Can a Federal Judge Stop State Courts From Hearing the Lawsuits Authorized by the Texas Abortion Ban? –

U.S. Court of Appeals, 5th Circuit, ruled last month that no state judge is a proper defendant in cases challenging S.B. 8. The Texas abortion ban. Robert Pitman (a federal judge in Austin) issued an injunction prohibiting state courts from hearing civil suits under the law. This bans abortions if fetal activity is detected. Pitman said that his earlier case had involved private plaintiffs while Pitman’s injunction was issued to respond to a federal court lawsuit.

The 5th Circuit has ruled in this matter Whole Woman’s Health V. JacksonA lawsuit was filed in which Texas abortion advocates and opponents challenged S.B. 8 which bans most abortions, but allows private litigants to enforce them. It explicitly bars the state or local authorities from enforce its terms. However, “anyone” can sue anyone who performs, facilitates, or assists in a banned abortion. Plaintiffs are promised “statutory damages” at minimum $10,000 and reimbursement for their legal expenses. Plaintiffs are not allowed to claim personal injury or interests.

The The plaintiffs sought to avoid this unique arrangement which was meant to frustrate preenforcement challenges. They sued Austin Jackson of Smith County District Judge, representing an proposed class that includes all state judges who could hear any lawsuits authorized or permitted by S.B. 8. 8. They claimed that Texas judges could play an important role in the enforcement of the statute since S.B. Eight lawsuits couldn’t proceed without them. Pitman also heard the case. The 5th Circuit rejected Pitman’s argument.

It stated, “It’s absurd to claim, like Plaintiffs, that the best way to challenge a state law is by suing state court judges. They are bound to obey not only the U.S. Constitution but state law.” It also cited Ex parte YoungA 1908 Supreme Court case where the Supreme Court held that officials of state could be sued in order to prevent them from applying allegedly unconstitutional law. The Court stated that the federal right to injunct against state officials doesn’t include the right for a state court to “act in any case it is presented with.” According to the 5th Circuit “Plaintiffs position is contrary to federalism and infringes on the Eleventh Amendment”, Ex parte YoungIt ignores the state separation of power.”

Appeal court noted also that Declaratory Judgment Act required an “actual controversy” between defendants and plaintiffs. However, It stated that “no such controversy existed” since the Plaintiffs were not “averse to state judges.” The judges who “act in their adjudicatory capacity” are impartial and have no interest in the outcome.

Pitman’s yesterday issued preliminary injunction was an answer to United States v. TexasThe Justice Department has filed a lawsuit claiming that defendants include all state officials, agents, and employees. 8. 8. 8. 8. [S.B. 8] would necessitate state action that is now prohibited”—including adjudication of their lawsuits.

It is difficult to reconcile this direct order for state judges with the 5th Circuit’s concerns. Jackson.Pitman disagrees. Ex parte YoungThis is inapplicable to lawsuits brought against the federal government.

That decision involved Minnesota Attorney General Edward T. Young’s litigation against railroads that violated state rate regulations. According to the Supreme Court, the railroads could file a federal lawsuit against Young, arguing that they were not constitutional. It said that they could. NotYoung could seek an injunction that would prohibit state courts from hearing any Young-related lawsuits. The Court stated that Young could not be stopped from bringing any lawsuits by the Federal Court.

Pitman believes that Pitman’s warning does not apply to this situation. Ex parte YoungIt created an exception to sovereign immunity. This Court does not need to address the question of whether state officials are subject to sovereign immunity in the United States suit. Ex parte Young“Exception.” He adds in a footnote that “this Court does not have to be constrained by Fifth Circuit concerns.” It found that there was no enforcement link between judges, court clerks, and S.B. 8. Ex parte YoungAnalyse

Howard Wasserman from Florida International University College of Law, co-authored several books. Volokh ConspiracyS.B. posted posts about the “procedural problems” that were posed to him. 8 South Texas College of Law Professor Charles Rhodes says Pitman is right to the “procedural puzzles” posed by S.B. [that] Young“It is about sovereign immunity.” However, he points out that the “part of” is about sovereign immunity. Young dealing with injunctions against judges “is about the scope of the cause of action,” which “makes sense if the constitutional violation and thus the thing to be enjoined is enforcement by the executive” rather than “adjudication by the judge.”

These are the “concerns” expressed by Fifth Circuit  seem to extend beyond the particular context Ex parte YoungThat decision warned that stopping state judges hearing cases in their jurisdiction “would be against the entire scheme of government.” The appeals court stated that suing state judges would prevent the enforcement of S.B. 8. It was referring to federal interference in the operation state courts. This is clearly applicable to Pitman’s injunction.

The 5th Circuit called this argument to sue Texas judges “specious.” Wasserman and Rhodes are in agreement with this assessment.

The authors write, “Judges are not appropriate defendants for offensive actions challenging constitutional validity of laws or seeking to enjoin their enforcement.” “A court’s judgment does not cause the constitutional injury—when a state-court judgment infringes on federal constitutional rights, federal district courts lack jurisdiction and the adversely affected party must appeal the judgment through the state judiciary before seeking SCOTUS review. The federal court cannot deny the state judge any chance to render a judgement.

South Texas College of Law’s Josh Blackman is pictured in Volokh Conspiracy This post, which discusses the case of Justice Department suggests another reason for sueing judges to stop enforcement S.B. 8 is “problematic”. They are prohibited by code of judicial conduct from responding the federal government’s claims. Blackman writes that judges of state court must not opine about the constitutionality or validity of the law. Blackman writes, “If judges were to defend the law they would have to withdraw. Judges lack Article III standing because they are unable to defend the law. This means that litigation against state judges can be a joke.

Pitman quotes Shelley v. KraemerIn 1948, the Supreme Court ruled that judicial enforcement of home-sales restrictions for black buyers could not be enforced. Blackman believes that relying on this decision in these circumstances is wrong. “I have not been persuaded” Shelley v. KraemerHe says, “argument.” In that instance, the state took private citizens to court to enforce discriminatory covenants. There is nothing to suggest otherwise. [in United States v. Texas]Judges would not enforce an inconstitutional statute. It is assumed that judges will adhere to the law. Federal courts may have the ability to step in if a judge from a state court tries to enforce an illegal statute. A remedy is unlikely at this time.

Abortion-rights supporters find this situation frustrating, as S.B. S.B. 8 clearly contradicts Supreme Court precedents, and the fear of litigation has already significantly restricted abortion access in Texas. Clinics have severely curtailed services. Pitman is unlikely to be overruled by the 5th Circuit, which will decide whether it’s right to enjoin state judges and whether the federal government has standing to file a lawsuit at the stage.

There are no constitutional objections to S.B. Private litigants can challenge the law. This route is more time-consuming, but the best way to obtain the widest relief the law’s critics want.