Monday At The Bar. Misconstruing the law

If you listened to the weekend news shows you are now fully up to speed on all the left of center angst, or feigned angst, over the new anti-abortion bill in Texas.

The speed at which this went from law to politicized whipping boy for the left is stunning, if predictable.  There were all sorts of anguished cries that the United States Supreme Court, in association with it, has done away with Roe v. Wade and that this will be a disaster.  

Well, let's look at what actually happened.

The Texas Law

You can read the bill online, like most laws.  I'd repost it here, but it's really long

Texas Statute,

The law passed by the legislature of Texas prohibits abortions after six weeks.  It's a "heartbeat" law, of which there are now several in the US, which takes the position that once a heartbeat is detected, and taking the position that this occurs no later than six weeks, the fetus should be protected at law.

That''s really about it.

Now, much inaccurate reporting has been suggesting that private citizens can prosecute the law and that its private remedies are wholly novel.

Neither of those things is true.

Here's the text that liberals have lashed onto.

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR
	ABETTING VIOLATION. (a)  Any person, other than an officer or
	employee of a state or local governmental entity in this state, may
	bring a civil action against any person who:
	(1)  performs or induces an abortion in violation of
	this subchapter;
	(2)  knowingly engages in conduct that aids or abets
	the performance or inducement of an abortion, including paying for
	or reimbursing the costs of an abortion through insurance or
	otherwise, if the abortion is performed or induced in violation of
	this subchapter, regardless of whether the person knew or should
	have known that the abortion would be performed or induced in
	violation of this subchapter; or
	(3)  intends to engage in the conduct described by
	Subdivision (1) or (2).
	(b)  If a claimant prevails in an action brought under this
	section, the court shall award:
	(1)  injunctive relief sufficient to prevent the
	defendant from violating this subchapter or engaging in acts that
	aid or abet violations of this subchapter;
	(2)  statutory damages in an amount of not less than
	$10,000 for each abortion that the defendant performed or induced
	in violation of this subchapter, and for each abortion performed or
	induced in violation of this subchapter that the defendant aided or
	abetted; and
	(3)  costs and attorney's fees.
	(c)  Notwithstanding Subsection (b), a court may not award
	relief under this section in response to a violation of Subsection
	(a)(1) or (2) if the defendant demonstrates that the defendant
	previously paid the full amount of statutory damages under
	Subsection (b)(2) in a previous action for that particular abortion
	performed or induced in violation of this subchapter, or for the
	particular conduct that aided or abetted an abortion performed or
	induced in violation of this subchapter.
	(d)  Notwithstanding Chapter 16, Civil Practice and Remedies
	Code, or any other law, a person may bring an action under this
	section not later than the fourth anniversary of the date the cause
	of action accrues.
	(e)  Notwithstanding any other law, the following are not a
	defense to an action brought under this section:
	(1)  ignorance or mistake of law;
	(2)  a defendant's belief that the requirements of this
	subchapter are unconstitutional or were unconstitutional;
	(3)  a defendant's reliance on any court decision that
	has been overruled on appeal or by a subsequent court, even if that
	court decision had not been overruled when the defendant engaged in
	conduct that violates this subchapter;
	(4)  a defendant's reliance on any state or federal
	court decision that is not binding on the court in which the action
	has been brought;
	(5)  non-mutual issue preclusion or non-mutual claim
	preclusion;
	(6)  the consent of the unborn child's mother to the
	abortion; or
	(7)  any claim that the enforcement of this subchapter
	or the imposition of civil liability against the defendant will
	violate the constitutional rights of third parties, except as
	provided by Section 171.209.
	(f)  It is an affirmative defense if:
	(1)  a person sued under Subsection (a)(2) reasonably
	believed, after conducting a reasonable investigation, that the
	physician performing or inducing the abortion had complied or would
	comply with this subchapter; or
	(2)  a person sued under Subsection (a)(3) reasonably
	believed, after conducting a reasonable investigation, that the
	physician performing or inducing the abortion will comply with this
	subchapter.
	(f-1)  The defendant has the burden of proving an affirmative
	defense under Subsection (f)(1) or (2) by a preponderance of the
	evidence.
	(g)  This section may not be construed to impose liability on
	any speech or conduct protected by the First Amendment of the United
	States Constitution, as made applicable to the states through the
	United States Supreme Court's interpretation of the Fourteenth
	Amendment of the United States Constitution, or by Section 8,
	Article I, Texas Constitution.
	(h)  Notwithstanding any other law, this state, a state
	official, or a district or county attorney may not intervene in an
	action brought under this section.  This subsection does not
	prohibit a person described by this subsection from filing an
	amicus curiae brief in the action.
	(i)  Notwithstanding any other law, a court may not award
	costs or attorney's fees under the Texas Rules of Civil Procedure or
	any other rule adopted by the supreme court under Section 22.004,
	Government Code, to a defendant in an action brought under this
	section.
	(j)  Notwithstanding any other law, a civil action under this
	section may not be brought by a person who impregnated the abortion
	patient through an act of rape, sexual assault, incest, or any other
	act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code.
	Sec. 171.209.  CIVIL LIABILITY:  UNDUE BURDEN DEFENSE
	LIMITATIONS.  (a)  A defendant against whom an action is brought
	under Section 171.208 does not have standing to assert the rights of
	women seeking an abortion as a defense to liability under that
	section unless:
	(1)  the United States Supreme Court holds that the
	courts of this state must confer standing on that defendant to
	assert the third-party rights of women seeking an abortion in state
	court as a matter of federal constitutional law; or
	(2)  the defendant has standing to assert the rights of
	women seeking an abortion under the tests for third-party standing
	established by the United States Supreme Court.
	(b)  A defendant in an action brought under Section 171.208
	may assert an affirmative defense to liability under this section
	if:
	(1)  the defendant has standing to assert the
	third-party rights of a woman or group of women seeking an abortion
	in accordance with Subsection (a); and
	(2)  the defendant demonstrates that the relief sought
	by the claimant will impose an undue burden on that woman or that
	group of women seeking an abortion.
	(c)  A court may not find an undue burden under Subsection
	(b) unless the defendant introduces evidence proving that:
	(1)  an award of relief will prevent a woman or a group
	of women from obtaining an abortion; or
	(2)  an award of relief will place a substantial
	obstacle in the path of a woman or a group of women who are seeking
	an abortion.
	(d)  A defendant may not establish an undue burden under this
	section by:
	(1)  merely demonstrating that an award of relief will
	prevent women from obtaining support or assistance, financial or
	otherwise, from others in their effort to obtain an abortion; or
	(2)  arguing or attempting to demonstrate that an award
	of relief against other defendants or other potential defendants
	will impose an undue burden on women seeking an abortion.
	(e)  The affirmative defense under Subsection (b) is not
	available if the United States Supreme Court overrules Roe v. Wade,
	410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833
	(1992), regardless of whether the conduct on which the cause of
	action is based under Section 171.208 occurred before the Supreme
	Court overruled either of those decisions.
	(f)  Nothing in this section shall in any way limit or
	preclude a defendant from asserting the defendant's personal
	constitutional rights as a defense to liability under Section
	171.208, and a court may not award relief under Section 171.208 if
	the conduct for which the defendant has been sued was an exercise of
	state or federal constitutional rights that personally belong to
	the defendant.

It allows, as can be seen, for a private cause of action against those violating the law.  Super novel, right?

Well, not so much, although the dissents in the Supreme Court ruling lashed on to that.

Lots of Federal laws work the same way, which is why environmental groups, for instance, constantly file suit against Western states in regard to questions involving endangered or threatened animals, or on such things as oil and gas and mining endeavors on Federal lands.  There's really nothing novel here.

Indeed, one of the liberal talking points has been "what if leberal states passed such laws regarding guns?".  Well, gun manufacturers are already being sued by private individuals, so the point has, well, not much of a point.

It's somewhat of a point.  It is an unusual law. But maybe now as unusual as made out.  Moreover, if people don't like the private cause of action aspect of it, perhaps they ought to also be willing to get rid of it in connection with NEPA or the ESA.

The Supreme Court Petition

So, a petition was filed with the Supreme Court.  What happened there?

Well, to listen to the news, you'd believe the Court struct down Roe v. Wade.  I think it should strke Roe down, and I think it will, but the Court didn't actually do that here at all.  Here's the Court's decision:

SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL. ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021] 

The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is denied. To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)). 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. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (“threatened injury must be certainly impending” (citation omitted)). 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. 

CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. The statutory scheme before the Court is not only unusual, but unprecedented. 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 desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. 

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce 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 intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the con-sequences 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. 

We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these. 

I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims. 

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, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. 

The procedural posture of this case leads a majority of this Court to deny the applicants’ request for provisional relief. In my view, however, we should grant that request. 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 during 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 exercising 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 proscribe 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. 

The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm. One of the clinic applicants has stated on its website that  “[d]ue to Texas’ SB 8 law,” it is “unable to provide abortion procedures at this time.” Planned Parenthood South Texas, https://www.plannedparenthood.org/planned-parenthoodsouth-texas. And the applicants, with supporting affidavits, claim that clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law; they will simply close, depriving care to more than half the women seeking abortions in Texas clinics. See, e.g., App. to Application 105, 148–150, 178–179. We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here. See Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392–393 (1988); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 164 (2014) (finding substantial threat of future enforcement where statute permits “‘any person’” to file a complaint and “the universe of potential complainants is not restricted”). 

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-verynew 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. 

As THE CHIEF JUSTICE writes, this Court should not permit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully to make (or to refute) these and other arguments supporting the request for an injunction. For these reasons, and for the reasons stated by THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, I dissent.

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting. 

The Court’s order is stunning. Presented with an application 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. 

In May 2021, the Texas Legislature enacted S. B. 8 (the Act). The Act, which took effect statewide at midnight on September 1, makes it unlawful for physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity. §3 (to be codified at Tex. Health & Safety Code Ann. §§171.201(1), 171.204(a) (West 2021)). This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability. According to the applicants, who are abortion providers and advocates in  Texas, the Act immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close. 

The Act is clearly unconstitutional under existing precedents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in judgment) (slip op., at 5) (explaining that “the State may not impose an undue burden on the woman’s ability to obtain an abortion” of a “nonviable fetus” (citing Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue otherwise. Nor could they: No federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law. 

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. 

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis. 

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night. 

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. Moreover, the District Court held this case justiciable in a thorough and well-reasoned opinion after weeks of briefing and consideration. 2021 WL 3821062, *8–*26 (WD Tex., Aug. 25, 2021). At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS, C. J., dissenting). Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation. 

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law. I dissent.

JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting. 

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 abortions. 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 principles 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 shadowdocket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend. I respectfully dissent.

Now, that's a lot of text, but what can we take from that?

First of all, the matter was up at the Supreme Court not for a final ruling, but for an injunction precluding the law from taking effect. At least one Texas Court has issued such an injunction.

And the Court simply held that there was no standing, it wasn't actually ruling, and that it more or less expects the entire matter to be showing back up as a regular appeal or petition for certiorari.  

Indeed, arguably, taking the matter up now would have been the extraordinary act.

So what really happened?

Texas passed this law.  The Texas law pretty clear presumes that Roe v. Wade is a dead decision at this point, and they're likely right.  The legislature of the State of Texas represents Texans, and even though I've already heard one commenter decry that this defeated the view of the people, they represent the view of the people.  If they don't, you'll know they didn't next election.  That's how the system works.  

In short, we're getting a really good view of how liberals, or progressives as they now call themselves, tend to hold democracy itself in contempt, which means we're now at the scary point where the extremes on the right and the left discount democracy.  What's been missed in the wake of the January 6 insurrection is that it was the left wing in American politics that really got this rolling through their free resort to liberal courts, when the courts were liberal, to remake American law and society by fiat, rather than democratically.

In recent years the courts have been lifting the lid back off of the decisions of the 1970s and 1980s, as they often were based on simply made up law, although we still get them from time to time.  This wasn't one of them.  There was no standing, the majority was correct.  The greater issue hasn't been taken up by the Court, but is likely to be very shortly due to another pending case.  Chance are high that Roe will fall, as legally, it was always a very poorly drafted decision in the first place, and its incorporation of science as its basis was extremely, and now demonstratively, flawed.