Whole Woman’s Health v. Jackson
Over the past fifty years, the Supreme Court has repeatedly recognized that the right to a pre-viability abortion is protected from state infringement by the Fourteenth Amendment. Yet in a blatant attack on the supremacy of federal law and the constitutional rights of its people, Texas enacted Senate Bill 8 (S.B. 8), banning abortion once a “fetal heartbeat” can be detected—months before a fetus reaches viability or most people even know that they are pregnant. Rather than being enforced by state officials, S.B. 8 is enforced exclusively through private civil actions against anyone who aids or abets, or intends to aid or abet, a banned abortion in Texas. The Texas legislature designed this enforcement scheme to evade pre-enforcement judicial review.
Days before the law went into effect, abortion providers and advocates, Petitioners here, filed an emergency application with the Supreme Court seeking to block the law. In an unsigned 5‑4 opinion, the Court declined to do so, citing complex procedural questions posed by S.B. 8’s enforcement mechanism that prevented it from enjoining the law, at least before full briefing on the merits.
Petitioners then filed a petition for a writ of certiorari before judgment, asking the Supreme Court to hear the case on the merits as soon as possible—and even before the court of appeals had done so—given the ongoing and devastating effects of S.B. 8. The Court agreed to hear the case, limited to the question of whether federal courts can review state laws that delegate enforcement to private citizens. CAC filed an amicus brief in support of the Petitioners.
Our brief makes two essential points that both illustrate why, under a doctrine named for a 1908 Supreme Court case called Ex parte Young, federal courts can review S.B. 8.
First, our brief explains that the Ex parte Young doctrine is grounded in principles of federal supremacy. From the very beginning of our Constitution’s history, federal courts were designed to be the front line against unlawful acts committed by state governments. Against the backdrop of the Articles of Confederation, which left the federal government defenseless against unlawful actions by state governments, the Framers included the Supremacy Clause in the Constitution to establish federal law as “the supreme law of the land” and mandate that courts void any state law that is contrary to federal law.
Emerging out of these principles was the landmark case of Ex parte Young, which held that federal courts could bar state officials from enforcing unconstitutional state laws without violating the Eleventh Amendment’s state sovereign immunity provision. The Court reasoned that states cannot impart immunity from the supreme authority of the Constitution because to allow them to do so would undermine the Constitution itself.
Our brief then explains that the providers’ challenge to S.B. 8 fits squarely within the Ex parte Young doctrine because it seeks to stop state officials, including clerks, judges, and the Texas Attorney General himself, from taking steps that make real the threat that S.B. 8 poses to the constitutional right to abortion. If the Supreme Court were to rule to the contrary, it would eviscerate the rule of federal supremacy that gave rise to Ex parte Young in the first place, opening the door to widespread nullification of constitutional rights.
Second, our brief explains that Texas officials’ argument that abortion providers must wait to challenge S.B. 8 in state court proceedings brought against them for violating the law cannot be squared with Ex parte Young. Indeed, in Ex parte Young, the Supreme Court explicitly rejected the argument that a person must await enforcement of an allegedly unconstitutional law to challenge it in federal court. As our brief illustrates, the supremacy of federal law is meaningless if months can pass during which citizens are deprived of their federal rights by state law because they are powerless to challenge the law creating the deprivation. This is especially true in abortion cases where the right being infringed involves a highly time-sensitive procedure. Under these circumstances, pre-enforcement judicial review of S.B. 8 pursuant to Ex parte Young is needed to protect the rights enshrined in our Constitution and the supremacy of federal law.
October 27, 2021
CAC file amicus curiae brief in support of Whole Woman’s HealthSup. Ct. Amicus Br.
November 1, 2021
The Supreme Court will hear oral argument