And this court is having none of Texas' bullshit.
Here, S.B. 8 is deliberately structured so that no adequate remedy at law exists by which to test its constitutionality. By purporting to preclude direct enforcement by state officials, the statutory scheme is intended to be insulated from review in federal court. The State itself concedes that the law’s terms proscribe review by the federal courts, limiting review to state court alone.
And even in state court, the opportunities for review are severely constrained. By limiting the defenses that a defendant may raise in state court, the law’s authors effectively cut off any hope that a defendant will prevail. The State makes much of potential defendants’ ability to challenge the constitutionality of the statute in state court. However, the law itself prohibits defendants from raising the defense that they believed the law to be unconstitutional. Tex. Health & Safety Code § 171.208(e)(2). And by preventing defendants from recovering any attorney’s fees in the event that they prevail, the law winnows down the class of individuals financially able to sustain the litigation - even if they are sure to prevail. Moreover, the scheme provides no mechanism for suit by pregnant persons seeking abortions, the individuals most affected by the law. Given these circumstances, the Court finds that redress at law is likely unavailable in federal court and is likely unavailable through the state courts as well. Thus, this is a paradigmatic case in which equitable remedies are necessary to vindicate a fundamental constitutional right.
And:
This Court’s conclusion that private individuals are either state actors or in active concert with the State is bolstered by the positions of the intervenors in this case. In their Motion to Intervene, which this Court granted, the Texas Intervenors stated that they intend to sue people and entities that violate S.B. 8 for conduct that is “clearly unprotected by the Constitution.” The Texas Intervenors carefully tried to argue they are not state actors, but their declared intent to enforce S.B. 8 speaks the loudest. ...
More broadly, the Intervenors as a group believe that the State granted them a roving commission to enforce the State’s abortion laws. The fact that the Texas Intervenors understand that their interests would be impacted if this Court enjoins enforcement of S.B. 8 drives home the point that the Texas Intervenors recognize that they are carrying out state policy and enforcement and that an injunction of S.B. 8 would interfere with their rights to enforce state laws. The other intervenor, Oscar Stilley, an Arkansas resident who filed an S.B. 8 lawsuit against an abortion provider, spells it out: “The State of Texas in enacting [S.B. 8] has delegated power that it does have to people it does not know.” He continues: “We are told that doctors don’t have standing to raise the constitutional rights of their patients – but Oscar Stilley somehow has standing to sue people he’d probably like if he knew them, for things he doesn’t disagree with, which caused him no damage or injury whatsoever.” Stilley has sued an abortion provider and wants to continue suing abortion providers and health insurance companies solely to make money. His strategy is to sue and then offer a cheap settlement of “perhaps as low as $100 per abortion”—versus $10,000 or more in statutory damages. His is a volume business. Setting aside the absurdity and perversity of a law that incentivizes people who do not disagree with abortion care to sue abortion providers to make a quick buck, Stilley explicitly states his perception that the State delegated part of its enforcement power, i.e., bringing suits, to him.
And:
...had this Court not acted on its sound authority to provide relief to the United States, any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction. As has been reported, “legal scholars fear that the law in Texas will lead to a rush of similar efforts in other states, prompting local legislators to pursue new measures on gun rights, immigration[,] and other divisive political issues, all in an effort to sidestep the federalgovernment. From the Deep South to the Upper Midwest, legislators in many conservative states have started to explore how similar laws could be put in place in the months ahead.” Equally plausible is that states at the other end of the political spectrum could use a similar tactic to ban or impermissibly limit another constitutional right, like a right grounded in the Second Amendment, to further a political agenda. This Court’s preliminary injunction, should it stand, discourages states from doing so: if legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it, then other states are less likely to engage in copycat legislation. Thus, rather than increase the number of suits by the United States, this Court’s preliminary injunction maintains the status quo of
very few such suits and preserves this cause of action for exceptional cases like this one.
Finally, the State has requested, in the event the Court preliminarily enjoins enforcement of S.B. 8, that the Court stay any injunction until the State has the opportunity to seek appellate review. The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right. From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.
https://www.justsecurity.org/wp-content/uploads/2021/10/show_temp.pdf
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