More Needed Clarity

One group of people I do not want to hear from is made up of famous graduates of elite law schools who will tell us that this really isn't as bad as it looks.

— Charles P. Pierce (@CharlesPPierce) September 2, 2021

I'm neither famous nor a graduate of an elite law school, so I guess I'm safe. I don't know where Amy Howe went to school, but Steve Vladeck is a professor at an "elite" law school, so maybe I shouldn't be citing them?

Either way, more important insights into exactly what the state of play is in Whole Woman's Health v. Jackson:

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

I want to start there because I really resent the Chicken Little-rantings of people like Mark Joseph Stern who never met a court ruling they couldn't label The End Of The World As We Know It.  Cooler heads need to prevail, and this paragraph alone is a more reasoned interpretation of what just happened than almost anything you'll get on Twitter (I include Professor Vladeck's tweets in that critique, much as I admire his legal acumen.  It's bad enough piecing together what happened from news reports; it's worse doing it via Twitter.) As for the case actually brought to the Court:

Texas abortion providers went to federal court in July, seeking to block it before its Sept. 1 effective date. They argued (among other things) that the law violates their patients’ constitutional right to end a pregnancy before viability. When the district court denied the defendants’ motion to dismiss the case on Aug. 25, things moved quickly. The defendants went to the U.S. Court of Appeals for the 5th Circuit, which granted their request to put the remaining district-court proceedings, including an Aug. 30 hearing on the abortion providers’ request for a preliminary injunction, on hold. The court of appeals also denied the abortion providers’ request to fast-track the defendants’ appeal, prompting the providers to seek emergency relief in the Supreme Court on Monday afternoon.

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

Justice Sotomayor trashed the "one-paragraph, unsigned order" issued by the court without ceremony or hearing; and her arguments strike me as fundamentally sound.  That's the "shadow docket" issue here, which I may return to only because it's part of the problem with procedure and the rule of procedure the Court is now following.  But the other procedural issue is in how this case got to the Court.

The plaintiffs sought to enjoin the statute before September 1 on the grounds, basically, or Roe and Casey. I don't know who the defendants were, which is a problem for my analysis because who they sued determines whether they even get to court.  I assume the motion to dismiss was on those grounds, but I still don't know.  The district court denied the motion to dismiss, and a panel of the 5th Circuit (three judges, not the entire court) put all proceedings of the district court on hold.  That would indicate the panel, at least, thought the case should be dismissed.  The 5th Circuit is the most conservative court in the country, sometimes more Catholic than the Supreme Court, so to speak, so the plaintiffs clearly figured they should jump to the Supreme Court rather than request an en banc hearing before the entire appellate court.  That is the usual requirement for seeking an audience before the highest court, but I'm a little tangled as to why the 5th Circuit took an interlocutory appeal from the trial court.  Those things used to be as rare as hen's teeth; lately they seem as common (and pernicious) as kudzu.  Again, I would prefer wiser and more informed heads to weigh in on that topic, but nobody's doing that right now and I have neither the time nor the law library access to ferret out why such appeals are suddenly all the rage.  It is concerning, however, because of due process and equal protection.  I'll come back to that.

Jumping to the Supremes was a fraught practice in some ways; but the blatant unconstitutionality of SB8 was obviously the basis for the appeal.  Except the Supremes chose to focus on, essentially, standing and the question of a justiciable issue, because as of the time of the appeal the statute hadn't even taken effect. In other words, the Court is willing to wait until someone is taken to civil court in alleged violation of the statute, and perhaps even loses their case, before the Court considers this a justiciable matter.

So, yes, we know the defendant is spreading gasoline around your barn, and holding a book of matches nest to the gasoline can, but until he strikes the match AND the barn burns down, there's really nothing we can do.  For the moment.

But here, let the court majority speak first:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.

You see, the barn hasn't burned down yet, so what can we do?  Oh, is that not perfectly clear yet?  Well, let's be blunter then:

The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. See Ex parte Young, 209 U. S. 123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

That highlighted bit is what Amy Howe is referring to, and it's why I think critics of this opinion like Stern are trying to cement their roles as Cassandras because, well, they want the attention of being the chief doomsayers.  I do, however, think the Court is selling out the issue of constitutionality on the cheap, which is why Professor Vladeck was so impressed with Chief Justice Roberts dissenting opinion:

The State defendants argue that they cannot be restrained from enforcing their rules because they do not en- force them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial in- tervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect. 

Still, he gives a nod to going things decently and in good order; an argument I can't bring myself to disagree with, especially because it upholds the Court doing the right thing:  reverse the 5th Circuit and send this back to the trial court because this isn't the time for interlocutory appeals:

Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argument, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.

Justice Breyer takes dead aim at the majority's excuse that this is too novel a law for the Court to rule on yet:

I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN. Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion dur- ing that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercis- ing during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro- scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. The applicants persuasively argue that Texas’s law does precisely that.

That's an argument that, honestly, needs more attention.  As does this portion of his dissent:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “ ‘invaded,’ ” the law provides “ ‘a legal remedy by suit or action at law.’ ” Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). It should prove possible to apply procedures adequate to that task here, perhaps by permitting lawsuits against a subset of delegatees (say, those particularly likely to exercise the delegated powers), or perhaps by permitting lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers. There may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury.

I especially like that bolded part there, because it echoe reasoning I remember from law school on the enforcement of racial convenants in deeds.  The Court held that those covenants could not be removed by judicial fiat from the deeds (it's a matter of property law being almost sacrosanct, a holdover from medieval English law), but the courts could refuse to enforce such covenants because racism is a pernicious element that the courts cannot endorse (or enforce).  There is, in other words, ready SC precedent for preventing the enforcement of unconstitutional (racism is unconstitutional, per Court precedent) features in the law.  I mention that because I remember it, not because it's a brilliant legal insight.  I'm trying to point out there are strong grounds for refusing to allow this statute to take effect, even as I'm not sure that allowing it to take effect means Roe is no more. It's just suspended in Texas; which effectively overrules it for at least one state, doesn't it?

Justice Sotomayor pens the opinion every one wants to talk about because it comes closest to being in plain English.  I am not implying that is a bad thing:

The Court’s order is stunning. Presented with an appli- cation to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

Again, a little context from Justice Sotomayor's opinion might be helpful, especially in light of Justice Breyer's dissent:

The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

And in a footnote, the Justice brings this down to earth, out of the rarified atmosphere of legal theories:

The Court’s inaction has had immediate impact. Two hours before the Act took effect, one applicant reported that its waiting rooms were “‘filled with patients”’ urgently seeking care while “‘protesters [we]re outside, shining lights on the parking [lot].’ ” De Vogue, Texas 6-Week Abortion Ban Takes Effect after Supreme Court Inaction, CNN (Sept. 1, 2021), www.cnn.com/2021/09/01/politics/texas-abortion-supreme-court- sb8-roe-wade/index.html. Then, at midnight, the Act became law, and many abortion providers, including applicants, ceased providing abortion care after more than six weeks from a woman’s last menstrual period (LMP). See, e.g., Alamo Women’s Reproductive Care (Sept. 1, 2021), https://alamowomensclinic.com (“We cannot provide abortion services to anyone with detectable embryonic or fetal cardiac activity[,] which is typically found at 6 weeks or more from last menstrual period”); Southwest- ern Women’s Surgery Center (Sept. 1, 2021), https://southwesternwom- ens.com/southwestern-womens-surgery-center-dallas-texas/ (“In compliance with Texas Senate Bill 8 of 2021, starting on September 1st 2021, our facility cannot provide abortions to patients with detectible em- bryonic or fetal cardiac activity, which typically starts at 6 weeks LMP”). Since then, at least one applicant has stopped providing abortions en- tirely. Planned Parenthood South Texas (Sept. 1, 2021), https://www.plannedparenthood.org/planned-parenthood-south-texas (“Due to Texas’ SB 8 law, we are unable to provide abortion procedures at this time”).

That footnote also deserves more attention.

Justice Kagan offers twice as many paragraphs as the majority opinion, but eviscerates their one paragraph:

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abor- tions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual prin- ciples of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.

This pretty much sums up my attitude toward this law, as well as the Supreme Court decision:

The Texas law is thematically part of the new Right enthusiasm for political warfare through harassing litigation, seen in wide Right support of (or at best indifference to) frivolous election litigation and things like @DevinNunes vexatiousness. The new Right is Orly Taitz now.

— OneHitPopehat (@Popehat) September 2, 2021

And I'll just add this:

Inbox: Statement by President Joe Biden on Supreme Court Ruling on Texas Law SB8 pic.twitter.com/EPBs3PS32F

— Zeke Miller (@ZekeJMiller) September 2, 2021