For all the drama, lawprof Howard Wasserman has been dissecting what he calls the “procedural puzzles” that confront the pre-emptive efforts to enjoin Texas’ abortion law, SB8. For the non- and unduly passionate lawyers, this all seems silly, as such details ignore the only real legal issue, that the law is unconstitutional and so something must be done. But what, by whom and against whom? This is where the United States steps into the fray.
The Justice Department argued in its emergency motion that the state adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights,” reiterating an argument the department made last week when it sued Texas to prohibit enforcement of the contentious new legislation.
“It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” the department said in the lawsuit. “But Texas has done just that.”
There is no serious question that the law is unconstitutional under existing precedent, although likelihood of prevailing on the merits is a factor in seeking preliminary equitable relief, so it’s a necessary component of the argument. The problem is that it’s not the sticking point.
As such, the department asked Judge Robert L. Pitman of the Western District of Texas to issue a temporary restraining order or a preliminary injunction that would prevent enforcement of the law.
“This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States,” the Justice Department said in its brief.
It may come as a shock to non-lawyers, but there is no such thing as enjoining enforcement of a law. Courts can enjoin a party, whether it’s the Republic of Texas or some individual bent on claiming his bounty from an abortion provider, but not a law. And this is the problem Wasserman addresses, that nobody has as yet stepped forward to be the test case for the law.
This will likely require providers and advocates to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But providers so far have not performed or announced an intent to perform a prohibited post-fetal-heartbeat abortion that could trigger suit.
It’s not that one can blame either providers or activists for not wanting to be the test case against SB8, but that without an actual case and controversy, an actual defendant against whom an injunction can be imposed, the procedural puzzle remains. But what about the United States? Has the DoJ found the magic sauce to seek an offensive injunction against Texas?
The civil actions that S.B. 8 incentivizes are an appropriate target of injunctive relief. Although the Anti-Injunction Act generally provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State,” 28 U.S.C. § 2283, that rule “does not apply when the United States seeks the injunction[.]” In re Grand Jury Subpoena, 866 F.3d 231, 233 (5th Cir. 2017). Federal courts may therefore enjoin state court proceedings that the Constitution prohibits. See Dombrowski v. Pfister, 380 U.S. 479, 485-86, 497 (1965) (where “defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights” but, rather, would entail “a substantial loss or impairment of freedoms of expression,” equitable relief restraining state prosecution is appropriate). Here, it is appropriate for the United States to essentially “obtain a stay of state court proceedings” where doing so would “prevent threatened irreparable injury to a national interest.” Leiter Minerals, Inc. v. United States, 352 U.S. 220, 290-91 (1957).
The “national interest” at stake here is the impairment of a right guaranteed under the Constitution, no small matter in itself and manifested in more explicit government policies, laws and funding. But this goes to the United States’ interest as movant. But they move not against any defendant seeking to employ the law, but Texas, which can’t enforce the law.
First, the Court could enjoin any person who files suit under S.B. 8 from prosecuting his or her claim. Here, an injunction against Texas can run to the individuals who file civil enforcement
actions because, at a minimum, those individuals would qualify as “persons who are in active concert or participation with” the State. Fed. R. Civ. P. 65(d)(2)(C). The purpose of Rule 65 is to prevent defendants from creating schemes to evade judicial review and enforcement by ensuring that injunctive relief “not only binds the parties defendants but also those identified with them in interest, in ‘privity’ with them, representedby them or subject to their control.” See RegalKnitwear Co. v. N.L.R.B., 324 U.S.9,14(1945). This rule is based on the principle that “defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” Id. Accordingly, an injunction may run against a nonparty that is in “‘privity’ with an enjoined party,” including a “nonparty whose interests were represented adequately by a party in the original suit.” Texas v. Dep’t of Labor,929 F.3d 205, 211(5th Cir.2019).
DoJ argues that any potential individual seeking to enforce the law is in privity with Texas based on this scheme to evade pre-emptive review, and as Texas can adequately represent their interests, it’s a proper party to enjoin.
Second, an injunction against the State—enjoining proceedings initiated under S.B. 8—could
specify that it runs to the state judiciary. It has “long been established by decisions of th[e] [Supreme] Court” that “the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948).
The government’s secondary argument is that an injunction against Texas will flow to its courts and judges, precluding them from conducting proceedings under the law. And if these arguments weren’t sufficiently imaginative, the DoJ then points at a very interesting group of state employees who are necessary to making any enforcement action happen.
Finally, an injunction prohibiting the State of Texas from enforcing S.B. 8 could also specify
that it enjoins all state employees and officers needed to administer civil actions regarding S.B. 8 or to enforce judgments arising from those actions. Relief against the State could bind, for example, clerks that would docket complaints seeking S.B. 8 damages, as well as officers of the State charged with enforcing any money judgment pursuant to the statute.
If clerks were enjoined from docketing cases, they would die on the vine. This last argument is not only the most imaginative, but perhaps the best hook into justifying an injunction against a state that can’t enforce a law, but then can’t proceed on a law without its employees doing the clerical work to make it happen. Did the United States find the magic way to obtain an injunction against SB8 without any provider or activist putting themselves at risk of loss? It will be very interesting to see whether Judge Pitman bites.