The “abortion bans are good for interstate commerce, actually” defense

I can never tell when Ken Paxton is trolling or sincere.

In briefs filed Wednesday in the Justice Department’s challenge to Texas’ abortion ban, Texas Attorney General Ken Paxton touted the trips Texas women are making out of state to obtain abortions as a point in his favor in defending the law.

Paxton was addressing an argument that the Biden administration had made for why it should be allowed to challenge the six-week abortion ban in federal court. The Justice Department said that the way the ban affects interstate commerce gives the United States the authority to bring a lawsuit challenging it.

Paxton shot back on Wednesday in his brief by arguing that the Justice Department did not cite any “actual evidence that the Texas Heartbeat Act burdens interstate commerce.”

“What evidence that does exist in the record suggests that, if anything, the Act is stimulating rather than obstructing interstate travel,” Paxton said, pointing to an increase in Texas women seeking to travel to Kansas and Oklahoma to obtain the procedure.

In an earlier court filing, the leader of the clinic organization Trust Women told a court that call volume for appointments at its clinics in Kansas and Oklahoma had doubled, and a significant portion of those patients were from Texas.

“About two-thirds of our [Oklahoma City clinic] patient appointment calls now come from Texas patients seeking abortions that are unavailable throughout their home state,” the provider said, noting that typically only a quarter of the clinic’s patients are from Texas. In Kansas, where in 2019 only 25 abortion patients were from Texas, approximately half of the calls to its Wichita clinic are now coming from Texas patients, according to the filing.

That’s not how I have understood the Justice Department’s case, but what do I know? Ken Paxton is a ninth-level legal ninja and we must bow before his superior wisdom.

Be that as it may, yesterday was the hearing for the motion for an injunction against SB8, which we have all been waiting for:

A federal judge Friday expressed doubt about Texas officials’ argument that the state’s virtual ban on abortion is constitutional and must stay in effect while the courts determine whether it violates the right to access the procedure.

Lawyers for the state say the law is immune from being temporarily blocked in the meantime because it is enforced by civilians who sue over violations, not the state.

“If the state is so confident in the constitutionality of the limitations on women’s access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than simply doing it directly?” U.S. District Judge Robert Pitman asked Texas’ attorneys. “If the state had done this directly, would you still defend the constitutionality of these limitations on their merits?”

After a three-hour hearing, Pitman did not give a timeline for when he would rule on the Justice Department’s request to halt the law temporarily while its lawsuit is ongoing. Texas has indicated in court filings that it will immediately appeal any temporary block placed on the law.

“I will give careful consideration to very important issues that you have raised and argued, and we will get to work on the appropriate order in this case,” said Pitman, an Obama appointee.


The Justice Department filed the suit last month after the U.S. Supreme Court denied an emergency request to block the law as it took effect Sept. 1, citing procedural constraints because of the law’s unique construction. The high court did not weigh in on the substance of the case.

Pitman acknowledged the challenge he would face in issuing an injunction because state officials do not enforce the law.

“What would you believe that would obligate you to do, if anything?” Pitman asked Will Thompson, deputy chief for special litigation for the Texas attorney general’s office.

“Honestly, Your Honor, I’m not sure,” Thompson answered. “I think that’s part of the problem.”

The federal government is asking Pitman to specify that his order would apply to private individuals who may wish to file suits for violations of the law, Senate Bill 8, “such as by requiring Texas to post the injunction on court websites and inform all state court judges and judicial employees about the injunction.” The state has urged Pitman to be specific about who would be restricted by any order he makes, and how.

Brian Netter, a lawyer for the Justice Department, argued that the state can’t hide behind the law’s unique construction to help it “unambiguously violate” the Constitution.

“The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review,” Netter said. “So far, it’s working. … Women have been left desperate, forced under sometimes harrowing circumstances to get out of Texas, if they even can.”

“The facts on the ground are quite clear and make an unambiguous case that SB 8 has already had the effect of materially diminishing the opportunity of women in Texas to exercise a constitutional right.”

Those who can travel face a difficult journey: On average, patients are traveling 650 miles each way to reach abortion clinics in the Southwest, court filings stated.

One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion, the Justice Department alleges.

Another patient traveled six hours one way to get to Oklahoma by herself because she was worried that asking someone to come with her would leave that person open to a suit filed under SB 8.

Not much more to do right now but wait and hope. Zoe Tillman from Buzzfeed News has a long thread from the hearing, while law professor Leah Litman throws some water on the state’s defense. The 19th has a broader look at the legal landscape and the various cases against the “heartbeat” law, and Daily Kos has more.

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5 Responses to The “abortion bans are good for interstate commerce, actually” defense

  1. Kibitzer Curiae says:

    The reporting on the SB8-related litigation is riddled with errors.

    Let’s start with the 19th piece …

    Passages in quotation marks are verbatim from the article, followed by corrections and comments.

    “There are three major cases currently challenging the new Texas law, all taking up different arguments. Any one of them could reach the Supreme Court. Here’s how.”

    COMMENT: The count is wrong. There are two cases in the federal courts system: Whole Woman’s Health v. Jackson and USA v. Texas. Stilley v. Baird and Gomez v. Baird makes for two cases in state courts, but there are 14 more before the Multidistrict Litigation Panel and Texas Supreme Court (on a procedural issue) that were brought by abortion providers, funders, and supporters.

    “Whole Woman’s Health v. Jackson … The named defendant in the case is a federal district judge. ”

    CORRECTION: The defendant is a state district judge, not a federal judge.

    “The case against Braid will be heard in a county court.”

    CORRECTION: The two cases (Stilley and Gomez) were filed in district courts, not county court.

    “As a result, the DOJ argues, Texas passing a law with no rape or incest exception preempts federal officials’ own authority.”

    COMMENT: Preemption goes the other way. The claim is that federal law preempts state law to the extent of conflict, i.e., that federal law trumps state law. Preemption is normally asserted as a defense.

    “Texas will immediately appeal this ruling to the United States Court of Appeals for the 5th Circuit and ask them to reinstate SB 8 immediately until they can hear the case there. ”

    COMMENT: They will ask for a *stay* of the preliminary injunction if Judge Pitman grants one, thereby suspending its effect, pending resolution of the interlocutory appeal on the merits. The “reinstatement” of SB8 will only be by implication, and would not be a technically correct characterization because any injunction against enforcement would not amount to a declaratory judgment/summary judgment. That latter is what Planned Parenthood is trying to get in Travis County, but the Multi-District Litigation Panel has gotten into the way with their stay order.

    “The 5th Circuit has, to-date, ruled in favor of the state when it comes to SB 8 by letting the law stand even while legal challenges against it continue to work their way through the federal court system. Regardless of their action, the losing party will likely then go to the Supreme Court and ask for their involvement.”

    COMMENT: The appeal in WWH v. Jackson is currently pending in the Fifth Circuit (procedural rulings with rationale issued Sept 10, 2021 by a panel). Regarding Supreme Court involvement, a second emergency filing has been made (Petition for a writ of certiorari before judgment) and is pending in the SCOTUS under Docket number 21-463. A response is due Oct. 28, 2021).

    “The abortion provider also pointed out the chilling effect SB 8 would inevitably create on [SIC] as a result of the threat of frivolous lawsuits.”

    COMMENT: The liabiity threat doesn’t come from frivolous lawsuits (which are subject to dismissal under normal procedural rules, such as Rule 91a or motion for no-evidence summary judgment), but from meritorious lawsuits that could result in a judgment against the abortion provider or abetter. The defense of unconstitutionality could and would of course be raised before a trial could result in imposition of liability and statutory penalties on the defendant. That’t the point of having a test case for defensive (rather than offensive) assertion of the claim that SB8 is unconstitutional. See other law prof comments on the topic a strategic litigation and procedural posture.

    “Whole Woman’s Health and their co-plaintiffs then appealed to the Supreme Court for an emergency hearing to enjoin the law before the case could be heard, but were denied.”

    COMMENT: The SCOTUS doesn’t hold hearings but oral argument (in regular cases). There would not have been time for oral argument here. The request was not an appeal in the legal sense of the term, but a request for an immediate injunction, which is a form of extraordinary relief. This was a “shadow docket” disposition. It couldn’t really have been any other way, given the time pressure. Critics, of course, make the point that the SCOTUS could have (and should have) granted as stay of SB8 on the shadow docket, and then allowed for extensive briefing at leisure later.

    “Rather, the latest petition in front of the Supreme Court focuses on whether Texas officials are the people who should be sued over SB 8 — and whether providers have a right to sue over it. ”

    COMMENT: The legal issue is not whether they *should* be sued, but whether they *can* be sued, i.e. whether the federal courts have jurisdiction over such a civil action. The Fifth Circuit has already ruled that state judges and their clerks are not proper defendants, characterizing the approach as absurd. Whole Woman’s Health v. Jackson, No. 21-50792, 2021 WL 4128951 (5th Cir. Sept. 10, 2021)

    The SCOTX likewise disaproved of the notion of judges as proper litigating parties last year (in the mandamus involving the stay-in-jail GA-13 suit by the Harris County misdemeanor judges). In that case, though, the judges were the plaintiffs, rather than defendants. Still, SCOTX ruled that the issue of GA-13 validity should be litigated in a proper case before the judges. See In re Abbott, No. 20-0291, 601 S.W.3d 802 (Tex. 2020)(“even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. We therefore conditionally grant mandamus relief.’).

    “Whole Woman’s Health says makes it perfectly fair for the state of Texas to be the defendants in their suit.”

    COMMENT: They did not name the State of Texas (which — qua state — is immune) as a defendant, but state officials (by name in their respective official capacities). The relevant Supreme Court case governing such suits is Ex Parte Young. The state itself is the defendant in USA v. Texas, but this is not a suit by private parties.

    “By having a provider subject themselves to one of SB 8’s civil suits by a private citizen, the case is now set in motion, which could ultimately give a state judge the opportunity to not only determine Braid’s innocence or guilt.”

    COMMENT: This is a civil case. Guilt/innocence is a criminal law concept. In civil cases, the issue is not “guilt” but liability (here, for a violation of SB8), and the negative consequence of a proven violation is an award of “statutory damages” not punishment as in a criminal case. Plus prospective injunctive relief and attorneys fees incurred by the prevailing plaintiff, if any.

    “As a practical matter, it may be that eventually a lawsuit against Dr. Braid or another abortion provider leads to a ruling confirming that a six-week ban is unconstitutional,” Kaye said. “But any such ruling wouldn’t happen for months or years.”

    COMMENT: SB8 is not based on gestational age, but on presence of a fetal heartbeat. Therefore, the descriptor “six-week ban” is technically incorrect. In a miscarriage scenario, for example, a dead fetus past six weeks could be removed surgically without violating the Heartbeat Act because no heartbeat would be detected with a sonogram or in any other way. Deceased people and deceased fetuses don’t have cardiac activity (though a battery-sustained pacemaker could conceivably still generate electrical signals in a corpse).

    “So without a larger statewide injunction — like the one that could be issued by the federal district court in Austin on October 1 — any changes in who the law affects would only pertain to certain individuals or counties, but not the state as a whole.”

    COMMENT: The counties are not the relevant jurisdictions because trial courts don’t make binding caselaw through their rulings. If there is a precedential opinion issued by a court of appeals, it will apply to the state appellate district in question (and the trial courts within it) unless/until overruled by the Texas Supreme Court. All 14 appellate districts in Texas encompass multiple counties. In the Houston COAs, ten each (actually the same ten because the first and fourteenth appellate districts are co-extensive).

    “Rebouché said that there could potentially be more suits to come. These would likely be more civil suits filed against providers who had admitted to violating the law. The intended effect, Rebouché said, would be to target metropolitan areas throughout Texas to try to get state courts to enjoin the law in those specific counties.”

    COMMENT: This is muddled. A lawsuit based on SB8 against an abortion provider of abetter cannot result in an injunction against enforcement unless some sort of counterclaim is filed, and this would still involve the issue of who is to be restrained other than the opposing party in the lawsuit. Even if the defense of unconstitutionality succeeds against the SB8 claim, the trial court’s decision would not create binding precedent. That can only happen in an appeal. If there is an appeal.


    By comparison, Reese Oxner, over the Texas Tribune does a much better job covering the SB8 litigation.


    FILE UNDER: Media critique, law & courts journalism.

  2. Pingback: Planned Parenthood files emergency request to SCOTx – Off the Kuff

  3. Kibitzer Curiae says:

    Critique of Media Coverage of SB8-related Litigation – Part II

    Planned Parenthood Files Texas Supreme Court Emergency Request Challenging New Abortion Ban

    By StaffSeptember 30, 2021 at 1:43 pm

    “AUSTIN (CBSDFW.COM) — Planned Parenthood affiliates in Texas filed an emergency request on September 29 asking the Texas Supreme Court to intervene in the ongoing case against Texas Right to Life, challenging Senate Bill 8, the state’s six-week abortion ban.”

    COMMENT: Their mandamus petition targets the Texas Multi-District Litigation Panel, which is considering transfer of a total of 14 cases brought against Texas Right to Life et al. The Planned Parenthood affiliates are parties in only one of them, but are represented by a different set of lawyers. All the others have the same set of lawyers and the plaintiffs are either abortion providers or helpers, or advocates. These are template-based iterations by the dozen against Right to Life and GOP politicians who were involved in the sponsorship and passage of SB8, plus the Governor and the AG Paxton. Planned Parenthood wants an official declaration that SB8 is unconstitutional ASAP, but it’s not even clear that the trial court has jurisdiction to entertain that question on the merits.

    “Earlier in September Planned Parenthood was granted a temporary injunction against the group, which blocked it from suing abortion providers and health care workers at Planned Parenthood centers in Texas under SB 8.”

    COMMENT: This was an agreed order. The characterization “granted” is therefore misleading. Bloomberg reported it correctly, others didn’t.

    “Later, at the request of Texas Right to Life, the Texas Multidistrict Litigation Panel stepped in and stayed all ongoing challenges to SB 8 in state court indefinitely. The move was made despite the fact that a hearing in Planned Parenthood’s case, where it asked the court to declare SB 8 unconstitutional, was scheduled for October 13.”

    COMMENT: Well, that was the point of the stay order: to prevent a premature adjudication of the merits issue (constitutionality) prior to a determination of whether the trial court even has jurisdiction over the matter. The private defendants are saying that there is no case or controversy because the plaintiffs are not violating SB8 and because Right to Life is not intent on suing them as long as they don’t violate the statute. So there is no need occasion to stop something by judicial order that is not about to happen. And the plaintiff have no impending injury, and therefore lack standing to sue Right to Life. The case of Dr. Alan Braid does not fit this scenario, but he is not a party in these cases. Nor are the Bexar county cases against Braid before the MDL Panel.

    “Planned Parenthood says intervention by the state Supreme Court is ‘urgently and immediately needed’ because SB 8 ‘continues to cause unprecedented harm on the ground, blocking Texans from accessing their constitutional right to abortion’.”

    COMMENT: That’s a good argument for the pro-choice side of the divide on the issue. But it’s not going to fly in the all-GOP Texas Supreme Court or the MDL Panel, for that matter. This filing is an exercise in futility. At best, it could have value for publicity being predictably rebuffed by the state’s highest court.  

    “For almost a month, Texans have been forced to either continue an unwanted pregnancy or travel hundreds of miles to access care that they should be able to get in their home state,” said Helene Krasnoff, with Planned Parenthood Federation of America. “We’re urging the Texas Supreme Court to step in and move this critical case along so we can restore access to abortion across the state.”

    COMMENT: Short of being raped, no one is being forced into pregnancy, which is a preventable condition. The members of SCOTX do not share their views of a “need” for a conveniently available home-town abortion, least of all Justice Devine. This ergency request to the Texas Supreme Court is an utter exercise in futility, not to mention that the MDL Panel has the matter set for submission for October 7, 2021 (though Judge Pitman may very well come out sooner with an opinion order in the federal case). So much for the “indefinite” stay reported by the abortion-friendly press. The mandamus filing in the SCOTX at best qualifies as a publicity stunt. It stretches credulity for these attorneys to expect that the GOP justices will actually grant them relief. A less charitable hypothesis is that they are reality-remote in the judicial politics department, or their clients.

    On the positive side, the Travis county court files are paywalled. Now many of the trial court documents are available for perusal on the Supreme Court website for free because they were required to be submitted to support the petition and request for emergency ruling. The biggest component of the mandamus record has more than 1,000 pages. Wow!

    “The U.S. Supreme Court allowed SB 8 to take effect on September 1, 2021. The law prohibits abortions in Texas as early as six weeks — when a fetal heartbeat is detected and before most women know they are pregnant — and allows for private citizens, in Texas or elsewhere, to sue abortion providers or anyone else who may have helped someone get an abortion after the limit.”

    COMMENT: The Texas Heartbeat Act doesn’t limit statutory standing to sue to citizens or Texas residents only. In theory, anyone could sue, either in a Texas court, or in a federal court if Article III standing requirements and diversity jurisdiction minimum amount (75K) are satisfied.

    One scenario would be adoption-minded individuals who are thwarted in their quest to adopt unwanted babies from Texas. They would presumably have to allege and ultimately prove multiple violations, or persuade a federal court that the $10,000 is only the minimum and that they can exceed the $75,000 amount-in-controversy threshold simply by pleading for a higher amount. SB8 litigation entrepreneur Oscar Stilley, for example, seeks damages between 10,000 and 100,000, so the latter would exceed the 75,000 threshold for diversity-jurisdiction purposes. But he chose to sue Dr. Braid in Texas, and in state court. So the federal jurisdiction issue doesn’t come up in that scenario. Stilley also intervened in the federal case, however, so perhaps Judge Pitman will oblige and enjoin him as a self-designated private SB8 enforcer and imputed agent of the State of Texas for purposes of Ex parte Young relief who is actually before the court, along with the three intervenors who say they want to bring SB8 actions against abortion funders in the future. 

    POST GENRE: Media critique, law & courts journalism


    TAGS: Texas abortion laws, SB8, Texas Heartbeat Act (S.B. 8), Planned Parenthood, Texas Right to Life, Texas Legal News, Texas Supreme Court, SCOTX shadow docket, Multidistrict Litigation (MDL).  

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