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Saturday, October 09, 2021

Administrative Stay in SB8

The Fifth Circuit issued an administrative stay of the injunction and gave the U.S. until Tuesday to respond to the motion for stay pending appeal. The U.S. has the option of asking SCOTUS to stay the administrative stay or briefing the stay in the Fifth Circuit.

This is wrong. Because the district court (in 113 pages) issued the injunction, the status quo that the stay is designed to maintain changed to favor non-enforcement of the law. And the balance of equities favors the U.S. The state has an interest in enforcing its laws. But the state always has that interest, so that cannot be the end of the inquiry. Hundreds of pregnant people are forced to continue pregnancies or to incur the cost and burden of traveling outside of Texas while the litigation is ongoing. And non-enforcement pending review does not produce "chaos" with long-term consequences that the state cannot unwind. (Compare marriage-equality, where requiring licenses to be issued would have meant thousands of same-sex couples with valid-at-the-time-but-no-longer-valid that the state must either accept contra state law or retroactively invalidate).

SB8 attempts to account for this situation. A provider can be liable for abortions performed in reliance on a "decision" that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal.* So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction. That should be factored into the balance of equities, as decreasing the harm to the state. In fairness, the lawfulness of that provision as applied to injunctions is uncertain; the Court has never resolved whether a party can be retroactively liable for conduct taken while enforcement of a law has been enjoined. But that is on Texas, not the rights-holders on whose behalf the U.S. has sued.

    [*] I say appears because "decision" is a legally meaningless term--courts issue judgments and opinions. So that could mean the provider can be liable for relying on Roe and Casey if they are eventually overruled or for relying on the precedent of one SB8 case.

Posted by Howard Wasserman on October 9, 2021 at 08:24 AM | Permalink


@Roger: The state has an interest in seeing its laws enforced entirely independent of whether its functionaries are the ones bring suit so, no, that's not "rich".

It's of course quite common for SCOTUS to decide whether or not to apply new rulings retroactively, but in this case I can see no good argument for allowing reliance on Casey by abortionists for abortions prior to an overturn of Casey (which, to be clear, I don't expect). The preamble to SB8 notes that TX has never repealed its pre-'73 laws against abortion, so any abortionist is on notice that what he is doing is illegal. Were Casey to be overturned that would be an acknowledgement that the Court had erred in interfering with the enforcement of TX abortion laws. On what grounds, then, and under what claimed power, would it continue to interfere?

As to the injunction, it merely prevents, temporarily, enforcement. It doesn't affect the validity of the law while the injunction is in effect.

Posted by: Gandydancer | Oct 9, 2021 11:14:08 PM

Roger, you beat me to it, but it sure bears repeating.

Of course, the whole point of this exercise was never logical consistency or coherence, or any semblance of a moral or ethical principle. As usual, the cruelty is the sole point. With the cruelty here being directed at poor women/women of color.

(Cue comments being disabled in 3 ... 2 ... 1 ...)

Posted by: kotodama | Oct 9, 2021 7:50:47 PM

It’s especially rich for the state to argue that it has an interest in enforcing its law while also arguing that the state can’t be sued because it has no role in enforcing this law.

Posted by: Roger | Oct 9, 2021 4:15:38 PM

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