The Volokh Conspiracy

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Whole Woman's Health and Texas Fight Over Issuance Of The Judgment

Texas wants to remand to the Fifth Circuit, which can certify the statutory interpretation question on which Justices Gorsuch and Thomas divided.


On Friday, the Supreme Court decided Whole Woman's Health v. Jackson. The majority opinion concluded:

The order of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.So ordered.

But nothing happened right away. Under Supreme Court Rule 44, both parties have "25 days after entry of the judgment or decision" to file a petition for rehearing. In the event that the case is urgent, pursuant to Rule 45.2, the Court can direct the clerk "to issue the mandate in [the] case forthwith." For example, the Court took this action in Bush v. Gore and Cooper v. Aaron. Alternatively, the prevailing party can file an application for the Court to issue the judgment forthwith. The petitioner took this course in Boumediene v. Bush.

On Monday, Whole Woman's Health filed a motion to issue the judgment, forthwith. They did not want to wait the usual twenty-five days. Moreover, they opposed a remand to the Fifth Circuit. They sought to transmit the judgment directly to the U.S. District Court for the Western District of Texas. Obviously, they are hoping the District Court Judge promptly issues a preliminary injunction against the state licensing officials.

Texas opposed that motion. The state contends that it would be prejudiced by a remand to the District Court. Why? Only the Fifth Circuit can certify questions to the Texas Supreme Court. The District Court cannot. And Texas suggests that it will certify the question about whether the state licensing officials can in fact enforce S.B. 8.

The Court concluded that "as best we can tell from the briefing before us, the licensing-official defendants are charged with enforcing " 'other laws that regulate . . . abortion,' " so "it appears Texas law imposes on the licensing-official defendants a duty . . . expressly preserved by S. B. 8's saving clause." Slip Op. 13. The Court also observed that the statutory text "suggests" the Texas Legislature did not intend to prohibit all collateral enforcement mechanisms. Slip Op. 13 n.4. The licensing-officials disagree with that reading of Texas law; they believe they have no such authority and do not intend to invoke it even if they do. But in any event, they intend to ask for certification of this dispositive question to the Supreme Court of Texas.

Justice Thomas presaged this argument in his concurrence:

Because the principal opinion's errors rest on misinterpretations of Texas law, the Texas courts of course remain free to correct its mistakes. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8 (1985).  

All things considered, Justice Thomas had the better argument with regard to statutory interpretation. The genius Jonathan Mitchell did not mess this part up. The majority did not adopt the best reading of the statute. My sense? The majority could not go along with a decision that ruled entirely for the state. They had to give some marginal, meaningless relief to the clinics. But still, they opened the door to that relief being eliminated in future proceedings.

Soon enough, the Texas Supreme Court can resolve this issue.