,
Reg. Sess. (Tex. 2021) (codified at TEX. HEALTH & SAFETY CODE § 171.201,
et seq.). Plaintiffs are a group of Texas abortion providers and supporters, and
the remaining defendants are agency heads tasked with supervising and
overseeing various licensing boards.11 Initially included in this action were a
11
Defendant Stephen Brint Carlton is the Executive Director of the Texas Medical
Board; Defendant Katherine A. Thomas is the Executive Director of the Texas Board of
10
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variety of other state defendants and one private defendant. The Supreme
Court determined that sovereign immunity barred this suit against the other
state defendants, and the private defendant was dismissed for lack of
standing. Whole Woman’s Health, 142 S. Ct. at 537, 359. The only remaining
defendants are the Texas Licensing Officials.
The Supreme Court determined that “it appears that these particular
defendants fall within the scope of Ex Parte Young’s historic exception to
state sovereign immunity,” id. at 536, and the case against them survives a
motion to dismiss predicated on that theory. In reaching this conclusion, the
Court had before it Plaintiffs’ citations to a variety of Texas statutes and
administrative rules that allegedly demonstrated the licensing official
defendants’ indirect authority to enforce S.B. 8 violations.12 Based on the
parties’ limited representation of Texas law to the Supreme Court of the
United States, the Court did not specifically construe Texas law, certainly
not the swath of bare citations with which it was confronted. The Court thus
surmised that Plaintiffs’ interpretation was correct at a preliminary stage of
the case, but took care to reserve the ultimate interpretation for Texas courts.
See id. (“Of course, Texas courts and not this one are the final arbiters of the
meaning of state statutory directions . . . . But at least based on the limited
Nursing; Defendant Cecile Erwin Young is the Executive Commissioner of the Texas
Health and Human Services Commission; and Defendant Allison Benz is the Executive
Director of the Texas Board of Pharmacy.
12
For Defendant Carlton, Plaintiffs cite Tex. Occ. Code §§ 152.052, 164.001,
164.052, 164.053, 164.055 and 22 Tex. Admin. Code § 176.8 as sources of indirect
enforcement authority. For Defendant Thomas, Plaintiffs cite Tex. Occ. Code §§ 301.101,
301.452, 301.501, 301.553 and 22 Tex. Admin. Code §§ 217.11 & 217.12. For Defendant
Young, Plaintiffs cite Tex. Health & Safety Code §§ 243.011, 243.014, 243.015, 243.017,
245.012, 245.014, 245.015 and 25 Tex. Admin. Code §§ 135.4 & 139.60. For Defendant
Benz, Plaintiffs cite Tex. Occ. Code §§ 553.003, 565.001, 565.002, 566.001, 566.101 & 22
Tex. Admin. Code §§ 281.7.
11
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arguments put to us at this stage of the litigation, it appears that the licensing
defendants do have authority to enforce S.B. 8.” (citing Railroad Comm’n of
Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S. Ct. 643 (1941))).13
On remand from the United States Supreme Court, we conclude that
overarching questions of state law will be determinative for future
proceedings in this federal suit and will materially affect the analysis of the
plaintiffs’ claims against each of the Licensing Defendants. Whether any of
these Defendants has authority to enforce violations of S.B. 8 under relevant
state law will be critical for potential issues of standing and ripeness.14
Moreover, the definitive interpretation of the above-mentioned state statutes
will bear on inquiries including (1) whether Plaintiffs’ claims against any of
the Licensing officials can survive a motion for summary judgment;
13
Additionally, the Supreme Court dismissed the Attorney General from this suit
by interpreting Tex. Occ. Code Ann. § 165.101 and holding that Texas law did not provide
him with enforcement authority over S.B. 8. Whole Woman’s Health, 142 S. Ct. at 534. The
opinion notes that “the qualification ‘this subtitle’ limits the attorney general’s
enforcement authority to the Texas Occupational Code” and that the Heartbeat Act “does
not fall within ‘this subtitle’” nor did Plaintiffs identify any “‘rule or order’ . . . related to
S. B. 8 that the attorney general might enforce against them.” Id. at 534. Considering the
linguistic similarity between the provision analyzed by the Court and the other provisions
cited by Plaintiffs, this court welcomes the Texas Supreme Court’s interpretation of that
provision as well. Any answer to this question will have no impact on the present litigation.
The Supreme Court dismissed the Attorney General for a second, independent reason. It
wrote that even “[s]upposing the attorney general did have some enforcement authority
under S.B. 8, the petitioners have identified nothing that might allow a federal court to
parlay that authority, or any defendant’s enforcement authority, into an injunction against
any and all unnamed private persons who might seek to bring their own S. B. 8 suits.” Id.
at 535. Accordingly, the Court held that the equitable powers of federal courts do not
permit them to “enjoin the world at large,” and thus, the Attorney General was not a
proper defendant. Id. (internal quotations omitted).
14
Standing is “a jurisdictional requirement” and “Article III demands that an
actual controversy persist throughout all stages of litigation.” Virginia House of Delegates
v. Bethune-Hill, 139 S. Ct. 1945, 1950 (2019) (internal quotations omitted).
12
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(2) whether Plaintiffs can make a “clear showing” that any of the licensing
officials can and will enforce or threaten to enforce S.B. 8, as is necessary to
support injunctive relief; and (3) whether Plaintiffs can bear their burden to
prove that any of the licensing officials can and will enforce or threaten to
enforce S.B. 8. Because state law will be dispositive as to the position of each
Licensing Official at multiple points in the future proceedings, we certify
these questions for the sake of efficiency and accuracy.15
CERTIFIED QUESTIONS
For the reasons discussed above, we hereby certify the following
questions of state law to the Supreme Court of Texas:
Whether Texas law authorizes the Attorney General, Texas
Medical Board, the Texas Board of Nursing, the Texas Board
of Pharmacy, or the Texas Health and Human Services
Commission, directly or indirectly, to take disciplinary or
adverse action of any sort against individuals or entities that
violate the Texas Heartbeat Act, given the enforcement
authority granted by various provisions of the Texas
Occupations Code, the Texas Administrative Code, and the
Texas Health and Safety Code and given the restrictions on
public enforcement in sections 171.005, 171.207 and 171.208(a)
of the Texas Health and Safety Code.
We disclaim any intention or desire that the Supreme Court of Texas
confine its reply to the precise form or scope of the questions certified. The
answer provided will determine the remaining issues in this case. The record
in this case and copies of the parties’ briefs are transmitted herewith.
15
The pending state multi-district litigation making its way through the state
courts, Texas Right to Life v. Van Stean, No. 03-21-00650-CV (Tex. Ct. App.), involves only
private party defendants. It is unlikely, we anticipate, that the subject matter of the above-
certified questions will be addressed in that litigation.
13
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The panel retains cognizance of the appeal in this case pending
response from the Supreme Court of Texas and hereby certifies the above
questions of law.
QUESTION CERTIFIED.
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Stephen A. Higginson, Circuit Judge, dissenting:
I respectfully disagree with the majority’s decision to grant the
defendants’ motion to certify, for several reasons in addition to those stated
in my dissent from the majority’s decision to hear oral argument on this
remand from the United States Supreme Court.1
By granting the defendants’ motion, we exceed the scope of the
Supreme Court’s mandate. As the Supreme Court explained almost 200
years ago, issues already decided by that Court cannot be relitigated in lower
federal courts such as this one:
Whatever was before the Court, and is disposed of, is
considered as finally settled. The inferior court is bound by the
decree as the law of the case; and must carry it into execution,
according to the mandate. They cannot vary it, or examine it
for any other purpose than execution; or give any other or
further relief; or review it upon any matter decided on appeal
for error apparent; or intermeddle with it, further than to settle
so much as has been remanded.
Sibbald v. United States, 37 U.S. 488, 492 (1838).
The Court’s holding in this case was exact: “eight Justices hold this
case may proceed past the motion to dismiss stage against Mr. Carlton, Ms.
Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary
authority over medical licensees, including the petitioners.” Whole Woman’s
Health v. Jackson, 142 S. Ct. 522, 539 (2021); see also id. at 535-36 (“[W]e
1
See Whole Woman’s Health v. Jackson, No. 21-50792, Order Scheduling Oral
Argument (5th Cir. Dec. 27, 2021) (Higginson, J., dissenting). Though I do not believe that
this dissent appears on Westlaw or Lexis, it can be found in the appendix of a mandamus
petition that the plaintiffs in this case filed in the Supreme Court which is pending. See
Petition for a Writ of Mandamus at 6a-14a, In re Whole Woman’s Health, No. 21-962 (U.S.
Jan. 3, 2022).
15
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hold that sovereign immunity does not bar the petitioners’ suit against these
named defendants at the motion to dismiss stage.”). The Court based this
holding on its conclusion that these defendants are “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.” Id. at 535 (citing Tex. Occ. Code § 164.055(a)). If this issue were to
come before the Texas Supreme Court in another case, that court could of
course interpret Texas law differently. See id. at 536 (“Texas courts and not
this one are the final arbiters of the meaning of state statutory directions.”).
But in this case, we have authority neither to delay implementation of the
Supreme Court’s mandate2 nor to reconsider the Supreme Court’s holding
that, because the defendant licensing officials enforce S. B. 8, the plaintiffs’
lawsuit against them can proceed.
A simple hypothetical helps illustrate why we have no authority, on
remand from the Supreme Court, to certify the question answered by the
Supreme Court. Though the Texas Supreme Court does not, a number of
state high courts accept certified questions from district courts. If a federal
court of appeals were to issue an interlocutory opinion interpreting state law,
on remand, a district court could not turn around and certify the issue
2
The Supreme Court gave this case “extraordinary solicitude at every turn,” id.
at 538 n.6, expediting the case at each opportunity, taking the extraordinary step of granting
certiorari before judgment, hearing three total hours of oral argument about whether Texas
has improperly shielded from federal court review a law that openly defies a right
expounded by the Supreme Court, and granting the plaintiffs’ application to issue the
judgment forthwith. In contrast, we have already unacceptably delayed this remand from
the Supreme Court by sitting on it for one month. By certifying this question and, worse,
by simultaneously carrying a motion for further briefing to us with the case, we are only
causing further delay, indeed delay without specified end. Cf. id. at 544 (Roberts, C.J.,
concurring in the judgment in part and dissenting in part) (“Given the ongoing chilling
effect of the state law, the District Court should resolve this litigation and enter appropriate
relief without delay.”).
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answered rather than carry out the appellate court’s holding. See Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 184 (5th Cir. 2012) (“[A] lower court on
remand must implement both the letter and the spirit of the appellate court’s
mandate and may not disregard the explicit directives of that court.”). The
same rule must apply to this inferior court when we receive a remand from
the United States Supreme Court. Indeed, at oral argument, counsel for the
defendants conceded that they could not name a single case in which the
Supreme Court made an Erie guess on an issue of state law yet, on remand—
in the very same case—the court of appeals chose to certify the question
instead of following the Supreme Court’s holding.
By granting the defendants’ certification motion, we contravene the
Supreme Court’s mandate, effectively telling the Court that its opinion was
advisory.
Furthermore, even if the Supreme Court’s mandate did somehow
allow the defendants to relitigate what they lost in the Supreme Court, this
case would still be inappropriate for certification. The Supreme Court has
previously denied a certification motion on the ground that the “request for
certification comes very late in the day.” Minnesota Voters All. v. Mansky, 138
S. Ct. 1876, 1891 n.7 (2018). Here, the defendants failed to request
certification both when this case was before the Supreme Court and when the
case was initially before this court, despite having briefed the underlying state
law issue in both instances. On remand, we should not grant a certification
motion that was filed only after the defendants argued and lost this issue in
the Supreme Court. Again, counsel for the defendants acknowledged at oral
argument that they know of no inferior court, ever before, seeking such
intercession on remand from the Supreme Court. As the First Circuit has
explained when declining to certify a question, “[w]e do not look favorably,
either on trying to take two bites at the cherry by applying to the state court
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after failing to persuade the federal court, or on duplicating judicial effort.”
Cantwell v. Univ. of Massachusetts, 551 F.2d 879, 880 (1st Cir. 1977).3
Notably, the interpretation of state law that the defendants are now
urging was our own court’s prior interpretation of state law, which the
Supreme Court declined to adopt. See Whole Woman’s Health v. Jackson, 13
F.4th 434, 443 (5th Cir. 2021) (per curiam) (Jones, Duncan, and Engelhardt,
JJ.) (explaining that the district court’s conclusion that the defendant
licensing officials “have authority to ‘indirectly’ enforce S.B. 8 by, for
example, suspending the license of a physician found to have violated S.B. 8”
is “in tension with” S. B. 8’s “plain language”). Rather than giving the
defendants a second bite at an Erie guess, we must adhere to our duty and
require the defendants to raise this issue in state court, where litigation over
S. B. 8 is ongoing. Cf. Nationwide Mut. Ins. Co. v. Unauthorized Prac. of L.
Comm., of State Bar of Texas, 283 F.3d 650, 656 (5th Cir. 2002) (denying a
motion to certify on the grounds that the state defendants were “currently
litigating this state law question in two Texas district courts”).4
3
See also Lehman Bros. v. Schein, 416 U.S. 386, 395 (1974) (Rehnquist, J.,
concurring) (“If a district court or court of appeals believes that it can resolve an issue of
state law with available research materials already at hand, and makes the effort to do so,
its determination should not be disturbed simply because the certification procedure
existed but was not used.”) (emphasis added).
4
Indeed, just as the Supreme Court’s principal opinion osbserved that Texas
courts could disagree with the Court’s interpretation of Texas law in the appropriate case,
Justice Thomas’s dissenting opinion urged his interpretation of Texas law directly on
Texas courts rather than arguing for certification. See Jackson, 142 S. Ct. at 542 n.3
(Thomas, J., dissenting) (“Because the principal opinion’s errors rest on
misinterpretations of Texas law, the Texas courts of course remain free to correct its
mistakes.”). This consensus from the Justices is how comity should work, as request-and-
abstention at the outset, not belatedly, allowing for overrulings from below in the very case
where a party previously pressed federal courts to resolve state law without certification,
but lost.
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However, given that the majority has decided to certify this question
and reopen state law issues decided by the Supreme Court—and barring that
Court’s intervention—I will be grateful that “the Texas Supreme Court is
known for its ‘speedy, organized docket.’” Frymire Home Servs., Inc. v. Ohio
Sec. Ins. Co., 12 F.4th 467, 472 (5th Cir. 2021) (citation omitted).5
Moreover, but again if we are free to set an example that fully briefed,
argued and decided Supreme Court holdings can be detoured for re-litigation
on remand, using certification, I will be interested not only in revisiting the
state law question that the defendants lost, but also the state law question that
the plaintiffs lost, which divided the United States Supreme Court more
closely than the question we certified: namely, whether the Texas Attorney
General has the authority to enforce S. B. 8. Compare Jackson, 142 S. Ct. at
534-35 (2021) (majority opinion), with id. at 544 (Roberts, C.J., concurring in
judgement in part and dissenting in part, joined by Breyer, Sotomayor, and
Kagan, JJ.).
* * *
Relatedly, I strongly disagree with the majority’s added contingency
choosing to “carr[y] with the case” the defendants’ “alternative motion for
further briefing” to our court to raise other, allegedly remaining issues after
“the conclusion of the certification process.” As I stated in my dissent from
the majority’s decision to hear oral argument,6 that motion is premised on
there being remaining issues in this appeal for us to resolve. But no such
5
For example, in the run up to the 2020 election, it resolved one important and
controversial case involving absentee voting during the ongoing COVID-19 pandemic just
14 days after receiving a petition for mandamus, and a second case involving similar issues
15 days after receiving a petition for review. See In re State, 602 S.W.3d 549, 551 (Tex.
2020); State v. Hollins, 620 S.W.3d 400, 404 (Tex. 2020).
6
Whole Woman’s Health v. Jackson, No. 21-50792, Order Scheduling Oral
Argument (5th Cir. Dec. 27, 2021) (Higginson, J., dissenting).
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issues exist. Hence, here too, we usurp authority which is not ours. Because
the Supreme Court “granted certiorari before judgment,” it “effectively
[stood] in the shoes of the Court of Appeals.” Id. at 531. Accordingly, the
Court “review[ed] the defendants’ appeals challenging the District Court’s
order denying their motions to dismiss,” ultimately holding that the “order
of the District Court is affirmed in part and reversed in part.” Id. at 531, 539.
Because the Supreme Court stepped into our shoes and issued a full
judgment affirming in part and reversing in part the district court’s order,
which had addressed all of the plaintiffs’ claims—necessarily including that
the parties had standing—there are no issues remaining in this appeal for us
to resolve.7 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.
* * *
In our effort to support and defend the Constitution, it is worth
remembering Judge J. Skelly Wright’s simple resolve to follow Supreme
Court dictates: “I did it because the Supreme Court had said it, and there
wasn’t any way out except subterfuge. Other judges were using subterfuge to
get around the Supreme Court, delays and so on, but I grew up around federal
7
Though the defendants claim that their jurisdictional objections to the fee-shifting
provision in section 4 of S. B. 8 were excluded from the Supreme Court’s grant of certiorari,
the parties argued this point in the Supreme Court. See Petitioner’s Br. 2–3, Whole
Woman’s Health v. Jackson, No. 21-463 (U.S. Oct. 27, 2021) (arguing that “the state
executive officials named as defendants cause distinct injuries to [the plaintiffs] . . . through
their ability to sue [the plaintiffs] for the collection of fees and costs under S.B. 8’s
draconian fee-shifting provision”); Reply Br. for Respondents Jackson et al. 7-8, Whole
Woman’s Health v. Jackson, No. 21-463 (U.S. Oct. 29, 2021) (arguing that the fact that
“executive officials could seek attorney’s fees as ‘prevailing parties’ under section 4 of SB
8” did not create an Article III injury and that plaintiffs could not pursue their section 4
claim under Ex parte Young”).
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courts and had respect for them, and I tried to carry on tradition.” 8 Then,
like now, it is undisputed that the Constitution, necessarily expounded by the
Supreme Court, had been subverted by a state legislature.
Fortunately, the Supreme Court has upheld the plaintiffs’ federal
court constitutional challenge, remanding it to proceed at the motion to
dismiss stage, even if the Court was closely divided as to whether more
challenge should also proceed. Unfortunately, the defendants’ response was
an impermissible one, inviting us—oath-bound, like Judge Wright, to
implement Supreme Court decree—to second-guess that decree, on the
proposition that the repeated and explicit holding of eight Justices is only an
apparent and tentative holding. In turn, accepting that invitation, the
majority critiques the Supreme Court’s holding as “laden with qualifiers,”
non-definitive, lacking “controlling rationale,” and supported only by a
“swath of bare citations”—all to conclude that the holding has
“tentativeness” and, as an advisory opinion, is subject to reconsideration
through certification and, regardless of that outcome, then will return to us,
open-endedly, for further briefing, on other issues.
Let me highlight a third time that this delay and re-litigation came with
frank admission by the defendants in oral argument that no inferior court,
ever in United States history, has permitted a litigant who lost in the Supreme
Court to get a second bite on remand, through certification, defiant of the law
of the case.
At every stage of its existence, S. B. 8 and its defenders have chal-
lenged Supreme Court authority, first by deliberately nullifying a constitu-
tional right expounded by the Court and now, when checked by that Court,
8
Jack Bass, Unlikely Heroes: The Dramatic Story of the
Southern Judges of the Fifth Circuit Who Translated the Supreme
Court’s Brown Decision into a Revolution for Equality 115 (1981)
(interviewing Judge Wright).
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by convincing us, an inferior federal court duty-bound to apply a Supreme
Court holding, instead to question that holding. It is this sequence which
called to my mind Judge Wright’s trust that the Supreme Court and its de-
crees will be upheld by legislatures and courts, not circumvented and enfee-
bled.
22