United States Court of Appeals

for the Fifth Circuit

No. 21-50792

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 

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2022

Lyle W. Cayce

Clerk

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2

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 

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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.

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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 panel5is 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. 

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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).

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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).

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analysis of the opinion, we disagree. The Courtstated: “[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 limited arguments put to us at this stage of the litigation, it appears

that the licensing defendants do have authority to enforce 

S.B. 8. 

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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.”).

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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 anticipatory relief is sought in federal court against a state statute, respect 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).

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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 

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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.

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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).

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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 abovecertified questions will be addressed in that litigation. 

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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).

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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-andabstention 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 theirjurisdictional 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 challenged Supreme Court authority, first by deliberately nullifying a constitutional 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 decrees will be upheld by legislatures and courts, not circumvented and enfeebled. 

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