Crying "Wolf!"

Republicans got wiped out the last time they ran a 'war on women' https://t.co/W2zPcAjbiA

— Raw Story (@RawStory) September 8, 2021

Ed Kilgore at NY Magazine reports that Mitchell worked with an anti-abortion extremist pastor in east Texas named Mark Lee Dickson who promoted the idea of towns calling themselves "sanctuaries for the unborn" and giving citizens the power to legally harass providers, including pharmacies that sell Plan B contraceptives. Mitchell and Dickson did a trial run of this legal strategy in Lubbock, Texas where a federal judge ruled that he had no power to enjoin private citizens. That success laid the groundwork for the state law that the Supreme Court majority washed its hands of last week.

That Republicans stumbled badly in 2012 when they decided to run as the Misogyny Party is beyond cavil.  That the Supreme Court majority was bamboozled by the idea of private citizens suing for "damages" for someone they don't know having an abortion after the six weeks gestational limit of the statute, is largely settled opinion.  But once again Digby proves she is no lawyer, and that the sky is not falling and the wolf is not coming for the sheep, in that statement highlighted above.  In the original that sentence links to this article:

A federal judge late Tuesday dismissed Planned Parenthood’s lawsuit against the city of Lubbock’s voter-approved abortion ban for a lack of jurisdiction, punting to Texas state courts to take up the matter.

U.S. District Judge James Hendrix in Lubbock concluded that even if he gave the plaintiffs “everything they wanted” in the lawsuit, his ruling would not block private citizens from suing Planned Parenthood in state court under the ordinance, nor could he be able to bind state courts to his advisory opinion or force the ordinance’s repeal.

“Because the ability to remedy a plaintiff’s injury through a favorable decision is a prerequisite to a plaintiff’s standing to sue – an ability absent here – the court dismisses the case for lack of jurisdiction,” the 50-page opinion states. “Because plaintiffs fail to show that any relief provided by this court is likely to redress the injury at issue – citizen suits brought in state court – the court lacks jurisdiction.” 

That may sound a bit like the reasoning of the majority of the Supreme Court in the matter of the Texas statute; but the trial court is on stronger ground.  The U.S. judge didn't say he couldn't "enjoin private citizens."  Of course he can; that's what injunctions do.  He said his ruling in federal court wouldn't be binding on the state courts, and his opinion in this matter would only be an advisory one.  Why?  Because the federal court lacks jurisdiction over matters concerning state law.

What the court found is stated plainly there:  the court lacks jurisdiction to give the plaintiff the relief they seek.

Hendrix dismissed the case without prejudice, meaning Planned Parenthood could refile later if necessary. The Donald Trump-appointed judge said he did so to allow state courts to rule on Planned Parenthood’s claim the city lacks authority to create civil liability between private individuals and abortion providers under the ordinance and for federal courts to then rule on any remaining questions.

The question sounds similar to that raised by the Texas statute, but there is an important difference: do Texas cities have the authority to create civil liability between private individuals and abortion providers?  I don't think they do, for the same reasons I don't think Texas can create the liability between any individual and abortion providers.  But the distinction rests on the power of the city to create that liability, versus the power of the state.  Texas law and the Texas Constitution make cities and counties creatures of the state and the legislature.  Their authority is specified by law.  State law is limited by the U.S. Constitution (largely, but not wholly).  That's a broader playing field.  What's allowed or denied under state law may not get crosswise with federal or constitutional law.

So the ordinance passed by Lubbock may be in violation of state law, but that's a matter for state courts, not federal courts, to decide.  That's a settled principle of federal court jurisdiction.  The Lubbock ordinance, crucially, is an act of the city of Lubbock.  Is that ordinance allowed under state law?  If it is, that's a decision of the state courts.  The federal court has no jurisdiction to decide what is allowed under Texas law.

The ordinance, by the way, was both broader and more specific than the recently passed Texas statute:

As to private enforcement, first, the Ordinance provides that “[a]ny person, corporation, or entity that commits an unlawful act” under the Ordinance “shall be liable in tort to the unborn child’s mother, father, grandparents, siblings and half-siblings.” Ordinance § F(1). “[E]ach” such “relative” is entitled to recover “[c]ompensatory damages, including damages for emotional distress,” “[p]unitive damages,” and “[c]osts and attorneys’ fees.” Id. “There is no statute of limitations for this private right of action,” and “[t]he consent of the unborn child’s mother to the abortion shall not be a defense to liability, even if the unborn child’s mother sues under this provision.” Id.

The new statute has a four year limitation on actions, but allows any individual to bring suit against a range of persons tangentially involved in the abortion.  It also sets minimum damages as a matter of law.

The problem for Planned Parenthood was how they plead their case, and the relief they sought.  This sounds like inside baseball, but jurisdiction and standing are highly technical questions, too, so there's no getting around it.  The Planned Parenthood complaint  plead three grounds for relief.  One was federal:  violation of the Due Process clause of the 14th Amendment.  The other two were explicitly on issues of state law.  

Texas law grants municipalities the power to adopt ordinances and to enforce their ordinances themselves, see Tex. Loc. Gov’t Code § 51.001, §§ 51.071-51.079, § 54.001, but it does not grant municipalities the power to create civil liability between private parties. Only State law, through the common law or a statute, may do that.

43. Insofar as the Ordinance permits a private person to sue for money damages or injunctive relief, it is ultra vires.

That's one, this is the other:

The Ordinance is expressly and impliedly preempted by the Texas Penal Code and Texas’s wrongful death statute.

A word on pleadings:  the court can only grant the relief the plaintiff asks for.  Did Planned Parenthood err in this pleading?  Did they ask for the wrong relief of the federal court?  In hindsight, yes.  Should they have known better? Probably.  The court has no problem coming up with precedent that seems to be on point with this case.  So is the court to blame here, or did PP's lawyers not do their due diligence?  Legal pleadings are a bit like computer programming:  garbage in, garbage out.

That said, yes, the due process claim does raise a federal issue.  But before you get there, you have the question of jurisdiction.  And, as I mentioned, there are cases that seem to be, as the lawyers say, "on all fours" with the case PP was trying to bring:

Fifth Circuit precedent compels this result. Twenty years ago, the Fifth Circuit heard a similar dispute involving a Louisiana law that allowed private parties to sue abortion providers for damages, and the en banc court dismissed the case because the plaintiffs lacked standing. Okpalobi v. Foster, 244 F.3d 405, 429 (5th Cir. 2001) (en banc); id. at 429–32 (Higginbotham, J., concurring). The court “[did] not challenge that the plaintiffs [were] suffering a threatened injury.” Instead, in addition to a lack of causation, the court relied on the fact that the plaintiffs’ “injury [could not] be redressed by these defendants—that is, these defendants [could not] prevent purely private litigants from filing and prosecuting a cause of action under Act 825 and [could not] prevent the courts of Louisiana from processing and hearing these private tort cases.” Id.

Yeah, PP's lawyers really should have seen that coming.

Jurisdiction is a fundamental legal issue.  It is the power of the court to act.  Without jurisdiction, the court cannot act.  There may be a due process issue, but the Court finds, based on 5th Circuit precedence, it has no power to offer relief, because the relief necessary for the due process claim to be heard is first to decide what state law allows the City of Lubbock to do.  And a federal court can't make that decision.  Nor, even if you want them to in this case, do you want them to.  This ordinance may be ultra vires under Texas law, and preempted by the Texas Penal Code.  But that's for Texas courts to decide.  Once they decide the propriety of this ordinance under state law, the constitutional issues can be decided, if necessary, by the federal courts.  Texas courts can rule on the constitutionality, too; and that ruling can be reviewed by the federal courts; but not until it is ripe for review.

And now we're back to the review, or appellate, process, and how it functions.  The abuse of that process, IMHLO, is what led the Supremes to issue a very badly reasoned and hasty opinion in the first place.  More abuses of that process don't lead to better results. There are times when the federal court sit as appellate courts of review over state court decisions.  This may, or may not be, one of those times.  Either way, the relief sought by PP is, for now, in the state courts.

Really, if you just understand this stuff, you don't have to worry about the world coming to an end because "Judges be crazy."