The Supreme Court of the United States on Wednesday refused to block a Texas anti-abortion law from taking effect at midnight Central time. The law allows private individuals to sue doctors as part of a ban on abortions after a fetal heartbeat is medically detectable approximately six weeks into pregnancy and well before the point at which a fetus can live outside the womb. Court watchers are waiting to see what action the Supreme Court does take, perhaps sometime later on Wednesday.
For now, the Supreme Court’s failure to immediately block the fetal heartbeat law is seen as a possible harbinger of a critical shift in American law and jurisprudence. Since Planned Parenthood v. Casey in 1992, the government could not place an “undue burden” on an individual’s personal choice to seek an abortion prior to the point of “viability.” That’s the point at which a fetus can live on its own outside the womb. Prior to Casey, Roe v. Wade held in 1973 that states could not outlaw abortion during the first trimester of pregnancy.
The instant case, styled as Whole Woman’s Health v. Jackson, began at the Supreme Court as an emergency application to Justice Samuel Alito for a writ of injunction or, alternatively, to vacate stays at the district court so proceedings could resume at that level. Alito is the circuit justice who handles such incoming matters from the Fifth Circuit (of which Texas is a part). The case is part of the court’s so-called “shadow docket” because it involves an emergency application for an injunction, not a petition for a writ of certiorari and a decision on the merits.
Critics of the Supreme Court’s failure to immediately act say the Court effectively allowed a state statute to trounce Roe and Casey without full litigation on the merits. And they fear so-called vigilantes will effectively litigate abortion providers into oblivion. Supporters of the Texas measure say Roe and Casey still stand as to state actors — technically, they remain in place — but that the statute at question provides a unique and virtually untouchable legal mechanism for the state to accomplish its policy goals without government officials handling enforcement.
Abortion Rights Applicants
“Nearly fifty years ago, this Court held that Texas could not ban abortion prior to viability,” the applicants for the emergency injunction (led by Whole Woman’s Health) wrote in a 375-page application while referencing Roe. “Yet, absent intervention from this Court, in less than two days, on Wednesday, September 1, Texas will do precisely that.”
The application then referenced the underlying Texas law at issue: Senate Bill 8. As the abortion providers noted:
This new Texas law will ban abortion starting at six weeks of pregnancy, which is indisputably prior to viability and before many people even know they are pregnant. As such, it unquestionably contravenes this Court’s precedent, including Roe, which the State of Texas concedes is binding. Indeed, as an amicus in Dobbs v. Jackson Women’s Health Organization, Texas asked this Court to overrule its precedent in order to uphold the fifteen-week abortion ban at issue in that case.
The Supreme Court agreed to hear Dobbs as of May 17, 2021.
The applicants continued:
If permitted to take effect, S.B. 8 would immediately and irreparably decimate abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics to ultimately close. Patients who can scrape together resources will be forced out of state to obtain abortion care, by one estimate increasing the average one-way drive to a health center by 20 times, from 12 miles to 248—almost 500 miles round trip.
What opponents consider the most bizarre aspect of the law — and what proponents consider its most ingenious effective measure — is the private action it creates. Again, from the applicants:
S.B. 8 differs from those bans in that it bars executive-branch officials — such as local prosecutors or the health department — from enforcing it directly. Instead, S.B. 8 may be enforced only by state courts via civil-enforcement actions that “[a]ny person” can bring against anyone alleged to have violated the ban by performing or assisting with a prohibited abortion, or by intending to do so. When a “violation” of the ban occurs, S.B. 8 requires state courts to issue an injunction to prevent further prohibited abortions from being performed, aided, or abetted. In addition, courts are required to award the person who initiated the enforcement action a minimum (there is no statutory maximum) of $10,000 per abortion, payable by the person who violated the Act.
At every turn, S.B. 8 attempts to replace normal civil-litigation rules and clearly established federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and to make them impossible to fairly defend against. For example, S.B. 8 provides that persons sued under the Act could be forced into any of Texas’s 254 counties to defend themselves, and it prohibits transfer of the cases to any other venue without the parties’ joint agreement. S.B. 8 also states that a person sued under the Act may not point to the fact that the claimant already lost an S.B. 8 lawsuit against someone else on equally applicable grounds or that a court order permitted an abortion provider’s conduct at the time when it occurred, if that court order was later overruled. And S.B. 8 imposes a draconian fee-shifting provision providing that, if an abortion provider or other person challenges S.B. 8 seeking declaratory or injunctive relief against its enforcement, that person and all of their lawyers can be held jointly and severally liable for the opposing party’s attorney’s fees and costs if any of these claims are dismissed for any reason.
As former Texas judges and legal scholars have observed, S.B. 8 “weaponizes the judicial system by exempting the newly created cause of action from the normal guardrails that protect Texans from abusive lawsuits and provide all litigants a fair and efficient process in our state courts.” As a result, even if abortion providers and others sued in S.B. 8 lawsuits ultimately prevailed in them—as they should in every case if only they could mount a fair defense—the threat of unlimited lawsuits against them will prevent them from continuing to provide constitutionally protected health care.
The Texas Attorney General’s Reply
In a 95-page reply, the Office of Texas Attorney General Ken Paxton (R) noted the flaw in the applicants’ argument by pointing to both the statute and to the limited review the Supreme Court can offer given the unique posture of S.B. 8.
“This Court cannot expunge the law itself,” the state wrote in reply. “Rather, it can enjoin only enforcement of the law. But the Governmental Defendants explicitly do not enforce the law, and the private-individual respondent testified that he will not do so.”
That “private individual” is Mark Lee Dickson, “a private individual deputized to bring S.B. 8 enforcement claims under color of state law, from whom Plaintiffs face a credible threat of enforcement.” He “testified that he does not intend to file any such action,” the state noted.
In other words, the Supreme Court, under the State of Texas view of the matter, cannot force state officials not to enforce the law because they aren’t the ones tasked with doing the enforcing. The applicants’ case against a bevy of executive branch officials, then, is pointless, the state argued.
The state then recapped how the applicants planned to make their point:
Applicants also sued a Texas district judge and a court clerk. Respondent Judge Austin Reeve Jackson presides over Texas’s 114th District Court. The 114th District Court is one of four district courts sitting in Smith County, Texas, population 235,753. Respondent Penny Clarkston is the clerk of Smith County’s courts. Applicants’ theory: Texas executive officials do not enforce SB 8 (notwithstanding their claims against those very officials), so it must be “enforced” by the clerks who accept filings and the judges who preside over private lawsuits. They have acknowledged that their suit names Judge Jackson in his “judicial capacity.” And they have moved to certify defendant classes of all Texas judges with jurisdiction to hear private lawsuits brought under SB 8 and the district clerks of all 254 Texas counties.
The AG’s office attempted to rubbish that litigation strategy as follows:
Applicants do not have standing to sue a state judge or court clerk because a private party might file a lawsuit in his court. As several courts of appeals have concluded, there is no case or controversy between a judge and a plaintiff challenging the constitutionality of a state law merely because the judge may apply that law. The same principle applies to a state court’s clerk for the same reason, as he or she works at the direction of judges. “The requirement of a justiciable controversy is not satisfied where a judge acts in his adjudicatory capacity.” And whether a judge acts in that capacity turns on “the nature of the act itself, i.e., whether it is a function normally performed by a judge.”
As the Fifth Circuit explained four decades ago, “clerks and judges do not have a sufficiently ‘personal stake in the outcome of the controversy’” to allow for federal jurisdiction. Other courts agree: a judge’s posture is “not in any sense the posture of an adversary to the contentions made on either side of the case.” To the contrary, a judge acts as “a disinterested judicial adjudicator, bound to decide the issues before him according to the law.” For the same reasons, many courts have rejected attempts to name the judges who apply challenged statutes as defendants under section 1983.
The state elsewhere in its response complained that applicants were “essentially asking federal courts to commandeer the entire Texas judiciary” in an impermissible manner. Thus, in the state’s view, a nearly perfect anti-abortion regime was enshrined in S.B. 8: the law afforded citizens the ability to jawbone other citizens into compliance, and it gives pro-choice advocates no one to sue.
Additional arguments from the state surrounded the technical procedural details of district court injunctive relief and whether higher appellate courts could vacate the stay currently in place at the district court level which prevented arguments in favor of an injunction against S.B. 8 from moving forward. The district court, the state noted, did not rule on the applicants’ request for an injunction against S.B. 8, and it procedurally could not do so because the case was appealed. The state balked at what would be legally necessary for the applicants to prevail in their request for the nation’s highest court to lift a stay of a district court proceeding:
The only way this Court could order the district court to proceed with the preliminary-injunction hearing would be to create an abortion-specific exception to the general rules regarding divestiture of jurisdiction and interlocutory appeals of sovereign immunity. The district court and Fifth Circuit have declined to do so. This Court should also deny Applicants’ extraordinary request.
Mark Lee Dickson’s Reply
A brief on behalf of Mark Lee Dickson was penned by attorneys for the America First Legal Foundation, a nonprofit headed by Stephen Miller and staffed by “top-ranking former Trump administration officials.”
Naturally, the Dickson sided with the state — even though Dickson claimed he wouldn’t press litigation under S.B. 8.
“There is no conceivable basis for subject-matter jurisdiction over any of the claims in this lawsuit,” the brief argued. “Litigants cannot challenge the constitutionality of a statute by suing the entire state judiciary and demanding an injunction that prevents every judge in the state from presiding over any case that might be filed under an allegedly unconstitutional law.”
The applicants replied with a 22-page missive to argue (in part) that even if the Supreme Court couldn’t block the entire law from taking effect, the “persuasive force” of a ruling against S.B. 8 would be helpful as a “deterrent” to pro-life activists.
Read the various arguments below:
Editor’s note: most legal citations have been omitted from quotes in this piece to make it easier to read. The full citations are available in the documents above.
[image via Drew Angerer/Getty Images]
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