Bench Memos

Law & the Courts

A Quick Primer on Litigation over Texas Heartbeat Act

Abortion activists are irrationally angry at a Fifth Circuit panel for what is, as I will explain, an elementary order that, in light of a pending appeal on threshold jurisdictional questions, prevents the district court from proceeding with a case challenging the Texas Heartbeat Act. Let’s put things in proper context.

Texas governor Greg Abbott signed S.B. No. 8, the Texas Heartbeat Act, into law in May. Except in the case of a medical emergency, the Act prohibits a physician from performing or inducing an abortion “if the physician detected a fetal heartbeat for the unborn child … or failed to perform a test to detect a fetal heartbeat.”

What is most innovative—indeed, brilliant—about the Texas Heartbeat Act is that it affirmatively prohibits state officials from enforcing the Act in any way and instead authorizes private persons to bring a civil action against anyone who performs or induces an abortion in violation of the Act or who knowingly aids or abets such a post-heartbeat abortion (including employers and insurers who pay for or reimburse the costs of a post-heartbeat abortion). (See §§ 171.207-.208.) If a private plaintiff prevails, the court “shall award” injunctive relief to prevent further violations by the defendants, statutory damages to the plaintiff in the amount of at least $10,000 for each violation, and costs and attorney’s fees. The Act becomes effective on September 1.

The Texas Heartbeat Act was written this way to prevent abortion providers from obtaining pre-enforcement relief against state officials. Because state officials are not permitted to enforce the Act, they will have sovereign immunity if anyone attempts to sue them over the constitutionality of the statute. (The Ex parte Young exception to sovereign immunity applies only when the named defendant has “some connection with the enforcement of the act.”) State-court judges also are immune from suit, under both Ex parte Young and Fifth Circuit precedent.* In short, any abortion provider that wants to challenge the constitutionality of the Act must wait to be sued and assert its constitutional claims defensively in the private civil-enforcement action.

In mid-July, in a desperate attempt to preempt enforcement of the act, various abortion providers and other plaintiffs nonetheless filed suit in federal district court. Specifically, they sued four sets of defendants: (1) the state attorney general and various other state officials; (2) a state judge; (3) a county judicial clerk; and (4) Mark Lee Dickson, a private citizen and pro-life activist. The plaintiffs asked the district court to certify a defendant class of every state-court judge and enjoin the entire state judiciary from considering any lawsuit brought under the Act. They also asked the district court to certify a defendant class of every court clerk in Texas and enjoin clerks from accepting or filing any documents submitted in private civil-enforcement lawsuits.

To put it mildly, this was an audacious lawsuit, and it faced insuperable jurisdictional hurdles. The claims against the state officials are unequivocally barred by sovereign immunity because the Act explicitly prohibits state officials from enforcing it in any manner. The claims against the state judges and court clerks are also barred by sovereign immunity because the Ex parte Young exception is inapplicable to lawsuits that seek to prevent the state judiciary from adjudicating cases between litigants. And Dickson, who was evidently sued only because he is a pro-life activist, submitted a sworn affidavit stating that he has no intention of suing any of the plaintiffs under the Act. So there is no live case or controversy with respect to Dickson, and there is also no Article III case or controversy with respect to the other defendants, as none of them is enforcing or threatening to enforce the Act against any of the plaintiffs.

Somehow none of that stopped federal district judge Robert L. Pitman (an Obama appointee) from issuing an order last Wednesday denying defendants’ motion to dismiss on jurisdictional grounds. But because Pitman denied defendants’ sovereign-immunity defense, they had a right, which they promptly exercised, to appeal his ruling to the Fifth Circuit. And by appealing Pitman’s ruling, the defendants immediately divested Pitman of jurisdiction to proceed against them, as Fifth Circuit precedent holds that an appeal of a sovereign-immunity defense automatically divests the district court of jurisdiction until after the appellate court has ruled.

That’s why a Fifth Circuit panel on Friday granted defendants’ motion to block Pitman from further proceedings in the meantime, including a hearing that he had set for today on plaintiffs’ motion for a preliminary injunction. That also explains why the plaintiffs, in a hilarious maneuver designed to send the case back to Pitman, asked the Fifth Circuit panel to vacate Pitman’s order in their favor on the sovereign-immunity (and other jurisdictional) issues—a request that the panel promptly and properly denied yesterday.

Judge Pitman never had proper jurisdiction over this case to begin with, and the case should have been dismissed at the outset for lack of subject-matter jurisdiction. The Fifth Circuit will now have the opportunity to make that clear.

* See Ex parte Young (1908) (“[T]he right to enjoin an individual, even though a state official, from commencing suits . . . does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature.… [A]n injunction against a state court would be a violation of the whole scheme of our Government.”); Bauer v. Texas, (5th Cir. 2003) (“The requirement of a justiciable controversy is not satisfied where a judge acts in his adjudicatory capacity”).


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