It makes no sense in this case as the Court of Appeals was letting the law go into effect. Had the Court blocked the law, THEN you could say that it was using a shadow docket, but it refrained in this case.
Do you have a cite as to why the license to practice in Texas is the important thing? Looking at the statute, all it says as far aw what is illegal is
| | Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH|
| |DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by|
| |Section 171.205, a physician may not knowingly perform or induce an|
| |abortion on a pregnant woman if the physician detected a fetal|
| |heartbeat for the unborn child as required by Section 171.203 or|
| |failed to perform a test to detect a fetal heartbeat.|
Where Section 171.205 is the medical emergency exception
Then it says the people sued are
(1) performs or induces an abortion in violation of
this subchapter;
(2) knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this subchapter, regardless of whether the person knew or should
have known that the abortion would be performed or induced in
violation of this subchapter; or
(3) intends to engage in the conduct described by
Subdivision (1) or (2).
So one could read it as anyone who aids any woman getting an abortion anywhere can be sued under Texas law provided they can get the jurisdiction issues sorted out. (the determination of which is way above my pay grade).
And a physician is defined as:
(4) “Physician” means an individual licensed to
practice medicine in this state, including a medical doctor and a
doctor of osteopathic medicine.
So a doctor is Kansas is not a “physician” as defined in the law, and is not covered under it, and therefore the abortion performed is not one covered under 171.204, and therefore is not an abortion that one can be sued for because it is not “performed or induced in violation of this subchapter.”
ETA: I suppose if the doctor in KS had dual licensure, there may be an argument.
Thanks I must have skipped over that bit.
I listened to a podcast on this issue. One of its members is an attorney who is now a columnist/writer.
Here is her take on it (there is lots more but even this bit is long…link to full transcript below).
From “Political Gabfest” commentator Emily Bazelon:
Yeah, I mean, I am aghast at the way this is taking shape. So Texas passed a law that gives the power of enforcement of six week, almost total ban on abortions to private citizens. And the sort of sleight of hand here is, OK, well, if there are no state officials who are involved in enforcing the law, then there’s no one to sue. And the Supreme Court just went for that sleight of hand. They allowed that to end women’s constitutional right to an abortion, people’s constitutional right to an abortion in Texas without even ruling on the merits, without doing all the parts of hearing a case and receiving full briefing and listening to arguments and having to present fully developed legal reasoning. That is the rule of law. That is why we have courts. That is why courts are different from politicians. We’ve many of us, I think, become more cynical about the divide between law and politics. But that doesn’t mean there’s no divide at all. And the Supreme Court, by abdicating its role and allowing the Fifth Circuit Court of Appeals to kind of play this game, because that was the court that canceled a hearing that the federal district court judge wanted to have to answer all these questions. That is just a really outrageous development. And if you’re OK with this, because you just, you know, think it’s OK to limit abortion. Think about another rate that you might want to enjoy and the way in which a law could play out in that context. So, for example, the Second Amendment, it is unconstitutional in this country to ban handguns if you’re a state or municipality. What if some blue state institutes a handgun ban in which all the enforcement is in the power of private individuals? That would be a kind of similar mechanism. I want to sort of make one kind of complicated legal point, because it’s been bothering me in the coverage. This shouldn’t be a hard lawsuit to successfully bring. So we’ve had for 100 years the idea that if you want to challenge the constitutionality or the legality of a law before it goes into full effect, before you have had your abortion clinic business shut down, you sue the state official. All that’s at issue here is who you sue. And then there’s a subsidiary question of whether the law is allowed to tell you you can only go to Texas state court as opposed to federal court. That’s it. It’s not that complicated. And the courts have many ways of dealing with this, which the Supreme Court has just chosen to punt on. And that is a really shocking part of this.
SOURCE:
I don’t disagree with hardly any of what he said (except for the editorializing). Texas found a sneaky way through that is in full compliance with the law. How is SCOTUS abdicating its role by following the law even if it leads to bad results?
Interesting, and makes sense. Would the woman be able to sue to quash citing a violation of Federal medical privacy laws?
I appreciate the information. I’m trying to get a feel for just how far this law can go. It, and any future analogous laws - abortion or not - seem ripe for abuse.
Cheers!
I think she is saying the Supreme Court is skipping its usual process when hearing such cases.
From the previous cite:
And the Supreme Court, by abdicating its role and allowing the Fifth Circuit Court of Appeals to kind of play this game, because that was the court that canceled a hearing that the federal district court judge wanted to have to answer all these questions. That is just a really outrageous development.
And…
So we’ve had for 100 years the idea that if you want to challenge the constitutionality or the legality of a law before it goes into full effect, before you have had your abortion clinic business shut down, you sue the state official. All that’s at issue here is who you sue. And then there’s a subsidiary question of whether the law is allowed to tell you you can only go to Texas state court as opposed to federal court. That’s it. It’s not that complicated. And the courts have many ways of dealing with this, which the Supreme Court has just chosen to punt on. And that is a really shocking part of this.
Snip. Yes, and that is a really, really important issue. And the legal answer (so far) is “nobody.”
And you might say that isn’t fair, but it’s been the law for a long time now. But again, this doesn’t mean the law will survive; it just isn’t struck down on an emergency basis, and most laws aren’t.
For example if I sue saying that my state is denying me a particular gun right, I don’t typically get an emergency injunction which stops enforcement for years or more. Pro-choice advocates are so used to this, they simply did not see this sucker punch coming with the lack of jurisdiction.
They will get their bearings and find a way soon enough (or not soon enough depending on your view).
If ever there was a case for an injunction this would seem to be it.
Against who? Who should stop doing something that injures the plaintiffs? And for every answer you might come up with, there is a solid, legal reason you can’t do that.
I thought an injunction was meant to stop irreparable harm form occurring until a law has been adjudicated?
How is this law different?
If this stands I bet I could conjure up a similar law to close gun stores and we will have precedent to support it.
You are right, but an injunction is issued at a person. You sue me for money damages because my dog is peeing on your lawn. The judge issues an injunction against me to keep my dog out of your yard. The judge can’t issue an injunction against the whole world for everyone to keep their dogs locked up. Those people aren’t parties and have no notice of the suit.
If California passes a law to close gun stores, you can get an injunction against the individual (governor, AG, sheriff) who will close the gun store. This is the genius (maybe) of the TX law in that there is nobody.
But your point is well taken and why this law is very bad. The same law could close gun stores, or black voting, or gay marriage, or jury trials, or just name it. It is a clever way around the Constitution that the law definitely will account for in the future, and I can’t say that if I was a judge I wouldn’t have stayed up all day and night finding a plausible way to stop this here and now.
Why can’t someone sue the governor for this Texas law (or sue Texas)?
You can’t sue Texas because of the Eleventh Amendment. You can’t get an injunction against the Governor because what are you asking the Governor not to do? Abbott will say that he is not permitted to sue anyone under the new law, so you have no beef with him. Also he has sovereign immunity in his official acts as Governor.
So, it is possible to enjoin the executive but not the judicial branch?
The Supreme Court cannot tell lower courts they are not to do a thing until further instruction? (seems to me that is something the Supreme Court always does)
This has to do with enjoining government officials.
What are you asking the TX courts not to do? The judge doesn’t even have a single case in front of him, so there is no standing, no injury he has done to you, and you can’t just presume he will rule against you. When he has a case, federal case law presumes that he, just like a federal judge, would do the constitutional thing, so he isn’t enjoined.
If he rules against you, you have appellate remedies in state court which (again) are presumed to correct the lower judge’s error. And at the end of the day you can appeal the State’s highest court ruling to the U.S. Supreme Court.
This is the Younger Abstention Doctrine: Abstention doctrine - Wikipedia.
It wouldn’t happen or work because:
a. No politicians want to close gun stores.
b. Gun store owners would risk lawsuits, confident of, at worst, winning all cases on appeal.
With abortion, there is a genuine possibility the Supreme Court will uphold S.B. 8 when a case, without standing issues, reaches it. Planned Parenthood can’t risk being put out of business by losing thousands of lawsuits.
Stop enforcement of the law until the law can be adjudicated. Otherwise irreparable harm will be done that impacts a constitutionally protected right. Plaintiffs can start by saying the law itself denies them the ability to litigate the issue from the get-go.
Gaming the system and finding exploits should not be rewarded. The knock-on effects are, frankly, scary and they most likely will find something you (general “you”) care about.
Read the Texas law again.
Gun store owners would lose even if they won every case. It’d cost them so much to litigate non-stop they’d never be able to stay in business.
That’s the point of this law.