throbber

`
`No. 21A-_______
`________________________________________________________________
`________________________________________________________________
`
`
`IN THE SUPREME COURT OF THE UNITED STATES
`
`_______________
`
`
`UNITED STATES OF AMERICA, APPLICANT
`
`v.
`
`STATE OF TEXAS
`
`_______________
`
`
`APPLICATION TO VACATE STAY OF PRELIMINARY INJUNCTION ISSUED BY
`THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`_______________
`
`
`BRIAN H. FLETCHER
` Acting Solicitor General
` Counsel of Record
` Department of Justice
` Washington, D.C. 20530-0001
` SupremeCtBriefs@usdoj.gov
` (202) 514-2217
`
`
`
`
`
`
`
`
`
`
`
`
`
`________________________________________________________________
`________________________________________________________________
`
`

`

`PARTIES TO THE PROCEEDING
`
`Applicant, the United States of America, was the plaintiff-
`appellee below.
`Respondents were the defendant-appellant and intervenor
`defendants-appellants below. They are the State of Texas (the
`defendant-appellant) and Erick Graham, Jeff Tuley, and Mistie
`Sharp (the intervenor defendants-appellants).
`Oscar Stilley was an intervenor defendant in the district
`court, but did not appeal.
`
`

`

`
`
`
`
`IN THE SUPREME COURT OF THE UNITED STATES
`_______________
`
`
`No. 21A-_______
`
`UNITED STATES OF AMERICA, APPLICANT
`
`v.
`
`STATE OF TEXAS
`
`
`_______________
`
`
`APPLICATION TO VACATE STAY OF PRELIMINARY INJUNCTION ISSUED BY
` THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`_______________
`
`On October 14, 2021, the United States Court of Appeals for
`the Fifth Circuit stayed a preliminary injunction barring
`enforcement of Texas Senate Bill 8 (S.B. 8). Pursuant to Rule 23
`of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651,
`the Acting Solicitor General, on behalf of the United States of
`America, respectfully applies for an order vacating the stay.
`For half a century, this Court has held that “a State may not
`prohibit any woman from making the ultimate decision to terminate
`her pregnancy before viability.” Planned Parenthood of Se. Pa. v.
`Casey, 505 U.S. 833, 879 (1992) (plurality opinion); accord Roe v.
`Wade, 410 U.S. 113, 163-164 (1973). S.B. 8 defies those precedents
`by banning abortion long before viability -- indeed, before many
`women even realize they are pregnant. Texas is not the first State
`
`

`

`2
`to question Roe and Casey. But rather than forthrightly defending
`its law and asking this Court to revisit its decisions, Texas took
`matters into its own hands by crafting an “unprecedented” structure
`to thwart judicial review. Whole Woman’s Health v. Jackson,
`141 S. Ct. 2494, 2496 (2021) (Roberts, C.J., dissenting).
`To avoid pre-enforcement suits against state officials, Texas
`“delegated enforcement” of the law “to the populace at large” in
`a system of private bounties. Whole Woman’s Health, 141 S. Ct. at
`2496 (Roberts, C.J., dissenting). And to frustrate constitutional
`defenses in those private suits, Texas designed them to be so
`procedurally lopsided -- and to threaten such crushing liability
`-- that they deter the provision of banned abortions altogether.
`Thus far, S.B. 8 has worked exactly as intended: Except for the
`few days the preliminary injunction was in place, S.B. 8’s
`in terrorem effect has made abortion effectively unavailable in
`Texas after roughly six weeks of pregnancy. Texas has, in short,
`successfully nullified this Court’s decisions within its borders.
`All of this is essentially undisputed. The Fifth Circuit did
`not deny any of it. Texas itself has not seriously tried to
`reconcile S.B. 8’s ban with this Court’s precedents -- indeed, it
`said not a word about the law’s constitutionality in the Fifth
`Circuit. The intervenors, for their part, boast that “Texas has
`boxed out the judiciary” and assert that States “have every
`
`
`
`

`

`3
`prerogative to adopt interpretations of the Constitution that
`differ from the Supreme Court’s.” Intervenors C.A. Reply Br. 3-4.
`The question now is whether Texas’s nullification of this
`Court’s precedents should be allowed to continue while the courts
`consider the United States’ suit. As the district court
`recognized, it should not: The United States is likely to succeed
`on the merits because S.B. 8 is clearly unconstitutional and
`because the United States has authority to seek equitable relief
`to protect its sovereign interests -- including its interest in
`the supremacy of federal law and the availability of the mechanisms
`for judicial review that Congress and this Court have long deemed
`essential to protect constitutional rights. Allowing S.B. 8 to
`remain in force would irreparably harm those interests and
`perpetuate the ongoing irreparable injury to the thousands of Texas
`women who are being denied their constitutional rights. Texas, in
`contrast, would suffer no cognizable injury from a preliminary
`injunction barring enforcement of a plainly unconstitutional law.
`Again, the Fifth Circuit disputed none of this. Instead, the
`divided panel’s one-paragraph order stayed the preliminary
`injunction solely for “the reasons stated in” two decisions
`addressing a prior challenge to S.B. 8, Whole Woman’s Health v.
`Jackson, 13 F.4th 434 (5th Cir. 2021), and Whole Woman’s Health,
`141 S. Ct. at 2495. App., infra, 1a. But those reasons do not
`apply to this very different suit. Sovereign immunity forced the
`
`
`
`

`

`4
`private plaintiffs in Whole Woman’s Health to sue individual state
`officers, and this Court and the Fifth Circuit questioned whether
`those officers were proper defendants. This suit does not raise
`those questions because it was brought against the State of Texas
`itself, and the State has no immunity from suits by the United
`States. The Fifth Circuit ignored that distinction, which refutes
`the court’s only justification for the stay.
`Because the United States has made all showings required for
`a preliminary injunction -- and because the Fifth Circuit’s
`unjustified stay enables Texas’s ongoing nullification of this
`Court’s precedents and its citizens’ constitutional rights -- the
`Court should vacate the stay. In addition, given the importance
`and urgency of the issues, the Court may construe this application
`as a petition for a writ of certiorari before judgment, grant the
`petition, and set this case for briefing and argument this Term.
`Cf. Nken v. Mukasey, 555 U.S. 1042 (2008).
`STATEMENT
`Texas’s Enactment of S.B. 8
`A.
`S.B. 8 provides that “a physician may not knowingly
`1.
`perform or induce an abortion on a pregnant woman” after cardiac
`activity is detected in the embryo. Tex. Health & Safety Code
`§§ 171.203(b), 171.204(a).1 Cardiac activity begins at roughly
`
`
`1
`All references in this application to the Texas Code and
`Rules of Procedure are to the versions in effect as of September
`1, 2021.
`
`
`
`

`

`5
`six weeks of pregnancy, as measured from a woman’s last menstrual
`period -- that is, just two weeks after a woman’s first missed
`period, and roughly four months before viability. See App., infra,
`3a-4a, 6a-7a. S.B. 8 contains no exception for pregnancies
`resulting from rape or incest. And it provides only a limited
`exception for “medical emergenc[ies] * * * that prevent[]
`compliance with” the law. Tex. Health & Safety Code § 171.205(a).
`Because this Court has long held that a State may not prohibit
`any woman from choosing to terminate a pregnancy before viability,
`federal courts have uniformly enjoined similar “heartbeat laws” in
`traditional suits against the state officials charged with
`enforcing them. See, e.g., Jackson Women’s Health Org. v. Dobbs,
`951 F.3d 246, 248 (5th Cir. 2020) (per curiam). Seeking to avoid
`that result, Texas designed S.B. 8 to thwart judicial review. The
`law provides that it “shall be enforced exclusively through * * *
`private civil actions” rather than by the State’s executive branch.
`Tex. Health & Safety Code § 171.207(a). Those suits may be brought
`against anyone who performs or aids, or intends to perform or aid,
`a prohibited abortion. Id. § 171.208(a). And they may be brought
`by “[a]ny person” other than a state or local official -- the
`plaintiff need not have any connection to the abortion, or even
`reside in Texas. Ibid.
`Texas has thus “delegated enforcement of [S.B. 8’s]
`prohibition to the populace at large” to “insulate the State from
`
`
`
`

`

`6
`responsibility for implementing and enforcing the regulatory
`regime.” Whole Woman’s Health, 141 S. Ct. at 2496 (Roberts, C.J,
`dissenting). The evident purpose of that “unprecedented” scheme,
`ibid., is to avoid pre-enforcement suits against state officers
`under 42 U.S.C. 1983 and Ex parte Young, 209 U.S. 123 (1908).
`In theory, providers could perform prohibited abortions and
`then assert S.B. 8’s unconstitutionality as a defense in the
`resulting enforcement actions. But that avenue of review is not
`even theoretically available to pregnant women -- whose rights
`S.B. 8 directly violates -- because they cannot be sued under the
`law. Tex. Health & Safety Code § 171.206(b)(1). And Texas crafted
`S.B. 8 to ensure that the threat of crippling liability would deter
`providers from taking their chances in court.
`If an enforcement suit succeeds, S.B. 8 requires the court to
`award a bounty of “not less than” $10,000 in statutory damages for
`each abortion, plus costs, attorney’s fees, and mandatory
`injunctive relief. Tex. Health & Safety Code § 171.208(b). The
`law raises the specter of retroactive liability by purporting to
`bar defendants from asserting reliance on precedent that was later
`“overruled.” Id. § 171.208(e)(3). Its special venue rules
`encourage forum-shopping and suits in inconvenient locations. Id.
`§ 171.210. And even if a provider defeats a suit on constitutional
`grounds, S.B. 8 limits the relief that success affords by barring
`“non-mutual issue preclusion or non-mutual claim preclusion.” Id.
`
`
`
`

`

`7
`§ 171.208(e)(5). That means that even if a provider repeatedly
`prevails, she can be sued again and again by other plaintiffs --
`even for the same abortion.
`2.
`S.B. 8’s architects have candidly acknowledged that the
`law was designed to deter constitutionally protected abortions
`while evading judicial review. App., infra, 51a. One of S.B. 8’s
`principal proponents in the Texas Senate lauded the statute’s
`“elegant use of the judicial system” and explained that its
`structure was intended to avoid the fate of other “heartbeat” bills
`that federal courts have held unconstitutional. Id. at 51a & n.34
`(citations omitted); see C.A. App. 107, 111. And an attorney who
`helped draft the law described it as an effort to “counter the
`judiciary’s constitutional pronouncements” on abortion. App.,
`infra, 51a n.34 (citation omitted); see C.A. App. 116.
`B.
`S.B. 8’s Impact
`S.B. 8 took effect on September 1, 2021. As the district
`court found, it virtually eliminated access to abortion in Texas
`after six weeks of pregnancy. App., infra, 77a. Indeed, the court
`observed that Texas could cite -- and the record revealed -- “only
`one case” of a post-cardiac-activity abortion being performed “in
`post-S.B. 8 Texas.” Id. at 86a. And by banning abortions after
`roughly six weeks of pregnancy, S.B. 8 has blocked the vast
`majority of all abortions that would otherwise have been performed
`in the State. See id. at 85a (citing providers’ statements that
`
`
`
`

`

`8
`S.B. 8 prohibits between 80% and 95% of all abortions previously
`provided in Texas).
`Texans with sufficient means have traveled hundreds of miles
`to obtain abortions in other States -- often making multiple trips
`to comply with those States’ abortion laws. App, infra, 94a; see
`id. at 87a-97a. As the district court found, the influx of
`patients from Texas has overwhelmed providers in Oklahoma, Kansas,
`Colorado, New Mexico, and as far away as Nevada. See id. at 91a-
`97a. Clinics in Oklahoma, for example, have been “forced to delay
`patients’ abortions” for weeks “because of the volume of
`appointments needed.” Id. at 91a (citation omitted); see id. at
`91a n.72; see also id. at 97a. “And with the overlapping state
`regulation regimes, a delayed abortion can mean the difference
`between a medication abortion” and “a procedural abortion, if a
`patient is able to obtain an abortion at all.” Id. at 94a; see
`id. at 94a n.79.
`In addition, many Texans seeking abortions cannot travel to
`other States “for any number of reasons,” including financial
`constraints; childcare, job, and school responsibilities; and
`“dangerous family situations.” App., infra, 88a; see id. at 87a
`n.64, 88a n.66. As the district court found, women who cannot
`leave the State are being forced to “make a decision” about whether
`to have an abortion “before they are truly ready to do so.” Id.
`at 84a (citation omitted). And if they do not learn they are
`
`
`
`

`

`9
`pregnant until after six weeks, women who cannot travel “are being
`forced to carry their pregnancy to term against their will or to
`seek ways to end their pregnancies on their own.” Id. at 88a
`(citation omitted); see id. at 93a n.76.
`C.
`The Whole Woman’s Health Litigation
`Before S.B. 8 took effect, abortion providers and patient
`advocates sued several state officials and an individual who had
`expressed an intent to bring S.B. 8 suits. The district court
`denied the state defendants’ motion to dismiss. Whole Woman’s
`Health v. Jackson, No. 21-cv-616, 2021 WL 3821062 (W.D. Tex. Aug.
`25, 2021). After the defendants appealed, the Fifth Circuit stayed
`the district court’s proceedings and rejected the plaintiffs’
`request for an injunction pending appeal. Whole Woman’s Health v.
`Jackson, No. 21-5079, 2021 WL 3919252 (Aug. 29, 2021) (per curiam).
`The Fifth Circuit later explained that, in its view, the claims
`against state officials were barred by Texas’s “Eleventh Amendment
`immunity.” Whole Woman’s Health v. Jackson, 13 F.4th 434, 438
`(2021) (per curiam). The court acknowledged that state officials
`may be sued under Ex parte Young’s exception to sovereign immunity,
`but it found that exception inapplicable because it concluded that
`the executive defendants had no role in enforcing S.B. 8 and that
`state judges and clerks are not proper defendants under Ex parte
`Young. Id. at 441-445.
`
`
`
`

`

`10
`Over the dissent of four Justices, this Court declined to
`grant an injunction or vacate the stay. Whole Woman’s Health,
`141 S. Ct. 2495. The Court explained that the private plaintiffs
`had “raised serious questions regarding the constitutionality of
`the Texas law,” but it determined that they had not “carried their
`burden” as to “complex and novel antecedent procedural questions”
`resulting from the law’s unprecedented design -- principally,
`whether the individual officials named in the lawsuit were proper
`defendants under Ex parte Young. Ibid.; see ibid. (noting that
`the sole private defendant had filed an affidavit disclaiming any
`present intent to enforce S.B. 8). The Court emphasized that its
`decision “in no way limit[ed] other procedurally proper challenges
`to the Texas law, including in Texas state courts.” Id. at 2496.
`The plaintiffs in Whole Woman’s Health have filed a petition for
`a writ of certiorari before judgment. Whole Woman’s Health v.
`Jackson, No. 21-463 (filed Sept. 23, 2021).2
`
`
`2 To the government’s knowledge, fourteen challenges to S.B. 8
`have been filed in Texas courts. Although those cases were filed
`in August and early September, they were stayed pending a motion
`to transfer them to the State’s multidistrict litigation court,
`which was recently granted. See Order, In re Texas Heartbeat Act
`Litigation, No. 21-782 (Tex. Multidistrict Litigation Panel Oct.
`14, 2021). In addition, three individuals have filed S.B. 8 suits
`against a doctor who announced that he had performed a single
`prohibited abortion. See Stilley v. Braid, No. 2021CI19940 (Bexar
`County, 438th Judicial District); Gomez v. Braid, No. 2021CI19920
`(Bexar County, 224th Judicial District); Texas Heartbeat Project
`v. Braid, No. 21-2276-C (Smith County, 241st Judicial District).
`
`
`
`

`

`11
`
`Proceedings Below
`D.
`On September 9, 2021, the United States brought this
`1.
`suit against the State of Texas. On October 6, the district court
`granted the United States’ motion for a preliminary injunction
`against S.B. 8’s enforcement. App., infra, 2a-114a. The court
`explained that the United States has authority to bring this suit,
`id. at 25a-57a; that S.B. 8 plainly violates the Fourteenth
`Amendment and the doctrines of preemption and intergovernmental
`immunity, id. at 72a-105a; that a preliminary injunction was
`necessary to prevent irreparable harm, id. at 105a-108a; and that
`the balance of equities and the public interest favored an
`injunction, id. at 108a-109a. The preliminary injunction forbids
`“the State of Texas, including its officers, officials, agents,
`employees, and any other persons or entities acting on its behalf,
`* * * from enforcing [S.B. 8], including accepting or docketing,
`maintaining, hearing, resolving, awarding damages in, enforcing
`judgments in, enforcing any administrative penalties in, and
`administering any lawsuit brought pursuant to” the law. Id. at
`110a. The district court declined to stay the injunction pending
`appeal. Id. at 113a.
`2.
`Texas and the intervenor defendants-appellants (three
`individuals who seek to bring S.B. 8 enforcement suits) appealed
`and moved for a stay pending appeal. App., infra, 1a, 16a. On
`October 8 -- two days after the district court’s order -- the Fifth
`
`
`
`

`

`12
`Circuit granted an administrative stay. Order 1. On October 14,
`a divided panel stayed the preliminary injunction pending an
`expedited appeal. App., infra, 1a. Although this suit is brought
`by the United States (rather than private plaintiffs) against the
`State of Texas (rather than individual state officials), the panel
`majority’s single-sentence explanation for its decision simply
`invoked “the reasons stated in Whole Woman’s Health v. Jackson,
`13 F.4th 434 (5th Cir. 2021), and Whole Woman’s Health v. Jackson,
`141 S. Ct. 2494 (2021).” Ibid. Judge Stewart dissented. Ibid.
`ARGUMENT
`The United States respectfully requests that this Court
`vacate the Fifth Circuit’s stay of the district court’s preliminary
`injunction. “The well-established principles” that guide the
`determination whether “to stay a judgment entered below are equally
`applicable when considering an application to vacate a stay.”
`Certain Named & Unnamed Non-Citizen Children & Their Parents v.
`Texas, 448 U.S. 1327, 1330 (1980) (Powell, J., in chambers); see
`Coleman v. Paccar Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J.,
`in chambers). In considering such an application, this Court has
`thus looked to the traditional “four-factor test” for a stay.
`Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488 (2021)
`(per curiam). That test requires a court to consider: “(1) whether
`the stay applicant has made a strong showing that he is likely to
`succeed on the merits; (2) whether the applicant will be
`
`
`
`

`

`13
`irreparably injured absent a stay; (3) whether issuance of the
`stay will substantially injure the other parties interested in the
`proceeding; and (4) where the public interest lies.” Nken v.
`Holder, 556 U.S. 418, 426 (2009) (citation omitted). Each of those
`factors strongly supports vacating the stay in this case.
`I. The United States Is Likely To Succeed On The Merits
`S.B. 8 is plainly unconstitutional under this Court’s
`precedents. Texas has not seriously argued otherwise. Instead,
`the State has focused on purported procedural obstacles to judicial
`review. But this suit by the United States does not present the
`procedural questions at issue in the private plaintiffs’ suit in
`Whole Woman’s Health. And Texas’s insistence that no party can
`bring a suit challenging S.B. 8 amounts to an assertion that the
`federal courts are powerless to halt the State’s ongoing
`nullification of federal law. That proposition is as breathtaking
`as it is dangerous. S.B. 8 is “unprecedented,” Whole Woman’s
`Health v. Jackson, 141 S. Ct. 2494, 2496 (2021) (Roberts, C.J.,
`dissenting), but other States are already regarding it as a model.
`App., infra, 112a. And if Texas is right, States are free to use
`similar schemes to nullify other precedents or suspend other
`constitutional rights. Our constitutional system does not permit
`States to so easily thwart the supremacy of federal law.
`
`
`
`

`

`14
`S.B. 8 Is Unconstitutional
`A.
`The district court correctly held that the United States is
`likely to prevail on the merits of its two claims that S.B. 8
`violates the Constitution.
`1.
`In seeking a stay in the Fifth Circuit, Texas did not
`try to argue that S.B. 8 comports with this Court’s precedents on
`abortion. With good reason: This Court has long recognized that
`the Constitution protects a pregnant woman’s right “to have an
`abortion before viability and to obtain it without undue
`interference from the State,” which until viability lacks
`“interests * * * strong enough to support a prohibition of
`abortion or the imposition of a substantial obstacle to the woman’s
`effective right to elect the procedure.” Planned Parenthood of
`Se. Pa. v. Casey, 505 U.S. 833, 846 (1992). Because S.B. 8 bans
`abortion several months before viability, it is unconstitutional
`without recourse to the undue-burden standard. Ibid.; see id. at
`878-879 (plurality opinion); see also, e.g., Jackson Women’s
`Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per
`curiam).
`Even if the undue-burden test applied, S.B. 8 would fail it.
`By exposing abortion providers to crippling liability and
`thwarting pre-enforcement review, the law aims to deter them from
`providing constitutionally protected abortion care. See pp. 5-7,
`supra. And that is exactly what S.B. 8 has done. The resulting
`
`
`
`

`

`15
`near-total unavailability of abortion in Texas after six weeks of
`pregnancy -- before many women even realize they are pregnant --
`is an undue burden by any measure. See Casey, 505 U.S. at 878
`(plurality opinion).
`That is true even though the statute purports to provide an
`“undue burden” defense. Tex. Health & Safety Code § 171.209(b);
`see Whole Woman’s Health v. Jackson, 13 F.4th 434, 444 (5th Cir.
`2021) (per curiam). That defense is a distorted shadow of the
`undue-burden standard mandated by this Court’s precedents. Most
`obviously, it directly contradicts this Court’s instruction that
`the undue-burden standard examines the cumulative real-world
`consequences of the challenged law. See, e.g., Whole Woman’s
`Health v. Hellerstedt, 136 S. Ct. 2292, 2312-2318 (2016); Casey,
`505 U.S. at 895; but see Texas Health & Safety Code § 171.209(b)(2)
`and (d)(2). And it is now indisputable that the theoretical
`availability of S.B. 8’s “undue burden” defense has not actually
`prevented the law from achieving near-total deterrence of covered
`abortions. That result is manifestly an undue burden. And
`imposing that burden was the very purpose of S.B. 8 and its
`unprecedented scheme to thwart the traditional judicial mechanisms
`for ensuring the supremacy of federal law.
`2.
`S.B. 8 also violates the doctrines of conflict
`preemption and intergovernmental immunity because it impairs the
`ability of federal agencies, contractors, and employees to carry
`
`
`
`

`

`16
`out their duties in a manner consistent with the Constitution and
`federal law. See, e.g., Arizona v. United States, 567 U.S. 387,
`399 (2012) (conflict preemption); Trump v. Vance, 140 S. Ct. 2412,
`2425 (2020) (intergovernmental immunity).
`For example, the Bureau of Prisons must protect the rights of
`pregnant inmates by “arrang[ing] for an abortion to take place” if
`an inmate requests one. 28 C.F.R. 551.23(c). Other federal
`agencies have responsibilities that are also directly affected by
`S.B. 8. See App., infra, 26a-27a (discussing the United States
`Marshals Service, the Department of Defense, the Department of
`Health and Human Services, the Department of Labor, and the Office
`of Personnel Management). By imposing liability on anyone who
`aids or abets an abortion -- including in the case of a pregnancy
`resulting from rape or incest -- S.B. 8 threatens suits against
`federal employees and contractors for carrying out their duties
`under federal law. Id. at 26a; see id. at 101a-105a (rejecting
`the State’s contrary arguments). It is thus preempted and contrary
`to principles of intergovernmental immunity, which apply even if
`a “federal function is carried out by a private contractor.”
`Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988); see,
`e.g., United States v. California, 921 F.3d 865, 882 n.7 (9th Cir.
`2019), cert. denied, 141 S. Ct. 124 (2020).
`Texas has not denied that S.B. 8 suits against federal
`employees and contractors would violate intergovernmental
`
`
`
`

`

`17
`immunity. Instead, it has suggested that its courts might construe
`S.B. 8 not to apply to those federal actors. C.A. Stay Mot. 5.
`But S.B. 8’s text contains no such exception. And even if state
`courts might construe it not to apply to the federal government or
`its contractors, S.B. 8 would still pose an obstacle to the federal
`government’s operations: Because the law has essentially
`eliminated abortion in Texas after six weeks of pregnancy, federal
`employees and contractors who are required to facilitate abortion
`care cannot do so within the State. App., infra, 28a.
`B.
`The Procedural Obstacles Identified In Whole Woman’s Health
`Are Absent Here
`The panel majority granted a stay solely “for the reasons stated
`in” the decisions of the Fifth Circuit and this Court in Whole Woman’s
`Health, the private challenge to S.B. 8. App., infra, 1a. Those
`reasons have no application to this suit by the United States.
`In Whole Woman’s Health, the Fifth Circuit concluded that Texas
`executive officials, judges, and clerks were immune from suit under
`the Eleventh Amendment. 13 F.4th at 441-445. The court acknowledged
`that, under Ex parte Young, 209 U.S. 123 (1908), sovereign immunity
`does not prevent a court from ordering a state officer “not to enforce
`a state law that violates federal law.” Id. at 442. But the Fifth
`Circuit concluded that Ex parte Young did not apply because the
`defendant executive officials did not enforce the law, and because
`the state judges and clerks were not subject to suit under Ex parte
`Young. Id. at 443. The court also determined that Section 1983 did
`
`
`
`

`

`18
`not authorize an injunction against state judges in these
`circumstances. Id. at 443-444.
`This Court’s decision rested on similar concerns about a suit
`against individual state officials. The Court explained that it was
`“unclear whether the named defendants in th[e] lawsuit can or will
`seek to enforce” S.B. 8, which created questions under Ex parte Young
`and Article III. 141 S. Ct. at 2495 (citing Clapper v. Amnesty Int’l
`USA, 568 U.S. 398, 409 (2013)). And the Court added that it was
`uncertain whether Ex parte Young authorizes “an injunction against
`state judges asked to decide a lawsuit” under S.B. 8. Ibid.
`The concerns raised in Whole Woman’s Health are wholly
`inapplicable in this suit by the United States against Texas itself.
`“In ratifying the Constitution, the States consented to suits brought
`by * * * the Federal Government.” Alden v. Maine, 527 U.S. 706,
`755 (1999). The district court thus correctly held that Texas’s
`sovereign immunity poses no bar to this suit. Indeed, even Texas
`“d[id] not contend otherwise.” App., infra, 59a. And because the
`United States can sue the State directly, this case likewise poses
`no question about which particular Texas officials would be proper
`defendants under Ex parte Young or Article III. Id. at 63a & n.40.
`In short, the “reasons stated in Whole Woman’s Health,” App.,
`infra, 1a, have no bearing on the validity of the preliminary
`injunction entered here. And the Fifth Circuit majority failed to
`
`
`
`

`

`19
`identify any other reasons justifying its stay of the injunction.
`That by itself provides sufficient reason to vacate the stay.
`C.
`The District Court Properly Enjoined Enforcement of S.B. 8
`Texas has argued that the United States lacks authority to bring
`this suit and that the scope of the preliminary injunction is
`improper. The Fifth Circuit did not rely on those contentions, and
`the district court correctly rejected them.
`1.
`The United States Has Authority To Maintain This Suit
`The United States has challenged S.B. 8 to vindicate two
`distinct sovereign interests. First, to the extent S.B. 8
`interferes with the federal government’s own activities, it is
`preempted and violates the doctrine of intergovernmental immunity.
`Second, S.B. 8 is an affront to the United States’ sovereign
`interests in maintaining the supremacy of federal law and ensuring
`that the traditional mechanisms of judicial review endorsed by
`Congress and this Court remain available to challenge
`unconstitutional state laws. The United States has authority to
`seek equitable relief to vindicate both interests.
`a.
`Courts have long recognized that even absent an express
`statutory cause of action, the United States may sue in equity to
`enjoin state statutes that interfere with the federal government’s
`activities. See, e.g., Arizona, supra (preemption); California,
`921 F.3d at 876-879 (intergovernmental immunity). The United
`
`
`
`

`

`20
`States’ preemption and intergovernmental immunity claim falls
`squarely within that category.
`b.
`The government also has authority to challenge S.B. 8
`because the law’s violation of the Fourteenth Amendment and the
`Supremacy Clause injures the United States’ sovereign interests.
`In re Debs, 158 U.S. 564 (1895), is the canonical precedent
`recognizing that the federal government may, in appropriate
`circumstances, bring a suit in equity to vindicate such interests
`of the national government under the Constitution.
`In Debs, the government sought an injunction against the
`Pullman rail strike. This Court explained that “[e]very
`government, entrusted, by the very terms of its being, with powers
`and duties to be exercised and discharged for the general welfare,
`has a right to apply to its own courts for any proper assistance
`in the exercise of the one and the discharge of the other.” Id.
`at 584. The Court emphasized that “it is not the province of the
`government to interfere in any mere matter of private controversy
`between individuals.” Id. at 586. But it explained that “whenever
`the wrongs complained of are such as affect the public at large,
`and are in respect of matters which by the Constitution are
`entrusted to the care of the Nation, and concerning which the
`Nation owes the duty to all the citizens of securing to them their
`common rights, then the mere fact that the government has no
`
`
`
`

`

`21
`pecuniary interest in the controversy is not sufficient to exclude
`it from the courts.” Ibid.
`In recognizing the United States’ authority to sue in Debs,
`this Court noted the United States’ proprietary interest in the
`mail carried by railroads, but expressly declined to “place [its]
`decision upon th[at] ground alone.” 158 U.S. at 584. Nor did the
`Court rely solely upon the government’s statutory authority over
`rail commerce. Rather, Debs reflects the “general rule that the
`United States may sue to protect its interests.” Wyandotte Transp.
`Co. v. United States, 389 U.S. 191, 201 (1967). And this Court
`has recognized the government’s authority -- even without an
`express statutory cause of action -- to seek equitable relief
`against threats to various sovereign interests. In addition to
`allowing challenges to state laws that conflict with federal law
`or otherwise hinder the federal government’s activities (as
`discussed above), the Court has allowed federal suits to protect
`the public from fraudulent patents, United States v. American Bell
`Tel. Co., 128 U.S. 315 (1888); protect Indian tribes, Heckman v.
`United States, 224 U.S. 413, 438-439 (1912); and carry out the
`Nation’s treaty obligations, Sanitary Dist. of Chicago v. United
`States, 266 U.S. 405, 426 (1925).3
`
`3 Texas has suggested (C.A. Reply Br. 4) that Sanitary
`District and Heckman “rested on statutory causes of action.” That
`is incorrect. In Sanitary District, the Court explained that
`“[t]he Attorney General by virtue of his office may bring this

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