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.
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“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When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law’s enforcement in a 5-4 vote.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:
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1. Last night’s Fifth Circuit order granting Texas’s application to stay the injunction against enforcement of #SB8 in US v. TX includes exactly one sentence of analysis — that relief is compelled by the Fifth Circuit and #SCOTUS rulings in Jackson.Here’s why that’s just wrong:
— Steve Vladeck (@steve_vladeck) 8:37 AM – 15 October 2021
Click over to read the rest. The Current has more.
NO SECRET REGARDING THE FIFTH’s RATIO DECIDENDI BY REFERENCE
Not sure why Prof. Vladeck is so flustered …
The reference to the decision rationale must obviously have been to what the two federal cases – WWH vs. Jackson and USA vs. Texas have in common (rather than what’s different, such whether or not sovereign immunity and Ex Parte Young apply). And that common element is the (im)propriety of tying the hands of the entire Texas judiciary (trial courts) and preventing them from doing their own adjudicating of SB8 (and possibly SB8 related) state-court lawsuits, and passing judgment on the merits of the related constitutional arguments.
Stated differently: State judges were not proper defendants to challenge the constitutionality of a statute in Whole Women’s Health v. Jackson; and state judges (subsumed judicial decisionmakers of the State of Texas as singular all-purpose defendant in USA vs. TX) are *still not* proper defendants in their adjudicative capacity when the constitutional challenge is brought by the DOJ in the name of the US.
The point is that it doesn’t matter who sues. What matters is that the state judges must be allowed to do their own judging. The Texas Supreme Court likewise said last year that judges are not proper parties to litigate constitutionality, but should decide such issues when they are presented with them in an approriate case. That SCOTX ruling came down in one of the In re Abbott cases.
And it stands to reason.
Why should state judges be deemed incompetent to follow the rule of law (that they are sworn to uphold), and what’s so offensive about state courts construing a novel “unprecedented” state statute, and determining whether it conforms to (1) the state constitution (pertinent arguments are being made in 14 pending cases), and (2) the federal constitution when Roe and Casey are invoked defensively in SB8 actions against providers or aiders/abetters?
And if a trial judge does commit error (or arguably so), the route to reversal is through the appellate system.
ENJOINING LAWSUITS DOES NOT ADJUDICATE THE LAW’S VALIDITY
More importantly still, how would the grant of temporary injunctive relief remove the legal liability risk for good? After all, a preliminary injunction (or a temporary injunction in state court) isn’t a final judgment on the merits, not to mention by the court that has the last word on the matter of constiutional interpretation and new jurisprudential creations in the nature of doctrina ex machina to suit the occasion.
JURIDICTIONAL AND PRUDENTIAL CONCERNS
That doesn’t mean that the other issues raised in USA vs Texas, such as (1) whether the federal government has an equitable cause of action against a state to enforce specific rights grounded only in SCOTUS decisional precedents (i.e., atextual penumbra rights), and (2) whether the federal government has standing to litigate private particularistic interests (such as an asserted right to a convenient and affordable home-town abortion following the nonuse or failure of contraception) under the theory that an individual’s right to an abortion implicates a “sovereign interest”, not to mention a national sovereign interest. That notion is shaky.
Those sovereign interests are generally conceptualized as the “public interest” of the community as a whole, i.e. collective interests, rather than individualistic or sectoral concerns. And to have a federal district court judge exercise interstate commerce powers over the national market for abortion services seems a stretch. Not to mention that the interstate commerce powers are vested in Congress, rather than in the third and purportedly least dangerous branch, which raises additional separation-of-powers and judicial overreach concerns.
Anyhow, we are in the next round now and it will be interesting to see what happens in a high court that is – unlike the SCOTX – sharply divided and features stinging dissents.
The DOE’s emergency application to lift the Fifth Circuit’s stay of the Pitman PI – in ugly courier font — is here:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a85.html
Alternatively, they wish to have this filing considered a pre-judgment cert petition.
Only one amicus brief so far, but there will surely be more to come.
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