Buying time in constitutional litigation

The media coverage around the efforts by abortion-rights activists and providers to enjoin enforcement of SB8 pending litigation has reached panic mode, with stories about this case representing a test of whether the Fifth Circuit or SCOTUS continue to regard Roe and Casey as law and setting up the "Roe has been overruled" narrative if neither court stops enforcement.

That misconstrues what is going on here. This is a lousy suit for trying to stop enforcement. One group of defendants (the judges) are not proper targets of constitutional litigation, as federal courts typically do not stop judges from the opportunity to adjudicate cases before they have been filed. One defendant (Mark Dickson) is not a proper defendant now but could become one. And one group of defendants (agency and executive officials) are proper defendants for the limited purpose of preventing them from stripping occupational and medical licenses, not for the broader purpose of stopping primary enforcement of the substantive law. Meanwhile, the lawsuit and any temporary order cannot reach, and therefore enjoin, the many "any person[s]" authorized to file suit because they are not parties to the case--although if judges and clerks are enjoined from accepting or adjudicating those suits, remaining outside the injunction does not help these would-be state plaintiffs.

Texas lawmakers intended to create this situation. But it is important to highlight these procedural issues in describing the denial of any stay or injunction. It may have nothing to do with the substantive merits of SB8 and the continued vitality of Roe.  And these procedures--forcing providers to defend their rights in state court or to wait before filing in federal court--while burdensome, are  common in other contexts. The Constitution does not compel any particular framework for adjudicating constitutional rights.  Any stay or temporary injunction will be short-lived because this case is doomed to fail--not on the merits of SB8 but because this is the wrong litigation vehicle.

So why bother? At some level, the plaintiffs are buying time, putting off the procedurally inevitable and hoping to prepare and strategize for the next steps. And maybe there is nothing wrong with that, as I said in defending President Biden in issuing the new eviction moratorium despite likely judicial defeat. Litigation takes awhile, so there is merit to maintaining what you want (no risk of enforcement, no evictions) in the meantime.

At the same time, as I argued yesterday, providers and advocates have a viable prospect for offensive litigation that is not this case--sue "any person" once a state-court action is filed and get a TRO and PI stopping that person from pursuing the state litigation. And add a new "any person" to the case, and to the PI, whenever a new action is filed. It is neither easy nor efficient (and, again, that was the legislative goal). But it can work procedurally and providers/advocates would be well-served to be ready to implement that strategy. Maybe that is what they are buying time to do.