Petition for Writ of Certiorari — Mark Lee Dickson, Petitioner v. Whole Woman's Health, et al.

No. _____

In the Supreme Court of the United States

_____________

MARK LEE DICKSON, CROSS-PETITIONER

v.

WHOLE WOMAN’S HEALTH, ET AL.

_____________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

CONDITIONAL CROSS-PETITION

_____________

GENE P. HAMILTON

Vice President &

General Counsel

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

Counsel for Cross-Petitioner

QUESTIONS PRESENTED

1. Should the Court overrule Roe v. Wade, 410 U.S.

113 (1973), and Planned Parenthood of Southeastern Pa.

v. Casey, 505 U.S. 833 (1992)?

2. Should the Court overrule Whole Woman’s

Health v. Hellerstedt, 136 S. Ct. 2292 (2016), which refused to enforce an explicit severability requirement in a

state abortion statute?

(i)

PARTIES TO THE PROCEEDING

Cross-petitioner Mark Lee Dickson was the defendant-appellant in the court of appeals.

Respondents Whole Woman’s Health; Alamo City

Surgery Center, P.L.L.C. d/b/a Alamo Women’s Reproductive Services; Brookside Women’s Medical Center,

P.A. d/b/a Brookside Women’s Health Center and Austin

Women’s Health Center; Houston Women’s Clinic; Houston Women’s Reproductive Services; Planned Parenthood Center for Choice; Planned Parenthood of Greater

Texas Surgical Health Services; Planned Parenthood

South Texas Surgical Center; Southwestern Women’s

Surgery Center; Whole Woman’s Health Alliance; Allison Gilbert, M.D.; Bhavik Kumar, M.D.; The Afiya Center; Frontera Fund; Fund Texas Choice; Jane’s Due Process; Lilith Fund for Reproductive Equity; North Texas

Equal Access Fund; Reverend Erika Forbes; Reverend

Daniel Kanter; and Marva Sadler were plaintiffsappellees in the court of appeals.

A corporate disclosure statement is not required because Mr. Dickson is not a corporation. See Sup. Ct. R.

29.6.

(ii)

STATEMENT OF RELATED CASES

Counsel is aware of no directly related proceedings

arising from the same trial-court case as this case other

than those proceedings appealed here.

(iii)

TABLE OF CONTENTS

Questions presented ............................................................. i

Parties to the proceeding .................................................... ii

Statement of related cases ................................................. iii

Table of contents.................................................................. iv

Table of authorities ...............................................................v

Opinions below .......................................................................4

Jurisdiction.............................................................................4

Constitutional and statutory provisions involved .............5

Statement ...............................................................................6

Reasons for granting the conditional cross-petition .......13

I. If the Court grants the petition, it should

also grant certiorari to decide whether Roe

and Casey should be overruled .............................13

II. If the Court grants the petition, it should

also grant certiorari to decide whether

Hellerstedt should be overruled ............................16

Conclusion ............................................................................25

(iv)

TABLE OF AUTHORITIES

Cases

Alabama State Federation of Labor, Local Union

No. 103 v. McAdory, 325 U.S. 450 (1945) .....................17

Alexander v. Sandoval, 532 U.S. 275 (2001) ....................15

Allen v. Cooper, 140 S. Ct. 994 (2020) ...............................13

Barr v. American Ass’n of Political Consultants,

Inc., 140 S. Ct. 2335 (2020) .........................................3, 22

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

(1985)...................................................................................3

Califano v. Yamasaki, 442 U.S. 682 (1979).......................22

City of Houston v. Bates, 406 S.W.3d 539 (Tex.

2013) ..................................................................................19

Connecticut v. Menillo, 423 U.S. 9 (1975) ..............2, 17, 19

Davis v. Federal Election Commission,

554 U.S. 724 (2008) ..........................................................22

Dobbs v. Jackson Women’s Health Organization,

No. 19-1392.......................................................................13

Dorchy v. Kansas, 264 U.S. 286 (1924) .............................18

Ex parte Young, 209 U.S. 123 (1908)...........................12, 14

Graves v. New York, 306 U.S. 466 (1939) ............................1

Griggs v. Provident Consumer Discount Co., 459

U.S. 56 (1982) .....................................................................8

Grupo Mexicano de Desarrollo S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) ...........................15

Hans v. Louisiana, 134 U.S. 1 (1890) ...............................13

Harris v. McRae, 448 U.S. 297 (1980) ..............................19

Hill v. Colorado, 530 U.S. 703 (2000) ................................15

In re Gee, 941 F.3d 153 (5th Cir. 2019) .............................22

(v)

June Medical Services LLC v. Russo, 140 S. Ct.

2103 (2020)..............................................................4, 15, 24

Lewis v. Casey, 518 U.S. 343 (1996) ..................................22

Mazurek v. Armstrong, 520 U.S. 968 (1997) ................2, 19

McCullen v. Coakley, 573 U.S. 464 (2014) ........................15

National Federation of Independent Business v.

Sebelius, 567 U.S. 519 (2012) .........................................18

Planned Parenthood of Greater Texas Surgical

Health Services v. Abbott, 748 F.3d 583 (5th Cir.

2014) ..................................................................................19

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992) ...................................................... i, 20

Puerto Rico Aqueduct & Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) .....................5

Raines v. Byrd, 521 U.S. 811 (1997) ..................................14

Roe v. Wade, 410 U.S. 113 (1973) .............................. passim

Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996).................................................................................13

United States v. Texas, No. 1:21-CV-796-RP, 2021

WL 4593319 (W.D. Tex. Oct. 6, 2021) ..................3, 23, 24

Virginia v. Hicks, 539 U.S. 113 (2003) ..............3, 18, 22–23

Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292 (2016)............................................................ i, 2, 4, 15

Whole Woman’s Health v. Jackson, 141 S. Ct. 2494

(2021)...........................................................................11, 13

Whole Woman’s Health v. Jackson, 13 F.4th 434

(5th Cir. 2021) .......................................................... passim

Williams v. Brooks, 996 F.2d 728 (5th Cir. 1993) ...............8

Zimmerman v. City of Austin, 620 S.W.3d 473

(Tex. App. — El Paso 2021) ............................................20

(vi)

Statutes

42 U.S.C. § 1983 .....................................................................6

Senate Bill 8, 87th Leg., § 3 ...............................................17

Tex. Gov’t Code § 311.032(a) ..............................................17

Tex. Gov’t Code § 311.036(c) ..............................................16

Tex. Health & Safety Code § 171.207(a) ...................6, 7, 12

Tex. Health & Safety Code § 171.212 .....................3, 18, 22

Tex. Health & Safety Code § 171.212(a) .......................3, 18

Constitutional Provisions

U.S. Const. amend. XI ....................................................5, 13

U.S. Const. art. III, § 2 .........................................................5

Other Authorities

John Hart Ely, The Wages of Crying Wolf: A

Comment on Roe v. Wade, 82 Yale L.J. 920 (1973) .......1

John F. Manning, The Eleventh Amendment and

The Reading of Precise Constitutional Texts,

113 Yale L.J. 1663 (2004) ................................................13

Kristine Phillips, A Doctor Laced His ExGirlfriend’s Tea With Abortion Pills and Got

Three Years in Prison, Wash. Post (May 19,

2018), https://wapo.st/30NYQRp ...................................19

(vii)

In the Supreme Court of the United States

_____________

No. _____

MARK LEE DICKSON, CROSS-PETITIONER

v.

WHOLE WOMAN’S HEALTH, ET AL.

_____________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

CONDITIONAL CROSS-PETITION

_____________

The petitioners’ attacks on Senate Bill 8 depend on a

controversial premise: that abortion is somehow a constitutional right. Mr. Dickson denies the premise of the petitioners’ argument. He acknowledges that there are

precedents of this Court that claim that women have a

constitutional right to abort their unborn children before

viability. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973).

But Mr. Dickson denies that there is anything in the

Constitution that can even remotely support this idea.

See Graves v. New York, 306 U.S. 466, 491–92 (1939)

(Frankfurter, J., concurring) (“[T]he ultimate touchstone

of constitutionality is the Constitution itself and not what

we have said about it.”); John Hart Ely, The Wages of

Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J.

920, 947 (1973) (“Roe v. Wade . . . is not constitutional law

(1)

2

and gives almost no sense of an obligation to try to be.”

(emphasis in original)). If this Court grants certiorari to

consider the petitioners’ attacks on Senate Bill 8, it

should grant certiorari on the antecedent question of

whether abortion is a constitutional right to begin with.

The most straightforward way to resolve this case is for

this Court to abandon its indefensible claim that abortion

is a constitutional right, which obviates any constitutional grievances that the petitioners (and the United States)

might assert against Senate Bill 8 and its enforcement

mechanisms.

The Court should also grant certiorari to reconsider

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016),

which refused to enforce an explicit severability requirement in a state abortion statute. Senate Bill 8 includes severability requirements that are even more emphatic (and less capable of evasion) than the provisions

that a majority of this Court refused to follow in Hellerstedt. Pet. App. 120a–122a, 124a–125a, 132a. These severability provisions foreclose a remedy that blocks the

law’s enforcement in its entirety — as there are many

private civil-enforcement lawsuits authorized by Senate

Bill 8 that are constitutional even under the precedents

of this Court.1 Yet the petitioners (and the United States)

are demanding a remedy that would enjoin the respond1.

Senate Bill 8, for example, authorizes private civil-enforcement

lawsuits against post-heartbeat abortions performed by nonphysicians — and such lawsuits are per se constitutional under

the Court’s precedents. See Roe v. Wade, 410 U.S. 113, 165

(1973); Connecticut v. Menillo, 423 U.S. 9, 9–10 (1975); Mazurek

v. Armstrong, 520 U.S. 968, 973 (1997).

3

ents (and Texas) from enforcing any provision of Senate

Bill 8 in any circumstance, even in situations in which

the enforcement of Senate Bill 8 is indisputably constitutional — and despite the statute’s severability provisions

that compel reviewing courts to sever and preserve every constitutional provision (and every constitutional application) of the law. Pet. App. 120a–122a, 124a–125a,

132a; see also Tex. Health & Safety Code § 171.212(a)

(Pet. App. 132a) (“Every provision, section, subsection,

sentence, clause, phrase, or word in this chapter, and

every application of the provisions in this chapter, are

severable from each other.”); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 & n.14 (1985) (enforcing an

application-severability requirement in a state statute

that contained an overbroad definition of prurience,

holding that “facial invalidation of the statute was . . .

improvident”).

The district court in United States v. Texas, No. 1:21CV-796-RP, 2021 WL 4593319, *47 (W.D. Tex. Oct. 6,

2021), held that the severability requirements in Senate

Bill 8 should be ignored because Hellerstedt refused to

enforce the severability requirements in Texas’s admitting-privileges law — leaving us with a jurisprudence in

which state-law severability provisions are enforced in

all situations except abortion cases. See Barr v. American Ass’n of Political Consultants, Inc., 140 S. Ct. 2335,

2349 (2020) (plurality opinion of Kavanaugh, J.) (“At least

absent extraordinary circumstances, the Court should

adhere to the text of the severability or nonseverability

clause.”); Virginia v. Hicks, 539 U.S. 113, 121 (2003)

(“Severab[ility] is of course a matter of state law.”). It is

4

intolerable to have a doctrine that allows explicit statutory severability requirements to be disregarded at whim,

but only in cases involving abortion. See Hellerstedt, 136

S. Ct. at 2321 (Thomas, J., dissenting); id. at 2350–53

(Alito, J., dissenting). Hellerstedt was wrong from the

day it was decided,2 and remains (to our knowledge) the

only time in the history of the United States in which this

Court has refused to enforce an explicit severability requirement in a state law. It should be overruled as soon

as possible, and this case presents an ideal vehicle for

doing so.

OPINIONS BELOW

The opinion of the district court is reported at 2021

WL 3821062, and reprinted in the appendix to the petition at Pet. App. 1a–68a. There is no opinion of the court

of appeals to review because the petitioners are seeking

certiorari before judgment. The opinion of the Fifth Circuit motions panel, which explains its refusal to issue an

injunction of Senate Bill 8 pending appeal, is reported at

Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir.

2021), and is reprinted in the appendix to the petition at

83a–105a.

JURISDICTION

The petitioners are seeking review under Supreme

Court Rule 11, and they filed their certiorari-beforejudgment petition on September 23, 2021. This condi2.

June Medical Services LLC v. Russo, 140 S. Ct. 2103, 2133

(2020) (Roberts, C.J., concurring in the judgment) (“I . . . continue to believe that [Hellerstedt] was wrongly decided.”).

5

tional cross-petition is timely under Supreme Court Rule

12.5.

Mr. Dickson denies that the federal district court had

subject-matter jurisdiction to consider the merits of any

of the petitioners’ claims, because each of their claims is

barred by Article III’s case-or-controversy requirement.

In addition, each of the petitioners’ claims against respondents Jackson, Clarkston, Carlton, Thomas, Young,

Benz, and Paxton is barred by sovereign immunity.

The Fifth Circuit’s appellate jurisdiction is secure because the respondents appealed an order denying a sovereign-immunity defense, which is appealable under the

collateral-order doctrine. See Puerto Rico Aqueduct &

Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139,

147 (1993). This Court has jurisdiction under 28 U.S.C.

§ 1254 because the petitioners are asking this Court to

review a case in the court of appeals.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. Const. art. III, § 2 provides, in relevant part:

The judicial power shall extend to all cases, in

law and equity, arising under this Constitution,

the laws of the United States, and treaties

made, or which shall be made, under their authority . . . .

U.S. Const. amend. XI provides:

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one

of the United States by Citizens of another

6

State, or by Citizens or Subjects of any Foreign

State.

The text of the Fourteenth Amendment is reprinted

in the appendix to the petition at Pet. App. 106a. The text

of 42 U.S.C. § 1983 is reprinted in the appendix to the

petition at Pet. App. 107a. The Texas Heartbeat Act, also

known as Senate Bill 8, is reprinted in the appendix to

the petition at Pet. App. 108a–132a.

STATEMENT

On May 19, 2021, Governor Abbott signed the Texas

Heartbeat Act, also known as Senate Bill 8, which prohibits abortion after a fetal heartbeat can be detected.

Pet. App. 108a–132a. The Heartbeat Act does not impose

criminal sanctions or administrative penalties on those

who violate the statute, and it specifically prohibits state

officials from enforcing the law. See Tex. Health & Safety

Code § 171.207(a) (Pet. App. 113a). Instead, the Heartbeat Act authorizes private civil lawsuits to be brought

against those who violate the statute, and it provides that

these private citizen-enforcement suits shall be the sole

means of enforcing the statutory prohibition on postheartbeat abortions:

Notwithstanding Section 171.005 or any other

law, the requirements of this subchapter shall

be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be

taken or threatened by this state, a political

7

subdivision, a district or county attorney, or an

executive or administrative officer or employee

of this state or a political subdivision against

any person, except as provided in Section

171.208.

Tex. Health & Safety Code § 171.207(a) (Pet. App. 113a).

The Heartbeat Act took effect on September 1, 2021. Pet.

App. 132a.

On July 13, 2021, the petitioners filed this lawsuit in

an attempt to enjoin the enforcement the Heartbeat Act.

The petitioners sued Judge Austin Reeve Jackson, a

state district judge in Smith County, Texas, as a putative

defendant class representative of every non-federal

judge in the State of Texas. They also sued Penny Clarkston, who serves as clerk for the district court of Smith

County, as a putative defendant class representative of

every Texas court clerk. In addition to these judicial defendants, the petitioners sued Attorney General Paxton

and several state agency officials, as well as Mark Lee

Dickson, a pastor and anti-abortionist activist. Their

complaint demands relief that would prohibit Judge

Jackson — and every non-federal judge in the state of

Texas — from considering or deciding any lawsuits that

might be filed under the Heartbeat Act.3 It also demands

an injunction that would prohibit Ms. Clarkston (and

every Texas court clerk) from accepting or filing any papers submitted in these lawsuits.4 And it demands an in3.

4.

See Complaint, No. 1:21-cv-00616-RP (W.D. Tex.), ECF No. 1,

at 46–47.

See id.

8

junction that would restrain Mr. Dickson from filing any

private civil-enforcement lawsuits under the Heartbeat

Act.5 Later that day, the petitioners filed a motion for

summary judgment, and they moved for class certification on July 16, 2021.

On August 4–5, 2021, each of the defendants moved

to dismiss for lack of subject-matter jurisdiction. Each of

the government defendants raised sovereign-immunity

defenses and argued that the petitioners lacked Article

III standing to sue them. But Mr. Dickson asserted only

Article III standing objections to the claims brought

against him, as Mr. Dickson is a private citizen and cannot assert a sovereign-immunity defense.

On August 25, 2021, the district court issued an order

denying each of the defendants’ motions to dismiss for

lack of subject-matter jurisdiction. Pet. App. 1a–68a.

Each of the defendants immediately appealed the district court’s jurisdictional ruling. The next morning, the

defendants informed the district court that their notice

of appeal had automatically divested it of jurisdiction,

and they asked the district court to cancel the preliminary-injunction hearing that the court had scheduled for

August 30, 2021, and stay all further proceedings in the

case. See Griggs v. Provident Consumer Discount Co.,

459 U.S. 56, 58 (1982) (“The filing of a notice of appeal

. . . divests the district court of its control over those aspects of the case involved in the appeal.”); Williams v.

Brooks, 996 F.2d 728, 730 (5th Cir. 1993) (“[T]he filing of

a non-frivolous notice of interlocutory appeal following a

5.

See id. at 46.

9

district court’s denial of a defendant’s immunity defense

divests the district court of jurisdiction to proceed

against that defendant.”). The defendants also informed

the district court that they would seek emergency relief

from the Fifth Circuit if it did not cancel the preliminary-injunction hearing and vacate all deadlines by close

of business on August 26, 2021. When the district court

did not take these steps by the end of the day on August

26, 2021, the defendants filed an emergency motion with

the Fifth Circuit, asking it to stay the district-court proceedings pending appeal, and asking for a temporary

administrative stay pending consideration of that motion.

On August 27, 2021 — after the defendants had filed

their emergency motion with the court of appeals — the

district court issued an order acknowledging that the notice of appeal had divested it of jurisdiction over the

claims against the government defendants, and ordered

the proceedings stayed with respect to those defendants

only.6 But the district court insisted that it retained jurisdiction over the claims against Mr. Dickson, even

though Mr. Dickson had joined the appeal, because it

held that Mr. Dickson has “no claim to sovereign immunity,” and that the “the denial of his motion to dismiss is

not appealable.”7 So the district court refused to vacate

the preliminary-injunction hearing or stay proceedings

with respect to the claims against Mr. Dickson. Later

6.

7.

See Order, No. 1:21-cv-00616-RP (W.D. Tex.), ECF No. 88, at 1–

2.

See id. at 2.

10

that day, the Fifth Circuit issued an administrative stay

of all district-court proceedings, including the preliminary-injunction hearing that had been scheduled to proceed against Mr. Dickson, pending its disposition of the

defendants’ motion for emergency relief.

In the meantime, the petitioners responded to the notice of appeal by launching a flurry of motions in an effort to quickly return to this case to the district court.

First, the petitioners asked the district court to reclaim

jurisdiction over the case by certifying the defendants’

appeal as “frivolous.”8 The district court denied this request out of hand.9 Then the petitioners asked the Fifth

Circuit to adopt a hyper-expedited briefing schedule that

would require the defendants to file their opening appellants’ brief by Saturday, August 28 at noon central time,

with the plaintiffs’ answering brief due on Sunday, August 29, at 5:00 p.m. central time, and a ruling from this

Court that would resolve the appeal “on the papers” by

September 1, 2021. The court of appeals summarily denied this request. See Whole Woman’s Health v. Jackson,

13 F.4th 434, 441 & n.7 (5th Cir. 2021). Then the petitioners asked the Fifth Circuit for an injunction that would

prevent the defendants from enforcing Senate Bill 8 during the appeal. They also asked the Fifth Circuit to vacate the administrative stay that it had issued on August

27, 2021, as well as the stay of proceedings that the dis8.

9.

See Pls.’ Opp. to Motion to Stay, No. 1:21-cv-00616-RP (W.D.

Tex.), ECF No. 86.

See Order, No. 1:21-cv-00616-RP (W.D. Tex.), ECF No. 88, at 1–

2.

11

trict court had entered with respect to the government

defendants. And in a last-ditch effort, the petitioners

asked the Fifth Circuit to vacate the district court’s order denying the defendants’ Rule 12(b)(1) motions and

dismiss the appeal as moot. The court of appeals denied

all these requests. See id. at 441 & n.7.

The petitioners then sought emergency relief from

this Court, asking it to enjoin the respondents from enforcing the Heartbeat Act and to vacate the stays of the

district-court proceedings. This Court denied both requests on September 1, 2021, holding that the petitioners

had failed to make a “strong showing” of likely success

on the jurisdictional issues, while cautioning that it was

not definitively resolving “any jurisdictional or substantive claim in the applicants’ lawsuit.” Whole Woman’s

Health v. Jackson, 141 S. Ct. 2494, 2495 (2021).

Finally, on September 10, 2021, the Fifth Circuit issued an opinion explaining why it had denied the petitioners’ emergency request for an injunction pending

appeal. See Whole Woman’s Health v. Jackson, 13 F.4th

434 (5th Cir. 2021). The court of appeals held that the petitioners had failed to establish a “strong likelihood of

success on the merits,” which is needed to obtain an injunction pending appeal. See id. at 441 (citing Florida

Businessmen for Free Enterprise v. City of Hollywood,

648 F.2d 956, 957 (5th Cir. 1981)). More specifically, the

court of appeals held that the petitioners had no conceivable claims against Attorney General Paxton or any of

the state-agency defendants (Carlton, Thomas, Young,

and Benz) because each of these officials is statutorily

barred from enforcing the Heartbeat Act. See id. at 443

12

(“[T]he Texas Attorney General has no official connection whatsoever with the statute.”); id. at 443 (“The

agency officials sued here have no comparable ‘enforcement’ role under S.B. 8.”); see also Tex. Health & Safety

Code § 171.207(a) (Pet. App. 113a). The court of appeals

also held that the claims against Judge Jackson and Ms.

Clarkston were “absurd” and “specious” because Ex

parte Young, 209 U.S. 123 (1908), “explicitly excludes

judges from the scope of relief it authorizes,” and because “it is well established that judges acting in their

adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state

law.” Whole Woman’s Health, 13 F.4th at 443. The court

of appeals also held that Mr. Dickson could pursue his

Article III standing objections as part of the interlocutory appeal, and it granted Mr. Dickson’s motion to stay

the district-court proceedings pending appeal. See id. at

445–47. Finally, the Fifth Circuit expedited the appeal to

the next available oral-argument panel. See id. at 448.

The respondents have already submitted their opening

appellate briefs, and oral argument is set for the week of

December 6, 2021. The petitioners are now asking this

Court to grant certiorari before judgment in the expedited Fifth Circuit proceedings.

13

REASONS FOR GRANTING THE

CONDITIONAL CROSS-PETITION

I.

IF THE COURT GRANTS THE PETITION, IT

SHOULD

ALSO

GRANT

CERTIORARI

TO

DECIDE WHETHER ROE AND CASEY SHOULD

BE OVERRULED

The petition’s attacks on Senate Bill 8 assume that

abortion is a constitutional right — even though the

Court is considering this term whether to modify or

overrule Roe v. Wade, 410 U.S. 113 (1973). See Dobbs v.

Jackson Women’s Health Organization, No. 19-1392.

And the petition argues that this Court must find a way

to assert jurisdiction over the claims brought against the

respondents, despite the Article III and Eleventh

Amendment obstacles,10 because otherwise Texas will be

able to insulate an “unconstitutional” law from preenforcement judicial review. See Pet. at i; see also Whole

Woman’s Health v. Jackson, 141 S. Ct. 2494, 2497 (2021)

(Breyer, J., dissenting) (suggesting that “there may be

other not-very-new procedural bottles that can also ade10. We will use the phrase “Eleventh Amendment” as shorthand to

refer to the constitutional sovereign immunity recognized in

Hans v. Louisiana, 134 U.S. 1, 15-16 (1890), and Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996). The text of the Eleventh Amendment applies only to lawsuits “commenced or prosecuted against a [State] by Citizens of another State, or by Citizens or Subjects of any Foreign State,” which is not the situation here. See U.S. Const. amend XI; Allen v. Cooper, 140 S. Ct.

994, 1000 (2020) (“The text of the Eleventh Amendment . . . applies only if the plaintiff is not a citizen of the defendant State.”);

John F. Manning, The Eleventh Amendment and The Reading

of Precise Constitutional Texts, 113 Yale L.J. 1663 (2004).

14

quately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to

protect an individual from the invasion of a constitutional

right”). But if there is no constitutional right to abort an

unborn child — or if there is no right to do so after a

heartbeat is detected — then there is no cause for angst

over the petitioners’ inability to launch a preenforcement challenge to Senate Bill 8. And there is no

reason for this Court to bend or revise jurisdictional

rules to accommodate the petitioners’ lawsuit.

If, on the other hand, the Court decides to double

down on Roe by pronouncing Senate Bill 8 unconstitutional, then it will be difficult for the Court to avoid the

appearance of lawlessness. The Article III and sovereign-immunity obstacles to the petitioners’ lawsuit are

insurmountable11— and the precedents and doctrines behind these jurisdictional barriers are far more venerable

than Roe v. Wade. See, e.g., Raines v. Byrd, 521 U.S. 811,

818 (1997) (“No principle is more fundamental to the judiciary’s proper role in our system of government than

the constitutional limitation of federal-court jurisdiction

to actual cases or controversies.” (citation and internal

quotation marks omitted)); Ex parte Young, 209 U.S.

123, 163 (1908) (“[T]he right to enjoin an individual, even

though a state official, from commencing suits . . . does

not include the power to restrain a court from acting in

any case brought before it, either of a civil or criminal

11. See Whole Woman’s Health v. Jackson, 13 F.4th 434, 443–44

(5th Cir. 2021) (describing the petitioners’ efforts to sue statecourt judges and court clerks as “absurd” and “specious”).

15

nature”). And the United States’ efforts to concoct an

“equitable” cause of action that would allow it to sue

Texas over Senate Bill 8 are squarely foreclosed by

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond

Fund, Inc., 527 U.S. 308, 318–19 (1999), as well as the

recent decisions from this Court that disfavor “implied”

causes of action. See Alexander v. Sandoval, 532 U.S.

275, 287 (2001) (prohibiting federal courts from “[r]aising

up causes of action where a statute has not created

them”). If the Court finds a way to circumvent or disregard these jurisdictional and procedural obstacles, it will

add fuel to the fire of those who have long accused this

Court of ignoring established rules and doctrines to advance the cause of abortion rights. See Hill v. Colorado,

530 U.S. 703, 764–65 (2000) (Scalia, J., dissenting) (cataloging the “many aggressively proabortion novelties announced by the Court in recent years”); McCullen v.

Coakley, 573 U.S. 464, 497 (2014) (Scalia, J., dissenting)

(“There is an entirely separate, abridged edition of the

First Amendment applicable to speech against abortion.”); Hellerstedt, 136 S. Ct. at 2353 (Alito, J., dissenting); June Medical Services LLC v. Russo, 140 S. Ct.

2103, 2153–71 (2020) (Alito, J., dissenting).

The most straightforward way to resolve this case (if

the Court decides to grant certiorari) is to hold that

abortion is not a constitutional right and that Roe and

Casey should be overruled. The Court is already considering this question in Dobbs, and the Court should (at

the very least) grant the conditional cross-petition and

put this option on the table.

16

II. IF THE COURT GRANTS THE PETITION, IT

SHOULD

ALSO

GRANT

CERTIORARI

TO

DECIDE WHETHER HELLERSTEDT SHOULD

BE OVERRULED

The Court should also grant certiorari to reconsider

and overrule Hellerstedt, which litigants and lower

courts are using as a license to disregard statutory severability requirements in any case involving abortion.

Senate Bill 8’s severability provisions instruct reviewing

courts to preserve all constitutional provisions and all

constitutional applications of the statute. Section 10 of

the Act says:

Every provision in this Act and every application of the provision in this Act are severable

from each other. If any provision or application

of any provision in this Act to any person,

group of persons, or circumstance is held by a

court to be invalid, the invalidity does not affect

the other provisions or applications of this Act.

Senate Bill 8, 87th Leg., § 10 (Pet. App. 132a). Section 5

also amends the Code Construction Act to establish a

new rule of construction for every Texas statute that

regulates abortion, requiring courts not only to sever the

statute’s provisions and applications but also to construe

the statute, as a matter of state law, as applying only in

situations that will not result in a violation of constitutional rights. See Senate Bill 8, 87th Leg., § 5 (codified at

Tex. Gov’t Code § 311.036(c)) (Pet. App. 124a–125a). And

if that were not enough, section 3 of the Act adds an emphatic (and largely redundant) severability clause and

saving-construction requirement that applies to each

17

provision of Chapter 171 of the Texas Health and Safety

Code. See Senate Bill 8, 87th Leg., § 3 (codified at Tex.

Health & Safety Code § 171.212) (Pet. App. 120a–122a);

see also Tex. Gov’t Code § 311.032(a) (“If any statute

contains a provision for severability, that provision prevails in interpreting that statute.”).

Yet the petitioners and the United States are asking

the courts to disregard these explicit severability requirements. Both the petitioners and the United States

are demanding relief that would block the enforcement

of any provision in Senate Bill 8, including provisions of

Senate Bill 8 that they do not even allege to be unconstitutional.12 They are also seeking to enjoin the state judiciary from entertaining any civil-enforcement lawsuits

filed under Senate Bill 8 — even in situations in which the

civil-enforcement lawsuit is undeniably constitutional

and consistent with federal law. But the federal judiciary

has no authority to enjoin Texas from enforcing the indisputably constitutional provisions and applications of

SB 8. See Alabama State Federation of Labor, Local Union No. 103 v. McAdory, 325 U.S. 450, 465 (1945) (“When

a statute is assailed as unconstitutional we are bound to

assume the existence of any state of facts which would

sustain the statute in whole or in part.”); Connecticut v.

Menillo, 423 U.S. 9, 9–10 (1975) (allowing Connecticut to

12. See Complaint, Whole Woman’s Health v. Jackson, No. 1:21-cv00616-RP (W.D. Tex.), ECF No. 1 at 46 (demanding relief that

would prevent the defendants from “enforcing S.B. 8 in any

way”); Proposed Order, United States v. Texas, No. 1:21-cv00796-RP (W.D. Tex.), ECF No. 8-1 at 1–2 (requesting an injunction that would prevent Texas “from enforcing S.B.8”).

18

enforce its pre-Roe criminal abortion statutes against

non-physician abortions, and rejecting the Connecticut

Supreme Court’s argument that Roe had rendered those

statutes “null and void, and thus incapable of constitutional application even to someone not medically qualified to perform an abortion”); National Federation of

Independent Business v. Sebelius, 567 U.S. 519, 626

(2012) (Ginsburg, J., concurring in part and dissenting in

part) (“When a constitutional infirmity mars a statute,

the Court ordinarily removes the infirmity. It undertakes

a salvage operation; it does not demolish the legislation.”); id. at 646 (“For when a court confronts an unconstitutional statute, its endeavor must be to conserve, not

destroy, the legislature’s dominant objective.”). That is

especially true when SB 8 contains emphatic severability

requirements that compel reviewing courts to sever and

preserve every constitutional provision (and every constitutional application) of the law. See Senate Bill 8, 87th

Leg., §§ 3, 5, 10; see also Tex. Health & Safety Code

§ 171.212(a) (“Every provision, section, subsection, sentence, clause, phrase, or word in this chapter, and every

application of the provisions in this chapter, are severable from each other.”); Virginia v. Hicks, 539 U.S. 113,

121 (2003) (“Severab[ility] is of course a matter of state

law.”); Leavitt v. Jane L., 518 U.S. 137, 138 (1996) (“Severability is of course a matter of state law.”); Dorchy v.

Kansas, 264 U.S. 286, 290 (1924) (“[T]he state court[’s]

decision as to the severability of a provision is conclusive

upon this Court.”).13

13. See also Planned Parenthood of Greater Texas Surgical Health

(continued…)

19

Many of the civil-enforcement lawsuits authorized by

Senate Bill 8 are undeniably constitutional under existing Supreme Court precedent. These include:

Lawsuits brought against those who perform

(or assist) non-physician abortions;14

Lawsuits brought against those who perform

(or assist) post-viability abortions that are not

necessary to save the life or health of the

mother;15

Lawsuits brought against those who use taxpayer money to pay for post-heartbeat abortions;16

Lawsuits brought against those who covertly

slip abortion drugs into a pregnant woman’s

food or drink.17

Services v. Abbott, 748 F.3d 583, 589 (5th Cir. 2014) (“Federal

courts are bound to apply state law severability provisions.”);

City of Houston v. Bates, 406 S.W.3d 539, 549 (Tex. 2013)

(“When an ordinance contains an express severability clause,

the severability clause prevails when interpreting the ordinance.”).

14. See Roe v. Wade, 410 U.S. 113, 165 (1973); Connecticut v. Menillo, 423 U.S. 9, 9–10 (1975); Mazurek v. Armstrong, 520 U.S. 968,

973 (1997).

15. See Roe, 410 U.S. at 164–65;

16. See Harris v. McRae, 448 U.S. 297 (1980).

17. See Kristine Phillips, A Doctor Laced His Ex-Girlfriend’s Tea

With Abortion Pills and Got Three Years in Prison, Wash. Post

(May 19, 2018), https://wapo.st/30NYQRp.

20

In addition, each of the intervenors in United States v.

Texas has stated that they intend to bring civilenforcement lawsuits only in response to violations of SB

8 that clearly fall outside the constitutional protections of

Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874

(1992). Erick Graham, for example, intends to sue only

employers and insurance companies that provide or arrange for coverage of abortions that violate Senate Bill 8,

as there is no constitutional right to pay for another person’s abortion.18 Mr. Graham also intends to sue the city

of Austin if it uses taxpayer money to subsidize the provision of post-heartbeat abortions performed in Austin,

as it was doing before the Heartbeat Act took effect.19

Jeff Tuley intends to sue only individuals or entities that

perform or assist abortions that are clearly unprotected

under existing Supreme Court doctrine, which include:

(a) non-physician abortions; (b) self-administered abortions; and (c) post-viability abortions that are not necessary to preserve the life or health on the mother.20 And

Mistie Sharp intends to sue only abortion funds who pay

for post-heartbeat abortions performed in Texas.21 All of

these lawsuits authorized by Senate Bill 8 are constitu18. See Declaration of Erick Graham, United States v. Texas, No.

1:21-cv-00796-RP (W.D. Tex.), ECF No. 28-1 at ¶ 9.

19. See id. at ¶ 9; see also Zimmerman v. City of Austin, 620

S.W.3d 473, 482 (Tex. App. — El Paso 2021, pet. filed).

20. See Declaration of Jeff Tuley, United States v. Texas, No. 1:21cv-00796-RP (W.D. Tex.), ECF No. 28-2 at ¶ 9.

21. See Declaration of Mistie Sharp, United States v. Texas, No.

1:21-cv-00796-RP (W.D. Tex.), ECF No. 28-3 at ¶ 9.

21

tional under Roe and Casey, and this Court has no authority to enjoin anyone from filing these types of cases.

Nor can it prevent the Texas judiciary from considering

civil-enforcement lawsuits of this sort.

Yet the petitioners and the United States somehow

think that they can obtain an across-the-board injunction

against the enforcement of Senate Bill 8 in any circumstance — even though Senate Bill 8 has many constitutional applications, and even though the statute contains

emphatic severability requirements that compel reviewing courts to sever and preserve every constitutional application of the law. Pet. App. 120a–122a, 124a–125a,

132a.

Worse, the petitioners are challenging only the constitutionality of sections 3 and 4 of Senate Bill 8, and

they have not argued that the remaining provisions of

Senate Bill 8 violate the Constitution in any way.22 The

United States is similarly attacking only the provisions

in section 3 of Senate Bill 8, which prohibit abortions after fetal heartbeat and establish a private civilenforcement mechanism.23 The United States does not

even attempt to argue that any provision in sections 1

through 2 or sections 4 through 12 violates the Constitution or is preempted by federal law. Yet the petitioners

and the United States are asking this Court to enjoin the

22. See Complaint, Whole Woman’s Health v. Jackson, No. 1:21-cv00616-RP (W.D. Tex.), ECF No. 1 at ¶¶ 131–163 (listing seven

“claims for relief,” which purport to challenge only the constitutionality of sections 3 and 4).

23. See Complaint, United States v. Texas, No. 1:21-cv-00796-RP

(W.D. Tex.), ECF No. 1.

22

enforcement of any provision in Senate Bill 8, including

provisions that they are not even challenging as unconstitutional or preempted. That is patently unlawful when

Senate Bill 8’s severability clauses require this Court to

sever and preserve every constitutional provision (and

every constitutional application) of the statute. Pet. App.

120a–122a, 124a–125a, 132a; see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[I]njunctive relief should

be no more burdensome to the defendant than necessary

to provide complete relief to the plaintiffs”). And it doubly unlawful because the petitioners and the United

States lack Article III standing to seek relief that extends beyond the provisions or applications of SB 8 that

are inflicting injury on them. See Lewis v. Casey, 518

U.S. 343, 358 n.6 (1996) (“[S]tanding is not dispensed in

gross.”); Davis v. Federal Election Commission, 554

U.S. 724, 733–34 (2008) (standing to challenge one statutory subsection does not confer standing to challenge a

neighboring statutory subsection); In re Gee, 941 F.3d

153, 160 (5th Cir. 2019) (“[P]laintiffs must establish

standing for each and every provision they challenge.”

(citing authorities)).

Yet Hellerstedt is allowing litigants and lower-court

judges to defy severability requirements in abortion

statutes — even though statutory severability provisions

are supposed to be enforced in all other contexts. See

Barr v. American Ass’n of Political Consultants, Inc.,

140 S. Ct. 2335, 2349 (2020) (plurality opinion of Kavanaugh, J.) (“At least absent extraordinary circumstances, the Court should adhere to the text of the severability or nonseverability clause.”); Virginia v. Hicks,

23

539 U.S. 113, 121 (2003) (“Severab[ility] is of course a

matter of state law.”). The district court in United States

v. Texas, No. 1:21-CV-796-RP, 2021 WL 4593319 (W.D.

Tex. Oct. 6, 2021), for example, claimed that it could defy

the severability requirements in Texas’s abortion statutes because Hellerstedt had done so:

The State argues that, should the Court find

any provision of S.B. 8 to be unconstitutional, it

should sever such provisions from the law and

leave the remaining provisions intact. In support of this request, the State cites the severability provision of the law, which confirm that

the Texas legislature “intended all provisions

. . . to be severable,” that it “would have enacted any and all provisions . . . regardless of

whether any provisions are subsequently determined to be unconstitutional,” and that

“each provision is severable.” (Resp., Dkt. 43,

at 55). However, as the Supreme Court wrote

in Hellerstedt, “our cases have never required

us to proceed application by conceivable application when confronted with a facially unconstitutional statutory provision.” 136 S. Ct. at

2319. Such an approach would be “quintessentially legislative work” outside the bounds of

the court’s ordinary review. Ayotte v. Planned

Parenthood of N. New England, 546 U.S. 320,

329 (2006). The State attempts to distinguish

the law and its severability provision from

those at issue in Hellerstedt, but such a distinction cannot stand, because the severability

24

provision of the very same law is at issue: Texas Health and Safety Code Chapter 171.

Id. at *47. In other words, Hellerstedt means that Texas

can never enact an enforceable severability requirement

in any part of Chapter 171 — the chapter of the Health

and Safety Code that deals with abortion regulations.

This is abject lawlessness. Litigants challenging

abortion statutes do not get special dispensations from

statutory severability requirements. And as long as Hellerstedt remains on the books, litigants and judges will

continue defying severability provisions whenever they

want to categorically enjoin the enforcement of an abortion regulation. The Court should overrule Hellerstedt

and hold that Senate Bill 8’s severability requirements

must be obeyed and respected.

In June Medical Services LLC v. Russo, 140 S. Ct.

2103 (2020), Chief Justice Roberts reiterated his belief

that Hellerstedt was “wrongly decided” but suggested

that his hands were tied because the Court had not

granted certiorari to reconsider or overrule that decision. See id. at 2133 (Roberts, C.J., concurring in the

judgment) (“The question today however is not whether

Whole Woman’s Health was right or wrong”). The Court

should grant the conditional cross-petition to ensure that

Hellerstedt’s treatment of the severability issue can be

reconsidered, and to prevent members of this Court

from claiming that issues involving the correctness of

Hellerstedt are not properly before the Court.

25

CONCLUSION

The conditional cross-petition should be granted if

(and only if) the Court grants the petition in No. 21-463.

Respectfully submitted.

GENE P. HAMILTON

Vice President &

General Counsel

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

October 21, 2021

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law