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Friday, December 10, 2021

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

Posted by Howard Wasserman on December 10, 2021 at 11:05 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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