Can a Federal Judge Stop State Courts From Hearing the Lawsuits Authorized by the Texas Abortion Ban?
The U.S. Court of Appeals for the 5th Circuit said last month that state judges are not proper defendants in lawsuits challenging the constitutionality of S.B. 8, the Texas abortion ban. Yet the preliminary injunction that Robert Pitman, a federal judge in Austin, issued yesterday bars state courts from hearing the civil actions authorized by that law, which bans abortions after fetal cardiac activity can be detected. The crucial difference, Pitman says, is that the earlier case involved private plaintiffs, while his injunction was a response to a lawsuit brought by the federal government.
The 5th Circuit’s ruling dealt with Whole Woman’s Health v. Jackson, a lawsuit in which Texas abortion providers and abortion rights supporters challenged S.B. 8, which prohibits the vast majority of abortions but leaves enforcement to private litigants. The law, which took effect on September 1, expressly bars state or local officials from enforcing its terms, instead authorizing “any person” to sue “any person” who performs or facilitates a prohibited abortion. It promises prevailing plaintiffs, who need not claim any personal injury or interest, “statutory damages” of at least $10,000 per abortion and reimbursement of their legal expenses.
The Jackson plaintiffs tried to get around this novel arrangement, which was designed to frustrate pre-enforcement challenges, by suing Smith County District Court Judge Austin Jackson, representing a proposed class of all state judges who might hear lawsuits authorized by S.B. 8. They argued that Texas judges would play a crucial role in enforcing the statute, since S.B. 8 lawsuits could not proceed without them. Pitman, who also heard that case, accepted the plaintiffs’ reasoning, but the 5th Circuit emphatically rejected it.
“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,” the appeals court said. It cited Ex parte Young, a 1908 case in which the Supreme Court said state officials could be sued to stop them from enforcing allegedly unconstitutional laws. But the Court added that the right to seek a federal injunction against state officials does not include the right to stop a state court “from acting in any case brought before it.” The 5th Circuit concluded 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 noted that “the Declaratory Judgment Act requires an ‘actual controversy’ between plaintiffs and defendants.” But in Jackson, it said, “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 preliminary injunction that Pitman issued yesterday was a response to United States v. Texas, a Justice Department lawsuit that says the defendants include “all” of the state’s “officers, employees, and agents” as well as “private parties who would bring suit under S.B. 8.” The injunct
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