1. Last night's Fifth Circuit order granting Texas's application to stay the injunction against enforcement of #SB8 in US v. TX includes exactly one sentence of analysis — that relief is compelled by the Fifth Circuit and #SCOTUS rulings in Jackson.
Here's why that's just wrong:
Here's why that's just wrong:
2. Recall that "Jackson" is the suit by abortion providers that had attempted to prevent #SB8 from ever going into effect. The Fifth Circuit stay in that case was based upon various immunity defenses and the fact that the named private defendant might never try to enforce SB8.
3. The whole point of the federal government's *separate* lawsuit is that many of those immunity doctrines do *not* apply when the U.S. is the plaintiff, as Judge Pitman explained at great length in his detailed, 113-page ruling supporting the injunction:
int.nyt.com/data/documentt…
int.nyt.com/data/documentt…
4. There may be *other* procedural obstacles in the federal government's lawsuit (such as standing / whether there's a cause of action); the key is that those concerns were not addressed by — or resolved in — the Fifth Circuit's ruling granting a stay pending appeal in *Jackson.*
5. Nor does the #SCOTUS ruling provide any more support for the Fifth Circuit's stay. Recall that, after the Fifth Circuit's stay in *Jackson,* the Supreme Court rejected the *providers'* application for emergency relief in a cryptic, one-paragraph order:
supremecourt.gov/opinions/20pdf…
supremecourt.gov/opinions/20pdf…
6. #SCOTUS did not "resolve definitely any jurisdictional or substantive claim" in Jackson. It simply held that the providers hadn't carried their burden for emergency relief. That's hardly proof that, with the tables turned, TX has carried *its* burden in the opposite direction.
7. Moreover, at least two of the three concerns that the Court raised (but didn't resolve) in Jackson do not even *apply* to DOJ's suit, since (1) one of the defendants in DOJ's case *has* now brought an action to enforce #SB8; and (2) Ex parte Young is about sovereign immunity.
8. Simply put, neither the Fifth Circuit nor the #SCOTUS ruling in Jackson actually *answers* the questions raised by TX's application for a stay.
To hold otherwise is to either *misunderstand* those rulings or to assume that their substantive analysis just isn't relevant.
/end
To hold otherwise is to either *misunderstand* those rulings or to assume that their substantive analysis just isn't relevant.
/end
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