The Volokh Conspiracy

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Fifth Circuit Rules Against Whole Woman's Health in Pending Appeal


Today, the Fifth Circuit decided Whole Woman's Health v. Jackson. I hope to digest the opinion in depth later. For now, here is a summary of the opinion:

First, as to the state officials' appeal. The district court denied the officials' Eleventh Amendment immunity defenses, and they immediately appealed under the collateral-order doctrine. The district court properly stayed proceedings against those defendants. However, the plaintiffs then sought an emergency motion for injunction pending appeal, premised on their argument that the district court's Eleventh Amendment immunity ruling was correct. We previously DENIED that motion and now explain why. 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, 209 U.S. 123 (1908). 

Second, as to Dickson's appeal. The district court denied Dickson's motion to dismiss, which relied on standing and other jurisdictional grounds, and Dickson appealed. But the district court declined to stay proceedings against Dickson and proposed to go forward against him alone. Dickson then asked us for a stay, and we temporarily stayed proceedings while considering his request. In the meantime, the plaintiffs moved to dismiss Dickson's appeal. We conclude that jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials' collateral-order appeal. The notice of appeal therefore divested the district court of jurisdiction over Dickson as well as the officials. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Accordingly, we DENY the plaintiffs' motion to dismiss Dickson's appeal, and we GRANT Dickson's motion to stay the district court proceedings pending appeal. 

Finally, we EXPEDITE the appeal to the next available oral argument panel.