SCOTUS may soon overturn Roe v. Wade, but, until then, an injunction would restore long-established legal precedent in the Lone Star State...
[UPDATED 10/6/21: Judge grants preliminary injunction; temporarily enjoins state ban] [UPDATED 10/8/21: 5th Circuit grants temporary administrative stay][UPDATED 10/15/21: DOJ will ask Supreme Court to lift 5th Circuit stay]
By Ernest A. Canning on 9/29/2021, 10:05am PT  

On Friday, U.S. District Court Judge Robert L. Pitman is scheduled to hear oral arguments on Texas' new anti-abortion law, S.B. 8 in the federal government's Emergency Motion for a Temporary Restraining Order or Preliminary Injunction [PDF]. He is likely to rule in favor of the federal government.

If granted, the ruling by Judge Pitman, an Obama appointee, would temporarily prevent enforcement of the new Texas statute banning pre-viability abortions performed on or after 6 weeks of pregnancy, before many women even know they are pregnant. That preliminary injunction would, for now, restore the status quo ante --- the state of the law in Texas prior to Sept. 1, 2021, when S.B. 8 first went into effect.

Unless overturned on appeal, the preliminary injunction would then remain in effect pending a final decision on the legal issues raised by the U.S. Department of Justice (DOJ) in the federal Complaint it filed in United States v. Texas.

The issuance of a temporary injunction by Judge Pitman would not be inconsistent with the U.S. Supreme Court's recent 5-4 rejection of a private medical provider's similar request for an injunction in Whole Woman's Health v. Jackson, the initial federal challenge to the Lone Star State's new law.

As the DOJ argues in its filing, no one, not even Texas, contends that S.B. 8's pre-viability abortion ban --- one that also contains no exception for unwanted pregnancies due to rape or incest --- is Constitutional under existing federal law. To the contrary, even in the first case, Whole Women's Health, the right-wing Supreme Court majority conceded the medical provider plaintiff "raised serious questions regarding the constitutionality of the Texas law at issue".

The core problem which prevented the issuance of an injunction in the initial case arose from "uncertainties" both as to federal court jurisdiction and whether any of the named defendants in that case could lawfully be the subject of a federal court injunction.

Those "uncertainties" arose because S.B. 8 was specifically designed to prevent challenges to its constitutionality in federal courts. The statute was crafted to prevent the Executive Branch of state government from enforcing the 6-week abortion ban. Instead, according to the DOJ's Complaint, S.B. 8 "deputized ordinary citizens to serve as bounty hunters who are statutorily authorized to recover $10,000 per claim from individuals who facilitate a woman's exercise of her constitutional rights."

In Whole Woman's Health, a legal concept known as State sovereign immunity prevented the plaintiff from naming Texas as a defendant. Because the statute prevents enforcement of the Act by members of the state's Executive Branch, the private medical provider was unable to seek an injunction against anyone working for that branch of the Lone Star State. There's legal uncertainty as to whether the State court judge, who was a named defendant in the case, could be enjoined by a federal court. The only potential private "bounty hunter" named in the medical provider's complaint filed an affidavit with the U.S. Supreme Court, asserting he had no present intent to file an S.B. 8 enforcement lawsuit.

The Supreme Court's "shadow docket" majority decision held that those "uncertainties" warranted a denial of the private medical provider's request for injunctive relief in Whole Women's Health. However, that same majority expressly noted their decision "in no way limits other procedurally proper challenges to the Texas law."

Texas cannot assert sovereign immunity when it is directly sued by the federal government in a case that alleges a State enactment violates the sovereignty of the United States. Thus, the DOJ's case, United States v. Texas, is a "procedurally proper" challenge...

14th Amendment and the Supremacy Clause

Ordinarily, the DOJ cannot file a lawsuit to protect against a State's violation of individual rights guaranteed by the 14th Amendment to the U.S. Constitution in the absence of a Congressional authorization to do so. The rationale for this limitation arises out of the fact that individuals who face an imminent threat to their constitutional rights can seek a federal court injunction that would prevent State officials from enforcing an unconstitutional scheme.

"Normally," the DOJ notes in its Emergency Motion, "a statute that so successfully stripped a state's citizens of their constitutional rights would fall victim to a slew of pre-enforcement challenges. But Texas has sought to save S.B. 8 from that fate by washing its hands of responsibility for enforcing the law."

Here, in the wake of Whole Woman's Health, Texas not only succeeded in eliminating the availability of federal injunctive relief to individuals, but also created a Hobson's Choice for medical providers: run the risk of financial ruin by continuing to offer abortions in order to challenge constitutionality in multiple state court proceedings, or evade all litigation by ceasing to provide abortion services altogether.

One Texas physician recently publicly revealed he'd performed a pre-viability, post-6-week abortion in order to contest the constitutionality of S.B. 8 in state court. That one case appears to be the exception. S.B. 8, per the DOJ's Emergency Motion, "has had the desired effect of deterring abortion providers from offering any abortions."

The DOJ argues in its motion that the Lone Star State's success in closing the federal courthouse door to individual litigants in Whole Woman's Health amounts to an "affront" to the Supremacy Clause of the U.S. Constitution, thereby enabling the DOJ to directly challenge the constitutionality of S.B. 8 in United States v. Texas...

The Act's design...converts an already severe intrusion on constitutionally protected rights into an effective blockade of those rights. That scheme is plainly irreconcilable with the Fourteenth Amendment, and amounts to an unprecedented and impermissible attempt to circumvent the supremacy of the U.S. Constitution itself.

The Interstate Commerce Clause

In its Emergency Motion, the DOJ wrote...

It is well established that the United States may seek equitable relief to protect federal interests, including injuries to its sovereignty. The Supreme Court has consistently applied this principle, including in In re Debs, 158 U.S. 564 (1895), in which the Court recognized that the United States had authority to seek an injunction against the Pullman rail strike...The Supreme Court has repeatedly recognized the authority of the United States, even without an express statutory cause of action, to seek equitable relief to vindicate federal interests and constitutional guarantees, including alleviating burdens on interstate commerce.

By the time it filed its Emergency Motion, the DOJ had that which was not available to the Supreme Court when it handed down its decision in Whole Woman's Health: evidence of the ongoing detrimental impact upon interstate commerce that ensued after S.B. 8 was allowed to go into effect. As the DOJ argues...

Not only has S.B. 8 imperiled the rights of Texas residents, it has had an extreme impact on the rights of women in other states, including Oklahoma, Kansas, Colorado, Nevada, and New Mexico. Since S.B. 8 took effect, clinics in Tulsa and Oklahoma City have "seen an overall staggering 646% increase of Texan patients" as compared to the first six months of the year...Texas residents are claiming between 50% to 75% of appointments available at Planned Parenthood's Oklahoma health centers, causing women in Oklahoma to face a scheduling backlog.

The flood of pregnant women, many of whom, in the midst of a pandemic, have driven hundreds of miles and crossed state lines in order to protect their reproductive rights, underscores the fact that abortion services, like the rail services in Debs, are a part of interstate commerce. This factor, in and of itself, establishes that United States v. Texas is a "procedurally proper" challenge to S.B. 8.

Preemption and Intergovernmental Immunity

Another aspect of the Supremacy Clause is that State laws are preempted when they run afoul of federal laws and regulations.

The DOJ argues that S.B. 8 is, therefore, preempted because it "purports to prohibit federal personnel and contractors from carrying out their federal obligations to assist in providing access to abortion-related services to persons in the care and custody of federal agencies and to impose damages liability on them."

"S.B. 8", the DOJ alleges, "also violates the statutory and regulatory provisions applicable to the Medicaid program in Texas, which is a cooperative state-federal program, federally administered by the Centers for Medicare and Medicaid Services ('CMS')...In accord with Medicaid coverage requirements, the Fifth Circuit has held that States may not prohibit coverage of medically necessary abortion of pregnancies arising from rape or incest."

Thus, preemption provides yet another reason why Judge Pitman should preserve the status quo ante by issuing a preliminary injunction to block enforcement of the Texas law.

The Order Would be Temporary

Even if granted, the proposed injunction will provide only temporary relief. The constitutional right to a pre-viability abortion, established by Roe v. Wade (1973) and repeatedly upheld since then, could very well be overturned after the U.S. Supreme Court hears arguments in Dobbs v. Jackson Women's Health Org. on December 1, 2021. That case could entail a possible middle ground, however. Where Texas imposed a 6-week ban on pre-viability abortions --- at a time in which many women don't realize they're pregnant --- the Mississippi statute bans abortions at 15 weeks.

The Women's Health Protection Act (WHP), which was recently approved by the U.S. House, would codify Roe by federal statute. It's unlikely, however, that Sen. Joe Manchin (D-WV), who still supports the Hyde Amendment's ban on the use of federal monies to fund free-choice abortions, would vote to pass the WHP in the Senate, let alone vote to end the filibuster in order to ensure its passage.

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UPDATED 10/6/2021: Describing S.B. 8 as "flagrantly unconstitutional" and adding: "This Court will not sanction one more day of this offensive deprivation of such an important right," U.S. District Court Judge Robert Pitman, by way of a 113-page decision, granted the federal government's motion for a preliminary injunction. The new injunction temporarily blocks enforcement of the Lone Star State's 6-week abortion ban.

The decision expressly proscribes the initiation, administration and docketing of S.B. 8 lawsuits. It applies to Texas, its officers, agents, employees, State court judges and clerks, and anyone acting on behalf of the State of Texas.

Judge Pitman also rejected the State's request that the District Court stay the preliminary injunction pending an appeal. "The State," the Court ruled, "has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well established constitutional right."

Noting that he disagreed with Judge Pitman's ruling, Texas Attorney General Ken Paxton announced that his office has "already taken steps to immediately appeal" the ruling to the ultra-right-wing U.S. 5th Circuit Court of Appeal.

Absent an emergency appellate stay of Judge Pitman's ruling, Texas medical providers will immediately be able to resume in-state abortion services without risk of vigilante lawsuits, for now.

UPDATE, 10/8/21: The U.S. 5th Circuit Court of Appeals issued a temporary administrative stay. The stay will remain in place until the Court determines when Texas has made a sufficient case for the issuance of a longer stay pending the outcome of its appeal.

To avoid potential liability, Texas medical providers will immediately stop providing post-6-week abortions unless or until the administrative stay is lifted.

UPDATE, 10/15/21: After 5th Circuit, via a 2 - 1 decision, declined to lift the stay, DOJ spokesman Anthony Coley announced that the Department "intends to ask the Supreme Court to vacate the Fifth Circuit's stay of the preliminary injunction."

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing