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Courthouse Steps Oral Argument Webinar: Whole Woman's Health v. Jackson and United States v. Texas

Courthouse Steps Oral Argument Webinar: Whole Woman's Health v. Jackson and United States v. Texas
welcome everyone to this

courthouse

steps

uh

oral

argument

webinar

i'm nick maher assistant director of practice groups here at the federalist society today november 2nd 2021 election day here in virginia we're covering two cases that were heard yesterday by the supreme court consolidated

whole

women's

health

fee

jackson

and

united

states

versus

texas

we have a great group of professors very knowledgeable about this issue they're here to go through the cases with us answer your questions um and a quick note on that please submit those questions via the chat you can submit them via q a chat or the chat either one i'm sure you know the functionality but that's how we'll take the questions when we get to that part of the call a quick note that expressions of opinion on today's call are those are experts so some brief introductions of course you can find there much longer and more distinguished biographies on our website but for right now you're not here to hear me talk so we're joined first by professor howard wasserman he's professor of law at florida international university college of law professor wasserman's going to give an overview of

whole

women's

health

and then we'll hear from professor stephen sax he's the antonin scalia professor of law at harvard law school he'll go over us versus

texas

they'll go through the

argument

s and then we'll look to you the audience for questions so with that professor...
courthouse steps oral argument webinar whole woman s health v jackson and united states v texas
wasserman thanks very much for being with us the floor is yours thank you very much for having me and and thank you all for uh joining us today uh so i'll start with a very brief overview of of the

texas

law which was uh enacted it as sba um and the the main substantive uh provision of it is a prohibition on abortions uh after detection of a fetal heartbeat which occurs usually around five or six weeks of pregnancy what made this law different is that the state eliminated any public enforcement of the law the usual mechanisms for enforcement of the law in favor of exclusive private enforcement it created a cause of action for any person to sue over a prohibited abortion regardless of that person of whether that person had uh had suffered any injury uh and it allowed for recovery of of statutory damages of at least ten thousand dollars per abortion uh an injunction to uh stop further uh violation of the statute uh as well as attorney's fees and the idea was to use private enforcement in order to uh uh in in as the new mechanism uh for uh trying to stop the conduct that the state wanted to stop um now the and the idea behind this was to make pre-enforcement challenges to the law difficult because the normal move of sue the responsible executive branch official the official charge with enforcing the law wasn't available um so the

whole

women's

health

lawsuit was a lawsuit brought by a combination of doctors and reproductive

health

providers as well as advocacy...
courthouse steps oral argument webinar whole woman s health v jackson and united states v texas
organizations and they tried to follow the usual path and sue uh a wide array of of public officials including the attorney general and the executive commissioner of the depart the state department of

health

services the usual defendants in in a pre-enforcement abortion case uh they also sued the heads of the medical nursing and other licensing boards and they sued a class of court clerks and state court judges uh the um and then finally they sued mark dixon who's the head of the east

texas

right life um as a potential sba plaintiff arguing that he was functionally a state a state actor um the district court found that all of these were proper defendants the uh fifth s that decision was appealed the fifth circuit issued a stay of all district court proceedings uh pending appeal uh at the beginning of september in the shadow docket decision that drew a lot of attention the supreme court uh declined to enjoin enforcement of the law uh pending litigation noting all of the procedural difficulties with the with the case uh and then it later uh granted cert on the questions of whether any of these are proper defendants uh professor sax thank you um so the uh

united

states

got involved uh in september after the supreme court initially declined to lift the stay uh the fifth circuit had granted um in the

whole

woman

's

health

and it sued the state of

texas

in the same district court it was assigned to the same district judge and what the

united

states

sought in its complaint uh...
courthouse steps oral argument webinar whole woman s health v jackson and united states v texas
was injunctive and declaratory relief against the state it argued first that the state was violating the 14th amendment and the supremacy clause by allegedly nullifying the rights within its borders and also was interfering with federal agencies and contractors and so on who might be providing or obliged to provide abortions within

texas

borders the

united

states

wanted both declaratory and injunctive relief essentially preventing

texas

from enforcing uh usb8 in any way and also wanted that relief under rule 65 of the rules of civil procedure to extend to all of

texas

's officers agents employees meaning state judges state court clerks other state officials and also to all others in active concert or participation with the state which the u.s understood as extending to private plaintiffs as well who would be bringing suit under sba the

united

states

sought a preliminary injunction in district court which a month later the district court granted and it granted it essentially in full um it restricted the docketing maintaining hearing uh you know resolving of sb8 cases basically anything that goes on in

texas

state court involving sba it was within the scope of its injunction and uh the

united

states

or sorry

texas

appealed the fifth circuit uh granted a temporary administrative stay of the district court's preliminary injunction and then further stated pending disposition of the fifth circuit appeal and at that point the

united

states

went to the supreme court asking...
them to lift the fifth circuit stay or in the alternative to grant uh certiorari before judgment and that's what the supreme court did the supreme court uh granted certiorari limited to one question namely could the

united

states

sue in federal court for injunctive declaratory relief against

texas

and applying to all of its judges clerks private uh plaintiffs etc and so those were the questions that were before the court uh before yesterday's

argument

uh so now back to professor watson so

whole

woman

's

health

was up first um and much to my surprise a lot of the courts seemed very receptive to the plaintiff's

argument

s and it's hard to read tea leaves but seemed inclined to uh find that the plaintiffs had uh found a proper defendant and could uh uh proceed via the usual uh pre-enforcement uh method and i wanna uh just highlight four issues that that jumped out at me from from the

argument

first is that there seemed to be two theories floating around on which the plaintiffs could proceed the theory that they put forward and that the justices didn't reject out of hand was that the federal court could issue an injunction prohibiting state court clerks from accepting the lawsuits from accepting this uh sba suits and docketing them and putting them in the court's file um now the the complaint had gone after uh clerks to stop them from docketing the cases and state court judges to stop them from adjudicating the plaintiffs ran from this idea of stopping...
judges because there is language in the court's decision in ex parte young the decision that allows for these sorts of pre-enforcement lawsuits against executive officials but there's language in ex parte young that says you can sue and enjoin executive officers you can't sue and join judges state court judges to stop them from adjudicating um there's no adverseness they're not executing the law in any meaningful uh sense of the way that we understand that word but the courts seem to buy into the

argument

from the plaintiffs that well okay that's true for judges but clerks are doing an administrative rather than adjudicative function they're taking the documents and they are and they are filing them um and that is something that looks a little bit more like more executive they're not enforcing but they are allowing the lawsuits to be committed they are necessary for a lawsuit to be commenced so that was the plaintiff's

argument

and the justices were mildly receptive to it the the other path that to me makes more sense was put forward by justice sotomayor and then later echoed by justices kagan and breyer and they pointed out that in the ordinary criminal case an ordinary challenge to a criminal a law that's enforced through criminal sanctions the plaintiff or the rights holder sues the attorney general and if they get an injunction against the attorney general that also would stop any individual district attorney from commencing a...
lawsuit to enforce that statute and so sotomayor kagan and breyer floated this idea of well sue the attorney general who has some residual enforcement authority and by getting at him you are getting at all of the underlings who have their own individualized enforcement authorities so sort of likening any individual sba plaintiff to a dis to a district attorney um and that to me has the advantage of being a little bit more consistent with how ex parte young and and pre-enforcement offensive constitutional litigation works it also depends on an important issue that wasn't really discussed but that the court would have to resolve which is that i believe that the structure of sba by delegating this exclusive enforcement authority to private individuals makes those private individuals into state actors it makes them uh persons acting under color of law who are subject to suit for constitutional violation so with that extra step um by you treat them more like public officials and it also can limit it to sba as a fairly unique statute rather than um potentially creating mechanisms whereby any tort defendant uh fearing a state court suit could now run and sue a uh could now run and sue uh the clerk of court um second there was a lot of focus on the various limitations on state law litigation on the fact that uh venue in an sba at sb eight action can be uh in it can be anywhere in

texas

that there is no non-mutual preclusion from any judgment um that uh the attorney's fees are...
one way an sba plaintiff can recover fees if he prevails but an sba defendant cannot recover fees um uh if if if the claim fails and the implications seem to be that the way the state court litigation was structured was inherently unfair was biased in favor of the plaintiff and that rendered it insufficient that rights holders are able to defend these cases in state court um third and the thing that was getting a lot of attention in some of the media coverage was the parade of horribles that this is not limited only to uh abortion but

states

could do that you know california new york could do this with gun rights and arkansas could have done this with school segregation or same-sex marriage or religion that any state now could say conduct that is otherwise constitutionally protected is unlawful and any person may sue any other person who engages in that constitutionally um protected conduct um and and that and and several justices brought up questions uh questions like that um the problem with that is it really begs the question of whether or not these laws are in fact problematic just saying that the law could be reproduced is only a problem if the law that's being reproduced is problematic the mere fact that it may that we may see other examples doesn't by itself um establish anything um and then the fourth thing i would point out is something that professor sax wrote in a blog post at the bala conspiracy this morning um that was really missing from the

argument

was...
the complete absence of any suggestion of a limiting principle um that uh would allow the court to allow for the offensive litigation that the plaintiffs are trying to pursue here without opening the the floodgates of and i hate using that term so without opening the door to the federal

courthouse

for any rights holder uh wanting to challenge a potential enforcement of any law so uh is is there's what is it about sba that is so different in a way that you know in a way that matters that the next time cnn is facing a lawsuit uh it won't simply sue the state court clerk and uh or sue the state court clerk to stop the clerk from accepting the lawsuit and they and therefore get the case in to uh get the case into federal court um and neither the plaintiffs nor the court really seemed to identify any such limiting any such limiting principles so reading the tvs i do think the plaintiffs are going to win i think the big question is going to be the is going to be how the court writes the opinion whether this is uh you know good for once for one ride only or if the court's going to do some real damage to how constitutional litigation uh proceeds so the um us versus

texas

argument

um proceeded somewhat differently i think the court um you know i i'm not good at reading tea leaves i won't hazard any predictions about who's going to win who's going to lose but i can say that the court seemed more interested in letting

whole

women's

health

win than they...
did in letting the

united

states

win um so the uh the issue that the new solicitor general this is her uh first

argument

uh in that position before the court faced was uh you know why exactly does the us get to sue here and when is it allowed to sue and so the

argument

the the answers those are in some ways overlapped and essentially that the us has a sovereign interest in preventing the nullification of federal uh constitutional law by a state and that nullification occurs whenever a state is able to choke off the avenues of relief either uh pre-enforcement with regard to sort of 1983 or ex parte young by channeling litigation through private actors and also post enforcement by um all of these different kinds of uh sort of stack the deck procedural moves um such as lack of attorneys fees and so on um and the difficulty that that

argument

faced is that it seemed to be sort of targeted precisely at um the various features of sba and it was much harder for the sister general to articulate what's the general category of statutes that do this so how much pressure do you need before one would say federal law has been nullified in

texas

you know how difficult does it have to be um and the uh you know where again even justice breyer uh raised this worry is um you know we don't want to say that all tort suits are uh potential avenues for the

united

states

to sue inequity um under in redebbs and to go after judges and court clerks um so if that's not going to be the the...
rule uh not every unconstitutional tort law will trigger this then you know there have to be some additional thresholds and it wasn't entirely clear what the answer was um there's a lot of discussion back and forth on that point also a lot of discussion on whether the private individuals who might bring suits under this law really were acting under uh an inactive concert and participation with the the state of

texas

um and uh disagreement on that point um when

texas

's uh uh attorney stood up the issues there were really um again sort of part of the parade of horrible questions you know how tough can

texas

make it can i have a million dollars gonna have as as he suggested five billion dollar penalties and court is on the moon you know what is the threshold here for saying that

texas

has made it impossible to challenge and his

argument

essentially was look if they're going to be procedural due process challenges to the attorney's fees provision or the issue preclusion provision or court being on the moon those can be raised but those weren't the um issues that were raised here um there were also questions that came up in both uh of the main party's

argument

s about what happens if the plaintiffs prevail in

whole

women's

health

so would a victory for the plaintiffs in the

whole

women's

health

show that in fact no special lawsuit is needed here and therefore the u.s has no case um are the are the two claims sort of inversely tied together in...
that way um there was also a appearance by uh jonathan mitchell for the interveners in the case these are private individuals who've expressed interest in bringing suits under sbh but only in circumstances that do not violate roe and casey so um circumstances that are left out by uh rowan casey but are nonetheless uh included in the text of sb-8 sb-8 has as ironclad a severability clause as law professors know how to write um and so the issue was whether an injunction should as the district courts had extend to all suits filed under sbh or whether it should only apply to suits filed under sb-8 that would restrict conduct ostensibly protected by rowan casey and the solicitor general suggested that the court shouldn't get into the details of trying to figure out what is and isn't um protected and the interveners um of course argue that the uh not only that they are not bound by uh an injunction against the state because they're not acting in active concert or participation but also that their claims are perfectly lawful and should be allowed to proceed great uh well any responses professor wasserman anything you want to go off of our professor sacks anything you want to add to the women's

health

discussion before we go to uh audience questions so the one thing that i would say is that um and i appreciate professor wasserman mentioning um the blog posts um the uh the difficult issue i see in the

whole

women's

health

case is trying to articulate why the...
court clerks would be an appropriate defendant um you know the theory of ex parte young is when the prosecutor files a prosecution based on an unconstitutional statute they are themselves violating the constitution somehow it's not totally clear to me that that's correct um and therefore that they sort of lose the official character and the protection that sovereign immunity might otherwise confer um i don't know that that

argument

can be made about the court clerks because when the court clerks stamp a complaint as being received they are not expressing any judgment whatsoever about the merits of that complaint um they are not sort of standing behind it they're not adverse to the uh defendant as an opposing party in the way that you could argue that the prosecutor is kind of like an opposing party i mean in real terms the state is the opposing party you know the state of minnesota was the opposing party and ex-party young we couldn't enjoin them because of sovereign immunity so we let you go after the prosecutor that's what's generously called the fiction of ex parte young and sometimes might be more of a falsehood but the idea of uh it is that the prosecutors in some sense at fault here i don't think the court clerks are at fault and um it's been you know looking at the details of ex parte young you know the

whole

machinery of the court system is in some sense outside its scope and so i i think it would be a difficult opinion to write i...
think it sounds better in

oral

argument

than it would actually in the text of the opinion to explain how the court clerks lose their status as officials because they're violating the constitution and that's that's really why i i thought about the judges and clerks theory together uh really makes no sense and just opens the door to a complete change to how constitutional litigation operates i'm willing to accept uh that fiction of ex parte young but the constitutional violation was um was the filing and the imposition of liability under the suit and all of that happens because of the executive official who's enforcing the law the judges aren't doing anything adverse to the to the plaintiff in adjudicating that um and and neither are the clerks um part of the reason going in i hoped that the the

united

states

suit was the would be the one that the court would ride with was i thought it could it would allow the court to resolve this case um as something weird without ultimately doing a huge amount of damage because um you know in some ways sba uh we wrote was was the perfect storm because you had this really unique mechanism uh plus exclusive litigation plus the left's uh darling privilege as somebody as somebody referred to it um any but even if you saw a

whole

bunch of copycat laws the

united

states

isn't going to sue over every one of them it can't because it doesn't have the resources and it won't just because different political...
and policy preferences are going to guide different uh different agencies so i thought that would be the way to address this one unique problem without causing longer term changes to how constitutional rights are litigated one more thought and i don't need to delay the questions but um is that the alternative solution of going after the attorney general i think also has some difficulty because even in a world where the attorney general is standing in for district attorneys at least they're all state officials and at least they're all plausibly connected in some hierarchy of supervision um the private plaintiffs really aren't state officials um you know even if they are are allowed to sue without personal injury they take home ten thousand dollars for their own pockets it's not for the state treasury um and you can imagine

texas

passing a new version of the statute if it didn't want to run the risk of of these individuals being called private ags you could pass a new version of the statute that would limit suits to you know people who are related to the uh aborted fetus or people who are um you know within a thousand feet of the abortion clinic when it's performed or people who have expressed their willingness to adopt children um you know when the mother might otherwise choose abortion and so you know you can imagine some class of persons who have a stronger claim of injury here um and if the state you know sort of tweaks it a little bit they would...
very easily get around um the kind of limitation that the court would have would already have spent a lot of resources in sort of propping up and trying to make plausible so actually if there's nothing more to add here we could always go back to this discussion there's a perfect jumping-off point we have a question about the form of private enforcement have other

states

tried the same form of private enforcement i suppose the question is open-ended to anything because the second part of it is what are the limits on what can be delegated to private enforcement if there are any limits this is a theory question but jumps off your point very well you want to start or you want me to or well i mean the first thought that came to mind was an example that professor wasserman had raised earlier which is nike v caskey um whichever if i remember right was a suit that gave sort of relatively broad um enforcement authority to uh individuals for um false advertising is that is that right yeah it was any person could sue for false advertising various consumer protection this was a this was california's law prior to 2004. and you know the the uh criteria that have been uh assigned let's put it generously to article three as a matter of of standing the requirements of injury in fact and so on in the federal courts don't apply to state courts you know state constitutional law can be different than federal constitutional law if they want to have lots of lawsuits by...
individuals who have no um you know injury of the sort that a federal uh court would recognize that's up to them in their legislature and their constitution um so while

states

tend not to do this because it's generally not a good idea to let any you know random person walk into court and sue about stuff um it's hard to say there's any federal constitutional barrier to their doing so um and so it's hard for me to see how a state is prohibited from uh you know giving sort of relatively broad enforcement authority if it wanted to say anyone in our state can sue if they ever see you littering or something like that i don't know how the federal reports would get in the way no i think that's there was a lot of talk in in in uh particularly in both

argument

s but particularly in the

whole

women's

health

argument

was this is not um this is not a tort claim you know sure the state can create create tort rights but this is not that um but that really begs the question of what a tort claim is um and and how much leeway the state has to redefine um what it's what it's towards what its torts are what makes sba unique is the exclusivity of the enforcement so california's consumer protection laws they allowed for any person to bring a private suit but they also retained a mechanism for attorneys and municipal attorneys and and district attorneys uh uh to sue to enforce the law which is missing uh with with respect to sba great i suppose we might...
return to the question of whether torts are wrongs or how we should understand but anyways that's what might be a law school question um we have anot another question that that goes uh right to the professor sacks your answer about what about the limits and wealth

states

state courts have different standards this person's asking was there any discussion during

argument

about how the clerk would reject a complaint and what remedy if any a litigant would have if the complaint is rejected what if the clerk rejects a claim not about sba under the guise that it's an sba claim well i mean in general clerks are not required to review um you know the merits of litigation i mean there are certain things that they are required to review you know matters of form and so on um but you know especially if you're in a system of notice pleading that doesn't require naming your cause of action um you know you could imagine situations would require a great deal of legal thinking to figure out is this an sba claim or not um the uh you know one of the questions asked what if an sba claim is combined with a standard torture property claim and the the the plaintiff said well that would also be barred under their you know vision of the injunction um so this would require an awful lot of legal work on the clerk's part um and it would presumably if they make a mistake and erroneously reject your filing i don't know what you do i mean do you seek mandamus if you do is that...
itself barred um you know are you allowed to claim that you're not filing under sba if they think you are um so i you know i i think that's one reason why in general the law doesn't prevent you from filing your lawsuit they let you in and either punish you afterwards for violating an anti-suit injunction or just say that you lose but we don't put all the weight on the folks who are supposed to be stamping your papers and getting you into court yeah there also would be an interesting uh an issue of probably the clerk having to run back to the federal court for the federal court to pass judgment on whether filing this particular suit um would run a foul would run afoul of the injunction um and it's the the clerk would be the excuse me the federal court would be supervising what's going on within the within the state court sounds like a very complicated endeavor okay we'll go to some of the more general questions we have the first one is professor josh blackman in an op-ed today i'm not sure if he's on right now but he might be that this was not from him um says that the

oral

argument

s suggest justice kavanaugh's and fair justices kavanaugh and bear excuse me have quote cave to judicial supremacy because kavanaugh seemed willing to reinterpret young and shelley v kramer and barrett seemed concerned that state courts could not grant global relief i.e to non-parties what are your thoughts on blackman's

argument

he's absolutely right...
um uh one of the amicus briefs i think it may have been jonathan mitchell's uh sort of made a department a departmentalist point that

states

and i think what he meant was state legislatures are free to adopt their own uh interpretations of the constitution and chief justice roberts asked

texas

solicitor general uh judd stone what he thought of that and stone ran from it very very uh very very fast so um the the court likes judicial supremacy obviously and especially the supreme court likes judicial supremacy um but they were not going to hear and stone gave the only answer he could give um they are not going to countenance the idea that a state can can decide a law is constitutionally valid enacted and then see what happens and if the court disagrees with us that's uh that's on the court so the only thing that i would say is um it is possible to be too pessimistic um about you know what about the the the state of the the court's uh uh decision making though um you know possible but not all that often you know pessimism is usually justified um but my sense is you know sometimes people are asking questions not because they think that x is true but because x is their biggest worry and they want to sort of hear what you're saying about it um so i i have given up trying to predict what any justice will do on anything having you know lost a lot of bets um so i i i don't make any predictions at this point let's go back for a second to the uh private...
persons and injunction world that we were just talking about that this person is asking the chief justice press the

united

states

on whether to the extent that private persons can file suit the

united

states

was essentially seeking a quote injunction against the world is this a fair characterization there's a second follow-up question the solicitor responded that the injunction runs against those who actually choose to involve themselves in the constitutional violation by filing suit is this a distinction without a difference your thoughts so the solicitor's general's defense was that you don't get hit by the injunction until you with notice of the injunction file a lawsuit um and in some sense that's right it's not against the world the problem is it's not really obviously against these plaintiffs either i mean the the active concert in participation language in 65 d2 normally doesn't extend to folks who are in this category i don't think anyone would say for instance that plaintiffs who file suit under state law against the state of

texas

are in active concert you know seeking injunctions against the state of

texas

are in active concert and participation with the state of

texas

because they rely on state law and doing so um i think it's a very strange picture of who the state of

texas

is for this purpose that would say that those plaintiffs are sort of working with them just because they rely on state law i think part of the error...
here is treating the state as it shows up in court as a litigant and the state as a source of law as the same entity often

texas

the litigant will lose on an issue of

texas

law and the only way to make sense of that is to say that the litigant and these sorts of law are two different things uh when we're talking about

texas

law we're talking about the law created by the sovereign we talk about the litigant we talk about the sort of executive power of

texas

that you know can be ordered to do stuff um the uh you know the the thought that the plaintiffs are in cahoots with the state um i think is a just a little bit sloppy and moreover we never in ordinary cases where injunctions are granted against the state treat state judges and court clerks as already within the scope of 65 d2 when we're trying to construe injunctions so here the district court specifically included them so it was very you know you wanted to make everyone know that you know they're in the they're in the zone of folks being bound here um but that's an unusual application of 65 d2 because we normally don't think of it as working that way and yet it operates of its own force to all agents employees officers etc so if normally we don't treat state judges and state clerks is found in this way it's a little hard for me to see why they would be bound in this circumstance and even less so the private planets so i think the so so a couple of things i think the private...
plaintiff's point again relies on uh the conclusion that what makes sba unique or sba's unique features uh turn these private plaintiffs into persons acting under color of law um and so now they're a little bit uh differently situated from the ordinary from the ordinary private plaintiff um and no that idea didn't really come up in any meaningful discussion in any point of the

argument

but i think it's a key feature um for making either the suit again the suit against the

united

states

or the best solution or the

united

states

suit or the best solution to

whole

woman

's

health

um it's it's key to sort of making making both of them work um the the other thing that that i think got lost in this there was a lot of attention paid to who can the court enjoin and then this goes back to i think professor sax's point the we're paying a lot of attention to who can the court enjoin and ignoring the question of enjoying that person from what so you can take

texas

as the defendant find weekend and join

texas

but what can you enjoy in

texas

from doing i don't think a federal court could enjoying

texas

from enacting a law i don't think it could enjoin

texas

to require it to repeal a law it's in joining

texas

in its role as enforcer so it's it's not the who but rather the what the court is is stopping and i should say there have been cases where you know municipalities might be ordered to adopt a bylaw of some kind or something like...
that um you know it's not entirely clear that those are correct and moreover you know municipalities are not sovereigns they're more like corporations in that respect um i i don't know of a case where any sovereign state has ever been ordered to you know amend its its legal code in some respect i would imagine legislative immunity would would would prove would prescribe that well but i mean you know oh we're proceeding against the state we're not proceeding against the legislature i mean i i i agree with you that like you you can't understand what you're ordering the state to do without thinking about worries of legislative immunity i don't think naming the state as your defendant gets you out of those problems i agree okay let's stay on sb-8 for a second the features of the bill two questions actually um and one just popped up the first one is what of kavanaugh's justice kavanaugh's concerns about the retroactivity of sba this has been talked about a lot and the second question is does it this is a textual matter and maybe don't know it but does sba permit non-

texas

residents to bring in action i i believe the answer to the second question is yes and two of the lawsuits that somebody somebody asked in the chat if any lawsuits have been filed there have been three that have been filed and two of them were filed by outsiders um and so i don't think the law could be applied against someone who has an abortion out of state um...
but there's nothing to the law that stops someone from out of state from uh from from filing from filing the lawsuit so the the concern for the about the retroact retroactivity provision was part of the uh the discussion of all the features of sb-8 that disad advantage plaintiffs disadvantaged defendants in the enforcement actions and thus were used in a lot of the questions and in

whole

women's

health

's

argument

s to suggest that defensive litigation in state court was not an adequate was was not adequate to vindicate their rights uh compared and and therefore they didn't have an adequate remedy at law and they needed to be able to get uh the injunction in federal court and so the idea of retroactivity is that the law says that and that an injunction performed while a decision or judgment is allowing for enforcement of the law is making the abortion lawful um can become retroactively unlawful if there is a change so when abortion performed in september of 2021 that was lawful because uh rover row and casey are still in place that becomes unlawful should rowan casey be overruled in dobbs could then form the basis for a lawsuit three years from now uh similarly a defendant can face multiple suits on the same not multiple liability but multiple suits uh on the same abortion for performing the same abortion and so all of those were the the things that made the state remedy inadequate uh and therefore a basis for uh demanding injunctive relief in federal court so...
two points that i want to raise first with respect to non-

texas

residents non-

texas

residents could also be defendants um so you know justice alito presented the example of an out-of-state doctor who flies into

texas

and performs an abortion um you could get diversity of citizenship depending on how the damages work you might be able to get over 75 000 so you could imagine a case brought in federal court um under sba you know under klaxon in in in

texas

um or indeed perhaps in another state if their choice of law rules would select

texas

law because that's the place where the abortion was performed and yet you would never think of the

united

states

being an appropriate target of an injunction much less the federal districts court clerk or a federal district judge um nobody seemed to think that that would be appropriate yet it's not entirely obvious to me why if all state if all suits under sba even the ones that are outside row and casey might be appropriately uh the target of an injunction these wouldn't be uh either the other point about retroactivity is this is sort of a subset of just a broader question about what happens if row and casey overturned um you know there are a lot of

states

where the law on the book says that abortion is legal and there are various injunctions currently in place against the executive officers of those

states

enforcing the law if roe or casey were overturned presumably it would be appropriate under rule 60 b5 or whatever state...
equivalence to modify those injunctions and rescind them and then the question is could you bring a prosecution for an act that was done you know while roe and casey were still on the books and not overruled um that's a much harder question um on the one hand it seems like something of a bait and switch tell people that the supreme court has recognized the constitutional right but on the other hand um you're getting prosecuted for it anyway um yet the supreme court doesn't have a pardoned power they don't actually have the ability to change what's lawful and unlawful um outside the scope of individual cases within their jurisdiction um they can't tell you um that uh you know the constitution now says x if it doesn't um so it's not uh you know the court may have to face those questions if it limits rowan casey in any significant way but i don't think they're going to be staying on this theme for a second we have another question about sba this is chief justice roberts raised the point about sba circumventing traditional venue requirements this might go back to our judicial supremacy uh discussion or or whatnot and i'll actually i'll refer you to a comment that i saw in a

texas

article someone was saying well the courts the court might be inclined to quote protect its own power and slap down attempts to avoid the federal courts is that the right way to think about this i mean it can't be the case that everything belongs in...
federal courts right so continuing on that the federal reports might think so but yeah no i think that's that's absolutely right i mean it's it is there there are a lot of types of cases and categories of cases that are litigated in state court where rights holders assert their their rights defensively um some of those situations are created by the federal courts themselves um for example younger abstention is the federal court um pushing defendants into uh in surrendering the power um to do that so clearly the federal court's ordinary view is not that um federal courts have to federal district courts have to be available um for all for all circumstances and i think you know again the venue requirements were just one more sba sets all these really weird procedural um limitations therefore it's in it's an inadequate forum um which sort of ignores federal law and the federal constitution don't speak to a state's venue requirements if the state wanted to establish one giant venue for the entire state um federal due process doesn't impose any sort of limitations on that so that was another example of the court saying well here's all these weird state features and ignoring the question of so what

states

get to set up their court systems however they want as long as they comport with sort of basic due process notice opportunity to be heard in impartial decision maker and venue has never been thought to implicate any of those three i mean you...
could imagine a world in which the venue requirement was so onerous as to trigger perhaps a procedural due process objection if they say you know the

courthouse

is located at the bottom of lake michigan or something but um you know short of that uh the

united

states

lets you lay venue in all sorts of weird situations you know in bankruptcy law you can lay venue in really weird places and no one's ever thought that's a fifth amendment violation um so the um you know my sense is that if there were objections to the various sort of back-end post-enforcement barriers to litigation and the one i see is really serious is the lack of attorney's feats so sbh says that even if the suit against you is entirely frivolous and is intended solely for the purpose of harassment and has no merit whatsoever you still can't get attorney's fees um it is at least plausible to me that a rule like that is an abridgement of whatever right is being uh protected assuming there is such a right so if we said um you know you can you know no no attorney you can get attorney's fees for any other frivolous law any other privilege suit but not if it um involves speech critical of the mayor you know i think that i think that that would be a first amendment problem um but uh you know you would litigate that in the individual suit you would ask for attorneys fees the court might say no sba forbids them you would say that's unconstitutional because first amendment and then you would...
have that fight um and it would go up to the supreme court eventually so you know it it strikes me that the the various back end worries about venue about non-mutual issue preclusion which frankly is itself a relatively recent vintage um you know about uh um you know the the whether sba gives enough of an undue burden exception as an affirmative defense you know all of those things can be litigated defensively in individual lawsuits and it's not clear to me without congress having acted yet that either the us or the private plaintiffs have a legal

argument

to stand on in critiquing them offensively oh i guess i was muted there um okay our next question is about um let's see did any of the justices ask why the abortionists could not raise their constitutional defenses in any state court litigation if so what was the response i supposed to put a fine point on it professor sachs going back to your last point what's the right here is it the right of the abortionist to perform the abortion or is it a different it's the right of the

woman

well so there are two things to separate out here one is the third party standing question um some justices have been uh friendly to the

argument

that a person who performs an abortion cannot raise the right uh if any of the uh

woman

to receive that abortion as a defense i i think that's a little strange normally we say that if you're getting criminally prosecuted you can argue that the law under which you're prosecuted...
is unconstitutional that's available to you uh as an

argument

i mean either it's either the law is is in place or it isn't and presumably the legal system has to have some opinion on that um so that that's one issue and and that too would be litigated in the individual lawsuits as they're brought um but then more generally you know the concern was um you know is there so much of a chilling effect here with you know such enormous penalties you could imagine a statute with a million dollars of damages and so many barriers to its enforcement that back end defensive litigation is really not a viable option and i think one thing that's important is that the court did not seem at all interested in a aid official proclamation that you have a constitutional right to pre-enforcement review um maybe that was sort of a presupposition or sort of an idea that this is the normal course that ran through a lot of the court's questioning but nobody seemed willing to just go on record and say you always have a right to pre-enforcement review and either it comes through ex parte young or it comes through this maybe that's the import of of you know some of the justices positions but they didn't seem to be adopting it formally i don't know if professor wasserman has a different thought on that no i agree with that i think that was that was definitely the background assumption of of a lot of these questions and it was federal pre-enforcement is the norm...
unless it looks like the state proceeding is okay but look at all the things that are wrong with the state proceeding and so now we need federal enforcement and the problem with sb federal pre-enforcement review and the problem with sba is that it cuts it off but i don't think they were willing to i don't think we're going to write an opinion that says that no and and and i think it goes back to it it goes back to i think some of the things that that you've written in the blog post and i think that that some of the commentary has has reflected even if the prevailing view is right that um that

whole

woman

's

health

is gonna is gonna win um you know that's what people are saying reading the tea leaves uh it's a it's a really hard opinion to write right now because because either they're gonna have to address all of these background presumptions or they're going to ignore them and that's going to throw everything into disarray so one one thing i want to add real quick and this might be responsive to some of the questions that are out there i i'm really curious about the timing um so the court granted cert before judgment which is pretty unusual it expedited the

oral

argument

enormously it's like the fastest

oral

argument

since bushfigure i think um i have no idea when they're going to render a decision but that seems very important because if they're actually revisiting rowan casey and dobbs as you know seems to be the...
case um if it turns out that there is no uh constitutional right to abortion in the circumstances where

texas

has prescribed it um it seems like this case is moot um seems like there's nothing to talk about here who cares whether the

united

states

can sue if we know that they're going to lose and so i wonder whether the court will feel some need to sort of render an answer that will only be interesting for a little while before it gets to dobbs which is going to be argued in less than a month now um or whether the process of trying to write this opinion will take long enough that it'll run into dobbs and then they'll have to hold it until june or something yeah i think they're going to decide this before the month is out i think they want this case disposed of whether for optics or or some other reason because i i you're right that i'm not sure what the practical effect is um but i think they want this case out of the way um when they decide dobbs and then they can leave it to the lower courts to decide um what to do about um to what to do about about this law um depending on how they resolved ops or maybe it gets fast tracked back through the uh back through the the the state system so quickly and it's back to the court this term and some people have suggested that um uh the compromise the court may find is to uh declare the 15-week ban in dobbs valid declared this invalid so they haven't overturned rowan casey they've just pushed the...
the line back by you know some number of weeks but not all the way back to six weeks i i think that too would be a hard opinion to write i mean i i think so let me let me venture a hypothesis it takes four votes to grant cert i have no idea whether it also takes four to grant cert before judgment but some people have said that it does um in that case there might be one of these strange sort of vote cycles where you had four justices who really wanted to hear this case fast but you might not have five who want to decide it fast um in which case you might get something strange happening where sort of they were definitely going to argue it if they're going to argue it they might hear it they might as well hear it now um but it's not necessarily clear that there will be a five justice majority for deciding it pre-dobs i i just don't know we have about three minutes left so we'll get one more question and it's a great way to end um would you be able to comment on probable next

steps

for each side depending on who wins and maybe we touched on this in terms of well it might be moot but let's say that it's not so i guess i'd say with

whole

woman

's

health

if it uh if the the court says that they've got proper defendants it goes back to the district court uh to rule on a pending motion for a prolific it doesn't go back to the fifth circuit or go back to the district court to rule on a class certification of a defendant class of judges and...
clerks and then to rule on a preliminary injunction we pretty much know how the preliminary injunction is going to come out because the courts already ruled on the preliminary injunction in usb

texas

that uh that the law is constitutionally invalid and then that will be immediately appealed to the fifth circuit and and if the u.s prevails um that would i think affirm the preliminary injunction issue well no because it's on the q the qp has limited the question of may the u.s sue so then it would go back to the fifth circuit which would then have to decide um now that it knows that the us can sue what should it do about this about this appeal of a preliminary injunction um and presumably that would mean a an affirmance of the preliminary injunction so long as roe and casey are on the books um but i don't know if there are any other in you know preliminary injunction factors that might throw a wrench in the gears well terrific we're out of time this afternoon but i want to thank you both uh professors wasserman and sax very much for taking the time out of your busy schedules to talk about this case with us especially day after

argument

s so we really appreciate you taking the time thanks to our audience for calling in for your great questions great engagement apologies that we didn't get to we didn't get to all of them there are many many questions and perhaps we'll revisit this when a decision is rendered if it is rendered and if it's rendered soon...
but until next time thank you very much for joining us we are adjourned