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 27, 2021

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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 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

PETITIONERS

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 ................................................ 1

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

I. Chilling the Exercise of a Constitutional

Right Constitutes Present Infringement

for Which There Must Be Present

Redress. ............................................................. 4

II. The Approach Used by Texas Could Be

Used Against Numerous Other

Constitutional Rights and With Even

More Abusive Deterrents. ................................ 9

III.A Pre-Enforcement Suit Against the

Threatened Enforcement of S.B. 8 Can

Proceed Under a Variety of Approaches. ....... 13

Conclusion.................................................................. 18

TABLE OF AUTHORITIES

Cases

Alabama v. Smith, 490 U.S. 794 (1989) ..................... 6

Caetano v. Massachusetts, 577 U.S. 411 (2016) ....... 10

Citizens United v. FEC, 558 U.S. 310 (2010) ............. 6

City of Houston v. Hill, 482 U.S. 451 (1987) .............. 8

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 8

Edelman v. Jordan, 415 U.S. 651 (1974).................... 5

Hans v. Louisiana, 134 U.S. 1 (1890) ....................... 16

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ............. 5

Laird v. Tatum, 408 U.S. 1 (1972) .............................. 5

Loving v. Virginia, 388 U.S. 1 (1967) ....................... 11

McDonald v. Chicago, 561 U.S. 742 (2010) .............. 17

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................................. 7

North Carolina v. Pearce, 395 U.S. 711 (1969) .......... 6

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ............................................ 11

Planned Parenthood of Se. Pennsylvania v. Casey,

505 U.S. 833 (1992) .................................................. 5

Reno v. ACLU, 521 U.S. 844 (1997) ............................ 6

Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 5

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................ 7

Steffel v. Thompson, 415 U.S. 452 (1974) ................... 6

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) .......................... 5

Timbs v. Indiana, 139 S. Ct. 682 (2019) ................... 17

United States v. Jackson, 390 U.S. 570 (1968) ........... 5

Virginia v. Hicks, 539 U.S. 113 (2003) ....................... 6

iii

TABLE OF AUTHORITIES (CONT’D)

Constitutional Provisions

U.S. CONST., amend. XIV .......................................... 17

Statutes

N.Y. GEN. BUS. LAW § 898-a(4).................................... 9

N.Y. GEN. BUS. LAW § 898-b(1) .................................. 10

N.Y. GEN. BUS. LAW § 898-e ........................................ 9

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) ........................... 17

John F. Manning, The Eleventh Amendment

and the Reading of Precise Constitutional Texts,

113 Yale L.J. 1663 (2004) ...................................... 16

James Sample, Textual Rights, Living Immunities,

41 S. Ill. U. L.J. 29 (2016) ...................................... 17

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 judicial review of restrictions on even disputed constitutional rights as

defined and protected under this Court’s cases cannot

be circumvented in the manner used by Texas.

SUMMARY OF ARGUMENT

This case in its current posture is not about any

debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no po1 This brief is submitted pursuant to the written blanket consent of all parties. 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.

sition on such questions, which are before this Court

in other cases. Rather, this case is about how far a

State may go in deterring the exercise of any and all

individual constitutional rights, as such rights are

determined by this Court’s cases. Texas’s novel

scheme for infringing upon and chilling the exercise

of the right to abortion under this Court’s Roe and

Casey decisions, 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. 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 absorb

the tremendous costs and risks of putting their heads

on the proverbial chopping block by violating those

laws and hoping for eventual vindication. Even

where the risk derives from prospective litigation initiated by private parties invoking state law, such

risks are still the product of state action in adopting

and implementing the law. Whether the relevant

state actors are the “deputized” potential plaintiffs

and/or the court officials and jurists that wield the

power of government at every stage of the litigation

process, the chilling of protected conduct is the consequence of invoking state power to such ends, wholly

apart from the outcome in any particular case. Indeed, the Texas law is designed precisely to have that

effect, biasing the playing field in a manner that likely violates due process, the right to petition, and var-

ious other provisions of the Constitution wholly apart

from its restriction on abortion. In such circumstances, there should be no serious barrier to enjoining any

and all state actors or agents who facilitate or play a

role in such a farce.

2. If Texas’s scheme for postponing or evading federal judicial 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 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 will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who marry someone of the

“wrong” sex or color, 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 avoidance of pre-enforcement review succeeds, there is no reason to think the deterring penalties couldn’t be made even more draconian. The

precedent this law sets as a model for deterring the

exercise of any and all rights amply illustrates why it

is impermissible.

3. There are a variety of paths for allowing a preenforcement challenge to proceed in this case. The

simplest path is the one suggested by petitioners – a

suit against those state employees and officials most

instrumental in giving force and effect to the threat

Texas levels against the exercise or facilitation of

federal constitutional rights. Any concerns with

ripeness are misplaced given that the imminent

threat of litigation, even if not the specific litigants, is

palpable and already having an immediate deterrent

effect. That litigants have yet to exercise their delegated authority to sue under this scheme makes no

more difference than if a prosecutor had yet exercised

his or her authority to bring charges under a facially

unconstitutional statute.

Alternatively, this Court could recognize the option of a suit against a defendant class of all persons

empowered to act under the Texas law. If Texas is

going to delegate the government function of enforcing the law to its residents, then those residents

should also be subject to collective suit as the agents

or functional contractors of the State.

Finally, if this Court views any of its precedents as

a barrier to suit here, the solution is simple: expand

the court-created work-around in Ex parte Young or

just overrule Hans v. Louisiana to allow direct suit

by a State’s citizens against a State that “make[s] or

enforce[s]” laws violating the privileges or immunities of those within their State. Such cases strayed

from the text, structure, and logic of the Constitution

and their errors should not be compounded by driving

the train of misdirected precedent off the cliff proposed by Texas.

ARGUMENT

I. 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 con-

stitutional 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.”), 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) (regarding abortion: “the Court consistently

has refused to allow government to chill the exercise

of constitutional rights”), overruled by Planned

Parenthood of Se. Pennsylvania v. Casey, 505 U.S.

833 (1992); 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”); 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 ‘ar-

chetypical’ First Amendment rights ‘would be chilled

in the meantime.’”). 2

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 chal2 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

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

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

lenge 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

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 * * *.”). 3

3 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

Once the courts are understood as state actors regardless whether the plaintiff is a public official or a

private person, it is simple to recognize that allowing

the litigation itself, not merely its eventual outcome,

is the most immediate relevant threat and penalty on

those seeking to assert constitutional rights. 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 statecourt 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.”).

The difficulty of forcing defendants to litigate individual state-court cases in order to raise constitutional defenses is compounded by the other likely

constitutional violations built into S.B. 8. It is hard

to imagine, for example, how the law’s one-sided attorney’s fees, venue provisions, limits on estoppel,

and limits on the raising of defenses comport with

(procedural) due process or equal protection, for example. It is likewise doubtful that allowing the recovery of attorney’s fees against parties who challenge the constitutionality of S.B. 8 (though not

against its defenders), even if the challenge is in federal court, squares with the First Amendment’s

Speech or Petition Clauses. Likewise with the provisions for joint and several liability of the attorneys

freedoms markedly greater than those that attend reliance upon

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

who bring such plainly non-frivolous challenges for

their clients. Indeed, it is a modern spin on sedition

laws that tries to penalize anyone who challenges

state law, even where they are successful on most,

but not all, counts. And one likewise must wonder

how a minimum $10,000 penalty plus costs and fees

payable to persons with no injury or personal interest

squares with due process or the excessive fines

clause. In short, the suggestion by respondents that

potential defendants must run that gauntlet and

hope for the best is unrealistic at best and craven at

worst.

II. The Approach Used by Texas Could Be Used

Against Numerous Other Constitutional

Rights and With Even More Abusive Deterrents.

Although S.B. 8 directs its procedural abuses at

those who would facilitate abortions, 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.” 4

4 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

While New York is so far only slouching down the

path of subcontracting enforcement of constitutionally suspect laws to private parties, Texas has taken off

at a sprint, deputizing virtually all private persons to

legally threaten citizens assisting the exercise of

what is, at least for now and unless the Court says

otherwise, the rights established in Roe and Casey.

To the extent this tactic is effective at evading or outright blocking pre-enforcement review, while still deterring protected behavior, it will easily become the

model for suppression of other constitutional rights,

with Second Amendment rights being the most likely

targets.

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. 5 If state

stock company or any other entity or association engaged in the

sale, manufacturing, distribution, importing or marketing of

firearms, ammunition, ammunition magazines, and firearms accessories”); id. § 898-b(1) (defining prohibited conduct). Lacking

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

5 Just as many States question this Court’s decisions in Roe

and Casey, other States (and many courts) both question and resist this Court’s decision in Heller. It is not uncommon to find

states asserting (and various judges accepting) arguments based

on the dissent in Heller rather than the opinion itself. See, e.g.,

Caetano v. Massachusetts, 577 U.S. 411 (2016) (GVR of State

court opinion that did not attend to Heller); id. at 415, 421

(Alito, J., concurring) (“Although the Supreme Judicial Court [of

Massachusetts] professed to apply Heller, each step of its analy-

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

a suit being brought and there would 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. States still mad

about Obergefell v. Hodges, 135 S. Ct. 2584 (2015),

might offer bounties on people facilitating same-sex

marriage. Or, those upset by claimed free-exercise

defenses to discrimination laws might offer the entire

populace private bounties against anyone declining to

facilitate such weddings. For States in a really old

school frame of mind who have never gotten over Loving v. Virginia, 388 U.S. 1 (1967), perhaps bounties

against people facilitating interracial marriage.

Perhaps a minimum $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?

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

or medical exemptions.

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

sis defied Heller’s reasoning.”; “The lower court’s ill treatment of

Heller cannot stand.”).

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 under rules that would make Mickey

Mouse and kangaroos blush.

And in a State emboldened by the Texas bounty

model but wanting to show some originality, why limit the minimum penalties to a mere $10,000 plus attorney’s fees? Surely hostile state legislatures 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).

If the parade is still not horrible 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 de-

fense 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? When outcome matters more

than process and the federal judiciary and Constitution are just barriers to State desires, it is hard to

know how far a State might go.

While these examples may seem absurd, for purposes of this case 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 freeze of conduct protected under this Court’s

current caselaw.

III. A Pre-Enforcement Suit Against the Threatened Enforcement of S.B. 8 Can Proceed

Under a Variety of Approaches.

Recognizing that suits under S.B. 8 involve, at a

minimum, threatened state action, one need only

identify the appropriate state actor or actors to attempt to enjoin. The simplest option is precisely the

one proposed by petitioners: sue the state actors who

have the most immediate role in implementing the

scheme and whose prospective conduct (even before

judgment) plays a central role in deterring protected

behavior.

It is the state courts who are implementing and

enforcing the questionable state law involved, including the various procedural affronts. 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. 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.

So too here, the mere threat of having to endure a

lawsuit on an intentionally skewed playing field under state law chills protected behavior even before

the suit is filed and regardless of any eventual constitutional defense. 6 Moreover, the burden imposed by

the courts themselves on civil defendants begins the

moment a summons is issued in support of a complaint. The coercive conduct of the state courts con6 That the state courts themselves could conceivably declare

the law and its burdensome procedures unconstitutional is no

reason to allow litigation to progress in those courts. Such an

answer has never been deemed sufficient to allow prosecutors to

avoid pre-enforcement challenges to laws chilling free speech

and the same should be true here. Indeed, having to exhaust

state court remedies and absorb the interim consequences

shows why it is the court procedures themselves that are the offending state action. And given that there is no estoppel for

successful defendants in state court, plaintiffs will just keep trying until they inevitably find a judge less concerned about the

niceties of the Constitution and unwilling to listen to some

pointy-headed jurist in Austin (or Washington, for that matter).

To rely on the usual presumptions of procedural regularity and

respect for the federal law often accorded to state courts is wholly unwarranted in the wake of S.B.8’s effort to eliminate such

procedural regularity.

tinues throughout the proceeding whenever production of testimony or documents is required, hearings

are called, and throughout the many phases of a judicial proceeding, not only at the last moment when

judgment is entered. A pre-enforcement challenge

and potential injunction thus requires intervention

before the first application of coercive state power

that burdens or penalizes protected conduct, not

simply after the final judgment and any appeal but

before collection of penalties and fees.

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 pre-enforcement

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.

Alternatively, prospective “private” litigants acting

under color of state law could be deemed the relevant

state actors subject to suit collectively. 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. 7 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 possibly ethical issues given conflicting interests among the various

“deputies,” those very issues would be created by the

sheer audacity of the Texas scheme and cannot be

used to insulate it from review.

Finally, to the extent the Court is troubled by its

sovereign immunity precedent, there is a simple solution: overrule it. Much of that precedent lacks a coherent textual basis and has been largely made up by

the Court – both in covering suits by citizens against

their own State in the first place and then by the various contortions to mitigate that mistake.

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. 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

7 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.

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. Looking at the Privileges or

Immunities Clause, for example, a State may not

“make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States.” U.S. CONST., amend. XIV. Properly understood, it is that Clause, rather than the Due Process

Clause, that is the proper foundation for incorporation of the Bill of Rights and for any other substantive constitutional limits on state conduct. See

McDonald v. Chicago, 561 U.S. 742, 808 (2010)

(Thomas, J, concurring in part and concurring in

judgment); Timbs v. Indiana, 139 S. Ct. 682, 691-92

(2019) (Thomas, J., concurring in the judgment). Recognizing the Privileges or Immunities Clause as the

relevant constitutional limit would seem to negate

any state sovereign immunity for “making” unconsti-

tutional laws, not merely for enforcing them via particular state actors. And if a State could be sued directly to challenge unconstitutional laws, the potentially complicated search for a state actor to enjoin

would be unnecessary. 8

CONCLUSION

This case is important not because of its specific

subject matter of abortion, but instead for Texas’s

cavalier and contemptuous mechanism for avoiding

federal review of a scheme intentionally designed to

chill the exercise 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.

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

8 Given the expedited briefing schedule, this Court may not

be prepared to do the serious work of overruling longstanding,

though seriously problematic, precedent. But that is no reason

to allow such precedent to distort the results in a case that does

not even pass the most cursory smell test. Recognizing that the

procedural hurdles to review thrown up by Texas are the product of a wrong turn at least cautions against adding more cars to

a train going in the wrong direction (or, to use another metaphor, adding one more barnacle on top of the past barnacles

adding drag to the constitution).

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,

are persistent in their refusal to accept the holding in

Heller and their continuing creativity in seeking to

circumvent any protections for, and to chill the exercise of, Second Amendment rights. 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 reverse the ruling of the Fifth Circuit, grant the interim relief sought by petitioners, and allow the suit to

proceed on the merits.

Respectfully submitted,