More Delays Likely Ahead In Challenge To Texas "Heartbeat" Abortion Law

The procedural complexities in Whole Woman's Health v. Jackson-- the challenge by abortion providers to Texas' "heartbeat" abortion ban-- have increased as Justice Gorsuch yesterday granted challenger's request to issue a certified copy of the judgment immediately rather than in the normal 25-day time frame.  However Gorsuch remanded the case to the 5th Circuit, rather than to the district court. National Law Journal explains the implications of this action:

In its opposition, Texas Solicitor General Judd Stone argued that the justices’ holding that the four licensing officials could be sued “turned on its tentative resolution of a question of Texas Law, and ‘Texas courts and not [the Supreme Court] are the final arbiters of the meaning of state statutory directions.’” A remand to the district court, he argued, would prevent the four officials from asking the appellate court to certify the state law question of the officials’ enforcement authority to the Texas Supreme Court.

If Texas does indeed ask the appellate court to certify that question to the Texas Supreme Court, resolution of the constitutional challenge to the law will be delayed indefinitely.

5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

Texas State Court Holds That SB8-- Heartbeat Abortion Law-- Is Unconstitutional

In Van Stean v. Texas Right To Life, (TX Dist. Ct., Dec. 9, 2021), a Texas state trial court issued a declaratory judgment concluding that SB8, the Texas "heartbeat" abortion law, is unconstitutional under the Texas state constitution as well as the 14th Amendment. In a 48-page opinion, it concluded:

A. Standing for uninjured person. SB 8's grant of standing to "any person" to be awarded "no less than $10,000" and a mandatory injunction without showing harm to himself, taken from a person who has not harmed him, violates the Texas Constitution's "open courts" provision and is unconstitutional.

B. Punishment without due process. SB 8's mandate that trial courts "shall" award "no less than $10,000" to an unharmed claimant from a defendant who did him no harm is punishment and not compensation that will deprive persons of property without due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

C. Delegation of executive power to private persons. SB 8's grant of enforcement power to "any person" is an unlawful delegation of power to private persons that violates the Texas Constitution's separation of powers provision and is unconstitutional.

Volokh Conspiracy reports on the decision.

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sotomayor filed a dissenting opinion, joined by Justices Breyer and Kagan, saying in part:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

HHS Rescinds Trump Era Religious Exemptions For Child Welfare Agencies In Three States

Yesterday, the Department of Health and Human Services announced that it is rescinding waivers of non-discrimination requirements issued during the Trump Administration to South Carolina, Texas and Michigan, along with certain child welfare agencies in those states. The waivers allowed faith-based foster care placement agencies to receive federal funds even though they select foster parents on the basis of religion. (See prior posting.) In its release yesterday, HHS summarized the background for its action:

Through these waivers, States and child welfare agencies – including States and organizations that did not make such requests - were granted exemptions from program nondiscrimination requirements in a rule that was not in effect. In taking today's actions, HHS is reestablishing its long-standing Department practice of evaluation of religious exemptions and modifications of program requirements on a case-by-case basis, as needed, and as is required by law—which was unprecedently changed in 2017 by the previous Administration. Today, HHS reaffirms its important commitment to core American values:  HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.

Magistrate Says Texas Pension Participant Lacks Standing To Challenge Israel Boycott Law

In Abdullah v. Paxton, (WD TX, Nov. 8, 2021), a Texas federal magistrate judge recommended dismissing on standing and sovereign immunity grounds a suit by a participant in the Texas Employee Retirement System (ERS) challenging a Texas law that requires ERS to divest fund assets from companies that boycott Israel if divestment can be carried out without harming the value of fund. Plaintiff claims that the divestment requirement violates his free speech, Establishment Clause and due process rights. He also asserts a dormant commerce clause claim. The court said in part:

[A] Declaratory Judgment that Section 808 is unconstitutional and enjoinment of its use would have no effect on Abdullah’s financial interests or his ultimate annuity payments. Abdullah has failed to allege a harm to him that would be redressed by a finding that Section 808 violated his rights. He therefore does not have standing to bring this claim.

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge.  In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

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.

In United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN.  At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be  heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

Supreme Court Grants Extra Rapid Review In Texas Abortion Cases, But Postpones Granting Interim Stay

The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review.  In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law.  The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:

[W]hether 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.

In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.

Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:

[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended... 

 CNN reports on the Court's action, as does the New York Times.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

5th Circuit Reinstates Texas "Heartbeat" Abortion Ban While Appeal Is Pending

By a 2-1 vote tonight, in United States v. State of Texas, (5th Cir., Oct. 14, 2021), the U.S. 5th Circuit Court of Appeals in a one-page Order allowed Texas' restrictive "heartbeat" abortion law to go back into effect while an expedited appeal of the district court's decision enjoining it is heard.

5th Circuit Issues Narrow Stay Of Injunction Against Texas "Heartbeat" Abortion Law

As has been widely reported (CNN), the U.S. 5th Circuit Court of Appeals early today in United States v. State of Texas, (5th Cir. Oct. 9, 2021) temporarily lifted the Texas federal district court's preliminary injunction against enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. An appeal was filed by Texas and by three intervenors who planned to sue under the new law. In its motion (full text) filed yesterday, Texas said:

The State respectfully requests an emergency stay pending appeal ...  and an administrative stay as soon as possible to prevent it from being held in contempt for the actions of third parties it cannot and does not control.

In its motion, Texas argued in part:

[S]tate court clerks are now enjoined from “accepting,” “docketing,” or “maintaining” any S.B. 8 case, ... but “[t]he longstanding rule in Texas is that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not” a clerk adds “a file mark.”... Thus, an S.B. 8 suit “is ‘filed’ when it is tendered to the clerk,” regardless of the clerk’s actions.... Once such a suit is filed, clerks can be accused of “accepting,” “docketing,” and “maintaining” it, especially given the district court’s failure to define the terms it used. Put simply, there is no way for the State to ensure compliance with this injunction and avoid contempt proceedings.

In its decision today, the 5th Circuit apparently focused on this narrow concern. Its order provides:

IT IS ORDERED that Intervenors’ emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel. Appellee is directed to respond to the emergency motion by 5 pm on Tuesday, October 12, 2021.

IT IS ORDERED that Intervenors’ motion for a temporary administrative stay pending the court’s consideration of the emergency motion is GRANTED.

Federal District Court Enjoins Texas' Controversial "Heartbeat" Abortion Ban

In United States v. State of Texas, (WD TX, Oct. 6, 2021), a Texas federal district court in a 113-page decision, preliminarily enjoined enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. In another case, the U.S. Supreme Court last month refused to prevent the Texas law from going into effect while its constitutionality was being litigated. Today's decision comes in a lawsuit filed by the U.S. Department of Justice. In it, the court explores at length the standing and redressability issues that have been seen as impediments to courts' reviewing the law that effectively bans almost all abortions after six weeks of gestation.  The court said in part:

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials.....

This Court finds that S.B. 8 concretely injures the United States by prohibiting federal personnel and contractors from carrying out their obligations to provide abortion-related services and subjecting federal employees and contractors to civil liability for aiding and abetting the performance of an abortion....

The next question is whether the United States suffers an injury-in-fact such that it has standing to challenge a potential violation of Constitutional rights that not only impacts federal agencies, but the public at large.... The United States has standing to file suit in parens patriae for probable violations of its citizens’ Constitutional rights.... [W]hen, as here, a state appears to deprive individuals of their constitutional rights by adopting a scheme designed to evade federal judicial review, the United States possesses sovereign interest in preventing such a harm. This interest is sufficient to establish a particularized injury....

... [I]n the alternative, ... the concepts underpinning In Re Debs and its progeny likewise establish a particularized injury to sovereign interests of the United States.... Debs supports standing where the government’s interest is preventing harms to “the general welfare” and the “public at large."... 

However, this Court notes that were Debs’s progeny to be read narrowly to support standing only in cases involving interstate commerce, the United States has likewise demonstrated an interest sufficient to establish standing..... By extending liability to persons anywhere in the country, S.B. 8’s structure all but ensures that it will implicate commerce across state lines.... In addition to imposing liability on those coming into Texas, the law has also already had the effect of pushing individuals seeking abortions into other states.... This stream of individuals across state lines burdens clinics in nearby states and impedes pregnant individuals in surrounding states from accessing abortions due to backlogs.....

[T]he State’s scheme to disguise its enforcement role and disclaim accountability collapses upon cursory inspection. The State enacted S.B. 8 and created a private enforcement scheme that clothes private individuals with the State’s enforcement power.... That delegation alone would have been sufficient to show state action. The practical operation of an S.B. 8 lawsuit in Texas courts deepens the State’s enforcement role.... [T]he State plays a role at every step of an S.B. 8’s lifecycle in Texas courts. A private cause of action enforcement scheme is meaningless without state action.... An injunction properly runs against the State....

... [T]he State has intentionally crafted a statute to employ private citizens as its proxy. Put simply, the State’s participation in enforcing S.B. 8 lawsuits amounts to actionable state action....

... [P]rivate individuals enforcing S.B. 8 are properly regarded as state actors.... The private individuals who bring S.B. 8 lawsuits are [also] in active concert with the State to enforce S.B. 8....

IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§171.201– .212.

As set out above, this Court has the authority to enjoin the private individuals who act on behalf of the State or act in active concert with the State.... However, the Court need not craft an injunction that runs to the future actions of private individuals per se, but, given the scope of the injunctions discussed here and supported by law, those private individuals’ actions are proscribed to the extent their attempts to bring a civil action ... would necessitate state action that is now prohibited.

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.....

CNN reports on today's decision and notes that quickly after the decision, Texas filed a notice of appeal to the 5th Circuit.

Texas Sues EEOC Over Interpretation of Transgender Rights

The state of Texas this week filed suit in federal district court challenging an EEOC Guidance document (full text) issued in June interpreting the application of the Supreme Court's Bostock decision to rights of transgender employees under Title VII.  The complaint (full text) in State of Texas v. EEOC, (ND TX, filed 9/20/2021), contends that the EEOC's interpretation of requirements for  usage of bathrooms, dress codes and pronoun usage misstates the law, violates the First Amendment and was adopted without following proper procedures. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.

DOJ Seeks TRO To Prevent Suits Under Texas "Heartbeat" Abortion Bill

After filing suit last week in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages, the Department of Justice yesterday filed an emergency motion for a temporary restraining order or preliminary injunction. The motion and memorandum of law (full text) in United States v. State of Texas, (WD TX, filed 9/14/2021), contends in part:

[T]he Court could enjoin any person who files suit under S.B. 8 from prosecuting his or her claim. Here, an injunction against Texas can run to the individuals who file civil enforcement actions because, at a minimum, those individuals would qualify as “persons who are in active concert or participation with” the State. Fed. R. Civ. P. 65(d)(2)(C). The purpose of Rule 65 is to prevent defendants from creating schemes to evade judicial review and enforcement by ensuring that injunctive relief “not only binds the parties defendants but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control.”

New York Times reports on the filing.

Justice Department Sues Texas To Block Enforcement Of "Heartbeat" Abortion Ban

The Department of Justice announced yesterday that it has filed suit in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. The complaint (full text) in United States v. State of Texas, (WD TX, filed 9/9/2021), contends:

Texas enacted S.B. 8 in open defiance of the Constitution.... Because S.B. 8 clearly violates the Constitution, Texas adopted an unprecedented scheme “to insulate the State from responsibility”...  by making the statute harder to challenge in court....

The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.

The complaint contends that state action is present, even though the statute relies on private enforcement:

[W]hile Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.” ...

Under the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution.

The complaint also alleges a more direct impact on the federal government:

S.B. 8 exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion-related services but refuse to do so to avoid liability under S.B. 8.

Attorney General Garland also delivered remarks (full text) announcing the lawsuit. Dallas Morning News has additional background and reactions.

Supreme Court Grants Review On Role Of Spiritual Advisor In Execution Chamber

In Ramirez v. Collier, (5th Cir., Sept. 6, 2021), the U.S. 5th Circuit Court of Appeals, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution to a convicted murderer who is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. (Background from New York Times.) Texas allows spiritual advisors to be present in the execution chamber, but they may not physically touch the prisoner nor speak. Judges Owen and Higginbotham each filed an opinion concurring in the per curiam order denying a stay.  Judge Higginbotham said in part:

[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs.

Judge Dennis dissented arguing that petitioner has made a strong showing that the state's policy substantially burdens his religious exercise in violation of RLUIPA. He said in part:

The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s “exceptionally demanding” standard.... 

However this evening, the U.S. Supreme Court granted a stay of execution and agreed to review the case. (Ramirez v. Collier, (Docket No. 21-5592, cert. granted 9/8/2021) (Order List). The Court's order granting certiorari calls for a briefing schedule that allows the case to be argued in October or November 2021.