Can a Federal Judge Stop State Courts From Hearing the Lawsuits Authorized by the Texas Abortion Ban?

In a prior case challenging the law, the 5th Circuit said state judges were not appropriate defendants.


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 injunction bars state officials, including judges, from "accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit" authorized by S.B. 8. It adds that "private individuals' actions are proscribed to the extent their attempts to bring a civil action under [S.B. 8] would necessitate state action that is now prohibited"—including adjudication of their lawsuits.

That direct order to state judges seems hard to reconcile with the concerns that the 5th Circuit expressed in Jackson. But Pitman argues that Ex parte Young is not relevant to a lawsuit brought by the federal government.

That decision involved Minnesota Attorney General Edward T. Young's litigation against railroads that violated state rate regulations. The Supreme Court said the railroads, which argued that the regulations were unconstitutional, could seek a federal injunction against Young. But it said they could not seek an injunction barring state courts from hearing any lawsuits Young might bring. "An injunction by a Federal court against a State court would violate the whole scheme of this Government," the Court said, "and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined."

That warning, Pitman suggests, does not apply here, since Ex parte Young carved out an exception to sovereign immunity. "Because state officials lack sovereign immunity protection in a suit brought by the United States," he writes, "this Court need not address whether their conduct falls within the Ex parte Young exception." In a footnote, he says "this Court is not constrained by the concerns expressed by the Fifth Circuit in Jackson, when it found no enforcement connection between the judges and court clerks and S.B. 8 under the rubric of an Ex parte Young analysis."

Florida International University College of Law professor Howard Wasserman, who co-authored a series of Volokh Conspiracy posts on the "procedural puzzles" posed by S.B. 8 with South Texas College of Law professor Charles Rhodes, says Pitman is right "to the extent [that] Young is about sovereign immunity." But he notes that the part of Young dealing with injunctions against judges "is about the scope of the cause of action," which "makes sense if the constitutional violation and thus the thing to be enjoined is enforcement by the executive" rather than "adjudication by the judge."

The "concerns expressed by the Fifth Circuit in Jackson" seem to go beyond the specific context of Ex parte Young, as did that decision's warning that enjoining state judges from hearing cases "would violate the whole scheme of this Government." When the appeals court said suing state judges to prevent enforcement of S.B. 8 is "antithetical to federalism," it was talking about federal interference with the operation of state courts, a description that clearly applies to Pitman's injunction.

In Jackson, the 5th Circuit called the argument for suing Texas judges "specious." Wasserman and Rhodes agree with that assessment.

"Judges have never been appropriate defendants in offensive actions challenging the constitutional validity of laws and seeking to enjoin enforcement," they write. "A court's judgment does not cause the constitutional injury—when a state-court judgment infringes on federal constitutional rights, federal district courts lack jurisdiction and the adversely affected party must appeal the judgment through the state judiciary before seeking SCOTUS review. It follows that a federal court cannot deprive the state judge of any opportunity to issue a judgment."

South Texas College of Law professor Josh Blackman, in a Volokh Conspiracy post about the Justice Department's case, suggests another reason why suing judges to prevent enforcement of S.B. 8 is "problematic": Codes of judicial conduct prevent them from responding to the federal government's claims. "State court judges must decline to opine on the constitutionality of the law," Blackman writes. "Were judges to defend the law, they would be forced to recuse. Given that they cannot defend the law, judges lack the requisite adversity for Article III standing. In other words, litigation against state judges is a sham."

Pitman cites Shelley v. Kraemer, a 1948 case in which the Supreme Court blocked judicial enforcement of restrictive covenants barring home sales to black buyers. Blackman thinks reliance on that decision is misplaced in this context. "I've never been persuaded by the Shelley v. Kraemer argument," he says. "The state action in that case involved private citizens going to court to enforce a discriminatory covenant. But there is no allegation [in United States v. Texas] that judges would enforce an unconstitutional statute. We presume judges will follow the law. If a state judge tries to enforce an unconstitutional statute, there may be a place for federal courts to intervene. But a remedy at this point is premature."

This whole situation is understandably frustrating to abortion-rights advocates, since S.B. 8 is plainly inconsistent with Supreme Court precedents and fear of litigation already has sharply restricted abortion access in Texas, where clinics have dramatically curtailed their services. But the 5th Circuit seems likely to overrule Pitman, based either on the propriety of enjoining state judges or the federal government's standing to bring a lawsuit at this stage.

No one disputes that constitutional objections to S.B. 8 can be raised once private litigants try to enforce it. That route will take longer, but it is the most promising way to achieve the broad and lasting relief that the law's opponents want.

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    2. I’m guessing that your headline was written with a touch, just a tad, of sarcasm.

    3. When can we expect Garland’s letter instructing the FBI to investigate these people as domestic terrorists…oh wait they work for the Department of Education so they must be victims.

  1. So Texas is trolling before it secedes?

  2. Shelley v. Kraemer was decided on an appeal from a state supreme court.

    Certainly, SCOTUS could reverse or vacate the judgments of state courts inconsistent with federal law or the constitutional.

    This does not mean a U.S. district court could enjoin a state court from hearing a lawsuit.

    1. Kraemer v. Kraemer was decided at the box office.

      1. Unwanted babies are being born and you’re making jokes?

        1. At the end of that film, the father gained custody.

          1. I thought he ended up retarded. Or was that the sequel?

            1. Either that or the mom got revenge for losing custody by ruining a bunch of apple farmers with a bogus cancer scare….

  3. There’s something really bizarre about a legal system where practically everybody, including SB8’s authors, admits the law is unconstitutional per Supreme Court precedent, yet everyone seems baffled about how to declare it so.

    1. Perhaps that means it’s not actually unconstitutional and everyone is just pretending that it is for some inexplicable reason.

      1. And somewhat related, the bill’s authors probably said something about it being found unconstitutional by the Supreme Court, which is somewhat different than saying that it’s unconstitutional.

        I could be completely wrong, though. I haven’t been following this very closely.

        1. That’s why I wrote, quote, “everybody, including SB8’s authors, admits the law is unconstitutional per Supreme Court precedent”, unquote.

        2. When lawmakers said that “If you create a rifle with a folding stock, rails, [and other characteristics] it is an Assault Weapon and shall be banned.” So weapons makers stopped making ARs with those characteristics. To gun-control nuts, designing rifles that didn’t meet the definition of Assault Weapon, and therefore was not banned was considered “A Loophole”. To rifle makers, they were just designing a gun that didn’t break the law.

          This seems a relatively similar situation. The Constitution constrains the government in certain ways, according to the Supreme Court jurisprudence. The fact that people are designing a law that allows them to stop abortions without triggering those constraints is the process, even if others will call it a loophole.

          1. I dunno. I’m not sure I’d call it a “loophole”, per se, since as you state it is a case of “following the law as written” just as with the “assault weapons” crap. But it definitely seems like the sort of thing I’d consider a bug, if it was a piece of software.

            But also, as you say below, it’s probably primarily a bug in the “standing” subroutines.

            On the gripping hand, there’s a set of functions defined for bugfixes, too. I suppose it’s not significantly worse to force women to gestate unwanted fetuses to term than it was to hold people in slavery until the 13th was passed. Kinda sucks for the people on the sharp end until the amendment clears, though.

      2. I agree with the great majority of Americans that the unborn should have legal protections from violence and death. The debate is mostly about when those legal protections should begin.

        But I don’t see how some random person from out of state has standing to sue to try to enforce this law. Why are the judges not just dismissing the cases?

        1. There are a couple test cases, but they haven’t been heard, so no opportunity to dismiss them, yet.

        2. Because the state law specifically grants them standing.

          And the law is crafted so that it ratchets to whatever gestational age SCOTUS ultimately finds minimally acceptable.

        3. Charitably this sort of wording is probably designed to be able to include extended family (grandparent rights are a thing) and those who have been defrauded in surrogacy. There might be more non-crazy standing declarations so the broader the better so they’re not restrained through a lack of explicitly stated connections.

      3. No, it means that our system of “standing” is broken in ways that have long been obvious.

        But, just as everything else about the courts, where you stand on standing depends entirely upon your policy position in regard to the case.

        So during the 2020 election, courts magically found that nobody had standing to sue to block obvious violations of election law…. That would have benefitted the wrong people. So they don’t have standing. Before the fact there was no injury, and after the fact it was moot. So the court magically declared the illegal to be legal, by use of their discretion over standing.

        But in this case… Bad people made bad laws… So rules about standing are suddenly a lot more malleable. You don’t have to have an actual injury to have standing.

        Both cases involve violations of established rights. But the court uses standing to frustrate the protection of those rights in one case, and ignores standing to issue rulings protecting rights in the other case.

        This undermines the credibility of the courts and the rule of law.

        But the courts and our political class have cared little about those consequences for many years.

        The fiction of the 8th and 9th amendments and the concept of “rule of law, not men” is laid bare. This is why politics has become a winner take all bloodsport. Instead of a small government and limited power, we have allowed them a huge government with nearly unlimited powers.

        Our idiot representatives confirmed a suoreme court nominee who opined that the federal government had the power to order individual citizens to buy broccoli. This is clearly and unambiguously outside the scope of the enumerated powers of the federal government. But we allowed them to install her without consequence.

        We have allowed them to obliterate our constitutional system and replace it with the individual judgement of the cogs of the political party in power, something the Constitution was explicitly set up to prevent.

        1. On the contrary, I find it quite fitting that the left has found itself mired in the SB-8 mess. I’m quite pleased that they now find themselves out-lawyered for a change.

          This won’t last, of course. As Pitman has shown already, judges are more than willing to make it up as they go along in order to cater to the left’s social agenda.

          Democracy will again be crushed by the left.

      4. The strangest part about this is that in some circumstances the law is actually constitutional under current precedent.

    2. The opponents of the law had ample opportunity to sue an abortion provider. The fact that it fell to a couple of hacks after about a month is baffling.

      1. They can’t coordinate. If they do and get caught, then the whole lawsuit gets tossed out and everyone involved gets sanctioned.

    3. And everyone admits that the relevant SCOTUS precedent was improperly decided, i.e. unconstitutional, in itself.

  4. Sullum’s just trolling with that picture.

    1. Some women play hard to get. That one plays hard to want. Just sayin.

      1. Look closely. Someone put a ring on it.

        1. He hoped it was a Ring of Invisibility?

          1. Have none of you read the books or seen the movies about Hobbits and Sauron and stuff?!?!

            1. She’s had more than a few second breakfasts.

              1. That hangdog expression is just because she’s a bit peckish missing her elevensies to be at the protest.

            2. The Ring of Gyges is much earlier.


              Plato’s estate should totally sue.

  5. ” Friendly lawsuits” are routinely filed. This could have been in state court weeks ago but, it appears that the abortion provider businesses will only be satisfied if the trial record is in Federal Court. The trial court, in whichever jurisdiction, is the ” finder of facts “. The rules of civil procedure apply regardless of the subject matter. Is there an aversion to having a trial record? Injunctive relief doesn’t require a trial record. File the friendly lawsuit and get the process rolling through state court. There is a path to SCOTUS if you go through state court.

    I guess it’s better fund raising to keep the controversy alive and bamboozle the public.

    1. Well, no one contests the facts. A baby was killed.

      1. You’re pretty naive if you think no one contests that a “baby” was killed.

        1. Plus, there is no baby or patient in the case brought by the feds.

    2. Plaintiffs and defendants aren’t allowed to coordinate in order to bring a lawsuit.

  6. Side question…I wonder how many of the protesters saying “My body, my right ” for abortion are taking the OPPOSITE POSITION with regards to vaccination mandates. ” My body, my right ” would seem to be a rally cry for those opposing vaccination mandates.

    1. fyi, it’s “my body my choice”, but to answer your question, I estimate around 100%

      1. Really? Do you believe that the anti vaccination demographic are pro choice? The anti vaccination demographic has a significant percentage of religious individuals. Anti vaccination people have been labeled a bunch of MAGA Neanderthals. Those are not the demographic I would think are pro abortion up to the point of delivery.

        It was Senator Obama who questioned if it would be a violation of Roe to provide medical care to a fetus/ baby that somehow survived an abortion procedure. The recent House passed legislation for abortion without the traditional health of the mother provision. Depression or mental stress is sufficient if any medical professional writes a prescription. There are extremes that are significantly outside the norm of international standards and practices.

        1. Way to misread the comment. That flew so far over your head, I’m not sure it’s worth responding.

          1. It was a remarkably blind response.

    1. “I agree that those ordering the lockdowns should be shot. Is that what you meant?”

  7. The injunction is meaningless because state law anticipates this. If this injunction is ever overturned, then doctors will be liable for any abortions they perform in the meantime.

    And Pittman seems pretty obviously ignoring the opinion of the Appeals Court. That should be easy enough to file.

  8. Fun fact. Women in the US will have an average of two abortions during their lifetime.

    1. I’m assuming this is a snark about miscarriages?

      1. If you define a fertilized egg as a “baby”, God kills more “babies” than all the abortionists in the world can.

  9. If Texas judges are also law officers, QI will rule the day.

    1. Judges have absolute immunity.

  10. My Body
    My Rights
    My Choice

    But only in the abortion articles. You’re just a qanon “anti-vaxxer” in other contexts.

    1. I noticed exactly the same thing. F’in hypocrites.

  11. This whole thing is absurd. Texas clearly is violating current SCOTUS precedent in their law, but the only way someone can challenge it is to be sued, lose, then appeal? Just because Texas did some clever lawylering? No. We need to establish the precedent now that novel ways to violate the constitution will not work.

  12. Fun fact. Women in the US will have an average of two abortions during their lifetime. RRB Group D Result

  13. It seems to me that the best course of action for abortion proponents is the democratic process- pass a law to either repeal the current Texas law, or get Congress to pass a law that allows defendants to dismiss the lawsuits.

    This is well within Congress’s power, and Congress has used it before:

    The Protection of Lawful Commerce in Arms Act is a federal law that offers broad protection nuisance lawsuits.

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