This is the same case that went to #SCOTUS last week. This decision converts the Fifth Circuit's temporary ("administrative") stay into a stay pending appeal, which doesn't change the status quo — it just means that, at a minimum, that status quo is going to persist a lot longer.
— Steve Vladeck (@steve_vladeck) September 10, 2021
I'm not going to argue with the court's reasoning (Professor Vladeck is more qualified), but this is the problem the Professor identified earlier, and the problem the DOJ is trying to get around:
In light of S.B. 8’s enforcement mechanism, Plaintiffs have adopted a novel strategy for their pre-enforcement challenge. Principally, they seek to enjoin the entire Texas judiciary to prevent any court from entertaining S.B. 8 lawsuits.
And here is, quite simply, the problem with that (although it is necessitated by the enforcement provision of the statute):
Plaintiffs sued several categories of state officers: the Texas Attorney General; certain state professional licensing officials; a state district judge, and a court clerk.9 Along with various standing and justiciability principles likely to preclude federal court jurisdiction, the State Defendants claim immunity under the Eleventh Amendment, which forbids suits against non- consenting states in federal court absent other (here inapplicable) exceptions. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Plaintiffs seek to avoid the Eleventh Amendment bar by asserting that each type of State Defendant has “some connection” with enforcing S.B. 8 that permits an injunction against the officer in his or her official capacity. See Young, 209 U.S. at 157. If a state officer is a proper party under Ex parte Young, prospective injunctive relief is available to order that officer not to enforce state law that violates federal law. We must therefore consider the quality of connection between each State Defendant and the enforcement of S.B. 8.
I'll save you the trouble: they don't find that Young applies to these facts. And frankly, I'm not sure that's "pure evil" on their part.** I will say part of the problem here, which can be obviated by a suit under this statute, is that the parties to the suit at this point have not suffered harm (the plaintiffs) by the actions of the defendants. Yes, the law is contrary to Roe; but how you seek relief is the issue before the court. The DOJ took an entirely different approach, one that may well better survive judicial scrutiny.
There is an opening here, because of a clinic in San Antonio which is still offering abortions. However, the patient as well as the clinic and staff can be sued individually under this statute. Without an outside organization willing to foot the bills, including attorneys fees and up to any judgment, I still don't see a patient and a clinic willing to get this matter into court where they can claim the harm that would change the legal analysis required by Young.
It's a pickle, in other words. I'd put my money on the DOJ suit, but without expecting any injunction that will stay enforcement of the statute while trials and/or appeals are pending. Ideally, the Supremes will decide this manner of statute cannot be used to obviate constitutional rights by states (it does leave much of 14th amendment jurisprudence in tatters to not so rule). But that decision won't come down for years. It certainly won't come down now on another interlocutory appeal.
So we wait.
*
**Let's just say that that part of the analysis is ... less well-grounded ... than the Okpalobi discussion.
— Steve Vladeck (@steve_vladeck) September 10, 2021
One asymmetry is that while Republicans have done a decent job telling their base that the 9th Circuit are godless heathens, most liberals don't know that the 5th Circuit does evil like every single day. https://t.co/37ds4GXtBc
— Elie Mystal (@ElieNYC) September 10, 2021
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