United States v. Texas
Issues
Does the United States have the authority to sue to enjoin Texas’s recent ban on medical providers performing abortion after fetal heartbeat and prohibit the State, the State judiciary, or private citizens from enforcing it?
This case asks the Supreme Court to determine whether the United States may sue to enjoin S.B. 8, Texas’s law prohibiting medical providers from performing abortions once a heartbeat has been detected. In Whole Woman’s Health v. Jackson, the Fifth Circuit stayed the enjoinment of S.B. 8, determining that, due to the enforcement scheme delegating the authority to enforce S.B. 8 to private citizens, Whole Woman’s Health could not seek to enjoin the enforcement of S.B. 8 in federal courts. In response, the United States filed suit seeking an injunction against S.B. 8. Petitioner the United States argues that it has the authority to enjoin state judicial officers from enforcing the law in federal courts to protect its sovereign interests in protecting federal constitutional rights. Respondent Texas contends that the United States has no standing to seek injunctive relief and that sovereign authority does not permit the United States to file suit in this instance. The case has significant implications for accessing abortions and for protecting other constitutional rights.
Questions as Framed for the Court by the Parties
May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?
In 2021, Texas enacted a law which, in part, prohibits physicians from performing abortions on pregnant women once the fetus has a discernable heartbeat. Whole Woman’s Health v. Jackson I, at 4–5. The law, referred to as Senate Bill 8 (“S.B.
The authors would like to thank Deborah Dinner and Michael Dorf for their insight and guidance in this case.
Additional Resources
- Adam Liptak, Briefs Draw Battle Lines as Texas Abortion Law Nears Supreme Court, New York Times (Oct. 27, 2021)
- Jonathon Turley, Roe Roulette: Biden Administration Takes a Gamble with Emergency Appeal of Texas Abortion Law, The Hill (Oct. 30, 2021)
- Nina Totenburg, The Supreme Court Keeps Texas Abortion Law in Place, but Agrees to Review It, NPR (Oct. 22, 2021)