SCOTx puts the last nail in the federal lawsuit against SB8

The fix was in from the beginning.

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”

See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:

See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.

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One Response to SCOTx puts the last nail in the federal lawsuit against SB8

  1. Kibitzer Curiae says:

    RE: “There’s still (1) suits against individual defendants to prevent *them* from enforcing SB8; and (2) state court litigation. There’s also still DOJ’s suit vs. TX. But this is yet another ruling that keeps SB8 on the books, denying millions of Texans of their constitutional rights.”

    As to (1), Prof. Vladeck is apparently referring to the interpleader action in federal court in Chicago (Braid v. Stilley), but that one is not an injunction suit. It’s not a proper interpleader either because there is no accrued liability for a fixed sum of $10K in the absence of a judicial ruling on Braid’s admitted SB8 violation, and lead defendant Oscar Stilley pleaded for up to $100,000 while the abortion doctor only deposited $10K into the registry of the court in interpleader play money.

    Moreover, the interpleader defendant that provides the excuse for venue/forum in federal court in Chicago even though he filed his suit against Braid in Bexar County, Texas (Gomez) is pro-choice (and so declaring himself on his pleading, no less). As such, he is on the same side as the abortion doctor, which should normally defeat justiciability for lack of adversity under Article III standing jurisprudence. But a dozen attorneys for Interpleader Braid from multiple lawfirms and jurisdictions plus the federal judge presiding over the action all refuse to acknowledge as much. So that jurisdictional defect may eventually have to be addressed on appeal. Gomez has gone there already, but his bid failed because the denial of his motion to dismiss on the ground of there being no case or controversy was interlocutory rather than constituting a final appealable order. Note that Gomez has additionally formally declared not wanting the “bounty” authorized by SB8. But Dr. Braids’ attorneys are nevertheless seeking a take-nothing merits judgment against him.

    The other fundamental problem is that Braid brings the federal action claiming to hold money subject to competing claims, but is at the same time himself a claimant for the $10,000 he has put up, and wants it to be awarded back to himself by way of judgment. So, he is not an innocent stakeholder like a life insurance company facing competing claims for the same death benefit by two or more people claiming to be the rightful beneficiary of the insurance proceeds, but instead litigates on both sides of the case.

    As for (2), the state court litigation, the MDL cases (in which Vladeck filed a friend-of-the-court brief) are under stay because Defendant Texas Right to Life and John Seago, represented by Jonathan Mitchell, have filed an appeal of the part of the Judge David Peeples’ order that denies their motion to dismiss under the Texas Citizens Participation Act (TCPA). So, the action on that front (involving 14 separate pre-enforcement injunction and declaratory-action suits against TRTL) is now in the Third Court of Appeal in Austin. But an agreed injunction is in place in the meantime, so TRTL can’t file any SB8 actions until the temporary injunction is lifted, voided, or otherwise terminated.

    Regarding a court ruling that “keeps SB8 on the books”, this is misleading. A judicial decision cannot wipe a statute off the books. At best a statute can be declared invalid or void, and/or rendered unenforceable. But laws enacted by the legislature stay on the books until the legislature repeals them, whether they are legally effective and enforceable or not. And enforcement can be enjoined without the law at issue having been declared unconstitutional, as illustrated by the agreed temporary injunction currently in effect against Texas Right to Life in the state MDL litigation.

    Incidentally, the issue of what remaining effects abortion laws still have after judicial rulings of unconstitutionality is also currently before the Texas Supreme Court; in Zimmermann v. City of Austin, Tex. No. 21-0262. Briefing in that case is ongoing.

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