Abortionists in Texas are now running to the Supreme Court to try to get the Justices to enjoin state officials from enforcing a law that the law itself prohibits those state officials from enforcing. They seem to imagine that courts can enjoin a law, when what courts actually can do (upon a proper showing) is enjoin defendants from enforcing a law, but only when (among other things) defendants actually have an enforcement role.

baseless request to Supreme Court in Texas Heartbeat Act litigation, and more

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Ed Whelan <ewhelan@eppc.org> 2:22 PM (1 minute ago)
to me

From NRO’s Bench Memos:

Abortion Providers’ Baseless Request to Supreme Court to Enjoin Defendants in Texas Heartbeat Act Litigation

By ED WHELAN

August 30, 2021 3:18 PM

It’s not enough that Texas abortion providers continue to press a lawsuit against the Texas Heartbeat Act that should have been dismissed at the outset for lack of subject-matter jurisdiction. They’re now running to the Supreme Court to try to get the Justices to enjoin state officials from enforcing a law that the law itself prohibits those state officials from enforcing. They seem to imagine that courts can enjoin a law, when what courts actually can do (upon a proper showing) is enjoin defendants from enforcing a law, but only when (among other things) defendants actually have an enforcement role.

The short answer to the abortion providers’ application is that the ordinary rules governing pre-enforcement challenges to laws apply in this case as well, and those ordinary rules mean that the abortion providers lack standing and that there are no defendants against whom they are entitled to obtain relief. They can instead challenge the constitutionality of the Act if and when private plaintiffs undertake to enforce it against them.

I’ll also note that because the district court hadn’t yet ruled on plaintiffs’ request to certify statewide classes of judges and clerks, the single judge and single clerk named as defendants work in only one of Texas’s 254 counties. Under plaintiffs’ own theory, they won’t be able to operate at all in Texas if the only judges and clerks against whom they were to obtain relief were these two defendants. Thus, any harm they face is the same whether or not they receive the emergency relief they seek against these two defendants. In other words, they haven’t shown that emergency relief against actual defendants would prevent any injury they allege.

Oddly, the abortion providers also fault the Fifth Circuit for its supposedly “rigid application of the divestiture doctrine.” But as they elsewhere acknowledge, the district court likewise granted a stay of the proceedings as to all defendants except the private citizen “based on their [i.e., defendants’] argument that the interlocutory appeal on sovereign immunity divested the court of jurisdiction.” The abortion providers’ claim that the Fifth Circuit has somehow left things “in limbo” likewise fails to acknowledge that it has acted, and can be expected to continue to act, with dispatch.

I find it especially amusing that here, as in the Fifth Circuit, the abortion providers ask that the district-court’s ruling in their favor—denying defendants’ motion to dismiss on jurisdictional grounds—be vacated (so that the transfer of jurisdiction over the case from the district court to the Fifth Circuit would be undone).

The Supreme Court should unanimously deny this request—in a heartbeat.

A Quick Primer on Litigation over Texas Heartbeat Act

By ED WHELAN

August 30, 2021 1:26 PM

Abortion activists are irrationally angry at a Fifth Circuit panel for what is, as I will explain, an elementary order that, in light of a pending appeal on threshold jurisdictional questions, prevents the district court from proceeding with a case challenging the Texas Heartbeat Act. Let’s put things in proper context.

Texas governor Greg Abbott signed S.B. No. 8, the Texas Heartbeat Act, into law in May. Except in the case of a medical emergency, the Act prohibits a physician from performing or inducing an abortion “if the physician detected a fetal heartbeat for the unborn child … or failed to perform a test to detect a fetal heartbeat.”

What is most innovative—indeed, brilliant—about the Texas Heartbeat Act is that it affirmatively prohibits state officials from enforcing the Act in any way and instead authorizes private persons to bring a civil action against anyone who performs or induces an abortion in violation of the Act or who knowingly aids or abets such a post-heartbeat abortion (including employers and insurers who pay for or reimburse the costs of a post-heartbeat abortion). (See §§ 171.207-.208.) If a private plaintiff prevails, the court “shall award” injunctive relief to prevent further violations by the defendants, statutory damages to the plaintiff in the amount of at least $10,000 for each violation, and costs and attorney’s fees. The Act becomes effective on September 1.

The Texas Heartbeat Act was written this way to prevent abortion providers from obtaining pre-enforcement relief against state officials. Because state officials are not permitted to enforce the Act, they will have sovereign immunity if anyone attempts to sue them over the constitutionality of the statute. (The Ex parte Young exception to sovereign immunity applies only when the named defendant has “some connection with the enforcement of the act.”) State-court judges also are immune from suit, under both Ex parte Young and Fifth Circuit precedent.* In short, any abortion provider that wants to challenge the constitutionality of the Act must wait to be sued and assert its constitutional claims defensively in the private civil-enforcement action.

In mid-July, in a desperate attempt to preempt enforcement of the act, various abortion providers and other plaintiffs nonetheless filed suit in federal district court. Specifically, they sued four sets of defendants: (1) the state attorney general and various other state officials; (2) a state judge; (3) a county judicial clerk; and (4) Mark Lee Dickson, a private citizen and pro-life activist. The plaintiffs asked the district court to certify a defendant class of every state-court judge and enjoin the entire state judiciary from considering any lawsuit brought under the Act. They also asked the district court to certify a defendant class of every court clerk in Texas and enjoin clerks from accepting or filing any documents submitted in private civil-enforcement lawsuits.

To put it mildly, this was an audacious lawsuit, and it faced insuperable jurisdictional hurdles. The claims against the state officials are unequivocally barred by sovereign immunity because the Act explicitly prohibits state officials from enforcing it in any manner. The claims against the state judges and court clerks are also barred by sovereign immunity because the Ex parte Young exception is inapplicable to lawsuits that seek to prevent the state judiciary from adjudicating cases between litigants. And Dickson, who was evidently sued only because he is a pro-life activist, submitted a sworn affidavit stating that he has no intention of suing any of the plaintiffs under the Act. So there is no live case or controversy with respect to Dickson, and there is also no Article III case or controversy with respect to the other defendants, as none of them is enforcing or threatening to enforce the Act against any of the plaintiffs.

Somehow none of that stopped federal district judge Robert L. Pitman (an Obama appointee) from issuing an order last Wednesday denying defendants’ motion to dismiss on jurisdictional grounds. But because Pitman denied defendants’ sovereign-immunity defense, they had a right, which they promptly exercised, to appeal his ruling to the Fifth Circuit. And by appealing Pitman’s ruling, the defendants immediately divested Pitman of jurisdiction to proceed against them, as Fifth Circuit precedent holds that an appeal of a sovereign-immunity defense automatically divests the district court of jurisdiction until after the appellate court has ruled.

That’s why a Fifth Circuit panel on Friday granted defendants’ motion to block Pitman from further proceedings in the meantime, including a hearing that he had set for today on plaintiffs’ motion for a preliminary injunction. That also explains why the plaintiffs, in a hilarious maneuver designed to send the case back to Pitman, asked the Fifth Circuit panel to vacate Pitman’s order in their favor on the sovereign-immunity (and other jurisdictional) issues—a request that the panel promptly and properly denied yesterday.

Judge Pitman never had proper jurisdiction over this case to begin with, and the case should have been dismissed at the outset for lack of subject-matter jurisdiction. The Fifth Circuit will now have the opportunity to make that clear.

* See Ex parte Young (1908) (“[T]he right to enjoin an individual, even though a state official, from commencing suits . . .does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature.… [A]n injunction against a state court would be a violation of the whole scheme of our Government.”); Bauer v. Texas, (5th Cir. 2003) (“The requirement of a justiciable controversy is not satisfied where a judge acts in his adjudicatory capacity”).

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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