Respondents Brief — United States, Petitioner v. Texas, et al.

Supreme Court briefOct 27, 2021

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No. 21-588

In the Supreme Court of the United States

_____________

UNITED STATES, PETITIONER

TEXAS, ET AL.,

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

BRIEF FOR INTERVENOR-RESPONDENTS

_____________

HEATHER GEBELIN HACKER

Hacker Stephens LLP

108 Wild Basin Road South

Suite 250

Austin, Texas 78746

(512) 399-3022

heather@hackerstephens.com

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue, Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

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

D. BRYAN HUGHES

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702-7221

(903) 581-1776

bryan@hughesfirm.com

Counsel for IntervenorRespondents

QUESTION PRESENTED

May the United States bring suit in federal court and

obtain injunctive or declaratory relief against the State,

state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being

enforced?

(i)

PARTIES TO THE PROCEEDING

Petitioner United States of America was the plaintiffappellee in the court of appeals.

Respondent the State of Texas was the defendantappellants in the court of appeals.

Intervenor-Respondents Erick Graham, Jeff Tuley,

and Mistie Sharp were intervenor defendants-appellants

in the court of appeals.

A corporate disclosure statement is not required because Mr. Graham, Mr. Tuley, and Ms. Sharp are not

corporations. 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

Question presented ................................................................ i

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

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

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

Table of authorities .............................................................. vi

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

Jurisdiction ............................................................................ 5

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

Statement ............................................................................... 5

Summary of argument ......................................................... 7

Argument ............................................................................. 11

I. The State of Texas is not a proper defendant ..... 12

A. Texas cannot be sued for allowing its

courts to hear claims brought by private

litigants .............................................................. 12

B. The federal judiciary has no authority to

enjoin Texas from hearing cases that

might be filed in its courts ............................... 16

1. State-court judges ...................................... 20

2. State-court clerks ....................................... 21

3. Other state officials .................................... 22

4. Private parties............................................. 23

5. The State...................................................... 26

II. The United States has no cause of action to

sue Texas over SB 8 ................................................ 27

III. The United States may not sue to prevent

private-enforcement

lawsuits

over

conduct that is unprotected by the

Constitution ............................................................. 43

(iv)

IV. The Court should not create an abortionspecific exemption to federal-courts

jurisprudence .......................................................... 48

Conclusion ............................................................................ 51

(v)

TABLE OF AUTHORITIES

Cases

Alabama State Federation of Labor, Local Union

No. 103 v. McAdory, 325 U.S. 450 (1945) ..................... 44

Alexander v. Sandoval,

532 U.S. 275 (2001) .................................................... 39, 41

Arlene’s Flowers, Inc. v. Washington,

141 S. Ct. 2884 (2021)...................................................... 50

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ........................................ 33, 34, 35, 41

Barr v. American Ass’n of Political Consultants,

Inc., 140 S. Ct. 2335 (2020)....................................... 47, 48

California v. Texas,

141 S. Ct. 2104 (2021)...................................................... 12

Camreta v. Greene,

563 U.S. 692 (2011) .......................................................... 26

Connecticut v. Menillo,

423 U.S. 9 (1975)........................................................ 43, 44

Davis v. Ermold,

141 S. Ct. 3 (2020)............................................................ 50

Davis v. Passman,

442 U.S. 228 (1979) .......................................................... 27

Digital Recognition Network, Inc. v. Hutchinson,

803 F.3d 952 (8th Cir. 2015) ...................................... 40, 49

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983) .......................................................... 22

Dobbs v. Jackson Women’s Health Organization,

No. 19-1392 ...................................................................... 51

Doe v. Bolton,

410 U.S. 179 (1973) .......................................................... 40

(vi)

Dorchy v. Kansas,

264 U.S. 286 (1924) .......................................................... 45

Ex parte Young,

209 U.S. 123 (1908) .................................................. passim

Grupo Mexicano de Desarrollo S.A. v. Alliance

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

Hansberry v. Lee,

311 U.S. 32 (1940)............................................................ 23

Harris v. McRae,

448 U.S. 297 (1980) .......................................................... 43

Heine v. Board of Levee Commissioners,

86 U.S. 655 (1873)............................................................ 35

Hernandez v. Mesa,

140 S. Ct. 735 (2020)........................................................ 31

Hollingsworth v. Perry,

570 U.S. 693 (2013) .......................................................... 14

Hope Clinic v. Ryan,

249 F.3d 603 (7th Cir. 2001) .................................... 3, 8, 23

Hurst v. Florida,

577 U.S. 92 (2016)............................................................ 18

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988)............................................................ 48

In re Debs,

158 U.S. 564 (1895) .......................................................... 37

Lake Shore Asset Management Ltd. v. Commodity

Futures Trading Commission,

511 F.3d 762 (7th Cir. 2007) ............................................ 24

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ............................................. 1, 28

(vii)

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .......................................................... 14

Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2017) ............................. 50

Mazurek v. Armstrong,

520 U.S. 968 (1997) .......................................................... 43

Middlesex County Ethics Commission v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) .................... passim

Muskrat v. United States,

219 U.S. 346 (1911) .................................................. passim

National Federation of Independent Business v.

Sebelius, 567 U.S. 519 (2012) ......................................... 44

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 40, 48, 49

Nken v. Holder,

556 U.S. 418 (2009) .......................................................... 26

Osborn v. Bank of United States,

22 U.S. 738 (1824)............................................................ 23

Planned Parenthood of Greater Texas Surgical

Health Services v. Abbott,

748 F.3d 583 (5th Cir. 2014) ............................................ 48

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992) ........................................................ 6, 7

Pulliam v. Allen,

466 U.S. 522 (1984) .................................................... 17, 18

Roe v. Wade,

410 U.S. 113 (1973) ...................................................... 6, 43

Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923) .......................................................... 22

(viii)

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996)...................................................... 10, 31

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................ 4, 9, 16, 22

Supreme Court of Virginia v. Consumers Union of

United States, Inc., 446 U.S. 719 (1980) ...................... 18

United States v. City of Philadelphia,

644 F.2d 187 (3d Cir. 1980) ............................. 2, 28, 33, 38

United States v. Salerno,

481 U.S. 739 (1987) .......................................................... 47

United States v. Solomon,

563 F.2d 1121 (4th Cir. 1977) .......................................... 37

Virginia v. Hicks,

539 U.S. 113 (2003) .............................................. 45, 47, 48

Voting for America, Inc. v. Steen,

732 F.3d 382 (5th Cir. 2013) ............................................ 48

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016).................................................. 7, 45

Whole Woman’s Health v. Jackson,

13 F.4th 434 (5th Cir. 2021)............................................. 20

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021).............................................. 3, 7, 12

Will v. Michigan Dep’t of Police,

491 U.S. 58 (1989).............................................................. 2

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................................ 2

Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100 (1969) .................................................... 23, 24

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)...................................................... 39

(ix)

Statutes

28 U.S.C. § 1254 .................................................................... 5

28 U.S.C. § 1292(a)(1) ........................................................... 5

28 U.S.C. § 1332 .................................................................... 8

28 U.S.C. § 1738 .................................................................. 22

42 U.S.C. § 1983 .......................................................... passim

42 U.S.C. § 2000b(a) .......................................... 10, 29, 30, 32

42 U.S.C. § 2000c-6(a) ....................................... 10, 29, 30, 32

H.R. 3755, 117th Cong. (2021) ..................................... 11, 38

Tex. Gov’t Code § 311.036(c) .............................................. 47

Tex. Health & Safety Code § 171.207 ......................... 12, 24

Tex. Health & Safety Code § 171.208(a) .......................... 14

Tex. Health & Safety Code § 171.208(e)(5) ...................... 26

Tex. Health & Safety Code § 171.208(h) .......................... 14

Tex. Health & Safety Code § 171.212 ............................... 45

Tex. Health & Safety Code § 171.212(a) ...................... 6, 45

Tex. Health & Safety Code § 171.212(b-1) ....................... 46

Constitutional Provisions

U.S. Const. amend. XIV, § 5 ....................................... 1, 9, 28

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

U.S. Const. art. IV, § 1 ........................................................ 22

Rules

Canon 3(B)(10), Texas Code of Judicial Ethics ............... 20

Other Authorities

Samuel L. Bray, The Supreme Court and the New

Equity, 68 Vand. L. Rev. 997 (2019) .............................. 35

(x)

David P. Currie, Misunderstanding Standing,

1981 Sup. Ct. Rev. 41 ...................................................... 27

John Harrison, Ex Parte Young,

60 Stan. L. Rev. 989 (2008) ............................................. 33

Nico Lang, Masterpiece Cakeshop owner in court

again for denying LGBTQ customer, NBC

News (April 15, 2020),

https://nbcnews.to/3pm2xb3 .......................................... 49

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 .................................. 43

Richard A. Posner, The Regulation of the Market

in Adoptions, 67 B.U. L. Rev. 59 (1987) ....................... 26

Mike Robinson, Chicago Targets Gun Industry in

$433 Million Public Nuisance Lawsuit,

Associated Press (November 13, 1998) ........................ 49

Nicholas Quinn Rosenkranz, Federal Rules of

Statutory Interpretation, 115 Harv. L. Rev. 2085

(2002) ................................................................................ 47

Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L.

Rev. 873 (1987) ................................................................. 14

Adrian Vermeule, Saving Constructions, 85 Geo.

L.J. 1945 (1997) ............................................................... 47

Eugene Volokh, Challenging Unconstitutional

Civil Liability Schemes, as to Abortion, Speech,

Guns, Etc., Reason: Volokh Conspiracy

(September 3, 2021, 2:31 p.m.),

https://bit.ly/3iJiS5D ...................................................... 40

(xi)

In the Supreme Court of the United States

_____________

No. 21-588

UNITED STATES, PETITIONER

TEXAS, ET AL.,

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

BRIEF FOR INTERVENOR-RESPONDENTS

_____________

While the United States complains about the supposed constitutional infirmities in SB 8, its own lawsuit

violates the constitutional separation of powers. The

Fourteenth Amendment empowers Congress to “enforce” its requirements “by appropriate legislation,”1 and

that means it is up to Congress to decide whether and to

what extent lawsuits should be authorized against those

who violate the Fourteenth Amendment. See Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S.

118, 128 (2014) (“[A] court cannot apply its independent

policy judgment to recognize a cause of action that Congress has denied”). Congress has, for example, enacted a

U.S. Const. amend. XIV, § 5.

(1)

statute that authorizes individuals to sue state officials

(but not state governments)2 that violate their constitutional rights. See 42 U.S.C. § 1983. But Congress has

never authorized the United States to sue a state whenever it violates the constitutional rights of its citizens, or

whenever it violates constitutional rights in a manner

that cannot be redressed under 42 U.S.C. § 1983. The

notion that the executive may unilaterally fix the “gaps”

that it perceives in section 1983 by suing states that violate the Fourteenth Amendment is incompatible with the

Amendment’s decision to vest the enforcement authority

in Congress — and any flaws that may exist in a congressionally created remedial scheme must be fixed by Congress, not by unilateral executive action. See United

States v. City of Philadelphia, 644 F.2d 187, 200 (3d Cir.

1980) (refusing to recognize an implied right of action for

the federal government to sue over Fourteenth Amendment violations because “[s]ection 5 of the fourteenth

amendment confers on Congress, not on the Executive

or the Judiciary, the ‘power to enforce, by appropriate

legislation, the provisions of this article.’ ”). The President must execute the laws in accordance with the enforcement procedures established in the law; he does not

get to create new mechanisms for enforcing federal legal

obligations. See Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 587–88 (1952).

The United States’ lawsuit is also plagued by the

same problems that confront the abortion providers’ law2.

Will v. Michigan Dep’t of Police, 491 U.S. 58, 71 (1989) (a state

is not a “person” under 42 U.S.C. § 1983).

suit in Whole Woman’s Health v. Jackson, No. 21-463. A

federal court cannot “enjoin” SB 8 itself; it can enjoin

only the “individuals tasked with enforcing laws.” Whole

Woman’s Health, 141 S. Ct. 2494, 2495 (2021) (citing California v. Texas, 141 S. Ct. 2104, 2115–16 (2021)). But the

State of Texas does not “enforce” SB 8; it merely allows

its judiciary to adjudicate private civil lawsuits brought

under the statute. That is not a ground on which an Article III case or controversy can exist between the United

States and Texas. See Muskrat v. United States, 219 U.S.

346 (1911); Hope Clinic v. Ryan, 249 F.3d 603, 605 (7th

Cir. 2001) (en banc) (“Muskrat . . . held that Article III

does not permit the federal judiciary to determine the

constitutionality of a statute providing for private litigation, when the federal government (or its agents) are the

only adverse parties to the suit.”).

The federal judiciary is also powerless to enjoin or

prevent a state court from hearing a lawsuit. See 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 nature . . . . [A]n injunction

against a state court would be a violation of the whole

scheme of our Government.”). That remains true regardless of whether an individual is suing a state-court judge

under 42 U.S.C. § 1983, or whether the United States is

suing the state (or its judiciary) as an entity. Federal

courts must presume that state judges will respect fed-

erally protected rights when deciding cases,3 and injunctive or declaratory relief that bars the state judiciary

from even hearing a lawsuit is incompatible with that

presumption. More importantly, an injunction may be

used only to restrain unlawful behavior, and a judge

does nothing illegal by presiding over a lawsuit that has

been filed in his court — even if the lawsuit were seeking

to enforce a patently unconstitutional statute. A judge

will never violate the Constitution merely by adjudicating a dispute, so a court cannot restrain another court

from hearing a case that is brought under an allegedly

unconstitutional law.

OPINIONS BELOW

The opinion of the district court is reported at 2021

WL 4593319, and reprinted at Pet. App. 2a–114a.4 The

order of the court of appeals staying the preliminary injunction is reported at 2021 WL 4786458, and reprinted

at Pet. App. 1a.

Steffel v. Thompson, 415 U.S. 452, 460–61 (1974) (“State courts

have the solemn responsibility, equally with the federal courts

‘to guard, enforce, and protect every right granted or secured

by the constitution of the United States. . . .’ ” (citation omitted));

Middlesex County Ethics Commission v. Garden State Bar

Ass’n, 457 U.S. 423, 431 (1982) (“Minimal respect for the state

processes, of course, precludes any presumption that the state

courts will not safeguard federal constitutional rights.”).

Throughout this brief, we will use “Pet. App.” to refer to the

appendix to the United States’ application to vacate stay of preliminary injunction issued by the United States Court of Appeals for the Fifth Circuit, submitted to this Court on October

18, 2021.

JURISDICTION

The federal district court lacked subject-matter jurisdiction because there is no Article III case-orcontroversy between the parties. See Muskrat, 219 U.S.

346. The Fifth Circuit’s appellate jurisdiction is secure

because the defendants and intervenors appealed an order granting a preliminary injunction. See 28 U.S.C.

§ 1292(a)(1). This Court has jurisdiction under 28 U.S.C.

§ 1254 because it is reviewing 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 . . . .

The Texas Heartbeat Act, also known as SB 8, is reprinted in the appendix to the petition in Whole Woman’s

Health v. Jackson, No. 21-463, at Pet. App. 108a–132a.

STATEMENT

The statement provided in Texas’s brief for the respondents accurately describes the background of this

litigation. The intervenors add the following details relevant to their involvement.

The United States’ motion for preliminary injunction

asked the district court to restrain “private individuals

who attempt to initiate enforcement proceedings under

S.B. 8.” ROA.367. Because this threatened to enjoin private individuals from filing lawsuits under SB 8, Erick

Graham, Jeff Tuley, and Mistie Sharp (the intervenors)

moved to intervene to protect their state-law right to sue

individuals and entities that perform or assist postheartbeat abortions. The district court granted their motion on September 28, 2021. ROA.757.

Each of the intervenors declared that they intend to

bring 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). For

example, Jeff Tuley intends to sue only individuals or entities that perform or assist abortions that are clearly

unprotected under existing Supreme Court doctrine,

such as: (a) non-physician abortions; (b) selfadministered abortions; and (c) post-viability abortions

that are not necessary to preserve the life or health of

the mother.5

The intervenors argued that the district court must

enforce SB 8’s severability and saving-construction requirements, which instruct courts to preserve all constitutional provisions — and all constitutional applications — of SB 8. See Senate Bill 8, 87th Leg., §§ 3, 5, 10

(2021); see also Tex. Health & Safety Code § 171.212(a)

See Declaration of Jeff Tuley, United States v. Texas, No. 1:21cv-00796-RP (W.D. Tex.), ECF No. 28-2 at ¶ 9 (ROA.701); see

also Declaration of Erick Graham, United States v. Texas, No.

1:21-cv-00796-RP (W.D. Tex.), ECF No. 28-1 at ¶ 9 (ROA.697);

Declaration of Mistie Sharp, United States v. Texas, No. 1:21cv-00796-RP (W.D. Tex.), ECF No. 28-3 at ¶ 9 (ROA.705).

(“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.”). The intervenors also reiterated that they intend

to bring lawsuits only in response to abortions or other

conduct that is not protected under Roe and Casey, and

they insisted that any preliminary injunction must preserve their right to bring those lawsuits. But the district

court rejected these arguments and enjoined the Texas

judiciary from considering any lawsuits brought under

SB 8 — regardless of whether a lawsuit targets constitutionally protected conduct. And it held that it could defy

the severability requirements in SB 8 because this Court

had had refused to enforce a severability provision in

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2319 (2016). Pet. App. 100a–101a; Pet. App. 109a–110a &

n.95.

After the district court issued its preliminary injunction, the intervenors filed a timely notice of appeal, along

with Texas. ROA.1853.

SUMMARY OF ARGUMENT

The United States’ efforts to sue Texas encounter the

same obstacles that prevent the abortion providers from

suing the state’s officers. The first problem is any relief

must enjoin the enforcement of SB 8, not the law itself,6

and the State of Texas does not “enforce” SB 8 by allow6.

See Whole Woman’s Health, 141 S. Ct. at 2495 (“[F]ederal

courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”) (citing California v. Texas,

141 S. Ct. 2104, 2115–16 (2021)).

ing its judiciary to adjudicate private civil-enforcement

lawsuits brought under the statute. The State of Texas

has no more of an “enforcement” role than the United

States, which allows its courts to hear SB 8 enforcement

lawsuits under the diversity jurisdiction. See 28 U.S.C.

§ 1332.7 More importantly, this Court has already held

that a sovereign government is not a proper defendant

under Article III when its “enforcement” role extends no

further than adjudicating lawsuits between private parties brought under the disputed statute. See Muskrat v.

United States, 219 U.S. 346 (1911); Hope Clinic, 249 F.3d

at 605 (Easterbrook, J.). No different outcome can obtain

here.

The second problem is that the federal judiciary cannot enjoin or prevent a state court from hearing a case,

regardless of whether a private party or the United

States is requesting this relief. See Young, 209 U.S. at

163 (“[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 nature . . . .

[A]n injunction against a state court would be a violation

of the whole scheme of our Government.”). This constraint on the federal judicial power has nothing to do

with sovereign immunity; it is rooted in the presumption

SB 8 enforcement lawsuits may be brought under the federal

diversity jurisdiction if: (1) The parties are completely diverse;

(2) The amount in controversy exceeds $75,000 (i.e., the defendants have performed or assisted eight or more post-heartbeat

abortions); and (3) The plaintiff can plausibly allege injury in

fact from the performance of abortions.

that state judges will respect federally protected rights

when deciding cases,8 and the fact that a judge does

nothing unlawful by merely hearing a lawsuit that has

been filed in his court — even if the lawsuit is based on a

patently unconstitutional statute. Each of these problems sinks the abortion providers’ lawsuit against the

individual judicial officers, and the United States’ ability

to sue the state as an entity does nothing to overcome

either of these insurmountable obstacles.

Indeed, the United States’ lawsuit encounters additional procedural barriers beyond those that confront

the abortion-provider plaintiffs, because the United

States does not even have a cause of action to sue Texas

over SB 8. The United States concedes that there is no

statute that authorizes it to sue Texas, and its attempt to

concoct a cause of action from “equity” is specious. The

Constitution grants Congress, not the Executive Branch,

the power to enforce the Fourteenth Amendment,9 and

Congress has enacted a comprehensive remedial scheme

that authorizes various types of lawsuits to enforce the

Fourteenth Amendment,10 yet pointedly does not authorSteffel v. Thompson, 415 U.S. 452, 460–61 (1974) (“State courts

have the solemn responsibility, equally with the federal courts

‘to guard, enforce, and protect every right granted or secured

by the constitution of the United States. . . .’ ” (citation omitted));

Middlesex County Ethics Commission v. Garden State Bar

Ass’n, 457 U.S. 423, 431 (1982) (“Minimal respect for the state

processes, of course, precludes any presumption that the state

courts will not safeguard federal constitutional rights.”).

9. See U.S. Const. amend. XIV, § 5.

10. See, e.g., 42 U.S.C. § 1983 (authorizing lawsuits by individuals

against “persons” that violate their federally protected rights

(continued…)

ize lawsuits by the United States to enforce abortion

rights under Roe and Casey. This congressionally enacted regime forecloses any attempt to divine a cause of action from “equity.” See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 74 (1996) (“Where Congress has

created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.”).

And even in the absence of this congressional preclusion, the United States would still lack a cause of action

to sue in equity because the federal judiciary’s equitable

powers are limited to relief that was “traditionally accorded by courts of equity” at the time of the Constitution’s ratification. Grupo Mexicano de Desarrollo S.A. v.

Alliance Bond Fund, Inc., 527 U.S. 308, 319 (1999). The

notion that someone could sue a judge or a court to enjoin them from hearing a case was unheard of in equity

in 1789, as was the idea that the United States could sue

a state for allowing its courts to hear private civil lawsuits brought under an allegedly unconstitutional statute. No case in the history of the nation has allowed the

United States (or anyone else) to sue to prevent state

judges from adjudicating cases that have yet to be filed,

and Grupo Mexicano flatly prohibits courts from using

equity to create a novel remedy of this sort.

while acting under color of state law); 42 U.S.C. § 2000b(a) (authorizing the attorney general to sue state entities that enforce

racially segregated public facilities); 42 U.S.C. § 2000c-6(a) (authorizing the attorney general to sue state entities that maintain

racially segregated schools).

The United States complains that SB 8 is “unusual”

because it is not subject to pre-enforcement challenge

under 42 U.S.C. § 1983, but any imperfections with a

congressionally created system of remedies must be

fixed by Congress — not by the executive or the courts.

Indeed, Congress is actively considering legislation that

would preempt SB 8 and authorize the United States to

sue states over their abortion laws, and this bill has already passed the House of Representatives. See H.R.

3755, 117th Cong. §§ 5, 8 (2021). The executive’s impatience with the progress of this bill does not allow it to

sue Texas unilaterally, and neither the United States nor

this Court can invoke “equity” to create a novel cause of

action that Congress has (thus far) failed to provide.

ARGUMENT

Our argument will first address the defendant-side

problems with the United States’ lawsuit, which mirror

problems that afflict the abortion providers’ efforts to

sue the state’s officials. We will then explain the plaintiffside problems, which are unique to the United States’

lawsuit. Finally, we will show that the United States cannot seek or obtain relief that categorically enjoins the

enforcement of SB 8, as the statute is severable and the

intervenors (and others) intend to file SB 8 lawsuits only

in response to conduct that is not constitutionally protected.

THE STATE OF TEXAS IS NOT A PROPER

DEFENDANT

A. Texas Cannot Be Sued For Allowing Its Courts To

Hear Claims Brought By Private Litigants

The first problem for the United States is that federal courts may enjoin only “individuals tasked with enforcing laws, not the laws themselves.” Whole Woman’s

Health, 141 S. Ct. at 2495 (citing California v. Texas, 141

S. Ct. 2104 (2021)). And the State of Texas is not “tasked

with enforcing” SB 8, because the statute specifically

prohibits the state and its officers from enforcing it. See

Tex. Health & Safety Code § 171.207 (“No enforcement

of this subchapter . . . may be taken or threatened by this

state, a political 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.”). All Texas is doing is allowing its courts to entertain lawsuits between

private parties under SB 8, in the same way that the

United States government is allowing its courts to hear

SB 8 lawsuits under the diversity jurisdiction.11 And a

sovereign government cannot be sued under Article III

for adjudicating lawsuits between private parties. See

Muskrat, 219 U.S. 346; Hope Clinic, 249 F.3d at 605

(Easterbrook, J.) (“Muskrat . . . held that Article III

does not permit the federal judiciary to determine the

constitutionality of a statute providing for private litiga-

11. See note 7 and accompanying text.

tion, when the federal government (or its agents) are the

only adverse parties to the suit.”).

The United States’ efforts to distinguish Muskrat go

nowhere. It claims that Muskrat involved a request for

an “advisory opinion,”12 but the reason that Muskrat

characterized the lawsuit this way — even though the

plaintiff in that case was plainly injured and seeking relief that would redress his injury — was that the federal

government had no cognizable interest in defending a

challenge to a federal statute enforced solely by private

parties, even though the lawsuits were being adjudicated

in federal courts. That is exactly the situation here. Texas has no enforcement role apart from allowing its judiciary to entertain SB 8 lawsuits between private parties.

A sovereign government cannot be sued in that situation

because there is no Article III case or controversy between the plaintiff and the defendant. It is no different

from an abortion provider suing the United States for

allowing its courts to hear SB 8 lawsuits under the diversity jurisdiction. Any lawsuit of that sort would be dismissed immediately under Muskrat, independent of any

sovereign-immunity obstacles.

The United States’ next move is to claim that SB 8

plaintiffs aren’t asserting “private rights” in these enforcement lawsuits, but are instead exercising “delegated” enforcement authority on the State’s behalf. See

Appl. to Vacate Stay at 29; U.S. Reply Br. at 15. That

does nothing to get around Muskrat. To begin, the United States is wrong to claim that SB 8 plaintiffs are exer12. Appl. to Vacate Stay at 29; U.S. Reply Br. at 15.

cising “delegated” powers on behalf of the State, as these

individuals are in no way subject to the State’s control or

supervision. SB 8 enforcement lawsuits are not qui tam

relator actions where an individual sues in the name of

the State. And the State and its officials are statutorily

prohibited from joining or intervening in SB 8 enforcement lawsuits. See Tex. Health & Safety Code

§§ 171.208(a), 171.208(h). SB 8 plaintiffs do not answer to

the state, and their litigation decisions and tactics are

entirely immune from the State’s influence. The United

States’ assertion that SB 8 plaintiffs are acting on “behalf ”13 of the State is also incompatible with Hollingsworth v. Perry, 570 U.S. 693 (2013), which rejected the

notion that a state could “authorize private parties to

represent its interests.” Id. at 710 (emphasis in original)); see also id. at 713 (“[P]etitioners are plainly not

agents of the State — ‘formal’ or otherwise”).

Texas has instead chosen to create a private tort that

recognizes a private interest of those who oppose a third

party’s abortions, an action akin to the common-law tort

of intentional or negligent infliction of emotional distress.

The Constitution has nothing to say about what private

interests a State chooses to recognize, and nothing in

federal law prevents a state from recognizing or establishing private legal interests beyond those that existed

at common law. See Cass R. Sunstein, Lochner’s Legacy,

87 Colum. L. Rev. 873 (1987); Lujan v. Defenders of

Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (“[W]e

13. U.S. Reply Br. at 16.

must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law

tradition.”). Texas has every prerogative to create and

establish a private interest of this sort, and its novelty

does not convert SB 8 plaintiffs into agents of the State.

Finally, the United States says that it can avoid the

holding of Muskrat because it is seeking an injunction,

rather than a mere declaration on the validity of SB 8.

See U.S. Reply Br. at 16. But Muskrat’s holding does not

turn on the remedies that a plaintiff is requesting. The

holding of Muskrat is that a sovereign government cannot be sued for allowing its courts to adjudicate lawsuits

between private parties — even if the statute that authorizes these lawsuits is alleged to be invalid or unconstitutional, and even if the defendant government enacted the allegedly unconstitutional statute — because there

is no Article III “case” or “controversy” in those situations. See Muskrat, 219 U.S. at 361 (“It is true the United States is made a defendant to this action, but it has no

interest adverse to the claimants.”). The lack of “adverse

interests” remains regardless of whether the plaintiff is

seeking an injunction alongside its request for a declaration of unconstitutionality. The constitutionality of the

statute must be determined in the lawsuits between private parties, not in a preemptive lawsuit brought against

the sovereign government, which is not “enforcing” the

statute but merely allowing its courts to hear lawsuits

arising under the disputed statutory enactment. In all

events, the federal courts have no authority to enjoin a

state’s judiciary from hearing cases,14 as the United

States is requesting, and a request for demonstrably improper relief cannot be used to escape the holding of

Muskrat.

B. The Federal Judiciary Has No Authority To Enjoin

Texas From Hearing Cases That Might Be Filed In

Its Courts

The United States is seeking relief that would prohibit the Texas judiciary from even considering lawsuits

that might be filed under SB 8. Pet. App. 110a. But a

federal court is forbidden to issue declaratory or injunctive relief of that sort. An injunction may be used only to

restrain unlawful activity, and a state court does nothing

unlawful or unconstitutional by presiding over a lawsuit

between private parties — even if the lawsuit were based

on a patently unconstitutional statute. A state court does

not violate federal law unless and until it enters or enforces a ruling that violates someone’s federally protected rights, and federal courts must presume that state

courts will respect federal rights when deciding cases.

See Steffel v. Thompson, 415 U.S. 452, 460–61 (1974)

(“State courts have the solemn responsibility, equally

with the federal courts ‘to guard, enforce, and protect

every right granted or secured by the constitution of the

United States. . . .’ ” (citation omitted); Middlesex County Ethics Commission v. Garden State Bar Ass’n, 457

U.S. 423, 431 (1982) (“Minimal respect for the state pro14. See Ex parte Young, 209 U.S. 123, 163 (1908); see also infra at

Part I.B.

cesses, of course, precludes any presumption that the

state courts will not safeguard federal constitutional

rights.”).

In addition, the relief requested by the United States

is squarely and unequivocally foreclosed by Ex parte

Young:

[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 nature . . . . [A]n injunction against a state court would be a violation of the whole scheme of our Government. . . . The difference between the power to

enjoin an individual from doing certain things,

and the power to enjoin courts from proceeding

in their own way to exercise jurisdiction, is

plain, and no power to do the latter exists because of a power to do the former.

Young, 209 U.S. at 163. The United States has no answer

to this passage from Ex parte Young, which it has not

acknowledged in either of its previous filings in this

Court.

The closest the United States comes to addressing

this passage from Young is to cite Pulliam v. Allen, 466

U.S. 522 (1984), which allowed a state magistrate to be

enjoined from imposing bail on individuals arrested for

nonjailable offenses and incarcerating those who could

not meet the bail. See id. at 524–25; U.S. Reply Br. at 18.

But Ex parte Young does not hold — and the respondents

are not contending — that state judges can never be en-

joined by a federal court, and subsequent cases have allowed judicial officers to be sued and enjoined over policies that they have actually adopted and are enforcing.

See Pulliam, 466 U.S. at 524–25; Supreme Court of Virginia v. Consumers Union of United States, Inc., 446

U.S. 719, 737 (1980) (allowing a state supreme court and

its chief justice to be sued over their enforcement of the

state’s disciplinary rules for lawyers, which were issued

and enforced by the state’s judiciary). Young, however,

unequivocally prohibits an injunction that would restrain

a judge or a court from even hearing a case — which is

what the United States is seeking here. See Young, 209

U.S. at 163 (denying any power “to restrain a court from

acting in any case brought before it, either of a civil or

criminal nature” (emphasis added)); id. (denying any

“power to enjoin courts from proceeding in their own

way to exercise jurisdiction” (emphasis added)). That

type of injunction would, in the words of Young, “be a

violation of the whole scheme of our Government,” id.,

because it would restrain a court from adjudicating a

dispute and reaching a decision. No court can ever enjoin

another court from hearing a case, because a judge does

nothing unlawful by presiding over a lawsuit, even when

the lawsuit is seeking to enforce an unconstitutional

statute.

Pulliam did not overrule Young sub silentio, and the

United States does not contend that it did. Any such contention would be incompatible with this Court’s stare decisis practices, which require courts to apply the precedent that directly controls. See Hurst v. Florida, 577

U.S. 92, 101 (2016) (“If a precedent of this Court has di-

rect application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the [other

courts] should follow the case which directly controls,

leaving to this Court the prerogative of overruling its

own decisions.” (alteration in original) (quoting another

source)). Pulliam does not allow judges to be enjoined

from hearing cases; it allowed them to be sued for actual

policies that they had adopted and were enforcing. That

does nothing to disturb the rule of Ex parte Young,

which categorically forbids injunctions that would prevent a court adjudicating a case that might be brought

before it.

Neither the district court nor the United States has

cited any case in which a federal court restrained a

state’s judiciary from hearing a case that has yet to be

filed, and to our knowledge no such injunction or declaratory judgment has ever been issued in the 245-year history of the United States. Any such injunction or declaratory relief would flout the presumption that state courts

will respect federally protected rights, and it would flout

Ex parte Young, 209 U.S. 123 (1908) — a precedent far

more venerable than any of the Court’s abortion-related

pronouncements. And there is no conceivable basis to

claim that a state court acts unlawfully merely by adjudicating a lawsuit between private litigants.

***

All of this precludes the declaratory or injunctive relief that the United States is seeking, regardless of

whether the relief is directed at the state-court judges,

state-court clerks, other state officials, private parties, or

the State itself.

1. State-Court Judges

Any relief that would prevent state-court judges from

hearing cases under SB 8 is foreclosed by: (1) the presumption that state-court judges will respect federally

protected rights; (2) Ex parte Young’s categorical prohibition against relief that prevents other courts from adjudicating cases; and (3) the fact that a judge does nothing unlawful merely by presiding over a lawsuit between

private parties. See supra at I.B. But there are even

more obstacles to seeking this relief against the judge

himself.

Article III does not allow litigants to challenge the

constitutionality of a statute by suing judges who might

hear cases filed under the disputed law, because a judge

who acts in an adjudicatory capacity is a neutral arbiter

of the law and has no personal stake in the controversy.

See Whole Woman’s Health v. Jackson, 13 F.4th 434, 444

(5th Cir. 2021) (“When acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy . . . [and]

are bound to follow not only state law but the U.S. Constitution and federal law.”). And the rules of judicial ethics prohibit a judge from defending a statute’s constitutionality as a partisan litigant when he will be called upon to resolve those same constitutional challenges in judicial capacity.15 Neither private parties nor the United

15.

See Canon 3(B)(10), Texas Code of Judicial Ethics (“A judge

shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a

manner which suggests to a reasonable person the judge’s

(continued…)

States can challenge the constitutionality of a statute by

suing a judge who might adjudicate lawsuits brought under the disputed statutory enactment.

2. State-Court Clerks

Any relief that would restrain state-court clerks (or

other court employees) from accepting or docketing papers under SB 8 encounters the same problems. Indeed,

an injunction directed at court clerks is even harder to

defend because clerks are ministerial actors who aren’t

even supposed to review or consider the merits of filings.

It is absurd to contend that a court clerk is violating federal law if she fails to review the documents submitted

by litigants and reject any filing that might be submitted

under an unconstitutional statute.

If there is a danger that a private individual might

sue someone under an unconstitutional law, then the

remedy is to pursue an anti-suit injunction against that

individual or seek dismissal of the lawsuit after it is filed.

It is not to sue the court clerk and enjoin the clerk from

accepting or docketing papers. Indeed, if a court clerk

can be enjoined on the theory that she violates federal

law by accepting documents in SB 8 litigation, then it follows a fortiori that clerks can be sued for damages under

42 U.S.C. § 1983 if they accept and file papers in lawsuits

brought under a “patently unconstitutional” statute. A

regime of this sort would place unreasonable and onerprobable decision on any particular case.”), available at

https://www.txcourts.gov/media/1452409/texas-code-of-judicialconduct.pdf.

ous burdens on court clerks and their staff, who be compelled to review every document submitted to ensure

that the statutes relied upon comport with the Constitution, and who would face constant risks of lawsuits — not

only for declaratory relief but for damages as well.

3. Other State Officials

An injunction (or declaratory judgment) that prevents state officials from executing judgments obtained

in SB 8 litigation faces the same insurmountable obstacles. It violates the presumption that state courts will

respect federally protected rights by assuming that state

courts will enter unlawful judgments in SB 8 litigation.

See Steffel, 415 U.S. at 460–61; Middlesex County Ethics

Comm’n, 457 U.S. at 431. It violates Ex parte Young by

interfering with the state judiciary’s ability to adjudicate

lawsuits brought before it. See Young, 209 U.S. at 163.

And a state official does nothing unlawful by executing a

court judgment — even if the court judgment is erroneous or based on an unconstitutional statute.

When a state court issues a judgment that violates

someone’s constitutional rights, the remedy is to appeal,

not collaterally attack it. See U.S. Const. art. IV, § 1

(“Full Faith and Credit shall be given in each State to the

public Acts, Records, and judicial Proceedings of every

other State.”); 28 U.S.C. § 1738; Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415–16 (1923); District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 486–87

(1983). One cannot sue the state’s executive officials (or

the state government) to halt the execution of an allegedly unlawful judgment. And the United States certainly

cannot obtain an injunction to restrain the execution of a

hypothetical future state-court judgment, when the

courts are obligated to presume that the state judiciary

will respect federally protected rights when adjudicating

cases.

4. Private Parties

The United States is asking the district court to enjoin not only the State of Texas, but every private individual who might initiate enforcement proceedings under

SB 8. ROA.43. But the United States has not identified

or sued any private individual that has credibly threatened to sue. The State of Texas is the only named defendant, and non-parties to a lawsuit cannot be enjoined

absent notice and an opportunity to be heard. See Hansberry v. Lee, 311 U.S. 32, 40 (1940) (“[O]ne is not bound

by a judgment in personam in a litigation in which he is

not designated as a party or to which he has not been

made a party by service of process.”); Zenith Radio

Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112

(1969) (“It was error to enter the injunction against Hazeltine . . . in a proceeding to which Hazeltine was [not] a

party.”); Osborn v. Bank of United States, 22 U.S. 738,

802 (1824) (“An injunction binds no person but the parties to the suit.”); Hope Clinic v. Ryan, 249 F.3d 603, 605

(7th Cir. 2001) (en banc) (per curiam) (“[A]n injunction

prohibiting the world from filing private suits would be a

flagrant violation of both Article III and the due process

clause (for putative private plaintiffs are entitled to be

notified and heard before courts adjudicate their entitlements).”).

The United States tries to get around this problem

by claiming that these non-parties can be bound under

Rule 65(d)(2)(C) as “persons . . . in active concert or participation” with the State. ROA.362. That is preposterous. SB 8 prohibits the State and its officials from enforcing the ban on post-heartbeat abortions,16 which

makes it both unlawful and impossible for a would-be litigant to coordinate with the State when bringing private

civil-enforcement lawsuits. In addition, a non-party cannot be deemed a person “in active concert or participation” with a litigant unless that non-party is given notice

and an opportunity to contest that designation. See Zenith Radio, 395 U.S. at 112 (“Although injunctions issued

by federal courts bind not only the parties defendant in a

suit, but also those persons ‘in active concert or participation with them who receive actual notice of the order

by personal service or otherwise,’ Fed. Rule Civ. Proc.

65(d), a nonparty with notice cannot be held in contempt

until shown to be in concert or participation. It was error

to enter the injunction against Hazeltine, without having

made this determination in a proceeding to which Hazeltine was a party.”); Lake Shore Asset Management Ltd.

v. Commodity Futures Trading Commission, 511 F.3d

762, 767 (7th Cir. 2007) (Easterbrook, J.) (“[W]hether a

particular person or firm is among the ‘parties’ officers,

agents, servants, employees, and attorneys; [or] other

persons in active concert or participation with’ them is a

decision that may be made only after the person in question is given notice and an opportunity to be heard.”).

The United States’ interpretation of Rule 65, which

would allow every person in the world to be bound by an

16. See Tex. Health & Safety Code § 171.207.

injunction directed at the State of Texas, would violate

the Due Process Clause and the Rules Enabling Act, by

abridging a non-party’s substantive right to notice and

an opportunity to be heard before being bound by a

court’s injunction.

The district court’s preliminary injunction did not go

so far as to enjoin private parties from bringing privateenforcement lawsuits under SB 8, although it insisted

that it had the power to enjoin those private individuals

under Rule 65. Pet. App. 110a (“[T]he Court need not

craft an injunction that runs to the future actions of private individuals per se”). The district court appeared to

believe that an injunction directed at would-be private

litigants was unnecessary, because the injunctive relief

directed at Texas would ensure that no SB 8 enforcement

lawsuits could proceed in state court. See id. (“[G]iven

the scope of the injunctions discussed here and supported by law, those private individuals’ actions are proscribed to the extent their attempts to bring a civil action

under Texas Health and Safety Code § 171.208 would necessitate state action that is now prohibited.”).

The problem with the district court’s remedy is that

an injunction that restrains only the State of Texas

(along with its “officers, officials, agents, employees, and

any other persons or entities acting on its behalf ”)17 will

not protect abortion providers from being sued in federal

district court under the diversity jurisdiction. SB 8 allows “any person” to sue, regardless of whether they live

in Texas, and any citizen of another state can sue a per17. Pet. App. 110a.

son who violates SB 8 in federal court if they can establish Article III standing. An out-of-state couple that is

waiting to adopt from a Texas-based adoption agency, for

example, can assert “injury in fact” from the negative

effects that abortion has on adoption markets,18 and they

will clear the $75,000 amount-in-controversy requirement if the defendant has performed (or assisted) more

than seven post-heartbeat abortions. The district court’s

preliminary injunction has no effect on those federalcourt proceedings. See Camreta v. Greene, 563 U.S. 692,

709 n.7 (2011) (“A decision of a federal district court

judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the

same judge in a different case.”); Tex. Health & Safety

Code § 171.208(e)(5) (non-mutual issue or claim preclusion is no defense).

5. The State

An injunction is an in personam remedy, which bars

a person from doing something. See Nken v. Holder, 556

U.S. 418, 428 (2009) (“[A]n injunction is a judicial process

or mandate operating in personam.” (citation and internal quotation marks omitted)). So if the state’s individual

officers cannot be enjoined, then the State of Texas cannot be enjoined either. The only individuals in the Texas

government who take any action under SB 8 are judicial

officers who consider or process private civil18. See Richard A. Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59, 63 (1987) (“The supply of babies for

adoption has been dramatically affected by the increase in abortions since the Supreme Court’s decision in Roe v. Wade.”).

enforcement lawsuits, and the officers who enforce the

eventual judgments in those cases. None of these individuals may be enjoined from adjudicating cases or enforcing judgments, as explained in Parts I.B.1–I.B.4, supra. And the United States cannot end-run those limits

on the federal judicial power by suing the State as a

nominal defendant while seeking relief that runs against

the state officers that it cannot sue directly.

II. THE UNITED STATES HAS NO

ACTION TO SUE TEXAS OVER SB 8

CAUSE

The United States cannot bring this lawsuit unless it

identifies a cause of action that authorizes it to sue Texas

over SB 8. See Davis v. Passman, 442 U.S. 228, 239 n.18

(1979) (“[C]ause of action is a question of whether a particular plaintiff is a member of the class of litigants that

may, as a matter of law, appropriately invoke the power

of the court”); David P. Currie, Misunderstanding

Standing, 1981 Sup. Ct. Rev. 41, 42 (“No one can sue . . .

unless authorized by law to do so”). And the United

States concedes that there is no statute that authorizes it

to sue a state over an allegedly unconstitutional (or allegedly preempted) abortion statute. But the district

court decided to invent a cause of action that would allow

the United States’ claims to proceed, by claiming that

“traditional principles of equity” allow the United States

to sue to enforce the Fourteenth Amendment despite the

absence of a statutory cause of action. Pet. App. 39a–40a

(“No cause of action created by Congress is necessary to

sustain the United States’ action; rather, traditional

principles of equity allow the United States to seek an

injunction to protect its sovereign rights, and the funda-

mental rights of its citizens under the circumstances present here.”); Pet. App. 40a (“[T]he United States’ cause

of action is a creature of equity”). The United States

makes a similar argument in this Court. See App. to Vacate Stay at 19–20. The district court’s and the United

States’ efforts to divine a cause of action from “equity”

fail for multiple independent reasons.

First, the Fourteenth Amendment empowers Congress to “enforce” its requirements “by appropriate legislation.” U.S. Const. amend. XIV, § 5. That means it is

up to Congress to decide whether and to what extent

lawsuits should be authorized against individuals and entities that violate the Fourteenth Amendment — and neither the executive nor federal judiciary can create causes

of action to enforce the Fourteenth Amendment when

Congress has declined to do so. See Lexmark Int’l, Inc.

v. Static Control Components, Inc., 572 U.S. 118, 128

(2014) (“[A] court cannot apply its independent policy

judgment to recognize a cause of action that Congress

has denied”). The notion that “principles of equity” allow

the executive branch to unilaterally sue entities that violate the Fourteenth Amendment is incompatible with the

Amendment’s decision to vest the enforcement authority

in Congress. See United States v. City of Philadelphia,

644 F.2d 187, 200 (3d Cir. 1980) (refusing to recognize an

implied right of action for the federal government to sue

over Fourteenth Amendment violations because

“[s]ection 5 of the fourteenth amendment confers on

Congress, not on the Executive or the Judiciary, the

‘power to enforce, by appropriate legislation, the provisions of this article’ ”).

Second, because Congress holds the constitutional

authority to enforce the Fourteenth Amendment, it has

on occasion created causes of action that authorize the

executive to sue state entities that violate the Fourteenth

Amendment. See 42 U.S.C. § 2000b(a) (authorizing the

attorney general to sue state entities that enforce racially segregated public facilities); 42 U.S.C. § 2000c-6(a)

(authorizing the attorney general to sue state entities

that maintain racially segregated schools). But Congress

has conferred this power sparingly — and when it has

conferred this power it carefully limits the circumstances

in which a federal enforcement lawsuit may be brought.

Consider 42 U.S.C. § 2000b(a), which authorizes the

United States to sue state entities that enforce racially

segregated public facilities:

Whenever the Attorney General receives a

complaint in writing signed by an individual to

the effect that he is being deprived of or

threatened with the loss of his right to the

equal protection of the laws, on account of his

race, color, religion, or national origin, by being

denied equal utilization of any public facility

which is owned, operated, or managed by or on

behalf of any State or subdivision thereof, other than a public school or public college as defined in section 2000c of this title, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers

of such complaint are unable, in his judgment,

to initiate and maintain appropriate legal proceedings for relief and that the institution of an

action will materially further the orderly progress of desegregation in public facilities, the

Attorney General is authorized to institute for

or in the name of the United States a civil action in any appropriate district court of the

United States against such parties and for such

relief as may be appropriate, and such court

shall have and shall exercise jurisdiction of

proceedings instituted pursuant to this section.

42 U.S.C. § 2000b(a). Notice all the preconditions that

must be satisfied before the Attorney General can sue

under section 2000b(a): (1) The Attorney General must

“receive a complaint in writing” from the individual who

is suffering a violation of his Fourteenth Amendment

rights; (2) The complaint must describe a specific type of

Fourteenth Amendment violation, namely a deprivation

or threatened deprivation of one’s right of equal access

to a “public facility” on account of “race, color, religion,

or national origin”; (3) The Attorney General must conclude that the complaint is “meritorious”; (4) The Attorney General must “certify” that the complainant is “unable” to sue for relief on his own; and (5) The Attorney

General must “certify” that a lawsuit brought by the

United States “will materially further the orderly progress of desegregation in public facilities.” Id. Unless all

five of these criteria are satisfied, the Attorney General

cannot sue to enforce the Fourteenth Amendment under

42 U.S.C. § 2000b(a). 42 U.S.C. § 2000c-6(a) establishes

similar preconditions for lawsuits brought by the United

States to desegregate public schools. See 42 U.S.C.

§ 2000c-6(a).

These congressional enactments foreclose any possibility of an implied cause of action to sue a state over an

alleged Fourteenth Amendment violation. Congress has

specifically addressed the circumstances in which the Attorney General may sue in response to violations of the

Fourteenth Amendment — and it has carefully limited

the scope of these causes of action in a manner that precludes the Attorney General from suing states over other

alleged violations. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 74 (1996) (“Where Congress has created

a remedial scheme for the enforcement of a particular

federal right, we have, in suits against federal officers,

refused to supplement that scheme with one created by

the judiciary.”); Hernandez v. Mesa, 140 S. Ct. 735, 747

(2020) (refusing to infer a cause of action for aliens

abroad to sue for alleged violations of their constitutional

rights given that they were expressly excluded from section 1983’s cause of action, because “it would be anomalous to impute a judicially implied cause of action beyond

the bounds Congress has delineated for a comparable

express cause of action” (cleaned up)).

The district court acknowledged these congressional

enactments but insisted that they could not reflect a

congressional intention to foreclose an implied cause of

action to enforce the right to abortion, because the abortion right did not exist when Congress enacted those

statutes. Pet. App. 53a. That is a non sequitur. The problem for the United States is that the text of the Fourteenth Amendment empowers Congress to enforce its

provisions, and Congress has specifically and carefully

addressed the precise circumstances in which the execu-

tive may sue to enforce the Fourteenth Amendment. By

specifying that the executive may sue to enforce the

Fourteenth Amendment in the limited circumstances

provided in sections 2000b(a) or 42 U.S.C. § 2000c-6(a),

and by failing to authorize the executive to enforce the

Fourteenth Amendment outside those situations, Congress has defined by statute the preconditions that must

be met before the executive can sue over an alleged

Fourteenth Amendment violation. It would turn these

congressional enactments on their head to recognize an

“implied” cause of action to enforce the Fourteenth

Amendment outside these carefully defined circumstances. Whether Congress was consciously aware of the

right to abortion when it enacted sections 2000b(a) and

42 U.S.C. § 2000c-6(a) is irrelevant. What matters is that

Congress has defined the preconditions that must be satisfied before the United States can sue to enforce the

Fourteenth Amendment, and the judiciary cannot recognize or invent an “implied” right of action that allows the

executive to circumvent these statutory prerequisites to

suit.

Third, the United States’ attempt to derive its cause

of action from “traditional principles of equity” flouts the

holding of Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), which forbids

courts to recognize “equitable” remedies apart from

those that existed when the original Judiciary Act was

enacted in 1789. See id. at 318 (“[T]he equity jurisdiction

of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the

time of the adoption of the Constitution and the enact-

ment of the original Judiciary Act.”). There is no historical pedigree for an “equitable” cause of action that would

allow the United States government to sue a state to enforce the constitutional rights of its citizenry—and the

United States cites no example of any such lawsuit that

has ever occurred. Instead, City of Philadelphia empathically rejected the notion that the United States may

sue a state for violating the Fourteenth Amendment,

which squelches any possibility of a “traditional” equitable cause of action that allows the federal government to

sue states for violating constitutional rights. See 644 F.2d

at 200. Of course, there is a traditional equitable cause of

action that allows private individuals to sue government

officers that violate their constitutional rights,19 as the

district court observed,20 but that is a far cry from a

cause of action that would allow the United States to sue

a state that allows its judiciary to hear lawsuits filed under an allegedly unconstitutional statute. Grupo Mexicano does not allow the United States to derive this

cause of action from the traditional equitable cause of

action that allows private individuals to seek injunctive

relief against individual government officers. See Grupo

Mexicano, 527 U.S. at 319 (1999) (refusing to recognize

19. See, e.g., Young, 209 U.S. at 155–56; Armstrong v. Exceptional

Child Center, Inc., 575 U.S. 320, 326 (2015) (“And, as we have

long recognized, if an individual claims federal law immunizes

him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.” (emphasis

added) (citing Young, 209 U.S. at 155–156); see also John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 989 (2008).

20. Pet. App. 751.

an equitable remedy that would allow pre-judgment

creditors to restrain a debtor’s assets, because this relief

was traditionally available only to “creditor[s] who had

already obtained a judgment establishing the debt”).

The district court tried to get around Grupo Mexicano with the following cryptic passage:

Grupo Mexicano at most stands for the proposition that federal courts have jurisdiction over

suits in equity, in which the broad equitable

remedies that predate the Constitution remain

available. The formal source of that jurisdiction

is codified in the Judiciary Act of 1789, as discussed in Grupo Mexicano. However, the principle itself is broader and is not defined by that

Act. Indeed, by the time he returned to the

question in Armstrong, Justice Scalia — the author of Grupo Mexicano — had dispensed with

any need to locate this power in the Judiciary

Act. Nowhere in the latter case did he cite to

the Judiciary Act. Rather, he wrote of general

equitable powers “tracing back to England,”

translating to the “judge-made remedy” in the

federal courts. Armstrong, 575 U.S. at 327. It

is the essential nature of equity that it is not

subject to strict limitations, unless and until

Congress acts directly to restrict it.

Pet. App. 41a. This district court appears to be saying

that Justice Scalia walked back the holding of Grupo

Mexicano in Armstrong v. Exceptional Child Center,

Inc., 575 U.S. 320 (2015), because Armstrong observed

that the traditional right of private individuals to sue to

enjoin the unconstitutional actions of state and federal

officers “reflects a long history of judicial review of illegal executive action, tracing back to England.” Id. at 327.

But that statement is entirely consistent with Grupo

Mexicano, as the fact that these traditional rights of action traced back to England means that those equitable

remedies existed in 1789 and were therefore incorporated in the original Judiciary Act. More importantly, the

district court’s claim that equity “is not subject to strict

limitations”21 is simply false. Equity is subject to limitations imposed by historical practice,22 and there is no historical support for an equitable cause of action that allows the United States to sue a state for violating the

constitutional rights of its citizens. Nor is there any historical support for a suit in equity to enjoin a judge (or

the judiciary) from hearing a case.

The United States, for its part, claims that its proposed cause of action is entirely consistent with Grupo

Mexicano, insisting that it seeks nothing more than “an

injunction against the enforcement of an unconstitutional

statute,” which “falls squarely within the history and

21. App. 41a.

22. See Grupo Mexicano, 527 U.S. at 318–19; Armstrong, 575 U.S.

at 327; Heine v. Board of Levee Commissioners, 86 U.S. 655,

658 (1873) (rejecting the notion that a court of equity may “depart from all precedent and assume an unregulated power of

administering abstract justice at the expense of well-settled

principles”); Samuel L. Bray, The Supreme Court and the New

Equity, 68 Vand. L. Rev. 997, 1041 (2019) (“[I]t has long been a

commonplace that equitable discretion is bounded. Even in equity, Chief Judge Cardozo said, ‘there are signposts for the

traveler.’ ”).

tradition of courts of equity.” Appl. to Vacate Stay at 27.

But a litigant cannot evade the holding of Grupo Mexicano by defining its cause of action at this level of generality. The issue in Grupo Mexicano was whether a litigant could take a form of equitable relief that had traditionally existed (an injunction for a post-judgment creditor to restrain a debtor’s assets) and extend it in a historically novel way (to pre-judgment creditors). The Court

answered no. See Grupo Mexicano, 527 U.S. at 318–33.

So the fact that there is historical precedent for injunctions sought by private parties against state officers who

violate their rights does nothing to support an injunction

sought by the United States against a state for violating

the rights of its citizens, and it certainly does nothing to

support an injunction that restrains the state’s judiciary

from adjudicating a category of cases — which we know

is not traditionally rooted in equity. See Young, 209 U.S.

at 163 (“[A]n injunction against a state court would be a

violation of the whole scheme of our Government.”). As

this Court explained:

To accord a type of relief that has never been

available before — and especially (as here) a

type of relief that has been specifically disclaimed by longstanding judicial precedent — is

to invoke a “default rule,” post, at 342, not of

flexibility but of omnipotence. When there are

indeed new conditions that might call for a

wrenching departure from past practice, Congress is in a much better position than we both

to perceive them and to design the appropriate

remedy.

Grupo Mexicano, 527 U.S. at 322 (emphasis added).

The United States has no answer to this. It fails to

cite any case from any court that has allowed the federal

government to sue a state in equity over an alleged violation of the Fourteenth Amendment, or any case that allows a suit in equity to restrain a judge (or a state’s judiciary) from adjudicating a lawsuit. The United States

invokes In re Debs, 158 U.S. 564 (1895), but Debs merely

allowed the United States to sue to redress a public nuisance in violation of a statutory scheme regulating interstate commerce. See United States v. Solomon, 563 F.2d

1121, 1127 (4th Cir. 1977) (requiring the federal government to demonstrate either “a property interest” or “a

well-defined statutory interest of the public at large” to

sue under Debs). Neither Debs nor any case in the history of the nation allows the United States to sue to prevent state judges from adjudicating private civil suits

under an allegedly unconstitutional state law. The United

States is demanding a massive expansion of traditional

equitable relief in defiance of Grupo Mexicano, which

limits the federal courts’ equitable powers to relief that

was “traditionally accorded by courts of equity” at the

time of the Constitution’s ratification. 527 U.S. at 318–19.

Suing in equity to enjoin a court from hearing a case was

unheard of in 1789.

The United States’ complaint that SB 8 is “unusual”23

cannot justify the judicial creation of a previously unheard-of cause of action. See Grupo Mexicano, 527 U.S.

at 322. And its complaint that SB 8 falls outside the lim23. U.S. Reply Br. at 2.

ited scope of pre-enforcement review that Congress authorized under 42 U.S.C. § 1983 means that Congress

should fix the problem by enacting new legislation. Indeed, the House of Representatives has already passed

legislation that would preempt SB 8 and authorize the

United States to sue Texas (and other states) over their

abortion statutes. See H.R. 3755, 117th Cong. §§ 5, 8

(2021). But this bill has not passed the Senate, and the

courts cannot invoke “equity” to create a cause of action

that Congress has (thus far) withheld.

Fourth, the notion of an implied cause of action to enforce the Fourteenth Amendment was emphatically rejected in United States v. City of Philadelphia, 644 F.2d

187, 201 (3d Cir. 1980) (“[T]he fourteenth amendment

does not implicitly authorize the United States to sue to

enjoin violations of its substantive prohibitions.”). The

district court did not dispute the result in City of Philadelphia, but thought it could carve a one-off exception to

City of Philadelphia’s holding because abortion providers have been unable to bring pre-enforcement challenges to Texas’s abortion statute under 42 U.S.C. § 1983.

App. 54a (“[I]t is the deliberate action by the State to

foreclose all private remedies that separates this case

from City of Philadelphia.”). The United States makes

the same argument. See Appl. to Vacate Stay at 27–28.

But the district court has no authority to patch up these

alleged holes in 42 U.S.C. § 1983 by allowing the United

States to sue Texas over its alleged Fourteenth Amendment violation. If a state enacts an abortion restriction

that is not subject to pre-enforcement review under 42

U.S.C. § 1983, then the solution is for the executive to

ask Congress to amend section 1983 or create a new

cause of action that would allow the United States (or

some other plaintiff) to obtain pre-enforcement relief

against SB 8. It is not to ask the judiciary to invent a new

cause of action that “fixes” these perceived shortcomings

with a congressionally created remedial scheme. This

Court no longer allows the federal judiciary to invent

causes of action that Congress has not provided. See

Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017) (“If the

statute does not itself so provide, a private cause of action will not be created through judicial mandate.”); Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001) (“Without [statutory intent], a cause of action does not exist and

courts may not create one, no matter how desirable that

might be as a policy matter, or how compatible with the

statute.”); id. at 287 (“Raising up causes of action where

a statute has not created them may be a proper function

for common-law courts, but not for federal tribunals.”

(citation and internal quotation marks omitted)). The district court’s opinion and the United States’ briefing to

this point do not even cite Alexander v. Sandoval, and

they make no attempt to explain how the judiciary can

create or recognize an “implied” right of action when this

Court has been saying for decades that federal courts

must stop inferring new causes of action from statutes or

constitutional provisions.

It is also entirely commonplace for laws to “escape”

pre-enforcement review under 42 U.S.C. § 1983. A

state’s defamation laws, for example, are enforced exclusively through private civil lawsuits, which means there

is no way for a publisher to sue the state or its officers

under 42 U.S.C. § 1983 if it believes that the defamation

laws violate the First Amendment. See New York Times

Co. v. Sullivan, 376 U.S. 254 (1964). Many other state

laws are enforced solely through private civil lawsuits,

and these statutes are likewise immune from preenforcement challenge under 42 U.S.C. § 1983 and Ex

parte Young. See, e.g., Digital Recognition Network, Inc.

v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015); Eugene

Volokh, Challenging Unconstitutional Civil Liability

Schemes, as to Abortion, Speech, Guns, Etc., Reason:

Volokh Conspiracy (September 3, 2021, 2:31 p.m.),

https://bit.ly/3iJiS5D. The United States’ theory would

allow the executive to sue a state whenever it enacts a

law or establishes a common-law rule that is enforced

through private litigation, an astonishing result. Does

the United States believe that the federal government

could have sued Alabama (or any other state) over its

defamation laws before New York Times v. Sullivan?

***

The United States also complains that that SB 8 is

partially preempted by federal law. Appl. to Vacate Stay

at 15–17. But Texas has insisted that SB 8 does not regulate the activities of the federal government, and courts

must defer to the State’s representations. See Frisby v.

Schultz, 487 U.S. 474, 483 (1988) (construing a town ordinance “more narrowly” in part because “[t]his narrow

reading is supported by the representations of counsel

for the town at oral argument”); see also Bellotti v.

Baird, 428 U.S. 132, 143 (1976); Doe v. Bolton, 410 U.S.

179, 183 n.5 (1973). In addition, the preemption arguments cannot be entertained unless a cause of action au-

thorizes the United States to sue Texas over this supposedly preempted statute. And the United States cannot

derive such a cause of action from any statute or constitutional provision.

This Court has already rejected the notion that the

Supremacy Clause can provide an implied right of action

to sue over allegedly preempted laws. See Armstrong v.

Exceptional Child Center, Inc., 575 U.S. 320, 326–27

(2015). And none of the statutes or regulations that allegedly preempt SB 8 purport to establish a cause of action that would allow the United States to sue a state

that enacts or enforces a conflicting law. See Alexander,

532 U.S. at 287 (prohibiting federal courts from “[r]aising up causes of action where a statute has not created

them”). So the United States has nothing from which it

can derive a cause of action, as neither the relevant statutes nor the relevant constitutional provision purports to

authorize lawsuits against states that enact or enforce

allegedly preempted laws.

The United States tries to get around this problem

by claiming that it can sue a state or anyone else for equitable relief whenever it does so to protect “sovereign

interests” (whatever that means) — and that it can bring

such lawsuits regardless of whether the underlying law

establishes a cause of action. See Appl. to Vacate Stay at

20 (“The government also has authority to challenge S.B.

8 because the law’s violation of the Fourteenth Amendment and the Supremacy Clause injures the United

States’ sovereign interests.”). The United States begins

by observing that the Supreme Court has occasionally

allowed the United States to seek equitable relief to vin-

dicate “various sovereign interests,” even in the absence

of a statutory cause of action. See id. at 21 (listing the

“sovereign interests” at issue in those cases). It then infers from those cases that the federal government may

sue and seek equitable relief whenever it purports to be

vindicating any “sovereign interest.” See id. at 22–24.

But that is a non sequitur. That this Court has allowed

the United States to sue to vindicate some sovereign interests does not mean that the United States can seek

equitable relief whenever it asserts that any “sovereign

interest” is at stake. More importantly, the United

States’ position would produce a radical expansion of implied rights of action, because it will always be possible

for the executive branch to assert a “sovereign interest”

of some sort when it wants to sue a state (or an individual) for engaging in conduct that it dislikes. And there will

always be some “sovereign interest” at stake when the

executive asserts a preemption claim against a state or

its officials. See id. at 22 (“The United States has a sovereign interest in ensuring the supremacy of federal

law.”). The United States’ position will create an implied

cause of action in any situation in which the executive

alleges that a state law or policy is preempted by federal

law — an outcome that turns Armstrong on its head and

defies this Court’s warnings against the creation of new

implied rights of action.

III. THE UNITED STATES MAY NOT SUE TO

PREVENT PRIVATE-ENFORCEMENT LAWSUITS

OVER CONDUCT THAT IS UNPROTECTED BY

THE CONSTITUTION

The United States is demanding relief that would

prevent the filing of any lawsuits under SB 8. Yet many

lawsuits authorized by SB 8 are undeniably constitutional under existing precedent. These include:

Lawsuits against those who perform (or assist)

non-physician abortions;24

Lawsuits against those who perform (or assist)

post-viability abortions that are not necessary

to save the life or health of the mother;25

Lawsuits against those who use taxpayer money to pay for post-heartbeat abortions;26

Lawsuits against those who covertly slip abortion drugs into a pregnant woman’s food or

drink.27

And each of the intervenors has stated that they intend

to bring civil-enforcement lawsuits only in response to

violations of SB 8 that clearly fall outside the constitu24. 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).

25. See Roe, 410 U.S. at 164–65.

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

27. 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.

tional protections of Roe and Casey.28 Yet the district

court’s preliminary injunction blocks the Texas judiciary

from entertaining any lawsuits filed under SB 8 — even

in situations in which the lawsuit is undeniably constitutional and consistent with federal law. And the United

States is asking this Court to reinstate that overbroad

injunction and allow it to seek a final judgment that

would enjoin the enforcement of SB 8 across the board.

The United States may not sue to prevent enforcement of the indisputably constitutional 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

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, 646

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

part) (“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 and saving-construction requirements that compel reviewing

28. See note 5 and accompanying text.

courts to preserve 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.”).29

The district court thought it could disregard the severability requirements in SB 8 because this Court refused to enforce a severability clause in Whole Woman’s

Health v. Hellerstedt, 136 S. Ct. 2292, 2319 (2016). Pet.

App. 100a–101a; App. 109a–110a & n.95. But the Texas

legislature included a saving-construction clause, which

ensures that all constitutional applications of SB 8 will be

preserved in the event that the severability requirements are ignored:

If any court declares or finds a provision of this

chapter facially unconstitutional, when discrete

applications of that provision can be enforced

against a person, group of persons, or circum29. In like manner, the United States’ “preemption” and “intergovernmental immunity” claims can warrant only as-applied relief

against the enforcement of SB 8, limited to the circumstances in

which the enforcement of SB 8 will allegedly conflict with federal law.

stances without violating the United States

Constitution and Texas Constitution, those applications shall be severed from all remaining

applications of the provision, and the provision

shall be interpreted as if the legislature had

enacted a provision limited to the persons,

group of persons, or circumstances for which

the provision’s application will not violate the

United States Constitution and Texas Constitution.

See Tex. Health & Safety Code § 171.212(b-1) (emphasis

added). The Texas legislature also amended its Code

Construction Act to ensure that abortion statutes will be

construed, as a matter of state law, to apply only in situations that do not result in a violation of the United States

or Texas Constitutions:

If any statute that regulates or prohibits abortion is found by any court to be unconstitutional, either on its face or as applied, then all applications of that statute that do not violate the

United States Constitution and Texas Constitution shall be severed from the unconstitutional applications and shall remain enforceable, notwithstanding any other law, and the

statute shall be interpreted as if containing

language limiting the statute’s application to

the persons, group of persons, or circumstances for which the statute’s application will not

violate the United States Constitution and

Texas Constitution.

See Tex. Gov’t Code § 311.036(c) (emphasis added). The

district court and the United States have no way around

these saving-construction requirements,30 which they

have simply ignored throughout this litigation.

The United States appears to subscribe to a reverseSalerno principle that applies only to abortion statutes,31

where “facial invalidation” is required if there is even a

single unconstitutional or invalid application of the law,

and where severability clauses are disregarded whenever they appear in abortion legislation. The United States

appears to have been emboldened by this Court’s decision in Hellerstedt, which both the United States and district court regard as license 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, 539 U.S. 113, 121 (2003) (“Severab[ility] is of

course a matter of state law.”).

30. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory

Interpretation, 115 Harv. L. Rev. 2085 (2002); Adrian Vermeule,

Saving Constructions, 85 Geo. L.J. 1945 (1997).

31. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial

challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish

that no set of circumstances exists under which the Act would

be valid.”).

This is lawlessness. Litigants challenging abortion

statutes do not get special dispensations from statutory

severability requirements. Yet Hellerstedt is emboldening litigants and judges to defy severability provisions

whenever they want to categorically enjoin the enforcement of an abortion regulation, even as courts insist that

state-law severability requirements be enforced in every

other situation. See Barr, 140 S. Ct. at 2349 (plurality

opinion of Kavanaugh, J.); Hicks, 539 U.S. at 121;

Planned Parenthood of Greater Texas Surgical Health

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

(“Federal courts are bound to apply state law severability provisions.”); Voting for America, Inc. v. Steen, 732

F.3d 382, 398 (5th Cir. 2013) (“Severability is a state law

issue that binds federal courts.”). The Court should hold

that SB 8’s severability and saving-construction requirements must be enforced, and that they preclude the

United States from seeking an across-the-board injunction against SB 8’s enforcement. If the Court needs to

limit Hellerstedt to its facts to reach that result, then it

should not hesitate to do so.

IV. THE COURT SHOULD NOT CREATE AN

ABORTION-SPECIFIC EXEMPTION TO FEDERALCOURTS JURISPRUDENCE

State laws that create private civil remedies will often chill or deter constitutionally protected conduct. The

torts of defamation and intentional infliction of emotional

distress have subjected people to lawsuits for engaging

in constitutionally protected speech. See New York

Times Co. v. Sullivan, 376 U.S. 254 (1964); Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Modern

anti-discrimination laws subject business owners to private civil lawsuits if they refuse to participate in samesex weddings or provide services that violate their religious beliefs. See Nico Lang, Masterpiece Cakeshop

owner in court again for denying LGBTQ customer,

NBC News (April 15, 2020), https://nbcnews.to/3pm2xb3

(“Christian business owner Jack Phillips is being sued by

a transgender woman who tried to order a trans-themed

birthday cake from his Colorado bakery.”). And anti-gun

activists use state tort law to sue gun dealers and manufacturers, in an attempt to deter them from marketing a

constitutionally protected product. See, e.g., Mike Robinson, Chicago Targets Gun Industry in $433 Million

Public Nuisance Lawsuit, Associated Press (November

13, 1998).

But private rights of action have never been subject

to pre-enforcement challenge in federal district courts —

either by the affected individuals or by the United

States — because Congress has not authorized the remedies or causes of action needed for such pre-enforcement

litigation. When these types of laws raise constitutional

concerns (as they often do), the exclusive means of litigating the issue is to engage in the prohibited conduct,

assert the constitutional claims defensively when sued,

and appeal to this Court if the state judiciary rejects the

defense. See New York Times, 376 U.S. at 256–65; Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d

952, 958 (8th Cir. 2015). Federal courts must presume

that state courts will respect federal rights when decid-

ing cases,32 and this Court has no basis in fact or law to

presume that the Texas courts would reject valid constitutional defenses asserted in SB 8 litigation.

The United States does not even assert that the Texas judiciary will fail to honor federal constitutional defenses in SB 8 lawsuits; it just complains that SB 8 deters abortion providers from defying the law and inviting

litigation. But it is common that the risk of losing a constitutional defense in a private civil lawsuit will deter a

party from engaging in protected (or arguably protected) conduct — think of all the Christian wedding vendors

who feel compelled to participate in same-sex weddings

because they fear private lawsuits if they refuse. See Davis v. Ermold, 141 S. Ct. 3 (2020) (Thomas, J., respecting

the denial of certiorari). But the deterrence comes from

the uncertainty on whether the courts will ultimately accept their constitutional defense. See Arlene’s Flowers,

Inc. v. Washington, 141 S. Ct. 2884 (2021) (denying certiorari); Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2017) (leaving unresolved

most questions surrounding the constitutional rights of

wedding vendors who object to same-sex marriage).

What is deterring abortion providers is not the procedural structure of SB 8 or its threatened penalties, but

the uncertain status of the right to abortion given the

grant of certiorari in Dobbs v. Jackson Women’s Health

32. See Middlesex County Ethics Commission v. Garden State Bar

Ass’n, 457 U.S. 423, 431 (1982) (“Minimal respect for the state

processes, of course, precludes any presumption that the state

courts will not safeguard federal constitutional rights.”),

Organization, No. 19-1392. None of that can justify injunctive or declaratory relief directed at the Texas judiciary, which is doing nothing unlawful by hearing cases

filed under SB 8.

CONCLUSION

The district court’s preliminary-injunction order

should be vacated, and the case remanded with instructions to dismiss.

Respectfully submitted.

HEATHER GEBELIN HACKER

Hacker Stephens LLP

108 Wild Basin Road South

Suite 250

Austin, Texas 78746

(512) 399-3022

heather@hackerstephens.com

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue, Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

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

D. BRYAN HUGHES

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702-7221

(903) 581-1776

bryan@hughesfirm.com

October 27, 2021

Counsel for IntervenorRespondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.