In a split 2-1 decision, a three-judge panel of the U.S. Fifth Circuit Court of Appeals has certified a question to the Texas Supreme Court concerning the interpretation of several state licensing and regulatory statutes that may authorize some state officials to enforce S.B. 8, the “Texas Heartbeat Act.” Specifically, the Fifth Circuit asked SCOTX to determine the following:

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 action 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.

The United States Supreme Court remanded the case, Whole Woman’s Health, et al. v. Jackson, et al. (No. 21-50792) to the Fifth Circuit after ruling that the plaintiffs could proceed past the motion to dismiss state. The panel, consisting of Circuit Judges Jones, Duncan, and Higginson, had to decide whether to remand the case directly to the federal district court or request SCOTX to resolve novel state law issues. Judge Jones’s majority opinion certifying the question relies on the absence of a controlling majority of SCOTUS with respect to the state law issues, whereas in his dissent Judge Higginson argued that SCOTUS has spoken and the Fifth Circuit has no choice but to remand to the district court.

SCOTX has not yet scheduled oral argument.

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