The Irrepressible Myths of Whole Women’s Health v. Jackson

by | Sep 16, 2021

The Irrepressible Myths of Whole Women’s Health v. Jackson

by | Sep 16, 2021

1200px pink out for planned parenthood (21195941034)

This month’s 5-4 Supreme Court ruling in Whole Women’s Health v. Jackson did not overrule Roe v. Wade or make any kind of decision on the scope of the right to abortion. But the Court did refuse to issue a preliminary injunction against the enforcement of S.B. 8.

There have been too many examples of both social conservative supporters of this bill and liberal detractors horribly misinterpreting and misapplying law, and using legally nonsensical arguments like getting angry with the Supreme Court because they expected the Court to do something they have no constitutional power to do. This suit was doomed to fail because of several procedural conflicts baked in as far as Whole Women’s Health v. Jackson was concerned.

But as always, whichever side comes out unsatisfied after a Supreme Court opinion that they didn’t personally like, they claim it was the Court playing politics. That doesn’t happen nearly as often as people think.

Anyone with any kind of strong political opinion and weak understanding of legal theory does this.

To start let’s get a clear summary about what this law actually does and then get a clear view of the Court’s opinion in the denial.

This bill bans abortions after the detection of a fetal heartbeat, which happens around the sixth week of pregnancy. What makes this law unique and interesting is its reliance on an obscure doctrine from the common law of torts that allows private attorneys to bring a suit in civil court, acting as what is called a private attorney general.

Private attorney general doctrine is an equitable principle that allows a party who brings a lawsuit that benefits a significant number of people or which has resulted in the enforcement of an important right affecting the public interest to recover the attorney fees. The purpose of the doctrine is to encourage suits of societal importance which private parties would not otherwise have an incentive to pursue.

The purpose of creating this cause of action by a private individual in a civil court case, rather than by the state bringing a criminal law case, was done entirely to make this bill much more difficult to challenge in court. This unique statute empowers private citizens to sue those who perform or facilitate abortions.

The civil liability scheme imposed by Texas’s S.B. 8 is likely unconstitutional. It’s inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992) and the “undue burden” defense in the statute is likely too narrow to save it. Moreover, such state “private attorney general” laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants.

It would also behoove the conservatives celebrating the passage of this bill as some clever, sneaky way to get around a Supreme Court ruling they don’t like to consider just how badly this could all go if Democrats get frustrated with trying to overturn the law and instead use it as precedent against constitutionally protected individual rights that conservatives hold as especially valuable, like the right to keep and bear arms.

President Biden confusingly muttered his disapproval of the Court’s decision, charging the conservative justices with following “procedural complexities” rather than using their supreme power to ensure justice. Biden is simply making things up. The Court has no majestic power to “ensure justice.” This is not unlike the myth that courts can “strike down laws,” as many people assume they can do.  The justices have a very limited ability to prevent specific government officials from enforcing laws against specific people. The judiciary cannot magically make laws disappear off the books. This notion that judicial review acts like an executive veto constitutes what is known as the writ-of-erasure fallacy. When the Court declares a statute unconstitutional or enjoins its enforcement this does not cancel or revoke the law. They have no authority to alter or annul the statute. Only the legislature can write, change or repeal statutes. That’s separation of powers 101. Judicial review allows a court to decline to enforce a statute and to enjoin the executive from enforcing that statute.

At least the majority in their Per Curiam Opinion demonstrated an understanding of the fallacy, which played a central role in their recent California v. Texas case.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021)

This proposition is foundational: courts enjoin individuals, and not laws.

And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

This appeal was only lodged against a single state court judge and a single court clerk. The District Court had not yet certified a class. Mark Lee Dickson’s brief accurately explained the dynamics:

There is no certified class of state-court judges that can be enjoined, and there is no certified class of court clerks either, because the district court did not rule on class certification before the defendants appealed its jurisdictional ruling. The plaintiffs never address this problem, and they pretend as though their requested injunction can somehow extend beyond the named defendants to every other judge and court clerk in Texas—even though none of those individuals have ever been parties to this case.

Even if the applicants received all of the relief they sought, every other judge in the state could entertain suits under S.B. 8. This case was a terrible vehicle for emergency injunctive relief. The dissenters glossed over this problem.

This is precisely what makes S.B. 8 a very clever and canny move. When the government plays no role in enforcing the law, like is the case with S.B. 8, the Court cannot block that law from being put into effect. In future cases the courts can, and almost certainly will, assess the constitutionality of S.B. 8 when a case is brought that challenges the law on constitutional grounds. But in the case of Whole Women’s Health v. Jackson it was not the law’s constitutionality that was challenged. Had that been the case I’m quite sure this would be a non-issue. The law is facially unconstitutional. But what was being sought in the case the Court just rejected was part of their shadow docket brought by parties seeking emergency injunctive relief. For the moment the Court was correct to reject this premature challenge.

That doesn’t stop many people from saying, “The Court should have blocked S.B. 8.” This is a legal non-sequitur. The appeal, as it came to the Supreme Court, involved a single judge in Tyler, Texas. Nothing the Supreme Court could have done would have “blocked” the law. Used in this or a similar context, the term “blocked” is legal gibberish that bears no relation to any conceivable power or procedure that the Court had as any kind of option in regard to handling this case. If by “blocked” they actually mean the Court should have granted the injunctive relief the case was seeking (which to remind people was a request beyond the possible legal scope of the court), that wouldn’t have blocked anything anyway. Even an injunction against Judge Jackson would have been meaningless, as other judges in Tyler could have heard the cases. I still have not seen anyone explain how the Supreme Court could have “blocked” S.B. 8 given that there was only one named judge in the case. Had the District Court used a single opinion to deny the motion to dismiss, certify the class, and grant the injunction, I think the situation would have been very different. But the judge’s piecemeal approach allowed the government defendants to seek an interlocutory appeal based on the denial of sovereign immunity.

But wait, there’s more; because of this clever flip, S.B. 8 spiked Planned Parenthood’s playbook. It is now impossible to sue the Texas Attorney General, because the attorney general cannot enforce the law. The law can only be enforced by millions of Texans. And there is no way to know in advance who would sue which abortion providers. So Planned Parenthood tried a different strategy: it sued Judge Jackson of Tyler, Texas who might one day hear a case involving S.B. 8.

This suit never made any sense. Judges do not enforce laws. They can only adjudicate specific disputes between plaintiffs and defendants. If a Texan actually sued Planned Parenthood for performing a seven-week abortion, the judge would have to dismiss that suit. After all, S.B. 8 expressly stipulates that citizens’ suits must comply with Roe v. Wade. And you don’t sue a judge to stop him from hearing a case in the first place. You let him decide and then appeal, if need be.

The Supreme Court could not, as President Biden suggested, exercise “supreme authority to ensure justice could be fairly sought.” No such power exists. In this case, the Court could only enter an order against one state judge—and that judge had no role in actually enforcing the law. The justices were absolutely correct in declining to intervene.

One should never forget that despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States is just a court. It operates like every other court does. Its judgements only bind the parties before the court, its precedents are not self-executing for non-parties.

It is important to be able to distinguish between the judgement of a court and the court’s precedent. When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bob cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it come to the Supreme Court people flip that on its head. They say, “Well the Supreme Court has ruled and that makes it binding on everyone everywhere.”

That cannot be the case. But the Supreme Court’s precedents are controlling for all courts. So once a precedent is set, all such future cases allow others to enjoin the decision. But that additional step of converting a precedent to a judgment is very important, especially in civil rights litigation. This is why talk about “blocking the law” is nonsense.

This is also why, when you read the opinions that each of the four dissenting justices issued individually, not a single one could articulate a way they could have stopped the law had they been in the majority.

Indeed, this case should have been unanimous. Alas, it was not. Chief Justice John Roberts and the Court’s three progressives each wrote separate dissents. Chief Justice Roberts would have “grant[ed] preliminary relief to preserve the status quo ante.” But a remedy to preserve the status quo ante would be impossible in this case, which only concerned Judge Jackson. Roberts wrote that he would “preclude enforcement of S.B. 8 by” Judge Jackson. But, again, Judge Jackson cannot actually enforce the law in the first place. The chief justice, usually a stickler for procedure, was willing to invent new procedural rules to stop what he saw as an “unprecedented” law.

Justice Sonia Sotomayor made similar mistakes in her own dissent. She said the “Court should have stayed implementation of” S.B. 8.” But courts cannot block laws. Courts can only prevent specific parties from enforcing the law against specific litigants. None of the dissenters had any clue how to actually stop S.B. 8—not even Justice Elena Kagan, a brilliant former civil procedure professor. She had bupkus. Indeed, Chief Justice Roberts acknowledged that Texas “may be correct.”

Why, then, did the dissenters offer a remedy that simply could not be granted? This quartet endorsed President Biden’s mythical account of the Supreme Court. At least three of the four dissenters deeply felt that this law was substantively unjust, so there must be a way to stop it. But not every alleged wrong has a remedy in federal court. In time, actual Texans will file suit against abortion clinics, and those who fund the organizations. And the courts can then decide, at that time, if those suits are consistent with Roe v. Wade and its progeny.

So you see the problem. Let’s say you are okay with violating the Constitution by insisting the justices have an obligation to act, even if that action is facially unconstitutional because for you, preserving an individual right protected by the Constitution is too important to let the Constitution get in the way of the Constitution. You now need to sue every single judge in the state of Texas, one by one to enjoin them to the precedent that would have been created by Whole Women’s Health v Jackson.

When you look at it in that context I’m sure everyone can agree that had those in favor of injunctive relief won the case they still would be stuck with an unavoidably losing strategy.

None of that even begins to address the fact that there were numerous procedural reasons why the Court could not have ruled on the case as presented. And to reiterate, there will be future cases brought to assess the Constitutionality of S.B. 8. For now rejecting this premature challenge was the right call.

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Bob Fiedler is a constitutional law scholar and legal commentator from the Twin Cities and host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy. Find Bob at Substack, Odysee, Patreon, LBRY and Anchor.fm

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