Further Updates on the procedure of the Texas fetal heartbeat law

A few points in update to my post on the Texas fetal heartbeat law and the procedural insanity it spawned, following some developments and some discussions on the Civ Pro Prof Listserv.

• My proposal (made not entirely seriously) that providers change domicile to create diversity and remove the enforcement action would not work. A listserv member pointed out that the district court upon removal would not dismiss for lack of standing, it would remand, putting the case back in state court. In addition, it would be too easy to avoid; Billy Bob could join a Texas-based doctor as defendant and eliminate complete diversity. I did not think that one all the way through.

• Another pre-enforcement option floated: Sue the state-court judge assigned to hear the private action. This raises the same Younger problems as suing Billy-Bob-as-state-actor, but not the state action problems. I do not believe this works for two reasons. First, a judge cannot be enjoined in the first instance in a § 1983 action; the plaintiffs must get a declaratory judgment first, then go back for a second round of litigation if the DJ is ineffective. Second, and more importantly, the judge is not the target of anti-suit litigation; the target is the litigant in that underlying litigation (such as the executive official charged with enforcing the law).  It would be highly unusual to enjoin a judge from allowing a case to go forward, although perhaps this is an extraordinary case.

• Some people seem a lot higher on the Lugar-based argument that Billy Bob acts under color. I hope not. I disagree with the Lugar line of cases and would not want it extended. And it would be deeply troubling if filing a lawsuit, without more, subjected someone to a § 1983 suit. Consider that MyPillow's lawsuit against Dominion, legal nonsense in current form, would look much different if this were the rule. I am more willing to go with the public-function argument, which is narrower and limited to a unique context in which a state delegates all enforcement to the private sector precisely to avoid pre-enforcement litigation. But I do not trust courts to find the nuance there.

• We have a test run for these arguments in a challenge to a Lubbock ordinance banning abortions within city limits and using private enforcement (although the complaint alleges some public-enforcement mechanisms, so it may be less clear than HB8). Planned Parenthood sued the city and the city moved to dismiss for lack of standing. Stay tuned.

• There is a separate question, which I am not competent to address, of whether Billy Bob will have standing to bring the private enforcement action under HB8. According to Charles "Rocky" Rhodes (South Texas), the expert on the Texas Constitution, Texas courts generally follow Article III standing doctrine, but are more accepting of standing when the legislature authorizes the suit.

• A wild proposal from a different emailer: What if a blue state created a cause of action against Billy Bob--allowing any person to sue for damages anyone who brings a claim under HB8? All sorts of extra-territoriality and personal-jurisdiction puzzles there.

• A different version: What if a blue state enacts a clawback statute, allowing anyone (or at least anyone within the blue state) held liable in a Texas HB8 suit to bring a claim in the blue state's courts to recover the amount paid in the Texas litigation. This raises a specific PJ question--is suing a New York corporation (knowing it is a NY corporation) in  a lawsuit that is tortious under New York law purposefully aiming actions at the forum for Walden/Calder purposes? (I believe there are legal malpractice actions that get at the same idea).

This also could raise issues about relationships among state judiciaries and whether the courts of one state can halt litigation in another. Countries enact clawback statutes designed to recover any judgment paid under the laws of another country (e.g., Japan allows a clawback action against U.S. antitrust plaintiffs). Federal courts are split on whether and why they can enjoin those proceedings to "protect or effectuate" their judgment in the underlying case. Could a Texas court, having issued a judgment for Billy Bob against Planned Parenthood, enjoin the NY clawback action?