« More stupid lawsuits, ep. 81 | Main | Breyer's first (and last?) assignment »

Thursday, June 03, 2021

No standing when abortion law privately enforced

I mentioned the dry run for the standing/federal forum problems in challenging HB8 was a lawsuit over a Lubbock ordinance banning abortions within city limits and utilizing private enforcement.

The district court on Wednesday dismissed Planned Parenthood's challenge to the ordinance, finding PP lacked standing to sue the city. Because the city was not charged with enforcing the law and the city had no control over the private individuals who could bring private actions, there was neither causation nor redressability. The court (rightly) rejected the idea of a declaratory judgment or injunction against the non-responsible party as a way to persuade everyone else to comply. And the Fifth Circuit has precedent denying standing to plaintiffs in pre-enforcement challenges to laws that rely on private enforcement; apparently, Texas has attempted this in the past.

An alternative holding was Pullman abstention, as it is unclear whether a municipality has the power under state law to create private rights of action. The interesting piece there was over the source of the state-law ambiguity. The substantive provision challenged as violating the 14th Amendment--the ban on abortions--was not ambiguous; it was clear what the provision did. The ambiguity was over validity of the private enforcement mechanism. Both parties proceeded from the belief that any ambiguity must be "intertwined with" or directly related to the federal constitutional claim--that is, the ambiguity is in the substantive provision challenged on constitutional grounds. And in the mine run of cases it is--did the Railroad Commission have the power to enact the regulations or is the challenged law capable of a limiting construction. But the court did not find Pullman so limited. A state-law defect in any piece of the ordinance renders the entire statute invalid (or at least unenforceable), mooting the federal issue.

The case is on to the Fifth Circuit, which I expect to affirm. Meanwhile, we have a good sense of what will happen to pre-enforcement challenges to HB8.

Posted by Howard Wasserman on June 3, 2021 at 08:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

The comments to this entry are closed.