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.
