An abortion provider in Texas took the unusual step Tuesday of asking a federal judge in another state to declare unconstitutional the six-week-ban on the procedure that took effect last month in Texas.
Lawyers for Dr. Alan Braid, a San Antonio physician who acknowledged performing an abortion after the state’s legal limit, wants a judge in Illinois to block three lawsuits filed against him under the ban, which has halted almost all abortions in the nation’s second-most-populous state.
Abortion providers and advocates say they are in “legal limbo,” after twice asking the Supreme Court to intervene to block enforcement of the law, which bars abortion as early as six weeks into pregnancy with no exception for rape or incest.
They are awaiting action in the three lawsuits against Braid, as well as word from a federal judge in Austin, who could rule at any time on the Justice Department’s request for an injunction to restore abortion access in Texas.
“Dr. Braid filed suit today to stop the vigilante plaintiffs and get this extreme abortion ban declared unconstitutional once and for all,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.
“He should never have had to put himself at legal risk to provide constitutionally protected abortion care. This legal limbo has gone on long enough and needs to be stopped.”
[…]
Braid came forward last month, announcing in a Washington Post column that he had performed an abortion past the legal limit and essentially inviting a lawsuit so he could directly challenge the constitutionality of the ban.
Three individuals — one in Arkansas, one in Texas and another in Illinois — quickly filed lawsuits against Braid in state court in Texas.
The Center for Reproductive Rights, representing Braid, now wants to consolidate the “competing claims” in those cases in federal court in Illinois.
Braid’s lawyers say they can take this step because three different people in three different states have filed similar claims to an award of at least $10,000.
“The likelihood of strangers filing multiple, overlapping lawsuits against a provider is a feature of SB8, and not an accident,” the court filing states, making reference to the law, which was formally classified as Senate Bill 8.
Braid said that none of the individuals has a right to damages because the law is unconstitutional under the Supreme Court’s Roe v. Wade decision guaranteeing the right to abortion before viability, usually around 22 to 24 weeks.
Braid also has a right, the filing states, “to avoid wasteful, vexatious and duplicative litigation and potentially conflicting rulings.”
See here, here, and here for some background. I knew about the Arkansas and Illinois lawsuits against Dr. Braid, but had not been aware of the third one. Looking at the defendants named in the filing, it appears that the third litigant is one of the frequent commenters here. I’ll let him explain himself about that.
These lawsuits are all in state court. There is also the bottleneck imposed by the Texas Multidistrict Litigation Panel (supported by the Supreme Court) on lawsuits by providers to get injunctions against other potential litigants, but from my read of the lawsuit that does not appear to be at issue here. The larger point is that not just Dr. Braid but every abortion patient and provider and clinic employee and volunteer and many other people have a right to their day in court, and to have a clearly unconstitutional law be put on hold while legal questions surrounding it are being decided. That’s what is being asked for here, and that is what has been denied all these people by SCOTUS, the Fifth Circuit, and the Supreme Court of Texas. If this is what it takes to finally bring a (temporary) halt to this travesty then so be it, but it should never have come to this in the first place.
UPDATE: Late in the day yesterday, the judge in the federal lawsuit filed by the Justice Department against the state of Texas issued a temporary restraining order that blocks any SB8 lawsuits from being filed. We all know that the Fifth Circuit already has an order ready to block that, but for now that would seem to moot this action. I’ll post about this ruling tomorrow.
You can read Judge Pitman’s 118-page order here:
https://storage.courtlistener.com/recap/gov.uscourts.txwd.1146510/gov.uscourts.txwd.1146510.68.0_3.pdf
COMMENT: There a many problems with this order, as the Fifth Circuit will no doubt explain sooner or later.
A major one is that this injunction prevents Texas state judges (who are being enjoined along with their clerks) from hearing and adjudicating a test case and ruling on the constitutionality of SB8, which would be raised by Dr. Braid from a defensive posture as is usually done. The same problem besets the 14 cases against Texas Right to Life. In a nutshell: the injunctive relief (TRO, TI, PI) aggrataves the very problem being compained of: that SB8 cannot be challenged as unconstitutional the traditional way. State courts can entertain both state constitutional and federal constitutional challenges to SB8 in cases based on SB8. Except when they a prevented from doing so by a federal district court taking control of the entire Texas judicial apparatus.
Also see Prof. Wasserman’s rapid-action commentary:
“The order enjoins the state, including clerks and judges, but private individuals only to the extent their conduct causes clerks and judges to violate the injunction. This is wrong. The court cites no case law in which a federal district court has enjoined a state judge from receiving or adjudicating a case, as opposed to enjoining would-be parties from moving forward with that litigation. The court brushes aside the language in Ex Parte Young about not enjoining judges (as opposed to executives) by insisting the case is about sovereign immunity, which is not in play in a suit by the United States. But that portion of the opinion was not saying judges have sovereign immunity, it was describing the scope of the cause of action, limiting it to executives, not judges. It should follow that it does not apply to clerks.”
SOURCE: Prawfsblog October 6, 2021: Court enjoins enforcement of SB8, Comment by Howard Wasserman.
Just how many Abortions are there in the State of Texas? Everyone is so upset it as if All men and women are getting abortions at least once a year.
At least 50,000 or 60,000 abortions a year in Texas are reported by HHS. That number isn’t all inclusive.
TEST CASE GAMBITS
@ Jonathan
The abortion stats don’t really matter. A single one would be enough for either side, assuming proper private parties and proper procedural presentation.
A single case … such as the single post-heartbeat abortion admittedly performed by Dr. Braid on September 6, 2021 and then advertised to a national audience to lure SB8 plaintiffs for a test case, perhaps even diversity-jurisdiction plaintifffs to get into federal court, rather than having to litigate up the chain in Texas with the all-GOP SCOTEX on the way to the SCOTUS. Remember that 10K is only the minimum amount of statutory damages for a single violation, and that Stilley has already pleaded for 100,000 which exceeds the treshold to get into federal court (He filed in state court, though).
Textbook exemplar of “Create-your-own test case” as recommended by a certain law professor or even several of them.
MEANWHILE … WE ARE THE KING
Regarding the Pitman injunction and the take-over of the Texas judiciary, consider the interlocutory:
SCOTUS: “[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
NOTA BENE: “in Texas state court”
BUT JUDGE PITMAN WON’T LET TEXAS COURTS GET INTO THE ACTION
“IT IS ORDERED that the State of Texas, including its officers, officials, agents,
employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§ 171.201–.212.”
“For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§ 171.201–.212.”
“Even though private individuals file S.B. 8 lawsuits, the state judiciary plays a role in the lawsuits through several official actions including docketing, maintaining, hearing, and rendering relief in an S.B. 8 lawsuit.41 The State cannot claim that its state court judges and court clerks are not “officers, agents, servants, [or] employees” of the State.”
AND NEVER MIND THE FIFTH CIRCUIT’S PRIOR RULING
“[T]his Court is not constrained by the concerns expressed by the Fifth Circuit in [Whole Woman’s Health v. ] Jackson, when it found no enforcement connection between the judges and court clerks and S.B. 8 under the rubric of an Ex parte Young analysis. Whole Woman’s Health v. Jackson, No. 21-50792, 2021 WL 4128951, at *4 (5th Cir. Sept. 10, 2021) (“Plaintiffs fail to show any enforcement connection between any of the State Defendants and S.B. 8, and therefore cannot satisfy either understanding of Ex parte Young.”).”
—
BOTTOM LINE: We are the sovereign and you are subservient. And the sovereign doesn’t need no cause of action. We’ll just call it equity.
Does that sound familiar? Remember State v. Hollins last year? AG Paxton d/b/a The State of Texas asserting sovereign injury and superior sovereign state interests to subdue Harris County Clerk Chris Hollins in the name of state supremacy?
Now Paxton is on the receiving end of the dominance-subservience dynamic, along with the entire Texas judiciary. No dual sovereigns or cooperative federalism here. You will refrain as ordered, or else.
We’ll see if it holds, what with the U.S. Supremes having allowed for state court challenges, which are now precluded under Judge Pitman’s order. Preliminarilty at least.
IMPLICATIONS FOR THE CROP OF MDL CASES
What will the Multi-District Litigation Panel now do with those other cases? They aren’t based on SB8 as such, but seek declaratory judgment on the constitutionality of SB8 under state constitutional law.
So technically, they should *not* be frozen in place by the Pitman injunction. And the state judiciary could still opine on the constituionality of SB8, whether state or federal or both, and perhaps whittle it down to the portion that will pass constitutional muster. Judge Pitman declined to do so.