What is the S.B. 8 Status Quo?

The Fifth Circuit can look to the same-sex marriage litigation for guidance.

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.

Comments

[Sidney r finkel]

Facts:

1. There is a Constitutional right to abortion prior to the fetus being viable outside of the womb. Roe and Casey state this and there is no controversy that this right exists absence one's belief that what the Supreme Court says is Constitutional is in fact Constitutional. You can have an opinion about abortion rights, but Roe and Casey are the only opinons that count.

2. The Texas law budens the right to abortion and therefore is Unconstitutional (although it could become Constitutional if/when the Court overturns Roe and Casey, but that ain't happened yet)

3. While the Texas law stands, a Constitutional right is abrogated and rendered meaningless.

4. Conservatives profess a love of the Constitution and thus are horrified at the legal skullduggery of the Texas law.

Okay, this last one is false, because conservative favor outcomes over principles. This will cease when some state like New York or California passes a law identical to the Texas one except it prohibits, say the sale and ownership of any and all automatic weapons.

But until that happens essentially the U. S. has ceased to become a Constitutional Republic and instead is a nation where any state can enact a law depriving citizens of any and all Constitutional rights.

We have met the enemy and it is not the Russians, or the Chinese or the North Koreans or the Klyngons, it is individuals who profess a belief in the rule of law based on the Constitution, but are willing to toss that concept over the side in return for an outcome favorable to their politics and prejudices.

[Allutz]

That New York law already exists in an even more restrictive way.

[Gandydancer]

2. The Texas law [unduly] budens the right to abortion and therefore is Unconstitutional (although it could become Constitutional if/when the Court overturns Roe and Casey, but that ain’t happened yet)

I've added the parenthetical b/c I believe that that is what you mean. And, anyway, it is only "undue budens" that Casey declares unconstitutional.

Which is why SB8 contains an undue burden section, to make it legal under Casey.

Which it is.

[not guilty]

You are wrong about Casey. The ¨undue burden¨ language there applies to regulations of abortion, not to bans of abortion prior to viability. Casey reaffirmed the essential holding of Roe v. Wade that a state may not prohibit abortion of a non-viable fetus.

[perlhaqr]

"This will cease when some state like New York or California passes a law identical to the Texas one except it prohibits, say the sale and ownership of any and all automatic weapons."

There are several states which ban the sale and ownership of automatic weapons, without any of the sort of legal skullduggery of SB8. Did you mean "semiautomatic" perhaps?

I do actually expect some state somewhere to try that, although I'm not quite sure how it would be phrased. Private right to action against people simply for owning semiautomatic firearms? It would probably be on slightly better footing to allow such a thing for the sale of them. I can't see the one on ownership holding up at all.

To be clear, I don't think any of it should stand, either in the case if SB8, or the hypothetical firearm law. It's possible that this sort of thing is actually legal (and it certainly seems to have thrown a huge monkey wrench into the legal system's immune system) but it very much strikes me as an abuse of the rules.

[Don Nico]

"because conservative favor outcomes over principles. "
Actually Sidney, that is a fault across the political spectrum.

[Sidney r finkel]

I cannot disagree with that. It's just that so-called conservatives claim the moral/spiritual/constitutional/principaled ground somewhat more than the rest of the populace, which makes their betrayal of the Constitution in this case a little more unacceptable. We had hoped they would be opposed to a 'work around' the Constitution.

In fact it has long been my opinion that given a choice between a democracy governed by Constitutional rights and procedures that produces policy outcomes in opposition to one's positions and a dictatorship/theoracy that produces policy outcomes consistent with one's position an overwhelming majority of Americans would choose the dictatorship, regardless of political party affiliation or political philosophy.

Certainly recent history supports this.

[robbbb]

Josh,
You have written extensively on how there can't really be a valid lawsuit to combat this law prior to it's taking effect and shutting down abortions. If that is true, doesn't it mean that a state legislature pass any law (carefully written) that could nullify or make illegal anything? Of course it might be overturned, but irreversible damage to some individuals might be done in the meantime. Or is it your position that this is regular state power and we should all get used to it? I don't understand where you stand on the general issue...

[Sidney r finkel]

I do not believe Prof. Blackman will answer that, in part because he cannot without either arguing against his legal position or taking the position that agrees with your analysis and saying that yes, a state legislature may enact any law that conflicts with Constitutional rights but will stand until it is litigated which of course will take years.

So I will try to answer for him, and I think this is what he and others who support the Texas law would say.

"Yes, a state may enact a law with enforcement provisions that mirror the Texas law, said law being clearly Unconstitutional but not subject to any preliminary injunction as long as the law results in producing policy with which I and others of my ilk agree. If such a law is enacted that produces a policy outcome with which I and others of my positions disagree, then said law may be immediately enjoined and will never take effect."

There, I hope that clears things up for everyone.

[Gandydancer]

“Yes, a state may enact a law with enforcement provisions that mirror the Texas law, said law being clearly Unconstitutional but not subject to any preliminary injunction as long as the law results in producing policy with which I and others of my ilk agree. If such a law is enacted that produces a policy outcome with which I and others of my positions disagree, then said law may be immediately enjoined and will never take effect.”

This monolog is of course an entirely imaginary and baseless projection of what is apparently YOUR intellectual dishonesty.

[Allutz]

Such is the existence of dozens of gun rights restrictions across the nation. Preventing the erosion of the 2nd Amendment is a long-running process of legal whack-a-mole.

[Gandydancer]

As Blackman has pointed out, SCOTUS can only enjoin enforcement of a law, not scrub it from the books. So, yes, a State Legislature can indeed pass a law that it views as Constitutional but SCOTUS does not. What, after all, could SCOTUS' remedy be against this? Prohibit the passing of such a law? Prohibit it being published? It cannot.

As the preamble to SB8 notes, the pre-'73 criminalization statutes for abortion remain on the books. The acts are illegal, only enforcement is enjoined.

SB8 does not in fact shut down (post-heartbeat) abortions. Dr. Braid went ahead and performed one, and announced that he had done so. Anyone suing him cannot be awarded either damages or costs. Whole Women's Health and Planned Parenthood, etc., could do the same.

[not guilty]

Wrong again. SB8 prohibits abortions once a so-called ¨fetal heartbeat¨ is detected, which occurs at about six weeks gestation. Dr. Braid´s admitted violation of SB8 risks an award of damages and costs.

[not guilty]

Every court that has addressed the merits of a six weeks abortion ban has ruled in favor of the challengers. The unconstitutionality of such bans is a norm which the Texas legislature upset by enacting SB8. Judge Pitman´s injunction restored the status quo as it existed prior to legislative action.

[ReaderY]

I do not think the Supreme Court should decide a major abortion case on a “rocket docket” basis. Thia issue has been around for half a century. The Supreme Court should be careful, deliberative, listen carefully to parties and amici, and take its time.

I think the most reasonable definition of “status quo” is the status quo before SB8 was enacted. And up until the moment that the Supreme Court, after due and careful deliberation, may decide otherwise, Roe and Casey remain the law of the land, and therefore have to serve as the basis for any preliminary decision including injunction requests.

The Supreme Court, indeed the federal judiciary as a whole, is a neutral, deliberative body of legal arbiters. It is not a bunch political activists eager to put their policy preferences into law or to stick it to the other side.

Regular order means that as soon as a party passes the Article III barrier, it gets an injunction in the lower courts, to be lifted (if at all) only by the Supreme Court, after careful deliberation, on the regular docket.

[Gandydancer]

In other words, "I want it my way as long as possible, so it should stay that way and SCOTUS should drag its heels." The pretense of judiciousness in this statement is entire unconvincing.

SB8 is legal and Constitutional. The 5th C should decide so, on the merits. What the “status quo” is doesn't really matter. Now, as last year, any abortionist can go ahead and provide an abortion free of any real concern that he will suffer any pentaly or injunction so long as he is unconcerned that Casey will be overturned, which, as it happens, I am reasonably sure wuill not happen to any significant degree, given that the list of "anti-abortion" GOP Justices includes poseurs.

[ReaderY]

Says someone who has not read any of ReaderY’s many comments over many years regarding the constitutionality of abortion laws.

[ReaderY]

And thank you for your clear vote of confidence in my judiciousness.

[Valkanis]

Here is the text of the Supremacy Clause:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding"

Here's Alexander Hamilton in Federalist #78:
"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.

Everyone already knows about Marbury v Madison, which explicitly declares that it is "emphatically the duty of the judiciary to declare what the law is." Not what the law is in a certain case, or to certain parties, but what it is.

Here's Justice Chase in Ware v Hylton:
"Four things are apparent on a view of this 6th article of the national Constitution.

1st. That it is retrospective, and is to be considered in the same light as if the Constitution had been established before the making of the treaty of 1783.

2nd. That the constitution or laws of any of the states, so far as either of them shall be found contrary to that treaty, are by force of the said article prostrated before the treaty.

3rd. That consequently the treaty of 1783 has superior power to the legislature of any state, because no legislature of any state has any kind of power over the Constitution, which was its creator.

4th. That it is the declared duty of the state judges to determine any constitution or laws of any state contrary to that treaty (or any other) made under the authority of the United States null and void. national or federal judges are bound by duty and oath to the same conduct."

Based on this we see that in 1796 it was not a question, but a known fact, that it is not a judicial decision, but the constitution itself, which renders incompatible laws and state constitutional provisions non-existent. The decisions of the Supreme Court establish what the law is; the universal nature of the constitution renders said provisions void.

None of this founding-era evidence supports the notion advanced by Borkists such as Blackman that courts can't "strike down laws." Indeed they can. A law that is not constitutional does not exist, from the moment it is "passed"; it is axiomatic that due process of law means that a law that doesn't exist cannot be used as a basis for a case against anyone; any filing based on such a "law" is inherently frivolous at the moment of filing. The fact that SB 8 is enforced by private action is irrelevant.

There is no controversy; until the Supreme Court overrules Roe and Casey, they are the Law of the Land. It doesn't matter what you think about abortion. Therefore, it is an indisputable fact that S.B. 8 is void. There is no potential for crippling liability, as liability for violating a non-existent law cannot exist.

The chilling effects from the possibility of liability for such a "law" inherently gives rise to an equitable cause of action. The existence of the "law" itself violates the rights of everyone in Texas. No statue or procedure can nullify any Constitutionally-protected right, regardless of whatever it may say. The 14th Amendment, by its clear terms, says that no state "shall" violate due process. It doesn't say they can if they come up with a clever procedure. It doesn't matter what procedural tricks the "law" has. To hold otherwise would literally allow any state to nullify any right by simply repeatedly passing a law allowing private suits against anyone engaging in said protected activity, over and over again, on a continuous basis, so that there would always be cases pending. And as the ex post facto provision only applies to criminal laws, retroactive liability would mean that no one would ever be safe. This is not far-fetched at all: it's what the authors of SB 8 want.

California could prohibit worship of Christianity; Washington could prohibit not grading based on race, etc; supposedly the only thing that could be done is to defensively raise Constitutional challenges after suit, paying court costs each time. It is axiomatic that exercising rights cannot be made contingent on paying fees or costs.

The fact that the a majority of the current court endorses this tyrannical insanity is a massive, despicable embarrassment. Don't even try to say that the democratic process is a check, because it isn't. The Constitution places certain actions outside the reach of democratic action; that is literally the entire point of its existence. If that were not the case, there would not be a basic law in the first place. Any common law rules or procedures that violate this principle do not exist in America, or at least cannot be applied in a way that violates it. Also, the majority of Texans support the law and will not vote against those who crafted it! There is literally no remedy.

One last thing, as I recall a recent posting mentioning that the principle of a "right having a remedy" not being true, as even Marbury didn't end up getting his commission. But this is a misunderstanding; Marbury's "right" was statutory; it is a creation of governmental action and therefore can theoretically be limited by governmental action. But natural rights are not statutory, and always can be vindicated, any contrary procedure notwithstanding.