1. DOJ maintains that it has broad authority to seek “equitable relief to protect interests of the federal government, notwithstanding the absence of express statutory authority to do so.” It argues that the “unique circumstances presented here—including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action—distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue.” (See pp. 22-28.)
Texas will surely vigorously contest DOJ’s position on this issue. This will likely be a major focus of the dispute, both before federal district judge (and Obama appointee) Robert L. Pitman and on appeal in the Fifth Circuit. It’s a safe bet that Pitman will agree with DOJ and adopt its proposed order. It’s far less clear to me that the Fifth Circuit will do so.
2. Any injunctive relief that Pitman provides will likely be of little or no use to abortion providers in Texas unless and until there is a final ruling from the Fifth Circuit (or Supreme Court) that affirms Pitman’s order. If the injunctive relief is vacated on appeal (including by the en banc Fifth Circuit), the abortion providers will remain liable for any post-heartbeat abortions that they do in the interim. The Texas Heartbeat Act specifically provides that “a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates [the Act],” is not a defense to liability under the Act. Any challenge (on due-process or other grounds) to the operation of this provision strikes me as baseless. Thus, the liability concerns that that have evidently led abortion providers not to violate the Act should remain essentially unchanged in the interim.
3. Indeed, the injunctive relief that DOJ seeks—even if ultimately affirmed—would not provide abortion providers any protection against private lawsuits brought in federal court by residents of other states under federal diversity jurisdiction. To be sure, plaintiffs invoking a federal court’s diversity jurisdiction (unlike plaintiffs in state court) would have to satisfy federal standing requirements and the $75,000 amount-in-controversy requirement. But there may well be plenty of plaintiffs—e.g., prospective adoptive couples who assert that abortion is harming their ability to adopt a baby from Texas—who could plausibly allege injury in fact. And it takes at most eight violations—and probably no more than two or three, given that the statutory damages of “not less than $10,000” applies to every violator—to meet the amount-in-controversy requirement. So the abortion providers’ liability concerns might well remain even if DOJ is victorious in this case.
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