David Garrow on Texas SB8

David Garrow has an oped in today's Houston Chronicle, calling on Texas abortion providers to make history, as did Estelle Griswold in 1965. Here is the gist:

Estelle Griswold’s surname is legally famous — Griswold v. Connecticut, the 1965 Supreme Court ruling that recognized a constitutional right to marital privacy — because she, like her colleague Dr. Lee Buxton, had the courage to openly violate Connecticut’s criminal ban on contraceptive use and counseling. Planned Parenthood’s previous test case challenges to the state statute had been rebuffed on technical grounds by the high court, so in late 1961 Estelle and Lee publicly opened a clinic, and — to their delight — New Haven police officers soon arrived to confirm that she and Buxton were indeed knowingly violating the law.

The Chief Justice’s prescription is clear: If a Texas abortion provider steps forward to purposefully violate SB8 and welcome a state civil suit from any motivated Texan, that defendant doctor could immediately file suit in federal court against whichever state court judge is assigned to handle the case against them. With that federal litigation underway, even in an unfriendly venue such as Tyler, and notwithstanding the egregiously unprofessional behavior now being demonstrated in abortion cases by judges on the U. S. Fifth Circuit Court of Appeals, a Supreme Court petition by the defendant doctor could indeed be “properly presented.”

The entire essay is here.

Comments

[Howard Wasserman]

I don’t think this is right. Otherwise every defamation defendant would make this move when facing a suit over protected speech. That never happens, which suggests the judge in a civil action is not a proper defendant. There is an argument for suing that state plaintiff as being under color, but that is unique to this law.

Garrow ties this to Estelle Griswold. But Griswold didn’t sue the state court judge. She went through the criminal proceedings in state court and appealed her state conviction.

[Dave Garrow]

Hi Howard--Are you familiar with Pulliam v. Allen, 466 US 522 (1984)? I'd not known of it til this past week, but at a first read it seems capacious enough to allow for federal courts (albeit not CA5!) to put a stop to what TX's SB8 aims to encourage. I wasn't gonna cite it in a 670 word op-ed, but when read in conjunction with JGR's op. in WWH v. Jackson, it seems to be the sort of 'solution' that it appears he was hinting at...

[Howard Wasserman]

I am familiar with Pulliam, which involved a challenge to a judge's policy/practice within her court, making the judge, in essence, the executive official and placing the case within Ex Parte Young. Otherwise, every defamation defendant would sue the judge to put the case in federal court rather than having to defend the case in state court. Lower courts have refused similar attempts to use § 1983 to enjoin judges and clerks from having the opportunity to perform their functions in state litigation.

Pulliam has to be read in conjunction with Ex Parte Young, which in approving pre-enforcement federal suits against the attorney general to stop enforcement of a law, said the right to enjoin a state official from commencing suit "does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature."

There is the potential for a § 1983 action here. Not against the judge, but against the individuals deputized to bring these suits.