Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.


In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

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One Response to Providers’ federal lawsuit against SB8 is officially buried

  1. Kibitzer Curiae says:

    RE: “A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it.”

    Nothing unclear or mysterious about it, really.

    As for a temporary injunction, there is one already in place by agreement of the parties, as also noted by the Fifth Circuit when they sent the certified question to the SCOTX for confirmation that no public enforcement indeed means no public enforcement as a matter of state-statute construction.

    As for the request for a permanent injunction, the rationale (for no ruling one way or the other) was that fact issues precluded this claim for relief to be resolved summarily, and would therefore have to wait for a trial on the merits (in which disputed evidentiary matters get resolved). Specifically, the factual issue there was whether the defendants were bent on suing the plaintiffs under SB8, which this relevant both to the question of standing and the availability of injunctive relief as a form of redress/remedy.

    Note also that private-individual defendant Dickson got dismissed by the SCOTUS in WWH v. Jackson based on his disclaimer of intent to bring suit. That bolsters the defendants’ claims in Van Stean v. Texas Right to Life that they are not proper targets for injunctive relief either.

    As for the current status of the 14 pending pre-enforcement cases in state court, nothing is happening in the MDL pretrial court because Judge Peeples also denied the defendants’ motion to dismiss under the Texas Citizens Participation Act, a ruling that is immediately appealable and results in an automatic stay of proceedings in the trial court in the interim. This appeal is now fully briefed and it’s up to the Third Court of Appeals (Austin) to deal with it sooner or later. One group of appellees asked for expedited treatment of the TCPA appeal (which is already one of the accelerated variety), but only did so in their brief, not in a separate motion. So it’s not surprising that there is no procedural ruling on the timing issue. The appellate case number is 03-21-00650-CV.

    As for the Fifth Circuit qualifying for the “real villain” designation, note the bottom line in the Justice Alito’s draft majority opinion:

    “The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”

    Nota bene: In Dobbs, they are about to reverse the Fifth Circuit and themselves, though the latter (the pronouncement that Roe was wrong from the start) is technically called something else. The Fifth Circuit is an “inferior” court and was therefore bound by the extant precedent at the time they get to weigh in.

    See Jackson Women’s Health Organization v. Dobbs, 945 F. 3d 265 (5th Circuit Dec 19, 2019, pet. granted)(“we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.”).

    Even Judge James Ho concurred in the result, though unhappily: “Supreme Court precedent dictates abortion policy in America. So I am duty bound to affirm the judgment of the district court. But I cannot affirm the opinion of the district court.”

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