What's going on with Dobbs and the S.B. 8 Cases?

Still no decision on the Texas fetal heartbeat case.

When the Supreme Court placed the S.B. 8 cases on the rocket docket, I--and many others--predicted the Court would resolve the S.B. 8 cases before Dobbs was argued. No such luck. The Court faked us out last week with a water case. And no new opinions this week. Still no decisions in the Texas cases. What's going on?

I suspect that the Justices realized that both opinions would be very, very difficult to write. If you rule for the private clinics, you have to modify, or perhaps even overrule Ex Parte Young. (That case was argued 115 years ago today). If you rule for the United States, you have to identify some limiting principle to prevent the federal government from hauling the states into court. There are so many pitfalls in both decisions. And writing these rulings in a time crunch could have destabilizing jurisprudential consequences for generations. Any inclinations to rule quickly for the clinics, or the United States, would have been quickly dashed. The Justices likely realized that rushing out a decision before December 1 one way or the other was impossible.

Now, given that Dobbs may realistically overrule Roe, the urgency to untangle Jonathan Mitchell's genius brain-child is diminished. Once Roe is gone, S.B. 8 becomes irrelevant. At this point, the Court may simply hold both cases till Dobbs is decided, then DIG them. No muss, no fuss. I suggested this outcome the day after the Texas cases were argued.

Comments

[SuiteVoice]

> Once Roe is gone, S.B. 8 becomes irrelevant.

Eh, I expect other states will try similar gambits on other issues, so I expect the Court will have to find some way to address such abuses eventually.

[Kazinski]

EV had a post few months ago that convincingly explained how SB 8 was hardly unique, and the issues were very similar to Nike v Kasky (2003):

Challenging Unconstitutional Civil Liability Schemes, as to Abortion, Speech, Guns, Etc.

Congress could act to enhance the current procedures by allowing removal to federal court, and awarding attorney's fees when someone's private lawsuit plainly infringes a constitutional right.

Those lawsuits won't last long if they can be dismissed with a minimum of fuss and bother but still end up costing the plaintiff thousands in court costs.

[Devin Watkins 2]

I think the court will remand the cases as moot, not DIG them.

[Kazinski]

I don't think that word means what you think it means.

[Twindad46]

What is DIG?

[Kazinski]

There are 2 definitions that could apply:

1. Dismissed, Improvidently Granted.

2. Really like it.

[mtkesq]

Or the Supreme Court announces in Dobbs a new amorphous standard that women have to have sufficient time to know that they are pregnant which 15 weeks is. They then overturn SB 8 and other fetal heartbeat laws because not all women are “regular” with their cycles so by the time many women recognize that they are pregnant the fetus has a heartbeat.

[OtisAH]

The effects these laws and overturning Roe has and will have on women is not under much consideration in either case.

[Greg J]

Except if they were going to do that, they'd get the decision out ASAP, since right now 6+ week abortions have plummeted in Texas.

I believe that if they're going to stop the Texas law, they're going to do it Monday, at the latest.

And if they don't, it will be because they're going to nuke Roe and Casey

[ReaderY]

I think the fact that the SB8 cases have not heen decided is probably the strongest evidence available that the court is thinking about outright overruling Roe in one go rather than scaling it back somewhat and taking a more gradual approach. It suggests that Chief Justice Roberts isn’t getting any takers for his position. The Mississippi 15-week cutoff could be accommodated without flat-out overruling Roe if Chief Justice Roberts can persuade another justice to adopt the idea that the viability cutoff isn’t part of Roe’s essential holding. But the Texas heartbeat cutoff can’t be.

And as Professor Blackman says, if Roe gets flat-out overruled, then the special difficulties involved in dealing with SB8 simply go away. If SB8 is no longer violating anyones constitutional rights, there’s no longer a problem with its enforcement mechanism.

I don’t often agree with Professor Blackman. But he might be right this time.

[mtkesq]

I also would not rule out horse trading as a reason for the delay. Perhaps Kavanaugh and/or Barrett will go with the Chief and say SB8 goes too far but Dobbs does not, but they want SB8 decision to be broader to prevent a state like NY or CA from doing to 2A rights like Texas is doing to abortion. Roberts does not want to quickly put out SB8 because then there is no leverage if Kavanaugh and/or Barrett backtrack on Dobbs, and vice versa.

[Sarcastr0]

I could be wrong, but seems to me that the retroactive 'no overturned cases as a defense' makes some of the current litigation still live, if not the facial challenge stuff.

[Rev. Arthur L. Kirkland]

Do your damnedest, clingers.

Then . . . open wider!

[Life of Brian]

Ah, Artie. 'Tis but a flesh wound, right?

[John F. Carr]

A difficult case is taking time to resolve. One could even imagine a call for further briefing.

[WPHDM]

The Pre-judgment Cert Grants May Have Served Their Purpose

The appeal in Whole Women's Health v. Jackson is from the denial of jurisdictional defenses, not an appeal from a temporary injunction, not to mention a summary judgment. One option for the SCOTUS would be to reverse the decision of the Fifth Circuit to permit the private-person defendant (Dickson) to appeal along with the official-capacity defendants, and remand the claim against Dickson to the district court so the prelim. injunction request can go forward as to him only. Dickson is not an official-capacity defendant subject to sovereign immunity/Ex Parte Young, and whether he is a litigation risk to be properly restrained will involve a need for evidentiary development in addition to legal argument regarding the basis for imposing a prior restraint upon his right to access state courts and thereby (also) promote the anti-abortion cause. He might even have changed his mind about suing.

Same goes for the trio of private intervenors in USA v. Texas represented by Mitchell, except that these prospective/would-be SB8 claimants are entitled to appeal from the grant of the preliminary injunction that thwarted any plans to sue under SB8.

Assuming that the SCOTUS cannot kill off the USA suit without also terminating the private litigants that chose to intervene, an opinion in WWH v. Jackson could nevertheless address their posture collaterally. Perhaps they could be joined as defendants or intervenors in WWH v. Jackson on remand to litigate their issues along with Dickson. The SCOTUS could undo the cert grant in USA v. Texas, and let the Fifth Circuit proceed, or let it linger until Dobbs is done.

A more plausible assessment & outlook of the current limbo in regard to the two SB8 cases (plus the conditional cross-petitions) is that the pronto-grant of pre-judgment cert has served its (political) purpose. The SCOTUS has done something in response to the nationwide clamor over SB8, and now all attention is focused on Dobbs anyhow.

If Roe/Casey gets aborted at the tender age of nearly 50, the SB8 challenges will go poof, but that will not necessarily end related legal uncertainties, such as who has standing under state law to pursue a SB8 claim.

And the 14 pending cases in Travis County, Texas, that present constitutional challenges to SB8 under the Texas constitution will not be directly affected, except to the extent they indirectly rely on federal abortion precedents to buttress state-constitutional arguments.