The Fifth Circuit’s aggressive behavior in the vaccine case almost pales in comparison to what the court has done with abortion. In September, the court rejected pleas from abortion providers in Texas to put Senate vigilante Bill 8 on hold so the clinics could litigate their cases against it. The clinics’ emergency motion came before the same three judges who later ruled in the OSHA vaccine case.
The unsigned opinion of the 19-page panel in the case, Whole Woman’s Health v. Jackson, analyzed the obstacles private plaintiffs faced in finding someone to sue a law claiming to isolate all state officials from responsibility for enforcing a blatantly unconstitutional ban on abortion after just six weeks of pregnancy. By rejecting the clinics’ motion, the panel primitively stated that “we must respect the boundaries of our jurisdiction.” The clinics’ claims against a Texas state judge and clerk were “misleading,” the court said.
The federal government then filed its own lawsuit against Texas based on the completely different theory that SB 8 was an affront to the sovereign interests of the United States and to the supremacy of federal law. A federal district judge, Robert Pitman, granted the preliminary injunction requested by the federal government in a 113-page advisory that meticulously disproved all of the state’s objections to the court’s jurisdiction.
Another panel of three Fifth Circuit judges, by a vote of 2 to 1, promptly blocked Judge Pitman’s order, explaining in a single sentence of a single paragraph that it granted the state’s request for a postponement “for the reasons stated in Whole Woman’s Health against Jackson.” The “stated reasons” for dismissing the private plaintiffs’ case had nothing to do with the federal government’s lawsuit, as the attorney general’s office told the Supreme Court in its request to stay of the fifth circuit.
“Those reasons don’t apply to this very different lawsuit,” Acting Solicitor General Brian Fletcher explained to the judges. “Sovereign immunity compelled the private plaintiffs at Whole Woman’s Health to indict individual state officials, and this court and the Fifth Circuit questioned whether those officers were the correct defendants. This lawsuit does not raise those questions because it is filed against the state of Texas itself, and the state has no immunity from lawsuits by the United States. The Fifth Circuit ignored that distinction, disproving the court’s sole justification for the postponement.” When the judges refused to lift the suspension, instead pleading the argument that took place on Nov. 1, Judge Sonia Sotomayor reiterated the attorney general’s point in a strong dissent.
There is no excuse for the Fifth Circuit’s failure to explain itself or for the Supreme Court’s failure to hold the court accountable for its dereliction of duty. But so far the Fifth Circuit is winning. SB 8 is still in effect.
Let’s not forget that this is the same court that in 2018, in a lawsuit filed by an abortion provider, June Medical Services, upheld Louisiana law requiring physicians performing abortions to have privileges in nearby hospitals. Bad enough that this was a requirement doctors couldn’t meet in Louisiana’s political and religious climate. What was really wrong with the Fifth Circuit decision was that two years earlier, in Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated an identical Texas law. In that case, the Supreme Court overturned a Fifth Circuit decision that found that the requirement for admissions privileges, despite leading to the closure of nearly half of Texas abortion clinics, did not impose an “undue burden” on women’s access. to abortion.