Whole Woman's Health v. Jackson Casts Further Doubt on United States v. Texas

There are several elements of the panel's decision that cast doubt on DOJ's case. 


On Friday, the Fifth Circuit decided Whole Woman's Health v. Jackson. The panel ruled that suit was not proper against the state court judges, and the individual defendant. At this point, I think Whole Woman's Health is out of luck. There is no chance for en banc review of this interim ruling. And there are not five votes for shadow docket relief. The panel ordered oral argument at the next available panel. It is not clear which panel will hear that case. But given this interim decision, I think the law of the case would go against Whole Woman's Health. And certiorari from that decision will linger for some time.

Now, the only way to achieve some type broad relief will be DOJ's suit against Texas. Still, there are several elements of the panel's decision that cast doubt on DOJ's case.

First, the court states that "claims against a state judge and court clerk are specious." Much of the analysis focuses on why Ex Parte Young excludes judges from the scope of relief. This analysis would have no bearing on the DOJ's suit, because sovereign immunity is not at issue. But the court also explains that judges are not proper defendants because they are neutral arbiters:

Moreover, it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law. 

Second, the court explains that no controversy exists between the plaintiffs and the defendant-judges:

More broadly, the Declaratory Judgment Act requires an "actual controversy" between plaintiffs and defendants, 28 U.S.C. § 2201(a), but no such controversy exists. Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980). The Plaintiffs are not "adverse" to the state judges. See Bauer, 341 F.3d at 359. When acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy.

The panel added:

For instance, a significant issue is whether a federal court has subject matter jurisdiction to enjoin state officers acting in their adjudicatory capacity, an issue raised repeatedly in the district court by all parties.17 Indeed, the Supreme Court has already questioned, in this very case, the propriety of "issu[ing] an injunction against state judges asked to decide a lawsuit under Texas's law." Whole Woman's Health, 2021 WL 3910722, at *1 (citing Young, 209 U.S. at 163). 

These statements are precisely the precedential buzzsaw I anticipated on Thursday. If there is no adversity between Whole Woman's Health and the state court judges, there would be no adversity between the United States and state court judges. Judges are neutral arbiters who don't have a stake in the outcome of the case. And judges cannot actually defend the constitutionality of S.B. 8. I do not think the suit against Texas, a whole, changes this analysis. Texas is not a unitary entity. It is made up of many individual officers. If the relevant officers in the state are not adverse to the United States, then the court would lack Article III jurisdiction to issue a judgment against those non-adverse state court judges.

Third, the panel explains that there is no right to pre-enforcement challenge.

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.13

FN13: In fact, several lawsuits challenging S.B. 8 are currently pending in state court.  

Back in the day, the constitutionality of laws was assessed in defensive postures. Howard Wasserman and my colleague Rocky Rhodes explain this point well. And those defenses can be raised with S.B. 8 as well:

But we point out, as did the Supreme Court, that potential S.B. 8 defendants will be able to raise defenses before state courts that are bound to enforce theConstitution. See ibid. (noting the Court's "order . . . in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts").20

Footnote 20 references DOJ's suit:

We also note that United States recently challenged S.B. 8 by suing Texas in federal district court. See United States v. State of Texas, No. 1:21-cv-796 (W.D. Tex. Sept. 9, 2021).  

Yet, I think this argument would counsel against entertaining jurisdiction in United States v. Texas pre-enforcement challenge.

Fourth, the court explains that Whole Woman Health's theory of jurisdiction conflicts with the principles of federalism:

Plaintiffs' position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers.

These same concerns based on the separation of powers would affect DOJ's suit. Indeed, those concerns may be even more pronounced, as the federal government is hauling state governments into court.

Fifth, in a footnote, the panel strongly suggests that there are other jurisdictional hurdles:

We do not even take into account the many other justiciability defenses Defendants have raised beyond Young. Defendants have argued powerfully that, not only do they enjoy Eleventh Amendment immunity, but federal jurisdiction is also lacking under Article III. Related doctrines of standing, ripeness, and justiciability are also likely to prevail because these Plaintiffs have no present or imminent injury from the enactment of S.B. 8. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992).

The emphasized portion is the most important. If the actual abortion clinics do no have a "present or imminent injury," then the federal government–which does not actually perform abortions–cannot assert a "present or imminent injury." Kevin Walsh addressed "statistical likelihood" standing at Mirrors of Justice.

The panel favorably cites, of all cases, California v. Texas.

Nonetheless, for a federal court to proceed to the merits without certainty of jurisdiction "would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government." California v. Texas, 141 S. Ct. 2104, 2116 (2021) (citation omitted). 

Judge Engelhardt, who was on the panel, was also in the majority of the Fifth Circuit's ACA decision.

I agree with Howard Wasserman: the Fifth Circuit got the procedural analysis right with respect to the state court judges.

All of these points should now be circuit precedent. The district court can try to distinguish them, but that approach will probably lead to reversal.

NEXT: The Political and Legal Stars Are Aligned For Challenges to the OSHA Vaccine Mandate

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  1. I do enjoy the frustration of the vile feminists. Many states will copy this approach as it succeeds on appeal.

    However, millions of undesirable Democrats will be birthed as a result, with their social pathologies, their government dependencies, their criminality, their just awful electoral choices. A major factor in the drop in crime will be reversed. It will be, welcome to Detroit, America.

    Great job again, lawyer dumbasses. Actually, it is a good development for the scumbag lawyer profession, since they do well when the nation suffers.

    Hey, Artie, how’s your culture war going?

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  2. The ” fight ” appears to be over how to keep the trial on the merits OUT OF the Texas State Courts. Procedurally, the case in controversy can still reach SCOTUS but, if it proceeds through state court, the record/ finding of facts will not be in the ” friendlier confines ” of a forum shopped Federal District Court Judge.

    Abortion doesn’t suspend the rules of Federal or State Civil Procedure. Do like every other issue. Have a ” friendly ” litigation and challenge the Constitutionality of SB8. The litigation will proceed to SCOTUS by certiorari after Texas State Supreme Court.

  3. If this means of staying the Texas SB2 law until the Supreme Court can hear it on the merits fails, the DOJ may then have to turn to the very messy procedure Laurence Tribe has suggested: prosecute each Texas plaintiff under the 1871 Ku Klux Klan law, 18 USC 241 and 242.

    1. Why?

      Wouldn’t it be a lot easier to just help the defendants argue that the statute is unconstitutional?

      1. First, standing. Secondly, it would be in federal courts to begin with.

        1. Third, those plaintiffs-turned-defendants would deserve everything better people could impose on them.

    2. If Tribe’s kooky idea somehow works this time, I look forward to all the politicized prosecutions of Democrats and other Marxists under those same statutes for Antifa’s actual attacks on American citizens.

      1. How would the Ku Klux Klan act apply to Antifa?

        1. Section 1986, most obviously. Maybe also Section 1983 for the elected officials who actively work with Antifa to let them violate others’ rights. “Legislators recognized that the Klan’s political violence could not continue without tacit approval from local community leaders, and sought to stop the Klan by making community leaders financially responsible for terrorist acts they knowingly fail to prevent.”

          1. So, sue people under 42 USC 1986, and we will see how that comes out. Meanwhile, we are talking about the DOJ prosecuting people under 18 USC for violations of constitutional rights.

    3. If there is no standing to sue the Texas plaintiffs, how can there be standing to prosecute?

      1. If I understand your question, Josh Blackman is arguing that the State of Texas has no standing in the current suit by the DOJ against it to suspend operation of SB8, since the Texas law allows only individual Texans, to sue, not the state itself or its agents. What I am suggesting is that even if that is true, nothing would prevent the U.S. from prosecuting the individual Texans who bring these suits if the suits are for the purpose of denying under color of state law the constitutional right to seek an abortion.

        1. Have people been prosecuted for merely filing a lawsuit, in the absence of an injunction or restraining order forbidding them so?

          1. There is no legal requirement that criminal acts be enjoined before they may be prosecuted.

  4. Somehow I have the feeling that if SB8 was legislation that opened up bounties on gun owners who were violating the law and anyone even loosely connected to that, all of these same procedural legalisms about venue and jurisdiction and sovereignty would magically melt away into a faint mist. And the law would not survive 48 hours.

    Change my mind.

    1. It would remain, only the sides touting it would have flipped.

      To me these difficulties seem like saying government is doing nothing wrong, the judges are just a neutral enforcement framework to let people sue to get their slaves returned.

    2. Offhand, I don’t see why the procedural issues of that type turn on the policy merits of the substantive provision.

    3. Is there some basis for your belief other than a general conviction that people who disagree with you are operating in bad faith?

      1. I would call it motivated reasoning rather than bad faith.

        I suspect that all this BS seems perfectly clear and objective to Blackman, and to the SCOTUS majority – well, some of them – that refused to stay the law.

        But I also agree with Orbital Mechanic.

  5. As far as the DOJ suit goes, it seems foreclosed by Hollingsworth v. Perry, 570 US 693 (2013). The State of Texas is not a proper Defendant, and the U.S. therefore doesn’t have standing to complain against private parties.

    1. Could you elaborate? I’m not seeing the connection.

      1. There’s no government actor associated with the enforcement of the law. A private plaintiff and defendant who file a civil litigation in a state court. At most, state actor is a judge who hears the case but, it’s already established constitutional law that the mere fact that a judge is hearing a case is insufficient to be state actions or actor.

        The abortion providers don’t want to be in State Courts. They are looking for a way to get in federal courts where they can procedurally get an injunction without any trial record .

        1. So, it would not be state action for a judge in a civil suit to enjoin someone from going to church? Speaking? Owning a gun? Voting?

  6. OK, the commenters have convinced me, with the persuasive power of their repeated assertions and misdirections, that the precedents allowing states to be sued in U. S. District Court are correct (if the U. S. is plaintiff).

    But at least the state still have the right to sue the U. S. in the U. S. Supreme Court?

    Or is it a race to the courthouse, so that whoever invokes the district court first gets to keep the case in the district court even if it’s an appropriate vehicle for an original case in the U. S. Supreme Court?

    I mean, if the U. S. can sue Texas to interfere with Texas law, Texas can sue the U. S. to stop such interference, and what’s to stop them from going to the highest federal court, unless the race-to-the-courthouse doctrine applies and finally wipes out of the constitution the inconvenient provision that the Supreme Court shall have original jurisdiction where as state is party.

    And we can put that silly Federalist 81 into the memory hole:

    “The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.”…In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.”


  7. The argument supporting SB8 assumes that civil suits filed to prevent constitutionally allowed abortions are private actions, not state actions. But this same argument was used in New York Times v. Sullivan and roundly rejected by the Court.
    “Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only…. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.”

    New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S. Ct. 710, 718, 11 L. Ed. 2d 686 (1964)

    1. No the argument supporting SB8 is that Roe v. Wade is wrong and should be overruled.

      1. I agree that this statute will either do nothing but decorate the statute books or will be reviewable. And if reviewed it will be struck down under existing precedent, and could survive only if the Supreme Court effectively overturns Roe v. Wade.

    2. And, as happened in New York Times vs. Sullivan, once a plaintiff like Mr. Sullivan (say A) files a lawsuit against a defendant like the New York Times (say B) under the statute and one of the parties appeals the judgment, then the Supreme Court will unquestionably have authority to review the judgment and determine the constitutionality of the statute.

  8. Let me get this straight.

    A corporation is constitutionally a person, and yet a state doesn’t legally exist?

    If I were one of Texas’ capital prisoners, I’d love to be able to make the argument that the State of Texas lacks standing to execute me because it doesn’t really exist. Only individuals can execute me. But no individual was named as the plaintiff in the criminal case. So it’s not a valid case, brought by a non-existent party that has neither ability nor standing to do anything. So judge, let me out of this jail now!

    If the State of Texas has standing to be a plaintiff, I suspect it has standing to be a defendant.

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