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Monday, August 30, 2021

SB8 Update

SB8, Texas' ban on abortions following detection of a fetal heartbeat, goes into effect on Wednesday. Following the district court's (partially erroneous) denial of motions to dismiss and the defendants' immediate appeal of that seemingly non-appealable order, the Fifth Circuit issued an administrative stay of proceedings in the district court, which canceled a preliminary-injunction hearing. Absent SCOTUS intervention, the law will be enforceable and "any person" can begin filing lawsuits. Briefing on an injunction pending appeal is due later this week. The plaintiffs in the WWH case have asked SCOTUS to enjoin enforcement pending appeal.*

[*] Please do not say, as so many media outlets continue to say, that this is about stopping the law from "taking effect." The law takes effect--becomes an enforceable part of Texas law--on September 1 because that is the effective date of the legislation, per Texas lawmakers. No court can stop that. A court can stop enforcement of the law.

Three things are true. SB8's substantive provision is constitutionally invalid and judicially unenforceable under current SCOTUS precedent. The threat of enforcement will cause serious harm to abortion-rights advocates, abortion providers, and the women of Texas. But  there is no basis for a federal court to enjoin the statutorily authorized lawsuits at this stage, given how the law is to be enforced. The substantive awfulness and bad effects of the law do not change that third point and the focus on the first two does not change the third.

The next big move for providers and advocates is two-pronged, triggered on "any person" bringing (or actually threatening to bring) an SB8 action. First, defend that suit in state court (including by challenging the constitutional validity of the heartbeat ban and the constitutional validity of the SB8 provisions purporting to limit those defenses.  Second, sue "any person" on a § 1983 action in federal court to enjoin him from pursuing the state-court action. The argument that the SB8 plaintiff acts under color, given the structure of SB8, is strong; the standing problem resolves once an actual plaintiff reveals himself and acts; and the scholars with whom we have discussed our paper agree that Younger does not apply here.

That is the litigation move now, rather than wrestling with the Fifth Circuit and SCOTUS over administrative stays over offensive litigation that cannot work.

Update: A reader points out that the district court declined to dismiss the claims against the judges on sovereign immunity grounds as well as standing grounds (another example of the identity of standing and sovereign immunity where the plaintiff sues the wrong defendant). Denial of 11th Amendment dismissal is subject to COD review, although that would not pull Mark Dickson or the executive officials with them. The executive officials may have asserted sovereign immunity, as well, although it is not clear if the court reached it.

Posted by Howard Wasserman on August 30, 2021 at 01:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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