Opponents of the Texas Abortion Ban Are Struggling to Find Defendants They Can Sue To Prevent Its Enforcement
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 plaintiff
Article from Latest – Reason.com