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Tuesday, August 31, 2021

Still more on SB8

Here are two stories on the state-court TRO. It protects three named plaintiffs--Dallas attorney Michelle Simpson Tuegel, Allison Van Stean, and abortion fund The Bridge Collective--from having SB8 actions filed against them by Texas Right to Life, its legislative director, and other individuals affiliated with RTF. The judge emphasized the irreparable harm without the TRO. But I have no idea what cause of action the plaintiffs used to get into court. Both stories emphasized how narrow the order is and that it does not stop SB8 from going into effect. But, an attorney for Planned Parenthood complained, "it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion."

The media coverage and the comments of lawyers and courts shows just how badly we talk about the process underlying constitutional litigation. So once more with feeling:

1) No court at any level can stop SB8 from taking effect tomorrow--not a state court, not the Fifth Circuit, and not SCOTUS. 2) The only thing any court can ever do in an order in any case is stop some individuals or entities from enforcing the law (here, by filing a lawsuit) against other individuals or entities. 3) No court order provides"full relief" to "all Texans" unless the suit was brought as a class action of all Texans (who are not subject to suit anyway). 4) Rather than decrying the limited scope of the victory, the plaintiffs should celebrate it as a step that gives them the relief they need as part of a larger process of litigation over the law's enforcement and constitutional validity.

The exception to this is if the Fifth Circuit or SCOTUS, however erroneously, enjoins the judges and clerks. But that works by virtue of procedure and the nature of judicial relief as to specific parties, not because federal courts have greater remedial power. Their order would not bind the individual would-be SB8 plaintiffs or prohibit them from filing suits. But no clerks could accept the complaints and no judge could adjudicate them. You end in the same place, but the process matters.

Finally, I have not heard anyone explain how SB8 differs from possibly invalid tort law or my hypothetical cause of action against racist speech. I expect we would not have this hand-wringing, even though the enforcement mechanisms are the same and the difference is only the substantive rights at issue.

Posted by Howard Wasserman on August 31, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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