Here we go … again? A federal judge has imposed an injunction suspending Texas’ fetal-heartbeat abortion ban, the result of a challenge from the Department of Justice. This starts up another appeal process that all but certainly will drop the issue right back at the feet of the Supreme Court — and with the same problems.
Merrick Garland got the right judge for his quest, it seems:
A federal judge ordered Texas to suspend the most restrictive abortion law in the U.S., calling it an “offensive deprivation” of a constitutional right by banning most abortions in the nation’s second-most populous state since September.
The order Wednesday by U.S. District Judge Robert Pitman is the first legal blow to the Texas law known as Senate Bill 8, which until now had withstood a wave of early challenges. In the weeks since the restrictions took effect, Texas abortion providers say the impact has been “exactly what we feared.”
In a 113-page opinion, Pitman took Texas to task over the law, saying Republican lawmakers had “contrived an unprecedented and transparent statutory scheme” by leaving enforcement solely in the hands of private citizens, who are entitled to collect $10,000 in damages if they bring successful lawsuits against abortion providers who violate the restrictions. …
“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,” wrote Pitman, who was appointed to the bench by former President Barack Obama.
“That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
Don’t hold back … tell us how you really feel, Judge Pitman.
Will this restart abortions in the state of Texas? Actually, the law itself still makes it unlikely. If the injunction gets lifted at any point prior to an actual trial, abortionists could be liable for any abortions they perform in the intervening period. The law includes a retroactive liability specifically for this situation:
The law’s novel legal approach extends to what happens if it is temporarily suspended: Clinics can be sued retroactively for any abortions they provide while it is blocked. That means penalties could be imposed when the suspension is lifted for abortions that happened while it was in place, keeping clinics in a fraught legal environment.
“S.B. 8 says if an injunction is dismissed, you are still accountable for abortions you did while you were protected by that injunction,” said John Seago, the legislative director for the anti-abortion group Texas Right to Life.
So even though Judge Pitman ruled in favor of the clinics, they expressed hesitation on Wednesday night about when they might resume full activity.
Nancy Northup, the president and chief executive of the Center for Reproductive Rights, said in a statement that clinics her group represents “hope to resume full abortion services as soon as they are able, even though the threat of being sued retroactively will not be completely gone until S.B. 8 is struck down for good.”
Pitman addressed this issue in the ruling, noting that Texas argued that a preliminary injunction would be useless. Pitman noted that the claimants had testimony that abortion providers would indeed risk that, but even if they didn’t, “such speculation is no reason for the Court to tie its own hands.”
Why would the injunction get lifted? This lawsuit has the same problems that the Supreme Court case had — ripeness and standing, plus a question of who exactly gets enjoined. We’ll start with standing and ripeness, on which Judge Pitman wrote extensively. Even though the DoJ has suffered no specific damage or has an abortion in question, Pitman still ruled that they have standing, but also suggests that he got there by eschewing the traditional rules of standing and ripeness in favor of “equity”:
Equitable remedies have a long been established as tools available to courts, predating the Constitution itself. See Irvine v. Marshall, 61 U.S. 558, 565 (1857) (“[C]ases in equity are to be understood [as] suits in which relief is sought according to the principles and practice of the equity jurisdiction, as established in English jurisprudence”). The federal judicial power extends to “all cases, in law and equity, arising under [the] Constitution[,]” U.S. CONST. art. III, § 2, through which grant of authority “adopt[s] equitable remedies in all cases . . . where such remedies are appropriate.” Paine Lumber Co. v. Neal, 244 U.S. 459, at 475 (1917). As Justice Scalia has explained, suits in equity to “enjoin unconstitutional actions by state and federal officers” are a judge-made remedy deeply rooted in American jurisprudence, reflecting “a long history of judicial review . . . , tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (quoting Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. REV. 345 (1956)).
The State is mistaken in searching for a blueprint of the cause of action here. For the United States’ cause of action is a creature of equity, a centuries-old vehicle which eschews categorical definition. That remedy is available where no adequate remedy exists at law; any attempt to codify such situations would be futile, and likely require powers of clairvoyance which no legislator possesses.
Pitman makes extensive arguments on all fronts, so be sure to read them at length. Suffice it to say that Pitman clearly wants to provide as bulletproof a ruling as possible to make it difficult for Texas to overcome on appeal, especially in the manner that happened in the first such challenge.
But the latter question remains: who can Pitman enjoin? The state itself does not enforce SB8, and in fact is prohibited from doing so. SB8 only provides standing to all Texas residents to sue abortion providers for damages, so there isn’t anyone to enjoin from exercising … or is there? Pitman ruled that the court can enjoin all residents of Texas, which is a somewhat-novel response to a novel attempt by the Texas legislature to rewrite the rules of standing for themselves:
The State’s deliberate attempts to evade federal judicial review extend to the form and scope of relief that may be afforded by this Court. The United States seeks a preliminary and permanent injunction against the State prohibiting the enforcement of S.B. 8. (Compl., Dkt. 1, at 26). Specifically, the United States seeks to enjoin three categories of obligors: (1) the State, (2) state actors, and (3) private individuals. (Id.). Based on the analysis below, the Court concludes it has the authority to enjoin the State, its officials, and private individuals. …
The United States also asks this Court to enjoin those “private parties who bring suit under S.B. 8.” (Compl., Dkt 1, at 26). The private individuals, like the state officials, are themselves acting as an arm of the state. The State entrusted part of its enforcement authority to private individuals by deputizing them to bring S.B. 8 lawsuits. Jackson, 2021 WL 3910722, at *3 (Sotomayor, J., dissenting) (“[T]he Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”). In Jackson, the Fifth Circuit’s analysis of its appellate jurisdiction over a private individual who might sue under S.B. 8 hinged on the fact that the “connection between judges, clerks, and [the private individual are] impossible to miss.” Jackson, 2021 WL 4128951, at *7. So much so that the Fifth Circuit determined that the private individual’s “jurisdictional issues [under S.B. 8] are ‘inextricably intertwined’ with the same issues in the State Defendants’ appeal . . . .” Id. (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51 (1995)). S.B. 8 vests private individuals with the authority to enforce the statute, “a traditionally exclusive state power.” (Mot. Prelim. Inj., Dkt. 8, at 40). The Chief Justice of the Supreme Court has himself described the statutory scheme as “unprecedented” and noted that it “delegated enforcement . . . to the populace at large. . . . to insulate the State from responsibility for implementing and enforcing the regulatory regime.” Jackson, 2021 WL 3910722, at *1 (Roberts, C.J., dissenting).
As such, private individuals enforcing S.B. 8 are properly regarded as state actors. “Individuals suing under S.B. 8 are not suing ‘for violation of distinct legal duties owed’ to them as individuals, but instead are suing ‘for violation of legal duties owed the public.’” (Mot. Prelim. Inj., Dkt. 8, at 40) (quoting Texas v. Dep’t of Labor, 929 F.3d 205, 213 (5th Cir. 2019)). Courts have characterized private parties as state actors where a state allows or is involved with conduct that would be unconstitutional should the state itself engage in that conduct.42 See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621–22 (1991)
Pitman seems on firmer ground here than on ripeness and standing. The attempt by Texas to rewrite standing in this manner promises all sorts of mischief from activists with lawyers and money to burn, especially from the gun-control movement. When progressive legislatures start passing SB8-ish laws targeting gun owners, the federal courts will end up getting buried in nuisance actions. Pitman’s pushback will almost certainly get some sympathy from appellate jurists on this point alone.
Still, Pitman’s ruling and its near-hyperventilating language will need to pass muster at the Fifth Circuit — itself a rather conservative court — and then the Supreme Court. One has to wonder whether SB8 opponents might not have done better to fast-track the cases already percolating in Texas courts with better claims on ripeness, standing, and with more specificity on whom to enjoin. This lawsuit appears to have the same defects as the earlier case, only with a more vigorous ruling on which to base the appeal.