It’s not enough that Texas abortion providers continue to press a lawsuit against the Texas Heartbeat Act that should have been dismissed at the outset for lack of subject-matter jurisdiction. They’re now running to the Supreme Court to try to get the Justices to enjoin state officials from enforcing a law that the law itself prohibits those state officials from enforcing. They seem to imagine that courts can enjoin a law, when what courts actually can do (upon a proper showing) is enjoin defendants from enforcing a law, but only when (among other things) defendants actually have an enforcement role.
The short answer to the abortion providers’ application is that the ordinary rules governing pre-enforcement challenges to laws apply in this case as well, and those ordinary rules mean that the abortion providers lack standing and that there are no defendants against whom they are entitled to obtain relief. They can instead challenge the constitutionality of the Act if and when private plaintiffs undertake to enforce it against them.
I’ll also note that because the district court hadn’t yet ruled on plaintiffs’ request to certify statewide classes of judges and clerks, the single judge and single clerk named as defendants work in only one of Texas’s 254 counties. Under plaintiffs’ own theory, they won’t be able to operate at all in Texas if the only judges and clerks against whom they were to obtain relief were these two defendants. Thus, any harm they face is the same whether or not they receive the emergency relief they seek against these two defendants. In other words, they haven’t shown that emergency relief against actual defendants would prevent any injury they allege.
Oddly, the abortion providers also fault the Fifth Circuit for its supposedly “rigid application of the divestiture doctrine.” But as they elsewhere acknowledge, the district court likewise granted a stay of the proceedings as to all defendants except the private citizen “based on their [i.e., defendants’] argument that the interlocutory appeal on sovereign immunity divested the court of jurisdiction.” The abortion providers’ claim that the Fifth Circuit has somehow left things “in limbo” likewise fails to acknowledge that it has acted, and can be expected to continue to act, with dispatch.
I find it especially amusing that here, as in the Fifth Circuit, the abortion providers ask that the district-court’s ruling in their favor—denying defendants’ motion to dismiss on jurisdictional grounds—be vacated (so that the transfer of jurisdiction over the case from the district court to the Fifth Circuit would be undone).
The Supreme Court should unanimously deny this request—in a heartbeat.