Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 1 of 27
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`THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`____________________________________
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`§
`UNITED STATES OF AMERICA,
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`§
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`Plaintiff,
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`§
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`v.
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`§
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`THE STATE OF TEXAS,
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`§
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`§
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`Defendant.
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`§
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`Civil No. 1:21-cv-796
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`COMPLAINT
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`The United States of America, by and through its undersigned counsel, brings this civil action
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`for declaratory and injunctive relief, and alleges as follows:
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`PRELIMINARY STATEMENT
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`1.
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`It is settled constitutional law that “a State may not prohibit any woman from making
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`the ultimate decision to terminate her pregnancy before viability.” Planned Parenthood of Se. Pa. v. Casey,
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`505 U.S. 833, 879 (1992); accord Roe v. Wade, 410 U.S. 113 (1973). But Texas has done just that. It has
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`enacted a statute banning nearly all abortions in the State after six weeks—months before a pregnancy
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`is viable. See Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021) (S.B. 8) (to be codified at Tex. Health &
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`Safety Code §§ 171.203(b), 171.204(a)). See also, e.g., Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246,
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`248 (5th Cir. 2020).
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`2.
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`Texas enacted S.B. 8 in open defiance of the Constitution. The statute prohibits most
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`pre-viability abortions, even in cases of rape, sexual abuse, or incest. It also prohibits any effort to
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`aid—or, indeed, any intent to aid—the doctors who provide pre-viability abortions or the women who
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`exercise their right to seek one. Because S.B. 8 clearly violates the Constitution, Texas adopted an
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`unprecedented scheme “to insulate the State from responsibility,” Whole Woman’s Health v. Jackson, No.
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`21A24, 2021 WL 3910722, at *1 (U.S. Sept. 1, 2021) (Roberts, C.J., dissenting), by making the statute
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`harder to challenge in court. Instead of relying on the State’s executive branch to enforce the law, as
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`is the norm in Texas and elsewhere, the State has deputized ordinary citizens to serve as bounty
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`hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who
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`facilitate a woman’s exercise of her constitutional rights. And Texas has mandated that its state judicial
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`officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably
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`burden constitutionally protected rights.
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`3.
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`It takes little imagination to discern Texas’s goal—to make it too risky for an abortion
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`clinic to operate in the State, thereby preventing women throughout Texas from exercising their
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`constitutional rights, while simultaneously thwarting judicial review. Thus far, the law has had its
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`desired effect. To date, abortion providers have ceased providing services prohibited by S.B. 8, leaving
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`women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this
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`flagrant deprivation of rights, S.B. 8 remains in effect.
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`4.
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`The United States has the authority and responsibility to ensure that Texas cannot
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`evade its obligations under the Constitution and deprive individuals of their constitutional rights by
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`adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial
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`review. The federal government therefore brings this suit directly against the State of Texas to obtain
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`a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has
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`violated.
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`5.
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`The Government also brings this suit to protect other federal interests that S.B. 8
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`unconstitutionally impairs. S.B. 8 conflicts with federal law by purporting to prohibit federal agencies
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`from carrying out their responsibilities under federal law related to abortion services. Because S.B. 8
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`does not contain an exception for cases of rape or incest, its terms purport to prohibit the federal
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`government and its employees and agents from performing, funding, reimbursing, or facilitating
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`abortions in such cases. Moreover, S.B. 8’s unconstitutionally broad terms purport to subject federal
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`employees and nongovernmental partners who carry out those responsibilities to civil liability and
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`penalties.
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`6.
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`The United States therefore seeks a declaratory judgment that S.B. 8 is invalid under
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`the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the
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`doctrine of intergovernmental immunity. The United States also seeks an order preliminarily and
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`permanently enjoining the State of Texas, including its officers, employees, and agents, including
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`private parties who would bring suit under the law, from implementing or enforcing S.B. 8.
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`JURISDICTION AND VENUE
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`7.
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`8.
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`This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.
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`This Court has authority to provide the relief requested under the Supremacy Clause,
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`U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651,
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`2201, and 2202, and its inherent equitable authority.
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`9.
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`Venue is proper in this judicial district under 28 U.S.C. § 1391(b) because Defendant
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`resides within this judicial district and because a substantial part of the acts or omissions giving rise to
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`this action arose from events occurring within this judicial district.
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`PARTIES
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`Plaintiff is the United States of America.
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`Defendant, the State of Texas, is a State of the United States. The State of Texas
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`10.
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`11.
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`includes all of its officers, employees, and agents, including private parties who would bring suit under
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`S.B. 8.
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`FEDERAL LAW
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`3
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`I.
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`The Constitutional Right to an Abortion
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`12.
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`Nearly fifty years ago, the Supreme Court held that the Constitution protects “a
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`woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153.1 Thirty years
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`ago, the Court “ reaffirmed ‘the most central principle’” of  Roe— “a woman’s right to terminate her
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`pregnancy before viability.” June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020) (Roberts,
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`C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Casey confirmed
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`Roe’s “essential holding” recognizing the “right of a woman to choose to have an abortion before
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`viability and obtain it without undue interference from the state, whose previability interests are not
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`strong enough to support an abortion prohibition or the imposition of substantial obstacles to the
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`woman’s effective right to elect the procedure.” Casey, 505 U.S. at 846. State laws that prohibit
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`abortion prior to viability or impose an “undue burden” on a woman’s right to obtain an abortion
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`before viability violate the Due Process Clause of the Fourteenth Amendment. Whole Woman’s Health
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`v. Hellerstedt, 136 S. Ct. 2292, 2298 (2016) (citation omitted).
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`II.
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`The Sovereign Interests of the United States
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`13. Where, as here, a State seeks to strip individuals of their ability to challenge state action
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`that indisputably violates their federal constitutional rights, the United States has a profound sovereign
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`interest in ensuring that those constitutional rights remain redeemable in federal court. The United
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`States may sue to challenge such constitutional violations that “affect the public at large.” In re Debs,
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`158 U.S. 564, 583-85 (1895) (“Every government, entrusted by the very terms of its being with powers
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`and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts
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`for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient
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`1 The allegations of this complaint encompass any individuals who become pregnant and
`seek an abortion, regardless of gender identity.
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`4
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`answer to its appeal to one of those courts that it has no pecuniary interest in the matter.”); see
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`Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201-02 (1967).
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`14.
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`The prerogative of the United States to seek injunctive and declaratory relief “to
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`restrain violations of constitutional rights . . . has long been recognized.” United States v. City of Jackson,
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`318 F.2d 1, 11 (5th Cir. 1963). “The Constitution cannot mean to give individuals standing to attack
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`state action inconsistent with their constitutional rights but to deny to the United States standing when
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`States jeopardize the constitutional rights of the Nation.” Id. at 15-16; see also Fla. E. Coast Ry. Co. v.
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`United States, 348 F.2d 682, 685 (5th Cir. 1965) (finding United States possessed standing under In re
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`Debs), aff’d, 384 U.S. 238 (1966).
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`15.
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`The United States therefore may sue a State to vindicate the rights of individuals when
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`a state infringes on rights protected by the Constitution. And such an effort is particularly warranted
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`where, as here, private citizens are—by design—substantially burdened in vindicating their own rights.
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`In light of the attempt by Texas to strip its own citizens of the ability to invoke the power of the
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`federal courts to vindicate their rights, the United States not only has a “quasi-sovereign interest in
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`the health and well-being . . . of its residents in general” but also a “quasi-sovereign interest in not
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`being discriminatorily denied its rightful status within the federal system.” Alfred L. Snapp & Son, Inc.
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`v. Puerto Rico, ex. Rel. Barez, 458 U.S. 592, 601–02 (1982) (the sovereign maintains an “interest in the
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`health and well-being—both physical and economic—of its residents”).
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`III. The Supremacy Clause and Preemption
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`16.
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`The Supremacy Clause of the U.S. Constitution mandates that “[t]his Constitution,
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`and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme
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`Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary
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`notwithstanding.” U.S. Const., art. VI, cl. 2.
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`17.
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`A state law is invalid if, inter alia, it “stands as an obstacle to the accomplishment and
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`execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941),
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`or if it directly regulates “the activities of the Federal Government,” Mayo v. United States, 319 U.S. 441,
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`445 (1943).
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`IV.
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`Intergovernmental Immunity
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`18.
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`The doctrine of intergovernmental immunity arises from the Supremacy Clause of the
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`U.S. Constitution and reflects the principle that “[s]tates have no power . . . to retard, impede, burden,
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`or in any manner control the operations of the constitutional laws enacted . . . by Congress to carry
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`into effect the powers vested in the national government.” M’Culloch v. Maryland, 17 U.S. 316, 317
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`(1819); see also Mayo, 319 U.S. at 445 (“[T]he activities of the Federal Government are free from
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`regulation by any state.”); Johnson v. Maryland, 254 U.S. 51, 56–57 (1920) (holding that state laws cannot
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`“control the conduct of” individuals “acting under and in pursuance of the laws of the United States”);
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`United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (recognizing that a regulation violates
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`the doctrine of intergovernmental immunity if it “seek[s] to directly regulate the conduct of agents of
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`the federal government”).
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`19.
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`States also may not seek to directly regulate the performance of the federal government
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`by regulating its contractors. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) (“[A] federally
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`owned facility performing a federal function is shielded from direct state regulation, even though the
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`federal function is carried out by a private contractor, unless Congress clearly authorizes such
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`regulation.”); United States v. California, 921 F.3d 865, 882 n.7 (9th Cir. 2019) (“For purposes of
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`intergovernmental immunity, federal contractors are treated the same as the federal government
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`itself.”), cert. denied, 141 S. Ct. 124 (2020); Boeing Co. v. Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014)
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`(holding unconstitutional a state law that “directly interfere[d] with the functions of the federal
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`government” by “mandat[ing] the ways in which [a contractor] renders services that the federal
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`government hired [it] to perform”).
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`I.
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`Texas Enacts Senate Bill 8
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`TEXAS SENATE BILL 8
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`20.
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`S.B. 8 bans abortions performed by a physician licensed by the State of Texas if cardiac
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`activity has been detected in the embryo or fetus. Specifically, S.B. 8 provides that “a physician may
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`not knowingly perform or induce an abortion . . . if the physician detect[s] a fetal heartbeat.” Tex.
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`Health & Safety Code § 171.204(a). S.B. 8 defines “fetal heartbeat” as “cardiac activity or the steady
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`and repetitive rhythmic contraction of the fetal heart within the gestation sac.” Id. § 171.201(1).
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`21.
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`An ultrasound can typically detect cardiac motion beginning at approximately six
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`weeks of pregnancy, as measured from the first day of a patient’s last menstrual period.2 But an
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`embryo is not viable at six weeks, and many women do not even know they are pregnant at six weeks.
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`22.
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`A fetus generally is considered “viable” when “there is a reasonable likelihood of the
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`fetus’ sustained survival outside the womb, with or without artificial support,” Colautti v. Franklin, 439
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`U.S. 379, 388 (1979), which is not until about 24 weeks, see, e.g., Isaacson v. Horne, 716 F.3d 1213, 1225
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`(9th Cir. 2013).
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`23.
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`S.B. 8 contains no exceptions for pregnancies that result from rape, sexual abuse, or
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`incest, or for pregnancies involving a fetal defect incompatible with life after birth. The law provides
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`an exception only for an undefined “medical emergency . . . that prevents compliance” with the law.
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`Id. § 171.205(a).
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`24.
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`The prohibitions in S.B. 8 apply to anyone who performs or induces a prohibited
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`abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited
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`2 Throughout this complaint, the duration of pregnancy is measured from the first day of a
`person’s last menstrual period.
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`7
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`abortion, and even anyone who “intends” to perform or aid a prohibited abortion. Id. § 171.208(a)(1)–
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`(3). Under the statute, aiding and abetting includes “paying or reimbursing the costs of an abortion
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`through insurance or otherwise.” Id. § 171.208(a)(2).
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`25.
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`S.B. 8 limits the defenses available to defendants and subjects them to a fee-shifting
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`regime skewed in favor of claimants. In particular, S.B. 8 includes an “affirmative defense” that is
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`available to a limited class of defendants if they can demonstrate that an award of relief would impose
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`an undue burden on a particular woman or group of women seeking abortion. That limited defense
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`is inconsistent with an “unbroken line” of Supreme Court cases, Jackson Women’s Health Org. v. Dobbs,
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`945 F.3d 265, 269 (5th Cir. 2019), cert. granted in part, No. 19-1392, 2021 WL 1951792 (U.S. May 17,
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`2021), that prevent states from prohibiting abortion prior to viability without regard to the undue-
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`burden test. And even if the undue-burden test were the appropriate framework, S.B. 8’s affirmative
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`defense fundamentally distorts the test, by, inter alia, limiting the scope of evidence on which a
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`defendant may rely, S.B. 8 § 171.209(c), (d), and attempting to create new rules of construction and
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`severability solely for state abortion laws and regulations. S.B. 8 §§ 171.206, 171.212.
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`26.
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`Additionally, defendants in S.B. 8 enforcement actions are prohibited from raising
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`other defenses enumerated under S.B. 8, including that they believed the law was unconstitutional;
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`that they relied on a court decision, later overruled, that was in place at the time of the acts underlying
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`the suit; or that the patient consented to the abortion. Id. § 171.208(e)(2), (3). S.B. 8 also states that
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`defendants may not rely on non-mutual issue or claim preclusion or rely as a defense on any other
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`“state or federal court decision that is not binding on the court in which the action” was
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`brought. Id. § 171.208(e)(4), (5).
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`II.
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`S.B. 8 Deputizes Private Parties to Act as State Actors in a Public Enforcement
`Scheme and Uses the Judicial System to Deprive Women of Their Constitutional
`Rights
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`27.
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`In a transparent effort to evade constitutional scrutiny, Texas has outsourced the
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`authority to enforce S.B. 8 to ordinary citizens. S.B. 8 prohibits state and local governmental entities
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`and their employees from enforcing the statute. In their place, S.B. 8 empowers any person to file suit
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`against anyone who performs a prohibited abortion, aids or abets such an abortion, or “intends” to
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`do either of those things. § 171.208(a). A successful claimant can obtain an injunction that prevents
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`a defendant from engaging in these activities, and is entitled to at least $10,000 (S.B. 8 does not set a
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`maximum) in “statutory damages” for each abortion the defendant has performed, aided, or abetted,
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`as well as costs and attorney’s fees.
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`28.
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`The statute assigns enforcement authority to private individuals through civil litigation
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`in state court as a means of evading lawsuits challenging S.B. 8’s constitutionality. Cf. Whole Woman’s
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`Health, 2021 WL 3910722, at *1 (Roberts, C.J., dissenting) (“The desired consequence appears to be
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`to insulate the State from responsibility for implementing and enforcing the regulatory regime.”).
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`Indeed, S.B. 8 was specifically designed to evade ordinary constitutional review. Specifically, the law
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`bars its own enforcement by public agencies but creates a private cause of action that requires state
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`courts to grant injunctive relief and statutory damages for constitutionally protected activity.
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`§§ 171.207, 171.208(b).
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`29.
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`This intent has been unmistakably revealed in public statements by the law’s architects
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`and champions. For example, the legislative director of Texas Right to Life stated that one of the
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`“main motivations” for S.B. 8’s design is to stymie judicial review. See Emma Green, What Texas
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`Abortion Foes Want Next, The Atlantic
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`(Sept. 2, 2021), https://www.theatlantic.com/
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`politics/archive/2021/09/texas-abortion-ban-supreme-court/619953/ (asserting that S.B. 8 was
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`crafted out of “frustrat[ion]” with courts that “block[] pro-life laws because they think they violate the
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`Constitution or pose undue burdens”) (last visited Sept. 9, 2021).
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`30. Moreover, one of the attorneys principally involved in advising the State on S.B. 8
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`recently offered a similar observation about laws bearing S.B. 8’s private enforcement characteristic:
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`“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private
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`rights of action, because the litigants who will enforce the statute are hard to identify until they actually
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`bring suit.” Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1001 n.270 (2018),
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`https://www.virginialawreview.org/wp-content/uploads/2020/12/Mitchell_Online.pdf (last visited
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`Sept. 9, 2021).
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`31.
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`And Senator Bryan Hughes, one of the principal architects of S.B. 8 in the Texas
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`Legislature, removed all doubt about this purpose when he informed reporters that S.B. 8’s structure
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`was intended to avoid the fate of other “heartbeat” bills that have been struck down as
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`unconstitutional. See Jacob Gershman, Behind Texas Abortion Law, an Attorney’s Unusual Enforcement Idea,
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`The Wall Street Journal (Sept. 4, 2021, 9:38 A.M.), https://www.wsj.com/articles/behind-texas-
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`abortion-law-an-attorneys-unusual-enforcement-idea-11630762683 (last visited Sept. 9, 2021). Sen.
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`Hughes was quoted succinctly stating the point: “We were going to find a way to pass a heartbeat bill
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`that was going to be upheld.” Id. Sen. Hughes elsewhere deemed the statute a “very elegant use of
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`the judicial system.” Jenna Greene, Column: Crafty lawyering on Texas abortion bill withstood SCOTUS
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`challenge, Reuters (Sept. 5, 2021, 1:52 P.M.), https://reuters.com/legal/government/crafty-lawyering-
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`texas-abortion-bill-withstood-scotus-challenge-greene-2021-09-05/(last visited Sept. 9, 2021).
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`32. While prior state efforts to unduly burden access to abortion services relied primarily
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`upon executive enforcement of state law, “[i]t is doubtless true that a State may act through different
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`agencies,” including “its legislative, its executive, or its judicial authorities; and the prohibitions of the
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`amendment extend to all actions of the State denying equal protection of the laws, whether it be action
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`by one of these agencies or by another.” Virginia v. Rives, 100 U.S. 313, 318 (1879). Awarding the
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`monetary relief that S.B. 8 authorizes—to plaintiffs who need not demonstrate any injury or other
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`connection to the underlying abortion procedure—constitutes state activity designed to violate the
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`Fourteenth Amendment rights of women in Texas. “That the action of state courts and of judicial
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`officers in their official capacities is to be regarded as action of the State within the meaning of the
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`Fourteenth Amendment, is a proposition which has long been established by decisions of th[e]
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`[Supreme] Court.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Thus, while Texas has gone to
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`unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally
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`private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role.
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`“State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to
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`exertions of state power in all forms.” Id. at 20.
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`33.
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`Under the state-action doctrine, private actors also may be found to function as agents
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`or arms of the state itself and thus are bound by the Constitution. See, e.g., Brentwood Acad. v. Tenn.
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`Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (“state action may be found if . . . seemingly
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`private behavior ‘may be fairly treated as that of the State itself’”); Smith v. Allwright, 321 U.S. 649, 663
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`(1944) (private actor was acting as “agency of the state”).
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`34.
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`The Supreme Court has deemed individuals to be state actors where they exercise
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`“powers traditionally exclusively reserved to the State.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.
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`Ct. 1921, 1928-29 (2019). S.B. 8 vests individuals with law-enforcement authority—a power
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`traditionally reserved exclusively to a sovereign—in a manner that appears to be “unprecedented,”
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`Whole Woman’s Health v. Jackson, 2021 WL 3910722, at *2 (Roberts, C.J., dissenting). Among other
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`things, S.B. 8 does so by providing individuals with unsupervised authority to police violations of the
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`law, and by enabling them to obtain civil penalties against anyone in the state without any showing of
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`personal injury.
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`35.
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`These individuals are also state actors to the extent they are significantly involved in
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`conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their
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`conduct. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (finding state action where law
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`“authorize[d] . . . racial discrimination in the housing market”); Smith, 321 U.S. at 663-64 (state’s
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`establishment of primary system made the private party that set up an all-white primary “an agency of
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`the state”); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (similar). S.B. 8 implicates this doctrine by
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`expressly authorizing—indeed, empowering—individuals to engage in conduct that violates the
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`constitutional rights of women throughout Texas, in a manner in which the State itself would not be
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`able to engage.
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`III.
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`S.B. 8 Affects Interstate Commerce
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`36.
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`By stripping women of their constitutional rights to certain abortion services in Texas
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`as well as outlawing many of the commercial services that provide abortion services and aid women
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`seeking these services, S.B. 8 forces women who wish to obtain these services to travel out of Texas
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`to other states in order to exercise their constitutional rights and it hinders businesses and non-profits
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`engaged in this commercial activity.
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`37.
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`Indeed, the law has already had this effect, as “clinics in Oklahoma, Louisiana, New
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`Mexico, Colorado, and Kansas are being inundated with a surge of pregnant people.” Melissa Jeltsen,
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`Texas Is Already Creating Abortion Refugees, N.Y. Mag. (Sept. 3, 2021) (last visited Sept. 9, 2021)
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`https://nymag.com/intelligencer/2021/09/texas-is-already-creating-abortion-refugees.html.
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` One
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`clinic in Oklahoma reported that, after S.B. 8 went into effect, the numbers of calls it received from
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`Texans increased from approximately three to five calls per day to between fifty and fifty-five. See
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`Tahera Rahman, Oklahoma Clinic Already Seeing A Surge In Texas Patients As Abortion Law Takes Effect,
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`WKRN (Sept. 3, 2021) (last visited Sept. 9, 2021) https://www.wkrn.com/news/oklahoma-clinic-
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`already-seeing-a-surge-in-texas-patients-as-abortion-law-takes-effect/. The same article makes clear
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`Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 13 of 27
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`that the proponents of S.B. 8 are “aware of women crossing state lines.” Id. Before S.B. 8 took effect,
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`most Texas women had access to a clinic within 24 miles round trip from their home; now, they will
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`have to travel 496 miles round trip on average to obtain an out-of-state abortion. See Elisabeth
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`Buchwald, Texas Abortion Law: Women Will have to Travel 496 Miles On Average Round Trip to Get an
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`Abortion Out-Of-State, MarketWatch (Sept. 5, 2021), https://www.marketwatch.com/story/texas-
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`abortion-law-women-will-have-to-travel-496-miles-on-average-round-trip-to-get-an-abortion-out-of-
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`state-11630609618.
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`38. Where the United States is obligated to provide the constitutional abortion services
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`that S.B. 8 outlaws, S.B. 8 purports to require the United States to refrain from providing those services
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`or to relocate women and possibly service providers out of Texas.
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`39.
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`Similarly, S.B. 8 purports to require the United States to terminate existing monetary
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`contracts and agreements that involve the insurance of or reimbursement of the abortion services S.B.
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`8 bans.
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`40.
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`S.B. 8 further prohibits (and thus discourages) certain interstate commercial
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`transactions involving Texas. For example, S.B. 8 appears to apply to monetary transfers into the
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`State of Texas if those funds may, in any manner, facilitate an abortion. Thus, S.B. 8 may apply to
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`insurance companies throughout the United States that cover abortion services provided in violation
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`of the statute, as well as banks facilitating transfers of funds to reimburse women receiving restricted
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`abortions. And S.B. 8 may also apply to medical device transactions involving out-of-state sellers,
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`including, for example, the sale of medical equipment that could be used to perform abortions
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`outlawed under S.B. 8.
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`Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 14 of 27
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`S.B. 8 IRREPARABLY INJURES THE UNITED STATES
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`I.
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`S.B. 8 Injures the United States by Depriving Women in Texas of their Constitutional
`Rights While Seeking To Prevent Them from Vindicating Those Rights in Federal
`Court
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`41.
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`On September 1, 2021, S.B. 8 went into effect, prohibiting nearly all abortions after
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`six weeks of pregnancy. The law prohibits at least 85% of abortions that were previously lawful in the
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`State.
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`42.
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`S.B. 8 unlawfully prohibits women from exercising the constitutional right to a pre-
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`viability abortion—including for women in agencies’ care and custody. S.B. 8 violates the
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`constitutional right to a pre-viability abortion by prohibiting health care providers from performing
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`such abortions after six weeks. To the extent that S.B. 8 could be viewed as only regulating pre-
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`viability abortions, such that the undue burden standard would apply, the law also substantially
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`burdens that right by imposing liability on individuals who aid or abet the provision of a prohibited
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`abortion, thereby imposing substantial obstacles to a woman’s right to elect the procedure.
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`43.
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`Under settled precedent, a ban on nearly all abortions after six weeks cannot survive
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`constitutional review. Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (striking
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`six-week ban because “cardiac activity can be detected well before the fetus is viable [and] [t]hat dooms
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`the law”). S.B. 8 attempts to circumvent this rule by imposing a distorted version of the “undue
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`burden” test, requiring state courts to weigh the undue burden in every case as part of an “affirmative
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`defense” in enforcement actions. Tex. Health & Safety Code § 171.209(c), (d). S.B. 8 requires persons
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`who are sued to prove that the imposition of an injunction and monetary penalties against them will
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`impose a substantial obstacle on patient access to care, and to do so without relying on the effect of
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`“an award of relief against other defendants or other potential defendants,” id. § 171.209(d)(2), even
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`though the practical effect on abortion access across the state is a relevant consideration in evaluating
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`Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 15 of 27
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`undue burden claims. Accordingly, S.B. 8’s “undue burden” defense does not remedy the law’s
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`unconstitutional abortion ban.
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`44.
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`S.B. 8 harms the United States by seeking to foreclose judicial review of a state law
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`that flagrantly infringes the constitutional rights of the public at large and seeks to block the injured
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`members of the public from challenging that law in court. The United States may sue to vindicate its
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`interest in preventing Texas from effecting such a constitutional violation. The President also has the
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`duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, a duty that is carried
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`out in part by the Attorney General of the United States. See, e.g., Ponzi v. Fessenden, 258 U.S. 254, 262
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`(1922).
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`II.
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`S.B. 8 Unconstitutionally Restricts the Operations of the Federal Government and
`Conflicts with Federal Law
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`46.
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`By prohibiting nearly all abortions in Texas after six weeks of pregnancy, without
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`exceptions for rape, sexual abuse, or incest, S.B. 8 unconstitutionally conflicts with the statutory and
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`constitutional responsibilities of the federal government. Specifically, S.B. 8 exposes federal personnel
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`and grantees to liability for carrying out their federal obligations to provide access to abortion-related
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`services to persons in the care and custody of federal agencies and interferes with federal contracts
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`and grants with third-party providers who are obligated under their agreements to provide abortion-
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`related services but refuse to do so to avoid liability under S.B. 8. S.B. 8 also increases the costs to
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`federal agencies of carrying out their obligations under federal law to the extent that civil penalties and
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`awards to claimants under S.B. 8 are allowable. In addition, it will increase reimbursable costs under
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`federal contracts with third-party providers. Finally, it will increase costs to the extent that agencies
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`must incur increased transportation and other costs to provide individuals in their care with abortion
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`services outside the State of Texas that are required under federal law but prohibited by S.B. 8. Such
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`impacts likely will be felt by numerous federal agencies and their personnel, including the Department
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`Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 16 of 27
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`of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and
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`Medicaid Servic