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.
14 days and counting………
CENTRALIZED DOCKET ADVISORY: BEXAR AND TRAVIS COUNTY (UNLIKE HARRIS)
Felipe Gomez v. Braid is in the 224th District Court
Gomez has amended his pleadings to add the U.S. Government (in state court). Good luck with that. And he wants a declaratory judgment without being adverse to the defendant. Good luck with that too. Check out what a national thought leader and constitutional law professor has to say, like H-Town’s own Josh Blackman, for example.
Perhaps the DOJ will do Gomez a favor and intervene voluntarily. He could use some help. He might also want to check into whether the attorney fees provision of the DJA is fair to litigants who are not authorized to practice law in Texas and are proceeding pro se. But perhaps that’s no deterrent when you are filing in forma pauperis (IFP) and are presumably judgment-proof in case you get slapped with a sizeable judgment for the other side’s attorney’s fees. But then again, if all parties and the judge are in agreement that SB8 should be struck down, why not reward a pro se litigant with attorney’s fees he hasn’t incurred. After all, he would still have done considerable work on the case, and as an out-of-state litigant it would take more time to familiarize himself with the quirks of Texas procedure. So that would add to the tally on the Lodestar clock.
Oscar Stilley’s case is in the 438th District Court.
But does it matter?
– Probably not.
As at least two regulars here have previously pointed out, Bexar County has a centralized docket. So, the formal assignment of the court on the filed papers doesn’t mean much.
On the day of hearing, everybody assembles in a large designated courtroom overlooking the plaza with the bronzen Lady Justice in the fountain, the cases set for the day get called by the presiding judge, and then farmed out to available judges for hearings and other dispositions. So you then head over to the assigned judge’s courtroom. This Kibitzer has only a single data point of personal observation, so perhaps lawyers practicing in the beautiful Bexar County courthouse can elaborate. Procedures may have changed during the pandemic, but there is no reason to think that the docket is no longer centralized. That means that different judges may get to sit and make rulings in the same case over the course of litigation (at least a more complex case that isn’t resolved through a single motion to dismiss, nonsuit, or a quick settlement).
That said, in multi-district local court systems, judges can switch benches and hold court for each other independent of local rules providing for a centralized docket. So, even if the initial assignment of a case is random, this doesn’t mean that it cannot be overridden for one reason or another. Cases can also be formally transferred from one court to another. And in Bexar County the presiding judge would obviously have discretion too when calling the docket on a particular day and making the assignments, i.e., not random and not solely based on efficiency concerns.
As for the Travis County cases (N=14), they are in different courts, but 13 of them have the same lawyers on both sides, and the filings are nearly identical. And when the same lawyer has control over parallell cases, they can arrange for them to be heard on the same day. Those cases are currently on hold pending a decision of the MDL panel on whether they should stay where they are. Both sides are complaining that the other side is engaging in forum-shopping.
Bloomberg has a pretty good writeup here:
https://news.bloomberglaw.com/litigation/texas-abortion-doctor-lawsuits-filed-by-allies-may-go-nowhere
SENSIBLE PUBLIC POLICY & SAFE-SEX CHOICES VS. RIGHTS TALK
Prof. Stephen Vladeck and Josh Blackman are probably not on the same page (or same petition drive and lecture circuit) on this one, but who said there can just be two diametrically opposite viewpoints on a controversial law? That would be way too simplistic.
Also remember that we here at policywonqueria are causal-chain oriented and favor prophylaxis (contraception) over arranged and medically-assisted fetal demise as the preferred means of birth and population control, i.e., early (“ex ante”) intervention in the causal chain of events.
Such a *policy* focus would ameliorate the problem of unwanted “products of conception” in terms of scale, and would reduce the salience of the related legal squabbles because the size of the affected population would be drastically reduced (though, of course, also the volume of abortion business, with corresponding gains by the contraceptives/prophylactics industry).
But a big legal fight premised on the failure of — or disregard for — contraception we now have, so let’s address that …
SCOTUS PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
WHAT’S BEFORE SCOTUS NOW ?
The question presented is “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.”
The framing assumes the accuracy of the premise: “insulation” by the State.
That is a dubious proposition, however, because more than a dozen lawsuits are already pending in state courts challenging the constitutionality of SB8.
They are on file now, so it is obvious that the abortion providers, funders, and advocates (see list below) were *not* prevented from bringing their constitutional challenges at the intake window. No violation of the right of access to the courts (Open Courts provision under Texas constitution) in that regard.
Second, numerous Republican office holders, including Governor Abbott and AG Paxton, are named as defendants in addition to the two private parties: Texas Right to Life and one of its executives. They will likely assert immunity, but that should result in a ruling that can be appealed. Immediately, even if denied. That’s routine for the army of litigators at the OAG.
Even if these lawsuits get dismissed on jurisdictional grounds, that adverse disposition can and will likely be appealed up the hierarchy: (1) Third Court of Appeals, (2) Texas Supreme Court, (3) U.S. Supreme Court.
Since the Travis County cases are adversarial (unlike the cases by the out-of-state ex-lawyers in Bexar County), each side has an interest in a merits adjudication in their favor, i.e. a ruling that SB8 is constitutional or not.
In practice, however, it will be more complicated because SB8 has mutliple components, provides a civil cause of action against different classes of defendants, and encompasses different fact scenarios withing its scope of liabiity, the most significant one involving the distinction between pre-viability abortions and post-viability abortions, both of which are covered by SB8, but are treated differently by SCOTUS under existing precedents. It also incorporates by reference the supreme court’s “undue burden” criterion as a statutory affirmative defense (which doesn’t preclude defendants in SB8 actions from asserting nonstatutory defenses of different character or scope).
So, it is unlikely that the matter of constitutionality will be disposed of by an adjudication in a dichotomous up-or-down fashion. Nor is it likely that a single case will resolve all issues of constitutionality, because that would require success on a facial challenge as to the entirety of SB8.
CATEGORICALLY VS. AS-APPLIED IN PARTICULAR CIRCUMSTANCES
Even the DOJ, in US v. State of Texas, presents an as-applied challenge as to certain hypothetical applications of SB8 in the federal agency realm (such as in the Bureau of Prisons), though they would of course like to obtain a categorical invalidation of SB8 as to any and all enforcement.
The problem with that, of course, is that only individual parties can be enjoined, and it cannot be known who will bring an SB8 lawsuits in future unless they self-designate as civil enforcers (as a few intervenors have done). And to sue and enjoin the State, and by extension enjoin all of the state’s residents, is a rather far-fetched legal theory, not to mention that it would involve a vast expansion of federal court equity jurisdiction. And that wouldn’t even cover out-of-state plaintiffs like Oscar Stilley (who, by the way, has since been allowed to intervene in the federal action), not to mention the rest of the nation, if not the global humanity at large.
ENJOINING SB8 SUITS VS. INVALIDATION OF THE STATUTE
Even more fundamentally, a temporary injunctive order prohibiting the filing or adjudication of lawsuits based on SB8 (whether in the form of a TRO or temporary injunction in state court or a preliminary injunction in federal) does not eliminate the prohibition on post-hearbeat abortions. Post-heartbeat would still be illegal as a matter of positive state law because a temporary or preliminary injunction isn’t the equivalent of a declaratory judgment adjudicating SB8’s validity. Nor could such an interim injunction shield abortion providers against future civil (financial) liablity. And reliance on a preliminary inferior court ruling wouldn’t be reasonable in light the express statute text governing defenses. So what is an anti-suit injunction really good for, other than preventing the presentation of a proper test case?
That’s presumably why the Planned Parenthood entities are pursuing a SUMMARY JUDGMENT in Travis County district court, which could and surely would then appealed up the judicial hierarchy if granted, perhaps by permissive appeal if not final.
The temporary injunction by trial court, by contrast, wouldn’t resolve the underlying issues of constitutionality (and could additionally be stayed by a higher court).
PLAINTIFFS IN STATE COURT CHALLENGES TO SB8 IN THE TRAVIS COUNTY LITIGATION
Allison Van Stean
Bhavik Kumar MD
Clinic Access Support Network
Frontera Fund
Fund Texas Choice
Ghazaleh Moayedi
Jane Doe
Michelle Tuegel
Monica Faulkner
North Texas Equal Access Fund
Planned Parenthood of Greater Texas Surgical Health Services
Planned Parenthood South Texas Surgical Center
Planned Parenthood Center for Choice
The Afiya Center
The Bridge Collective
The Lilith Fund
The West Fund
NAMED PRIVATE (NONGOVERNMENTAL) DEFENDANTS
John Seago
Texas Right to Life