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Friday, November 01, 2013

Injunctions and stays

Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.

Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.

Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.

Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.

Posted by Howard Wasserman on November 1, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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I thought the same thing when SCOTUS stayed the ballot recount, in the face of an approaching statutory deadline, during Bush v. Gore. In both instances, it seems to me that the court used the stay to thwart the status quo rather than preserve it pending the resolution of the constitutional questions raised.

Posted by: Dan Baker | Nov 1, 2013 4:10:43 PM

Another possible counterargument is that these sorts of monetary losses don't constitute irreparable injury (although maybe they should when the state is a party). More to the point, not only does the court not discuss the nature of the possible irreparable injury, the court purports to balance the factors in that same sentence, but there's no actual analysis ("[G]iven the State’s likely success on the merits, this is not enough, standing alone, to outweigh the other factors.").

Perhaps even more surprising, according to the court's analysis of the likelihood of success on the merits, the court doesn't think that this is a difficult constitutional question at all.

Posted by: Patrick Luff | Nov 1, 2013 11:01:04 AM


That certainly is what the state argued and what the court accepted (although without, you know, talking about it). But it seems to me the argument proves too much. The government always has an interest in enforcing its laws and serving whatever values/purposes/goals it is trying to achieve through those laws and that is always lost if the injunction remains in effect during litigation. Government could make the same argument about being unable to enforce an internet porn law and all the children who will be harmed if porn continues pending resolution of the First Amendment challenge.

Posted by: Howard Wasserman | Nov 1, 2013 10:31:24 AM

Howard, a very interesting posts. One response that those on the pro-life side might be tempted to make is that in the interim period where the law is stayed something irreparable is also lost -- fetuses (or perhaps "children" in the way this side sometimes talks) would be terminated (or "murdered" as this side sometimes puts it). Now a tricky thing about this particular case is that there whole legal theory is that this is NOT an undue burden on abortion and its effects are incidental to another valid purpose, which makes that prior argument unavailable as a formal matter. But they may have a second best argument: the licensing/privileges requirements are meant to protect women from improperly performed abortions (I have yet to read the briefing in the 5th on this so I may be putting words in their mouth but I imagine this is what the state will say), or abortions without adequate information, etc. When that law is not in effect, those improperly performed abortions or abortions done with information will never be corrected in the future, a kind of irreparable harm. So there is irreparable harm in both directions.
Now I have always found the concept of irreparability under theorized by the courts and actually quite interesting but complex territory. I encountered this in a D.C. Circuit case I litigated in a prior life http://law.justia.com/cases/federal/appellate-courts/F3/454/290/489653/ and I have always meant to potentially come back to write on the subject, but other things (some of them about substantive abortion law!) have always distracted me. Again, great post!

Posted by: I. Glenn Cohen | Nov 1, 2013 9:41:34 AM

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