Amicus Curiae Brief — Whole Woman's Health, et al., Petitioners v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al.

Supreme Court briefOct 21, 2021

Ask Donna

What actually matters in this document.

Text

No. 21-463

In The Supreme Court of the United States

WHOLE WOMAN’S HEALTH, et al.,

Petitioners,

AUSTIN REEVE JACKSON, JUDGE,

DISTRICT COURT OF TEXAS, 114TH DISTRICT, et al.,

Respondents.

On Petition for a Writ of Certiorari before Judgment

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF FIREARMS POLICY COALITION

AS AMICUS CURIAE IN SUPPORT OF

GRANTING CERTIORARI

ERIK S. JAFFE

Counsel of Record

SCHAERR|JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

ejaffe@schaerr-jaffe.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Authorities ..................................................... ii

Interest of Amicus Curiae ........................................... 1

Summary of Argument ................................................ 2

Argument ..................................................................... 4

I. This Case Is Important Because the

Approach Used by Texas Could Be Used

Against Numerous Other Constitutional

Rights. ............................................................... 4

II. Chilling the Exercise of a Constitutional

Right Constitutes Present Infringement

for Which There Must Be Present

Redress. ............................................................. 8

Conclusion.................................................................. 14

TABLE OF AUTHORITIES

Cases

Alabama v. Smith, 490 U.S. 794 (1989) ................... 10

Citizens United v. FEC, 558 U.S. 310 (2010) ........... 10

City of Houston v. Hill, 482 U.S. 451 (1987) .............. 9

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 9

Edelman v. Jordan, 415 U.S. 651 (1974).................... 9

Ex parte Young, 209 U.S. 123 (1908) ........................ 14

Hans v. Louisiana, 134 U.S. 1 (1890) ....................... 14

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ............. 9

Laird v. Tatum, 408 U.S. 1 (1972) ............................ 10

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................ 11

North Carolina v. Pearce, 395 U.S. 711 (1969) .......... 9

Planned Parenthood of Se. Pennsylvania v. Casey,

505 U.S. 833 (1992) .................................................. 9

Reno v. ACLU, 521 U.S. 844 (1997) .......................... 10

Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 8

Shelley v. Kraemer, 334 U.S. 1 (1948) ...................... 11

Steffel v. Thompson, 415 U.S. 452 (1974) ................. 10

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) .......................... 9

United States v. Jackson, 390 U.S. 570 (1968) ........... 8

Virginia v. Hicks, 539 U.S. 113 (2003) ..................... 10

Statutes

N.Y. GEN. BUS. LAW § 898-a(4).................................... 4

N.Y. GEN. BUS. LAW § 898-b(1) .................................... 5

N.Y. GEN. BUS. LAW § 898-e ........................................ 4

iii

TABLE OF AUTHORITIES (CONT’D)

Other Authorities

Andrew B. Coan, Text as Truce: A Peace

Proposal for the Supreme Court's Costly War

Over the Eleventh Amendment,

74 FORDHAM L. REV. 2511 (2006)........................... 14

John F. Manning, The Eleventh Amendment

and the Reading of Precise Constitutional Texts,

113 YALE L.J. 1663 (2004) ..................................... 14

James Sample, Textual Rights, Living Immunities,

41 S. ILL. U. L.J. 29 (2016) ..................................... 14

INTEREST OF AMICUS CURIAE 1

The Firearms Policy Coalition, Inc. (FPC) is a nonprofit membership organization that works to defend

constitutional rights and promote individual liberty,

including the right to keep and bear arms and the

freedom of speech, throughout the United States.

FPC engages in direct and grassroots advocacy, research, legal efforts, outreach, and education to this

end.

FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation

of enforcement to private litigants could just as easily

be used by other States to restrict First and Second

Amendment rights or, indeed, virtually any settled or

debated constitutional right. FPC takes no position

on whether abortion should be protected by the Constitution but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court’s cases, cannot

be circumvented in the manner used by Texas.

1 This brief is submitted pursuant to the written consent of

all parties. All parties were notified of Amicus’s intent to file

this brief more than 10 days prior to its due date and 6 days prior to the subsequently expedited date for respondents to file

their opposition. No counsel for a party authored this brief in

whole or in part, nor did any person or entity, other than Amicus or its counsel, make a monetary contribution intended to

fund the preparation or submission of this brief. Amicus is not

publicly traded and has no parent corporations, and no publicly

traded corporation owns 10% or more of Amicus.

SUMMARY OF ARGUMENT

The importance of this petition is not about any

debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court

in other cases. Rather, this case is about access to

the means of enforcing individual constitutional

rights, as determined by this Court’s cases, and protecting against their infringement, regardless of the

particular right involved. Texas’s novel scheme for

infringing upon and chilling the exercise of the right

to abortion under this Court’s Roe and Casey decisions while seeking to evade judicial review, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is

wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of

any other hotly debated constitutional right, such as

the right to keep and bear arms.

1. The petition presents an important question

warranting this Court’s early and expedited review

because, if Texas’s scheme for postponing or evading

review is successful here, it will undoubtedly serve as

a model for deterring and suppressing the exercise of

numerous constitutional rights. New York is already

experimenting with private enforcement of anti-gun

laws raising significant Second Amendment issues

and will no doubt gladly incorporate the lessons of

this case to insulate its future efforts to suppress the

right to keep and bear arms. Other States, targeting

those and other rights, will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who criticize the government,

refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or

engage in any other protected but disfavored conduct.

And, if Texas’s asserted procedural barriers to preenforcement review are upheld, there is no reason to

think the penalties couldn’t be made even more draconian, thus increasing the deterrent and chill of constitutionally protected activity. The precedent this

law sets as a model for deterring the exercise of any

and all rights makes this case one of tremendous importance and worthy of this Court’s prompt consideration.

2. It is well established across numerous cases that

laws that deter or chill the exercise of constitutional

rights violate those rights. Such deterrence or chill

constitutes a present harm for which litigants can

seek present redress without having to violate the

laws in question and absorb the tremendous risks of

thereby putting their heads on the proverbial chopping block. Even where the risk derives from prospective litigation initiated by private parties relying

on state law, such risks are still the product of state

action and imposed by state actors. Whether such

state actors are the “deputized” potential plaintiffs or

the court officials and jurists that wield the power of

government at every stage of the litigation process,

the chilling effect here derives from the bending of

state power to such ends. In such circumstances,

there should be no serious barrier to enjoining any

and all state actors who facilitate or play a role in

such a farce. To the extent any of this Court’s sovereign immunity jurisprudence even hints otherwise,

such cases have strayed from the text, structure, and

logic of the Constitution and should be reconsidered.

ARGUMENT

I. This Case Is Important Because the Approach Used by Texas Could Be Used

Against Numerous Other Constitutional

Rights.

The most useful way to appreciate the significance

of this case is to stop thinking of it as an abortion

case and recognize it for what it is: a challenge to a

broadly applicable tactic for avoiding federal judicial

review of state efforts to circumvent the rights of its

residents as recognized by this Court. While the

Texas law in question is indeed specific to abortion,

the tactic it employs is not remotely so limited. Indeed, a version of the tactic has already been deployed by New York allowing “any person, firm, corporation or association that has been damaged,” to

sue a “gun industry member” to enforce a broad array

of prohibited conduct, i.e., anything at all that could

“endanger[] the safety or health of the public”

through conduct that is merely “unreasonable under

all the circumstances.” 2

2 See N.Y. GEN. BUS. LAW § 898-e (“Any person, firm, corpora-

tion or association that has been damaged as a result of a gun

industry member’s acts or omissions in violation of this article

shall be entitled to bring an action for recovery of damages or to

enforce this article in the supreme court or federal district

court.”); id. § 898-a(4) (“gun industry member” defined as “a

person, firm, corporation, company, partnership, society, joint

stock company or any other entity or association engaged in the

sale, manufacturing, distribution, importing or marketing of

firearms, ammunition, ammunition magazines, and firearms ac-

While New York has only started down the path of

subcontracting enforcement of constitutionally suspect laws to private parties, Texas has aggressively

expanded upon the model by deputizing virtually all

private persons to legally threaten citizens exercising

or assisting the exercise of what is, at least for now

and unless the Court says otherwise, the rights it established in Roe and Casey. To the extent this tactic

is effective at evading or outright blocking preenforcement review, while allowing the significant

and largely decisive deterrent to persist unless and

until a direct application of the law is reviewed by

this Court, it will easily become the model for suppression of other constitutional rights, with Second

Amendment rights being the most likely targets of

such suppression.

For example, it takes little in the way of creative

copying for States hostile to the Second Amendment—New York, California, New Jersey, Hawaii,

etc.—to declare that the ownership or sale of a handgun is illegal, notwithstanding Heller, and set up a

bounty system with the same unbalanced procedures

and penalties adopted by Texas in this case. If state

officials are prohibited from bringing suit in their official capacities to enforce such a law, such States

could dispute any pre-enforcement challenges on the

same grounds Texas argues here. But the chill of

Second Amendment rights would exist even without

an actual citizen’s suit being brought and there would

cessories”); id. § 898-b(1) (defining prohibited conduct). Lacking

Texas’s creativity, New York also allows for government enforcement of its law.

be a substantial incentive to discourage an actual application of the law so long as the chill was even partially effective.

Similar tactics, could, of course, be applied to deter

the exercise of many other constitutional rights or,

indeed, any form of disfavored behavior, while avoiding any pre-enforcement review. Perhaps a $10,000

bounty (plus attorney’s fees) against anyone uttering,

even negligently or without material harm, a false

statement of fact on television or the internet? Nobody really much likes First Amendment libel jurisprudence anyway these days.

Maybe even larger bounties against people refusing to be vaccinated or wear a mask? Forget religious

or medical exemptions—they are just roadblocks to

achieving important policy goals. The objectives

might well be met long before a suit is resolved: Suppress disfavored conduct first and let the courts ask

questions later if anyone ever brings an actual suit.

Don’t like those bothersome protesters always criticizing the government? Bounties on everyone the

next time Second Amendment advocates rally in support of the right to keep and bear arms, school choice

advocates march for their children’s education, police

reform advocates gather to protest qualified immunity, labor picketers protest in support of unions and

collective bargaining, or anyone else shows up and

deigns to assemble and complain. Courts can worry

about the right to speak, assemble, and petition if

and when a case is brought. But in the meantime,

protesters can proceed at their own risk and hope

that this Court grants cert. after years of litigation in

state courts and a potential string of hostile rulings

before defendants can even ask this Court for discretionary review.

And not to sound like a bad commercial from last

century, but wait, there’s more: In a State emboldened by the Texas bounty model, why limit the deterring penalties to a mere $10,000 plus attorney’s fees?

Surely state legislatures hostile to various and sundry accepted or disputed constitutional rights know

how to multiply. Why not $100,000 or $1,000,000

bounties? One-sided attorney’s fees not enough of a

deterrent? Why not sizeable mandatory judgment

bonds as a condition to appeal? Maybe even prejudgment liens on bank accounts and real estate to

make sure a future judgment gets paid (and that

even an unsuccessful suit has maximum financial

impact in the interim).

But perhaps that still might not be enough. Why

not, to paraphrase a rock parody, turn the penalties

up to 11 (on the 0-10 scale) and declare that abortion

is murder (though not subject to prosecution by the

State itself), that defending fetal life against those

who would provide or facilitate abortions is justifiable

homicide in defense of others, and that no charges

may be brought against private citizens acting in defense of fetal life? Or maybe declare that protests

about elections are felonious threats to democracy

and may be dispersed with deadly force (by private

citizens only, of course), again with prosecutors

barred from charging those who act against such felonious assemblages?

While these examples may seem absurd, for purposes of the petition here they are structured in precisely the same too-clever-by-half manner intended to

avoid pre-enforcement review while aggressively deterring conduct in a manner plainly incompatible

with existing Supreme Court precedent. Indeed, as

absurd as these examples are, one might be excused

for thinking it absurd that a State could deputize all

private citizens to enforce a state law, disable actual

state officials and employees from initiating (but not

later facilitating) enforcement of that same law, and

then somehow pretend there are no state actors to be

sued or pre-enforcement means of stopping the plainly intended chill of conduct protected under this

Court’s current caselaw until the right is virtually

frozen.

II. Chilling the Exercise of a Constitutional

Right Constitutes Present Infringement for

Which There Must Be Present Redress.

That the deterrence or “chill” of constitutionally

protected activity constitutes an infringement of constitutional rights seems well established and uncontroversial. Whether in the context of speech or other

rights, making the exercise of a right costly, risky, or

uncertain all serve to deter that exercise and have

regularly been found to violate the Constitution. See,

e.g., United States v. Jackson, 390 U.S. 570, 581–82

(1968) (regarding Fifth Amendment Rights: “If the

provision had no other purpose or effect than to chill

the assertion of constitutional rights by penalizing

those who choose to exercise them, then it would be

patently unconstitutional.”); Shapiro v. Thompson,

394 U.S. 618, 631 (1969) (regarding the right to travel: “the purpose of deterring the in-migration of indigents * * * is constitutionally impermissible. If a law

has ‘no other purpose than to chill the assertion of

constitutional rights by penalizing those who choose

to exercise them, then it (is) patently unconstitutional.’”), overruled in part on other grounds by Edelman

v. Jordan, 415 U.S. 651 (1974); Thornburgh v. Am.

Coll. of Obstetricians & Gynecologists, 476 U.S. 747,

767–68 (1986), overruled by Planned Parenthood of

Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) (regarding abortion: “the Court consistently has refused

to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but

sometimes unpopular, activities * * *. [T]hey pose an

unacceptable danger of deterring the exercise of that

right, and must be invalidated.”); City of Houston v.

Hill, 482 U.S. 451, 467–68 (1987) (regarding Free

Speech: “to force the plaintiff who has commenced a

federal action to suffer the delay of state-court proceedings might itself effect the impermissible chilling

of the very constitutional right he seeks to protect.”)

(citation omitted); Dombrowski v. Pfister, 380 U.S.

479, 494 (1965). (“Even the prospect of ultimate failure of such prosecutions by no means dispels their

chilling effect on protected expression.”); John Doe

No. 1 v. Reed, 561 U.S. 186, 245 (2010) (Thomas, J.,

dissenting). (“Our cases have long recognized this reality; as the Court recently reiterated, the First

Amendment does not require ‘case-by-case determinations’ if ‘archetypical’ First Amendment rights

‘would be chilled in the meantime.’”). 3

3 See also North Carolina v. Pearce, 395 U.S. 711, 724 (1969)

(regarding Due Process: “‘penalizing those who choose to exercise’ constitutional rights, ‘would be patently unconstitutional.’

* * * And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to

In the many cases addressing laws that chill the

exercise of constitutional rights, the protected activity in question is not necessarily forbidden outright

but instead saddled with burdens and risks that

cause citizens to steer clear of the line and to forego

activity that would properly be protected. Such deterrence, even where not intentionally designed to

suppress protected activity, is nonetheless a violation

of the Constitution and may be challenged before enforcement.

Indeed, the very purpose of preenforcement challenges in numerous contexts is to

prevent citizens from having to absorb the serious

risks of violating a law in order to challenge it. Cf.

Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“it is

not necessary that petitioner first expose himself to

actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of

his constitutional rights.”).

In this case, Texas has argued, and the Fifth Circuit agreed, that there is no state action under its

‘chill the exercise of basic constitutional rights.’”), overruled in

part by Alabama v. Smith, 490 U.S. 794 (1989); Laird v. Tatum,

408 U.S. 1, 11 (1972) (“constitutional violations may arise from

the deterrent, or ‘chilling,’ effect of governmental regulations

that fall short of a direct prohibition against the exercise of First

Amendment rights”); Reno v. ACLU, 521 U.S. 844, 871–72

(1997) (“The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on

free speech.”); Virginia v. Hicks, 539 U.S. 113, 118–19 (2003)

(“the threat of enforcement of an overbroad law may deter or

“chill” constitutionally protected speech.”); Citizens United v.

FEC, 558 U.S. 310, 327 (2010) (“The interpretive process itself

would create an inevitable, pervasive, and serious risk of

chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable.”).

tactical model until enforcement and thus no state

actor to enjoin in the meantime. But that conflates

substance and timing. If there is state action (and

hence a state actor) once a suit has been filed or resolved, then there is a state actor to enjoin preenforcement. For example, there should be little

question that even a private litigant invokes the

power of the State when applying or enforcing state

law in a private lawsuit. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 14, 19 (1948) (“That the action of state

courts and of judicial officers in their official capacities is to be regarded as action of the State within the

meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of

this Court.”; “These are not cases, as has been suggested, in which the States have merely abstained

from action, leaving private individuals free to impose such discriminations as they see fit. Rather,

these are cases in which the States have made available to such individuals the full coercive power of

government * * *.”). 4

Recognizing that a suit would involve state action,

the next question is to identify the appropriate state

actor or actors to attempt to enjoin. One possibility is

4 Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 277–78

(1964) (“What a State may not constitutionally bring about by

means of a criminal statute is likewise beyond the reach of its

civil law of libel. The fear of damage awards under a rule such

as that invoked by the Alabama courts here may be markedly

more inhibiting than the fear of prosecution under a criminal

statute.” (footnote omitted); “Plainly the Alabama law of civil libel is ‘a form of regulation that creates hazards to protected

freedoms markedly greater than those that attend reliance upon

the criminal law.’” (citation omitted)).

that the “private” litigant would be acting under color

of state law and therefore may be deemed the relevant state actor. Indeed, the practical effect of the

Texas law is to deputize the universe of private citizens to enforce the law in lieu of actual state employees or officials. Subcontracting out enforcement of

these types of laws to everyone except state officials is

problematic for a host of reasons, but here it merely

speaks to their potential role as state actors. 5 And if

that is the case—that all private citizens are now

deputized enforcers of Texas law no different than

state attorneys—then they also can be enjoined as

such. While suing a defendant class in such circumstances would undoubtedly be unwieldy and raise a

host of procedural and ethical issues, those very issues would be created by the sheer audacity of the

Texas scheme and cannot be used to insulate it from

review.

Alternatively, if citizen-litigants are not themselves state actors, then it is the courts who are the

state actors implementing and enforcing the questionable state law involved. But if the courts are the

proper state actors once a suit is filed, they are still

the proper state actors for any pre-enforcement suit.

If the very premise of pre-enforcement suits is that

the mere threat of state action chills the exercise of

rights and thus creates a ripe case or controversy,

then so too here, the mere threat of having to endure

5 That the prospective litigants in this case need not be pursuing redress for any personal injury or have any other interest

in the case beyond reaping the state-created bounty is all the

more reason to recognize that any suit under the Texas law

would involve state action.

a lawsuit with a largely predetermined outcome under state law chills the exercise of constitutional

rights even before the suit is filed and regardless of

any eventual constitutional defense. Furthermore,

state court officials apply the coercive power of government against even civil defendants the moment

they issue a summons in support of a complaint,

when they stand behind procedural rules demanding

production of testimony or documents, and throughout the course of a judicial proceeding, not merely at

the last moment when judgment is entered. A preenforcement challenge and potential injunction thus

requires intervention before the first application of

coercive state power that burdens or penalizes protected conduct, not simply before final judgment.

Enjoining the facilitating state actors from playing

their role in this broader farce thus is no different

than enjoining any other state actor from enforcing a

law that chills constitutional conduct, at least until

preliminary judicial review has occurred.

Amicus thus agrees with petitioners that preenforcement suit against state court employees and

jurists to bar their role as state actors facilitating

prospective private actions under color of state law

that are credibly alleged to chill, and hence infringe

upon, constitutional rights protected by this Court’s

precedents is a perfectly valid approach that should

be held to fall within Ex parte Young’s exception to

claimed state sovereign immunity. 6

6 Although a bit premature at the cert. stage, amicus notes

that if there is an appetite for questioning existing precedent,

one might start with precedent applying sovereign immunity to

States being sued for violating the rights of their own citizens.

CONCLUSION

This case is important not because of its specific

subject matter of abortion, but instead for Texas’s

cavalier and contemptuous mechanism for shielding

from review potential violations of constitutional

rights as determined by this Court’s precedents. It is

one thing to disagree with precedents and seek their

revision or reversal through judicial, congressional,

or constitutional avenues; it is another simply to circumvent judicial review by delegating state action to

the citizenry at large and then claiming, with a wink

and a nod, that no state actors are involved.

Hans v. Louisiana, 134 U.S. 1 (1890); Ex parte Young, 209 U.S.

123 (1908). The text of the Eleventh Amendment certainly does

not support, and would seem to actively rebut, such a conclusion. See John F. Manning, The Eleventh Amendment and the

Reading of Precise Constitutional Texts, 113 YALE L.J. 1663,

1670 (2004) (criticizing counter-textual interpretation of the

Eleventh Amendment); James Sample, Textual Rights, Living

Immunities, 41 S. ILL. U. L.J. 29, 37 (2016) (“Quite frankly, and

to use Justice Bradley’s own words, the Eleventh Amendment

has reached such a point (through Hans and its progeny) at

which it has become ‘almost an absurdity on its face.’”); Andrew

B. Coan, Text as Truce: A Peace Proposal for the Supreme

Court's Costly War Over the Eleventh Amendment, 74 FORDHAM

L. REV. 2511, 2530 (2006) (“the Eleventh Amendment restricts

federal jurisdiction only with respect to suits against states ‘by

citizens of another state,’ not with respect to suits by a state's

own citizens.”). And even apart from baseline flaws in Eleventh

Amendment jurisprudence, the Fourteenth Amendment would

seem to supersede any previous potential state sovereign immunity as against violations of the federal Constitution. If a

State could be sued directly to challenge unconstitutional laws,

the complicated search for a state actor to enjoin would be unnecessary. A deeper dive into the textual basis, or lack hereof,

for insulating States from direct challenge of unconstitutional

laws, while perhaps needed, is best left for review on the merits.

From Amicus’s perspective, if pre-enforcement review can be evaded in the context of abortion it can

and will be evaded in the context of the right to keep

and bear arms. While the political valences of those

issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and

Casey, many States view Heller as wrongly decided.

Those States, with the help of many circuit courts,

have showed an ongoing refusal to accept the holding

in Heller and a continuing creativity in seeking to

circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit

here, New York, California, New Jersey, and others

will not be far behind in adopting equally aggressive

gambits to not merely chill but to freeze the right to

keep and bear arms.

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,