Supreme Court Texas Abortion Law Ruling Said What?

If you woke up this morning thinking about Jussie Smollett, the Texas abortion law, California ...

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If you woke up this morning thinking about Jussie Smollett, the Texas abortion law, California gun rights, and California vaccine mandates, then this is the podcast for you. David and Sarah dive into a legal issue that might overturn Smollet’s conviction, analyze the Supreme Court’s decision to permit a very narrow facial challenge to S.B. 8, discuss Gavin Newsom’s swing-and-miss, and wrap up the main portion of the pod with a discussion of vaccine mandates in San Diego schools.

Show Notes:

–Whole Woman’s Health v. Jackson

–9th Circuit vaccine mandate ruling

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Comments (77)
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  1. Sean

    I know this comment is late and will probably fall on deaf ears, but isn't the problem hear that Ex Parte Young is a wrong decision, or at least it is being wrongley applied? As far as I understand the 11th Amendment, it prevents citizens of one state from suing a different state in federal court. Ex Parte Young got around this problem by saying state officials can be sued over unconstitutional laws because if they are enforcing an unconstitutional law then they cannot be acting on behalf of the state. But the 11th Amendment doesn't prevent citizens of Texas from suing Texas in federal court, correct? Or, is Ex Parte Young be applied to broadly such that a suit allowed under the 11th Amendment has to be against a state official and not the state itself? Why does a Texan have to sue the AG for relief and not Texas directly?

    Relatedly, I understand why the litigants did not challenge Ex Parte Young (its still the best path for pre-enforcement relief) but if they had would the case have gone better for them? Gorsuch's reasoning for not allowing suits against clerks for doing their job is that would be absolutely insane, and then he provided reasons why Ex Parte Young doesn't apply. But if the litigants had asked to overturn Ex Parte Young and sue Texas directly, maybe Gorsuch would have been more willing to go along with that? Or maybe I am totally confused and everything I wrote is wrong.

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      Sarah Isgur vertical-nib Author

      Correct. Ex parte young is the problem. Legal fictions often are.

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    Ben Connelly

    I know you two were somewhat joking at the beginning, but I wanted to make clear that while we love emergency pods, the AO listener community does NOT want either of you to think that you have to drop important family commitments just to drop us a podcast. We are happy to wait until Monday or whenever you schedule the next episode. Please, if you have dinner plans, or if you have a graduation to go to, or if you’re sick, or if you have any other non-work commitment, just do that. Don’t worry about us. We will be fine. Just wanted to make that clear. I’d rather not see the Dispatch team burn itself out.

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    Dustin Anglin

    I really hope the SB 8 ruling is an outlier that just happens to reflect the court’s impending ruling on Dobbs, but even if it is, this seems like a real abdication of responsibility by the court to address a very concerning precedent being set around injunctive relief for these kind of “citizen bounty” laws that could deprive citizens of constitutional rights for extended periods of time. The justices are much smarter than I, but this does not seem like their best day.

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    BestUsedCarSales

    Twice a week I listen to this podcast. Twice a week my heart is crushed that the intro is not Sweet Child O' Mine yet.

    You might as well change the intro to Losing My Religion at this point, because you're destroying my faith in all things.

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  5. Mike Hobolth

    The IDEA footnote was very funny, at least for some of us. I'm guessing that law-related professionals understood half of the acronyms and K-12 educators understood the other half. If it is true that we are only allotted a finite number of syllables in this life, special education acronyms probably save lives. I'm glad the judicial branch got the same laugh out of this that school personnel have for decades. Nice inclusion (so to speak); thanks.

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  6. This Guy Says

    If pre-enforcement/federal review of SB 8 is possible only because Texas overlooked its state licensing officials duty to enforce the statute, what’s to stop Texas from amending the law and closing that door?

    From the discussion, it doesn’t sound like that change would impact SB 8 in any substantive way and it would allow the state to put off pre-enforcement review. I may have missed it, but I’m surprised neither hosts mentioned that possibility.

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    1. Mike Miller

      I think it may have been mentioned but downplayed ... but I'm not sure why. For example, if Texas amends today, wouldn't the case then be dismissed? OF course, in such case, the DOJ might bring back its claim and request Cert. again. Can you un-DIG it?

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  7. Bret & Julie Rogers

    Hooray to jurors in general, but Sarah's take on the OJ jury is terrible. One of them admitted they made their verdict as "payback" for Rodney King. I distinctly remember this from the fantastic Ezra Edelman documentary "O.J.: Made In America."

    https://www.thewrap.com/oj-simpson-juror-not-guilty-verdict-was-payback-for-rodney-king/

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  8. Mike Miller

    Like most reasonable people, I'm troubled by the idea that a State can do an end-run around effective pre-enforcement review of a law that violates a Constitutional right. Having said that, if you start with the proposition that Sovereign Immunity exists and is important, isn't Ex Parte Young just an end-run around Sovereign Immunity? If so, isn't it actually a perfectly appropriate thing to do an end-run around the end-run so as to actually allow the intended feature of Sovereign Immunity to prevail?

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      PaulH

      I don't think Ex Parte Young is an "end run" around Sovereign Immunity. No one doubts that once a state enforces an unconstitutional law that the law can be challenged and overturned in in court (and such a dispute might include a preliminary injunction staying further enforcement). In other words, stopping states from violating the Constitution is not an infringement of Sovereign Immunity.

      Ex Parte Young is a bit of an end run around the requirement for an actual case or controversy in order to bring suit, but not entirely so. One can not bring an action under Ex Parte Young merely because one believes a law is unconstitutional, one has to demonstrate that one is concretely adversely affected by the law (which arguable creates a "controversy").

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      1. Mike Miller

        If a women who lives in Texas is unable to get an abortion isn't she adversely affected?

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          PaulH

          Yes, no one disputes that. Her problem (under the majority holding) is that she doesn't have an adverse party to sue -- a necessary element of an actual case and controversy. On the other hand, abortion providers can sue the medical board and at least get the law ruled unconstitutional.

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          1. Mike Miller

            And she can't sue Texas b/c of ... [say it with me]?

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    2. Vitaly

      Based on my limited understanding (largely drawn from the AO podcast!) I am reasoning that Ex Parte Young is one of the few reasons the 14th Amendment can be enforced. The 11th Amendment prohibits suing the States... which basically means that on paper, we are still largely a Confederation, not a Federation. But... we had been "re-founded" during the period of 1865-1868 right? No? I would rather live in a country with Ex Parte Young than in one without it :)

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    Bill Dyer (aka Beldar)

    From the official syllabus, the precise disposition of the case: "The order of the District Court is affirmed in part and reversed in part, and the case is remanded."

    What was affirmed by this language was the U.S. District Court's ruling, as part of its grant of a preliminary injunction, ruling that it had before four proper defendants — Stephen Carlton,
    Katherine Thomas, Allison Benz, and Cecile Young — each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including SB8.

    What was reversed was the U.S. District Court's ruling that other named defendants, including State District Judge Jackson and Texas Attorney-General Paxton, were also proper defendants. The SCOTUS has said they're not, and they, like the sole private-plaintiff defendant, are out of the case hereafter.

    So what's next? The remand is not directly to the federal district court level, but rather, to the U.S. Court of Appeals for the Fifth Circuit, which had refused to grant an injunction pending appeal against ANYBODY, including the executive licensing officials. The Fifth Circuit will re-claim jurisdiction as soon as the SCOTUS issues its mandate (which may already have happened, or if not will happen in a matter of days, not weeks).

    I'd expect the abortion providers to immediately re-urge before the Fifth Circuit their motion for an injunction pending appeal — but this time, as per the SCOTUS decision, an injunction pending appeal solely against the executive licensing officials. And eight members of the SCOTUS having confirmed that yes, there really IS someone appropriate and sufficient sitting in that chair that we all knows belongs to the real party in interest, the State of Texas (acting through its executive licensing officials, all defended by the same Ken Paxton who's just gotten out of the case), I think the Fifth Circuit will pay due heed to the 8/1 agreement on this holding as to these executive licensing defendants, and will indeed grant the injunction pending appeal as to them only.

    For purposes of considering whether other courts — including state civil district courts who might theoretically be asked to enter a judgment for statutory damages in favor of a private-party plaintiff and against an abortion provider — are going to do in the meantime, before the Fifth Circuit rules on the merits (or at least on the probability of success element of a preliminary injunction proceeding) regarding the constitutionality of SB8, it does not matter a whit that MOST of the state-official defendants, including Judge Jackson and Attorney-General Paxton, are not being enjoined and appear to be out of the case altogether.

    To have a live case and controversy, a ripe one, a justiciable one, within the subject-matter jurisdiction of the federal courts between real parties in interest, there need not be more than one defendant. And regardless of what these four defendants say about their intentions, they can't re-write the Texas statutes on the fly.

    The abortion providers have what they needed — a vehicle to get the constitutional pre-review of SB8. So the bottom, bottom line is that the abortion providers are going to get their pre-enforcement review, and the Texas Legislature's scheme to hack the system has failed.

    It's possible that Dobbs moots some or all of this if it overrules Roe/Casey, because that would change the probability-of-success-on-the-merits calculation. And regardless of Dobbs, some future Texas Legislature may try again. But short of outright abolition of the state licensing authority for doctors and nurses, I don't think they can fix what caused them to lose in the present hack attempt.

    Why some people are treating this as anything BUT an unalloyed win for the abortion providers, I genuinely cannot fathom.

    Gavin Newsom, and his press release, are a giant SQUIRREL, and I encourage anyone even briefly distracted by him or it to ignore that noise.

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    1. Pohl

      Well said. I agree that Texas can’t easily bypass the licensing officials now, and that’s that. I suppose a crafty aide is pushing a memo on his boss as we speak though.

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    PaulH

    The discussion of SB8 was rather disappointing. Neither Sarah nor David seemed interested in digging into the reasoning of either side. Sarah was oddly dismissive of Gorsuch's reliance on precedent but didn't explain what she thought he should have done. In my view Gorsuch's opinion was strong both in terms of following precedent and explaining why that was important. Certainly it was better than Robert's opinion which relied on the conclusory statement that clerks were in fact adverse parties -- a strange notion that is inconsistent the actual function of clerks and how they are viewed by litigants.

    Also, I wish there had been more discussion of how this battle is likely to play out. Certainly at some point a court will rule the law unconstitutional -- if that ruling gets appealed up to the Texas Supreme Court (and upheld), then is it all over? And how much mischief can be done between now and then.

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