Bench Memos

Law & the Courts

On Abortion Providers’ Extraordinary Petition for Certiorari Before Judgment

Some fuller thoughts, on top of my initial comments, on the petition for a writ of certiorari before judgment that the abortion providers challenging the Texas Heartbeat Act filed in the Supreme Court last Thursday:

1. The lead question on which the abortion providers seek the Court’s review—“whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions”—is not a question properly before the Court.

If understood as an independent question (and not just as tendentious rhetoric), that lead question is asking the Court to render an advisory opinion. In the tail end of the petition, the abortion providers ask the Court to decide whether state court clerks and state judges are proper defendants in the case. Those jurisdictional questions—which are pending before the Fifth Circuit, with oral argument in early December—will entirely dispose of the lead question. If state court clerks and state judges are proper defendants, then the lead question disappears. And if they are not proper defendants, then there is no jurisdiction to decide the lead question.

2. The sophisticated team of lawyers representing the abortion providers has used alternating tactics of stalling and racing to try to game the litigation. The certiorari petition is usefully understood in that light.

Texas legislators introduced the Texas Heartbeat Act on March 11, and Texas governor Greg Abbott signed it into law on May 19. So the abortion providers had plenty of notice to launch an immediate challenge, including a motion for a preliminary injunction. Instead, they waited nearly two months, until July 13, to file their complaint. And they waited nearly another month, until August 7, to file their motion for a preliminary injunction.

In short, a full 80 days passed between enactment of the Act and the abortion providers’ motion for a preliminary injunction. And that motion was filed just 25 days before the effective date of the Act. It seems obvious that the abortion providers’ lawyers were trying to obscure the severe jurisdictional obstacles their motion faced and to rush the district court to grant ill-considered relief.

When the district court, on August 25, denied the state defendants’ motion to dismiss on sovereign immunity grounds, their immediate appeal divested the district court of jurisdiction over them. The abortion providers then filed various “emergency” motions with the Fifth Circuit, even asking that the court vacate their own victory on the motion to dismiss.

On the afternoon of August 30, after the Fifth Circuit properly denied their motions, the abortion providers then raced to the Supreme Court. Their “emergency application” asked the Court to act before September 1 (i.e., in barely 30 or so hours) to enjoin state officials from enforcing the Act, even though the Act itself prohibits those state officials from enforcing it. The Court properly denied their request for emergency relief (though the 5-4 vote should have been unanimous).

After delaying for 80 days in filing their motion for preliminary-injunctive relief, the abortion providers are now asking the Court to leapfrog the proceedings below. What’s more, they are asking the Court to expedite consideration of their extraordinary writ for certiorari before judgment. Instead of allowing defendants the usual 30 days to respond to their petition, they have asked the Court to require a response by October 12. Not only would that give defendants only 19 days to respond, but, as the abortion providers well know, that proposed deadline is also nearly simultaneous with the date (October 13) on which defendants must file their opening briefs in the pending Fifth Circuit appeal.

The abortion providers propose that the Court consider their petition at the Court’s October 29 conference. In the event that the Court were to grant certiorari, they propose an expedited schedule of briefing on the merits a briefing that “would allow for oral argument during the Court’s December sitting” (which ends on December 8)—right when the Fifth Circuit is slated to hear oral argument. The Court’s usual rules contemplate 105 days for full merits briefing. The abortion providers’ schedule would allow only about 1/3 of that.

Given that the abortion providers delayed the litigation by 80 days in order to gain tactical advantage, the Court should look with particular disfavor on their petition.

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