5th circuit oral arguments over whether the Texas Supreme Court should weigh in on the Texas law banning most abortions was unusual because of the frequent sparring between two judges with one judge telling the other that this court doesn't litigate on behalf of one side or the other Joining me is Leah lipman a professor at the University of Michigan law school Leah this case went to the Supreme Court So tell us what's happening at the 5th circuit So what ended up happening is the United States Supreme Court decided the issues in the case as the parties were then arguing them And what the Texas state officials were arguing at the time was that the law clearly did not give any of them any enforcement authority and therefore they could not be sued What the United States Supreme Court said is we United States Supreme Court think that at least these state licensing officials have the authority discipline doctors and nurses who perform abortions and violation of FBA because those licensing officials have that enforcement authority they can be sued But that conclusion rests on an interpretation of state law And the United States Supreme Court is not the final arbiter over the meaning of state law That job falls to the state courts And so when the United States Supreme Court set the case back down to the 5th circuit the Texans officials filed a motion saying we would like you court to basically ask the taxes Supreme Court about whether the United States Supreme Court interpretation of the state law was correct And you test the Supreme Court needs to tell us whether these licensing officials actually do have the authority discipline doctors and nurses who perform abortions and violations of FDA So how would it help the abortion providers if licensing boards were found to have the authority to discipline doctors about this If the licensing officials do have the authority to discipline doctors who violate FDA then the abortion providers tend to them Under the course sovereign immunity jurisprudence individual plaintiffs are required to name as defendants in lawsuits some state officer who has some connection to the enforcement of a law And if these state licensing officials can indeed discipline doctors who violate the law then they have enforcement authority and they can be sued as defendants This was a pretty contentious hearing some of the judges appeared to be sort of sparring with each other What was the main contention There were a few different contentions floating around in the argument One was just the propriety of allowing the Texas officials to request certification to the Texas Supreme Court at this late stage in the case The Texas officials had never before asked any core including the United States Supreme Court to certify a question to the Texas Supreme Court And so one of the Court of Appeals judges judge Higgins said noted that there was never any case where a court had certified a question to a state Supreme Court after the state officials had lost before the United States Supreme Court or another appellate court And so the fact that this looks like a late stage request and just kind of ace in the back of the pocket in order to allow the states to continue to enforce this law even after their arguments had been rejected at the United States Supreme Court was one running concern and through line and point of disagreement between the judges in the oral argument The second point of disagreement was a matter of timing that is how urgent it was for the United States Court of Appeals to act on this case or to further delay it by certifying questions to the Texas Supreme Court One of the Court of Appeals judges judge Edith Jones asked whether they the Court of Appeals might just hold on to the case until the end of June because there was a chance that the Supreme Court might overrule roe versus wade which would allow taxes to prohibit abortions more than 6 weeks after a person's last period And so it seems like one of the judges on the Court of Appeals understands the time sensitive nature of this case The law is currently in effect and is vilifying people's ability to exercise what is currently a constitutional right but the other judges seem to want to hold on to the case and further delay its resolution until they know whether the Supreme Court is going to reaffirm or overrule row How unusual is it to decide to put off the case until the Supreme Court decides when the Supreme Court has sent the case back to the 5th circuit to decide It's extremely unusual for the Court of Appeals to consider a motion for certification at this stage because that no previous point either in the Court of Appeals or the United States Supreme Court did the Texas officials press the course to certify a question to the Texas Supreme Court So in that light it feels like and it looks like at least one of the judges as an unfair dilatory tactic If the state officials actually had wanted to have the Supreme Court to weigh in and thought that was necessary to the court's resolution that these cases they could have and would have requested that earlier Coming up what's likely to happen here This is Bloomberg With.