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

Friday’s decision by the Supreme Court Whole Woman’s Health V. Jackson. According to the majority of opinion:

In part, the order of the District Court has been affirmed and in part reversed. The case is remanded to continue proceedings in accordance with the opinion.So ordered.

Nothing happened immediately. According to Supreme Court Rule 44 both the parties are allowed to submit a petition for reconsideration within 25 days of entry of the decision or judgment. If the matter is urgent, Rule 45.2 allows the Court to direct the clerk to “issue the man-date in.” [the]Now, you can file your case.” The Court, for example, took the above action in Bush v. GoreAnd Cooper v. Aaron. Alternativly, the winning party may file a request for the Court’s immediate issuance of the judgment. In this manner, the petitioner was successful Boumediene v. Bush.

This Monday Whole Woman’s Health filed a motion to issue the judgment, forthwith. They didn’t want to delay the normal twenty-five day period. A remand was also rejected by them to the Fifth Circuit. They wanted to send the decision directly to U.S. District Court, Western District of Texas. They are hopeful that the District Court Judge will issue a preliminary order against state licensing officers.

Texas opposed the motion. Texas opposed that motion. Why? It is only the Fifth Circuit that can certify questions for the Texas Supreme Court. The District Court can’t. Texas also suggests it might certify that Texas licensing officials have the authority to enforce S.B. 8.

According to the Court, “as far as we are able to tell from our briefings, the licensing-officials were charged with enforcing other laws that regulate.” . . Abortion, ” “so “it seems that Texas law places a duty on licensing-official defendants. . . S. B. 8.’s Saving Clause.” Slip Op. 13. Additionally, the Court noted that the Texas Legislature had not intended to bar all collateral enforcement methods. Slip Op. 13 n.4. 13 n. They will, however, ask the Supreme Court of Texas to certifiy this question.

Justice Thomas predicated this argument in his concur.

The errors in the main opinion stem from misinterpretations Texas law. Texas courts are free to rectify them. See, Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8 (1985).  

Justice Thomas won the argument regarding statutory interpretation. This was not a problem for Jonathan Mitchell, the genius. The majority of people did not follow the correct interpretation. This is what I sense. The majority couldn’t agree with a decision that was entirely in favor of the state. The state was required to provide some minor, insignificant relief for the clinics. However, this did not prevent future cases from removing that relief.

This issue will be resolved by the Texas Supreme Court very soon.