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Fifth Circuit Court of Appeals

SB8 litigation will stay with SCOTx

Another game of Calvinball, same result.

The U.S. Supreme Court denied on Thursday abortion providers’ latest request to intervene in the ongoing legal challenge against Texas’ restrictive abortion law, cutting off one of their few remaining paths to a speedy victory.

The case is currently before the 5th U.S. Circuit Court of Appeals, which sent the case to the Texas Supreme Court. That is expected to add months to the legal proceedings.

Abortion providers were hoping the U.S. Supreme Court would direct the 5th Circuit to send the case to federal district court, where a judge previously blocked the law.

[…]

“It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four Texas abortion clinics. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

The fix is in. The law means nothing. It’s about to get worse. Have a nice day.

SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.

[…]

A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

Fifth Circuit gets set to put the final nail in SB8 legal challenges

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.

Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.

When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.

Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.

Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

[…]

In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.

The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.

Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.

The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.

The appeals court would decide whether to involve the state high court, which would put the case on hold.

See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.

I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.

Biden employer vaccine mandate back on

For now, at least.

A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.

The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

[…]

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.

“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.

Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.

The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.

The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.

Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.

Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.

SCOTUS allows providers’ lawsuit against SB8 to proceed

There’s a lot to unpack here.

The U.S. Supreme Court on Friday ruled that the legal challenge brought forward by abortion providers against Texas’ abortion restriction law may continue, bringing new life into what has become the most significant effort to overturn the statute so far.

The court allowed the suit to continue on an 8-1 decision but did not stop the law’s enforcement. Instead, the suit will continue in a lower federal court where abortion providers will resume seeking to block the law, commonly referred to as Senate Bill 8.

Justice Sonia Sotomayor agreed with allowing the suit to continue but condemned the high court’s decision to leave the law in effect, saying it has had “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

In a separate decision, the court dismissed a separate challenge from the Biden administration.

The justices also allowed the abortion providers to sue some state licensing officials, but not state court clerks, citing difficulties surrounding sovereign immunity. This could make it difficult for providers to get the law’s enforcement blocked overall in court.

“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor said. “By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”

[…]

The providers’ suit returns to U.S. District Judge Robert Pitman, who previously blocked enforcement of the law for two days. It was resumed by the 5th U.S. Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

The suit could now follow a similar trajectory as before: If Pitman blocks the law again, abortion opponents will likely appeal to the 5th Circuit as well — and then the case could land before the Supreme Court once more.

[…]

Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said she was pleased that the Supreme Court allowed the provider’s lawsuit to continue — but the court continues to make concessions over a person’s right to an abortion.

“What the [Supreme Court] has done is reiterate what their earlier ruling was, which is that a majority does not see a constitutional emergency in this case, even though SB 8 clearly and intentionally violates established Supreme Court law,” she said.

Franke said allowing the law to stay in effect while court proceedings continue proves that abortion rights are in jeopardy more than something like religious freedom. Although Friday’s decision allows the fight against Texas’ law to continue, she said more should have been done to protect abortion rights.

“The decision could have been much worse than it was … but this decision takes place within a larger legal landscape where the underlying right that’s at stake — that the court has not even addressed yet — could very well be eliminated and overruled,” she said. “It’s not a complete loss. I wouldn’t say it’s a partial victory, but it’s not a complete loss.”

See here for the previous entry, here for this ruling, and here for the dismissal of the Justice Department lawsuit. I’d like to see some more commentary on that ruling, because I don’t like it at all. The most thorough analysis I’ve seen of the main ruling so far comes from Slate’s Mark Joseph Stern.

The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block S.B. 8. Pitman will swiftly grant their request by issuing an injunction against “executive licensing officials” tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits.

In the meantime, all parties will await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, due by June, which may overturn Roe v. Wade and permit Texas to implement a more straightforward abortion ban. And other states may still pass S.B. 8–style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision.

[…]

Now the court has issued the narrowest possible decision to let the providers’ suit proceed. Justice Neil Gorsuch’s opinion for the court rejected their primary theory: that providers could sue state court judges and clerks to prevent the docketing of S.B. 8 cases. Gorsuch held that these agents of the state enjoy “sovereign immunity,” the doctrine that states are generally immune from private lawsuits. There is an exception from this rule called Ex parte Young that permits individuals to sue state officials, but Gorsuch held that it does not apply to state court judges and clerks. “Usually, those individuals do not enforce state laws as executive officials might,” he wrote; “instead, they work to resolve disputes between parties.”

Gorsuch identified other roadblocks, asserting that there is “no case or controversy” between providers and state courts and no remedy that “permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits.” He also rejected the plaintiffs’ attempt to sue Texas Attorney General Ken Paxton, writing that Paxton has no authority to enforce S.B. 8. And even if Paxton did have such power, Gorsuch concluded, federal courts cannot “parlay” an injunction against an attorney general “into an injunction against any and all unnamed private persons who might seek to bring their own S.B. 8 suits.”

This part of Gorsuch’s ruling is a victory for providers—albeit an extremely limited one, for two reasons. First, it’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8; it would only restrict the state’s ability to punish those clinics found liable under the law. Similarly, an injunction against licensing officials may not stop citizens from suing “abettors” who facilitate an abortion. Second, Texas and other states can easily work around Friday’s decision. Wary of that outcome, Chief Justice John Roberts—along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented from Gorsuch’s refusal to let providers sue state court clerks and the Texas attorney general. Roberts and Sotomayor wrote separate dissents, both focusing on Texas’ flagrant attempt to “nullify” rights protected by the federal Constitution.

Gorsuch did, however, identify one slim route around S.B. 8’s blockades: He allowed providers to sue the “executive licensing officials” who “may or must take enforcement actions against the petitioners if they violate” the law. These officials implement state law in a traditional manner, Gorsuch explained, and thus cannot claim sovereign immunity. They fall squarely into the Ex parte Young exception. And so there are no constitutional barriers stopping clinics from naming these parties as defendants in their federal lawsuit to freeze S.B. 8. Every justice except Clarence Thomas joined this part of Gorsuch’s decision; Thomas, alone, would have foreclosed all avenues of relief. So there are five votes to shield state court judges and clerks from federal suit, five votes to shield the attorney general from suit, and eight votes to let the suit against “executive licensing officials” proceed.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” the chief justice wrote. “The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” And if legislatures can “annul the judgments of the courts of the United States,” then “the constitution itself becomes a solemn mockery.” He asserted that state court clerks and Paxton were “proper defendants” because both play a role in imposing “burdens on those sued under S.B. 8.” An injunction against such defendants, Roberts acknowledged, may be “novel.” But “any novelty in this remedy is a direct result of the novelty of Texas’s scheme.”

Sotomayor’s dissent was substantially fierier. She criticized the majority for failing to “put an end to this madness months ago, before S.B. 8 first went into effect.” By allowing for such limited relief, Sotomayor wrote, the majority “effectively invites other States to refine S. B. 8’s model for nullifying federal rights,” betraying “not only the citizens of Texas, but also our constitutional system of government.”

[…]

There is a vast chasm between the two blocs in this case. The five most conservative justices appear to view S.B. 8 as a one-off, a desperate attempt to evade a decision (Roe v. Wade) that they themselves probably view as illegitimate. The four other justices see S.B. 8 as a direct threat to the Supreme Court’s authority to “say what the law is” by shielding constitutional liberties from state infringement. It seems the majority is troubled just enough to carve a path around some of S.B. 8’s blockades—but its solution is a ticket good for one ride only. Texas can pass nearly identical legislation that eliminates the powers of “executive licensing officials” and, apparently, lock providers out of federal court once again. Copycat bills have already cropped up in four other states, and Gorsuch has given legislators a road map to ensure that they can fully insulate their legislation from federal court review. He and his hard-right colleagues appear to believe that blue states won’t have the spine to deploy these tricks against rights favored by conservatives, like the right to bear arms.

Not much I can add to that, though you should read Dahlia Lithwick’s companion piece about the pile of failure that is John Roberts as well. The state lawsuit has drawn some boundaries, and if we get another injunction from Judge Pitman that survives the chainsaw massacre of the Fifth Circuit, we’ll be in a somewhat better place than we are right now. But the damage has been done to the clinics, and even without the looming threat of the Dobbs ruling, they may never recover. Mother Jones, The 19th, The Nation, and the Observer have more.

HISD will keep its mask mandate

This is in response to that recent Fifth Circuit ruling about mask mandates in schools and whether Greg Abbott’s ban on them violated the Americans with Disabilities Act.

The Houston Independent School District will keep its mask mandate in place, district officials said Thursday, despite a federal appeals court ruling halting an injunction on Gov. Greg Abbott’s order prohibiting such requirements.

“The ruling does not impact the requirement that students, staff, and visitors must wear masks while on HISD property. This mandate remains in place for HISD schools,” the district said in a statement. “While we are heartened that we have maintained the lowest rate of active COVID-19 cases in the state and vaccinations are now available for our youngest students, HISD’s mask mandate will remain in place for students, staff, and visitors in all HISD schools, buildings, and buses regardless of vaccination status.”

HISD plans to review the mandate at the end of its semester after the holidays, Superintendent Millard House II said last month.

House implemented HISD’s mandate shortly before the start of the school year and the board of trustees voted to express support for it.

The district, by and large, has avoided significant backlash from individuals opposing the mandate, outside of a handful of parents who have addressed House and trustees at board meetings and during a recent series of community forums.

The district’s statement noted that HISD and other districts sued over the governor’s order in state district court. The lawsuit, it said, is based on state law regarding the authority of Texas school districts to make health and safety decisions for their students. It remains in litigation.

See here for more on the Fifth Circuit ruling. As noted, Superintendent House did say that HISD would consider lifting its mask mandate after the holidays if conditions continue to improve; who knows what will happen now that the omicron variant is out there. The federal lawsuit really didn’t have much bearing on HISD anyway, since they were among the plaintiffs that had sued Abbott in state court over his mandate ban, and won an injunction that as far as I know is still in place; besides, Abbott and Paxton don’t have any authority to enforce it anyway. The district and the Superintendent are doing the right thing. Keep on keeping on. The Press has more.

Fifth Circuit puts school mask order on hold

This effing court.

A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.

U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.

Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.

The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.

See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.

Biden tries again on the employer vaccine mandate

Different appeals court this time.

The Biden administration is asking the 6th US Circuit Court of Appeals to wipe away an order from another appeals court blocking its Occupational Safety and Health Administration vaccine mandate.

Several lawsuits were brought challenging the OSHA mandate, and last week the cases were consolidated in the 6th Circuit, an appeals court that leans right, as 10 of its 16 active judges are Republican appointees.

But, before the cases were consolidated, the 5th US Circuit Court of Appeals — perhaps the most conservative appeals court in the country — issued its order blocking the mandate.

In its filing overnight Tuesday, the Biden administration said the 5th Circuit erred in how its interpretation of the Occupational Safety and Health Act limited the law’s reach, while also arguing that the 5th Circuit had not taken into proper account the public health interest in letting the mandate go into effect.

“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses,” the administration said in the new filing. “That is a confluence of harms of the highest order.”

[…]

The administration told the 6th Circuit that if it does not lift the order blocking the mandate, it should at least modify the 5th Circuit order “so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.”

See here for the previous update. The 6th Circuit is also pretty damn “conservative”, but it’s at least another shot. I have no idea what to expect, though I figure it’s best to not get one’s hopes up. I do hope they don’t take too long. Bloomberg Law has more.

Still waiting on SCOTUS

They’re in no rush.

More than two weeks have passed since the Supreme Court’s extraordinarily rushed arguments over Texas’ unique abortion law without any word from the justices.

They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court’s silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.

That’s before some women know they’re pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.

There has been no signal on when the court might act and no formal timetable for reaching a decision.

The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University’s law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.

[…]

The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.

Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.

The Supreme Court is weighing complex issues in two challenges brought by abortion providers in Texas and the Biden administration. Those issues include who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions, and whom to target with a court order that ostensibly tries to block the law.

Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear suits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to sue.

People who sue typically have to target others who already have caused them harm, not those who might one day do so and not court officials who are just doing their jobs by docketing and adjudicating the cases.

The justices’ history with the Texas law goes back to early September when, by a 5-4 vote, they declined to stop it from taking effect.

At the time, five conservative justices, including the three appointees of President Donald Trump, voted to let the law take effect. Chief Justice John Roberts joined the court’s three liberals in dissent.

The abortion providers had brought the issue to the court on an emergency basis. After they were rebuffed, the Justice Department stepped in with a suit of its own.

U.S. District Judge Robert Pitman granted the Justice Department’s request for an order that put the law on hold. Pitman wrote in a 113-page ruling that the law denied women in Texas their constitutional right to an abortion and he rejected the state’s arguments that federal courts shouldn’t intervene.

But just two days later, the 5th U.S. Circuit Court of Appeals overrode Pitman and allowed the law to go back into effect.

The Justice Department made its own emergency appeal to the Supreme Court. Rather than rule on that appeal, the court decided to hear the two suits just 10 days later and without the benefit of an appellate court decision.

You know the story. It’s hard to see this as anything but deliberate foot-dragging at this point. It would have been completely normal at the beginning for SCOTUS to put the law on hold while the litigation played out, but they chose not to do so in the most obsequious way possible. That they still haven’t sure looks like a choice to me. And barring an unexpected holiday week order, this atrocity of a law will remain in place as the Mississippi challenge to Roe v Wade gets its hearing. Stay mad, y’all. The Chron and Daily Kos have more.

Texas sues over the health care workers vaccine mandate

It’s a trifecta.

In Texas’ latest legal challenge targeting federal vaccination mandates, Attorney General Ken Paxton is suing the Biden administration over its recent order requiring health workers to receive the COVID-19 vaccine.

The Biden administration issued an emergency order, which went into effect Nov. 4, requiring eligible workers at health care facilities participating in the Medicare and Medicaid programs to get the first shot of a two-dose vaccine or a one-dose vaccine by Dec. 6.

Paxton called the mandate “an unprecedented federal vaccine decree” on health care workers.

“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans,” Paxton said Monday night in a statement. “We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”

Texas joins 10 other states suing the Biden administration over the mandate.

This joins the federal contractors mandate lawsuit and the employer mandate lawsuit, which by the way will now go to the Sixth Circuit, which may not be an improvement. There’s no point in making arguments about public safety or any other merit-base claim. The Fifth Circuit is gonna do what the Fifth Circuit does, and then either SCOTUS will step in or they’ll wave their hands at the complex legal complexities of it all and hope it’s all moot by the time it gets back to them. If you want to do something about it, support the Democratic nominee for AG against Ken Paxton or one of the Ken Paxton wannabes in 2022. That’s the one fully clear thing in this mess.

Fifth Circuit extends hold on Biden employer vaccine mandate

The worst court in America keeps on keeping on.

A federal appeals court kept its block on the implementation on the Biden administration rule that requires large companies to mandate COVID-19 vaccines for employees or carry out weekly testing starting in January. The rule, which the court characterized as a “mandate,” goes “staggeringly overboard” and “grossly exceeds [the Occupational Safety and Health Administration’s] statutory authority,” Judge Kurt Engelhardt wrote in the 22-page ruling that was joined by Judges Edith H. Jones and Stuart Kyle Duncan.

The three-judge panel on the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued the ruling saying that the challenges to the rule were likely to be successful so it further prevented the government form moving forward with its implementation. The Fifth Circuit is largely considered one of the country’s most conservative appeals courts and the panel is made up of one judge appointed by President Ronald Reagan and two others appointed by President Donald Trump.

Dozens of lawsuits have been filed in numerous appeals courts against the rule by businesses, religious organizations, and states. Engelhardt said those who opposed the measure, including Texas, Louisiana, Mississippi, and South Carolina, had standing to sue in the Fifth Circuit. “Rather than a delicately handled scalpel, the mandate is a one-size fits-all sledgehammer,” reads the ruling. The judges said the rule imposes a financial burden and could amount to a violation of the Constitution’s commerce clause. “The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the judge wrote.

See here and here for the background. The Fifth Circuit never disappoints, do they? Completely predictable, regardless of the facts.

One small bit of potentially good news.

The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions. The Supreme Court is expected to eventually decide the matter.

Dena Iverson, a Justice Department spokeswoman, said the Biden administration would defend the mandate through that process.

Maybe we can hope for a better outcome from a less corrupted court. In the meantime, I’ll leave you with this:

Further developments soon, we hope. CNBC and Reuters have more.

We wait on the Fifth Circuit

They have received briefs and held a hearing about whether to keep or lift their hold on the Biden COVID vaccine mandate for employers.

A coalition of businesses argued in federal court Tuesday that they would suffer “irreparable harm” if the court fails to permanently halt the Biden administration’s Covid-19 vaccine-or-test mandate for large businesses as the legal challenges make their way through the courts.

Several staffing companies, religious employers and other businesses said in a court filing that the Fifth Circuit Court of Appeals should permanently block the standard “to protect Americans from being coerced to comply with the unconstitutional vaccine mandate during the pendency of this litigation,” after the court issued a temporary stay last weekend.

The Fifth Circuit challenge, led by Texas, is just one of at least a dozen lawsuits filed against the mandate by mostly Republican governors, conservative organizations and business groups, who say the mandate is an unconstitutional overreach of power by the federal Occupational Safety and Health Administration.

Comparing the vaccine-or-test mandate to the Biden administration’s eviction moratorium, business groups suing over the vaccine rule pointed to the Supreme Court’s decision in August to knock down the eviction ban. Then, the high court found in the case of the eviction moratorium, that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends” and that Congress must specifically authorize such policies.

“Just a few months ago, the Supreme Court explained that the Centers for Disease Control and Prevention (CDC) could not unilaterally grant itself control of the nation’s housing market,” the business groups wrote in a Tuesday court filing. “Sweeping authority must come, if at all, from Congress.”

The emergency rules released by the Department of Labor last week require private businesses with more than 100 employees to ensure their workers are vaccinated or have them submit to weekly testing by Jan. 4.

The Biden administration said in a court filing Monday that the mandate was well within OSHA’s authority and that a permanent stay “would likely cost dozens or even hundreds of lives per day.”

Attorneys for OSHA and the Labor Department told a panel of judges for the New Orleans-based Fifth Circuit Monday that the legal argument lodged by states and businesses conflicts with earlier court rulings and federal law, and is unlikely to succeed.

They also said businesses and states challenging the rule don’t have the grounds for “emergency” relief because the effects of the mandate won’t be in place for another month.

See here for the background. I find it best for my sanity to always expect the worst from the Fifth Circuit, so I’m just going to take some deep breaths and try to think about other things. You night appreciate this Twitter thread from Raffi Melkonian about the arguments some of the companies that oppose the Biden mandate are making, and this Twitter thread from Karen Vladeck about the procedural aspects of this case. I’ll have more when the court says something.

The employer vaccine mandate is here (and on hold)

Here are the details.

Deadline is Jan. 4: The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.

Workers must get paid time off to get vaccinated: Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.

Employers don’t need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise.

Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.

Health care workers don’t have testing option under separate rule: A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4.

[…]

In the case of the OSHA rule, enforcement will largely fall to companies themselves. With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.

Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site somewhere. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

The company I work for will fall under this mandate. They have been waiting for the official rules before saying what the company policy will be, so I expect to see a communication about that soon. I have a co-worker who is Not Happy about this. I’m sure you can guess how I feel.

How will it affect Texas?

The White House said the new rules preempt any state and local laws, weakening Gov. Greg Abbott’s ban on COVID-19 vaccine mandates, employment lawyers said.

Abbott issued an executive order last month banning any entity in Texas, including private businesses, from requiring anyone to get the COVID-19 vaccine. The new Biden administration rule would void part of the ban, but it would still apply to everyone else in the state, including local governments, school districts and smaller businesses.

[…]

The conflicting vaccine mandates put the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

American Airlines and Southwest Airlines said they would continue requiring employee vaccinations despite Abbott’s new order.

See here, here, and here for some background. As the story notes, the state of Texas has filed a lawsuit against the national mandate for federal contractors, which has not yet had a court date. A day after the updated OSHA rules came out for employers, Texas filed another lawsuit, because of course they did.

Texas Attorney General Ken Paxton sued the Biden administration on Friday over new federal COVID-19 vaccine rules announced the day before, which order big businesses to mandate vaccination against the virus among their employees by Jan. 4 or require regular testing.

The new federal rules preempt state and local laws, including part of Gov. Greg Abbott’s statewide ban on vaccine mandates.

“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” Paxton said in a written statement Friday.

The U.S. Labor Department, which drafted one of the rules, “has only limited power and specific responsibilities,” Paxton said. “This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”

Obviously, I’m not going to take Ken Paxton’s word on that. Texas is not the only state suing over this order, and a little searching led me to this AP story about the other lawsuits, which has some prognostication on the suits’ viability.

Lawrence Gostin, a professor at Georgetown University Law Center and director of the World Health Organization’s center on health law, said the half-century-old law that created OSHA gives it the power to set minimum workplace safety measures.

“I think that Biden is on rock-solid legal ground,” he said.

Critics have taken aim at some aspects of the requirement, including that it was adopted as an emergency measure rather than after the agency’s regular rule-making process.

“This is a real emergency,” said Gostin, who has spoken with the Biden administration about the requirement. “In fact, it’s a national crisis. Any delay would cause thousands of deaths.”

[…]

So far, courts have allowed businesses on their own to require employees to be vaccinated. But Michael Elkins, a Florida-based employment lawyer, said those decisions do not necessarily mean judges will rule the same way when it comes to the federal government’s requirement.

“You may see a federal judge, or a bunch of them, say, ‘This is just overreach,’” Elkins said.

Benjamin Noren, a New York-based labor lawyer, said he thought the rule is likely to be struck down because OSHA was intended to deal with workplace hazards such as chemicals, not a virus. He said OSHA has made 10 emergency rules in the last five decades. Of the six that were challenged, only one survived intact.

“It’s an innovative use by the Biden administration to figure out some way to mandate vaccination in the private sector,” Noren said. “I hope it works. I have doubts.”

We didn’t have to wait long to find out. I started this draft on Friday morning when the story was just the OSHA announcement. By the time I finished the initial draft, the lawsuits were announced, so I added that on. Somehow, I figured there wouldn’t be any more news until the next week, so I waited to publish on Sunday just to spread things out a bit. That turned out to be a poor decision.

A U.S. federal appeals court issued a stay Saturday freezing the Biden administration’s efforts to require workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing “grave statutory and constitutional” issues with the rule.

The ruling from the United States Court of Appeals for the Fifth Circuit comes after numerous Republican-led states filed legal challenges against the new rule, which is set to take effect on Jan 4.

In a statement, Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the rule, which will be enforced by the Occupational Safety and Health Administration (OSHA).

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said. “We are fully prepared to defend this standard in court.”

A copy of the order is here. If you’re thinking it doesn’t say much and stands in stark contrast to the court’s actions on SB8, you’re not alone.

If we ever get around to expanding the Supreme Court, could we maybe give some thought to doing the same to the Fifth Circuit? Because there are some trash judges on that court, and something needs to be done to restore some sense of justice there. The Biden administration has until Monday at 5 PM to file its response, so look for more updates soon. I won’t sit on any of them. WFAA has more.

SB8’s day before SCOTUS

The good guys appear to have the upper hand in this case. It seems unlikely that will last for very long, however.

The U.S. Supreme Court on Monday grilled attorneys for abortion providers, the federal government and Texas over the state’s near-total abortion ban — and possibly hinted at support for allowing at least one legal challenge to the law to stand.

The majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far but seemed skeptical of the federal government’s claims that it had a right to sue the state over the law.

The Supreme Court heard hearings over Texas’ abortion law, also known as Senate Bill 8, as part of two lawsuits — one lodged by abortion providers and the other by the U.S. Department of Justice. Both focused on procedural technicalities surrounding the law and the suits challenging it, not on abortion rights nor the constitutionality of the law itself.

Those questions centered on whether Texas’ enforcement strategy for the law is allowable — which empowers private citizens to sue those who perform or help someone get an abortion disallowed by the law — and whether the United States has the right to sue Texas over the statute.

Notably, conservative Justices Amy Coney Barrett and Brett Kavanaugh seemed to push back on Texas’ unique enforcement mechanism. Their line of questioning and comments suggested they might side with abortion providers in condemning the “loophole” that the law exploits to thwart judicial review. Kavanaugh and Barrett, along with three other conservative justices, voted against temporarily blocking the law on Sept. 1, when the law took effect.

Texas’ law, which blocks abortions at about six weeks into a pregnancy, skirts constitutional precedent by forbidding state officials from enforcing it and instead relying on private citizens to sue those in violation. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. This is the reason opponents have struggled to name the right defendants to block the law.

Much of the discussion Monday centered around how that enforcement mechanism could be replicated to cast a chilling effect other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

See here for the details about what was to be argued in the case. The 19th goes into more depth about how Monday’s hearing went.

The significance of SB 8’s unusual structure and what that might mean for constitutional rights more broadly was a key focus. It is a point newly confirmed Solicitor General Elizabeth Prelogar honed in on during the second argument of the day.

“If the state can just take this simple mechanism of taking its enforcement authority and giving it to the general public, backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe,” Prelogar argued. “No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”

Three of the court’s conservative justices — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett — indicated openness to the arguments made by Texas’ abortion providers, noting in particular that the law turns state officials into enforcement agents. Both Barrett and Kavanaugh previously voted the opposite way, joining the court’s conservative wing in a September 2 decision allowing SB 8 to take effect.

Barrett asked leading questions about the clinics’ inability to obtain constitutional relief in state court under SB 8, which reveals she might vote in the providers’ favor, said Joanna Grossman, a professor at Southern Methodist University’s Dedman School of Law.

Kavanaugh had already been deemed a likely swing vote. Kavanaugh showed particular skepticism of Texas’ argument and questioned whether the law could be used as a blueprint for other issues beyond abortion, such as restricting gun rights.

Those questions spoke to a deeper issue: Allowing the Texas law to stay in effect could weaken not only the federal government, but the Supreme Court’s overarching authority, by giving states a blueprint for writing laws that violate court precedent but circumvent judicial review.

That appears to be a powerful motivator, suggested Leah Litman, a constitutional law expert at the University of Michigan.

“The court is likely to protect its institutional authority, and that desire will probably unify and unite Democratic appointees and Republican appointees,” she said.

Focusing on the Whole Woman’s Health lawsuit could also allow the court to avoid some of the thornier constitutional questions raised in the U.S. government’s case, she added.

“The U.S. v Texas lawsuit might be — by asking what is the injury to the U.S. — that may be seen as teeing up bigger questions they don’t want to address,” [Melissa Murray, a reproductive law expert at New York University] said. “There may be more appetite for the provider suit.”

As both The 19th and Slate point out, whatever SCOTUS does here, they can clear a path for Texas to more cleanly ban abortion in the coming months.

In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convulated workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.

[…]

Previously, the big stumbling block for the conservative justices was the question of who to sue; in their shadow docket decision, the justices sounded uncertain about whether abortion providers can sue state judges and clerks to halt S.B. 8 in its tracks. Under a doctrine known as Ex parte Young, plaintiffs can sue government officials tasked with enforcing a law, though it’s unclear whether judges qualify. On Monday, Kavanaugh seemed to propose a compromise: close the “loophole” that Texas has “exploited” by allowing providers to sue clerks but not judges. The case would then go back down to the district court, who could bar Texas clerks from docketing S.B. 8 cases, thereby defanging the law. As a result, the Justice Department’s lawsuit would become irrelevant, because abortion providers could protect their own interests in federal court.

The best part of this compromise, to the conservatives, is that it could become irrelevant to abortion within months. On Dec. 1, the court will hear arguments in Dobbs, which asks them to overrule Roe v. Wade. If the majority accepts this invitation, Texas won’t need to worry about S.B. 8 anymore; it has already passed a “trigger law” that will automatically ban abortion if Roe falls. At the same time, blue states will not be able to deploy S.B. 8–style schemes against disfavored rights like the Second Amendment. We may remember S.B. 8 not as the start of a new era in state supremacy over constitutional rights, but as a last gasp of defiance before the Supreme Court plunged us into a post-Roe world.

So yeah, keep the bigger picture in mind. Reform Austin, Daily Kos, TPM, and the Chron have more.

The SCOTUS hearing on SB8 is today

I have no idea what to expect.

The U.S. Supreme Court will take up on Monday the highest-profile legal challenges to Texas’ new abortion law. The Supreme Court previously declined to act on the near-total abortion ban, making next week’s proceedings the first time the high court is stepping in on lawsuits seeking to stop it.

The court will consider two suits against the law, commonly referred to as Senate Bill 8, which blocks abortions as early as six weeks into a pregnancy. One is waged by the federal government, the other by a group of abortion providers and advocates.

The Supreme Court’s review will focus on how SB 8 is enforced, not abortion rights themselves. It’s hard to predict what the court could decide, but its ruling will likely determine the future of abortion care in Texas and shape the legal battles to come.

See here for the more in depth look at the legal questions; the Trib story is a recap of where are are now. Like I said, I have no idea what to expect. There are too many members of this court that cannot be trusted. What they do with this case will tell us how deep that goes.

SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

[…]

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.

Texas takes its shot at Roe v Wade

We were always headed in this direction. It was just a matter of when we were going to get there.

Texas on Thursday asked the U.S. Supreme Court to keep in place a law that imposes a near-total ban on abortion and urged the justices that if they quickly take up a legal challenge brought by President Joe Biden’s administration they should overturn the landmark ruling that legalized the procedure nationwide.

Texas Attorney General Ken Paxton in a legal filing responded to the U.S. Justice Department’s request that the Supreme Court quickly block the Republican-backed state law while litigation over its legality goes forward.

The Justice Department on Monday suggested that the justices could bypass the lower courts already considering the matter and hear arguments in the case themselves. Paxton’s filing said that if the justices do that, they should overturn Supreme Court precedents including Roe v. Wade, the 1973 decision that recognized a woman’s right under the U.S. Constitution to terminate a pregnancy.

“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton’s filing said, adding that the state law furthers “Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”

[…]

Paxton on Thursday also asked the Supreme Court to reject a bid by the abortion providers to have the justices immediately hear their case.

See here, here, and here for some background. The forced-birth fanatics on SCOTUS already have an opportunity to overturn or functionally eviscerate Roe in December with that Mississippi case, so this may at least tell us how screwed we all are. Just remember all this in 2022 when we get to vote out some of the zealots that got us here, starting with our felonious Attorney General. The Trib and CNBC have more.

Justice Department officially asks SCOTUS to halt SB8

The stakes are clear. Now we get to see if SCOTUS has any respect for the law.

The U.S. Supreme Court is considering whether to take up abortion providers’ challenge to Texas’ near-total abortion ban sooner than the high court usually would hear arguments.

While the clinics’ lawsuit has not been heard by a federal appellate court, the Supreme Court agreed Monday afternoon to expedite the request from several clinics and providers that the high court instead consider the case. Texas must respond by noon Thursday.

The move came just hours after the Biden administration — in a separate challenge to Texas’ Senate Bill 8 — asked the high court to halt the near-total abortion ban while the Justice Department’s legal challenge to the new restrictions goes through the courts.

In its request filed Monday, the Justice Department argued that allowing the law to stand would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights,” it added. The Supreme Court previously declined to block the law from taking effect in a separate lawsuit, though it did not weigh in on Senate Bill 8’s constitutionality.

The U.S. Justice Department’s request comes after a series of federal court decisions flip-flopped on whether the law should remain in effect as its constitutionality is being challenged.

[…]

Texas, the Justice Department argued in its filing, crafted an “unprecedented” structure to thwart the courts. Senate Bill 8, which bans abortions as early as six weeks into a pregnancy, before many people know they are pregnant, has made abortion “effectively unavailable” after that time period, according to the Justice Department.

“Texas has, in short, successfully nullified this Court’s decisions within its borders,” the Justice Department wrote.

You can see the Justice Department filing here. The Justice Department had announced their intention to appeal late last week, so this was the actual filing and the request for relief from the ridiculous and lawless Fifth Circuit. The original lawsuit filed by the providers was in July, and we know what happened after that. Not really much to add here – even SCOTUS seemed to understand that SB8 had all kinds of questions surrounding it back when they first declined to step in. Now that we have seen the harm, not to mention the damage SCOTUS has done to its own standing, you’d think they would understand the need to do the normal thing and put that highly questionable law on the shelf while the courts do their thing. They have one chance to be seen as legitimate. I hope they take it. The Chron has more.

Justice Department goes to SCOTUS over SB8

As expected.

The Biden administration will ask the U.S. Supreme Court to stop enforcement of Texas’ near-total abortion ban, according to a Friday statement from a U.S. Department of Justice spokesperson.

Courts have pingponged back and forth on the law’s enforceability over several weeks. The Justice Department’s move comes after a panel of federal appellate judges ordered late Thursday that the ban will remain in place while its constitutionality is decided.

[…]

“The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law’s enforcement in a 5-4 vote.

Abortion advocates remain unsure of what the Supreme Court will do and if it will ultimately uphold the precedent of Roe v. Wade’s landmark decision in a case out of Mississippi that the court will begin hearing Dec. 1.

See here for the previous update. Not much to add here, either SCOTUS does the right thing or we continue to be screwed by a bunch of partisan hacks in robes who will always arrive at their preferred outcome regardless of the facts. What do you think all those references to the Fifth Circuit’s super-duper conservatism are telling us, anyway? And yes, the Fifth Circuit’s opinion here is highly questionable:

Click over to read the rest. The Current has more.

Fifth Circuit does the expected with the SB8 appeal

Was it ever in doubt?

Texas’ near-total abortion ban can continue to be enforced while the law’s constitutionality is decided, a panel of federal appellate judges ordered late Thursday.

The three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — also agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law.

A U.S. district court previously blocked enforcement of the law for two days before the 5th Circuit initially froze the order. The panel of 5th Circuit justices agreed in a 2-1 decision Thursday to let the law remain in effect until it considers the U.S. Department of Justice’s challenge. Judge Carl Stewart dissented.

The decision means the appellate court will take over the legal challenge to Senate Bill 8 that was being overseen by U.S. District Judge Robert Pitman.

Oral arguments before the 5th Circuit have not yet been scheduled, but it could be months before they take place.

[…]

The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. That case was brought on by abortion providers and also overseen by Pitman. The 5th Circuit is set to hear oral arguments in the abortion providers’ case no earlier than December.

The same panel of 5th Circuit judges will consider both cases.

See here, here, and here for the background, and here for a copy of the order. This was what we all expected – I mean, just look at who comprised the panel, if you know who these justices are – but it still sucks. The next logical step is an emergency appeal to SCOTUS, because it’s offensive and ridiculous to continue to allow this travesty of a law to remain in effect. No guarantees there, of course, but at least there’s a chance. This one was never really in question.

Justice Department files its brief with the Fifth Circuit

Good luck. They’re going to need a lot of it.

Right there with them

The Biden administration urged the courts again to step in and suspend a new Texas law that has banned most abortions since early September, as clinics hundreds of miles away remain busy with Texas patients making long journeys to get care.

The latest attempt Monday night comes three days after the 5th U.S. Circuit Court of Appeals reinstated the nation’s most restrictive abortion law after a brief 48-hour window last week in which Texas abortion providers — following a blistering ruling by a lower court — had rushed to bring in patients again.

The days ahead could now be key in determining the immediate future of the law known as Senate Bill 8, including whether there is another attempt to have the U.S. Supreme Court weigh in.

[…]

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.

In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.

It is not clear when the 5th Circuit court will decide whether to extend what is currently a temporary order allowing the Texas law to stand.

See here and here for the background. Yesterday was the deadline for the briefs to be filed for the Fifth Court to consider whether to allow the restraining order put in place by Judge Pitman to remain or to continue to stay it and thus allow the extremely unconstitutional SB8 to be enforceable. You know my opinion of the Fifth Circuit. I figure they only bothered to ask for briefs so they’d know how to customize their order allowing SB8 to stay in place. We have to go through the motions regardless. Whatever they do, this will go to SCOTUS next. In the meantime, maybe the court should consider and address the state’s true motives, for then at least we might have some clarity. Axios has more.

We wait until at least Tuesday for a chance at justice with SB8

In case you missed it.

The 5th U.S. Circuit Court of Appeals late Friday temporarily allowed Texas’ near-total abortion ban — the strictest in the nation — to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued.

A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continue until at least Tuesday, when a response from the Justice Department is due. After the court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or allow a lower court to once again temporarily block it.

The court would not be determining the overall case’s outcome at this point — but it would decide whether the law could continue to stand while court proceedings unfold.

[…]

The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.

A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions outlawed by the statute would now be vulnerable to lawsuits after Friday’s order.

“We do understand that it does open us up to some risk. We have to wait and see,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health. “We have a lot of lawyers on speed dial these days.”

Miller said her organization and physicians in her clinics are on edge.

“But not for a second do we question that it was the right thing to do,” she said. “People need our help, and they shouldn’t be put through this.”

The organization will comply with the law once again, she said. Already several appointments had been made for Monday, so clinics will have to cancel them.

“Unfortunately, there’s going to be a lot of phone calls we have to make,” she said.

See here for the previous entry, which had an update at the end for the Fifth Circuit action. The Justice Department may wait for a ruling from the Fifth Circuit before it appeals (because we all know what the lawless Fifth Circuit is going to do) to SCOTUS, or it may just file an emergency petition with SCOTUS and hope for a faster ruling. SCOTUS has a Mississippi abortion case on its docket this term, so one way or another it’s going to be dealing with the larger issues. It’s just a question of whether they want to allow for a de facto overturning of Roe v Wade before they rule in that case or not. Maybe take a closer look a those approval numbers, guys.

In the meantime, there’s a real danger that it won’t much matter anyway what happens.

Abortion providers have said they are hoping they get more permanent relief from the U.S. Supreme Court.

The nation’s highest court was asked to intervene when the law was first going into effect, but justices declined. Since the law has been in effect, abortion providers have petitioned the court, again. So far, the court has not responded.

Abortion providers have said one of the longer-term concerns is what will happen to their clinics if the law continues to stay in effect. Hagstrom Miller said providers are facing serious financial strains as they turn away the majority of people seeking an abortion.

She said access to abortion in the state could be permanently altered if the law isn’t blocked as the legal challenges move through the courts.

“If clinics close because SB 8 is enforced long enough,” Hagstrom Miller said, “the damage will be done, even if it’s eventually struck down.”

Abortion providers have been begging for relief from this ludicrously unconstitutional law, to no avail so far. The danger that they’ll be forced out of business for financial reasons while they wait is real, and is exactly what happened with the TRAP law that was struck down in a few years ago. Fully half of all clinics went under in the interim, and I guarantee you that was no accident. If it happens again, we may never recover. And again, that was the plan all along.

State appeals SB8 restraining order to Fifth Circuit

I’m sure they expect the usual room service from the appeals court. It’s just a matter of how quickly they can get it.

Texas asked a federal appeals court Friday to step in “as soon as possible” to restore the state’s near-total abortion ban.

The state filed its emergency request for an appeal two days after U.S. District Judge Robert Pitman temporarily blocked the new abortion law in response to a lawsuit brought by the Biden administration. The state quickly filed a notice of its intent to appeal after Pitman’s order on Wednesday night.

In Friday’s request, state attorneys argue that Pitman’s order to temporarily block the law at the United States’ request “violates the separation of powers at every turn.” They ask the 5th U.S. Circuit Court of Appeals — considered to be perhaps the nation’s most conservative appellate court — to stop Pitman’s order.

State attorneys argued the U.S. overstepped by suing the state since it will never be subject to one of the lawsuits allowed by the law and since the state does not enforce the law directly.

“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” attorneys wrote in Friday’s request.

[…]

“I think there is a very good chance the court grants a stay [to block Pitman’s order],” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. He said Pitman already faced many barriers to issuing his temporary order.

“Congress never authorized the United States to sue a state in this context,” Blackman explained. “And there is no history of previous suits by the federal government against an allegedly unconstitutional law. The federal government lacks a ‘cause of action’ to sue Texas.”

See here for the background. I dunno, I figure if a law can be passed to take away a right in such a way that it’s basically impossible to challenge it in court, then it wasn’t actually a right to begin with. And if a state can take away a federal right like that, it sure seems like a design flaw in the system. I don’t expect the Fifth Circuit to give a damn about that, but someone had to say it. By the way, even with this initial court ruling, the right that was taken away still hasn’t really been restored, and who knows when it might be. Like I said, if that can happen to someone’s rights, then was there ever really such a thing as “rights”?

UPDATE: Room service indeed.

The U.S. Court of Appeals for the 5th Circuit granted a temporary emergency stay in the United States v. Texas, the federal government’s suit against the state. As a result of the 5th Circuit’s ruling, a preliminary injunction — which halted the SB 8 from being enforced — no longer stands, and the vast majority of all abortions are once again banned in Texas.

The 5th Circuit has given the federal Justice Department until 5 p.m. CT on Tuesday to respond to Friday night’s action. The Justice Department will need to prepare its argument to counter Texas’ request that such a stay be a permanent one.

When I said that the Fifth Circuit already had an order printed and ready to go staying Judge Pitman’s order? I was only half-joking. Next, we’ll get to see if SCOTUS meant what they said about “procedurally proper challenges” maybe being more successful. The Chron has more.

Federal judge blocks SB8

Some justice for now, but we’ll see how long it lasts.

A federal judge temporarily blocked Texas’ near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.

But it’s unclear how U.S. District Judge Robert Pitman’s order may affect access to abortions in the state — or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman’s order in the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday’s order and the state’s appeal will affect procedures in the state.

“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they’ve banned abortion entirely,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. “This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”

Until Pitman’s order, Texas’ new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.

The order from Pitman — a 2014 Obama nominee — forbids state court judges and court clerks from accepting lawsuits that the law allows. Pitman ordered the state to publish his order on all “public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

He called the case “exceptional” and ordered that the state and “any other persons or entities acting on its behalf” be blocked from enforcing the statute. He acknowledged that his order could be appealed in another court and added: “this Court will not sanction one more day of this offensive deprivation of such an important right.”

[…]

Pitman gave a scathing response to Texas’ request that the court allow it to seek an appeal prior to blocking the law’s enforcement.

“The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” Pitman wrote in his order. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”

Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents “hope to resume full abortion services as soon as they are able.” The organization acknowledged that the order is temporary and expected the state would appeal — but called the ruling a “critical first step.”

“For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care,” Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. “The cruelty of this law is endless.”

Whole Woman’s Health said it was making plans “as soon as possible” to resume abortions outlawed under Texas’ law.

“This is AMAZING. It’s the justice we have been seeking for weeks,” Amy Hagstrom Miller, CEO of Whole Woman’s Health, said in a statement.

See here for the previous update. We didn’t have to wait long for this ruling, but it will be likely even less time before the rogue Fifth Circuit steps in and does its damage. After that, we’ll see if SCOTUS still claims to be confused by this issue, or if they have decided to care about the constitution.

Slate provides some highlights from Judge Pitman’s opinion.

The DOJ’s bet that agents of the state could be subject to suit paid off, particularly in the face of mounting evidence that pregnant Texans had been materially harmed as a result of the law. Pitman’s decision has moments of powerful rhetoric, but it is largely devoted to the “complex and novel” threshold issues the majority of the Supreme Court was too exhausted to probe when they allowed the law to stand. “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers,” he wrote, to “preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” This effort failed, he noted, because the United States has standing to represent its citizens in their effort “to vindicate federal rights.” On behalf of these citizens, it also has authority to enforce the 14th Amendment against a state attempting to “supersede” it. As Pitman put it, “when the machinations of the state effectively cut off private access to the federal courts,” the scheme warrants “equitable action by the United States.”

Because the DOJ clears these hurdles, Pitman wrote, it had properly challenged S.B. 8. And on the merits, there is no question as to foundational facts: Texas’ law plainly violates Roe because it outlaws abortions well before fetal viability. In order to block the law, Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

Notably, Pitman denied Texas’ request for an immediate stay of his decision. “The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” he explained. To be clear, this hardly means Texas clinics will begin providing constitutionally protected abortions services tomorrow. If Pitman’s decision is eventually overturned, doctors who perform abortions in the interim can still be sued. But at least for now, the playing field tilts against the states too-clever-by-half effort to harm women while skirting judicial review.

I’ll be shocked if the Fifth Circuit allows this to stand going into the weekend, but for now we’re in a better place. Daily Kos, The 19th, the Chron, and the Trib have more.

If in Texas you can’t get justice…

Try somewhere else.

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.

How the “heartbeat” lawsuits may proceed

The recent “Amicus” podcast from Slate had a bonus segment on the many lawsuits that have been filed in relation to and challenge to SB8, the so-called “heartbeat” bill. For all the normal people out there who don’t follow this sort of thing obsessively, here’s their guide to keeping track of them all.

Dahlia Lithwick: I think the question you and I have probably received the most in the last two weeks is: “How do I even watch SB 8 unfold?” I think there was a collective sigh when Dr. Alan Braid admitted in the pages of the Washington Post that he had in fact performed an illegal—under SB 8—termination of a pregnancy, inviting litigation. Two helpful litigants, both out of state, came forward to sue him.

I think there are a lot of lanes here and folks are confused about timing. So let’s walk through it:

-We’ve still got the ongoing challenge by the providers that the Supreme Court refused to enjoin. That’s going to be heard in December at the Fifth Circuit.

-We have the Biden Administration—the Justice Department has brought a suit that has not resulted in immediate injunction. That is to be heard next week.

-We have a new suit, filed Thursday night by the same group of providers who filed the Fifth Circuit case, saying they’re seeking this extraordinary relief, a petition for cert before judgment.

-We have these two civil suits against Dr. Braid.

-And then after all, we have Dobbs v. Jackson Women’s Health Organization.

Mark, can you please draw a map of the world of SB8 and what is going to happen first, if you can, and what, if anything, is going to happen before Dobbs?

Mark Joseph Stern: Sure. So let’s start with the state lawsuits. Two different out-of-state lawyers have filed suits in Texas state court against Dr. Alan Braid, who wrote a piece in the Washington Post acknowledging that he performed an abortion after six weeks in Texas in violation of SB8. Those cases are now going to be litigated in Texas state courts, and the doctor is going to raise as a defense, among other things, the fact that Roe v. Wade is still the law of the land. And so it is just not constitutionally permissible for him to be punished for performing an abortion that is legal under binding Supreme Court precedent.

Let’s assume that both of these state courts are on the level and are going to acknowledge Roe as binding precedent. In that case, they will presumably throw out the lawsuits, but that doesn’t mean that SB 8 is over or that it’s enjoined. Because the way this law is written, it’s essentially impossible for any Texas state court to block it across the state. It has to be litigated in each individual case. And so no matter the outcome of these particular Texas lawsuits, SB 8 will still be in effect.

This particular doctor may be off the hook because he’ll raise the constitutional right to an abortion as a defense, but everybody else in Texas will still be under the thumb of SB8. It will continue to work its way through the Texas court system, probably very slowly.

Then we have the Justice Department lawsuit. The Justice Department lawsuit, I think, is one of the stronger suits we’ve seen, because the Justice Department representing the United States can sue Texas directly. It can say “We are filing suit against the state of Texas, including all of its agents,” which would presumably encompass anyone who sued under SB8. That’s something a private plaintiff can’t do. Only the United States gets to sue an individual state because the Supreme Court has said sovereign immunity is not a problem in this context. And so that case is currently sitting before a federal judge in Texas, and that judge will soon hold a hearing on whether or not to issue a preliminary injunction blocking SB 8 throughout the entire state of Texas by issuing a decision directly against Texas. But we have to sit on our hands and wait for that because the federal judge is not rushing it. The Justice Department asked him to rush it, but he said, ‘No, I’m going to take my time on this.” And so we’re all waiting for early October, when that case will move forward.

Then we have the petition before the Supreme Court, which is really part of the same case that we all freaked out about in early September. This is the same lawsuit that was filed against state court judges and clerks in Texas. That was the first bite at the apple, the first effort by abortion providers to block SB8. As you recall, they went to a federal judge, the same judge who’s hearing the DOJ suit, and they said, “Please block this law.” The Fifth Circuit swooped in before the judge could do anything and prevented him from doing anything. The providers went to the Supreme Court and by a 5-4 vote, the Supreme Court threw up its hands and said, “We can’t do anything later.” A couple weeks later, the Fifth Circuit issued a decision saying, “Well, we really think you sued the wrong people. We don’t think that you can sue state judges and state court clerks. And so we are going to hold onto this case and will decide this question formally in a couple of months.”

So now, the providers have gone back up to the Supreme Court and said, “Look, we get that you ruled against us last time and we’re not asking for ruling on the merits. We’re not asking you to issue a shadow docket decision just saying up-or-down vote, whether SB8 can be blocked and should be blocked. All we’re saying, all we’re asking is for you to say that we sued the right people, that some of the folks we sued can be sued, and thus bring this case back down to the original federal judge who was hearing it in the first place and clear away all of these obstacles so that he can decide on the merits, whether to issue an injunction.”

That’s the lay of the land for SB8 and all the while, we’ve got Dobbs in the background, which is a completely different case, not directly related to the Texas case at all. That’s a challenge to Mississippi’s 15 week abortion ban. The Supreme Court will hear oral arguments in that case on Dec. 1 and probably issue a decision in June of 2022.

Couple of things. In re: the courts that will hear the two lawsuits against Dr. Braid, both lawsuits were filed in Bexar County. One is known to have been assigned to a Democratic judge, the other filing didn’t have a court assigned to it at the time of my posting. I don’t feel like checking the partisan label on every Bexar County civil district court judge, but I can say confidently that the odds are that judge is also a Democrat. They still have to follow the law, of course, but if Dr. Braid’s defense is “this law is unconstitutional and cannot be enforced” as we expect, they can make that ruling. They may be limited in how much of SB8 can be struck down, however, based on the way the law was written and a related case currently before SCOTx, as noted in the comments to that post. Someone more versed in civil procedure than I will have to explain what happens from there if that is the result in at least one of these cases. As a reminder, both of the plaintiffs have expressed some level of opposition to SB8.

There are also the various state court lawsuits against specific parties, in which groups like Planned Parenthood have sought (and so far gotten) temporary restraining orders preventing those parties from filing SB8 lawsuits. These actions are very limited in scope and will not affect the long-term future of SB8, they will just potentially create some obstacles to the lawsuits against the people that SB8 targets.

As noted later, the Fifth Circuit will get another chance to stick its nose in once Judge Pitman makes a ruling in the Justice Department lawsuit. I think we can all take a guess as to why they might do. That’s down the line, and we have plenty to occupy ourselves with until then. Hope this clarifies things. You can listen to that episode of “Amicus” at the link above, but you need to be a Slate Plus member to hear this segment.

Trying again to get SCOTUS to stop SB8

Good luck.

A coalition of Texas abortion providers went back to the Supreme Court Thursday, asking the justices to expedite a review of the state law that bars abortions after six weeks of pregnancy.

The law has been in effect for 23 days, but the federal appeals court hearing the challenge has only set a tentative hearing schedule for December. The providers are asking the justices to — in effect — step in and decide a key issue in the case now, instead of waiting for a federal appeals court to rule on the issue.

The new court papers mark the latest furious attempt on behalf of providers to stop a law that bars most abortions before a woman even knows she is pregnant. The law, which challengers say was drafted with the specific intent to evade judicial review, is now being challenged by providers in federal and state courts, as well as by the Department of Justice.

In the new brief, the providers say the law is written in a way that makes it almost impossible to challenge because it bars Texas officials from enforcing it and instead allows private individuals to bring suit against anyone who may assist in helping a person obtain an abortion performed after six weeks. The clinics are asking the Supreme Court to decide “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

Separately, they have filed papers asking the court to put their request on a fast track. Under normal circumstances supporters of the law would have had about 30 days to respond, and the process could drag into the winter months. Instead, the clinics want the justices to consider the case October 29 and hear oral arguments in December.

That timing would coincide with the Supreme Court hearing another, completely separate challenge to a Mississippi law that bars most abortions after 15 weeks. Mississippi is asking the court to overturn Roe v. Wade and the court has set arguments for December 1.

If the court were to grant the request from the Texas providers, it could hear the two challenges in the same month.

[…]

In making the unusual request, the clinics noted that providers in neighboring states have reported increases of patients traveling across state lines and other states have begun to push copycat laws.

The clinics had previously asked the justices to block the law before it went into effect, but the high court declined to do so on September 1.

Back then, in an unsigned 5-4 order, the majority wrote that while the clinics had raised “serious questions regarding the constitutionality of the Texas law,” they had not met a burden that would allow the court to block it due to “complex” and “novel” procedural questions. Chief Justice John Roberts joined the three liberal justices in dissent.

Just as a reminder, as this is another one of those situations where there’s so many lawsuits it’s hard to keep track, these are the plaintiffs who had originally sued in July and had to appeal to SCOTUS in late August after some serious shenanigans from the Fifth Circuit. This time they’re asking the court to rule on constitutional grounds, not just allow for a temporary restraining order. I have no idea what their odds of success are, but it can hardly hurt. Maybe now that SCOTUS has seen the sharp downturn in the public’s opinion of them following their cretinous and cowardly refusal to block SB8 in the first place they’ll have a bit of a rethink. We’ll see. Reuters and The 19th have more.

The tab for voter ID

Impressive.

Still the only voter ID anyone should need

Texas remains responsible for nearly $6.8 million in legal fees and costs owed to the collection of parties who sued over its voter ID law.

Though the state ultimately won the long-winding fight to keep the voter ID law on the books, a panel of the U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling that found the state is on the hook for that sum — the last vestige of the legal battle over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls.

The Texas attorney general’s office had appealed that lower court ruling, which found the plaintiffs in the litigation — Democratic U.S. Rep. Marc Veasey of Fort Worth, individual voters, voting and civil rights groups, the NAACP-Texas and the Texas House’s Mexican American Legislative Caucus, among others — were the “prevailing parties.”

“It seems obvious that they are,” the 5th Circuit judges on Friday. “Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017.”

Just a quick recap, the original voter ID law that was passed in 2011 was ruled to have had discriminatory intent by a district court judge in 2014, but the Fifth Circuit allowed it to stand while the appeal was made. Both the three-judge panel and the full Fifth Circuit ultimately upheld the district court ruling, but as it was close to the 2016 election by then, a modified version of the law that mitigated some of the harm was implemented. After the 2017 Lege codified those changes, the law was challenged again, and despite another ruling by the same district court judge that the law was still discriminatory, this time the Fifth Circuit ruled in favor of the state, and here we are now. (Yes, SCOTUS was involved in both of these cases, but this has gone on long enough.) The state may press on again with this appeal, but at this point it would seem unlikely they’d win. Perhaps by now we have had more than enough money spent on this cursed thing.

The “heartbeat” bill is about to become law

There’s nothing standing in the way.

Right there with them

A Texas law that would ban abortions after as early as six weeks is poised to take effect Wednesday, after a federal appellate court’s rulings stymied efforts to block the law.

On Friday night, the 5th U.S. Circuit Court of Appeals canceled a hearing planned for Monday, at which more than 20 abortion providers had hoped to persuade a federal district court in Austin to block the law from taking effect.

Providers have sued to overturn the law, which they say is the nation’s strictest and would create what they call a “bounty hunting scheme” in allowing members of the general public to sue those who might have violated the law. The law, Senate Bill 8, would prohibit abortions after a fetal heartbeat can be detected without specifying a time frame, before many women know they are pregnant.

Late on Saturday, provider groups, including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance, filed emergency motions with the 5th Circuit, essentially asking it to send the case back to district court or for the appellate court itself to issue a stay that would temporarily block the law’s enforcement.

The 5th Circuit denied the emergency motions Sunday afternoon.

“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop,” Marc Hearron, senior counsel at the Center for Reproductive Rights, which represents providers, said in a statement. The state’s strategy, he said, has been to “circumvent the court system and the constitution itself,” he said, in order to “push abortion out of reach for as many Texans as possible.”

[…]

Abortion providers and supporters have braced for SB 8 for months. Texas women could completely lose access to abortions for a time, warned Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America.

“It’s quite possible that it could create chaos and problems on the ground, including the closing of health centers,” Krasnoff said.

Even if clinics stay open, the law could affect most of the abortions now being performed in Texas. Whole Woman’s Health, which also provides gynecological care for women, said in a press release that 90% of the abortions they perform are after the six-week mark.

“To be clear: our health centers remain open, and Planned Parenthood providers will see as many patients as they can, as long as they can within the law. But without the courts stepping in, on Wednesday, Texans will be denied their constitutional right to abortion in violation of fifty years of precedent,” said Julie Murray, senior staff attorney for Planned Parenthood Federation of America.

Marva Sadler, one of the named plaintiffs in the abortion providers’ lawsuit and senior director of clinical services for Whole Woman’s Health, said the appellate decisions make it much more likely SB 8 will go into effect Sept. 1.

On Sunday, she said she was rushing to her organization’s clinic in Fort Worth, where at least eight patients were seeking abortions before they become illegal.

Cancellation of the hearing “was definitely a surprise,” Sadler said.

“I’ve been really focused on how things will look on Wednesday, when we have to start turning most patients away,” she said.

See here and here for the background. I confess, I don’t understand the machinations of the appellate court canceling a district court hearing. I figured we’d get the usual procession of the lower court issuing a restraining order and then the Fifth Circuit tossing it aside. The plaintiffs have now petitioned SCOTUS to step in on the grounds that the Fifth Circuit canceling the hearing was an abuse of their discretion. It’s the only card they have to play, but I would not get my hopes up. I wish I had something optimistic to say here, but I don’t. We need to vote these people out, there’s no other way forward at this time. The Chron, the 19th, and Slate have more.

UPDATE: Here’s a Trib story about the SCOTUS appeal. Let’s see if I have to update this draft again before it publishes in the morning…

UPDATE:

In other words, we won’t hear anything from SCOTUS until the last minute tonight at the earliest.

Final settlement in Motor Voter 2.0 lawsuit

From Democracy Docket:

Still the only voter ID anyone should need

Last Friday, individual Texan voters, the Texas Democratic Party, the Democratic Congressional Campaign Committee (DCCC) and the Democratic Senatorial Campaign Committee (DSCC) settled a five-year long lawsuit with Texas over its noncompliance with the National Voter Registration Act (NVRA). The settlement outlines the state’s plans to permanently offer simultaneous voter registration when an eligible voter renews or updates his or her driver’s licenses or ID cards online — an option not offered before this litigation.

The lawsuit, filed in March 2016 by the Texas Civil Rights Project on behalf of individual Texas voters, challenged the state’s misleading practice of providing the option to register to vote when completing online transactions with the transportation agency. Notably, checking this option did not actually register someone to vote, which violated the NVRA’s requirement that states offer voter registration or the ability to update registrations when an eligible voter obtains, renews or updates his or her driver’s license. The U.S. District Court for the Western District of Texas found that this practice violated the NVRA and 14th Amendment and struck the law down, but after the voters updated their registration, the court found that they no longer had standing to sue. The Texas Democratic Party, DSCC and DCCC successfully intervened in the case to expand this victory. The court ordered the state to comply with the NVRA in August 2020 and since then, over one million Texans have registered to vote while completing an online driver’s license transaction. The settlement makes the court-ordered compliance permanent throughout the state.

Read the key filings from the case here.

See here and here for some background; there are more links at that second post. This KUT story, referenced above, came out a day or so before the final settlement agreement.

After a lengthy court battle, the Texas Department of Safety has started allowing voters to update their voter information at the same time they update their driver’s license information online.

The Texas Civil Rights Project filed a federal lawsuit against the state on behalf of three voters in Texas who thought they had updated their addresses on their voter registration through the DPS website. They later found out that never happened because online voter registration is illegal in Texas.

The plaintiffs in the case were Jarrod Stringer, Nayeli Gomez and John Harms, as well as two organizations, MOVE Texas and the League of Women Voters of Texas.

The lawsuit claimed Texas was violating the National Voter Registration Act — which includes federal motor voter laws — and the U.S. Constitution. The Texas Civil Rights Project first sued the state five years ago, but the lawsuit was thrown out on a technicality. The group sued again shortly after.

A federal judge sided with the Texas Civil Rights Project and ordered the state to change its practices last year, forcing Texas to “create the first-ever opportunity for some Texans to register to vote online” starting in September, the group said in a press release.

Mimi Marziani, president of the Texas Civil Rights Project, told KUT that DPS data shows that about a million voter registration transactions have occurred in the past ten months.

“That means that’s an average of a 100,000 Texans per month are now registering to vote — or updating their voter registration — with their online drivers’ transaction,” she said. “That’s a lot of people.”

Here’s a Twitter thread from the TCRP that breaks this down by month since last November. Note the qualification “or updating their voter registration”. That means that anyone who updated their drivers license information – name change, address change, etc – are counted in this total, as they were then able to update their voter registration information at the same time. That’s a big deal and a much-needed bit of convenience for Texans who now don’t have to do that same transaction twice, but it is not one million new voters registered. I don’t want to downplay this because it is a big deal, but I also don’t want to overstate it.

Marziani told KUT that this should prompt the state to expand online voter registration to all eligible Texans, not just those updating their drivers’ license information. Currently, 42 states and D.C. have online voter registration. Texas is among the small minority of states that doesn’t.

Marziani said Texas now has “absolutely no practical reason” not to expand and implement full online voter legislation.

“Now with the state implementing this online voter registration with driver’s license transactions, the state completely has the backend infrastructure to roll out online voter registration,” she said.

Absolutely, and it remains a disgrace that Texas doesn’t have online voter registration. But we all know why, and we know what is going to be needed to make it happen. This is a step in the right direction, but the rest of the way is up to us winning more elections.

Methodist anti-vaxxers officially fired

I have three things to say about this.

More than 150 Houston Methodist Hospital employees resigned or have been fired as of Tuesday over a recent policy that required hospital employees to be vaccinated against COVID-19 by Monday.

All told, 153 people are no longer employees of the Houston health care chain, Methodist spokesperson Patti Muck said. The hospital has about 25,000 employees, nearly all of whom have abided by the policy, Methodist leaders have said previously.

The firings follow a contentious few weeks in which hospital employees staged protests and filed a lawsuit against the hospital, claiming the policy, announced in April, violated their rights. Methodist was one of the first large health care providers in the country to announce vaccine requirements.

“I’m so happy and relieved,” Jennifer Bridges, the lead plaintiff in the suit, said Tuesday. “I don’t want any part of Methodist.”

Earlier this month, a federal judge tossed the lawsuit filed by more than 100 Methodist employees, most of whom were not doctors or nurses. In it, the plaintiffs argued Methodist’s policy violated the Nuremberg Codes, a World War II-era agreement that bans involuntary participation in medical trials.

Bridges said Tuesday that she and others planned to protest outside Methodist on Saturday, and that conspiracy theorist Alex Jones will be in attendance.

See here and here for the background. My three things:

1. I strongly suspect Methodist would say that the feeling is mutual, Jennifer.

2. Inviting Alex Jones to your protest really makes one question the previous statements made about how these folks are not anti-vaccine, just super cautious about this particular vaccine.

3. As Methodist cardiovascular technician Deedee Mattoa says in this story, the real surprise here is not that Methodist followed through, but that Memorial Hermann and Baylor College of Medicine, which have made public promises to require COVID-19 vaccines but have not set deadlines for when staff will need the shots, have not yet followed suit. What are you guys waiting for? The Trib has more.

Methodist anti-vaxxers appeal lawsuit dismissal

As expected.

A group of Houston Methodist employees who sued the hospital system over its COVID-19 vaccine requirement have appealed a ruling dismissing the case.

Over the weekend, U.S. District Judge Lynn N. Hughes tossed the lawsuit, calling it “reprehensible” to compare the vaccine requirement to Nazi Germany’s medical experiments.

“Equating the injection requirement to medical experimentation in concentration camps is reprehensible,” Hughes said. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.”

[…]

Although the lower court judge thought the case had no merit, Woodfill could get traction from the 5th U.S. Circuit Court, known as one of the most conservative appeals courts in the country. On several recent occasions, the 5th Circuit has dealt blows to Hughes, a historically stubborn 79-year-old Reagan appointee.

The appeals court ordered him to re-sentence a defendant in a terrorism case who was accused of supporting ISIS overseas. After Hughes re-sentenced the man to the same abbreviated sentence, 18 months, which did not consider a sentencing enhancement, the government appealed and the 5th circuit removed the sentencing from Hughes’ court.

The 5th circuit also admonished Hughes for remarks he made on the record about female employees of the federal government. Hughes later barred the Houston prosecutor from appearing at the jury trial involved in that case.

More than half of frontline medical workers nationwide have received at least one dose of the COVID-19 vaccine, according to a survey from the Kaiser Family Foundation, a Washington, D.C.-based think tank. But as of April, nearly one in five said they did not plan on receiving a COVID-19 vaccine.

See here for the previous entry. It’s true that Judge Hughes can be a crank, but I kind of doubt that any of those previous instances will weigh on this case. For some analysis of the lawsuit and subsequent dismissal, this WaPo story has some good information.

Valerie Gutmann Koch, co-director of the University of Houston’s Health Law & Policy Institute, called the decision “another step in demonstrating the legality of these mandates, particularly in a health crisis like this.”

“There isn’t much there to rely on to argue these mandates should be illegal,” she said.

[…]

Akiko Iwasaki, an immunologist at Yale University, characterized the lawsuit’s claims as “absurd” in recent remarks to The Washington Post, noting that tens of thousands of people participated in the vaccine trials. The suit also repeats misinformation circulated widely online about the shots altering DNA.

The inoculations are seen as key to a return to normalcy, yet most employers have shied away from mandating them, concerned about the thorny politics and previously untested legal issues. Colleges and universities, along with Houston Methodist and a handful of other health-care institutions, are the exception.

Koch said the ruling shows “employer mandates of the covid-19 vaccine, particularly in the health care arena, are absolutely legal.” She said she expects to see more legal battles around vaccination mandates but noted she has “always predicted that they have very thin legal legs to stand on.”

There is precedent for vaccine requirements, she said, such as when health-care institutions require vaccinations during particularly bad flu seasons. Koch said she was “encouraged by the fact that this was dismissed as quickly and expeditiously as it was.”

Veronica Vargas Stidvent, executive director at the Center for Women in Law at the University of Texas School of Law, said the ruling is based on employment law in Texas, so the extent to which it sets a precedent for other jurisdictions is not clear.

“At least here in Texas, under this ruling, it’s pretty clear employers can require employees to get vaccinated,” she said.

Yeah, I don’t think it should be a surprise that Texas employment laws are much more favorable to employers than to employees. As Reuters notes, Judge Hughes wrote that “Texas law only protected employees from being fired for refusing to commit an illegal act and that the requirement is consistent with public policy.” I’ll be more than a little surprised if the Fifth Circuit decides that this is the place to take a stand in favor of the workers.