tv Justices Hear Health Providers Challenge to Texas Abortion Law CSPAN December 3, 2021 11:12am-12:39pm EST
during the great depression and the origins of sports journalism. exploring the american story. watch american history tv, saturdays on c-span2. and find a full schedule on your program guide or watch online any time at c-span.org/history. the supreme court heard oral argument in a case brought by a group of health providers challenging the enforcement provision of a texas abortion law known as sb 8, which bans most abortions after six weeks of pregnancy. under this provision, private citizens are given the power to enforce the law by filing civil suits against violators and thereby evading federal court review. this oral argument is an hour and a half. >> the honorable, the chief justice and the associate
justices of the supreme court of the united states. oh, yea, oh, yea, all persons having business before the honorable, the supreme court of the united states, is 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 on what is for all of us a very happy anniversary.
the court now recognizes deputy solicitor general bryan 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, to october 28, 2021. the court recognizes the considerable responsibility placed upon you, mr. fletcher, 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 marcus prelogar of idaho. >> solicitor general prelogar, the court welcomes you to the performance of the important office that you have assumed representing 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 that you are the 10th solicitor general of justice thomas' tenure. [ laughter ] you follow in the footsteps of other outstanding attorneys who 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. >> we'll hear argument first this morning in case 21463, whole women's health versus jackson. mr. hearron. >> mr. achieve justice and may it please the court, in enacting senate bill 8 the texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court.
texas delegated enforcement to literally any person anywhere except his own state officials. the own conceivable reason for doing so was to evade federal court review under ex parte young. texas then created special rules applicable only to sb 8 claims that make it all but impossible to protect one's constitutional rights in state court. for a single abortion, the law authorizes limitless suits in all 254 counties and provides that a victory in one has no precollusive -- preclusive in effect in any other. it added draconian, one-sided fees provisions with liability extended even to attorneys themselves. the combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for
nullifying them. as respondent dixon has said, no rational abortion provider would violate this law. while court clerks are not orderly proper defendants, in these circumstances the principles underlying ex parte young authorize federal court relief against clerks. their docketing of sb 8 suits, which is critical to effectuate texas' illegal scheme, inflicts article 3 injury in fact and is redressable by an order barring such docketing. sb 8 is an abortion prohibition. but the issues before this court are far more sweeping. to allow texas' scheme to stand would 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 federal law. >> 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 express language in ex parte young? >> your honor, the language in ex parte young that i believe you're referring to discusses and specifically allows an injunction against the commencement of the suit. and your honor, i think here that supports an injunction against the clerks. it distinguishes between restraining the commencement of a suit versus a suit that after it has already been filed. so i think that that language actually supports relief against the clerks here. it's also premised, your honor, on there being an executive official who you could enjoin. and here, the state has intentionally taken away the 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 state court. >> your honor, i think it excludes enjoining an action after it has already been filed. but it allows for -- it says there is the power to restrain the commencement of the suit. and i understand, your honor, that in that suit it was an injunction against the state official who was commencing the suit. but i don't think that it is -- i think the principles underlying ex parte young, which are to allow a federal forum for the vindication of federal constitutional rights, would support an action here against the clerks to enjoin the commencement of the suit. i also think that that language in ex parte young is not about sovereign immunity.
it wasn't in the section of the opinion where the court was addressing sovereign immunity. it was addressing a remedy that's available by courts in equity. and here, section 1983 now provides that remedy and it expressly allows suits for judges acting in their official capacity. i think that language does support an injunction and the principles underlying ex parte -- >> counsel, i read your complaint and i thought you only asked for declaratory injunction against the judges and an injunction against the clerks. >> you're right, your honor, we sought, consistent with the text of section 1983, we sought declaratory relief against the judges and injunction against the clerks. >> so let's go to what the harm is that you're seeking an injunction against the clerks for. am i understanding correctly that you believe that the way this sb 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 -- there is a combination of various ways that the state has created special rules applicable only to sb 8 to make state courts a tool that can be used to nullify constitutional rights that have been recognized by this court. and i would point to, i think there are four essential components of sb 8 that the legislature created. first is, it allows anyone to enforce regardless of any injury. second, it allows those suits to be brought anywhere in texas, even for one abortion. so an abortion provider could face suits all across the state for a single abortion multiplied by all the additional abortions that are provided. and then there is no preclusive
effect, even if an abortion provider wins that case about an abortion, they still have to continue to face suit after suit after suit because there's no preclusive effect. it turns the abortion supporter into a permanent defendant. >> counsel, i 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 points you made, i think maybe the first point, was that sb 8 allows anybody to sue, whether or not that 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 lawyer for the state, told the district
court that texas law is quite different from federal law on the question of how standing and private interests versus public interests work. they said that at page 49 of the transcript of the preliminary injunction hearing. >> hasn't the texas supreme court said that they follow the same standard as the federal court? haven't they said that? >> they said that recently, but texas courts are not bound to follow this court's precedents on article 3. >> of course they're not, but they're bound to follow the state supreme court, are they not? >> they are, but the texas supreme court has never addressed a law like sb 8. and clearly the legislature thought that it could create standing by creating a cause of action and give everyone an injury. 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. it is the -- >> well, counsel, the matters that you're talking about now, they're essential to your
argument, right? you agree that it would be adequate to have 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 the way that sb 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 reasons -- >> review at the end of the day, when we have a final judgment from the state judiciary? >> but there are a number of reasons that that is unlikely to happen. first of all, if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that to the intermediate court, through the texas supreme court. and the proponents of this law are acting very strategically. >> that's true in any case, right? if you get relief in the trial court and your opponent doesn't appeal there's no reason to
speak relief from the supreme court, is there? >> but in the form case, if you win that case, if you win, then you don't have to continue litigating that. here, sb 8 says there is no preclusive effect. >> i know, you're getting back to the argument that there's a chilling effect. i'm asking in the absence of that. if it's a regular type of case. surely it's adequate to have federal review at the end of the state court process. >> in the normal case, yes, that is correct, i agree with that, under normal tort lawsuit, that is adequate. it is the chilling effect that in this case is created 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 of the special rules that are created in order to turn the texas state courts into a tool that can be used to nullify the exercise of -- >> counsel, even apart from these procedural requirements you're talking about, i'm wondering if in a defensive
posture in state court, the constitutional defense can be fully aired. and i'm wondering that for this reason. the statute says that a defendant may not establish an undue burden, and this is even assuming that the defendant can satisfy third party standing rules because the statute says it has to be craig versus boren, not the regular abortion third party standing rules. but it says a defendant may not establish an undue burden under this section by, and this is d-2 in the section, 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. 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 women's health or medical, it's looking at the law in whole.
do you read that the same way? >> i fully agree, your honor. >> if that's the case, the full defense cannot be asserted in the defensive posture, am i right? >> i think that's right, your honor. the title of that section you're referencing is called limitations on undue burden defense. clearly it's not only the procedural rules that the texas legislature has tried to change the substantive rules that this court applies to protect the -- >> so does that mean you cannot get full review even on the back end if it goes up through the texas supreme court and up to us the way the statute is structured? >> we would have an argument, your honor. and we would obviously make the argument that that provision of the texas law is unconstitutional because it conflicts with this court's precedents in casey. but your honor, it's unclear exactly how the texas courts would apply that, whether they would follow the undue burden standard. clearly what the legislature was trying to do was to limit the undue burden defense or make it more difficult. >> wouldn't they be obligated under the supremacy clause to
apply the federal constitution as opposed to a provision of a state statute that purports to preclude them from considering a constitutional claim? >> they would, your honor. but -- >> so then your argument is that they would not follow -- they would not abide by the constitution? >> i'm not suggesting that they would not abide by the constitution. what i'm saying is that even if you have to prove that undue burden defense, in every single case, it is -- you -- we wouldn't say -- if the law -- if the state of texas had passed a law making it a criminal violation to provide an abortion after six weeks, that there is no problem because you can simply raise undue burden at trial, at your criminal trial. this court's precedents allow preenforcement relief, allow you to come into court and say i don't need to violate the law in order to first raise my constitutional defenses. i can come into court under ex
parte young in section 1983 and seek a ruling that my constitutional rights are being violated. >> counsel, we have laws that preclude the enforcement of judgments in which process has been denied, where you're not given an opportunity to air your claims. justice barrett pointed out to a provision of this law that says you can't present this claim this way, all right? whether the -- what the judges 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. >> well, it doesn't really matter. the point is that 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, here the point is that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in counties all across the state where there is no preclusive effect and where the state has even made it more difficult to get an attorney by making attorneys liable for fees, for the other side's fees, all of that creates a threat. >> keep going, i'm sorry. >> i was going to say the combination of all those factors together creates a chilling effect that is preventing the exercise. and that is, under this court's precedents, an irreparable injury. >> can we talk about ex parte young a little bit? you make the point, correctly, that usually you can get preenforcement review in federal court when it's enforced, a law is enforced by state prosecutor, a state executive official, 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 enjoined or can be sued, preenforcement suits in federal court. as justice thomas points out in two paragraphs at the top of page 163 of ex parte young, state courts seem to be carved out from that. so that's the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163. for me, that's been a real sticking point in trying to sort this out. now, one answer you didn't give is that subsequent law says that when state courts entertain private civil suits, they
enforce state law. shelley versus kramer being the most prominent landmark example of that. so 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 conceptualize state court enforcement of private civil suits now? >> yes, your honor. so i think -- i think that the most straightforward way to apply ex parte young or to allow relief here under ex parte young is against the clerks, as i've said, because that would stop the commencement of the suits. it wouldn't create any of the problems raised in ex parte young itself about stopping the adjudication. >> so i think -- i'm sorry to interrupt, but i think justice thomas' question was also getting at, take the point, distinguish the judges from the clerks. are the clerks subsumed within that language in ex parte young and you're saying we shouldn't do that? i just want to hear your answer, why shouldn't we do that. >> that's right, i don't think so, because that language distinguishes between the power
to restrain commencement of suits, which i think that language actually supports relief against the clerks, versus whether courts should restrain a case brought before it. now, which would mean -- that would refer to the judges here. now, i do think in subsequent decisions of this court, you're correct, there are instances where the court has recognized, in pulliam, in mitchum, where relief against state judges and in fact congress recognized in section 1983, in the text of 1983, that judges can be proper defendants and -- >> it's more than that, ex parte young depends on enforcement, i think that's the keyword. in shelley v. kramer, the word "enforcement" is in there 27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits. >> that's right, and in a fact
judge jackson at a press conference says he's an enforcer of the laws in east texas. it's clearly correct that when the court issues an injunction, a mandatory injunction or issues the monetary penalties, what the court is doing is enforcing sb 8. >> a judge may be enforcing a state law when the judge renders a decision based on that state law and provides relief based on that 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 potentially looking at it is that by requiring -- so yes, in a sense. and one way of looking at it is that by requiring litigants to be in court and requiring them to make filings and appear in court, because here it would be multiplied in courts across the state. >> suppose the legislature
enacted a statute that said henceforth people of a certain race may not make any public statement. and someone brings suit under that. the judge begins to enforce that just by entertaining the suit? >> i think -- >> even if it's certain that at the end of the case the judge is going to say this is an unconstitutional statute? >> i think in certain circumstances, that even -- in a situation like sb 8, where the point is the filing of the suit and the point is the making you appear in courts all across the state over and over again, making you a permanent defendant, that in these circumstances -- yes, i'm sorry, justice breyer. >> were you finished? >> i'm taking up his argument. look, you said judges, at least in many circumstances, is an enforcer. there are 4 billion court suits in the united states, okay? and probably in 3 billion of them somebody thinks something's
unconstitutional. so can they all sue the judge? anybody who goes into federal court sues the judge? what's the difference between this case, where you think he's an enforcer, and 4 billion other cases, you've read their briefs, you understand their argument. what's your response to it? >> the response is that under the rule that we are advancing here, is that where a state is trying to nullify the exercise of a right, a constitutional right that's been recognized by this court, by delegating enforcement to the public, and taking away the normal, ordinary executive officials, and then also creating special court rules in order to turn the court system -- we're 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 nullify constitutional rights. >> you might appreciate that the idea of suing the judges sort of
got our attention. but is there even -- is there even a case or 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 judge's role is to issue a decision. the idea of someone who is going to decide a question, that person is not automatically adverse to the person who asks the question. and that seems to me to raise a real problem under the case or controversy requirement. >> so i think there is a case or controversy -- if i can address the clerks first, there is adversity in the case or controversy against the clerks, your honor, because the clerks are saying they have a duty under state law to docket a petition to issue summosummonse. we are saying even the initiation of a proceeding violates constitutional rights and they shouldn't docket. that is adversity.
it tonight matter whether the clerks agree with the law or want to defend the law. >> the clerks perform a ministerial function. somebody shows up with a complaint, wants to file the complaint. assuming the formal requirements are met, the clerk files the complaint. the clerk doesn't have the authority to say 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 sb 8 complaint, call me and i'll docket it myself. then what? >> well, your honor, that's why we've asked for declaratory relief against the judges. do i think -- >> this business about the clerks is -- >> no, i do think relief against the clerks, your honor, would alleviate most of the harm and would thaw of the chill and would allow abortion providers to understand -- and in fact the ministerial nature of there's docketing is exactly what makes them a proper defendant here. we know that clerks will docket
every sb 8 petition that is brought forward and the state has encouraged, has 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 sue 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's attorneys' fees and even get their own attorneys' fees paid. so we know there will be enforcement. and the ministerial act of the clerks' docketing is -- >> the state has made the clerks an essential role in this machinery that they have created to nullify constitutional rights that have been recognized by -- >> counsel, are you arguing there is a constitutional right to preenforcement review? and if so, how do you reconcile that with sheldon?
>> our first argument is that congress created the right. >> assume i don't buy that. >> yes, there is, and ex parte young recognized that in these circumstances where the penalties are so severe, and where there is -- it's difficult to find someone who is willing to even violate the law for a test case. i think ex parte young addresses all that have and says there is a procedural due process violation. >> okay, i think there is language in ex parte young that favors you. i think thunder basin assumes there might be some circumstances in which preenforcement review is constitutionally required. in this context, presumably that might happen in state courts, even if there is some sort of constitutional right to preenforcement review, need it be provided by a federal court? >> i'm sorry, i missed the last part of your question. >> if there is a constitutional right to preenforcement review, on your reading of ex parte young, does it 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 a number of reasons that i'm happy to get into. >> thank you, counsel. justice thomas, anything further? justice breyer? >> i would like to just be sure i have this. your basic point, i take it, here at this, as we've discussed it, is this kind of a private lawsuit is not an ordinary tort suit, okay, so i've tried to write down the reasons, and i want you to add anything i leave out. one, anybody can sue. well, okay, debatable. two, anywhere in texas. texas is a bigger problem than rhode island there. three, it has no preclusive effect, jones 1 sues the clinic,
jones wins, jones 2 through 4,000 can sue. four, the attorneys' fees are very heavy 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 a defendant as to which kinds of defense you can make in respect to their being an undue burden, which is a problem because most of the undue burden cases speak generally of the effect of the law of the state, not on this particular defendant, okay? i have six that i caught from you. is there a seventh? >> i have two more, your honor. >> okay. >> the first is that damages are not tied to the amount of any harm, which would be normally the case in a tort suit. and the second one is that sb 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 to -- the mandatory injunction is not tied to the harm. >> thank you. >> justice alito? >> suppose this happens, a woman shows up at the clerk's office and says i want to file a pro se complaint against the doctor who performed my abortion because it caused me physical and/or emotional harm and i want to sue under sb 8 because i want actual damages but i 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 flume any other lawsuit based on common law torts, emotional infliction 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 sb 8 lawsuit, yes. >> contract or otherwise. common law tort or contract. >> yes. >> thank you. >> justice kagan. >> should one of your arguments prevail or another argument in support of your position prevail, it doesn't matter exactly which argument it is to me, what exact relief are you requesting? >> we are requesting an injunction -- so we have a pending class certification motion for defendant class against the clerks. so we would 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 state executive officials for their residual authority to enforce sb 8. >> 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 position prevailed, that the district court had 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 court's denial of the respondent's 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. >> yes, and while the district
court does all that, which we would be saying the district court should go 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 wouldn't even have to rule on the united states versus texas case, you know, that's very complicated for other reasons. we could just sort of leave that be. 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 filed such a motion but i would ask the court now that if it is not going to reinstate the injunction in the united states case, that it issue interim relief now against enforcement, because the law is
patently unconstitutional and if these are the correct defendants, then enforcement should flow. so we would ask the court to issue such interim relief. >> thank you, mr. hearron. >> would the chief permit me a followup on that? >> sure. >> counsel, if we vacate the fifth circuit's orders basically staying the district court proceedings, presumably that would vacate its denial of the state that you had asked from the district court order, we reinstated the district court order, you would have a stay in place, wouldn't you? >> technically there are two stays in place, one issued by the district court, one issued by the fifth circuit. if you were to vacate those stays in the interim then we 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 in law by the district court? >> we have never gotten to that point, your honor. >> ah, thank you. i forgot. thank you. >> justice gorsuch. >> i do have a couple of question. on chilling effect, do you agree that other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively? >> not to this extent. >> but do you agree there are laws, defamation laws, gun control laws, rules during the pandemic about the exercise of religion that discourage and chill the exercise of constitutionally protected liberties and that they can only be challenged after the fact? >> i'm not sure that all of those laws could only be challenged after the fact. but there may be some. >> certainly there are certain circumstances where that's true, right? >> that's probably correct. >> so it's a line drawn between those cases and your case in your mind.
>> yes. >> okay. and then on the relief, am i understanding 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 begin providing again. it is also appropriate for declaratory judgment against the judges. but i think the relief against the clerks would -- >> okay. they're under obligation in state law to file everything that comes in without looking at its contents or judging its contents, right? >> yes, although there are circumstances where a person may not file because they have filed too many frivolous lawsuits, for example. >> it's pursuant to a judicial order, but otherwise they're olgd to file everything that comes their way. >> yes. >> so you say the constitution
overrides that requirement? >> yes, sir. >> the cases where sb 8 can be constitutionally applied consistent with roe and casey, should they file those lawsuits? should they try and determine which side of the line and dete which side of the law they fall on, post viability not for medical reasons, are they supposed to apply roe and casey themselves? >> i don't think, no, i think that they should be enjoined from any sba lawsuits. >> including constitutional ones. >> i think that is -- the existence of those claims is not showing the exercise of constitutional rights here. >> exactly. >> but you would enjoin them anyway. >> yes. but that's consistent with the relief -- >> and if a clerk goes ahead and dockets a permissible nonchilling fission, a federal judge could find him in contempt and put him in jail, right?
>> i think that would be -- there is standards for criminal due process. there are due process standards. >> but subject to those due process standards. >> subject to those standards but i think those would be extremely difficult to meet for the most part, and we believe that clerks will follow the injunction in good faith. >> justice kavanaugh. >> a couple of follow ups to justice kagan's question. i think you had a pending tro in the district court with the preliminary injunction and the class certification is that accurate. >> yes. >> and to follow up on the chief justice's question which i think reflects from my viewpoint a change in your reply from maybe i don't want to say change, but shift in focus in the reply brief to the clerks from the judges and clerks and from understanding you correctly, you're saying that young principal should apply to both but the adverseness issue may be
more serious with judges and therefore you focused on the clerks. that's how i read your reply brief because it was noticeable to me. >> i think that's right, your honor. it is easier to say that we are adverse to clerks because the filing of the lawsuits, which is the point here to create the interim effect, is the filing of the lawsuits, and that creates a sharp adversity to the clerks who are just performing their ministerial duty and not adjudicating anything. >> to follow up on justice, he mentioned the flood issue, there are a lot of ex-parte lawsuits, but the claim by texas is that this will increase the load, give you another chance to respond to that. >> i don't think that's correct. this is an exceptional -- this is unprecedented and under the principle that we're advancing it would not allow suits against
clerks to challenge most laws. this is a unique law created because the state has delegated enforcement and has taken away the normal executive officials who would enforce and has weaponized the state court system into a tool that can be used to abrogate constitutional rights. this is a unique situation. i think the real danger is if the court does not allow the suit, that will provide a road map for other states to abrogate other rights recognized by this court. >> justice barrett, thank you, counsel. general stone. >> thank you, mr. chief justice, and may it please the court, petition's pursuit of injunction suffers from two fundamental problems, first, none of the individuals that petitioner sued are appropriate defendants under
well established article iii inequitable principles. the petition has asked for expansion of access to the federal courts that only congress and not this court may provide. petitioner's article iii inequitable problems, with what they really want, an injunction against sb 8, the law itself. they can't receive that because federal courts don't issue injunctions against laws but against officials enforcing laws. no texas executive official enforces sb 8 either and so no texas executive official may be enjoined. petitioner's then turn to state court judges and 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 unlawfully in the ordinary course by ajuding a case or receiving a complaint. petition's harms are not fairly
traceable to any allegedly unlawful behavior by state court judges or clerks. and this court recognized in ex parte young itself that such an injunction would be a violation 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 petitioner's rights, that is a matter for congress, not a basis to alter bedrock doctrines in the federal courts. i welcome the court's questions. >> mr. stone, why wouldn't you consider the sb8 plaintiffs to be sort of a private attorneys
general? if the attorney general or other state officials don't enforce the law, would it be that unusual to consider them as acting in concert with the state to enforce a state preferred policy? >> two points, your honor, first, every action undoubtedly advances a state preferred policy. the reason why they're not acting in concert with or -- >> 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 there be an injury to the plaintiff. >> your honor, the texas supreme court has followed article three requirements in terms of injury and fact that doesn't need to appear on this -- >> so what would that injury be under sb8 if it's an injury and fact. >> one example could be the tort of outrage where an individual becomes aware of an uncomplied abortion and suffer the same
extreme emotional harm that would ground an article 3 injury for purposes of texas law that would be sufficient to satisfy the texas article 3 style screen that addresses some of my friends on the other side's concerns about an unlimited set of lawsuits or that anyone could possibly bring an sb8 action. congress passes laws all the time that don't expressly require that individuals show, for example, their own personal injury or traceability or redresability but nonetheless these court says those are requirements of article three and the texas supreme court traces that requirement to their own constitutional analog, the open court's provision. >> forgive me, i don't recall an outrage injury. what would that be? you said extreme outrage. that would be the injury. >> the injury would be akin to one suffered in a tort of outrage, that a person witnesses something defined to be so extremely outrageous, causes them extreme moral or otherwise
psychological harm. >> give me an example of that. >> an individual discovers that someone that -- a close friend of theirs who they had spoken with about pro life issues and about abortion has chosen instead to have a late term abortion in violation of sb 8 and they were very invested in the child's upbringing, the child's coming into being, to the extent a tighter nexus, sufficient injury, 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 sort of grievous offense that we underline that we understand under lies iied as a tort and still nonetheless has a real world harm. >> thank you. >> i would just going to ask, assume that the bounty is not $10,000 but a million dollars. do you think in that case the
chill the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process? >> no, you know, because that wouldn't affect the sovereign immunity approximate. undoubtedly would increase the chill, the same way individuals that are exercising protected or arguably protected. >> i understand the only way in which you get federal court review is of course for somebody to take action that violates the state law, and then be sued under the law, and then have the opportunity to raise their defense in federal court eventually, and you're saying that somebody is going to under take that activity, even though they're going to be sunt to suit for a million dollars repetitively, because that doesn't exercise a chilling effect? >> that's not what i'm saying at all, your honor. what i'm saying is it doesn't expand access to the federal courts, there is preenforcement
review. there are currently 14 preenforcement review challenges pending in travis county state court. so to speak to specifically your concern about federal court pre-enforcement access, no, that wouldn't change the article iii or sovereign immunity doctrines in play here, and that might very well be a reason congress could be moved to expand to federal courts and using their section 5 under the 14th amount. even if the amount of the sanction, i agree with you, a million dollars would be tremendous, we could increase it further, no number would cause the federal courts to become more open. >> it's not a question of the federal courts being open, it's a question of anybody having the capacity or ability to go to the federal court because nobody is going to risk violating the statute because they'll be subject to suit for a million dollars. that takes a lot of fortitude to undertake the prohibited conduct in that case, and under the system, it is only by
undertaking the prohibited conduct that you can get into federal court. >> well, your honor, individuals, again, to the extent that we're dealing with the sorts of very high stakes prohibited conduct, fines, sanctions, et cetera, i might add this is a specifically a damages action, it is capped at much less than that. that is a significant -- >> my question is what we call a hypothetical. >> of course, mr. chief justice. >> but nonetheless, an individual facing extreme sanctions still nonetheless often has to go through state court systems to vindicate their federal rights. individuals are charged with possessions of firearms in states like illinois and new york, and they face multiple year incarceration stints as a possibility of trying to exercise their second amendment rights. it is, in fact, the case that constitutional rights are litigated right now with very severe potential sanctions through the state courts, and no ability to go through the federal courts before essentially that pre-criminal process ends. >> why does the sb8 allow
plaintiffs suing abortion providers to sue anywhere in the state. that's not the normal way a venue works in texas, is it? >> it's not, your honor, and undoubtedly there are a handful of individual procedural rules inherent in sb8, the way there are some designed to favor causes of actions like bringing a suit on the antitrust laws or 1983. happy to stipulate to that. to the extent they became extraordinary might sound in a procedural due process claim which my friends aren't bringing. they're bringing a substantiative due process claim, attempt to go cash it out through some format of enforcement, against first texas official asks then court clerks and so on and so on. i might point out turning specifically to the assertions my friend on the other side has said court clerks, that it's not clear that injunctive relief against a court clerk would give him what he wants. under texas rule procedure, a
petition is deemed filed by the clerk so the clerk doesn't have the opportunity to reject that petition. it would obviously be a question of texas law in the event that this court interceded. >> can i go back from a second from detail to the sort of bigger picture which stuck in my mind when i read all of this road map, that should call up a lot of arguments in the briefs, and i thought of two statements. first, holmes, remember, had seen john c. calhoun's theories of nullification, interposition, destroyed really by the civil war. all right. you've read the arguments that say this is sort of like that. sort of. holmes said this, i do not think the united states would come to an end if we, the court here, lost our power to declare an act of congress void. i do think the union would be
imperilled 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 the company, which is the equivalent of the clinics and the women here, in a state court and then obtain review in this court would place the company, ie, women in clinics in peril of large risk 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 does doesn't ex parte young point the way towards, not precisely, but point the way towards an answer? >> two points, justice breyer. the latter being what you're describing would be an expansion of ex parte young, which my friends on the other side con seed, this court noted an injunction in the courts themselves through the ex parte device would have been a violation of our whole scheme of government. this group in group with medical examiner -- post judgment creditor's ability to sustain a debtor's asset, a pre-judgment creditor's ability to do so, that was too great a novel for this court to be able to permit itself to essentially innovate. to do something that would have been understood in ex parte young in the very same opinion as the violation of our whole scheme of government is surely a
much greater innovation and if this court is going to stand by its word -- >> 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 set out a basic principle of how our government is supposed to work, and how people can seek review of unconstitutional state laws. and the fact that after oh, 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, the even 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 you're raising justice kagan, and then turning back to the ex parte young one. this statute on its own terms specifically incorporates as a matter of state law the undue burden defense as articulated by this court in casey and subsequent cases. there have been previous questions regarding whether or not it is incorporated in every particular regard. there's a separate provision of that law that specifically says that nothing in the section is basically prohibits individuals from asserting their constitutional rights, and so to the extent that the texas legislature has either imperfectly or in an incomplete way recorded as a matter of state law this court's recognition of the casey right, individuals may still erect that right fully and completely, nothing in this law even pretends that texas courts could evade that because it can't. >> when it said that, their
rights, i took that to be their first amendment rights, if you had somebody who was counseling someone to get an abortion, say, and then was sued, sorry, not prosecuted, under this law, that they could say i have a first amendment right to free speech, it would be unconstitutional. i didn't take that portion of the law to mean they could assert third party rights. >> we're speaking about two portions of the law, justice barrett. there's a portion that says something closely tracking what you said, there's also subsection f which says nothing in the section shall prohibit, eliminate, preclude a defendant from its personal constitutional rights. >> right. personal constitutional rights, not third party rights, sot clinic would differ from the rights of the person. >> there's a provision, that the individuals may raise the undue burden rights to the limit allowed by this court specifically. it may be the case that the three provisions don't perfectly line up and by interpretive forces at some point a third
party right recognized by this court can't be perfectly raised as a state law defense. if, so as an in all cases an individual can raise that particular piece or 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 that the justices on this court and the lower federal courts do, are presumed they will apply in good faith, and they are always subject to correction by this court in any appropriate case. what can't occur is what couldn't occur in, for example, "new york times," versus sullivan or for that matter, masterpiece kick shop. an individual there who thinks they're going to be subjected to a state court process that's either going to be very difficult for them or otherwise unfair in terms of the merits of the decision is not permitted to go to a lower federal court and see functionally an injunction against the state's trial courts -- >> general stone. >> yes, justice. >> keep going. >> i'm coming to the close of the point. >> i think all of these arguments were the same that
minnesota raised in ex parte. you look at the history of that case. it was an extraordinary controversy in the united states and in minnesota about the federal court review and that itself didn't exist before ex parte young, in other words, that was an extension of preexisting doctrine to recognize a problem that the chief justice was identifying with 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 preenforcement review in federal court against state enforcement of laws that are assertedly unconstitutional, and 999 times out of a thousand or maybe every time until this case that's a state executive official. it's a pro forma exercise usually to identify the state executive official. and 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 if he could and that is 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, your honor, one, no, precisely because this court has disclaimed the power to create such an innovation in group on mexicano. my friends arguments on the other side might have one exception, this court has disclaimed the ability to give itself the power to essentially create a novel nontraditional cause of action, and if the language that we're discussing in ex parte young means anything, it means that certainly an injunction running against a state court to prevent the adjudication of a state law case is something entirely foreign and traditionally. >> do you agree there's state action when the state court clerk dockets the case?
>> state action in the sense of the 14th amendment perhaps? >> yes. >> i suppose a state court clerk taking on a clerk is acting as part of the state in that case, yes, your honor, but the key part here is that my friends on the other side aren't alleging that the docketing of a petition ordinarily is a violation of the 14th amendment or is a violation itself, it's the nature that potentially later down the line that sb8 case might in fact be adjudicated negatively against them. a state court clerk who receives petitions and puts them on the docket, and a state court judge who is required to apply this court's precedence and everything else, they're not article 3 adversaries -- i think the theory is the enforcement of the law is adverse to the plaintiff's interests and causes injury, and this state official, let's say the clerk, is part of the -- within the chain of state
officials who have some connection, which is the language from ex parte young, some connection to enforcement of the law. >> but respectfully, you know, that's some connection to enforcement was referring to all the way up the connection was the attorney general bringing suit. to stop the commencement of a suit in ex parte young meengs an antisuit injunction to stop them from bringing litigation. >> can we go to that question of the attorney general, which hasn't been raised before. the attorney general has been sued here. i know that the argument is that it doesn't enforce these laws, the attorney general here doesn't enforce these laws. the district court said that wasn't true. it has direct enforce, with regard to sba's fee shift provision, concerning any legal challenge to any abortion restriction or regulation, and may also have some constitutional authority under texas law to enforce texas law.
the ex parte young fiction was that if there is an agent who can enforce the law in part or in whole, and they're ensued, then everyone else in the enforcement chain is in joint. so if every private citizen here has been deputized by the state to enforce this law for the bounty, then why wouldn't an injunction against the ag bar those citizens from going into court. just the way it would bar district attorneys or police officers from arresting people once that order has been issued. or district attorneys from prosecuting those people for a violation of the law that a
court has found unconstitutional. until the attorney general, the representative of the state is not legal. >> two points, your honor, i'll say one on the attorney general side, and one on the private litigants side. on the private litigant's side there's no deputization of individuals. the attorney general -- >> assume i disagree because you didn't answer to my satisfaction justice thomas' point that i've never seen a tort that doesn't give you redress for your harm. it gives you redress for bringing the suit, the bounty. and whether you need to prove injury for standing is irrelevant to what qualifies you for the bounty, which is injury doesn't qualify you for that. just bringing the suit does. >> speaking only specifically in this case because i don't want
to push back. i understand the directionover of your question, your honor,s attorney general like every other texas official lacks power to direct the suit, to order that a suit be dismissed, to intervene -- >> you don't understand the point. it is part of the enforcement mechanism of the suit, not the whole because the state has chosen to deputize an entire swath of citizenry to do that for him, but it retains some direct and indirect enforcement power. so answer the ex parte young fiction. we issue an injunction in the traditional course of ag, and we expect everybody to understand that they're precluded, who acts on behalf of the state, to be precluded from continuing under an unconstitutional law. >> the most direct answer to your question is an injunction
running against the attorney general wouldn't change anything he could do. it wouldn't change any ability to bring a suit. it wouldn't change any ability to stop a suit. he couldn't withdraw it -- >> think about the question in this way, suppose there were not this private enforcement provision. suppose this were a normal law, a heart beat law, you would sue the attorney general, wouldn't you? >> if the attorney general was the one charged it sue, i would assume so. >> if the attorney general were the one charged to sue, the actions would not be brought by the attorney general. the actions would be brought by a local d.a., wouldn't they? >> well, your honor, the difference is local d.a.s in texas are locally elected officials that are not accountable to the attorney general. i'm not trying to push against the hypo, fundamentally changed whether or not they would be accountable to the ag in a law. >> are you saying in a normal heart beat abortion restriction that a suit against the attorney general would not be sufficient
because local district attorneys are bringing the suits? >> it would depend on whether or not it was charged by the attorney general's office to see or by county d.a.'s who are not accountable to the attorney general in any way. if i may modify your hypo and say -- >> what i was suggesting in just the same way that the attorney general does not have direct line authority over the d.a.s but nobody would dream of bringing a challenge to ex parte young in that circumstance, so too the fact that they don't have direct authority over these private delegated private individuals exercising delegated power, shouldn't matter for the same reason. >> in the example you're describing with county and district attorneys, individuals would be able to bring ex parte young challenges against those individuals to be sure, but not against the attorney general, and the key difference here would be those individuals, the county attorneys and district attorneys would ultimately be able to enforce the law by bringing a lawsuit. the hypos i'm pushing back
against is the attorney general simply doesn't have any control of the procession of sb 8 lawsuits in any way. it doesn't have a mechanism such as the qui tam context to take over the litigation. he can't certify a lawsuit is not in the state's interest, he has none of those sorts of mechanisms whatsoever. because of that, that can't possibly at a minimum redress the injuries of the petitioners unless this court were to say that private individuals who have not articulated they plan to bring suits or anything like that are somehow agents acting in concert with the attorney general. the problem with that is that, again, we have no authority over them. the basic concept of agencies that there's a principle and an agent, and the agent is responsible to the principle. the principle in this hypothetical, the attorney general exercises no supervisory authority whatsoever over punitive suit bringers, and we're nots acting in concert for the ordinary factual reason that we're not being approached, this is a matter that can also be
resolved in the district court, if it gets that far. we're not being individual litigation. it's individual people are choosing to bring or not bringing these pre-enforcement challenges in state court, i mean. >> can i ask you about the implications of your position for other constitutional rights, the amicus brief, the firearms policy coalition says quote this will easily become the model for suppression of other constitutional rights with second amendment rights being the most likely targets end quote. and it could be free speech rights, it could be free exercise of religion rights, it could be second amendment rights if this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights. your response? >> your honor, in several of those circumstances, individuals who are concerned that a lack of immediate preenforcement federal court access would cause them
ruinous ability or otherwise limit their ability to exercise their rights, protection of lawful commerce and arms act was passed in response to state tort lawsuits in which there was no immediate federal review, that could only at most be brought here. >> for some of those examples it would be quite difficult to get legislation through congress. are you saying absent that that second amount rights, free exercise religion rights, 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 to put huge penalties to the chief justice's hypothetical to say everyone who sells an ar-15 is liable for a million dollars to any citizen. uncertain what the second amendment status ultimately will be, which is where those laws would have purchase. would that kind of law be exempt from pre-enforcement review in
federal court. >> my answer is on whether or not federal court review is available does not turn on the nature of the right, so we can put in religious liberties. >> so we can assume that this will be cross the board, equally applicable as the firearms policy coalition says to all constitutional rights? >> yes, but i would add one more point, your honor -- >> and you've also said the amount of the penalty doesn't matter, million dollars per sale, anyone, a state passes a law, anyone who declines to provide a gooder service for use in a same-sex marriage, a million dollars, a suit by anyone in the state, that's exempt from pre-enforcement review. >> what we'd have to have -- >> is that a yes. >> yes. >> that's a yes, that's exempt from pre-enforcement review. >> in the sense that federal court doctrines and congress statutes defining the jurisdiction of the federal courts would have to be modified to court. >> your answer to justice kavanaugh, go ask congress,
isn't the point of a right that you don't have to ask congress. isn't the point of a right that it doesn't matter what congress thinks or the majority of the american people think of that right. >> the answer to that and parts of justice kavanaugh's question as just as i'm asking for texas state court judges, we have to assume that other state court judges are in fact going to faithfully apply the constitution, and occur through the state court process to be sure but that is an adequate substitute. >> within the state court process, many years from now, and with a chilling effect that basically deprives people who want to exercise the right from the opportunity to do so in the maybe long-term interim. >> please. >> thank you. >> no doubt that's the case in many kinds of lawsuits including constitutional ones, your honor, but no one's thought that litigation delays had constitutional dimension for purposes of expanding access to the federal courts before. i don't think this case should be the first one to start.
>> thank you, general stone. i have just one additional question. there was a statement in one of the briefs filed below, not by you, that said quote, states have every prerogative to adopt interpretations of the constitution that differ from the supreme courts. does the state of texas have a position on that? >> the state of texas's position is the courts of the state of texas will absolutely faithfully apply any decisions of this court as they understand them to apply to cases of federal law faithfully and that the other officers within texas are bound like wise to take the interpretations from this court and federal law and to faithfully implement them. >> thank you, counsel, justice thomas, justice breyer. >> just a quick technical question, in reading ex parte young, i got the impression that the enforcement mechanism is really private shippers or passengers who were supposed to sue the railroad.
the attorney general didn't have any direct power. he just had a kind of residual power. so i looked up the texas statute. seems like the attorney general here has the same kind of residual power. hard to see that in ex parte young because it was a contempt case. but it's there. and they say this attorney general with just the residual power, we can go sue him. then all of your problems, in that case, but they didn't appear, and it turned out that the statute nobody enforced because it had been said to be unconstitutional in the ag's case. so is there a difference i overlooked? >> even given all of those provisions, your honor, even given all of those facts, nonetheless this kourts in ex parte young described a violation of roles scheme. in this particular case, the attorney general has no connection whatsoever, not even nn attenuated one to the enforcement of that law, of sb 8. >> justice alito.
>> what can you tell us about the state multidistrict litigation? when this law was enacted i believe in the middle of may, when were those suits filed? where do they stand now? are they being delayed as a result of the federal court litigation? how quickly might we expect to see a decision in that case? >> i can answer some of those questions, your honor, they were filed fairly promptly just before sb 8's effective date. there are currently 14 of them proceeding in a multidistrict litigation. there's motions for summary judgment are due ten days from now, so i assume that the judge is acting on a highly expedited schedule. as to whether they will be post motions practice or other than that, i couldn't say for you, but i have very little doubt the texas courts are going to treat this as a case to treat expeditiously. >> they were filed around the time when sb 8 took effect or around the time when it was enacted back in may. >> i believe it was around when
sb took effect. >> and are they being delayed as a result of the federal court litigation? >> it appears that, again, since a motion of summary judgment deadline has been set for ten days from now, they're continuing at pace even given this court's grant ots yar -- >> at least one of the litigants is planned parenthood where they have raised explicitly the federal due burden defense. i couldn't swear to each of the others. on that explicitly raising this court's articulation. >> thank you. >> justice sotomayor. >> council, groupo mexicana talked about equitable remedies in private parties.
in 1789 we had a new system of government. we never had ex parte young or injunctive relief between governments because we didn't have anything like this before in england or anywhere else. the system of government we have created. now, i take and i listen to what ex parte young said about not interfering with the work of the coordinate branches, ongoing work of the coordinate branches, but one thing that we said in cooper versus aaron was equally important and that is constitutional rights declared by this court can neither be nullified openly and directly by state legislatures or state executive or judicial officer, and these are the key words. nor indirectly through evasive schemes. so given what i just said that
that principle is inherent in the constitution why am i limited by groupo medical examiner -- mexicano, what does exhibit is words we said in ex parte young, which was we are charged by congress in ensuring that federal rights are respected directly or indirectly. so could you respond and tell me why we're limited by anything in terms of what an equitable remedy would be like assuming we were to find -- and you can challenge the assumption but you'll waste your time -- assuming we were to find that this scheme was intended to chill abortions that were constitutional?
>> taking all of the assumptions as i'm obligated to, your honor, at a minimum this court's statement in groupo mexicano saying congress was the one that vested with federal jurisdiction in the first place, suggests that whatever equitable jurisdiction occurs because congress gave it to them. the court recognized the limitation in groupo that, i don't understand was across a public, private sdgs as to whether or not this court or congress had to expand beyond traditional equitable remedies available, and nothing else from ex parte young is significant from this point, the one thing that violates our scheme of government point is relevant for is that plainly is an indication that that kind of injunction is not traditional equity. >> justice kagan, justice gorsuch. >> just a couple of questions, with respect to the mdl that justice alito was asking about, is there anything in that
proceeding that would prohibit parties from bringing a pre-enforcement action against texas's law for violating the constitution. >> no, your honor, there are individuals raising pre-enforcement challenges right now. >> there is a preenforcement action right now. >> yes. >> and there's nothing from prohibiting them to bring one. >> other than identifying a plaintiff. >> and on the chilling effect question, it's been suggested that the chilling effect is different in kind because of bounties and the involvement of private persons, and i would like you to address that. often constitutional rights of course can only be enforced in a defensive posture. when an individual is faced either with potential liability, punitive damages, but also of course civil fines and even criminal sanction including prison time, and i guess i want to understand your argument as to why this is or is not
different in kind. >> well, your honor, it's certainly not different in kind. in fact, it's much milder in degree than a variety of the constitutional rights we have been discussing in the state court, a potential downside risks from failing in state court litigation, again, in "new york times," versus sullivan, there was quite a great deal f of exposure from the defamation action, individuals suffering criminal sanctions for second amendment rights all the time. $10,000 liquidated damages s comparatively mild compared to incarceration for asserting a second amendment right. realistically, none of the complaints about the plaintiff favoring procedural rules in sb 8 would amount to anything even considering a procedural due process violation if this law were about making widgets to get
a preenforcement challenge. >> thank you. justice barrett. >> i want to follow up on justice gorsuch's question about the preenforcement challenges in state court, and you said it just a matter of finding a private plaintiff to sue. is that right? >> a private individual who holds them out that they're going to sue. >> right. so in the state court, then, if i understand that answer you gave to justice gorsuch, the same problems that pervade this preenforcement challenge exist there, that even if they identify a private potential plaintiff who expresses the intent to sue, the injunction would run only against that one plaintiff and we would have all of these same problems because the attorney general can't be sued in state court, so it doesn't resolve -- it's not ex parte young's style, i guess, is what i'm asking. >> no more than probably there's no such ex parte young against individuals. generally if multiple people acted in concert, they could all
be joined. there is one feature of the law that has been brought up before. if an individual has an action brought against them pays the statutory damages amount, no further liability can be brought by anyone for the same act. that would extinguish the down the line possibility of an infinite series of lawsuits. >> for that one abortion. i guess what i'm getting at, and i think the answer because you're shifting is that you can not get kind of global relief in the same way that preenforcement challenge under ex parte young in federal court gives you relief from the prospect that the statute will be enforced against you, and you're saying in state court these preenforcement actions do not offer that, they're just on an individual by individual basis. >> yes, justic barrett, the same way an injunction all individuals in the federal court would be a remedy unknown to that court. >> you've answered my question, thanks. >> thank you, counsel.
rebuttal, mr. hearron. >> i'd like to begin by picking up on the question that justice barrett was just asking. those 14 pending state court proceedings, any relief would be against only those defendants who were sued in those proceedings, the private defendants, they're not the state, and in fact, the defendants that are acting strategically, in order to preclude a broader review, they have stipulated to temporary injunctions in order to prevent an injunction that might then get appealed and get broader relief from the higher courts, and the other point about all of this, and this is another special feature of sb 8, which is that normally in texas law,
texas has a declaratory judgment act that allows citizens to sue the state of texas or the state agency under the texas declaratory judgment act to get that broader relief, and in sb 8 and section 171.211, sb 8 overrides the state declaratory judgment act and reinstates sovereign immunity to prevent exactly that kind of lawsuit against the state to seek broader review in state courts. on the concern about post viability abortions, i don't think that's a concern for the court partly because the petitioners do not provide post viability abortions, and under this court's precedent in whole women's health, that doesn't preclude a statute from being declared facially unconstitutional. i don't think that's a concern that the court needs to deal with, but at the end of the day,
what the state of texas and what my friends on the other side are saying is that clinics should just violate the law. they should go out there. they should go about business as usual, and subject themselves to the risk that they will be forced to close their doors. but i want to make clear, your honor, that this is not just a justice for clinics to make. even if clinics and health centers decided to violate the law, they may not find physicians, nurses, ultrasound technicians, staff members willing to work behind the desk because this law targets all of them. every single person would have to make the decision, am i willing to subject myself to the risk that $10,000 or more, it's a minimum, liability per abortion, plus the risk that i'm going to be hailed into suits all across the state, and i'm going to have my ability to have an attorney taken away from me
because my attorney may have to pay attorneys fees. every single person, and that's exactly what this court addressed in ex parte young. ex parte young and the reason the principles underlying ex parte young support relief here is one of the things that it said is that the railroad may not be able to find an agent or an employee even willing to violate the law to generate a test case. and so your honor, for always reasons that we've stated we think the principles of ex parte young support relief here, and we ask that the district court's decision be affirmed. >> thank you, counsel. the case is submitted. >> american history tv saturdays on c-span 2. exploring the people and events that tell the american story. at 2:00 p.m. eastern on the presidency, we look back at herbert hoovers 1964 funeral, when the 34th president was
buried near his childhood home at west branch, iowa, and 8:00 p.m., lectures in history, pepper dine university professor honeycut on baseball, discussing the role in american culture and the origins of sports journalism. exploring the american story, watch american history tv saturdays on c-span 2, and find a full schedule on your program guide or watch online anytime at c-span.org/history. fbi and homeland security officials testified on efforts to counter domestic terrorism before the house intelligence