The Volokh Conspiracy
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The oral argument in Whole Woman's Health v. Texas was a bit of a bait-and-switch. It became clear that the petitioner had backed off their claim that state court judges were proper defendants. Now, WWH, as well as the Solicitor General, pivoted to the clerks of court. This claim is problematic for many reasons.
As a threshold mater, this argument ignores the nuances of Texas law. Texas Rule of Civil Procedure 22 provides:
A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.
Texas SG Judd Stone explained:
I might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it's actually not even clear that injunctive relief against a court clerk would give him what he wants because, under Texas Rule of Civil Procedure 22, a petition is deemed filed upon receipt by the clerk. So the clerk doesn't have the opportunity to reject that petition.
In other words, a complaint is filed without regard to the actions of the clerk. Before the clerk even realizes the complaint raises a claim under S.B. 8, the civil suit was already commenced! I'm sure the former civil procedure professors on the bench can take judicial notice of this rule.
Moreover, even if the clerk cannot docket a complaint, the presiding judge can do so. Justice Alito raised this point during argument:
JUSTICE ALITO: What if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don't want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I'll docket it myself? Then what?
Beyond this practical problem, there are several due process issues.
This remedy would be significantly overbroad. What if a Plaintiff filed a complaint that raised several causes of action, only one of which was S.B. 8? Under the proposed remedy, the clerk would have to bounce the entire complaint. I don't think a clerk, a mere ministerial employee, has the power to redact a complaint. Moreover, if the various claims formed the basis of subject matter jurisdiction–for example, satisfying an amount-in-controversy requirement–knocking out one claim would deprive the court of subject matter jurisdiction. Or what if the complaint was filed right before the statute of limitations ran? Now, the claim would be precluded. This remedy would lock the courthouse door to entirely lawful claims.
Finally, this remedy presumes that S.B. 8 is unconstitutional in all regards. The lawyer for WWH said S.B. 8 is "patently unconstitutional." And he said, under WWH, Courts are not to perform any severability analysis. The entire law must go! This argument is fundamentally flawed. And courts must perform severability; the failure to do so in WWH was one of Justice Breyer's weakest moments. Apparently, the requirement to install smoke detectors in abortion clinics imposes an undue burden on abortion. Once again, Justice O'Connor's adage was apt: "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." Add severability doctrine to that list.
Additionally, there are applications of the law that are potentially constitutional. For example, it isn't clear that insurance companies have a constitutional right to fund abortion. Third-party doctrine has not been stretched that far. Maybe the answer is yes. Maybe the answer is no. But the courts can sort out that issue.
Update: Justice Gorsuch asked a question about possible constitutional applications of the law:
JUSTICE GORSUCH: And what about the cases where S.B. 8 could be constitutionally applied, consistent with Roe and Casey? Should they [the clerks] file those lawsuits? Should they try and determine whether –which side of the line they fall on? I mean, post-viability, not for medical reasons, you know, that would meet a Roe and Casey test? Are they supposed to apply Roe and Casey themselves?
Jonathan Mitchell represents intervenors who plan to test the boundaries of this claim. He raised this argument during arguments:
The intervenors intend to sue those who violate Senate Bill 8 but only in response to conduct that falls outside the protections of Roe and Casey. The United States cannot seek or obtain relief that thwarts the enforcement of S.B. 8 in those situations. The statute contains emphatic severability and saving construction requirements, and courts are obligated to preserve the constitutional applications of statutes to the maximum possible extent.
The United States also cannot seek or obtain relief that would prevent private individuals from suing under S.B. 8, because any such relief would be a flagrant violation of the Due Process Clause. A federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party. And a federal court cannot foreclose those individuals from suing under S.B. 8 when they have been given no opportunity to defend the merits of the lawsuit that they intend to bring.
An overbroad injunction would prevent all of these plaintiffs from litigating their interests in court. This remedy would deprive countless plaintiffs of access to the courts. Abortion clinics are not the only entities in our polity with due process rights.
At bottom, the "clerk" argument sounds in judicial supremacy. There must be someone to sue, so we'll enjoin the hapless clerk. Wrong. There are no "loopholes" or "chinks" in federal law. The law either permits a suit, or it doesn't. And if the law is flawed, then Congress can make a change. A penalty is not a tax. A state exchange is not a federal exchange. Not every right has a remedy. Remember, Marbury was dismissed for a lack of jurisdiction. Even John Marshall understood that maxim.
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