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Wednesday, November 20, 2013

Stay in Texas clinic litigation remains in place

By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.

The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist  as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).

The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and  linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.

But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.

Posted by Howard Wasserman on November 20, 2013 at 07:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Not where, as here, SCOTUS was reviewing the court of appeals decision to stay the district court, SCOTUS should look to the status quo when the case hit the court of appeals. It would be different if SCOTUS were reviewing the court of appeals' substantive decision; then the proper status quo is post-court of appeals.

Posted by: Howard Wasserman | Nov 22, 2013 7:53:32 AM

Fair enough. I see the point about post-District-Court as the status quo that appeals court faced. But that's a point internal to the judicial branch about level of deference to the district court. To the judiciary as a whole, status quo is pre-complaint.

To each court within the system, status quo is where the last court left it. But that, then, should continue up to SCOTUS, shouldn't? Maybe the 5th should have deferred to the district court, but even if it erred, the Supreme Court should in turn defer to the circuit courts, too. Likewise, at an earlier stage, one could be critical of the district court, saying it was wrong to enjoin, but still be critical of the 5th nevertheless, believing that it was still error to correct an error. But again, that's about which layer of court is best at deciding, and about review standards. When it comes to judiciary as a whole, the status quo should be, I maintain, pre-complaint, and not pre-legislation, or it devalues the legislature.

Posted by: Different Anon | Nov 22, 2013 6:15:41 AM

It so happens that this was also the status the day before the judgment (because the law had a trigger date, so it was never enforceable)
That could have made a difference.

With regards to your reference to your reference to the Prop 8 litigation in your other post , the exact opposite situation exists in New Mexico, where district court judgments exist to require certain parties to recognize same-sex unions as marriages, while not requiring other parties to do so. As such, as the law stands now, the Santa Fe County clerk must recognize same-sex marriage, but because of a lack of a binding judgment, or explicit statutory of constitutional provision, the assessor, who works in the same building, is not required to do so.

Posted by: Michael Ejercito | Nov 21, 2013 9:41:39 PM

I'm not sure Breyer is relying solely on that as the status quo--and certainly I wouldn't. It seems to me the status quo is the status after the district court judgment--the law is unenforceable. It so happens that this was also the status the day before the judgment (because the law had a trigger date, so it was never enforceable). But the latter point is gravy.

Posted by: Howard Wasserman | Nov 21, 2013 5:32:39 PM

I have two problems with treating the pre-enactment situation as the status quo:

1. It does, substantively, under-value the legislative enactment, reducing it to the level of just any party in any routine litigation. Restore status quo so defendant can't do X, so government is treated as if if it did not legislate, yawn. Would we do the same if it were legislation by popular vote (initiative, referendum, etc.)?

Also, the whole idea of status quo, from a judicial perspective, is logically "situation before the lawsuit," not dialed back to "before legislation and adjudication," or its puts the legislature and judiciary in the same stage, as just similar actors upon the public.

Perhaps an injunction should issue, because the harms of rights-limiting outweighs and all that, but that's a reason to OVERCOME the post-enactment, pre-litigation status quo, not a reason to redefine what status quo means.

2. It assumes that litigation occurs right after enactment, because only in that timeframe is it close enough to blur the line. What if a law has been in place for 20 years, and then someone alleges that it has been an ongoing violation? In such cases, it's absurd to say that the pre-enactment is the status quo, as we've had it for 20 years. Then one must openly argue for changing the status quo as justified by injunctive factors, and that's fine. But if one admits that one does it for older status quos, then why change the framework merely because of recency. And, at risk of offending the no-slippery-slope purists, how recent is recent enough to shift frameworks?

Posted by: Different Anon | Nov 21, 2013 4:36:04 PM

My secondhand understanding is that paid abortion services largely subsidize PP's operations. That is, the non-abortion women's health and family planning services (which are generally supported by federal and state grant moneys) are either break-even or loss-producing, and it's the abortion dollars that really pay the bills.

Though I was told this in a context where it would have been in PP's interest for this to be the case, so who knows how true or universal it is.

Posted by: Anon | Nov 21, 2013 12:10:57 PM

What PP can do is a different issue from whether it will hurt PP and other similarly situated clinics if the law is allowed to take immediate effect. Your rhetoric proves nothing to defeat the argument re status quo.

Posted by: Joshua | Nov 21, 2013 9:56:12 AM

Planned Parenthood advocates have claimed that abortion is a small part of their business, and that what they really do is provide a broad range of women's healthcare. Yet a regulation aimed at abortion is going to force all these clinics to close? They can't just stop performing abortions (which are supposedly such a minor part of their operations) and thereby avoid the onerous regulations?

Posted by: WT | Nov 20, 2013 1:43:39 PM

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