S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the "complex and novel antecedent procedural questions" that the Supreme Court mentioned when it declined to intervene in this case.

The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.

S.B. 8 bans abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, before many women even realize they are pregnant. The abortion providers and abortion rights supporters who challenged the law in Whole Woman's Health v. Jackson estimated that it would affect "at least 85% of Texas abortion patients."

In lieu of enforcement by state officials, S.B. 8 allows "any person" to sue "any person" who performs post-heartbeat abortions or who "aids or abets" them. Prevailing plaintiffs are promised at least $10,000 in "statutory damages" per abortion, plus compensation for their legal expenses. Meanwhile, S.B. 8 limits the defenses available to targets of these lawsuits and specifies that they cannot recover attorney's fees if they nevertheless manage to win. This scheme, which embraces legal tactics that conservatives have long condemned, creates a daunting deterrent even without any actual litigation, as it was designed to do.

The plaintiffs in Whole Woman's Health v. Jackson tried to get around the law's unusual enforcement mechanism by arguing that certain state officials—judges, court clerks, the attorney general, and the heads of various regulatory agencies—would play a role in implementing S.B. 8. Although U.S. District Judge Robert Pitman thought that argument was plausible enough to let the case proceed, the 5th Circuit emphatically disagrees in an opinion that explains the reasoning behind its earlier denial of the plaintiffs' emergency motion for an injunction pending appeal.

The plaintiffs named Smith County District Court Judge Austin Jackson and Smith County District Court Clerk Penny Clarkston as defendants, representing a proposed class of all Texas judges and court clerks. These officials, the complaint argued, would be essential in enforcing S.B. 8 because they would handle the lawsuits authorized by the statute. The 5th Circuit deems that argument "specious," saying the Supreme Court has made it clear that state judges are not proper defendants in cases challenging a law's constitutionality.

In the 1908 case Ex parte Young, the Court said state officials charged with enforcing an allegedly unconstitutional law can be sued in their official capacity. The case involved Minnesota Attorney General Edward T. Young, who sued railroads for violating state rate regulations. While the Court said the railroads could respond by seeking a federal injunction against Young, it added that "the right to enjoin an individual, even though a state official, from commencing suits…does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature." The justices said "an injunction against a state court would be a violation of the whole scheme of our government."

The 5th Circuit also cites several appeals court decisions regarding liability under 42 USC 1983, which authorizes lawsuits against state officials who deprive people of their constitutional or statutory rights under color of law. The plaintiffs in Whole Woman's Health cited that provision in their lawsuit. But "it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law," the 5th Circuit says. It adds that "Plaintiffs' position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers."

The appeals court also notes that "the Declaratory Judgment Act requires an 'actual controversy' between plaintiffs and defendants." But in this case, it says, "no such controversy exists," since "the Plaintiffs are not 'adverse' to the state judges." When "acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy."

The 5th Circuit says "it is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law." In other words, Texas judges will be obligated to consider constitutional objections to S.B. 8 when they hear any lawsuits authorized by it.

Or maybe even before then: Earlier this month, Travis County District Court Judge Maya Guerra Gamble issued a temporary restraining order against Texas Right to Life, barring that organization from filing S.B. 8 lawsuits against Planned Parenthood of Greater Texas. Gamble found that the law "creates a probable, irreparable, imminent injury" for which Planned Parenthood and its staff "have no adequate remedy at law." Still, that decision is a far cry from the broad relief sought by the Whole Woman's Health plaintiffs.

In addition to state judges, those plaintiffs argued that Texas Attorney General Ken Paxton was an appropriate defendant because he has the power to seek civil penalties against physicians and physician assistants who violate the Texas Medical Practice Act. The restrictions imposed by S.B. 8, they said, implied new constraints on medical practice under that broader law. For similar reasons, they sued the heads of the state agencies charged with regulating doctors, nurses, pharmacists, abortion clinics, and ambulatory surgical facilities. S.B. 8, they said, authorizes administrative actions against those practitioners and entities for performing or facilitating post-heartbeat abortions.

Although Pitman thought that argument made sense, the 5th Circuit says it is defeated by the plain language of S.B. 8. "Notwithstanding" any other legal provision, S.B. 8 says, "the requirements of this subchapter shall be enforced exclusively through the private civil actions" authorized by the law. It adds that "no enforcement of this subchapter…may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person."

As the 5th Circuit sees it, "This language could not be plainer. Exclusive means exclusive, and notwithstanding any other law means notwithstanding any other law. When the district court imputed 'indirect' S.B. 8 enforcement authority to other agency provisions, it ran the multiple red lights in S.B. 8's text….S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any 'enforcement connection' to S.B. 8 and are not amenable to suit under Ex parte Young."

The plaintiffs also sued anti-abortion activist Mark Lee Dickson, based on statements indicating that he intended to file lawsuits under S.B. 8. They argued that Dickson was "a private individual deputized to bring S.B. 8 enforcement actions under color of state law." Notwithstanding his avowed eagerness to take advantage of S.B. 8, Dickson "filed an affidavit stating that he has no present intention to enforce the law."

The 5th Circuit rejected the plaintiffs' motion to dismiss Dickson's appeal, and it agreed with Dickson that Pitman should have stayed the district court proceedings against him pending appeal when he did the same for the state defendants. The "jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials' collateral-order appeal," it says. And while the appeals court has not yet addressed the merits of Dickson's defenses, it is not hard to predict how it will come down on the propriety of suing him based on speculation that he will file one or more lawsuits under S.B. 8.

South Texas College of Law professor Josh Blackman thinks the 5th Circuit's conclusions in Whole Woman's Health v. Jackson do not bode well for the Justice Department's lawsuit challenging S.B. 8, which was filed in the U.S. District Court for the Western District of Texas. That suit, United States v. Texas, seeks "an order preliminarily and permanently enjoining the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8." But the 5th Circuit, which will hear appeals from the district court in this case, says state judges and other Texas officials "lack any 'enforcement connection' to S.B. 8." If so, they would not be appropriate targets of an injunction in the Justice Department's case either.

As for "private parties," S.B. 8 authorizes lawsuits by "any person." In effect, Blackman says, the Justice Department is suing all Americans based on the prospect that some of them will file lawsuits against people they accuse of performing or facilitating prohibited abortions. "This case really should be captioned United States v. United States," he writes. "Is there any authority to bring such a suit? [The Justice Department] cites none, and I am not aware of any precedent….How can the federal government show that unnamed defendants are likely to bring a lawsuit? The entire case is speculative."

If neither abortion providers nor the Justice Department can identify defendants whom the courts will deem appropriate, the only viable route to broad protection against S.B. 8 is to defy the law and wait for a lawsuit. That prospect is understandably troubling to abortion rights supporters, since the law has already had a dramatic chilling effect. A footnote to the 5th Circuit's ruling claims "these Plaintiffs have no present or imminent injury from the enactment of S.B. 8." That view, which Judge Gamble obviously does not share, ignores the fact that fear of S.B. 8 lawsuits has dramatically reduced the availability of abortions in Texas.

The Supreme Court has said state laws are unconstitutional when they have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus"—a description that clearly applies to S.B. 8. When it declined to issue an emergency injunction in Whole Woman's Health v. Jackson, the Court acknowledged that the applicants "have raised serious questions regarding the constitutionality of the Texas law." The 5th Circuit quotes that observation, saying "we are mindful that S.B. 8 applies to pre-viability abortions."

Chief Justice John Roberts, no fan of Roe v. Wade, was nevertheless troubled by the idea that S.B. 8 cannot be challenged until someone provokes a lawsuit by violating it. "The statutory scheme before the Court is not only unusual, but unprecedented," he wrote in dissent when the Court decided not to intervene in Whole Woman's Health v. Jackson. "The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large."

The aim, Roberts noted, "appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime." Although "the State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place," he said, "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." The courts are now considering that, and so far it looks like the answer is yes.

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