Certification of Questions of Law: Who are the Right Defendants in Texas Heartbeat Act Suit?

Written by Rebecca Gonzon

On January 17, the Fifth Circuit Court of Appeals sent Whole Woman’s Health v. Jackson, the case challenging the constitutionality of Texas’s controversial abortion law (S.B. 8), to the Texas Supreme Court after the U.S. Supreme Court threw out most of the plaintiffs’ claims. In its December ruling, the Court dismissed claims against most of the defendants, citing the Eleventh Amendment and the doctrine of sovereign immunity as reasons for excluding government officials from the suit. However, it allowed the claims against medical licensing officials – who could revoke providers’ medical licenses for violations of the abortion law – to continue. This put the case back in the hands of the Fifth Circuit Court of Appeals, which decided 2-1 to ask the Texas Supreme Court a certified question and rule on whether the Supreme Court’s decision to allow the suit to proceed against licensing officials is correct. Abortion providers requested the U.S. Supreme Court intervene, but on January 20, it declined to do so. Because the certification process isn’t quick, this decision is expected to add months to the case.

Federal courts can use certification to ask a state’s supreme court to rule on an unresolved issue of state law. When a case is brought in federal court and involves issues that are addressed by state law, the Erie Doctrine requires the federal court to apply state law to resolve the dispute. Problems arise when the case involves an issue that has not been addressed by the state courts, leaving the federal court to make an educated guess about how a state court would rule on the issue. Certification is solution to this problem that allows the federal court to ask the state court to rule on limited questions.

The use of this process by federal appeals courts is not uncommon. What is unusual is that here, the Fifth Circuit is asking the Texas Supreme Court to rule on whether the licensing officials have the authority to revoke medical licenses for S.B. 8 violations – something the U.S. Supreme Court has already given an opinion on. Yet on Thursday, the Supreme Court allowed the move to continue, prompting a dissent by three justices who felt the issue had already been addressed.

The issue of who the suit can proceed against has been a question since the case’s beginning. Part of the controversy stems from the Texas law’s unique structure, which allows anyone “other than an officer or employee of a state or local governmental entity” to bring a civil suit against medical providers for performing abortions after a fetal heartbeat is detected. Typically, this type of law is enforceable by the state, so the state officials are the ones who get sued. But because government agents cannot directly enforce S.B. 8, the providers are having difficulty finding a viable defendant that allows them to challenge its constitutionality at all.

Opponents of the law believe this is an attempt to delay the case while allowing the law to remain in effect. For proponents, whether the licensing officials will actually be able to revoke providers’ licenses for violations of S.B. 8 is an important question of state law that should be answered before the case is allowed to proceed in the federal court system. If the state court finds that the licensing officials don’t have any authority to punish providers for violations of S.B. 8, the case could be dismissed.

Regardless of whether the law itself is constitutional, many consider its structure concerning. By excluding state officials from being able to enforce the law, Texas has a created a situation where the law is nearly impossible to challenge before it is enforced. Typically, when courts address challenges to laws on constitutional grounds, they block its enforcement. But here, if the plaintiffs are not able to find the right defendants, there is no way for the courts to block the law until it is actually enforced. Several Supreme Court Justices expressed concerns about this structure and the potential for its exploitation if the law is allowed to stand. If states can use this method to get around constitutional challenges to laws, they will be able to infringe on constitutionally protected rights while depriving citizens of relief from the judicial system.

Even with only the threat of enforcement, those affected aren’t taking chances. Medical providers in Texas are performing fewer abortions and women are going out of state to get them. Whether or not private citizens will take advantage of the structure of the law to enforce it, S.B. 8 is achieving its goal of preventing abortions in Texas. If the Texas Supreme Court finds that none of the named defendants can actually be sued and the U.S. Supreme Court decides not to take up the case, other states may begin enacting laws with similar structures to make pre-enforcement challenges to controversial laws more difficult, while still getting the desired effect.

The Supreme Court is set to decide on another case challenging a potentially unconstitutional abortion law from Mississippi this summer. Abortion opponents are hopeful the Supreme Court will use this to overrule Roe v. Wade, and this is likely why the Fifth Circuit is seeking to delay this particular case for as long as possible. In any event, it is unlikely there will be a decision on the Texas law any time soon. Absent an injunction, S.B. 8 will remain in effect for the duration of the legal battle.


Adam Liptak, Supreme Court Lets Texas Abortion Law Stay in Effect, for Now, NY Times (Jan. 20, 2022), https://www.nytimes.com/2022/01/20/us/politics/texas-abortion-law-supreme-court.html.

Bennett Evan Cooper, Certification of Questions of Law to State Supreme Courts, Reuters (June 22, 2021), https://www.reuters.com/legal/legalindustry/certification-questions-law-state-supreme-courts-2021-06-22/#:~:text=As%20state%20rules%20recognize%2C%20federal,even%20at%20the%20rehearing%20stage.

Lomi Kriel, Texas Abortion Law Challenge Heads to State’s Supreme Court, Likely Adding More Delays to Case, The Texas Tribune (Jan. 17, 2022), https://www.texastribune.org/2022/01/17/texas-supreme-court-abortion-law/.

Rachel K. Jones et. al., New Evidence: Texas Residents Have Obtained Abortions in at Least 12 States That Do Not Border Texas, Guttmacher Institute (Nov. 9, 2021), https://www.guttmacher.org/article/2021/11/new-evidence-texas-residents-have-obtained-abortions-least-12-states-do-not-border.

Reese Oxner, Key U.S. Supreme Court Justices Express Concern about Texas Abortion Law’s Enforcement, The Texas Tribune (Nov. 1, 2021), https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/.

S.B. 8, 87 Leg. (Tex. 2021).

Whole Woman’s Health v. Jackson, 595 U.S. ___ (2021).