tv Justices Hear Health Providers Challenge to Texas Abortion Law CSPAN November 1, 2021 10:01am-11:29am EDT
supreme court of the united states, are admonished to draw near and give their attention for the court is now sitting. god save the united states and this honorable court. >> today's orders of the court have been duly entered and certified and filed with the clerk. before we begin i would like to note that today marks the 30th anniversary of the investiture of our colleague justice thomas as a member of the court. exactly 30 years ago he stood right behind here, behind the bench and repeated the judicial oath administered by chief justice rehnquist. on behalf of the court i would like to extend to justice thomas our heartfelt congratulations for what is all of us a very happy anniversary. the court now recognizes deputy solicitor general brian fletcher.
the court at this time wishes to note for the record that mr. fletcher has served as acting solicitor general from august 11, 2021, two october 28, 2021. the court recognizes the considerable responsibility placed upon you, mr. fletcher come to represent the government of the united states before this court. you have our sincere appreciation. >> thank you, mr. chief justice. mr. chief justice, and may it please the court, i have the honor to present to the court the solicitor general of the united states, the honorable elizabeth prelogar. >> solicitor general prelogar, the court welcomes you as the solicitor general to the united states, to the performance of the important office that you have assumed come represent the government of the united states before this court. i am pleased to note that you are the 48th solicitor general of the united states. i also note your the tenth solicitor general of justice
thomas' -- you following the footsteps of other outstanding attorneys have held your office, your commission will be duly recorded by the clerk. >> thank you, mr. chief justice. it will be an honor to serve. >> wielder argument first this morning in case 21-four 6-3, whole woman's health versus jackson. mr. haran. >> mr. chief justice, and may it please the court. in enacting senate bill eight the texas legislature not only deliberately prohibited the exercise of the constitutional rights recognized by this court. he did everything it could to abate effective judicial protection of that right in federal or state court. texas delegate enforcement to literally any person anywhere except its own state officials. the only -- to do so what he
paid under ex parte again. texas been created special rules applicable only to s.b.-8 claims to make it all but impossible to protect one's constitutional rights in court. for a single abortion the law authorizes limitless suits in all 254 counties and provides and a victory in one has no preclusive effect in any other. incentivize enforcement through awards of at least $10,000 per prohibited abortion against each defendant without any showing of injury, and it added to crony and one-sided fees provisions for the liability extended even to attorneys themselves. the combined effect is to transform to state courts from a foreign for the protection of rights into a mechanism for nola find it. as respondent dixon has said, ,o rational abortion provider would violate this law. while court clerks are not
ordinarily proper defendant's, in these circumstances the principles underlying ex parte young authorize federal court relief against clerks. they're docketing of s.b.-8 suits which is critical to effectuate texas illegal scheme inflicts article iii injury in fact, and is regrettable but in order are in such docketing. s.b.-8 is an abortion prohibition that the issues before this court are far more sweeping to allow texas scheme to stand with provide a roadmap for other states to abrogate any decision of this court with which they disagree. at issue here is nothing less than the supremacy of that court. >> counsel, you rely on ex parte young to some extent, but ex parte young makes clear that federal courts cannot enjoin state judges. so how do you distinguish your case from the expressed language
in ex parte young? >> your honor, the language in ex parte young that i believe you are referring to discusses and specifically allows an injunction against the commencement of the suit and your honor i think you're that supports an injunction against the clerks. it distinguishes between restraining the commencement of a suit versus a suit that has already been filed. i think that supports relief against the clerk here. it's also premised, your honor, on there being an executive official who you could enjoin, and you're the state has intentionally taken away executive officials. >> that's what the case was about. it was about enforcing an action against a party. hence the case, the focus is on enforcement as opposed to adjudicating that enforcement. and i don't think it really distinguishes it to say well, this isn't about that.
it expressly excludes enjoining a states court. >> well, your honor, i think it excludes enjoining the court, and action after it is already n filed but it allows for, it says there is a power to restrain commencement of the suit. and i understand, your honor, in a suit it was an injunction against the state official who was commencing this suit but i don't think -- i think the principles underlying ex parte young which are to allow a federal forum for the vindication of federal constitutional rights which support and action here against the clerks to enjoin the commencement of the suit. i also think that my which in ex parte young is not about sovereign immunity. was it part of the section of the opinion where the clerk was addressing sovereign immunity. it was addressing a remedy available by court in equity.
and your section 1983 now provides a remedy and inexpressibly allows against judges acting in the judicial capacity. but i don't think you need to reach the judges issue because i think that language does support an injunction and the principles underlying ex parte -- >> i read your complaint that ii thought you only asked for declaratory judgment against the judges and an injunction against the clerks. did i misread your complaint? >> no, you're exactly right, your honor. consistent with the text of section 1983 we saw the clery -- declaratory relief against judges. >> so let's go to what the harm is. you're seeking an injunction against the clerks for. am i understanding correctly that you believe that the way this s.b.-8 is structured that what the chilling effect is the very multiplicity of lawsuits that are threatened against you?
>> yes, your honor that's exactly right. it is the fact that the combination of various ways that the state has created special rules applicable only to s.b.-8 to make state courts a tool that can be used to nullify constitutional right that recognized by this court. i would point to i think the our four essential components of s.b.-8 that the legislature created. first is it allows anyone to enforce regardless of injury. second it allows those suits to be brought anywhere in texas even for one abortion pics when abortion provider could face suits all across this state for single abortion multiplied by all the additional abortions that are provided. and then there's no preclusive effect even if an abortion provider wins the case -- they still have to continue to face suit after suit after suit because there's no preclusive effect. it turns the provider, the
abortion support into a permanent defendant -- >> i don't want to interrupt your answer to justice sotomayor but just to pick up on a point that you made and maybe you could clarify this before you finish answering her question, if you haven't finished already. isn't it the case that the texas constitution requires a plaintiff to show injury in fact, in accordance with the same standard that applies in federal court? one of the first point she made, i think may the first point, was s.b.-8 allows anybody to see whether or not the person has suffered any injury. is that accurate under texas law? >> i think the answer is unclear, but in the united states case in the preliminary injunction hearing texas, the state, the lawyer for the state told the district court the texas law is quite different from federal law on the question of how standing and private interests versus public interest work.
they said that on page 49 of the transcript, and texas speedy has the scent texas supreme court said they follow the same standard as a federal court? haven't they said that? >> they said that recently but texas courts are not bound to follow this court precedents on article iii. you're not bound -- >> but they're bound to follow the state supreme court, i do not? >> they are but the texas court, texas supreme court has never addressed a law like s.b.-8. clearly, the legislature thought it could create standing by creating a cause of action and give everyone an injury. it even if that's correct, even if an injury is required it wouldn't stop uninjured people from filing suit and it is the filing of the suit that is the point here, that it is -- >> kelso, the matters you were talking about now, , their essential to your argument, right? you agree that it would be adequate to a federal court review at the end of the state
process but for the chilling effect that you're talking about, right? >> i think not in a way that s.b.-8 is structured. if there is review from this court holding that the law is unconstitutional that would be adequate but i think there are a number of -- >> review at the end of the day, right, when we have a final judgment from the state judiciary? >> but there are a number of reasons that is unlikely to happen. first of all if you win in the trial court, if the state trial court says the law is unconstitutional in giving broader really depends on your opponents appealing that to the intermediate court, to the texas supreme court and the proponents of this law are acting for strategically -- >> if you get relief in the trial court and your opponent doesn't appeal there's no real reason for you to seek relief from the supreme court, is her? >> but in the normal case if you win that case, if you win and you don't have to continue litigating that. here are s.b.-8 says there is to preclusive effect.
>> i know you're getting back to the argument there is a chilling effect. i'm asking her for position in the absence of that. if it's just a regular type of case surely as adequate of federal review at the end of the state court process. >> in the normal case yes, that is correct i agree with that, that under normal tort lawsuit that is adequate. it is the chilling effect that in this case is greeted by the combination of delegation of enforcement of a public policy to the general public at large and there's no preclusive effect and all the special rules that are created in order to turn the texas state courts into a tool that can be used to nullify -- >> even apart from the procedural requirements that you're talking about, in a defensive posture in state court the constitutional defense can be fully erred, and i'm wondering that for this reason, the statute says a defendant may
not establish an undue burden -- this is assuming the defendant satisfied to third-party standing rules because the statute says it has to be not the regular abortion third-party standing goal. says a defendant may not establish an undue burden under this section by, and this is d2 in the section, arguing or attempting to demonstrate an award of relief against other defendant's or other potential defendant's would impose an undue burden on women seeking an abortion. so i take that to mean that a defendant can only say an award against me would place a substantial obstacle, and that's not the full constitutional holding of either whole woman's health. it's looking at the law as a whole and its deterrent effects. do you read that the simile? >> i completely agree. >> if that is the case the full constitutional defense cannot be asserted in the defensive posture, am i right? >> i think that's right, your
honor, and in the title of the section you're referencing is called limitations on undue burden defense. clearly it's not on the procedural, the texas legislators tried to change the substantive rules that this court applies to protect -- >> but this i mean you cannot get a full review even on the back and if it goes up to the texas supreme court and up to us the way the statute is structured? >> we would have an argument, your honor, and make -- that part isn't constitutional because it conflicts with his court precedents. in casey. but your honor, is unclear exactly how the texas courts would apply that whether they would follow the undue burden standard included with the legislature was trying to do was to limit the undue burden defense. >> wouldn't they be obligated under the supremacy clause to apply the federal constitution as opposed to a provision of the state statute that purports to preclude them from considering a
constitutional claim? >> they would, your honor, but -- >> your argument is they would not follow -- there it woe by the constitution? >> i'm not suggesting they would not abide by the constitution to what i'm saying is even if you have to prove that undue burden defense in every single case it is, we wouldn't say, if the law, if texas passed along making it a criminal violation to provide an abortion after six weeks, that there's no problem because you can simply raise undue burden at trial after criminal trial. this court precedents allows pre-enforcement release, like to come to court and said don't need to violate the law and order to first raise the constitutional defenses. i can come to court under ex parte young in section 1983 and seek a ruling that my constitutional rights are being violated. >> we have laws that preclude the enforcement of judgments in
which process has been denied. where you were not given an opportunity to air your claims. justice barrett pointed out to provision of this law that says you can't present this claim. this way. all right? whether -- what the judge's will do is irrelevant. i thought the essence of your argument was that the law as law is precluding you from using the judicial system as a neutral arbitrator. >> that's right because even if we raise a successful undue burden defense in one case you have to do it again in case after case after case. >> it doesn't really matter. the point is it's not, it's not a neutral arbitrator. it's an enforcer being used as an enforcer. >> i agree with that, your honor, but your honor, the point is that regardless of the outcome of the case it is the
threat of filing an unlimited number of cases in county, and counties all across the state where there is no preclusive effect and where the state has even made it so more difficult to get an attorney by making attorneys liable for fees come for the other side fees. all that creates a threat. >> keep going, , sorry. >> i was just going to say the combination of all those factors together creates the chilling effect that is preventing the exercise, and that is under this court's precedents and irreparable injury. >> can we talk about ex parte young a little bit? you make the point correctly that usually you can get pre-enforcement review in federal court when it's in forest, and laws enforced by state prosecutors come state executive officials, that's long-standing law. the issue here is different because it's private enforcement in state courts. and that raises a novel issue
for us about how to apply ex parte young. the ex parte young principle is that those who enforce the law can be enjoyed for can be sued in pre-enforcement suits in federal court. but as justice thomas points out in the two paragraphs at the top of page one 6-3 of ex parte young, state courts seem to be carved out from that. so that's the tension i think identify. the principal ex parte one versus a language at the top of page 163. for me that's been a real sticking point in trying to sort this out. one answer, you didn't give is that subsequent law says that when state courts entertain private civil suits, they enforce state law. so wanted -- shelley versus cramer being the most prominent landmark example of that. can you fill in the gaps there and explain to me how we should
think about the ex parte young language in light of how we can conceptualize state court enforcement of private civil suits now. >> yes, your honor. so i think the most straightforward way to apply ex parte young were to allow relator under ex parte young is against the clicks as i said because that would stop the commencement of the suits it wouldn't creaking of the problems raised in ex parte young about stopping the adjudication. >> sorry to interrupt you think justice thomas' question was also getting at though, take the .2 distinct the judge from the clerk. are the clerks subsumed within that language in ex parte young? you're saying we shouldn't do that and the just what are your answer why should we do that? >> i don't think so because that language distinguishes between the power to restrain commencement of suits what you think that language actually supports relief against the clerks versus whether courts should restrain a case case brought before it.
now, which would mean -- that would refer to the judges here. now i do think in subsequent present decisions of this court you are correct there are instances where the court has recognized in pulling him, in michelman where relief against a judge in fact, congress recognizes section 1980 through that texas, actually 1980 through that two that judges can be proper to fitness and we brought that -- >> that's more than just that frankly because ex parte young depends on enforcement. i think that's the key word. it turns out and shelley versus kraemer the word enforcement is there in there by my count 27 times give or take a couple to describe what state court to do when they adjudicate private civil suits. >> that's right and by judge jackson at a press conference that he's the enforcer of the laws in east texas and i think that's clearly, it is clear to correct the when the court issues an injunction, and
mandatory injunction issues and monetary penalty what the court is doing is enforcing s.b.-8. >> the judge may be enforcing a state law when the judge renders a decision based on that state law and provides relief based on the state law but do you think a judge is enforcing a law when the judge merely begins to adjudicate the case? >> i think one way of potential looking at it is that by requiring -- so, yes in a sense and one would looking at it is that by requiring litigations to be in court and requiring them to make filing and appear in court, because he would be multiplied -- >> legislature enacted a statute that said henceforth people of a certain race may not make any public statement. and someone bring suit under
that. as the judge begins to enforce that just i entertain the suit? >> i think -- >> certain at the end of the case the judge is going to say no, this is some constitutional statute? >> i think in certain circumstances in a situation like s.b.-8 where the point is filing of the suit and the point is making you appear in court all across the state over and over again, making you a permanent defendant, that in the circumstances -- >> were you finished? >> i'm taking up his argument. look, you say judges at least in many circumstances are enforcer. there are 4 billion tort suits in the united states, okay? and probably 3 billion of them somebody thinks something is unconstitutional. so can they all see the judge? [inaudible] >> what's the difference between this case what you think he's an
enforcer and 4 billion other cases where you read their briefs come you understand their argument. what's your response to it? >> the response is that under the road we are advancing here is that were a state is trying to notify the exercise of a right, a constitutional right that it been recognized by this court by delegating enforcement to the public and taking away the normal ordinary executive officials, and can also create the special court rules. in order to turn the court system -- we are not saying that judges or clerks are intending to do anything here, but it's the rules that have been created by the texas legislature that turn courts into a weapon that can be used to notify constitutional -- >> i appreciate that the idea suing the judges got our attention, but is there even come is or even a case for a controversy in such a suit? i understand the position of the
plaintiff, exactly what he or she wants. the judge is not necessarily adverse to that. the judges role is to issue a decision. the idea of someone who's going to decide the question is the person that automatically adverse to the person to ask the question seems to me to raise a real problem under the case of controversy requirement. >> i think there is a case or controversy if i could address the clerks first that there's adversity in the case or controversy against the clerks, your honor, because the clerks are saying they have a duty under state law to dock at a position to issue summonses and we are saying that even the initiation of an enforcement proceeding violates constitutional rights and that they should not docket. that is adversity. doesn't matter whether the clerks agree with the law want to defend the law and spit is a ministerial function, some new shows up with a complaint, once file a complaint and assuming
the formal requirements are met the clerk files the complaint. the clerk doesn't have the authority to see you can't file this complaint because it's a bad complaint. what if the judge, the presiding judge in a particular jurisdiction said okay, fine, you don't want the clerks filing these things. if anybody shows up with an s.b.-8 complaint call me and i will docket it myself, then what? >> well, your honor, that's why we've asked for declaratory relief against the judges but i think i do think -- >> this business about the clerks. >> i do think relief against the clerks, your honor, would alleviate most of the harm and would allow abortion providers to understand and, in fact, the ministerial nature of their docketing is exactly what makes him a proper defendant here. we know that clerks will docket every s.b.-8 petition that is brought forth, and the state has encouraged, as incentivized enforcement by offering $10,000
or more bounties effectively, and by lowering the barriers of entry for people across the state by allowing anyone to see without having to show an injury, by allowing them to sue in their home county, and to not have to worry about paying the other side attorneys he and only get there dash and even get the own attorney fees paid. we know the act of the clerks docketing is exactly -- the state has made the clerks and essential role in this machinery that they had created to notify constitutional rights that it been recognized by speeders are you arguing there's a constitutional right to pre-enforcement review? and if so how do you reconcile that with sheldon? >> so our first argument is actually that congress created the right in section 1983 -- >> assume i don't buy that. >> so i think yes, there is an ex parte young recognized that
in these circumstances where it's not going to be come with the penalties are so severe and where there is, it's difficult to find someone who is willing to even violate the law, a test case. i think ex parte young address all that and said there is a procedural due process violation. >> okay. i think there is language in ex parte young the favors you don't think i think thunder basin since it might be some circumstances in which pre-enforcement review is constitutionally required. in this context presumably that might happen in state court. even if there is some sort of constitutional right to pre-enforcement for you. need to be provided by a federal court? >> i'm sorry, missed the last part of the questions for if there is a constitutional right to pre-enforcement review in your reading of ex parte young doesn't have to be provided by a federal court? >> i think ex parte young does support in federal court yes, in part because state court review in circumstances like in young and here is inadequate for
number of reasons that of happy to get into. >> thank you, counsel. justice thomas, anything further? justice breyer? >> i would like just to be sure i have this. your basic point i take it here is, as we discussed it, is this kind of a private lawsuit, is not an ordinary tort suit, okay? so i tried to write down the reasons i want you to add anything i i leave out. one, anybody can see you. well, okay, debatable. two, anywhere in texas. texas is a bigger problem problem than rhode island. three, it has no preclusive effect, jones one sues the clinic, jones two through 4000 can sue. sue. format, the attorneys fees are very heavy. five, and they don't apply both
ways -- five, the penalty of $10,000 et cetera is heavy. and six, you are limited if you are defendant as to which kinds of defense you can make in respect to there being an undue burden, which is a problem because most of the undue burden cases speaking generally of the effect of the law of state, not in this particular defendant. okay? i have six i caught from you. is there a seven? >> i have two more, your honor. >> okay. >> the first is that damages are not tied to did not of harm which would be normally the case in a tort suit. and the second one is about s.b.-8 provides for a mandatory injunction, if there is a successful claimant to prevent further violations, not to prevent further harm to the
claimant. it's not tied -- a mandatory injunction is not tied to the harm. >> thank you. >> justice alito? [inaudible] >> suppose this happens, a woman shows up at the clerk's office and says i want to file a complaint against a doctor who performed my abortion because it cost me physical and/or emotional harm and i want to sue under s.b.-8 because i want actual damages but it also want the $10,000 in liquidated damages. and you say the clerk should say what? >> the clerk should reject the filing of that lawsuit. >> thank you. >> justice sotomayor? >> i presume that any other lawsuit based on common-law torts, emotional affliction of harm, breach of contract,
medical malpractice, whatever else was available would still be available to that woman? >> if there is a common-law tort lawsuit that is not an s.b.-8 lawsuit, yes. >> contract or otherwise, or contract. >> yes. >> thank you. >> justice kagan? >> mr. hearron, if i could turn technical for a minute. should one of your arguments prevailed or another argument in support of your position prevail, doesn't matter exact which argument it is to me, what exact relief are you requesting? >> we are requesting an injunction -- so we have a pending class certification for defendant class against the clerk so will be requesting an injunction against the commencement, or the docketing of lawsuits against the clerks across the state of texas as well as injunctive relief against the executive officials for the residual authority to
enforce s.b.-8. >> i mean, suppose i think, tell me if i'm wrong on this, just the procedural morass we've got ourselves into with this extremely unusual law, is that we would really be telling the fifth circuit, again if your -- you prevailed, the district court to be allowed to continue with its preliminary injunction ruling, is that correct? is that what we would be doing? >> i think technically what you would be doing is affirming the district courts denial of the respondents motion to dismiss which would then allow us to proceed to our pending preliminary injunction motion and pending summary judgment motion and pending class certification. >> and while the district court does all that which would be saying the district court do, have you made a motion for
interim relief? i mean, i know there is a motion for interim relief in the united states versus texas case, but if you were to prevail we would navin have to rule on the united states versus case -- texas case. that's comp look at it. we, but the motion for interim relief is in that case, not in your case. am i wrong about that or do you have a motion in your case that would enable interim relief? >> we haven't felt such emotion but ask the court now that if it is not going to reinstate the injunction of the united states case that issue interim relief now against enforcement because the law is patently unconstitutional and if these are correct defendant's, then enforcement should flow so we ask the court to issue such wit
with. >> thank you, mr. hearron. >> with the chief allow me a follow-up? >> share. >> counsel, if we vacate the fifth circuits order, orders basically staying at this district court proceedings, presumably that would vacate its denial of the state that you asked from the district court order be reinstated the district court order to have a stay in place come when you? >> technical dark tuesdays and please come when issue but this accord in one issued by the fifth circuit. and if you were to vacate those in the interim that would be able to go back to the district court and ask for an interim relief in the district court. >> if you were granted a stay of enforcement by law? >> we have never gotten to the point, your honor. >> thank you. i forgot. >> justice gorsuch? >> i do have a couple of questions.
on chilling effect do you agree that of the laws often a chilling effects the axis of the constitution protected rights that can only be challenged defensively? >> not to this extent. >> you agree there are laws, definition loss, gun control laws, rules during the pandemic about the exercise of religion that discourage and she'll the exercise constitutionally protected liberties? >> yes. >> and they can be challenged after-the-fact? >> i'm not sure all of those laws could all be challenged after-the-fact but there may be some. >> certainly there are certain circumstances where that is true, right? >> that's probably cracked. >> so it is a line drawn between those cases and your case in your mind, okay. and then on the relief a understand you correctly that relief against the clerks you think is sufficient for your
purposes? >> i think that it is, it would go most of the way to getting the relief that we need in order for abortion providers to be providing a game. we do think it is also appropriate for the claret jug -- declaratory judgment against the judge of i think -- >> and you agree previously, there under obligation under state law to tell everything that comes in without looking at its contents or judging its contents, right? >> yes although i think there are certain circumstances which for example, a judge may direct that a particular person may not file because they are file too many frivolous lawsuits for example,. >> pursuant to a judicial order otherwise are obliged to follow everything that comes their way? >> yes. >> so use the constitution overrides the requirement in this case? >> yes, we believe so. >> and what about the cases where s.b.-8 could be constitutionally applied, consistent with roe and casey?
post-viability posl reasons that would meet the united states and casey tested other supposed to apply roe and casey themselves? >> i don't think, no, i think they should be enjoined from docketing any s.b.-8 lawsuit because it is including constitutional ones? >> that i think that is, the existence of those claims is naturally excess a constitutional rights here, but speediest exacta bet they would enjoined them anyway. >> yes, and that's consistent with the relief that has -- >> if the clerk goes ahead and dockets a permissible nonkilling petition, a federal judge could find him in content and put them in jail, right? >> i think that would be, their standards for criminal due process. there are due process standards -- >> but subject to those
standards? >> those would be extremely difficult to meet for the most part, and we believe clerks will follow the injunction in good faith. >> justice kavanaugh's? >> a couple follow-ups to justice kagan's question. i think you also a depending tro in the district court with a preliminary injunction in the class certification come is that accurate? >> yes. >> to follow up on the chief justice's question which i think reflects from my viewpoint a change in your reply brief, or maybe i don't want is a change, shift in focus in the reply brief to the clerks from the judges and clerks. and if i'm understand you correctly you are saying that ex parte young principal should apply to both but the adverse miss issue may be more serious with judges and, therefore, you focus on the clerks work that's how i read your reply brief because it was noticeable to me. >> i think that's right, your honor, that it is easier to say
that we are adverse to clerks because the defiling of a lawsus which is the pointer to great the and aroma affect the to chill constitutional rights is a funny of lawsuits and that creates a sharp adversity to the closed-door just performed their duty and not adjudicating anything. >> okay, then blast to follow-up on on justice breyer's question he missions the flood division which the state has raised desha mentioned. there a lot of ex parte young in court to enjoin the usual state laws that are unconstitutional but the claim by texas is this will increase the load. give you another chance to respond to it. >> i don't think that's correct. this is an exceptional, this is unprecedented, and under the principle that we are advancing would not allow suits against clerks to challenge most loss. this is a unique law created because the state has delegated -- delegated enforcement and taken away the normal executive
officials who would enforce and his weaponized the state court system into a tool that can be used to advocate constitutional rights. this is unique situation i think the real danger is if this court does not allow the suit, then that will provide a roadmap for other states to aggregate other rights that event recognized by this court. >> thank you. >> justice barrett? >> thank you, counsel. general stone? >> thank you, mr. chief justice, and may it please the court. petitioners pursuit to an injunction suffers from two fundamental problems. first, none of the individuals the petitioner sued are appropriate defendants under well-established article iii equitable principles. second, petitioner has asked for an expansion of access to the federal courts that only congress and not this court may
provide. petitioners article iii and equitable problems again with what they really want, an injunction against s.b.-8 the law itself. they can't receive it because federal courts don't issue injunctions against laws but against officials enforcing laws. no texas executive official enforces s.b.-8 either and so no texas executive official may be enjoined. petitioners then turn to state court judges and state court clerks and apparently in this court now narrow their focus to state court clerks but even they don't suggest that either judges or clerks act on lawfully in the ordinary course by a judean case pursuing a complaint. so petitioners harms are not fairly traceable to any unlawfully, to unlawful behavior by state court judges or clerks. and this court recognized in ex parte young itself that such an injunction would be a a violan
of the whole scheme of our government. state judges are presumed to faithfully apply federal law and this court's decisions. if they do not, this court may exercise appellate review. that is exactly how federal constitutional defenses are presented and adjudicated all the time. if congress believes it needs to expand access to the lower federal courts in order to protect petitioners rights, and that is a matter for congress, not a basis to alter come to alter bedrock doctrines organizing the federal courts. i welcome the court's questions. >> mr. stone, why wouldn't you consider the s.b.-8 plaintiffs to be sort of attorneys general? if the attorney general or other state officials don't enforce the law, would you be unusual to
consider them as acting in concert with the state to enforce a state preferred policy? >> two points, your honor, first every point -- tort has state preferred policy. the reason why they're not acting in concert with or cannot be called -- >> but usually when you think of traditional torts there is a duty, there's an injury to the individual, it's a private matter. there is no requirement here that the be an injury to the plaintiff. >> your honor, the texas supreme court is filed article i record in terms of injury in fact, the doesn't need to appear on the face -- >> what would that injury be under s.b.-8 if it's an injury in fact? >> one example, the tort of outrage when individual becomes aware of an unconfined abortion and to suffer the sort same extreme emotional harm. that would ground and article ae iii for purposes of texas law though sufficient to satisfy the
texas article iii style screen that addresses some of my friends on the other sides concerns about an unlimited set of lawsuits or that anyone could possibly bring s.b.-8 action. congress passes laws all the time that don't expressly require an individual show, for example, their own personal injury or traceability or redressability nonetheless this court says was a fun in the requirements of article iii and the texas supreme court traces that same requirement to its own constitutional analog via open courts provision. >> forgive me but it don't recall and outrage injury. what would that be? you said extreme outrage, that would be the entry. >> the injury would be akin to the one suffered in a tort of outrage where a person witnesses something essentially finds to be so extreme moral -- >> give me an example of that. >> an individual discovers that someone, that a close friend of theirs who that spoken with
about pro-life issues and about abortion has chosen instead to have late-term abortion in violation of s.b.-8 and they were very invested in basically in that child's upbringing the child didn't get to the extent to which this would have to be a tighter nexis or what is a sufficient injury in fact, is going to be something the texas courts have to develop in the first instance and, of course, there's going to be some tether between a real world not just an offense but grievance offense that we understand underlies ied as a tort and still nonetheless has a real world, real-world harm. >> thank you. >> i would like, which is going to ask, assume that the bounty is not $10,000 but $1 million. do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court
process? >> know your on because that wouldn't affect either the article through our sovereign immunity problems in this case. undoubtedly would increase the chill the same way individuals exercise are hard to be protected conduct. >> the only way in which you get federal court review is of course for somebody to take action that violates the state law and didn't be sued under the law and then have the opportunity to raise their defense in federal court eventually. and you are saying that somebody is going to undertake that activity even though they're going to be subject to suit for $1 million repetitively? because that's an exercise of chilling effect. >> pass that what i'm saying. what am saying is doesn't expand access to the federal courts. there is still pre-enforcement review i might note. there are currently 14 pre-enforcement reached challenges painting in travis county state court. so to speak specific to concern about federal court
reinforcement access, no, that wouldn't change the article through sovereign entity doctrine and that might very well be a reason why congress could be moved to expand access to the federal courts through the ordinary course or by using their section five powers of the 14th amendment but even if the amount of the sanction again i agree with you $1 million would be tremendous. we could increase it further, no number would suddenly cause the federal court to become more open. >> it's not a question of the federal courts be more open it's a quite of anybody have a capacity or ability to go to the federal court because nobody's going to risk violating the statute because it was subject to suit for $1 million. that takes a lot of fortitude to undertake the prohibited conduct in that case. under the system it is only by undertaking the prohibited conduct that you can get into federal court. >> individuals again to the extent meeting with the sorts of
conduct fines, sanctions et cetera i might add this is specifically a damage action, much less than that that is significant -- >> my question is will become a hypothetical. >> of course, mr. chief justice, but nonetheless an individual facing extreme sanctions come still nonetheless often has to go through state court systems to vindicate their federal rights. individuals are charged with possession of firearms in states like illinois and new york in the face multiple year incarceration stands as as a possibility of trying to exercise their second amendment rights. it is the case constitutional right litigated right now with very severe potential sanctions for going through the state courts and with no ability to go to the federal courts before essentially that pre-criminal process ends. >> why does s.b.-8 allow plaintiffs suing abortion providers to sue anywhere in the state? that's not the normal way of venue works in texas, is it? >> it's not, your honor, and for
a variety of individual, handful of individual procedure rules inherent to s.b.-8 decide to favor this cause of action the same way there are some designed to favor causes of action like ring is it with the antitrust laws or under 1983. happy to steeply to that but to the extent they became extraordinary if anything might sound into procedural due process claim which my friends here are not bringing. they are bring a substantive due process claim to s.b.-8 andy slavitt italy itself and attempting to cash that out through some form of enforcement against first texas officials and the court clerks and so on and so on. i might point out turning specifically to the assertions my friend on the other side of said regarding court clerks that is not even clear injunctive relief against state court clerks would give them what he wants because under texas rule of civil procedure 22 a petition is deemed filed upon receipt by the clerk so the clerk doesn't have the opportunity to reject the petition. it would be a question of texas law in the event this court
interceded in essentially -- >> can i go back to a second to the sort of bigger picture, which stuck in my mind when i read all this roadmap. i thought of homes. two statements. first, homes remember it seems john c. calhoun the risk of notification position destroyed voted by the civil war, all right. you read the argument this as it's sort of like that, sort of, okay. holmes said the best. i do not think the united states would come to an end if we, the court to come lost our power to declare an act of congress void. i do think the union would be in peril if we could not make that declaration as to the laws of the states. all right? keep that in mind. now, holmes was on the court for
ex parte young. that court said, to await proceedings against a company which is equivalent of the clinics and the women here, and a state court, and then obtain review in this court would place the company, i.e. women and clinics, in peril of larger risks and its agents in great risk of fine and imprisonment, which you just heard the equivalent. this risk, the company, ought not to be required to take. now, why doesn't holmes statement, in your opinion, illustrate what is the underlying problem here, generally speaking? and why doesn't ex parte young . the way towards, not precisely, what point the way towards an
answer? >> two points, justice breyer. the latter being what you're describing would be something of an expansion of ex parte young as i think even my friends on the other side concede. as this court noted an injunction against the courts themselves of the ex parte woody bennett -- this court said specifically speaking about our expansion from post judgment creditors ability to restrain the debtors asset moved to a prejudgment ability to do so that was simply too great of a novel equitable innovation for this court court to be abt itself to essentially innovate. to do something that would have been understood in ex parte young in the very same opinion, there's a violation of her whole scheme of government is surely a much greater innovation. and if this court is going to stand by -- >> general stone, i think what justice breyer is suggesting is that the entire point of this
law, its purpose and its effect, is to find the chink in the armor of ex parte young. that ex parte young said -- set out a basic principle of how our government is supposed to work and help people can seek review of unconstitutional state laws. and the fact that after all these many years, some geniuses came up with a way to evade the commands of that decision as well as the command that the broader, even the broader principle that states are not to nullify federal constitutional rights, and to say oh, we've never seen this before so we can't do anything about it. i guess i just don't understand the argument. >> let me speak to the latter point that you're racing first and then turning back to the ex
parte young one. this statute on its own terms specifically incorporates as a matter of state law undue burden defense as articulated by this court in casey and subsequent cases. there have been some previous questions regarding whether or not it is incorporate that in every particular regard. there's a separate provision of the very come of that law that specifically says that nothing in section basically prohibits individuals from asserting their constitutional rights and so, too, the extent the texas legislature has neither imperfectly or in a completely recorded as a matter of state law this court's recognition of the casey right. individuals may still direct that right fully and completely. nothing in this or even pretends that texas courts could ebay that because it can't. >> well, when it said that, their rights, i took that to be say the first amendment rights if you had somebody who was counseling summoned to get an abortion say, then was sued
under this law that they could say i've a first amendment right to free speech because it would be unconstitutional. i didn't take that particular portion of the law to me that they could assert third-party rights. >> were speaking at two different portions. there's a portion of said something very closely, also subsection f which is nothing in section show and in with primitive the limit other than pursue personal consultation rights in the fincen so-and-so for. >> personal constitution was, not third-party rights. so the clinic personal rights differ from the rights of the woman who is the rights holder? >> there's a different provision us as individuals may raise the undue burden defense to the limit allowed by this court specifically. now it may be the case those three provision still perfectly lineup and by introverted forces that at some point a third-party right that's recognized by this court can be perfectly raised as a state law defense. it so as in all cases an individual can raise that particular piece for the entire
case as a federal constitutional right that is a default state court judges who swear an oath to the constitution just the way the justices on this court and the lord federal courts do i i presume they will apply in good faith and they are always sanctioned by this court and any appropriate case. what can't occur is what couldn't occur in new york times v. sullivan or for that matter masterpiece cakeshop. an individual who thinks it will be subjected to a state court process that you do going to be very difficult for them or otherwise unfair in terms of the midst of the decision is not permitted to go to a lower federal court and seek functionally an injunction against the state trial court -- >> general stone, keep going. i think all these arguments were the same argument that minnesota race in ex parte young itself. you look at the history of the case, it was an extraordinary controversy in the united states and in minnesota, about the
federal court view. and that itself didn't exist before ex parte young. in other words, i was an extension of pre-existing doctrine to recognize the problem that the chief justice was identifying, deprivation of constitutional rights and chilling on the ability to get judicial review. so ex parte young sets out this principle that you can get reinforcement review in federal court against state enforcement of laws that are unconstitutional. 990 times out of 1000 maybe every time until this case that's the state executive official, and pro forma exercise usually to identify the state executive officials are justice kagan points out there's a loophole that's been exploited here or used here, which is the private suits are enforced by state court clerks or judges. so the question becomes should we extend the principle of ex parte young to in essence close that loophole?
in other words, put aside the language in ex parte young for a second, that a strong for you i agree, but the principle of ex parte young and the whole sweep of ex parte young would suggest extending the principle here arguably. >> two points. one, no. this court has disclaimed the power to innovation. to the extent that were still an open question, my friends items on the other side might militate towards having one claim. give itself the power to essentially create a novel nontraditional cause of action and if the language we are discussing in ex parte young means anything it means certainly an injunction running against a state court to prevent the adjudication of a state law case something entirely foreign to this court. ..
>> and yes your honor but the key part here is a reference on the other side are not even alleging that the is a violation of the 14th amendment work violation itself, it is the nature that potentially later down the line that the case might in fact be adjudicated negatively against them in a state court clerk, who received the petitions and put them on the docket and judge is required a reply and everything else, they're not article frequently during that process, rated. >> the theory is that the enforcement of the law is to the plaintiff's interest and injury in the state of visual, say the court, is part of the within the chain of the state officials who have some connection which is the language some connection to enforcement of the law. >> but respectfully your honor,
that is some connection was referring to all the way of the connection with the attorney general and bringing the suit to start the commencement of the suit in the language of an anti- suit injunction against an official to stop them from litigation. >> can we go to the question of the attorney general which is competent race before, the attorney general has here the argument is that he doesn't enforce these laws the attorney general does not the district court suggested that was not true because the direct enforcement authority with regard to the sba shifting provisions and concerning and legal challenge to any abortion restriction or regulation. it may also have constitutional authority under texas law to enforce texas law. in this reasoning was that if
there is an agent who can enforce the law, in part or in whole, and they are sued, then everyone else in the enforcement chain is in joint so it's every private citizen here, has been deputized by the state, to enforce this law for the bounty, and why included an injunction against the a g bar the citizens are going to court just the way that the district attorney or the police officers from arresting people once the order has been issued or district attorneys from prosecuting those people for violation of the law and the courts have found unconstitutional. so the attorney general, the
representative of the state is not legal. >> two-point on the private litigant side, there is no divinization of individuals in the attorney general - >> assume that i disagree because to justice thomas' point that i'm never seen a tort that does not give you, it gives you redress for bringing the suit. and whether you need proof injury for standing, is irrelevant into what qualifies you for the bounty which is injury qualifying you for that and bringing the suit does >> i understand the direction of your question can be attorney general just like every other official plaques the power to either direct a suit or to order
the suit be dismissed or to intervene in a suit, and to otherwise - >> you don't understand the point, it is part of the enforcement mechanism of the issue, on the whole because the state has chosen to deputized an entire slot of citizenry to do that but if retrained some direct or indirect proportion power. so the fiction and we issue an injunction in the traditional course of the a.g. and we expect that everybody understands that they are precluded who acts on behalf of the state, to be precluded from entering into an unconstitutional law. >> it wouldn't change anything that he could do and would not change bringing a suit or be able to stop a suit he could not
withdraw - >> thing with the question in this way, suppose that were not this enforcement provisions in suppose for a normal law, you know hard the floor, you would sue the attorney general. >> i would assume so if - >> i mean,, the actions of would not be brought by the attorney general it would be brought by a local d.a. wouldn't they. >> the differences their local elected officials that are not accountable to the attorney general and about trying to push catechins or hypo but didn't think that you're giving me a fundamental change whether they would be accountable predict. >> are you saying that in a normal abortion restrictions, that a suit against the attorney general would not be sufficient because local district attorneys are bringing the suit. >> it would depend on if they
were essentially not accountable attorney general and the hypo to little bit to say . [inaudible]. >> the attender and the attorney general does not have direct authority over the dna, but nobody would dream of bringing a challenge to it in that circumstances and the fact that they do not have direct authority over these private delegated individuals exercising litigated power and shouldn't it matter for the same reason. >> individuals will be able to bring those individuals but what about the attorney general of the key difference would be those individuals in the county attorneys and district attorneys would ultimately be able to enforce the law by bringing a lawsuit and there is that we are sort of at the hypo than pushing back against here, are that the attorney general simply does not have any control of the procession of that lawsuit in anyway and and he doesn't have a mechanism such as the context of
taking over litigation he can't certify that a lawsuit is not in the safe interest or in order to enter to submit the is none of those sorts of mechanisms whatsoever because of that they can possibly be at a minimum, redress the injuries unless this court were to say that private individuals not planning to bring suits or anything like that or somehow ages who are acting in concert with the attorney general of the problem with that is that again that we have no authority over them in the basic concept of agencies and there is a principal of the agent and the agent is responsible for the principal and the principal and in this hypothetical company attorney general exercises no superabundant supervisory authority whatsoever early suit writers. and in fact were not being approached is just a matter they can be resolved in the district court and were not being approached by directing anyone else litigation and individual people are choosing to bring or not bring these and pre- enforcement challenges.
>> they ask you about the implications of your position for other constitutional rights, the firearms, the policy coalition says they would become the model for suppression of other constitutional rights with the second amendment rights being the most likely targets. and it could be free exercise or religion or second amendment rights. this position is accepted here, and the amicus brief is that it can be easily replicated in other states that does favor other constitutional rights, your response. >> they were concerned for a lack of immediate court access would cause liability otherwise to exercise the rights and recently succeeded the protection of local commerce in arms expert and specifically passed in response to the state
tort lawsuits in which there were no immediate federal review and could only on most he brought. >> that would be quite difficult to get that through congress and absent that, the second amendment right, free exercise religion rights and free speech rights could be targeted by other states in this using the ex parte young language on 163 and to really infringe those and bring huge penalties to the chief justice hypothetical never million sales in ar 15 liable for million dollars in to any citizen. uncertain with the status of the second amendment ultimately will be which where they will have purchased and with that kind of law would be exempt from pre- enforcement review entitled court. >> my answer does not turn in the nature of the right, so we can put in religious - >> so we can assume that this
will be across the board equally applicable as a firearms policy coalition says to all constitutional ranks and you also said the amount of the penalty does not matter, $1 million per sale or anyone who declines to provide a service for the use in the same-sex marriage, million dollars, sued by anybody that is exempt from pre- enforcement review. is that a yes. that's exempt from pre- enforcement. >> in a sense that the congress and the statutes define the federal courts would have to be modified by congress. >> your answer to just as cavanagh, i mean isn't the point is that you don't have to ask congress and that it doesn't really matter what congress thinks what the the majority of the market people think as to that right pretty.
>> especially, it is that just in the other asking for here we have to assume that other state court judges are in fact going to faithfully fly the constitutions is rights and discords decisions and the state court process to be sure but that is an inadequate video. venue. >> basically defines a chilling effect, people who want to exercise the right from the opportunity to do so in the maybe long-term interim. >> no doubt that is the case and lawsuits including constitutional was a nobody and spot the litigation delays in constitutional dimensions for purposes of expanding access to that of course i don't think they should be the first one to start. >> i have just one additional question that there was a statement in one of the briefs,
you. and said that have every prerogative to adopt interpretations of the constitution that differ from the supreme court's and state of texas do they have a position on the predict. >> is a course of the state of texas will absolutely faithfully apply any decisions of this court is a understand them to apply of faithfully and the other officers inside in texas are found likewise to take the interpretations from this court in the federal law printed. >> thank you counsel. >> i got the impression that the enforcement mechanism is really passengers who are supposed to sue, the railroad and the attorney general did not have any direct power, he's just kind of a residual power. so i looked at the texas statute
and seems like the attorney general has the same kind of powers are to see that these was a contempt case but i see it there and they say this attorney general with just the residual power, they can go sue him and the problems that case that they didn't appear. and it turned out that the statute, nobody important because it is been said to be unconstitutional in the a.g. case. is there a difference that i overlooked. >> even given all of this fax, described an injunction with young the state courts and state clerks, the violation of the whole team and in this particular case, the attorney general has no connection whatsoever, not even in the enforcement of that fda. >> when this law was enacted back in the middle of may i
believe, i don't know if the suit was filed or where they stand now, are they being delayed as a result of the federal court litigation and how quickly might we expect to see a decision in a case. >> they were filed promptly before the effective date, 14 of them and mostly district little mitigation said summary judgments in duke and today snap so i assume judges acting on a highly expedited schedule is whether the proposed practices, cannot say but i have very little doubt the texas course if this case they are expeditiously done. >> they were filed around the time that it was enacted or two in effect back in may. >> i believe when they took in effect. it appears the motion for
summary judgment dead deadlines are suffering ten days from now and continuing even given this course - >> my understanding state have only state law claims and that has not raised federal constitutional claims, is that correct. >> planned parenthood has raised federal constitutional event summary these dino in each now and certainly, especially raising discourse by the case. >> they talked about equitable remedies involving private parties. in 1789, we had just created a new system of government so we have never had injunctive relief between governments because we did not have anything like this before in england or anywhere
else. the system of government that we have created. i listened it to what young said about the work of the court in the branches ongoing work in the branches, but one thing that we said equally important is that constitutional rights declared by this court presided to notify and to nullify openly and directly by state legislatures or state executives or judicial officers and these are the key words. or indirectly through invasive scheme so given what i just said, that principle is inherent in the constitution. why would i be looking to assist
bite cannot exist by its very nature, when does exist are the words we said an expert to the younger which was we are charge by congress and ensuring federal rights are respected directly or indirectly. so could you respond and tell me why we are limited by anything in terms of what is equitable remedy, what would be be like assuming that we were to find and you can challenge the assumptions but you will waste your time, assuming the worst behind that this was the scheme was intended to chill abortions that were constitutional. >> in the minimum this court is saying that congress was the one
it invested into the federal course was equitable jurisdiction in the first place and that whatever equitable jurisdiction occurs in the course occurs in this congress gave it to them in the court recognizes the limitation it in mexicano that i do not understand across the public-private distinctions or a separation of powers distinction between whether or not this court will congress and expand beyond traditional equitable remedies available have nothing else from expert the young significant on this point, the one thing that violates our scheme of government what is wrong before is that these indication that that kind of injunction is not traditional equity. >> justice kagan. >> with respect to the what justice khalil was asking mark, is there anything that would prohibit from bring a pre- enforcement action against the law for violating the
constitution. >> no your honor, there were individuals for the sbh - >> in state court on this issue now and there's nothing to prohibit them from bringing them one rated. >> other than identifying making a reasonable - >> on the chilling effect question, suggested that the chilling effect here is different in time because of bounties and the involvement of private persons i would like you to address that. and often constitutional and be in the defensive posture. an individual space either with potential liability to the damages but also of course, civil find us and even criminal sanction including a prison time. i want to understand your argument as to why this is or not different. >> is not different in kind, is a much more mild the variety of the constitutional rights that
we have been discussing the state potential downside risk from failing state court litigations and again there was an great deal of exposure and celibacy from a defamation action an individual suffering potential criminal sanctions for the second a minute rights all of the time and 10000-dollar liquidated damages provision and potentially a shifting mechanism on top of it is comparatively mild compared to incarceration versus the second amendment rights and realistically, though the complains about the plaintiff favoring procedural rules and fda, would amount to anything even considering a procedural due process violation if this were about making widgets. the only sideways of casting the procedural due process is version it is an attentive get fundamentally to and free enforcement challenge. >> on the follow-up on his question of the pre- enforcement
challenges in the state court and you said is a matter of finding a private plaintiff to sue this out right. that they will sue because and so the state court if i understand that answer that you gave that the same problem that the challenge exists there and even if i identify a private potential plaintiff expresses the intent to sue, injunction only against that one plaintiff we would have all the same problems because the attorney general cannot be sued in the state court. so it's not that style i guess that's what i'm asking. >> individual generally with multiple people acting in concert, can they can be joint and i will say there is one feature that is been brought up before, that is if in an individual who has an action bargain from or pays these
statutory damages amount, then no further liability can be brought by anybody the same act as of that would extinguish me down the line possibilities series of lawsuits rated. >> for that one abortion but i guess what i'm getting at and i think the answer because your shifting is that you cannot get global relief in the same length of free enforcement challenge and young in federal court gives you relief from the prospects of those forced to be against anything that the state court the actions do not offer that. individual by individual basis. >> yes justice barrett, in the same way that emily would be unknown.
>> i would like to begin by picking up on the question that the justice barrett was just asking, the pending state court proceedings, relief would be against only those defendants who were sued in those proceedings but private defendants, and in fact, the defendants are acting strategically in order to preclude a broader review now stipulated in temporary injunction in order to vent an injunction that might then appeal and broader relief from the higher courts and the other point about all of this and this is another special feature which is that normally texas law, texas has the judgment act that allows citizens to sue the state of texas or the state agency
under the texas judgment act to get that broader relief and in the sections 171.211, the sbh overrides the state to court. act and prevents exactly the kind of lawsuit against the state to seek broader review in the state courts. on the concerned about the abortions, don't think that is a concern for the court partly because they do not provide these post abortions and under the courts - so that does not preclude them from being declared basically unit unconstitutional so i don't thank you so a concern that the court can deal with but at the end of the day, with the state of texas and folks on the inside saying our that when it should just violate the law, they
should go out there and go about business as usual and subject themselves to the risk they will be forced to close their doors. i want to make clear that this is not just a decision from clinic but even if clinics and health centers decided to violate the law, they may not find positions the nurses, ultrasound technicians, willing to working on the desk because this long time for all of them. every single person that has to make a decision at mi willing to subject myself to the risk of $10000 or more that the minimum liability per abortion if plus the risk that i'm going to be held all across the state and i would have my willing to have an attorney taken away from me because my attorney may have to pay attorney fees. every single person and that is exactly what this court addressed in that case versus
young and the reason the principles underlying the support relief here, the railroad may not be able to find an agent or employee even willing to violate the law and to generate the case. we think the principles and we asked the district court decision be affirmed. >> thank you counsel in the case has been submitted. [inaudible].