United States: "Interlocutory" Appeal Spells The End For Texas Abortion Informed Consent Litigation

A. When it's final.
 

On January 10, the U.S. Court of Appeals for the Fifth Circuit decided an appeal from a preliminary injunction that had blocked enforcement of Texas' new abortion informed-consent statute. The Texas statute requires a physician to perform and display a sonogram of the fetus, play the heart sounds of the fetus, and explain to the woman the results of each procedure, and establishes a 24-hour waiting period in most cases. It was scheduled to take effect on September 1 of last year, but was enjoined by a federal district court in Austin.

The Fifth Circuit reversed and dissolved the injunction. The court's opinion addresses important issues of constitutional law, and is of obvious interest to the lay public and press because of its controversial subject-matter and result. But the procedural outcome of the appeal reveals an important truth about certain types of cases where a preliminary injunction is appealed on an interlocutory basis: the appeal may wind up determining the merits of the entire case.

The Fifth Circuit based its decision on the first required element for a preliminary injunction – a probability of ultimate success on the merits. Because the issues were primarily legal rather than factual in nature, and the record had been sufficiently developed, the court proceeded to the merits of the constitutional questions, and determined that the statute was constitutional. It accordingly held that the plaintiffs had no likelihood of success on the merits, and that the injunction was therefore erroneous.

Procedurally, of course, this did not end the case, which was remanded to the district court for further proceedings consistent with the opinion. But the appellate decision effectively sounds the death knell for the plaintiffs' claims in the district court. At best, all that remains is to resolve any peripheral issues and obtain a final judgment, which will be controlled by the appellate opinion. The Fifth Circuit presumably recognized as much; it directed that any further appeals in the matter would be heard by the same panel.

In an appeal from a preliminary injunction, the appellate court does not ordinarily review the merits, but instead confines itself to the question of whether the trial court abused its discretion. "Probability of success on the merits" is usually part of that discretionary decision. But a trial court has no discretion to misapply the law to undisputed facts. And so, where the issues are primarily legal in nature, what the appellate court says about the probability of success on the merits will have a profound effect on the ultimate outcome of the case in the trial court.

We may get a chance to see this principle in action at a higher level in the near future. The Supreme Court of the United States has granted certiorari in an interlocutory appeal from a preliminary injunction blocking implementation of several portions of Arizona's controversial new statute addressing illegal immigration. In the course of deciding whether the plaintiffs in that case will "likely" win, the Court may well effectively decide whether they do win.