Whole Woman's Health v. Jackson

• Decision Date: 10 September 2021
• Docket Number: No. 21-50792,21-50792
• Parties: WHOLE WOMAN'S HEALTH, on behalf of itself, its staff, physicians, nurses, and patients; Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff, physicians, nurses, and patients, doing business as Alamo Women's Reproductive Services; Brookside Women's Medical Center, P.A., on behalf of itself, its staff, physicians, nurses, and patients, doing business as Brookside Women's Health Center and Austin Women's Health Center; Houston Women's Clinic, on behalf of itself, its staff, physicians, nurses, and patients; Houston Women's Reproductive Services, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood Center for Choice, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood of Greater Texas Surgical Health Services, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood South Texas Surgical Center, on behalf of itself, its staff, physicians, nurses, and patients; Southwestern Women's Surgery Center, on behalf of itself, its staff, physicians, nurses, and patients; Whole Women's Health Alliance, on behalf of itself, its staff, physicians, nurses, and patients; Medical Doctor Allison Gilbert, on behalf of herself and her patients; Medical Doctor Bhavik Kumar, on behalf of himself and his patients; The Afiya Center, on behalf of itself and its staff; Frontera Fund, on behalf of itself and its staff; Fund Texas Choice, on behalf of itself and its staff; Jane's Due Process, on behalf of itself and its staff; Lilith Fund, Incorporated, on behalf of itself and its staff; North Texas Equal Access Fund, on behalf of itself and its staff; Reverend Erika Forbes; Reverend Daniel Kanter; Marva Sadler, Plaintiffs—Appellees, v. Judge Austin Reeve JACKSON; Penny Clarkston; Mark Lee Dickson; Stephen Brint Carlton; Katherine A. Thomas; Cecile Erwin Young; Allison Vordenbaumen Benz; Ken Paxton, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

13 F.4th 434

WHOLE WOMAN'S HEALTH, on behalf of itself, its staff, physicians, nurses, and patients; Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff, physicians, nurses, and patients, doing business as Alamo Women's Reproductive Services; Brookside Women's Medical Center, P.A., on behalf of itself, its staff, physicians, nurses, and patients, doing business as Brookside Women's Health Center and Austin Women's Health Center; Houston Women's Clinic, on behalf of itself, its staff, physicians, nurses, and patients; Houston Women's Reproductive Services, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood Center for Choice, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood of Greater Texas Surgical Health Services, on behalf of itself, its staff, physicians, nurses, and patients; Planned Parenthood South Texas Surgical Center, on behalf of itself, its staff, physicians, nurses, and patients; Southwestern Women's Surgery Center, on behalf of itself, its staff, physicians, nurses, and patients; Whole Women's Health Alliance, on behalf of itself, its staff, physicians, nurses, and patients; Medical Doctor Allison Gilbert, on behalf of herself and her patients; Medical Doctor Bhavik Kumar, on behalf of himself and his patients; The Afiya Center, on behalf of itself and its staff; Frontera Fund, on behalf of itself and its staff; Fund Texas Choice, on behalf of itself and its staff; Jane's Due Process, on behalf of itself and its staff; Lilith Fund, Incorporated, on behalf of itself and its staff; North Texas Equal Access Fund, on behalf of itself and its staff; Reverend Erika Forbes; Reverend Daniel Kanter; Marva Sadler, Plaintiffs—Appellees,

v.Judge Austin Reeve JACKSON; Penny Clarkston; Mark Lee Dickson; Stephen Brint Carlton; Katherine A. Thomas; Cecile Erwin Young; Allison Vordenbaumen Benz; Ken Paxton, Defendants—Appellants.

No. 21-50792

United States Court of Appeals, Fifth Circuit.

FILED September 10, 2021

Marc A. Hearron, Center for Reproductive Rights, Washington, DC, Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, New York, NY, Joseph Alexander Lawrence, Esq., Jamie A. Levitt, Esq., Morrison & Foerster, L.L.P., New York, NY, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, Brooklyn, NY, for Plaintiffs-Appellees Whole Woman's Health, Alamo City Surgery Center, P.L.L.C., Brookside Women's Medical Center, P.A., Houston Women's Reproductive Services, Southwestern Women's Surgery Center, Whole Women's Health Alliance, Afiya Center, Frontera Fund, Fund Texas Choice, Jane's Due Process, Lilith Fund, North Texas Equal Access Fund, Erika Forbes, Daniel Kanter, Marva Sadler, and Allison Gilbert.

Brigitte Adrienne Amiri, Senior Attorney, Julia Kaye, American Civil Liberties Union Foundation, New York, NY, Lorie Ann Chaiten, American Civil Liberties Union, Chicago, IL, Andre Segura, American Civil Liberties Union of Texas, Houston, TX, for Plaintiff-Appellee Houston Women's Clinic.

Richard Muniz, Julie A. Murray, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs-Appellees Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, and Bhavik Kumar.

Judd Edward Stone, II, Beth Ellen Klusmann, Esq., Natalie Deyo Thompson, Benjamin Walton, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellants Austin Reeve Jackson, Stephen Brint Carlton, Katherine A. Thomas, Cecile Erwin Young, Allison Vordenbaumen Benz, and Ken Paxton.

Heather Gebelin Hacker, Andrew Bowman Stephens, Assistant Attorney General, Hacker Stephens, L.L.P., Austin, TX, for Defendant-Appellant Penny Clarkston.

Jonathan F. Mitchell, Austin, TX, for Defendant-Appellant Mark Lee Dickson.

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:

This case presents a challenge to a recently enacted Texas law, S.B. 8, which authorizes private civil actions against persons who abort an unborn child with a detectable fetal heartbeat. The plaintiffs, a coalition of Texas abortion providers, principally seek an injunction against the Texas court system—judges, clerks, and a hypothetical private litigant—to prevent any Texas court from entertaining suits under S.B. 8. The unusual nature of the law and of the challenge to it raise "complex and novel antecedent procedural questions." Whole Woman's Health v. Jackson , No. 21A24, ––– U.S. ––––, ––––, 141 S.Ct. 2494, ––– L.Ed.2d ––––, 2021 WL 3910722, at *1 (U.S. Sept. 1, 2021). Our panel must address some of those questions in order to decide a flurry of motions filed as the law took effect last Wednesday, September 1.

The motions arise out of the defendants’ appeal of the district court's denial of their motions to dismiss the case on jurisdictional grounds. Due to the compressed timeframe, we had to decide some of those motions without giving reasons. We give them now. Two other motions concerning the private individual, Mark Lee Dickson, are still pending. We decide those today. At the outset, we provide a summary of our ruling.

First, as to the state officials’ appeal. The district court denied the officials’ Eleventh Amendment immunity defenses, and they immediately appealed under the collateral-order doctrine. The district court properly stayed proceedings against those defendants. However, the plaintiffs then sought an emergency motion for injunction pending appeal, premised on their argument that the district court's Eleventh Amendment immunity ruling was correct. We previously DENIED that motion and now explain why. S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any "enforcement connection" to S.B. 8 and are not amenable to suit under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

Second, as to Dickson's appeal. The district court denied Dickson's motion to dismiss, which relied on standing and other jurisdictional grounds, and Dickson appealed. But the district court declined to stay proceedings against Dickson and proposed to go forward against him alone. Dickson then asked us for a stay, and we temporarily stayed proceedings while considering his request. In the meantime, the plaintiffs moved to dismiss Dickson's appeal. We conclude that jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials’ collateral-order appeal. The notice of appeal therefore divested the district court of jurisdiction over Dickson as well as the officials. See Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Accordingly, we DENY the plaintiffs’ motion to dismiss Dickson's appeal, and we GRANT Dickson's motion to stay the district court proceedings pending appeal.

Finally, we EXPEDITE the appeal to the next available oral argument panel.

BACKGROUND

A group of Texas abortion providers and others ("Plaintiffs")¹ brought a pre-enforcement challenge under 42 U.S.C. § 1983 to Senate Bill 8 ("S.B. 8"), a Texas abortion law that took effect on September 1, 2021. S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021) (codified at TEX. HEALTH & SAFETY CODE § 171.201, et seq. ). Plaintiffs named as defendants several Texas agency heads and a putative class of all Texas state judges and clerks of court ("State Defendants") as well as a private Texas citizen, Mark Lee Dickson ("Dickson") (collectively "Defendants").² They sought injunctive and declaratory relief to prevent enforcement of the law.

S.B. 8 prohibits a physician from performing an abortion on "a pregnant woman"³ if her unborn child has a detectable fetal heartbeat, absent a medical emergency. TEX. HEALTH & SAFETY CODE §§ 171.204(a) ; 171.205(a). Conspicuously, the law limits enforcement to "private civil actions." Section 171.207, entitled "Limitations on Public Enforcement," provides in relevant part:

Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

Id. § 171.207(a).⁴ In turn, section 171.208 provides that "any person" other than state officials may bring a civil action against persons who perform prohibited abortions and those who aid and abet them. Id. § 171.208(a). If a violation is found, courts shall award injunctive relief, damages "not less than $10,000" for each abortion, and costs and attorney's fees. Id. § 171.208(b). Among other affirmative defenses, a defendant may prove that the relief sought "will impose an undue burden" on a woman or women the defendant has standing to represent. Id. § 171.209(b); see also id. § 171.208(f).

In light of S.B. 8's enforcement mechanism, Plaintiffs have adopted a novel strategy for their pre-enforcement challenge. Principally, they seek to enjoin the entire Texas judiciary to prevent any court from entertaining S.B. 8 lawsuits. See Compl. for Decl. and Inj. Relief—Class Action ("Compl."), at 35 (seeking to certify a class "of all non-federal judges in the State of Texas with jurisdiction over civil actions and the authority to enforce S.B. 8"). To that end, they have sued a putative class of all state judges and clerks of court, as well as Dickson, who they allege is likely to bring a future S.B. 8 civil action. But see Whole Woman's Health , ––– U.S. at ––––, 141 S.Ct. 2494, 2021 WL 3910722, at *1 (observing "the sole private-citizen defendant before us has filed an affidavit...