Bench Memos

Law & the Courts

Abortion Providers Try to Game the Supreme Court on Texas Heartbeat Act

In racing to the Supreme Court to try to get injunctive relief, the abortion providers in the Texas Heartbeat Act litigation are trying to game the Court to rule on issues that, because of their own litigation strategy, no lower court has even addressed. They are seeking an advisory opinion in a case that should have been dismissed at the outset for absence of a live controversy.

Let’s review things:

1. The bill that became the Texas Heartbeat Act was introduced in the Texas legislature in March 2021 and was signed into law by Governor Abbott on May 19. Plaintiff abortion providers waited nearly two months—until July 13—to file their complaint, and it wasn’t until nearly a full month later, on August 7, that they filed a motion for a preliminary injunction. In short, they dilly-dallied for more than two-and-a-half months.

2. Plaintiff abortion providers failed to tee up for early decision the obvious jurisdictional obstacles they faced with respect to each of the defendants. In opposing defendants’ motion to dismiss on jurisdictional grounds, they also should have known that the district court’s (mistaken) ruling against the governmental defendants on sovereign immunity would entitle those defendants to immediately appeal that ruling and that such appeal would divest the district court of jurisdiction over the proceeding, at least with respect to those defendants (who account for all of the defendants other than the one private citizen).

Those who fault the Fifth Circuit panel for abiding by circuit precedent in issuing a temporary administrative stay of the district-court proceedings fail to observe that the district judge himself had, earlier the same day, already ordered the case stayed and the preliminary-injunction hearing vacated with respect to the governmental defendants.

We now have the absurd spectacle in which plaintiff abortion providers have asked both the Fifth Circuit and the Supreme Court to vacate the district judge’s ruling in their favor on defendants’ motion to dismiss.

3. Because of the abortion providers’ litigation decisions—decisions that seem to have been driven by a desire to obscure the jurisdictional obstacles they faced—no lower court has yet ruled on the legal questions that the abortion providers would have the Supreme Court decide on an incredibly rushed basis.

Nor are these legal questions anywhere near as simple as the abortion providers contend. The Texas Heartbeat Act is an intricate statute whose meaning the Texas courts, and ultimately the Texas Supreme Court, are entitled to determine. The abortion providers’ claim that the Act is inconsistent with Supreme Court precedent ignores the fact that the Act itself explicitly confers on abortion providers an “affirmative defense to liability” in the event they demonstrate that a lawsuit brought under the Act “impose[s] an undue burden.” Further, it is incontestable that some of the Act’s applications (e.g., to non-therapeutic post-viability abortions, to take an easy example) are permissible under current Supreme Court precedent. The Act also has elaborate severability provisions.

Thus, even apart from its obligation not to render advisory opinions and even apart from the pending challenge to the Court’s abortion precedents in Dobbs v. Jackson Women’s Health Organization, it would be a gross folly for the Supreme Court to address the constitutionality of the Act.


What the Court should instead do is issue a simple order along the following lines:

We deny petitioners the extraordinary pre-enforcement relief they seek, as they have failed to establish that there is a live case or controversy: all the defendants except Dickson have strong claims to sovereign immunity, and none of them appear to have any role in enforcing the Texas Heartbeat Act. As for Dickson, he attests that he has no intention of enforcing the Act against petitioners, and there is nothing in the record that calls his attestation into question.

In denying relief, we refrain from offering an advisory opinion on the constitutionality of the Act. Petitioners remain free to assert the unconstitutionality of the Act as a defense in any case in which anyone undertakes to enforce the Act against them.


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