Five Thoughts on the Timing of U.S. v. Texas and WWH v. Texas

On Thursday, Texas must respond to the SG's Emergency Application and WWH's Petition for Cert Before Judgment.

Today, the Department of Justice filed an emergency application with the Supreme Court in United States v. Texas. Circuit Justice Alito ordered the response due on Thursday, 10/21 at noon.

Also today, the Supreme Court entered an order in Whole Woman's Health v. Jackson:

Petitioners' motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondents are directed to file a response to the petition on or before noon on Thursday, October 21, 2021.

In short, Texas will have to file two important briefs by Thursday. Why the urgency? Whole Woman Health's motion to expedite has been pending for since September 23. Indeed, Lyle Denniston complained that the Court wasn't acting promptly enough! But today the Court grants WWH's motion to expedite shortly after DOJ's emergency application was granted. What gives?

Tomorrow will be 3 weeks since Texas abortion clinic asked SCt to expedite its petition challenging 5th CA handling of SB 8 (Texas ban on abortions at 6 wks). Two proposed response dates passed with no action. What's the problem?

— Lyle Denniston (@lylden) October 13, 2021

Here, I will engage in some SCOTUS Kremlinology, which is terribly unreliable.

First, expediting consideration of a motion for certiorari before judgment takes five votes. But once the motion is expedited, only four votes are necessary to grant. Why were there five votes to expedite in WWH II? I think it is safe to assume that the four dissenters from WWH I voted to expedite. Thus, either Kavanaugh or Barrett provide the fifth vote. (Circuit Justice Alito could have unilaterally granted the motion to expedite, but I think that option very unlikely--especially given the delay). Does that breakdown mean that Kavanaugh or Barrett would vote to grant cert, or rule for WWH? Not necessarily. Why? The answer turns on the timing of DOJ's strategy.

Second, the SG filed an emergency application for a stay, but asked the Court in the alternative to construe the application as a petition for certiorari before judgment. By its very nature, the emergency application will be considered on an expedited basis. There is no need to garner five votes to expedite. Thus, four Justices could grant certiorari before judgment in U.S. v. Texas, and add the case for review this term. It would have been futile for the conservatives to vote against WWH's motion to expedite. There were already four votes to hear DOJ's case this term. The conservatives cannot keep DOJ's case off the docket. The progressives and Roberts were going to force this issue. But Kavanaugh and Barrett can call their bluff. Given this posture, it makes sense to expedite consideration of both cases to give the Court the fullest menu of options to decide the validity of S.B. 8. Then decide all the cases on the merits.

Third, what about DOJ's motion for a stay? Even if there are five votes to expedite the WWH appeal, I do not think there are five votes to grant a stay in U.S. v. Texas. DOJ faces many of the same problems that WWH faced last month. True enough, DOJ's appeal eliminates the sovereign immunity issue. But the Court's per curiam order did not even mention sovereign immunity. (Roberts's dissent did). Rather, the Court explained that "federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves."  It is not "clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit." There are very weak grounds for a stay. Moreover, DOJ has deviated from DOJ's longstanding position on equitable jurisdiction. To find equitable jurisdiction here would open the federal courthouse door to countless challenges to federal and state action. I doubt the Court wants to blow up equitable jurisdiction jurisprudence for this single case.

Fourth, I have long thought that the Court would hear both U.S. v. Texas and WWH v. Texas this term, on the rocket docket, rather than the shadow docket. The Court could, in theory, super-expedite proceedings so U.S./WWH are heard in December along with Dobbs. That approach would allow the Justices to decide all of the cases at the same conference. Or, the Court can hear Dobbs in December, and U.S./WWH in January or February. All three cases could be decided by the end of June. But S.B. 8 will remain in effect for the interim.

Fifth, it is possible five or six Justices vote to vacate the Fifth Circuit's stay in U.S. v. Texas, thus reimposing the district court's injunction. Does that mean there are five votes to affirm the District Court? Historically, when the Roberts Court grants a stay, it reverses the lower court. Also, Justices who grant a stay may "lock themselves in" on the final disposition. (This anchoring effect is often used to criticize the shadow docket). However, this case may be different. Under current abortion jurisprudence, S.B. 8 is unconstitutional in many regards. But if the Court overrules--or modifies--Roe and Casey, then S.B. 8 becomes constitutional in many other regards. Thus, the Justices could conclude that putting S.B. 8 on hold pending Dobbs may make sense. I think DOJ's likelihood of success on the merits is 0%, given the lack of an equitable cause of action. Still, I do not think the granting of a stay spells certain defeat for Texas.

This Term will be one for the ages.

Comments

[Michael Masinter]

The audacity of the Texas legislation counsels the entry of a stay. Whatever the views of the Court may be on modifying Casey, the institutional power of the federal judiciary in the face of a state's effort to emasculate it looms as a much larger issue. I do not think the Court will so easily disembowel the supremacy clause by hobbling the power of the federal courts to enforce it, the views from the Emerald Isle notwithstanding.

[Michael D]

I am unsure how the supremacy clause is in play here. Can you elaborate?

[Michael Masinter]

Texas seeks to empower its citizens, acting on its behalf, to enforce a patently unconstitutional law. Cooper v. Aaron and Green v. New Kent County Schools are good starting points; until and unless SCOTUS says otherwise, Roe / Casey bind Texas and impose under the Supremacy Clause an obligation to comply rather than to erect barriers to compliance. Clever attempts to circumvent that obligation should come to naught unless the Court is willing to surrender the institutional power of the federal courts to enforce the constitution.

Note that unless SCOTUS completely overrules Roe, Casey and a host of other cases, Texas will be powerless to ban all abortions in and after the sixth week of pregnancy.

[DWB]

Citizens acting on their own?

Without permission?

Not following orders???

The audacity -- damn uppity slaves!

[Gandydancer]

SB8 is NOT "patently unconstitutional". It doesn't propose to violate Casey until or unless Casey is overturned and will remain a nullity until or unless Casey is overturned. In this it is identical to the pre-'73 anti-abortion laws that are still on the books in TX. The only difference is that it's ready to go should Casey be overturned without the necessity of undoing injunctions against its enforcement.

[Michael Masinter]

That's a peculiar reading of a statute that is already in effect and that imposes liability for abortions that occur in violation of its terms today. No provision of SB8 purports to delay its effectiveness until Casey is overturned.

[Gandydancer]

You might think that if you restrict your sources of information to those who, like Denniston, determinedly refuse to recognize that a heartbeat is a heartbeat and therefor insist on calling SB8 (inaccurately) a "ban on abortions at 6 weeks". The provision of SB8 that makes it a nullity until or unless Casey is overturned is Sec. 171.209. Abortion, except to save the life of the mother or a few other exceptios, is already criminal in TX. Only enforcement is enjoined. See Sec. 2.
https://legiscan.com/TX/text/SB8/id/2395961

[not guilty]

Do you dispute that embryonic cardiac activity becomes detectable at about six weeks l.m.p. and/or that SB8 prohibits abortion from that point forward?

[Brett Bellmore]

Cardiac activity ordinarily becomes detectable about then, yes. Not always. In cases where it doesn't, SB8 permits abortion at any stage. It also permits abortion to save the mother's life.

So, while most abortions after about 6 weeks would be prohibited, not all of them would be. Rather than being a ban on abortions after 6 weeks, it is a ban on abortions under circumstances that usually occur after 6 weeks.

The distinction is not particularly subtle, IMO.

[not guilty]

According to the record before the trial court, an electrical impulse indicating embryonic cardiac activity can occur very early in pregnancy, as soon as six weeks LMP or sometimes sooner. Your assertion that in cases where it doesn’t, SB8 permits abortion at any stage is inaccurate. Embryonic or fetal cardiac activity occurs at an early stage, and SB8 thereafter prohibits abortion, notwithstanding controlling SCOTUS precedents.

Don´t try to defend Gandydancer´s foolishness. He is shamelessly dishonest and has no clue whereof he speaks.

[Brett Bellmore]

" Your assertion that in cases where it doesn’t, SB8 permits abortion at any stage is inaccurate."

It's literally what the stinking law says. Read it, why don't you, instead of calling people who have read it "liars".

And, yes, sometimes you won't get a fetal heartbeat at 6 weeks, or 8, or 10, or 23. It's called "intrauterine fetal death", aka "miscarriage".

[not guilty]

The relevant language of the Act provides:

Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.
(b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.

Nothing in there states that where cardiac activity is not detected at six weeks, the Act permits abortion at any stage. You are at best mistaken in your assertion.

[Brett Bellmore]

My God, I'm starting to think you're incapable of understanding the written word if it contradicts you preferences.

The physician has to test for a fetal heartbeat. If he doesn't find one, he can go ahead with the abortion liability free.

It says nothing at all about 6 weeks, that is merely about the earliest you'd detect one. At any stage in the pregnancy, he has to test for a heartbeat, and at any stage of the pregnancy, if he doesn't find one, he can go ahead with the abortion.

[not guilty]

You are the one discussing six weeks. Your words:

Cardiac activity ordinarily becomes detectable about [six weeks,] yes. Not always. In cases where it doesn’t, SB8 permits abortion at any stage. . . .

So, while most abortions after about 6 weeks would be prohibited, not all of them would be. Rather than being a ban on abortions after 6 weeks, it is a ban on abortions under circumstances that usually occur after 6 weeks.

[David Nieporent]

And, yes, sometimes you won’t get a fetal heartbeat at 6 weeks, or 8, or 10, or 23. It’s called “intrauterine fetal death”, aka “miscarriage”.

"This law doesn't ban abortions after six weeks because if the fetus is already dead from a miscarriage you can have it removed" is a bad faith argument even for you, Brett. (For one thing, that wouldn't be an abortion.)

It is true that embryonic developmental stages are approximate, and therefore some women could get an abortion at seven weeks under SB8. This is a pointless nitpick that adds nothing to this discussion.

[Brett Bellmore]

"No provision of SB8 purports to delay its effectiveness until Casey is overturned."

I gather you've never bothered to actually read SB8?

[not guilty]

Still lying about the content of SB8? The Act subjects abortion providers to multiple actions for damages for conduct that is plainly constitutionally protected. Even a final judgment on the merits at or before trial based on Roe v. Wadeand Planned Parenthood v. Casey does not have preclusive effect in other suits, even involving the same abortion. Hardly a nullity.

Every so-called ¨fetal heartbeat¨ law that has been considered on the merits has been enjoined based upon Roe and Casey. Even such a partisan shill as Professor Blackman acknowledges that under current abortion jurisprudence, S.B. 8 is unconstitutional in many regards. Still you persist in your dishonest ipse dixit. Shame on you.

[Brett Bellmore]

" Even a final judgment on the merits at or before trial based on Roe v. Wadeand Planned Parenthood v. Casey does not have preclusive effect in other suits, even involving the same abortion. "

" (c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter."

So you only get to lose once per abortion if you pay the damages, and since the courts can't entertain suits without remedies, demonstrating that you'd already paid for a particular abortion should get you out of any further lawsuits over it.

[not guilty]

That is not what I was referring to. A judgment in favor of the provider has no preclusive effect as to other litigation. A successful defendant remains subject to suits by additional plaintiffs, even for the same abortion, until the four year period of limitations expires.

[dwb68]

Take a deep breath. exhale. repeat that a few times.

Now come to realize, abortion clinics can defend the (un)constitutionality of the law the normal way, when they get sued.

[Gandydancer]

And if damages, court costs, or injuncive relief are awarded (how?) then the Federal courts can rules on their unconstitutionality. The Supremacy Clause is in no way implicated here.

[not guilty]

Unfamiliar with Younger abstention and comity? No federal court other than SCOTUS would exercise jurisdiction, and any grant of certiorari is discretionary.

[David Nieporent]

The "normal way," in which courts rule after suits are filed under a statute that the statute is unconstitutional, would result in future cases being deemed frivolous. But SB8 says that it doesn't matter! One can't get sanctions against the statute for filing frivolous lawsuits. So, Doctor A gets sued by Person A for performing an abortion. He defends himself successfully on the grounds that SB8 is unconstitutional. Now Person B sues Doctor A for the exact same abortion. He has to defend himself again. There's no preclusion; he has to persuade another judge that it's unconstitutional. Now Person C sues him. Now the judge decides that he can't afford to keep performing abortions.

This is not "the normal way." This is not the way it works for any other statute.

[Mike R]

Speaking of Kremlinology -- Would it make any sense to plead the 'privileges or immunities' clause of the 14th amendment? This specifically prevents legislatures from 'mak[ing] ... any law which shall abridge the privileges or immunities of citizens...' which SB 8 does if abortion rights are privileges of citizens. Reinvigorating the clause to cover constitutional rights (as the Reconstruction Congress apparently intended) has been a pet project of Justice Thomas for ages; could this be a way of drawing his vote into the mix? Would he be willing to trade SB8 for a majority vote reinvigorating the clause?

[Gandydancer]

Abortion rights are privileges of citizens only so long as SCOTUS says so. And SB8 won't "abridge" them so long as Casey remains law. So your premise is wrong.

[not guilty]

¨It is emphatically the province and duty of the Judicial Department to say what the law is.¨ So wrote Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137, 177 (1803).

You got a problem with that?

[not guilty]

I don´t think privileges and immunities has been raised in the lower courts.

[DWB]

HURRY!!!! Them babies ain't gonna kill themselves!!!!!

[dwb68]

" Does that breakdown mean that Kavanaugh or Barrett would vote to grant cert, or rule for WWH? Not necessarily. Why? The answer turns on the timing of DOJ's strategy."

Maybe. Justices often give courtesy 5th votes on issues (see Breyer's recent comments). Might not mean a thing.

Also, by now, I am pretty sure the justices know which way Dobbs is going to go.

Just to be clear, I think SB8 is a terrible precedent to set. If upheld, it will provide a model for blue states to restrict all sorts of rights like the 2nd amendment. At the same time, the Supreme Court should not get cornered into a hurried, poorly considered opinion without adequate time to percolate in the lower court.

[Jimmy the Dane]

The left already has models just like SB8 to abridge a bunch of your rights. Guns and "red flag laws" are a great example. Don't like your neighbor and know he owns guns? Just file for a temporary red flag order, get all of his guns taken away, and make him spend thousands in legal fees to get them back.

[not guilty]

It is at best counterintuitive to claim that a cause of action for injunctive relief does not exist in a court of equity,

[Jimmy the Dane]

You only have a constitutional right to whatever if it fits into the left wing paradigm. That is it. The constitution is no longer a "permanent thing" just merely a vehicle on which the left forwards its agenda. The right to kill babies is sacrosanct to feminism so the court is expected to say "how high" when the lefties demand it jumps. But, if the subject is the Second Amendment all the sudden you right does not matter. The same logic says the government can force you to take an unnecessary medical treatment, but you should have the "choice" on whether or not a baby lives or dies.

This is how civilizations fall and I don't see how we make it even more than a few years before collapse happens.

[not guilty]

Professor Blackman´s assertion that ¨[t]o find equitable jurisdiction here would open the federal courthouse door to countless challenges to federal and state action¨ is unpersuasive. Before the district court the DOJ offered three limiting principles to determine when the United States may bring a suit in equity to vindicate the rights of citizens: (1) a state law violates the constitution, (2) that state action has a widespread effect, and (3) the state law is designed to preclude review by the very people whose rights are violated. Judge Pitman seemingly agreed with these limiting criteria, opining that ¨under the circumstances present here, it is substantially likely that the equitable cause of action has firm support, and the United States may seek an injunction against the State.¨

If SCOTUS (or Congress) is concerned about opening the floodgates for the Attorney General to sue states willy nilly for violating citizens´ constitutional rights, either body knows how to adopt limiting criteria.

[not guilty]

A grant of certiorari prior to judgment makes sense in both Whole Woman´s Health v. Jackson and United States v. Texas, so that those cases can be decided along with Dobbs v. Jackson Women´s Health Organization. The Fifth Circuit stay in the DOJ action should be dissolved in light of the substantial irreparable harm to abortion providers (and more especially to their patients), along with the public interest in the unfettered exercise of constitutional rights.

The State of Texas has been running like Derrick Henry away from any defense of the constitutional merits of SB8. It is time to call their bluff.

[Brett Bellmore]

"and more especially to their patients"

Well, half of them, anyway. The other half suffer irreparable harm if the stay is lifted.

[not guilty]

WTF? What ¨other half¨of patients?

[Brett Bellmore]

Well, duh: The patients who would be aborted, obviously. Don't be so dense.

[not guilty]

Where in the world do you get the idea that a fetus is the patient of an abortion provider? That is ridiculous.

[Brett Bellmore]

Of course they're patients. The abortionist is subjecting them to treatment, anybody a doctor treats is a patient.

It's just that this treatment is intended to kill the patient.

Look, I realize you want to pretend the only people involved are the mother and the abortionist. That there's nobody else in the room. That's an understandable desire for an abortion advocate, but not one any opponent of abortion is going to feel obligated to humor.

[Sarcastr0]

This is some wildly awful semantics-cum-question begging, and I'm sure you know that.

And abortion advocate is not right - it's pro choice, not pro abortion. We have the courtesy to call you pro life despite our quibbles, you'd think you could do the same.

[not guilty]

Don´t be absurd. An abortion provider never enters into a physician-patient relationship with the fetus. Unless you are using the word ¨patient¨ as Humpty Dumpty described his use of language to Alice in Through the Looking Glass.

[fafalone]

Breyer, Kagan, and Sotomayor are all progressives now? The first two just barely qualify as liberal. Sotomayor is arguable. But what a warped view of the political spectrum, but I guess it comes with not being a complete idiot but still being slimy enough to defend every Republican position as reasonable no matter how odious it is.