Petitioners 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 OF AMERICA, PETITIONER

STATE OF TEXAS, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

SARAH E. HARRINGTON

Deputy Assistant Attorney

General

ERICA L. ROSS

Assistant to the Solicitor

General

MARK R. FREEMAN

MICHAEL S. RAAB

DANIEL WINIK

KYLE T. EDWARDS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

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, the United States of America, was the

plaintiff-appellee below.

Respondents were the defendant-appellant and

intervenor defendants-appellants below. They are the

State of Texas (the defendant-appellant) and Erick Graham, Jeff Tuley, and Mistie Sharp (the intervenor

defendants-appellants).

Oscar Stilley was an intervenor defendant in the district court, but did not appeal.

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions and rules involved ..................................... 2

Statement ...................................................................................... 2

A. Texas’s enactment of S.B. 8 ..................................... 3

B. S.B. 8’s impact ........................................................... 6

C. The Whole Woman’s Health Litigation .................. 7

D. Proceedings below..................................................... 8

Summary of argument ............................................................... 10

Argument..................................................................................... 12

I. The United States has authority to bring this suit

in equity .......................................................................... 13

A. The United States may sue in equity to

prevent Texas from nullifying this Court’s

precedents by thwarting judicial review .............. 14

1. The United States may sue in equity to

protect its sovereign interests ......................... 14

2. The United States has a sovereign interest

in preventing States from nullifying this

Court’s decisions by thwarting judicial

review ................................................................. 16

3. Texas’s remaining objections lack merit ........ 24

B. The United States may sue in equity to

vindicate its preemption and

intergovernmental immunity claims ..................... 27

II. The federal courts have authority to enter relief

preventing enforcement of S.B. 8 ................................ 30

A. The federal courts may enjoin Texas to

prevent enforcement of S.B. 8 ............................... 31

1. An injunction against Texas properly binds

private parties who file and maintain S.B. 8

suits with notice of the injunction ................... 33

(III)

Table of Contents—Continued:

Page

2. In these unusual circumstances, an

injunction against Texas properly binds

state court clerks and judges .......................... 37

3. An injunction against Texas properly binds

state officials who enforce S.B. 8

judgments .......................................................... 40

B. The federal courts may issue a declaratory

judgment against Texas ......................................... 42

Conclusion ................................................................................... 47

Appendix — Statutory provisions and rules.......................... 1a

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 527 U.S. 706 (1999).................................... 31

Arizona v. United States, 567 U.S. 387 (2012) ............. 16, 28

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015).............................................................. 27

BankAmerica Corp. Sec. Litig., In re,

263 F.3d 795 (8th Cir. 2001), cert. denied,

535 U.S. 970 (2002).............................................................. 38

Blackard v. Memphis Area Med. Ctr. for Women,

Inc., 262 F.3d 568 (6th Cir. 2001), cert. denied,

535 U.S. 1053 (2002)............................................................ 38

Calderon Jimenez v. Nielsen, 399 F. Supp. 3d 1

(D. Mass. 2018) .................................................................... 43

Chicago, Rock Island & Pac. Ry. Co. v. Schendel,

270 U.S. 611 (1926).............................................................. 44

Citizens United v. FEC, 558 U.S. 310 (2010) ...................... 41

City of Tacoma v. Taxpayers of Tacoma,

357 U.S. 320 (1958).............................................................. 44

Cooper v. Aaron, 358 U.S. 1 (1958) ...................................... 42

Cases—Continued:

Page

Correctional Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ............................................................... 27

District of Columbia v. Heller, 554 U.S. 570 (2008) ........... 41

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ................... 45

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991)........................................................ 35, 36

Felder v. Casey, 487 U.S. 131 (1988) .................................... 19

Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) ................. 39

General Motors Corp. v. Buha, 623 F.2d 455

(6th Cir. 1980)...................................................................... 38

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988).............................................................. 28

Goya Foods, Inc. v. Wallack Mgmt. Co.,

290 F.3d 63 (1st Cir.), cert. denied,

537 U.S. 974 (2002).............................................................. 34

Grupo Mexicano de Desarrollo S. A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) ............................... 27

Haywood v. Drown, 556 U.S. 729 (2009) ............................. 22

Heckman v. United States, 224 U.S. 413 (1912) ................. 15

Hinderlider v. La Plata River & Cherry Creek Ditch

Co., 304 U.S. 92 (1938) ........................................................ 44

Jackson Women’s Health Org. v. Dobbs,

951 F.3d 246 (5th Cir. 2020) ................................................. 3

Justices of the Supreme Court of Puerto Rico,

In re, 695 F.2d 17 (1st Cir. 1982) ........................... 17, 37, 38

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) ............ 20

Mayo v. United States, 319 U.S. 441 (1943) ....................... 28

MedImmune, Inc. v. Genetech, Inc.,

549 U.S. 118 (2007).............................................................. 26

Mitchum v. Foster, 407 U.S. 225 (1972) .............................. 19

Monsanto Co. v. Cornerstones Mun. Util. Dist.,

865 S.W.2d 937 (Tex. 1993) ................................................ 40

Cases—Continued:

Page

Muskrat v. United States, 219 U.S. 346 (1911) ...... 24, 25, 26

National Spiritual Assembly of Baha’is of the U.S.

Under Hereditary Guardianship, Inc. v. National

Spiritual Assembly of Baha’is of the U.S., Inc.,

628 F.3d 837 (7th Cir. 2010) ............................................... 35

Neagle, In re, 135 U.S. 1 (1890) ............................................ 28

Nova Health Sys. v. Gandy, 416 F.3d 1149

(10th Cir. 2005) .................................................................... 18

Organized Village of Kake v. Egan,

80 S. Ct. 33 (1959) ............................................................... 32

Patsy v. Board of Regents, 457 U.S. 496 (1982)............ 19, 21

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) ............................................................... 20

Pennsylvania v. West Virginia,

262 U.S. 553 (1923).............................................................. 31

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992)................................................ 2, 3, 16, 17

Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970) ........................ 26

Pulliam v. Allen, 466 U.S. 522 (1984) ................................. 37

Regal Knitwear Co. v. NLRB, 324 U.S. 9 (1945) ............... 33

Sanchez-Espinoza v. Reagan, 770 F.2d 202

(D.C. Cir. 1985) ................................................................... 43

Sanitary Dist. of Chicago v. United States,

266 U.S. 405 (1925)........................................................ 15, 26

Smith v. Allwright, 321 U.S. 649 (1944) .............................. 36

Steffel v. Thompson, 415 U.S. 452 (1974) ...................... 42, 43

Strickland v. Alexander, 772 F.3d 876

(11th Cir. 2014) .................................................................... 39

Taylor v. Sturgell, 553 U.S. 880 (2008) .......................... 43, 44

Texas v. Department of Labor, 929 F.3d 204

(5th Cir. 2019)...................................................................... 34

VII

Cases—Continued:

Page

Trump v. Vance, 140 S. Ct. 2412 (2020) .............................. 28

United States v. Alabama:

443 Fed. Appx. 411 (11th Cir. 2011) .............................. 31

691 F.3d 1269 (11th Cir. 2012), cert. denied,

569 U.S. 968 (2013) .............................................. 16, 27

United States v. American Bell Tel. Co.,

128 U.S. 315 (1888).............................................................. 15

United States v. Arizona, 703 F. Supp. 2d 980

(D. Ariz. 2010) ..................................................................... 32

United States v. Bird, 124 F.3d 667

(5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998)........... 20

United States v. Board of Cnty. Comm’rs,

843 F.3d 1208 (10th Cir. 2016), cert. denied,

138 S. Ct. 84 (2017) ............................................................. 27

United States v. California, 921 F.3d 865

(9th Cir. 2019), cert. denied, 141 S. Ct. 124 (2020) .... 27, 28

United States v. City of Arcata, 629 F.3d 986

(9th Cir. 2010)...................................................................... 27

United States v. City of Philadelphia,

644 F.2d 187 (3d Cir. 1980) .................................... 22, 23, 24

United States v. Hall, 472 F.2d 261 (5th Cir. 1972) ........... 34

United States v. Louisisana, 340 U.S. 899 (1950) .............. 32

United States v. Mattson, 600 F.2d 1295

(9th Cir. 1979)...................................................................... 22

United States v. Minnesota, 270 U.S. 181 (1926) ............... 26

United States v. Solomon, 563 F.2d 1121

(4th Cir. 1977)................................................................ 22, 24

United States v. South Carolina, 720 F.3d 518

(4th Cir. 2013)................................................................ 16, 27

United States v. State Water Res. Control Bd.,

988 F.3d 1194 (9th Cir. 2021) ............................................. 27

United States v. Texas, 340 U.S. 900 (1950) ....................... 32

VIII

Cases—Continued:

Page

United States v. Washington, 971 F.3d 856

(9th Cir. 2020), as amended, 994 F.3d 994

(9th Cir. 2021), petition for cert. pending,

No. 21-404 (filed Sept. 8, 2021) .................................... 27, 28

Virginia Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247 (2011) .............................................. 20

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658

(1979) .................................................................................... 44

Whole Woman’s Health v. Jackson:

No. 21-cv-616, 2021 WL 3821062

(W.D. Tex. Aug. 25, 2021) ........................................... 7

No. 21-50792, 2021 WL 3919252

(5th Cir. Aug. 29, 2021),

cert. before judgment granted,

No. 21-463 (Oct. 22, 2021) ........................................... 7

141 S. Ct. 2494 (2021) ............................................. passim

13 F.4th 434 (5th Cir. 2021) .............................. 7, 9, 37, 40

WXYZ, Inc. v. Hand, 658 F.2d 420 (6th Cir. 1981) ............ 38

Wyandotte Transp. Co. v. United States,

389 U.S. 191 (1967).............................................................. 15

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

Constitution, statutes, regulations, and rules:

U.S. Const.:

Art. III .................................................................. 26, 29, 39

Amend. XIV ..................................................... 9, 22, 23, 45

Declaratory Judgment Act:

28 U.S.C. 2201(a) ..........................................42, 43, 1a, 16a

28 U.S.C. 2202 .................................................................. 42

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

42 U.S.C. 2000b(b) ................................................................ 24

Statutes, regulations, and rules—Continued:

Page

42 U.S.C. 2000c-6(b) .............................................................. 24

Tex. Health & Safety Code (Sept. 1, 2021):

§ 171.0031 ......................................................................... 18

§ 171.062 ........................................................................... 18

§ 171.103 ........................................................................... 18

§ 171.153 ........................................................................... 18

§ 171.154(c) ....................................................................... 18

§ 171.203(b) .................................................................. 3, 4a

§ 171.204(a)................................................................... 3, 5a

§ 171.205(a)................................................................... 3, 6a

§ 171.206(b)(1) .............................................................. 4, 6a

§ 171.207(a)............................................................. 4, 18, 7a

§ 171.208(a)..................................................................... 4, 8

§ 171.208(a)(1) ............................................................ 18, 9a

§ 171.208(a)(2) ........................................................ 5, 18, 9a

§ 171.208(b) ............................................................ 5, 22, 9a

§ 171.208(c) ......................................................................... 5

§ 171.208(e)(3) .............................................................. 5, 9a

§ 171.208(e)(5) ........................................................ 5, 22, 9a

§ 171.208(i) ................................................................... 5, 9a

§ 171.208(j) ................................................................. 4, 10a

§ 171.209 ........................................................................... 18

§ 171.210 ................................................................... 22, 13a

Tex. Prop. Code Ann. § 52.004 (Sept. 1, 2021) .................... 40

28 C.F.R. 551.23(c) ................................................................ 29

Fed. R. Civ. P:

Rule 57 ...................................................................... 42, 16a

Rule 65 .............................................................................. 11

Rule 65(d) ................................................................... 33, 38

Rule 65(d)(2) .............................................................. 33, 34

Rule 65(d)(2)(B) ......................................................... 11, 40

Rules—Continued:

Page

Rule 65(d)(2)(C) ................................................... 11, 34, 40

Tex. R. Civ. P. 622 (Sept. 1, 2021) ........................................ 40

Miscellaneous:

Edwin Borchard, The Federal Declaratory

Judgments Act, 21 Va. L. Rev. 35 (1934) ......................... 43

3 Kenneth Culp Davis, Administrative Law Treatise

(1958) .................................................................................... 26

Office of Refugee Resettlement, Administration for

Children & Families, U.S. Dep’t of Health &

Human Servs., Field Guidance #21—Compliance

with Garza Requirements for Pregnant

Unaccompanied Children in Texas (Oct. 1, 2021),

https://go.usa.gov/xMJME ................................................ 30

18A Charles Alan Wright et al, Federal Practice and

Procedure (3d ed. 2017)...................................................... 44

In the Supreme Court of the United States

No. 21-588

UNITED STATES OF AMERICA, PETITIONER

STATE OF TEXAS, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a) is not

reported, but is available at 2021 WL 4706452. The

opinion of the district court (Pet. App. 2a-114a) is not

yet reported, but is available at 2021 WL 4593319. 1

JURISDICTION

The district court entered a preliminary injunction

on October 6, 2021. Appeals from that order were docketed in the court of appeals on October 7, 2021. The court

of appeals’ jurisdiction rests on 28 U.S.C. 1292(a)(1). On

October 14, 2021, the court of appeals stayed the preliminary injunction. Pet. App. 1a. On October 18, 2021,

the United States filed an application to vacate the stay.

On October 22, 2021, this Court treated the application

References to the “Pet. App.” are to the Appendix to the United

States’ Application in No. 21A85.

(1)

as a petition for a writ of certiorari before judgment,

granted the petition, and deferred consideration of the

application to vacate the stay. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1) and 2101(e).

STATUTORY PROVISIONS AND RULES INVOLVED

Pertinent statutory provisions and rules are reproduced in an appendix to this brief. App., infra, 1a-20a.

STATEMENT

For half a century, this Court has held that “a State

may not prohibit any woman from making the ultimate

decision to terminate her pregnancy before viability.”

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

879 (1992) (plurality opinion); accord Roe v. Wade, 410

U.S. 113, 163-164 (1973). Texas Senate Bill 8 (S.B. 8)

defies those precedents and the constitutional principles they articulate by prohibiting abortion long before

viability—indeed, before many women even realize they

are pregnant.

Texas is not the first State to question Roe and Casey. But rather than forthrightly defending its law and

asking this Court to revisit its decisions, Texas crafted

an “unprecedented” structure to thwart judicial review.

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

2496 (2021) (Roberts, C.J., dissenting).

Seeking to avoid traditional pre-enforcement suits

against state officials, Texas “delegated enforcement”

of S.B. 8 “to the populace at large” through a system of

bounties. Whole Woman’s Health, 141 S. Ct. at 2496

(Roberts, C.J., dissenting). And in an effort to frustrate

constitutional defenses, Texas designed S.B. 8 enforcement suits to be so multiplicitous and burdensome that

the threat of enforcement deters the provision of covered abortions altogether. Thus far, S.B. 8 has worked

as intended: It has made abortion effectively unavailable in Texas after roughly six weeks of pregnancy.

The United States brought this suit after it became

apparent that Texas had succeeded in nullifying this

Court’s decisions within Texas’s borders by thwarting

other avenues of judicial review. The United States

sought and obtained a preliminary injunction preventing enforcement of S.B. 8. But the law is again in effect

because the injunction has been stayed pending appeal.

Texas’s suspension of a constitutional right recognized

by this Court’s precedents thus remains ongoing.

A. Texas’s Enactment of S.B. 8

1. S.B. 8 provides that “a physician may not knowingly perform or induce an abortion” after cardiac activity is detected in the embryo. Tex. Health & Safety

Code §§ 171.203(b), 171.204(a). 2 Cardiac activity begins

at about six weeks of pregnancy, as measured from a

woman’s last menstrual period—that is, just two weeks

after a woman may first miss her period, and roughly

four months before viability. Pet. App., 3a-4a, 6a-7a.

S.B. 8 contains no exception for pregnancies resulting

from rape or incest. And it provides only a limited exception for “medical emergenc[ies]” that “prevent[]

compliance with” the law. Tex. Health & Safety Code

§ 171.205(a).

Because this Court has long held that a State may

not prohibit any woman from choosing to terminate a

pregnancy before viability, see Casey, 505 U.S. at 846,

federal courts have uniformly enjoined similar “heartbeat laws” in suits against the state officials traditionally charged with enforcing them. See, e.g., Jackson

All references in this brief to the Texas Code and Rules of Procedure are to the versions in effect as of September 1, 2021.

Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th

Cir. 2020) (per curiam).

Seeking to avoid that result, Texas provided that

S.B. 8’s substantively equivalent prohibition “shall be

enforced exclusively through * * * private civil actions”

rather than by the State’s executive branch or local officials. Tex. Health & Safety Code § 171.207(a). Those

suits may be brought against anyone who performs or

aids, or intends to perform or aid, a prohibited abortion.

Id. § 171.208(a). And they may be brought by “[a]ny

person” other than a state or local official or “a person

who impregnated the abortion patient through an act

of rape” or “incest.” Id. § 171.208(a) and ( j). An S.B. 8

plaintiff need not have any connection to the abortion,

or even reside in Texas. Ibid. Texas has thus “delegated

enforcement of [S.B. 8’s] prohibition to the populace at

large.” Whole Woman’s Health, 141 S. Ct. at 2496 (Roberts, C.J., dissenting). The evident purpose of that “unprecedented” scheme, ibid., is to avoid traditional preenforcement suits against state officers under 42 U.S.C.

1983 and Ex parte Young, 209 U.S. 123 (1908).

In theory, providers could perform prohibited abortions and then assert S.B. 8’s unconstitutionality as a

defense in the resulting enforcement actions. But that

path is not even theoretically available to pregnant

women—whose rights S.B. 8 directly violates—because

they cannot be sued under the law. Tex. Health &

Safety Code § 171.206(b)(1). And S.B. 8 is designed to

ensure that the threat of enforcement suits deters providers from performing covered abortions altogether.

A doctor who performs a single covered abortion

faces a virtually unlimited number of potential S.B. 8

suits—as do nurses, receptionists, and anyone else who

“aids” or “abets” her. Tex. Health & Safety Code

§ 171.208(a)(2). S.B. 8’s special venue rules allow those

suits to be brought in any or all of Texas’s 254 counties.

Id. § 171.208(b). If one of those suits succeeds, S.B. 8

requires the court to award the plaintiff a bounty of “not

less than” $10,000 for each abortion, plus mandatory

costs and attorney’s fees. Ibid. The law also requires

“injunctive relief sufficient to prevent the defendant

from violating [S.B. 8].” Ibid. And it raises the specter

of retroactive liability by purporting to bar defendants

from asserting reliance on precedent that was later

“overruled.” Id. § 171.208(e)(3).

Even if a provider defeats an S.B. 8 suit on constitutional grounds, the law limits the relief that successful

defense would afford. Unlike a successful S.B. 8 plaintiff, a successful defendant cannot recover her costs or

attorney’s fees. Tex. Health & Safety Code § 171.208(i).

In addition, S.B. 8 bars non-mutual issue and claim preclusion. Id. § 171.208(e)(5); see id. § 171.208(c) (providing that the result of a prior suit precludes relief only if

“the defendant previously paid the full amount of statutory damages” for the “particular abortion” at issue).

That means that even if a provider repeatedly prevails

against S.B. 8 suits, she can be sued—and forced to bear

the resulting expenses—again and again by new plaintiffs, even for the very same abortion.

2. S.B. 8’s architects have candidly acknowledged

that the law was designed to deter constitutionally protected abortions while evading judicial review. Pet.

App. 51a. One of S.B. 8’s principal proponents in the

Texas Senate lauded the statute’s “elegant use of the

judicial system” and explained that its structure was intended to avoid the fate of other “heartbeat” bills that

federal courts have held unconstitutional and enjoined.

Id. at 51a & n.34 (citations omitted); see C.A. App. 107,

111. And an attorney who helped draft the law described it as an effort to “counter the judiciary’s constitutional pronouncements” on abortion. Pet. App. 51a

n.34 (citation omitted); see C.A. App. 116.

B. S.B. 8’s Impact

S.B. 8 took effect on September 1, 2021. The district

court found that it virtually eliminated access to abortion in Texas after six weeks of pregnancy. Pet. App.

77a. Indeed, the court observed that Texas could cite—

and the record revealed—“only one case” of a postcardiac-activity abortion being performed “in postS.B. 8 Texas.” Id. at 86a (emphasis omitted).

Texans with sufficient means have traveled hundreds of miles to obtain abortions in other States—often

making multiple trips to comply with those States’ own

abortion regulations. Pet. App. 94a; see id. at 87a-97a.

The district court found that the influx of patients from

Texas has overwhelmed providers in Oklahoma, Kansas, Colorado, New Mexico, and as far away as Nevada.

Id. at 91a-97a. Clinics in Oklahoma, for example, have

been “forced to delay patients’ abortions because of the

volume of appointments needed.” Id. at 91a (citation

omitted); see id. at 91a n.72; see also id. at 97a. “And

with the overlapping state regulation regimes, a delayed abortion can mean the difference between a medication abortion” and “a procedural abortion, if a patient

is able to obtain an abortion at all.” Id. at 94a; see id. at

94a n.79.

In addition, many Texans seeking abortions cannot

travel to other States “for any number of reasons,” including financial constraints; childcare, job, and school

responsibilities; and “dangerous family situations.” Pet.

App. 88a; see id. at 87a n.64, 88a n.66. As the district

court found, women who cannot leave the State are

being forced to decide whether to have an abortion “before they are truly ready to do so.” Id. at 84a (citation

omitted). And if they do not learn they are pregnant

until after six weeks, women who cannot travel “are being forced to carry their pregnancy to term against

their will or to seek ways to end their pregnancies on

their own,” “with potentially devastating consequences.”

Id. at 88a, 106a (citations omitted); see id. at 93a n.76.

C. The Whole Woman’s Health Litigation

Before S.B. 8 took effect, abortion providers and patient advocates sued several state officials and an individual who had expressed an intent to bring S.B. 8 suits.

The district court denied the state defendants’ motion

to dismiss. Whole Woman’s Health v. Jackson, No. 21cv-616, 2021 WL 3821062 (W.D. Tex. Aug. 25, 2021). After the defendants appealed, the Fifth Circuit stayed

the district court’s proceedings and rejected the plaintiffs’ request for an injunction pending appeal. Whole

Woman’s Health v. Jackson, No. 21-5079, 2021 WL

3919252 (Aug. 29, 2021) (per curiam), cert. before judgment granted, No. 21-463 (Oct. 22, 2021).

The Fifth Circuit later explained that, in its view, the

claims against state officials were barred by Texas’s

sovereign immunity. Whole Woman’s Health v. Jackson, 13 F.4th 434, 438 (2021) (per curiam). The court

acknowledged that state officials may be sued under Ex

parte Young’s exception to state sovereign immunity,

but it found that exception inapplicable because it concluded that the executive defendants had no role in enforcing S.B. 8 and that state judges and clerks are not

proper defendants under Ex parte Young. Id. at 441-445.

Over the dissent of four Justices, this Court declined

to grant an injunction or vacate the Fifth Circuit’s stay.

Whole Woman’s Health, 141 S. Ct. at 2495. The Court

explained that the private plaintiffs had “raised serious

questions regarding the constitutionality of the Texas

law,” but it determined that they had not “carried their

burden” of showing a likelihood of success on the merits

because of “complex and novel antecedent procedural

questions” resulting from the law’s unprecedented

design—principally, whether the individual officials

named in the lawsuit were proper defendants under Ex

parte Young. Ibid.; see ibid. (noting that the sole private defendant had filed an affidavit disclaiming any intent to enforce S.B. 8).

D. Proceedings Below

1. Eight days after S.B. 8 took effect, the United

States brought this suit against Texas. The complaint

includes three claims for relief: Count 1 alleges that

S.B. 8 violates the Fourteenth Amendment and the Supremacy Clause; Count 2 alleges that it is preempted to

the extent it prohibits abortions that federal agencies

are charged with facilitating, funding, or reimbursing;

and Count 3 alleges that it violates the federal government’s intergovernmental immunity to the extent it

regulates the activities of the federal government and

its contractors and grantees. Compl. ¶¶ 80-91. The

complaint seeks, inter alia, “a declaratory judgment

stating that S.B. 8 is invalid, null, and void”; “[a] preliminary and permanent injunction against the State of

Texas—including all of its officers, employees, and

agents, including private parties who would bring suit

under S.B. 8—prohibiting any and all enforcement of

S.B. 8”; and “[a]ny and all other relief necessary to fully

effectuate” the injunction. Compl. 26.

On October 6, the district court granted the United

States’ motion for a preliminary injunction. Pet. App.

2a-114a. The court explained that the United States has

authority to bring this suit, id. at 25a-57a; that S.B. 8

plainly violates the Fourteenth Amendment and the

doctrines of preemption and intergovernmental immunity, id. at 72a-105a; that a preliminary injunction is necessary to prevent irreparable harm, id. at 105a-108a;

and that the balance of equities and the public interest

favor an injunction, id. at 108a-109a.

The preliminary injunction forbids “the State of

Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf,” from “enforcing [S.B. 8], including accepting or

docketing, maintaining, hearing, resolving, awarding

damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit

brought pursuant to” the law. Pet. App. 110a. The district court declined to stay the injunction pending appeal. Id. at 113a.

2. Texas and the intervenor respondents (three individuals who seek to bring S.B. 8 enforcement suits)

appealed and moved for a stay pending appeal. Pet.

App. 1a, 16a. On October 8—two days after the district

court’s order—the Fifth Circuit granted an administrative stay. Order 1. On October 14, a divided panel

stayed the preliminary injunction pending an expedited

appeal. Pet. App. 1a. Although this suit is brought by

the United States (rather than private plaintiffs)

against the State of Texas (rather than individual state

officials), the panel majority’s single-sentence explanation for its decision simply invoked “the reasons stated

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

Cir. 2021), and Whole Woman’s Health v. Jackson, 141

S. Ct. 2494 (2021).” Ibid. Judge Stewart dissented. Ibid.

3. On October 18, the United States filed an application asking this Court to vacate the court of appeals’

stay of the district court’s preliminary injunction. On

October 22, the Court deferred consideration of the application to vacate the stay; treated the application as a

petition for a writ of certiorari before judgment; and

granted the petition “limited to the following question:

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.” No. 21A85 Order 1.

SUMMARY OF ARGUMENT

The United States has authority to bring this suit in

equity against the State of Texas. The federal courts, in

turn, have authority to grant relief preventing enforcement of S.B. 8 and halting Texas’s ongoing nullification

of this Court’s precedents.

I. For more than a century, the Court has recognized that, in appropriate circumstances, the United

States may sue in equity to protect its interests. This

suit rests on two such interests.

First, the United States has a manifest sovereign interest in protecting the supremacy of the Constitution

and preventing a State from nullifying this Court’s

precedents by thwarting judicial review under Section

1983 and Ex parte Young—the mechanisms that Congress and this Court have long recognized as essential

to protect federal constitutional rights from state interference. That sort of nullification is exactly what Texas

set out to achieve, and what it has accomplished for two

months and counting. The United States does not claim

authority to sue merely because a State has violated its

citizens’ constitutional rights. But S.B. 8’s unprecedented attack on the supremacy of the Constitution as

interpreted by this Court harms distinct sovereign

interests of the sort that have long been recognized as

a basis for a suit in equity.

Second, the United States has an interest in halting

S.B. 8’s interference with the federal government’s own

programs, employees, and contractors. Many federal

programs require federal employees and contractors to

arrange, facilitate, or pay for abortions in some circumstances. S.B. 8’s prohibition on pre-viability abortion

poses an obstacle to those operations. And the law also

purports to expose federal employees and contractors

to liability for carrying out their federal duties. That

interference with the United States’ own operations

provides another long-established basis for suit.

II. The federal courts have authority to award effective relief in this suit by the United States against the

State. Texas’s assertion that federal courts are powerless to halt its ongoing constitutional violations is both

wrong and dangerous.

Under Federal Rule of Civil Procedure 65, an injunction against Texas can bind the State’s “officers, agents,

servants, employees, and attorneys,” as well as “other

persons who are in active concert or participation” with

the State or with those other specified individuals. Fed.

R. Civ. P. 65(d)(2)(B) and (C). That remedial authority

offers multiple appropriate pathways to preventing

S.B. 8’s enforcement: An injunction can reach the plaintiffs who act in concert with the State by exercising delegated enforcement authority to bring S.B. 8 suits; the

clerks who accept those suits for filing; the judges who

process or decide them; and other state or local officials

who would enforce the resulting judgments.

Some of those forms of relief are unusual. But so is

S.B. 8. In fact, it is “not only unusual, but unprecedented.” Whole Woman’s Health v. Jackson, 141 S. Ct.

2494, 2495 (2021) (Roberts, C.J., dissenting). And having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not

be heard to complain when the federal courts exercise

remedial authorities that are usually unnecessary.

Finally, the federal courts may also grant declaratory relief because the United States’ authority to bring

this action in equity also allows it to seek a declaratory

judgment. A declaratory judgment against Texas

would offer some relief because it would bind the plaintiffs who exercise the State’s delegated authority by

bringing S.B. 8 suits, and thus provide another reason

why those suits must be dismissed. But a declaratory

judgment is not a substitute for preliminary and permanent injunctive relief preventing enforcement of S.B. 8.

To halt the irreparable injury arising from Texas’s defiance of this Court’s precedent and systematic denial

of constitutional rights within the State’s borders, this

Court should grant the government’s pending application to vacate the Fifth Circuit’s stay of the preliminary

injunction.

ARGUMENT

S.B. 8 was designed to nullify this Court’s precedents

and to shield that nullification from judicial review. So

far, it has worked: The threat of a flood of S.B. 8 suits

has effectively eliminated abortion in Texas at a point

before many women even realize they are pregnant,

denying a constitutional right the Court has recognized

for half a century. Yet Texas insists that the Court must

tolerate the State’s brazen attack on the supremacy of

federal law because S.B. 8’s unprecedented structure

leaves the federal Judiciary powerless to intervene.

If Texas is right, no decision of this Court is safe.

States need not comply with, or even challenge,

precedents with which they disagree. They may simply

outlaw the exercise of whatever constitutional rights

they disfavor; disclaim enforcement by state officials;

and delegate the State’s enforcement authority to members of the general public by empowering and incentivizing them to bring a multitude of harassing actions

threatening ruinous liability—or, at a minimum, prohibitive litigation costs. On Texas’s telling, no one could

sue to stop the resulting nullification of the Constitution. And although Texas is the first State to adopt this

ploy, other States are already regarding S.B. 8 as a

model. Pet. App. 112a.

This Court should reject Texas’s asserted power to

nullify federal law and hold that the United States has

authority to bring this suit in equity and to obtain effective relief preventing enforcement of S.B. 8.

I. THE UNITED STATES HAS AUTHORITY TO BRING

THIS SUIT IN EQUITY

The United States has challenged S.B. 8 to vindicate

two distinct interests. First, S.B. 8 offends the United

States’ sovereign interest in preserving the supremacy

of federal law because it seeks to nullify federal constitutional rights recognized by this Court’s precedents

and to shield that nullification from the traditional

mechanisms of judicial review endorsed by Congress

and this Court. Second, S.B. 8 is preempted and contrary to the doctrine of intergovernmental immunity because it interferes with the activities of the federal government’s own employees and contractors. The United

States has authority to seek equitable relief to vindicate

both of those interests.

A. The United States May Sue In Equity To Prevent Texas

From Nullifying This Court’s Precedents By Thwarting

Judicial Review

The United States has authority to challenge S.B. 8

because the law injures its sovereign interest in the supremacy of the Constitution and the availability of the

judicial review mechanisms that Congress and this

Court have long deemed essential to protect federal

constitutional rights from state interference.

1. The United States may sue in equity to protect its

sovereign interests

This Court has long held that, even absent express

statutory authority, the United States may, in appropriate circumstances, bring a suit in equity to vindicate the

interests of the national government under the Constitution. The canonical precedent recognizing that authority is In re Debs, 158 U.S. 564 (1895).

In Debs, the United States sought and obtained an

injunction against the Pullman rail strike, which had

“forcibly obstructed” interstate commerce. 158 U.S. at

577. In recognizing the United States’ authority to seek

that relief, this Court reasoned that “[e]very government, entrusted, by the very terms of its being, with

powers and duties to be exercised and discharged for

the general welfare, has a right to apply to its own

courts for any proper assistance in the exercise of the

one and the discharge of the other.” Id. at 584.

The Court emphasized that “it is not the province of

the government to interfere in any mere matter of private controversy between individuals.” Debs, 158 U.S.

at 586. But the Court explained that “whenever the

wrongs complained of are such as affect the public at

large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation, and

concerning which the Nation owes the duty to all the

citizens of securing to them their common rights, then

the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it

from the courts.” Ibid.

In sustaining the United States’ authority to sue in

Debs, this Court noted the United States’ proprietary

interest in the mail carried by railroads, but expressly

declined to “place [its] decision upon th[at] ground

alone.” 158 U.S. at 584; see id. at 570 (injunction not

limited to mail trains). Nor did the Court rely solely

upon the federal government’s statutory authority over

rail commerce, or the existence of a nuisance. See id. at

584-586. Rather, Debs endorsed and embodied the

“general rule that the United States may sue to protect

its interests.” Wyandotte Transp. Co. v. United States,

389 U.S. 191, 201 (1967).

Consistent with the principles reflected in Debs, this

Court has recognized the federal government’s authority to seek equitable relief against threats to various

other sovereign interests even absent an express statutory cause of action. The Court has, for example, sustained the United States’ right to sue to protect the public from fraudulent patents, United States v. American

Bell Tel. Co., 128 U.S. 315, 367-368 (1888); to protect Indian tribes, Heckman v. United States, 224 U.S. 413,

438-439 (1912); and to carry out the Nation’s treaty obligations, Sanitary Dist. of Chi. v. United States, 266

U.S. 405, 426 (1925).

More recently, the United States has sued in equity

to challenge as preempted state laws that interfere with

the federal government’s “broad, undoubted power over

the subject of immigration.” Arizona v. United States,

567 U.S. 387, 394 (2012); see, e.g., United States v. South

Carolina, 720 F.3d 518 (4th Cir. 2013); United States v.

Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied,

569 U.S. 968 (2013). The parties in those cases took it

for granted that the United States could sue in equity

even without express statutory authority, and in Arizona this Court expressed no doubt about the propriety

of such suits in affirming an injunction barring enforcement of several provisions of the challenged state law.

567 U.S. at 416.

2. The United States has a sovereign interest in preventing States from nullifying this Court’s decisions

by thwarting judicial review

S.B. 8’s unprecedented affront to the supremacy of

the Constitution places this case well within the United

States’ authority to sue in equity to protect its sovereign

interests. Texas designed S.B. 8 to violate the Constitution, as interpreted by this Court, and to thwart judicial review. The United States does not claim, and the

district court did not recognize, authority to sue whenever a State enacts an unconstitutional law. Pet. App.

49a-50a. Rather, the United States sues to vindicate a

distinct sovereign interest in ensuring that a State cannot nullify federal constitutional rights recognized by

this Court’s decisions by insulating a clearly unconstitutional statute from judicial review.

a. S.B. 8 is not simply a law of questionable constitutionality; it defies this Court’s precedents by design.

This Court has long recognized that the Constitution

protects a woman’s right “to have an abortion before viability and to obtain it without undue interference from

the State.” Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 846 (1992). Because S.B. 8 bans abortion several months before viability, it is unconstitutional without recourse to Casey’s undue-burden standard. Ibid.;

see id. at 878-879 (plurality opinion); see also, e.g., Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248

(5th Cir. 2020) (per curiam). But even if the undueburden standard applied, S.B. 8 would fail it. By exposing abortion providers to crippling liability, thwarting

pre-enforcement review, and creating an incentive for

countless private parties to sue providers repeatedly

under skewed procedures favoring plaintiffs, the law

aims to chill the provision of constitutionally protected

abortion care. See pp. 3-6, supra. That is the exact effect S.B. 8 has produced. The resulting near-total unavailability of abortion in Texas after six weeks of

pregnancy—before many women even realize they are

pregnant—is an undue burden by any measure. See Casey, 505 U.S. at 878 (plurality opinion).

All of this is essentially undisputed. Throughout this

litigation, the State has not seriously argued that S.B. 8

complies with this Court’s decisions. Texas said not one

word about S.B. 8’s constitutionality in the Fifth Circuit. And when it finally addressed the merits of the law

in its stay briefing in this Court, the State’s primary argument (Appl. Opp. 42-43) was not that S.B. 8 complies

with the Court’s precedents, but that the Court should

overrule them. That gives the game away: S.B. 8 is unconstitutional under the Court’s precedents, and plainly

so.

When other States have enacted equivalent prohibitions on abortion, courts have enjoined them in traditional pre-enforcement suits against the state officials

charged with enforcing the laws. See, e.g., Dobbs, 951

F.3d at 248. In that situation—as in the vast majority

of others—the federal judicial system works as Congress and this Court intended. Individuals can vindicate their constitutional rights through the mechanisms

for federal judicial review that Congress adopted in

42 U.S.C. 1983 and this Court recognized in Ex parte

Young, 209 U.S. 123 (1908). And the States can ask this

Court to reconsider precedents with which they disagree. There is no danger of constitutional nullification—

and thus no impairment of the United States’ sovereign

interest in the supremacy of the Constitution and the

availability of federal courts to vindicate constitutional

rights.

b. Rather than follow that conventional path, Texas

sought to take matters into its own hands by thwarting

judicial review through an unprecedented enforcement

scheme. Although Texas charges state officials with enforcing other abortion laws, see, e.g., Tex. Health &

Safety Code §§ 171.0031, 171.103, 171.153, 171.154(c);

see also id. § 171.062 (enforcement by Texas Medical

Board), the State disclaimed any such authority for S.B.

8, id. § 171.207(a). Instead, the State delegated its enforcement authority to the public at large—giving any

person, without any connection to the abortion, a cause

of action against anyone who “performs or induces” a

covered abortion, “aids or abets” such an abortion, or

even simply intends to do so. Id. § 171.208(a)(1) and (2). 3

The evident purpose of this scheme was to impose

exactly the same substantive prohibition that has been

enjoined when adopted by other States while avoiding

pre-enforcement review in suits against state officers

S.B. 8’s scheme of delegated public enforcement bears no resemblance to prior state laws that have conferred limited private rights

of action on parties with a direct connection to a prohibited abortion.

See, e.g., Nova Health Sys. v. Gandy, 416 F.3d 1149, 1152 (10th Cir.

2005) (describing an Oklahoma statute making abortion providers

liable for certain medical costs resulting from an abortion performed on a minor without parental consent).

under Section 1983 and Ex parte Young. See Whole

Woman’s Health, 141 S. Ct. 2494, 2496 (2021) (Roberts,

C.J., dissenting). Texas also sought to thwart effective

post-enforcement review by adopting a liability scheme

so lopsided that the mere threat of S.B. 8 suits dissuades providers from engaging in prohibited conduct.

The State thus sought to create a situation where pregnant women have no access to constitutionally protected

abortion care and no mechanism whatsoever to challenge that obvious violation of their constitutional

rights.

Texas’s effort to nullify this Court’s precedents by

thwarting judicial review threatens the United States’

sovereign interest in ensuring the supremacy of the

Constitution. In enacting Section 1983, Congress created “a uniquely federal remedy against incursions

upon rights secured by the Constitution and laws of the

Nation.” Felder v. Casey, 487 U.S. 131, 139 (1988) (citation and ellipsis omitted). Section 1983 “interpose[s]

the federal courts between the States and the people, as

guardians of the people’s federal rights.” Mitchum v.

Foster, 407 U.S. 225, 242 (1972). And by specifically authorizing a “suit in equity,” 42 U.S.C. 1983, Congress

sought to ensure that individuals “threatened” with a

“deprivation of constitutional rights” would have “immediate access to the federal courts notwithstanding

any provision of state law to the contrary.” Patsy v.

Board of Regents, 457 U.S. 496, 504 (1982). S.B. 8 was

designed to frustrate “[t]he ‘general rule’ * * * that

plaintiffs may bring constitutional claims under § 1983”

rather than being forced to assert their rights in state

court. Knick v. Township of Scott, 139 S. Ct. 2162, 2172

(2019) (citation omitted); see id. at 2172-2173.

This Court has similarly emphasized that the equitable action recognized in Ex parte Young is “necessary

to permit the federal courts to vindicate federal rights

and hold state officials responsible to ‘the supreme authority of the United States.’ ” Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (citation

omitted); accord Virginia Office for Prot. & Advocacy

v. Stewart, 563 U.S. 247, 254 (2011). Like Section 1983,

Ex parte Young ensures that the federal courts are

“open[]” to protect individuals’ “legal rights” without

requiring them to subject themselves to burdensome

enforcement proceedings in state court. 209 U.S. at 165.

By thwarting those traditional mechanisms for judicial review, S.B. 8 severely harms the United States’

sovereign interests. Indeed, it is difficult to imagine a

more direct affront to the interests of the national government in the supremacy of the Constitution than this:

A state law that nullifies a constitutional right affirmed

by this Court, and does so by attempting to block the

mechanisms for judicial review that Congress and this

Court have recognized as essential to protecting federal

rights from state interference.

The consequences of Texas’s nullification, moreover,

are not confined to its own borders. Pervasive interference with access to abortion in one State affects “[t]he

availability of abortion-related services in the national

market” by forcing women to travel to clinics in other

States and burdening “the availability of abortion services” in neighboring jurisdictions. United States v.

Bird, 124 F.3d 667, 678, 681 (5th Cir. 1997) (citation

omitted), cert. denied, 523 U.S. 1006 (1998). As the district court found—and Texas has not contested—S.B. 8

has had exactly that effect. For example, the court

credited a declaration from a provider at two clinics in

Oklahoma who stated that in the first twelve days S.B.

8 was in effect, “we have seen an overall staggering

646% increase of Texan patients per day,” with patients

from Texas “taking up at least 50% (and on some days

nearly 75%) of the appointments we have available at

our Oklahoma health centers.” Pet. App. 92a; C.A. App.

199; see Pet. App. 93a-97a (describing effects on clinics

in Kansas, Colorado, New Mexico, and Nevada).

c. Texas has suggested (e.g., Appl. Opp. 34-35) that

it has not truly thwarted judicial review because providers could violate S.B. 8 and then raise the law’s unconstitutionality as a defense in enforcement suits. But

that is no help for the women whose rights S.B. 8 most

directly violates, because they cannot be defendants in

S.B. 8 suits. And it is also no answer to Section 1983

and Ex parte Young, which recognize that even where

potential defendants might be able to “interpose” the

unconstitutionality of a law as a “defense in an action to

recover penalties,” equity permits them to sue rather

than taking the risk of violating such a statute,

“await[ing] proceedings” in state court, and accepting

the “peril of large loss” and “great risk of fines * * * if

it should be finally determined that the act was valid.”

Ex parte Young, 209 U.S. at 165; see Patsy, 457 U.S. at

504.

In any event, Texas’s argument rings hollow. The

State designed S.B. 8 to ensure that the threat of enforcement suits will deter covered abortions, such that

enforcement suits and the opportunity to raise a constitutional defense will be rare. The statute exposes providers and their staff to an unlimited number of suits for

each abortion, which can be brought in diverse and inconvenient fora. If one of those suits succeeds, the statute requires the court to award a bounty of “not less

than $10,000” per abortion, plus costs and attorney’s

fees—and mandatory injunctive relief against performing or aiding or abetting any covered abortion in the future. Tex. Health & Safety Code § 171.208(b). And

even if the provider successfully defeats all of the suits

on the ground that S.B. 8 is unconstitutional, she has no

way to recover the attendant litigation expenses—

which could far exceed $10,000 for every abortion performed.

Indeed, virtually every aspect of S.B. 8’s structure

manifests overt hostility to a defense based on the constitutional right to abortion recognized by this Court.

S.B. 8 defendants are subject to uniquely unfavorable

rules governing matters such as venue, Tex. Health &

Safety Code § 171.210; fee-shifting, id. § 171.208(b) and

(i); and preclusion, id. § 171.208(e)(5). The statute likewise purports to severely restrict the substantive terms

on which a provider can assert a constitutional defense.

Id. § 171.209. Far from an effective means of judicial

review, therefore, S.B. 8 suits are themselves an improper attempt to undermine federal rights: “States retain substantial leeway to establish the contours of their

judicial systems,” but “they lack authority to nullify a

federal right or cause of action they believe is inconsistent with their local policies.” Haywood v. Drown,

556 U.S. 729, 736 (2009). That is exactly what Texas has

sought to do.

d. Texas has also invoked lower-court decisions

holding that the mere fact that a State has violated its

citizens’ Fourteenth Amendment rights does not authorize the United States to sue for equitable relief.

See, e.g., United States v. City of Philadelphia, 644 F.2d

187 (3d Cir. 1980); United States v. Mattson, 600 F.2d

1295 (9th Cir. 1979); United States v. Solomon, 563 F.2d

1121 (4th Cir. 1977). But this suit does not simply seek

to enforce such rights; rather, it seeks to vindicate a distinct interest of the United States in protecting the supremacy of the Constitution by preventing a State from

enacting a clearly unconstitutional law while simultaneously thwarting effective judicial review through the

mechanisms long recognized as essential by Congress

and this Court. The considerations the lower courts invoked in holding that the United States lacks general

authority to “sue to enjoin violations of individuals’

fourteenth amendment rights,” City of Philadelphia,

644 F.2d at 201, support the United States’ authority to

sue here.

First, those courts emphasized that Congress had

adopted a “comprehensive remedial scheme” for the enforcement of Fourteenth Amendment rights, consisting

primarily of the right to “sue state officials for damages

and injunctive relief ” under Section 1983 and related

statutes. City of Philadelphia, 644 F.2d at 192, 199-200.

But the very point of S.B. 8’s unprecedented enforcement scheme is to thwart that express cause of action

provided by Congress. In bringing this suit, the United

States thus seeks to vindicate, not circumvent, Congress’s judgment that state laws that prohibit the exercise of federal constitutional rights should be subject to

suits for injunctive relief in federal court.

Second, the decisions on which Texas relies emphasize that recognizing a general right to sue whenever

Fourteenth Amendment rights are violated would be inconsistent with Congress’s failure to grant such authority. See City of Philadelphia, 644 F.2d at 200; Mattson,

600 F.2d at 1299-1300; Solomon, 563 F.2d at 1129.

Here, in contrast, the United States sues in response to

an exigent and unprecedented situation created by a

state law that has no analogue in our Nation’s history—

and that Congress thus could not have foreseen. 4

Finally, the decisions on which Texas relies emphasized that granting the United States the authority it

sought there would have been inconsistent with principles of “federalism and comity.” Solomon, 563 F.2d at

1129; see City of Philadelphia, 644 F.2d at 200. Here,

just the opposite is true: It is Texas’s enactment of

S.B. 8 that has upset bedrock principles of federalism

by asserting an unprecedented means of nullifying federal law and evading judicial review—all designed to

subvert the constitutional hierarchy. This suit seeks to

restore the established understanding that federal

courts have authority to prohibit violations of federal

constitutional rights.

3. Texas’s remaining objections lack merit

Texas has asserted that the United States lacks authority to bring this suit because there is no justiciable

controversy and because the United States lacks a

cause of action. Neither objection has merit.

a. Texas’s justiciability argument rests exclusively

on Muskrat v. United States, 219 U.S. 346 (1911). E.g.,

Appl. Opp. 13-16. Muskrat concerned a statute authorizing four individuals to sue the United States “to

Texas has claimed (Appl. Opp. 38) that Congress “anticipated”

the situation presented here because two statutes give the Attorney

General authority to sue when private citizens cannot. But those

provisions address particular individuals’ inability to prosecute

their own claims when issues like financial resources or threats to

their safety stand in the way. See 42 U.S.C. 2000b(b), 2000c-6(b).

Texas cannot plausibly maintain that by enacting laws addressing

those very different circumstances, Congress impliedly barred the

United States from responding to S.B. 8’s unprecedented statewide

threat to the supremacy of federal law.

determine the validity” of an earlier statute broadening

the class of Native Americans entitled to participate in

an allotment of property. 219 U.S. at 350. This Court

explained that the suit amounted to an impermissible

request for an advisory opinion because the Court’s

judgment would have been “no more than an expression

of opinion upon the validity of the acts in question.” Id.

at 362. The United States, though designated as the defendant by statute, had “no interest adverse to the

claimants”: The underlying statute merely apportioned

property among private individuals, who were the real

parties in interest. Id. at 361. And, the Court added, a

judgment would have had no legal effect because it

would not have “conclude[d] private parties” or settled

their competing claims in a future lawsuit. Id. at 362.

Texas errs in asserting that its interest in this case

is like the federal government’s interest in Muskrat.

This is not a suit structured by the Texas legislature to

test S.B. 8’s constitutionality. The judgment the United

States seeks is not an advisory opinion; it is an injunction prohibiting S.B. 8’s enforcement. And Texas manifestly has an interest adverse to that of the United

States. Unlike the federal law challenged in Muskrat,

S.B. 8 does not merely allocate private rights; it implements Texas’s preferred public policy by prohibiting

primary conduct that this Court has held the Constitution protects. The State’s concrete interest in that law

does not disappear merely because the State has delegated its enforcement authority to private individuals in

an effort to evade judicial review. 5

Texas has also relied on Muskrat’s statement that federal courts

lack the power to issue a judgment “to settle the doubtful character

of the legislation in question.” Appl. Opp. 14 (quoting Muskrat, 219

b. Texas has also asserted (e.g., Appl. Opp. 33-36)

that the United States lacks a “cause of action” to bring

this suit in equity. But this Court has long endorsed the

United States’ “right to invoke the aid of a court of equity in removing unlawful obstacles to the fulfilment of

its obligations”—a right “vested in it as a sovereign”—

without the need to identify a specific statutory cause of

action. United States v. Minnesota, 270 U.S. 181, 194

(1926). Indeed, the teaching of the entire Debs line of

decisions is that when the United States’ sovereign interests are at stake, “no statute is necessary to authorize the suit.” Sanitary District, 266 U.S. at 425-426.

For similar reasons, Texas has erred in suggesting

(Appl. Opp. 33) that the government’s suit is inconsistent with Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999). That decision stands for the proposition that the equity jurisdiction of the federal courts does not authorize them to

grant “a remedy” that was “historically unavailable

from a court of equity.” Id. at 333. In Grupo Mexicano,

for example, the Court applied that principle to hold

that, “in an action for money damages,” a court may not

U.S. at 361-362). That statement is best understood to reflect that,

at the time of Muskrat, the Court “harbored doubts” about whether

federal courts could issue declaratory judgments consistent with

Article III. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126

(2007); see, e.g., 3 Kenneth Culp Davis, Administrative Law Treatise § 21.01, at 119-124 (1958) (interpreting Muskrat in this manner).

But the Court “dispelled those doubts” in 1933, and “[t]he federal

Declaratory Judgment Act was signed into law the following year.”

MedImmune, Inc., 549 U.S. at 126. The Court has thus recognized

that Muskrat’s concern about issuance of a judgment without immediate coercive effect “has the hollow ring of another era.” Port

of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 & n.20 (1970).

“issue a preliminary injunction preventing the defendant from transferring assets in which no lien or equitable interest is claimed.” Id. at 310.

Unlike the novel form of relief sought by the private

plaintiffs in Grupo Mexicano, the relief the United

States seeks here—an injunction against enforcement

of an unconstitutional statute—falls squarely within the

history and tradition of courts of equity. “Injunctive relief has long been recognized as the proper means for

preventing entities from acting unconstitutionally.”

Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001). Indeed, Ex parte Young itself observed that the

action it recognized—“[a] bill filed to prevent the commencement of suits to enforce an unconstitutional

act”—“is no new invention,” but rather has a strong basis in equity. 209 U.S. at 167; see, e.g., Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).

And in the last decade alone, the United States has

brought numerous suits for equitable relief against

States and localities. 6

B. The United States May Sue In Equity To Vindicate Its

Preemption And Intergovernmental Immunity Claims

The United States also has authority to sue because

S.B. 8 interferes with the activities of the federal

See, e.g., Arizona, supra; United States v. State Water Res. Control Bd., 988 F.3d 1194 (9th Cir. 2021); United States v. Washington,

971 F.3d 856 (9th Cir. 2020), as amended, 994 F.3d 994 (9th Cir.

2021), petition for cert. pending, No. 21-404 (filed Sept. 8, 2021);

United States v. California, 921 F.3d 865, 876 (9th Cir. 2019), cert.

denied, 141 S. Ct. 124 (2020); United States v. Board of Cnty.

Comm’rs, 843 F.3d 1208 (10th Cir. 2016), cert. denied, 138 S. Ct. 84

(2017); South Carolina, supra; Alabama, supra; United States v.

City of Arcata, 629 F.3d 986 (9th Cir. 2010).

government in violation of principles of preemption and

intergovernmental immunity.

1. Even absent an express statutory cause of action,

the United States routinely sues in equity to enjoin

state statutes that impermissibly interfere with the federal government’s own activities. See, e.g., United

States v. Washington, 971 F.3d 856 (9th Cir. 2020), as

amended, 994 F.3d 994 (9th Cir. 2021), petition for cert.

pending, No. 21-404 (filed Sept. 8, 2021); United States

v. California, 921 F.3d 865, 876 (9th Cir. 2019), cert. denied, 141 S. Ct. 124 (2020). The United States’ preemption and intergovernmental immunity claims fall within

that authority because they challenge S.B. 8’s interference with federal programs and its threatened imposition of liability on federal employees and contractors.

Conflict preemption doctrine provides that “state

laws are preempted when they conflict with federal

law.” Arizona, 567 U.S. 399; see id. at 399-400. As relevant here, that occurs where federal law imposes obligations on the federal government and “ ‘compliance

with both federal and state regulations is a physical impossibility’ ” or “the challenged state law ‘stands as an

obstacle to the accomplishment of the full purposes and

objectives of Congress.’ ” Ibid. (citations omitted). Under the doctrine of intergovernmental immunity, States

can neither “control the operations of the constitutional

laws enacted by Congress” nor directly impede the Executive Branch’s “execution of those laws.” Trump v.

Vance, 140 S. Ct. 2412, 2425 (2020); see Mayo v. United

States, 319 U.S. 441, 445 (1943). States accordingly cannot impose liability on federal officials or contractors

for carrying out their federal duties. See In re Neagle,

135 U.S. 1, 75-76 (1890); see also Goodyear Atomic

Corp. v. Miller, 486 U.S. 174, 181 (1988) (intergov-

ernmental immunity applies even if a “federal function

is carried out by a private contractor”).

S.B. 8 is preempted and violates the doctrine of intergovernmental immunity because it impairs the ability of federal agencies, contractors, and employees to

carry out their duties under federal law. For example,

the Bureau of Prisons must protect the rights of pregnant inmates by “arrang[ing] for an abortion to take

place” if an inmate requests one. 28 C.F.R. 551.23(c).

Similarly, the Department of Health and Human Services’ Office of Refugee Resettlement, which has custody of certain unaccompanied noncitizen minors, has

adopted policies to comply with its legal obligations that

require it to “provide access to abortion services when

requested and permitted by law.” Pet. App. 27a. Other

federal agencies have responsibilities that require them

to arrange, pay for, or otherwise facilitate abortion in

certain circumstances, including cases of rape or incest.

See id. at 26a-27a (discussing the United States Marshals Service, the Department of Defense, the Department of Labor, the Centers for Medicare and Medicaid

Services, and the Office of Personnel Management).

And by imposing liability on anyone who aids or abets

an abortion, or even intends to do so, S.B. 8 threatens

suits against federal employees and contractors for carrying out their duties under federal law. Id. at 26a; see

id. at 101a.

2. Texas has not seriously disputed that the United

States has authority to seek injunctive relief against the

enforcement of State laws that purport to regulate federal agencies, employees, and contractors. It has asserted instead (Appl. Opp. 18-20) that the United States

lacks Article III standing to bring those claims here on

the theory that the injury to federal programs, employ-

ees, and contractors is speculative. But the district

court found otherwise, specifically determining that the

government engages in activities “that would subject

federal employees and contractors to civil liability under S.B. 8.” Pet. App. 27a; see id. at 26a-28a.

Texas has also suggested that its courts might not

hold a federal defendant liable. See Appl. Opp. 20. But

S.B. 8’s text includes no such exception. And even if

state courts might construe the law not to apply to the

federal government or its contractors, S.B. 8 would still

pose an obstacle to the federal government’s operations: Because the law has essentially eliminated abortion in Texas after six weeks of pregnancy, federal employees and contractors who are required to facilitate

abortion care cannot do so within the State. Pet. App.

28a. As a result, S.B. 8 is already interfering with the

government’s activities in Texas. See, e.g., Office of

Refugee Resettlement, Administration for Children &

Families, U.S. Dep’t of Health & Human Servs., Field

Guidance #21—Compliance with Garza Requirements

for Pregnant Unaccompanied Children in Texas (Oct.

1, 2021), https://go.usa.gov/xMJME (adopting special

procedures in light of S.B. 8).

II. THE FEDERAL COURTS HAVE AUTHORITY TO ENTER

RELIEF PREVENTING ENFORCEMENT OF S.B. 8

The federal courts have authority to enter injunctive

relief against Texas that will redress the United States’

injuries by preventing enforcement of S.B. 8. The

courts also have authority to enter declaratory relief.

This Court should reject Texas’s assertion that the federal courts are powerless to address its nullification of

federal constitutional rights.

A. The Federal Courts May Enjoin Texas To Prevent Enforcement of S.B. 8

S.B. 8 is a statute enacted by the Texas legislature,

signed by the Texas governor, and enforceable in Texas

courts. In a calculated effort to evade judicial review,

the law delegates the State’s enforcement authority to

members of the public who have no connection to the

prohibited conduct. But it is the State that has empowered and encouraged those plaintiffs to sue. And it is

the State that crafted this unprecedented regime in a

deliberate attempt to make constitutionally protected

abortions unavailable in Texas. It is, in short, plain that

the State of Texas is responsible for the constitutional

violations caused by S.B. 8. It should be equally plain

that where, as here, the State’s sovereign immunity

does not apply, see Alden v. Maine, 527 U.S. 706, 755756 (1999), Texas can be enjoined to prevent those violations.

Everything after that is just a question of how to

craft appropriate relief. Those remedial questions

should not distract from the core point: It was proper

for the district court to enjoin the State to halt its ongoing constitutional violations. Indeed, in cases where

States are defendants, it is not unusual to simply enjoin

the State (and perhaps the governor or other senior officials) and leave it to the State to determine what actions should be taken by which state officers and employees to achieve compliance. 7

See, e.g., Pennsylvania v. West Virginia, 262 U.S. 623, 624

(1923) (ordering “[t]hat the defendant state, and her several officers, agents and servants, are hereby severally enjoined from enforcing, or attempting to enforce” an unconstitutional law); United

States v. Alabama, 443 Fed. Appx. 411, 420 (11th Cir. 2011) (per

In the usual case, it is relatively clear how a State

should comply with a directive to prevent enforcement

of an unconstitutional law. Here, that question is complicated by Texas’s deliberate attempt to “insulate the

State from responsibility for implementing and enforcing the regulatory regime,” Whole Woman’s Health,

141 S. Ct. at 2495 (Roberts, C.J., dissenting), by delegating the State’s S.B. 8 enforcement authority to members of the public. Accordingly—and in response to the

State’s express request for direction about “who is supposed to do what” under an injunction, Pet. App. 59a

(citation omitted)—the district court specified that an

injunction against Texas would prevent enforcement of

the law at each stage of S.B. 8 enforcement proceedings.

Specifically, the injunction against the State properly

binds the plaintiffs who file S.B. 8 suits; the clerks and

judges who docket and administer them; and the state

officials who enforce the resulting judgments. Id. at

curiam) (injunction pending appeal barring “the State of Alabama’s

enforcement” of two challenged provisions); United States v. Arizona, 703 F. Supp. 2d 980, 1008 (D. Ariz. 2010) (preliminary injunction affirmed in part in Arizona, supra, which “enjoin[ed] the State

of Arizona and [the Governor] from enforcing the following Sections” of the challenged law); United States v. South Carolina, 11cv-2958 D. Ct. Doc. 153, at 1 (D. S.C. Mar. 4, 2014) (permanently

enjoining the “State of South Carolina,” as well as the State’s Governor and Attorney General, from “implementing” certain provisions of challenged law); cf. United States v. Texas, 340 U.S. 900

(1950) (in suit against the State, enjoining “the State of Texas, its

privies, assigns, lessees, and other persons claiming under it” from

engaging in certain activities); United States v. Louisiana, 340 U.S.

899 (1950) (similar); Organized Village of Kake v. Egan, 80 S. Ct. 33,

34 (1959) (Brennan, J., in chambers) (in suit against State and its

governor, entering a temporary restraining order “restraining the

State of Alaska and its Governor, and the agents of both” from enforcing a state prohibition).

110a-111a. Texas has not shown any impropriety in any

of those aspects of the injunction—let alone all of them.

Texas’s remedial arguments have, moreover, consistently addressed the wrong question. The issue is

not whether the United States could have brought a

suit, or obtained an injunction against, S.B. 8 plaintiffs,

clerks, judges, or the officials who enforce S.B. 8 judgments. The question instead is whether those persons

are properly bound by an injunction against the State of

Texas, the only defendant the United States sued here.

That question is governed by Federal Rule of Civil Procedure 65(d), which codifies traditional equitable rules

defining who can be bound by an injunction.

An injunction against Texas properly binds private

parties who file and maintain S.B. 8 suits with notice

of the injunction

a. Under Rule 65(d)(2), an injunction binds “only the

following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and

(B).” Fed. R. Civ. P. 65(d)(2). This Court has explained

that the rule “is derived from the common-law doctrine

that a decree of injunction not only binds the parties defendant but also those identified with them in interest,

in ‘privity’ with them, represented by them or subject

to their control.” Regal Knitwear Co. v. NLRB, 324

U.S. 9, 14 (1945). The essence of the rule is that “defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they

were not parties to the original proceeding.” Ibid.

Private plaintiffs who bring suit under S.B. 8 with

notice of the district court’s injunction fall squarely

within the text and the purpose of Rule 65(d)(2). They

do not sue to redress any personal injury or to vindicate

any private rights; instead, they accept the State’s offer

to exercise authority delegated by the State to enforce

the State’s public policy in exchange for compensation

in the form of bounties of at least $10,000. In so doing,

those plaintiffs at a minimum act “in active concert or

participation” with the State under Rule 65(d)(2)(C).

Individuals satisfy that criterion if they are in “privity” with an enjoined party, e.g., Texas v. Department

of Labor, 929 F.3d 205, 210-211 (5th Cir. 2019), or if they

“knowingly aid[] or abet[]” a violation of the injunction,

Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 74

(1st Cir.), cert. denied, 537 U.S. 974 (2002). Private

plaintiffs who file S.B. 8 suits notwithstanding an injunction against the State’s enforcement of S.B. 8 would

do precisely that. Although the State itself would be

enjoined from enforcing the statute, plaintiffs who the

State has empowered and encouraged to act on its behalf would aid and abet—indeed, carry out—the enforcement that the injunction prohibits. Their actions

would “negate” both the United States’ right to the nonenforcement of S.B. 8, as recognized by the injunction,

and Texas’s “constitutional obligation” to ensure that

result. United States v. Hall, 472 F.2d 261, 265 (5th Cir.

1972) (Wisdom, J.) (upholding contempt sanction

against non-party where his actions “imperiled the

court’s fundamental power to make a binding” and effective “adjudication between the parties properly before it”).

In addition, private plaintiffs are in “privity” with the

State, because they have a “ ‘sufficiently close identity

of interests’ to justify application of nonparty claim preclusion,” and Rule 65(d)(2) reflects the same principles.

National Spiritual Assembly of the Baha’is of the

United States Under Hereditary Guardianship, Inc. v.

National Spiritual Assembly of Baha’is of the United

States, Inc., 628 F.3d 837, 849 (7th Cir. 2010) (citation

omitted). For purposes of both doctrines, the State is

properly considered to represent the interests of the

private plaintiffs the State has deputized to enforce S.B.

8. See pp. 43-45, infra.

Nor is there anything anomalous about treating

nominally private actors as part of, or in active concert

with, the State. In a “traditional” pre-enforcement

challenge under Section 1983 or Ex parte Young, an affected party would sue the state officers charged with

enforcing the allegedly unconstitutional law and, if successful, would obtain an injunction against them. Such

relief would also be proper if the “enforcer” is not a

state official, but a private individual; indeed, Ex parte

Young is premised on the idea that once stripped of

their state immunity, executive officials are merely private individuals who are proper defendants in a preenforcement challenge. See 209 U.S. at 159-160.

Here, the State has tried to avoid Ex parte Young

suits by disclaiming enforcement by its executive officials and instead deputizing members of the public. And

by not requiring any connection between an S.B. 8

plaintiff and the challenged abortion, the State has tried

to make it impossible to identify the universe of persons

who will bring S.B. 8 suits in advance. But once S.B. 8

plaintiffs actually bring such suits, their actions are attributable to, and in concert with, the State. By bringing S.B. 8 enforcement actions, S.B. 8 plaintiffs “exercise * * * a right or privilege having its source in state

authority.” Edmonson v. Leesville Concrete Co., 500

U.S. 614, 621 (1991). And they may “be described in all

fairness as * * * state actor[s].” Ibid. S.B. 8 plaintiffs

rely on “governmental assistance and benefits”—a

state-created cause of action, and the promise of a

$10,000 bounty; they perform the “traditional government function” of enforcing Texas’s abortion restrictions, without any private injury; and the result of

the scheme is to chill constitutional rights in a manner

and to a degree that private actors could not achieve

without “the incidents of government authority.” Id. at

620-622. Recognizing that private plaintiffs may be

bound by an injunction against the State ensures that

the State cannot “nullif[y]” constitutional rights simply

by delegating enforcement authority to private actors.

Smith v. Allwright, 321 U.S. 649, 664 (1944).

The district court thus correctly determined that its

injunction could bind persons who act on behalf of or in

concert with the State. Pet. App. 110a. And to make its

relief effective and facilitate the notice required by Rule

65, the court ordered the State to publish notice of the

injunction “on all of its public-facing court websites” or

to propose other means of “plainly informing the public.” Id. at 111a.

b. Texas has objected that an injunction that

reaches S.B. 8 plaintiffs would be improper because a

court “cannot lawfully enjoin the world at large.” Appl.

Opp. 30 (citation omitted); see id. at 31. But an injunction against the State, including those individuals who

affirmatively choose to exercise the State’s delegated

enforcement authority, would not do that. Such an injunction would not reach the universe of potential S.B.

8 plaintiffs; it would bind only those individuals who actually act in concert with or on behalf of the State by

bringing or maintaining an S.B. 8 suit with notice of the

injunction. Pet. App. 69a; see id. at 110a (explaining

that the preliminary injunction does not “run[] to the

future actions of private individuals per se” and that

“those private individuals’ actions are proscribed to the

extent” that they actually attempt to bring an S.B. 8 action). Texas’s decision to delegate its enforcement

power to private bounty hunters rather than state officials does not strip the federal courts of authority to

craft effective injunctive relief by reaching those who

choose to exercise their delegated authority to enforce

the State’s unconstitutional law.

2. In these unusual circumstances, an injunction

against Texas properly binds state court clerks and

judges

The district court also correctly concluded that its

injunction could reach “state court judges and state

court clerks who have the power to enforce or administer” S.B. 8 actions. Pet. App. 110a. This Court has held

that “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.” Pulliam v. Allen, 466 U.S. 522, 541-542

(1984). And although Section 1983 prohibits injunctions

against judicial officers unless declaratory relief was violated or unavailable, see Whole Woman’s Health, 13

F.4th at 444, this suit by the United States is not based

on Section 1983.

To be sure, injunctions that run to state clerks and

judges are unusual. But that is because other forms of

relief are typically more appropriate—most obviously,

a plaintiff can ordinarily secure an injunction binding

“the enforcement official authorized to bring suit under

the statute.” In re Justices of the Supreme Court of

Puerto Rico, 695 F.2d 17, 21 (1st Cir. 1982) (Breyer, J.);

see Ex parte Young, 209 U.S. at 163. Here, Texas has

deliberately sought to thwart that ordinary remedy.

And where “it is arguably necessary to enjoin a judge to

ensure full relief to the parties,” In re Justices, 695 F.2d

at 23, injunctions that foreclose state clerks or courts

from processing or maintaining cases have long been

permitted. 8

Texas has objected (Appl. Opp. 16-17, 26) that there

is no justiciable controversy between the United States

and the judges and clerks and that a federal court may

only enjoin the parties to the suit. But that misses the

point: The injunction runs against the State, which is a

party, and there is a justiciable controversy between

the United States and Texas.

Texas has also observed (Appl. Opp. 27) that statecourt judges are ordinarily expected to follow the federal Constitution in adjudicating cases. But in this

unique context, that does not remove the need for injunctive relief. By design, the mere threat of even unsuccessful S.B. 8 suits chills constitutionally protected

conduct: Those suits can be brought in unlimited numbers, in diverse and inconvenient fora, subject to a bar

See, e.g., In re BankAmerica Corp. Sec. Litig., 263 F.3d 795, 798

(8th Cir. 2001) (affirming injunction barring state court from certifying plaintiff classes to avoid circumvention of prior injunction),

cert. denied, 535 U.S. 970 (2002); Blackard v. Memphis Area Med.

Ctr. for Women, Inc., 262 F.3d 568, 573-574 (6th Cir. 2001) (determining that under Rule 65(d), “Tennessee juvenile courts were

within the scope” of an injunction “and could not enforce” the State’s

parental consent statute and judicial bypass procedure “during the

pendency of that injunction”), cert. denied, 535 U.S. 1053 (2002);

WXYZ, Inc. v. Hand, 658 F.2d 420, 422, 427 (6th Cir. 1981) (affirming injunction against state court judge where unconstitutional statute required issuance of a suppression order barring media from

publishing defendant’s identity); cf. General Motors Corp. v. Buha,

623 F.2d 455, 463 (6th Cir. 1980) (finding error in injunction against

state court judges and court personnel “when an injunction against

the litigant would have accomplished the same purpose”).

on applying preclusion principles to defeat successive

suits, and with no prospect of the defendant’s recovering the attendant expenses of litigation because of S.B.

8’s one-way fee-shifting. As nearly two months of experience have made clear, the fact that state court judges

would ultimately be obligated to reject such suits does

not eliminate S.B. 8’s harm to the supremacy of federal

law and to women who are unable to exercise their constitutional rights.

In this case, therefore, the cause of the United

States’ injury is not primarily a risk that state judges

hearing S.B. 8 suits would disregard federal law. It is

instead that S.B. 8 is structured so that the mere prospect of the filing of a blizzard of enforcement suits has

effectively nullified a constitutional right. And the lopsided procedures in those suits were deliberately structured to maximize that deterrent effect. In these unusual circumstances, where the mere threat of filing and

docketing of actions contributes to a constitutional violation, it is appropriate to enjoin the courts from administering the suits to redress that chilling effect. And to

the extent Texas objects to an injunction that binds

judges acting in their adjudicatory capacities, the same

relief could be afforded by simply enjoining clerks from

accepting S.B. 8 suits for filing. See, e.g., Strickland v.

Alexander, 772 F.3d 876, 886 (11th Cir. 2014) (holding

that court clerk was a proper defendant under Article

III in suit for injunctive relief, where docketing of affidavit and issuing of summons “were the immediate

cause[s]” of plaintiff ’s past and likely future injuries);

Finberg v. Sullivan, 634 F.2d 50, 53 (3d Cir. 1980) (en

banc) (similar; rejecting argument that court clerk was

not a proper defendant because his duties were “ministerial” in nature).

3. An injunction against Texas properly binds state officials who enforce S.B. 8 judgments

Finally, an injunction against Texas may bar state

executive officials from “enforcing judgments in” S.B. 8

suits. Pet. App. 110a. Although S.B. 8 relies on deputized private citizens to bring enforcement actions,

state executive officials (including “sheriff[s],” “constable[s],” and county “clerk[s]”) may enforce the resulting

state-court judgments. Tex. R. Civ. P. 622; Tex. Prop.

Code Ann. § 52.004. And although the Fifth Circuit concluded in Whole Woman’s Health that other state executive officials do not enforce S.B. 8, that suit did not involve the officials who would enforce the judgments in

S.B. 8 suits. See 13 F.4th at 439 n.2, 443-444.

Texas has responded that sheriffs, constables, and

county clerks may technically work for political subdivisions rather than the State itself. Appl. Opp. 28 (citing

Monsanto Co. v. Cornerstones Mun. Util. Dist., 865

S.W.2d 937, 939-940 (Tex. 1993) (interpreting the meaning of the word “state” in a state-law statute of limitations provision)). But even if that meant those officials

are not agents or employees of the State under Rule

65(d)(2)(B), they would, at a minimum, act “in active

concert or participation” with the State under Rule

65(d)(2)(C). And although Texas has speculated (ibid.)

that S.B. 8 plaintiffs might find other means of enforcing S.B. 8 judgments, foreclosing executive officials

from doing so would help to alleviate the injury from

S.B. 8’s deterrent effect. To the extent that this aspect

of the injunction is not a complete answer, that merely

underscores the need for its other facets.

* * * * *

Texas thus cannot identify any impropriety in any

aspect of the district court’s injunction. And the State

should not be heard to complain about the particulars of

the district court’s response to its unprecedented

scheme unless it is prepared to offer some alternative

form of effective relief. But Texas has steadfastly refused to do so. See, e.g., Appl. Opp. 24-25. That is because Texas’s objection is, at bottom, not to the structure of any particular injunction, but to any relief that

would halt S.B. 8’s ongoing nullification of the Constitution as interpreted by this Court. After all, that is why

the State adopted S.B. 8’s extraordinary structure to

begin with.

The implications of Texas’s position are startling: If,

as Texas insists, courts cannot enjoin the State itself, or

reach the actions of the parties who exercise delegated

state enforcement authority by bringing S.B. 8 suits, or

prevent administration of those suits by court personnel, or bar enforcement by officials of any resulting

judgments, then a State could use the same mechanism

to effectively nullify any constitutional decision of this

Court with which it disagreed. A State might, for example, ban the sale of firearms for home protection,

contra District of Columbia v. Heller, 554 U.S. 570

(2008), or prohibit independent corporate campaign advertising, contra Citizens United v. FEC, 558 U.S. 310

(2010), and deputize its citizens to seek large bounties

for each sale or advertisement. See generally Firearms

Policy Coalition Amicus Brief, Whole Woman’s Health,

supra (No. 21-463). Those statutes, too, would plainly

violate the Constitution as interpreted by this Court.

But under Texas’s theory, they could be enforced without prior judicial review—and, by creating an enforcement scheme sufficiently lopsided and punitive, the

State could deter the exercise of the targeted constitutional right altogether.

The State’s procedural ingenuity should not permit

it to nullify the Constitution, or this Court’s decisions.

To the contrary, this Court has long held that its authoritative interpretations of the Constitution “can neither be nullified openly and directly by state legislators

or state executive or judicial officers nor nullified indirectly by them through evasive schemes.” Cooper v.

Aaron, 358 U.S. 1, 17 (1958).

B. The Federal Courts May Issue A Declaratory Judgment

Against Texas

In granting certiorari before judgment, this Court

asked the parties to address the question whether the

United States may seek and obtain declaratory as well

as injunctive relief. Declaratory relief is available, but

it is not an adequate substitute for preliminary and permanent injunctive relief prohibiting enforcement of

S.B. 8.

1. The Declaratory Judgment Act provides that “[i]n

a case of actual controversy within its jurisdiction * * *

any court of the United States * * * may declare the

rights and other legal relations of any interested party

seeking such declaration, whether or not further relief

is or could be sought.” 28 U.S.C. 2201(a); see Fed. R.

Civ. P. 57. Accordingly, the United States’ authority to

bring this action in equity allows it to seek declaratory

as well as injunctive relief.

2. It is not clear, however, that declaratory relief by

itself would redress the United States’ injuries. One of

the purposes of the Declaratory Judgment Act is “to

provide a milder alternative to the injunction remedy.”

Steffel v. Thompson, 415 U.S. 452, 467 (1974) (citation

omitted); see 28 U.S.C. 2202 (providing for “[f]urther

necessary or proper relief based on a declaratory judgment”). Accordingly, courts sometimes find that “an

injunction is not necessary or appropriate” if a government defendant “has represented that it will obey the

law as declared by the court in the future.” Calderon

Jimenez v. Nielsen, 399 F. Supp. 3d 1, 2 (D. Mass. 2018);

cf. Sanchez–Espinoza v. Reagan, 770 F.2d 202, 208 n.8

(D.C. Cir. 1985) (Scalia, J.) (“[I]t must be presumed that

federal officers will adhere to the law as declared by the

court.”). But given S.B. 8’s unusual structure, it is far

from apparent that the Texas Attorney General would

make such a representation here.

In other circumstances, declaratory judgments provide effective relief largely because of their preclusive

effect. The Declaratory Judgment Act provides that a

declaratory judgment “shall have the force and effect of

a final judgment or decree.” 28 U.S.C. 2201(a). One of

the drafters of the Declaratory Judgment Act explained

that that provision “is designed to indicate that the declaratory judgment is a final judgment like any coercive

judgment conclusively determining the rights of the

parties and constituting res judicata.” Edwin Borchard, The Federal Declaratory Judgments Act, 21 Va.

L. Rev. 35, 47 (1934); see Steffel, 415 U.S. at 468 n.18.

Here, the preclusive effect of a declaratory judgment

would likely offer some, but not complete, relief. Because Texas is the named defendant in this suit, the declaratory judgment would issue against Texas itself (as

well as the defendants-intervenors). The United States

would argue that a judgment against Texas declaring

S.B. 8 invalid would bind private S.B. 8 plaintiffs as a

matter of issue preclusion. “The preclusive effect of a

federal-court judgment is determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008).

This Court has explained that although a judgment generally does not bind nonparties, that rule is “subject to

exceptions.” Id. at 893. Most relevant here, “a party

bound by a judgment may not avoid its preclusive force

by relitigating through a proxy. Preclusion is thus in

order when a person who did not participate in a litigation later brings suit as the designated representative

of a person who was a party to the prior adjudication.”

Id. at 895.

Private S.B. 8 plaintiffs are in substance the designated representatives of the State in bringing S.B. 8 actions. See, e.g., Chicago, Rock Island & Pac. Ry. Co. v.

Schendel, 270 U.S. 611, 620 (1926) (“Identity of parties

is not a mere matter of form, but of substance.”). S.B.

8 effects an unprecedented delegation of state enforcement authority to individuals who need have no personal relationship to the abortion at issue. S.B. 8 plaintiffs thus act as the State’s “designated representative[s].” Sturgell, 553 U.S. at 895.

Although Texas’s method of enforcing its abortion

ban is unprecedented, there is nothing novel about the

proposition that “government litigation can preclude relitigation by individuals” who seek to prosecute a public

interest. 18A Charles Alan Wright et al., Federal Practice and Procedure § 4458.1 (3d ed. 2017). For example,

in City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320

(1958), the Court held that a judgment in an earlier suit

in which the State of Washington was a party “was effective, not only against the State, but also against its

citizens, including the taxpayers of Tacoma, for they, in

their common public rights as citizens of the State, were

represented by the State in those proceedings.” Id. at

340-341 (citing authority); see, e.g., Washington v.

Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 692 n.32 (1979); cf. Hinderlider

v. La Plata River & Cherry Creek Ditch Co., 304 U.S.

92, 106-108 (1938).

By similar reasoning, a judgment against the State

declaring S.B. 8 invalid would require the dismissal of

actions brought by S.B. 8 plaintiffs as a matter of issue

preclusion. But this Court’s Fourteenth Amendment

precedents already require dismissal of those actions on

the merits. And as discussed above, the fact that S.B. 8

suits are legally foreclosed has not prevented the statute from nullifying the right to abortion in Texas because it does not address one of S.B. 8’s principal burdens: The threat of a potentially unlimited number of

harassing and expensive lawsuits filed in courts

throughout the State.

3. Accordingly, while a declaratory judgment would

provide some relief, the appropriate remedy for Texas’s

deliberate nullification of this Court’s precedents is a

permanent injunction against the State prohibiting enforcement of S.B. 8, which would appropriately bind

S.B. 8 plaintiffs, clerks, judges, and other state officials.

And at a minimum, the availability of a declaratory

judgment at the end of this litigation in no way diminishes the need for preliminary injunctive relief now.

Although “a district court can generally protect the interests of a federal plaintiff by entering a declaratory

judgment” at the conclusion of the proceedings, “prior

to final judgment there is no established declaratory

remedy comparable to a preliminary injunction.”

Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). Because S.B. 8 is presently causing irreparable harm, the

United States’ authority to seek and obtain a declaratory judgment later is no substitute for the preliminary

injunctive relief granted by the district court to

safeguard constitutional rights and the supremacy of

federal law now.

Accordingly, if this Court determines that the

United States is likely to establish that it has authority

to seek injunctive or declaratory relief, it should affirm

the preliminary injunction. It should also immediately

vacate the Fifth Circuit’s stay of the injunction, which—

as the United States demonstrated in its pending

application—is enabling Texas’s ongoing nullification of

this Court’s precedents and systematic denial of constitutional rights in the State.

CONCLUSION

The Court should hold that the United States has authority to bring this suit and obtain effective relief, vacate the stay entered by the Fifth Circuit, and affirm

the preliminary injunction entered by the district court.

Alternatively, the Court could hold that the United

States has authority to bring this suit and obtain effective relief, vacate the stay, and remand to allow the

Fifth Circuit to consider any other issues respondents

might seek to raise in their appeals of the preliminary

injunction.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

BRIAN M. BOYNTON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

SARAH E. HARRINGTON

Deputy Assistant Attorney

General

ERICA L. ROSS

Assistant to the Solicitor

General

MARK R. FREEMAN

MICHAEL S. RAAB

DANIEL WINIK

KYLE T. EDWARDS

Attorneys

OCTOBER 2021

APPENDIX

28 U.S.C. 2201(a) provides:

Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than

actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or

1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a

class or kind of merchandise of a free trade area country

(as defined in section 516A(f )(9) of the Tariff Act of

1930), as determined by the administering authority,

any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. 2202 provides:

Further relief

Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose

rights have been determined by such judgment.

(1a)

42 U.S.C. 1983 provides:

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes

of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

4. Tex. Health & Safety Code, ch. 171, subch. H,

§§ 171.201-171.212 provides:

SUBCHAPTER H. DETECTION OF FETAL

HEARTBEAT

Sec. 171.201.

DEFINITIONS.

In this subchapter:

(1) “Fetal heartbeat” means cardiac activity or the

steady and repetitive rhythmic contraction of the fetal

heart within the gestational sac.

(2) “Gestational age” means the amount of time that

has elapsed from the first day of a woman’s last menstrual period.

(3) “Gestational sac” means the structure comprising the extraembryonic membranes that envelop the unborn child and that is typically visible by ultrasound after the fourth week of pregnancy.

(4) “Physician” means an individual licensed to

practice medicine in this state, including a medical doctor and a doctor of osteopathic medicine.

(5) “Pregnancy” means the human female reproductive condition that:

(A) begins with fertilization;

(B) occurs when the woman is carrying the developing human offspring; and

last menstrual period.

(6) “Standard medical practice” means the degree

of skill, care, and diligence that an obstetrician of ordinary judgment, learning, and skill would employ in like

circumstances.

(7) “Unborn child” means a human fetus or embryo

in any stage of gestation from fertilization until birth.

Sec. 171.202. LEGISLATIVE FINDINGS. The

legislature finds, according to contemporary medical research, that:

(1) fetal heartbeat has become a key medical

predictor that an unborn child will reach live birth;

(2) cardiac activity begins at a biologically identifiable moment in time, normally when the fetal

heart is formed in the gestational sac;

(3) Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health

of the woman and the life of the unborn child; and

(4) to make an informed choice about whether to

continue her pregnancy, the pregnant woman has a

compelling interest in knowing the likelihood of her

unborn child surviving to full-term birth based on the

presence of cardiac activity.

Sec. 171.203.

DETERMINATION OF PRESENCE OF FETAL HEARTBEAT REQUIRED; RECORD.

(a) For the purposes of determining the presence of

a fetal heartbeat under this section, “standard medical

practice” includes employing the appropriate means of

detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the

woman and her pregnancy.

(b) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion

on a pregnant woman unless the physician has determined, in accordance with this section, whether the

woman’s unborn child has a detectable fetal heartbeat.

the physician must use a test that is:

(1) consistent with the physician’s good faith and

reasonable understanding of standard medical practice; and

(2) appropriate for the estimated gestational age

of the unborn child and the condition of the pregnant

woman and her pregnancy.

(d) A physician making a determination under Subsection (b) shall record in the pregnant woman’s medical

record:

(1)

child;

the estimated gestational age of the unborn

(2) the method used to estimate the gestational

age; and

(3) the test used for detecting a fetal heartbeat,

including the date, time, and results of the test.

Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL

HEARTBEAT; EFFECT.

(a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion

on a pregnant woman if the physician detected a fetal

heartbeat for the unborn child as required by Section

171.203 or failed to perform a test to detect a fetal heartbeat.

(b) A physician does not violate this section if the

physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal

heartbeat.

(1) the provisions of this chapter that restrict or

regulate an abortion by a particular method or during a particular stage of pregnancy; or

(2) any other provision of state law that regulates or prohibits abortion.

Sec. 171.205.

EXCEPTION FOR MEDICAL

EMERGENCY; RECORDS.

(a) Sections 171.203 and 171.204 do not apply if a

physician believes a medical emergency exists that prevents compliance with this subchapter.

(b) A physician who performs or induces an abortion

under circumstances described by Subsection (a) shall

make written notations in the pregnant woman’s medical record of:

(1) the physician’s belief that a medical emergency necessitated the abortion; and

(2) the medical condition of the pregnant woman

that prevented compliance with this subchapter.

under this section shall maintain in the physician’s practice records a copy of the notations made under Subsection (b).

Sec. 171.206.

TER.

CONSTRUCTION OF SUBCHAP-

(a) This subchapter does not create or recognize a

right to abortion before a fetal heartbeat is detected.

(b) This subchapter may not be construed to:

(1) authorize the initiation of a cause of action

against or the prosecution of a woman on whom an

abortion is performed or induced or attempted to be

performed or induced in violation of this subchapter;

(2) wholly or partly repeal, either expressly or

by implication, any other statute that regulates or

prohibits abortion, including Chapter 6-1/2, Title 71,

Revised Statutes; or

(3) restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least

as stringent as the laws of this state.

Sec. 171.207.

FORCEMENT.

LIMITATIONS ON PUBLIC EN-

(a) Notwithstanding Section 171.005 or any other

law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this

subchapter, and no enforcement of Chapters 19 and 22,

Penal Code, in response to violations of this subchapter,

may be taken or threatened by this state, a political 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.

(b) Subsection (a) may not be construed to:

(1) legalize the conduct prohibited by this subchapter or by Chapter 6-1/2, Title 71, Revised Statutes;

(2) limit in any way or affect the availability of a

remedy established by Section 171.208; or

(3) limit the enforceability of any other laws that

regulate or prohibit abortion.

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION.

(a) Any person, other than an officer or employee of

a state or local governmental entity in this state, may

bring a civil action against any person who:

(1) performs or induces an abortion in violation

of this subchapter;

(2) knowingly engages in conduct that aids or

abets the performance or inducement of an abortion,

including paying for or reimbursing the costs of an

abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or

should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described

by Subdivision (1) or (2).

(b) If a claimant prevails in an action brought under

this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in

acts that aid or abet violations of this subchapter;

(2) statutory damages in an amount of not less

than $10,000 for each abortion that the defendant

performed or induced in violation of this subchapter,

and for each abortion performed or induced in violation of this subchapter that the defendant aided or

abetted; and

(3)

costs and attorney’s fees.

award relief under this section in response to a violation

of Subsection (a)(1) or (2) if the defendant demonstrates

that the defendant previously paid the full amount of

statutory damages under Subsection (b)(2) in a previous

action for that particular abortion performed or induced

in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter.

(d) Notwithstanding Chapter 16, Civil Practice and

Remedies Code, or any other law, a person may bring an

action under this section not later than the fourth anniversary of the date the cause of action accrues.

(e) Notwithstanding any other law, the following

are not a defense to an action brought under this section:

(1)

ignorance or mistake of law;

(2) a defendant’s belief that the requirements of

this subchapter are unconstitutional or were unconstitutional;

(3) a defendant’s reliance on any court decision

that has been overruled on appeal or by a subsequent

court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;

(4) a defendant’s reliance on any state or federal

court decision that is not binding on the court in

which the action has been brought;

(5) non-mutual issue preclusion or non-mutual

claim preclusion;

(6) the consent of the unborn child’s mother to

the abortion; or

(7) any claim that the enforcement of this subchapter or the imposition of civil liability against the

defendant will violate the constitutional rights of

third parties, except as provided by Section 171.209.

(f ) It is an affirmative defense if:

10a

(1) a person sued under Subsection (a)(2) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with

this subchapter; or

(2) a person sued under Subsection (a)(3) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion will comply with this subchapter.

(f-1) The defendant has the burden of proving an affirmative defense under Subsection (f )(1) or (2) by a preponderance of the evidence.

(g) This section may not be construed to impose liability on any speech or conduct protected by the First

Amendment of the United States Constitution, as made

applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution, or by Section 8,

Article I, Texas Constitution.

(h) Notwithstanding any other law, this state, a

state official, or a district or county attorney may not

intervene in an action brought under this section. This

subsection does not prohibit a person described by this

subsection from filing an amicus curiae brief in the action.

(i) Notwithstanding any other law, a court may not

award costs or attorney’s fees under the Texas Rules of

Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to

a defendant in an action brought under this section.

11a

( j) Notwithstanding any other law, a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape,

sexual assault, incest, or any other act prohibited by

Sections 22.011, 22.021, or 25.02, Penal Code.

Sec. 171.209.

CIVIL LIABILITY:

BURDEN DEFENSE LIMITATIONS.

UNDUE

(a) A defendant against whom an action is brought

under Section 171.208 does not have standing to assert

the rights of women seeking an abortion as a defense to

liability under that section unless:

(1) the United States Supreme Court holds that

the courts of this state must confer standing on that

defendant to assert the third-party rights of women

seeking an abortion in state court as a matter of federal constitutional law; or

(2) the defendant has standing to assert the

rights of women seeking an abortion under the tests

for third-party standing established by the United

States Supreme Court.

(b) A defendant in an action brought under Section

171.208 may assert an affirmative defense to liability under this section if:

(1) the defendant has standing to assert the

third-party rights of a woman or group of women

seeking an abortion in accordance with Subsection

(a); and

(2) the defendant demonstrates that the relief

sought by the claimant will impose an undue burden

on that woman or that group of women seeking an

abortion.

12a

Subsection (b) unless the defendant introduces evidence

proving that:

(1) an award of relief will prevent a woman or a

group of women from obtaining an abortion; or

(2) an award of relief will place a substantial obstacle in the path of a woman or a group of women

who are seeking an abortion.

(d) A defendant may not establish an undue burden

under this section by:

(1) merely demonstrating that an award of relief

will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or

(2) arguing or attempting to demonstrate that

an award of relief against other defendants or other

potential defendants will impose an undue burden on

women seeking an abortion.

(e) The affirmative defense under Subsection (b) is

not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned

Parenthood v. Casey, 505 U.S. 833 (1992), regardless of

whether the conduct on which the cause of action is

based under Section 171.208 occurred before the Supreme Court overruled either of those decisions.

(f ) Nothing in this section shall in any way limit or

preclude a defendant from asserting the defendant’s

personal constitutional rights as a defense to liability

under Section 171.208, and a court may not award relief

under Section 171.208 if the conduct for which the defendant has been sued was an exercise of state or federal

13a

constitutional rights that personally belong to the defendant.

Sec. 171.210.

CIVIL LIABILITY:

VENUE.

(a) Notwithstanding any other law, including Section 15.002, Civil Practice and Remedies Code, a civil action brought under Section 171.208 shall be brought in:

(1) the county in which all or a substantial part

of the events or omissions giving rise to the claim occurred;

(2) the county of residence for any one of the natural person defendants at the time the cause of action

accrued;

(3) the county of the principal office in this state

of any one of the defendants that is not a natural person; or

(4) the county of residence for the claimant if the

claimant is a natural person residing in this state.

(b) If a civil action is brought under Section 171.208

in any one of the venues described by Subsection (a), the

action may not be transferred to a different venue without the written consent of all parties.

Sec. 171.211. SOVEREIGN, GOVERNMENTAL,

AND OFFICIAL IMMUNITY PRESERVED.

(a) This section prevails over any conflicting law, including:

(1)

and

the Uniform Declaratory Judgments Act;

(2)

Code.

Chapter 37, Civil Practice and Remedies

14a

(b) This state has sovereign immunity, a political

subdivision has governmental immunity, and each officer and employee of this state or a political subdivision

has official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this

chapter, on constitutional grounds or otherwise.

waive or abrogate an immunity described by Subsection

(b) unless it expressly waives immunity under this section.

Sec. 171.212.

SEVERABILITY.

(a) Mindful of Leavitt v. Jane L., 518 U.S. 137

(1996), in which in the context of determining the severability of a state statute regulating abortion the

United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of

the legislature that 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.

(b) If any application of any provision in this chapter

to any person, group of persons, or circumstances is

found by a court to be invalid or unconstitutional, the

remaining applications of that provision to all other persons and circumstances shall be severed and may not be

affected. All constitutionally valid applications of this

chapter shall be severed from any applications that a

court finds to be invalid, leaving the valid applications in

force, because it is the legislature’s intent and priority

that the valid applications be allowed to stand alone.

15a

Even if a reviewing court finds a provision of this chapter to impose an undue burden in a large or substantial

fraction of relevant cases, the applications that do not

present an undue burden shall be severed from the remaining applications and shall remain in force, and shall

be treated as if the legislature had enacted a statute limited to the persons, group of persons, or circumstances

for which the statute’s application does not present an

undue burden.

(b-1) 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 circumstances 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.

have enacted this chapter, and each provision, section,

subsection, sentence, clause, phrase, or word, and all

constitutional applications of this chapter, irrespective

of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this

chapter, were to be declared unconstitutional or to represent an undue burden.

(d) If any provision of this chapter is found by any

court to be unconstitutionally vague, then the applications of that provision that do not present constitutional

16a

vagueness problems shall be severed and remain in

force.

(e) No court may decline to enforce the severability

requirements of Subsections (a), (b), (b-1), (c), and (d) on

the ground that severance would rewrite the statute or

involve the court in legislative or lawmaking activity.

A court that declines to enforce or enjoins a state official

from enforcing a statutory provision does not rewrite a

statute, as the statute continues to contain the same

words as before the court’s decision. A judicial injunction or declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a

later court if that court has a different understanding

of the requirements of the Texas Constitution or

United States Constitution;

(2) is not a formal amendment of the language in

a statute; and

(3) no more rewrites a statute than a decision by

the executive not to enforce a duly enacted statute in

a limited and defined set of circumstances.

Fed. R. Civ. P. 57 provides:

Declaratory Judgment

These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. § 2201. Rules

38 and 39 govern a demand for a jury trial. The existence of another adequate remedy does not preclude a

declaratory judgment that is otherwise appropriate.

17a

The court may order a speedy hearing of a declaratoryjudgment action.

Fed. R. Civ. P. 65 provides:

Injunctions and Restraining Orders

(a) PRELIMINARY INJUNCTION.

(1) Notice. The court may issue a preliminary

injunction only on notice to the adverse party.

(2) Consolidating the Hearing with the Trial on

the Merits. Before or after beginning the hearing

on a motion for a preliminary injunction, the court

may advance the trial on the merits and consolidate

it with the hearing. Even when consolidation is not

ordered, evidence that is received on the motion and

that would be admissible at trial becomes part of the

trial record and need not be repeated at trial. But

the court must preserve any party’s right to a jury

trial.

(b) TEMPORARY RESTRAINING ORDER.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or

oral notice to the adverse party or its attorney only

if:

(A) specific facts in an affidavit or a verified

complaint clearly show that immediate and irreparable injury, loss, or damage will result to the

movant before the adverse party can be heard in

opposition; and

18a

(B) the movant’s attorney certifies in writing

any efforts made to give notice and the reasons

why it should not be required.

(2) Contents; Expiration. Every temporary

restraining order issued without notice must state

the date and hour it was issued; describe the injury

and state why it is irreparable; state why the order

was issued without notice; and be promptly filed in

the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14

days—that the court sets, unless before that time the

court, for good cause, extends it for a like period or

the adverse party consents to a longer extension.

The reasons for an extension must be entered in the

record.

(3) Expediting the Preliminary-Injunction

Hearing. If the order is issued without notice, the

motion for a preliminary injunction must be set for

hearing at the earliest possible time, taking precedence over all other matters except hearings on older

matters of the same character. At the hearing, the

party who obtained the order must proceed with the

motion; if the party does not, the court must dissolve

the order.

(4) Motion to Dissolve. On 2 days’ notice to the

party who obtained the order without notice—or on

shorter notice set by the court—the adverse party

may appear and move to dissolve or modify the order.

The court must then hear and decide the motion as

promptly as justice requires.

injunction or a temporary restraining order only if the

19a

movant gives security in an amount that the court considers proper to pay the costs and damages sustained by

any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

(d) CONTENTS AND SCOPE OF EVERY INJUNCTION

AND RESTRAINING ORDER.

(1) Contents. Every order granting an injunction and every restraining order must:

(A)

state the reasons why it issued;

(B)

state its terms specifically; and

referring to the complaint or other document—the

act or acts restrained or required.

(2) Persons Bound. The order binds only the

following who receive actual notice of it by personal

service or otherwise:

(A)

the parties;

(B) the parties’ officers, agents, servants,

employees, and attorneys; and

or participation with anyone described in Rule

65(d)(2)(A) or (B).

(e) OTHER LAWS NOT MODIFIED.

not modify the following:

These rules do

(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions

affecting employer and employee;

20a

(2) 28 U.S.C. § 2361, which relates to preliminary injunctions in actions of interpleader or in the

nature of interpleader; or

(3) 28 U.S.C. § 2284, which relates to actions that

must be heard and decided by a three-judge district

court.

(f ) COPYRIGHT IMPOUNDMENT. This rule applies

to copyright-impoundment proceedings.

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.