The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday morning, S.B. 8 was in effect. On Wednesday evening, after the district court injunction, S.B. 8 was enjoined. On Friday evening, after an administrative stay, S.B. 8 went back into effect. But this stay is temporary. On Tuesday, the Department of Justice will file a brief arguing that a stay pending appeal should be denied.
This dispute presents a perennial question in constitutional litigation: what is the status quo? Or more precisely, what remedy should a court of appeal issue to preserve the status quo? There are three possible ways to understand the status quo in this case.
First, Texas will argue that S.B. 8 was in full effect from September 1 through October 7. The District Court injunction altered that status quo for a period of 48 hours. And during that period, some doctors performed abortions that were otherwise prohibited by S.B. 8. The Fifth Circuit entered a temporary administrative stay which restored the pre-injunction status quo. The ruling halted post-cardiac-activity abortions, at least till Tuesday. Therefore, Texas will argue, the Fifth Circuit should enter a stay pending appeal to maintain the pre-injunction status quo.
Second, the Department of Justice will argue that the District Court's injunction created a new status quo. And during that 48 hour window, some doctors performed abortions that were otherwise prohibited by S.B. 8. The Fifth Circuit's temporary administrative stay altered the post-injunction status quo. The ruling halted post-cardiac-activity abortions, at least till Tuesday. Therefore, the government will argue, the Fifth Circuit should decline to issue a stay pending appeal to maintain the post-injunction status quo.
There is a third option. For about five decades, Texas has not regulated abortions between the six-week mark and the point of viability. S.B. 8, which went into effect on September 1, altered that long-standing status quo. The District Court's injunction restored the pre-S.B. 8 status quo. The Fifth Circuit's temporary administration stay altered the pre-S.B. 8 status quo. And the Fifth Circuit should decline to issue a stay pending appeal to maintain the pre-S.B. 8 status quo.
Here, I see some parallels to the post-Windsor same-sex marriage litigation. Since time immemorial, marriage had been limited to opposite-sex couples. But starting in December 2014, District Courts throughout the country declared unconstitutional state bans on gay marriage. And many of those district courts refused to stay their rulings. Same-sex couples raced to city hall, and received marriage licenses. Some clerks began to issue licenses, even in the absence of a binding injunction. It became very unlikely that any court would retroactively nullify those marriage licenses. Thus, failing to issue a stay more-or-less settled the issue with finality. The longstanding status quo was irreparably altered.
Howard Wasserman and I wrote about this litigation in our article, The Process of Marriage Equality.
Following Windsor, federal district courts in more than two dozen states enjoined enforcement of bans on same-sex marriage. Judges then had to decide whether to stay those injunctions pending review. An injunction alters the status quo. A stay of an injunction suspends that alteration, while refusing to grant a stay allows that altered status quo to take immediate, and perhaps irreparable, effect. Here, the altered status quo meant issuance of hundreds or thousands of marriage licenses. In several cases, denial of stays triggered simultaneous races to the courts of appeals and to the altars, with couples trying to obtain marriage licenses before a higher court intervened. Many local licensing officials promptly (and eagerly) issued licenses, without waiting for an Article III-final judgment. State attorneys general frantically—and sometimes prematurely— sought emergency stays from the courts of appeals and the Supreme Court.
The analogy between same-sex marriage and S.B. 8 is not perfect. A marriage license could not realistically be nullified. But an abortion could give rise to liability up to four years later. Howard highlights a unique provision of S.B. 8 that potentially exposes abortion providers to liability, even if they relied on a then-valid district court injunction:
A provider can be liable for abortions performed in reliance on a "decision" that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal. So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction.
Still, I think the same-sex marriage litigation in the Fifth Circuit sheds some light on the path forward.
In November 2014, federal district court Judge Carlton Reeves issued an injunction against Mississippi's marriage law. The court stayed its injunction for 14 days so the state could appeal. In December 2014, a motions panel (Prado, Owen, Graves) granted a stay pending appeal. Judge Graves wrote the majority opinion in Campaign for Southern Equality v. Bryant. At that point, the Fifth Circuit had already schedule oral argument concerning similar appeals from Texas and Louisiana. Judge Graves, writing for the majority, explained that the best way to maintain the status quo would be to (1) grant a stay, (2) expedite consideration of the Mississippi case, and (3) hear the Mississippi case alongside the Louisiana and Texas cases:
Finally, while we recognize that Plaintiffs are potentially harmed by a continued violation of their constitutional rights, this harm is attenuated by the imminent consideration of their case by a full oral argument panel of this court. The court is scheduled to hear challenges related to Louisiana's and Texas's marriage bans in one month and has recently issued an order granting Plaintiffs' application to expedite their appeal and scheduled the case for oral argument before the same panel. Given that Plaintiffs' claims will soon be heard in conjunction with these two other cases, a temporary maintenance of the status quo balances the possibility of this harm with the need to resolve Plaintiffs claims in a manner that is both expeditious and circumspect.
Judge Graves also cited the need for "intra-circuit uniformity" during the pendency of the appeals. It would be create "confusion" to allow the Mississippi injunction to go into effect, while same-sex marriages were not permitted in Texas and Louisiana.
Further, considerations of intra-circuit uniformity and the avoidance of confusion, should this court lift the stay that is currently in place only to shift gears after individuals have relied on this change in law, also militate in favor of granting the State's motion.
The Fifth Circuit's stay in Bryant remained in effect until a few days after Obergefell. This delay proved the point that the Supreme Court's judgment in Obergefell was not self-executing to everyone, everywhere. The Supreme Court does not have the power of judicial universality. Indeed, LGBT groups agreed with this proposition, as they sought attorney's fees for post-Obergefell litigation.
I think the SSM litigation provides a path forward for the S.B. 8 litigation.
In December 2021, the Fifth Circuit will hear arguments in Whole Woman's Health v. Jackson. That case presents many of the same issues that are present in DOJ's appeal. It would be both "expeditious and circumspect" to resolve all of the issues in the same appeal. Moreover, denying a stay in DOJ's case would effectively nullify the stay granted in WWH. In other words, allowing Judge Pitman's ruling to go into effect would give WWH all of the relief they sought, and more. To promote "intra-circuit uniformity," a stay would be warranted, and the DOJ case should be heard at the same time as WWH. The Fifth Circuit could render a judgement by the end of the year, teeing up Supreme Court review for the current term. Here, I think a rocket docket appeal would be far more desirable than a shadow docket decision.
Finally, I do not think DOJ has an equitable cause of action. Even if the federal government faces irreparable harm, if the court agrees with me on the jurisdictional issue, there is a 0% chance of success on the merits. A stay is warranted on these grounds alone.