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. 8”) limits enforcement exclusively to private civil actions, permitting “any person” other than state officials to bring claims against medical providers performing the abortion and any person who aided and abetted the said abortions. Id. at 5. The Texas legislature structured S.B. 8 such that private citizens bringing claims in Texas Courts are statutorily entitled to injunctive relief—an order stopping a physician from performing an abortion—and “not less than $10,000” per abortion in damages, as well as fees and costs. Id. S.B. 8 permitted multiple plaintiffs to bring cases against defendant medical providers for the same abortion, even if the provider had previously prevailed in that case. Id. While the Fifth Circuit had previously ruled that states may regulate pre-viability abortions “so long as [the regulations] do not impose an undue burden,” S.B. 8 required that the undue burden test be an affirmative defense, adjudicated anew with each case. Whole Woman’s Health v. Jackson, District Court Decision (“District Court Decision”), at 5–6.
Whole Woman’s Health, in concert with other abortion providers in Texas, sought a pre-enforcement injunction of S.B. 8 and filed suit against a consortium of state judges, including the named Judge Austin Reeve Jackson, clerks, and state agency heads, as well as a private citizen (collectively “Jackson”). Whole Woman’s Health, at 4. Whole Woman’s Health sought to enjoin state judges and clerks from hearing S.B. 8 cases and prevent the private citizen from bringing civil claims. Id. at 6. Jackson moved to dismiss on procedural grounds, arguing that sovereign immunity under the Eleventh Amendment barred plaintiffs from bringing suit against state officials such as judges, acting in their official capacity, in federal courts. District Court Decision, at 1, 13.
The Western District of Texas (“District Court”) denied the motion to dismiss, applying the exception to sovereign immunity articulated in Ex Parte Young (“Young”), which permits lawsuits in federal courts against state officers when state officers—in their official capacity—enforce a violation of federal law. Id. Here, the District Court determined that the state officials in question--judges and clerks--were the only state officials directly tasked with enforcing S.B. 8, and thus Whole Woman’s Health claims were not barred. Id. Jackson appealed to the Fifth Circuit. Whole Woman's Health, at 2.
Concurrently, the Fifth Circuit entertained a “flurry” of motions surrounding S.B. 8, including an emergency motion from Whole Woman’s Health for an injunction of S.B. 8, pending appeal. Id. The Fifth Circuit denied that motion, permitting the law to go into effect. Id. at 7. Whole Woman’s Health appealed that decision to the Supreme Court, which denied the emergency appeal due to “complex and novel antecedent procedural questions” without indicating “any conclusion about the constitutionality of Texas’s law.” Whole Woman’s Health v. Jackson, Denial of Injunctive Relief, at 1. S.B. 8 then went into effect on September 1. Application to Vacate Stay, at 7.
After the Supreme Court denied Whole Women’s Health motion for injunctive relief, the Fifth Circuit responded to Jackson’s appeal, in full, and disagreed with the District Court’s conclusion that the state officials would have authority to enforce S.B. 8. Whole Woman’s Health at 11. The Fifth Circuit determined that because S.B. 8 “emphatically precludes enforcement by any state, local, or agency officials,” no state official was enforcing the law, as required by Young. Id.
In response, the United States filed an application for injunctive relief to stay S.B. 8 pending appeal. U.S. v. Texas. The District Court granted the motion for a preliminary injunction on October 6, stating that the United States has authority to sue and that S.B. 8 violates the Fourteenth Amendment and interferes with the doctrines of preemption and intergovernmental immunity. Id. The Fifth Circuit stayed the injunction a week later for the reasons given in Whole Woman’s Health. U.S. v Texas II. Then, on October 18, the United States applied for emergency relief to reinstate the injunction at the Supreme Court. See generally Application to Vacate Stay.
The Supreme Court treated the U.S. application for emergency relief as a petition for certiorari, and granted certiorari, alongside Whole Woman’s Health v. Jackson, on October 22, 2021. United States v. Texas, et al., at 1.
UNITED STATES' ARTICLE III STANDING
The United States argues that it has standing under Article III to bring this suit, stating there is a justiciable controversy because the case involves adversity of interests between the United States and Texas. Brief for Petitioner, United States, at 24–25. The United States distinguishes this case from Muskrat v. United States, in which the Supreme Court held that Article III does not permit the federal judiciary to determine the constitutionality of a statute providing for private litigation, when the federal government are the only adverse parties to the suit. Id. at 25. Here, the United States maintains that its interest in protecting federal constitutional rights is opposed to Texas’ interests. Id. Moreover, the United States notes that whereas Muskrat involved the distribution of rights between individuals, here S.B. 8 denigrates a constitutional right, necessarily invoking the federal government’s interest, Id.
Texas argues that the United States lacks standing under Article III to sue because, just like Muskrat, neither the United States nor Texas is a party to S.B. 8 litigation. Brief for Respondents, Texas et al. ("Texas"), at 31. Texas contends that the United States cannot sue Texas because it is unable to sue Texas’ officials directly to circumvent the issue of jurisdiction. Id. at 27. According to Texas, neither disagreement over S.B. 8's constitutionality nor the United States' sovereign interests can give standing to the United States. Id. at 30, 34. Texas also argues that only a private individual can seek injunctive relief based on his own rights against a state official. Id. at 43.
UNITED STATES' CAUSE OF ACTION IN EQUITY
The United States argues that it can sue in equity to protect its sovereign interests and, specifically, to protect federal constitutional rights from state interference. Brief for Petitioner at 14. The United States contends that, under In re Debs et al., the federal government can seek equitable relief even without an express statutory cause of action. Id. at 15. According to the United States, Texas fashioned S.B. 8, a bill the United States maintains is undisputedly unconstitutional to thwart judicial review. Id. at 16, 18. The United States argues that Texas threatens its sovereign interest in upholding the supremacy of the Constitution. Id. at 19. Accordingly, the United States argues that it must sue to prohibit violation of federal constitutional rights. Id. at 24.
Further, the United States contends that it can sue in equity because S.B. 8 interferes with the federal government's own activities. Brief for Petitioner at 27–28. The United States argues that this bill violates the principles of preemption and intergovernmental immunity because it hinders federal agencies, contractors, and employees to carry out their duties under federal law. Id. at 28–29. For example, according to the United States, the bill conflicts with 28 C.F.R. 551.23(c), which requires the arrangement for an abortion upon request of a pregnant inmate. Id. at 29.
Private Respondents disagree with the United States’ assessment of In re Debs et al., insisting that the United States must first identify a cause of action that authorizes it to file suit against Texas regarding S.B. 8. Brief for Intervenor-Respondents, Erick Graham et al. ("Private Respondents"), at 27. Private Respondents and Texas further note that Congress has granted specific causes of action for the executive branch under the Fourteenth Amendment, and it specifically has not given “a broad civil cause of action for the federal government or against a State.” Id. at 29; Texas at 52–53. Texas contends that the Court should not create an exception under the principles of sovereign interests. Texas at 34. According to Texas, a sovereign cannot represent the interests of private individuals, especially not against a State. Id. at 35. Texas also argues that it has not thwarted judicial review because the bill can be reviewed by state courts. Id. Texas further argues that the United States cannot sue in equity under Debs because neither of the underlying rationales of Debs apply in the instant case. Texas at 36.
Texas further argues that the United States cannot sue under the principle of preemption because it is highly speculative that federal policies will preempt state law. Texas at 39, 60. For example, there is no evidence that any of the four pregnant people in the custody of the Bureau of Prisons in Texas wants an abortion. Id. at 40. Private Respondents argue that the Court should defer to Texas’s representations that S.B. 8 does not regulate federal activities. Private Respondents at 40. Texas also argues that S.B. 8 does not violate intergovernmental immunity because it does not directly regulate the United States or discriminate against it. Texas at 63.
PROPRIETY OF INJUNCTIVE OR DECLARATORY RELIEF
The United States argues that injunctive relief is the proper means to stop unconstitutional actions. Brief for Petitioner at 28, 31. An injunctive relief falls into the jurisdiction of the federal courts because courts of equity have historically issued injunctions. Id. at 27, 31. According to the United States, such relief is proper against Texas because (1) state immunity does not apply here; and (2) Texas is plainly responsible for S.B. 8's violation of the Constitution. Id. at 31. Specifically, the United States notes that S.B. 8 is introduced by the Texas legislature, approved by the Texas governor, and enforced in Texas courts. Id. Moreover, the United States argues that the district court has already found that such an injury is not speculative. Id. at 30.
The United States also argues that S.B. 8 plaintiffs and state officials are properly bound by an injunction against Texas under the Federal Rules of Civil Procedure because they are "in active concert or participation" with the state. Brief for Petitioner at 33, 41; Fed. R. Civ. Pro. 65(d)(2)(C). The United States also contends that an injunction against clerks and judges, though unusual, is necessary in this case because the mere threat of filing an action contributes to a violation of the constitutional right. Id. at 38-39. The United States further argues that a declaratory judgement can only offer partial relief. Id. at 43. Therefore, the United States argues that the Court should affirm the preliminary injunction and vacate the stay. Id. at 45.
Private Respondents argue that the United States cannot enjoin Texas because (1) Texas is not responsible for enforcing S.B. 8; and (2) under Young, a state court cannot be enjoined from performing its duties and obligations. Private Respondents at 12, 17. Texas argues that an injunction will not redress the alleged injury because private individuals can still enforce S.B. 8 judgments under state law. Texas at 29. Texas also contends that there are no judgments that need to be enjoined and, if the bill is unconstitutional, any injury can be redressed by state courts when they apply this Court's holding. Id.
Texas also contends that the United States has not proved the alleged interference with federal programs is a likely injury to meet the threshold of a preliminary injunction. Texas at 40. Texas asserts that, even if one person under the custody of the federal government wants an abortion, such injury will still be speculative for the United States because, to be liable under S.B. 8, there must be a third party suing the federal employee or contractor who helps this inmate requesting a post-heartbeat abortion, the Texas court must hold that federal defendant liable, and such judgment must be upheld in appeal. Id. at 41.
CONSTITUTIONALITY OF S.B. 8
The United States argues that S.B. 8 is clearly unconstitutional because it violates the right “to have an abortion before viability and to obtain it without undue burden from the State” articulated in Planned Parenthood v. Casey. Brief for Petitioner at 16. The United States father notes that because S.B. 8 subjects abortion providers to unlimited liability and results in a near elimination of abortion clinics in Texas after six weeks of pregnancy, it cannot survive the undue burden test. Id. at 16–17. Moreover, according to the United States, throughout this litigation, Texas has not strongly argued that the bill is constitutional under the current legal framework; instead, it primarily argues that the court should overrule it. Id.
Texas argues that S.B. 8 is constitutional and complies with Casey because it allows an abortion provider to assert an undue-burden defense. Texas at 58. Texas further argues that it has not created an undue burden on abortion providers with the threat of lawsuits because abortion providers are “not afraid of litigation in general” and are willing to challenge the constitutionality of abortion regulations. Id. Private Respondents further argue that, even if some part of S.B. 8 is found unconstitutional, the Court should enforce the severability clause to preserve all constitutional application of the law. Private Respondents at 45.
ACCESS TO ABORTION
Leading Medical Organizations (“Medical Organizations”), in support of the United States, argues that S.B. 8 “effectively bans abortion[s]” by banning all abortions after six weeks, a time frame so short that most pregnant persons do not realize their pregnancy. Brief of Amici Curiae Leading Medical Organizations, in Support of Petitioners, at 11–13, 16. As a result of the ban, Medical Organizations contend that S.B. 8 inflicts serious harm to the physical and psychological health of pregnant persons, by limiting access to necessary health care, and by forcing pregnant persons to travel for an abortion, attempt to self-abort, or carry to the fetus to term. Id. at 15–17. Planned Parenthood et al. (“Planned Parenthood”) further illustrates the human impact S.B. 8 has had on anonymous women and minor children. See generally Brief of Amici Curiae Planned Parenthood et al., in Support of Petitioners. Planned Parenthood describes, among others, a thirteen year old unable to abort after a judicial bypass resulted in embryonic activity was detected at six weeks, and a woman with seven born children forced to spend half a month’s paycheck in order to abort out of state in an effort to prioritize her current children.. Id. at 4, 6–7. Massachusetts, with a coalition of states (“Massachusetts”), adds that as patients travel to other states to seek abortions, they overflow those abortion providers and cause further delays to abortion provision, thus further limiting access to a time sensitive procedure. Brief of Amici Curiae Massachusetts et al., in Support of Petitioners, at 21–22.
Private Respondents, in support of Texas, responds that abortions are still occurring in Texas. Private Respondents, at 53. Graham notes that, after S.B. 8 went into effect, Planned Parenthood clinics in Texas performed some 50% of the number of abortions compared to before the ban, thus indicating that some abortions continue in Texas. Id. The State of Texas responds that S.B. 8 does not impose an undue burden, as defined by Casey v. Planned Parenthood, on those abortions which it must permit. Brief for State Respondents, at 57–58. It argues that the only possible undue burden under S.B. 8 is the “prospect of a civil lawsuit” for the performance of a “post-heartbeat abortion,” to which the abortion provider can bring up a defense claiming the law posed an undue burden in that particular case. Id. at 58. As a result, Texas asserts that S.B. 8 thus permits constitutionally lawful abortions, limiting only those beyond constitutional protection, as is in line with Texas’s desired abortion policy. Id.
CIRCUMVENTING CONSTITUTIONAL RIGHTS
Legal Scholars Leah Litman, et al. (“Litman”), in support of the United States, argue that an adverse determination in this case would allow state legislatures to subvert “basic constitutional rights” by deputizing private citizens to act on their behalf. See Brief of Amici Curiae Legal Scholars Leah Litman, et al., in Support of Petitioner, at 7, 11. As an example, Massachusetts describes how, under a statutory scheme similar to Texas’s enforcement, state officials could have deputized private citizens to sue Black children attending white schools in the days following Brown v. Board of Education. Id. at 16. Such a result, Massachusetts argues, would be plainly in defiance of the Fourteenth Amendment and Supreme Court precedent. Id. at 16–17. Similarly, Legal Scholars contend that S.B. 8’s enforcement structure, if permissibly copied, would not only impede the rights to judicial review and due process, but would have far-reaching impact beyond abortion, with the potential to target faith-based organizations, gun control advocates, and political action committees. Brief of Amici Curiae Legal Scholars, in Support of Petitioners, at 20–21. Massachusetts adds that enforcement schemes similar to S.B. 8 could also be used to evade constitutional protections in voting rights and marriage equality. Brief of Massachusetts et al., at 17. Thus, Litman concludes that the federal government must be able to intervene in schemes intended to limit judicial review and trample constitutional rights. Brief of Litman, at 14.
The American Center for Law and Justice (“ACLJ”), in support of Texas, responds that the United States exaggerate the “parade of horribles,” or the potential violations of the Bill of Rights and other constitutional protections in laws with private enforcement standards. Brief of Amicus Curiae The American Center for Law and Justice, in Support of Respondent, at 10. The ACLJ contends that state courts are fully capable of respecting constitutional rights, and overturning “blatantly unconstitutional” state laws when necessary. Id. at 10, 12. To illustrate their argument, the ACLJ points to a range of tort cases and claims in which state parties were able to use the Bill of Rights, chiefly the First Amendment, as defenses against state laws. Id. at 11. The State of Texas adds that when state laws featuring a private cause of action violate the Constitution, the state courts may still review the claim, using as an example the challenge to racist covenants in Shelley v. Kramer. Brief for State Respondents, at 56. Thus, both Texas and the ACLJ contend that the federal court system does not need to be called upon to protect the sanctity of the Constitution. See Brief of ACLJ, at 12; Brief for State Respondents, at 54, 56–57. Moreover, Indiana and other states (“Indiana”) argue that only with congressional approval can the federal government attempt to invalidate state laws, thus implicating the separation of powers. Brief of Amici Curiae Indiana et al., in Support of Respondents, at 10.
- 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)