tv Justices Hear Justice Dept. Challenge to Texas Abortion Law CSPAN December 6, 2021 3:07pm-4:38pm EST
the supreme court heard oral argument challenging a texas abortion law which bans most abortions after six weeks of pregnancy. private citizens are given the power to enforce the law by filing civil suits. the oral argument is an hour and a half. we'll hear argument next in case 21588 united states versus texas, general prologar. >> mr. chief justice and may it please the court, texas designed
sb8 to thwart the supremacy of federal law in open defiance of our constitutional structure. states are free to ask this court to reconsider its constitutional precedence, but not free to place themselves above this court, nullify the court's decisions in their borders and block the judicial review necessary to vindicate federal rights. as this case comes to the court, there are three principle questions. first, is texas responsible for this law? second, can the united states sue to hold texas to account? and third, is the injunctive relief available? and the answer is yes down the line. texas is responsible for the constitutional violation here. it enacted a law that clearly violates this court's precedence. it designed that law to thwart
judicial review by offering bounties to carry out the state's enforcement function and structured those enforce. proceedings to be so burdensome and thread in such significant liability that they chill the exercise of the constitutional right altogether. the united states has a manifest sovereign interest in suing to address this violation. sb8 is a brazen attack on the coordinate branches of the federal government. it's an attack on the authority of this course to say what the law is and to have that judgment respected across the 50 states. it's an attack on congress' determination that there should be access to pre enforcement review and federal court to vindicate federal rights. the united states may sue to protect the supremacy of federal law against this attack. finally, the injunction is a
proper response to texas' unprecedented law. if texas can nullify roe and casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor. federal courts are not powerless to craft relief to stop that intolerable threat to our constitutional hierarchy. >> general prelogar, would you spend just a few minutes on the united states' interests that gives your basis for being involved in this suit? >> of course, justice thomas. the interest of the united states here is the sovereign interest in ensuring that states cannot flout the supremacy of federal law by enacting a law that's clearly unconstitutional and then through this simple mechanism of outsourcing enforcement authority to the world at large, blocking the traditional mechanisms for judicial review that congress in section 1983 and this court and ex parte young recognized would
be vital to securing federal constitutional rights against that kind of law. >> is there any difference between legislation and precedence of this court as far as the supremacy interest that you have? >> i think that if a state structured a law in exactly this manner to try to flout this court's precedence, for example, interpreting statutes, that it would raise that same kind of supremacy concern. but of course here i think the situation has additional urgency because what texas has done is taken constitutional precedent from this court and legislated in direct defiance of that precedence and try to, in the words of the interveners, box the judiciary out of the occasion and prevent the courts from providing any meaningful form of redress. >> you based your involvement quite a bit on debs. can you give me a couple of examples where the united states has taken a similar action based on debs? >> i'd be happy to.
i want to acknowledge at the outset that we can't point to a case that looks exactly like this one and that's because there's never been a law exactly like this one. no state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in o quite the same way. i think there are relevant cases to distill from the debs line of cases. what the court has said is the united states can't come in and seek to intervene in a private dispute. it needs to act on the basis of the public interest and the public at large, and, further, the subject matter of the suit has to be one that concerns and
is entrusted to the case as a whole and four that the nation owes a duty to their citizens. this court in the debs line recognized that type of sovereign interest can occur in a variety of circumstances, for example in the american bell case the court recognized the united states could sue inequity even though the united states had no reversion nair interest or pro prior they southwest in that patent, it was acting on behalf of the nation of the whole it couldn't have an acquisition of a monopoly based on fraud in that matter. >> actually what i'm more interested in is have you done something similar when a constitutional right has been involved? for example, there was much discussion about tort actions that were allowed in states involving second amendment rights. i'm sure there were many opportunities in the area of race, particularly during segregation to do similar
things. do you have any examples, not precedence, but examples of the national government taking part in playing the exact same role or doing exactly what you're doing in other areas involving constitutional rights? >> i don't have examples, but that's because i'm not aware of any circumstance where a state before has sought to prevent access to the ordinary mechanisms for judicial review -- >> even if it's not exactly the same, when a constitutional right is being frustrated by a state process, have you sought to participate in the manner that you're participating now because the supremacy of a u.s. law or constitutional right is not being respected? >> well, i want to be very clear, justice thomas, that we're not asserting here an authority to sue just because the state enacted an unconstitutional law. ordinarily that wouldn't present the same grave threat to
supremacy because under sections 1983 or ex parte young, there would be a swift remedy in court. the interest here is tied to the fact that the state structured the scheme in a deliberate attempt to prevent federal courts from doing anything about the constitutional violation. because a state has never before crafted an enforcement scheme like this, there's not been the kind of situation that would prompt the united states -- >> general prologar, can i take you to another stance that you started with? in these extremely unusual, unprecedented circumstances, you said the court is not powerless to craft relief. you heard the last argument, and there were -- much of the last argument was all about what would relief look like and how should we craft relief if it were -- if relief were appropriate.
is it an injunction against the clerks, or is it an injunction against the state a.g., or an injunction against -- fill in the blank. how should we craft relief? >> i think the appropriate relief here is the relief the district court entered. the court enjoined texas from implementing sb8 and enforcing it in any manner. the court went further to identify all the stages of the sb8 enforcement proceedings where that injunction would operate to stop the threat of those enforcement actions that have chilled the enforcement of the right. first, the district court said the injunction would appropriately bind those sb8 plaintiffs who actually choose to exercise the state's enforcement authority. so those who actually file suit thereby act in concert or in participation with the state. second, the district court recognized in these very unusual circumstances it was also appropriate to bind the clerks and the judges who are being used as part of the machinery of this apparatus to impose the
substantial chilling effect through the sb8 enforcement actions. finally, the district court recognized that the injunction would reach on the back end any effort by state officials to enforce those judgments because that, too, would perpetuate the constitutional violation. i think we have the model already. it's the injunction the united states obtained in this case and it's intended to provide full and complete relief against the grave threat that sb8 is proposing to the supremacy of federal law right now. >> and if there's some fear that the law we make about how to craft relief will apply in other cases where it's not so necessary, what would you say, what would you do to ensure that that did not take place, to essentially cabin this kind of relief to the peculiar circumstances of this case? >> i think it would be appropriate to cabin it in two ways. first, in recognition that ordinarily it is far more appropriate to enjoin the up stream enforcement agents who would be bringing cases to the court in the first instance. that's an ordinary way that the ex parte young action proceeds.
if the state hasn't specifically sought to thwart the mechanism here by outsourcing to the general public, that kind of injunction would have been appropriate. the problem is that the state has specifically, difficult delegating to members of the general public this enforcement authority, it specifically made it impossible to determine in advance who was going to become an ab 8 plaintiff and choose to file suit. i think in that circumstance, injunction relief that prevents the state court proceedings from going forward is appropriate. the second limitation that i think the court could articulate is that this is the rare case where the mere existence or threat of the litigation is itself causing the constitutional harm. it's the flood of sb8 enforcement suits that could be filed that is chilling the exercise of the constitutional right today.
it's not normally the case in an ordinary suit that the mere prospect that there could be a case filed would create this kind of profound harm and chilling effect on constitutional rights, but that was texas's intent here. that was its clear purpose and the actual effect. right now in texas that constitutionally protected care is not available. >> general, i appreciate your point. texas, as you say, has done everything it possible can to try to make it difficult for abortion providers to vindicate their rights under our precedence. i get it. i think it's a forceful argument, but i think we have to be concerned about the implications of the mechanisms that you propose for providing some kind of relief. a lot of your brief and all the other briefs that have been filed against texas in both of these cases suggests that we should issue a rule that applies just to this case.
but that's inconsistent with the rule of law. if we decide -- when we decide a case, the rule we establish should apply to everybody who is similarly situated. if you look at the particulars of the enforcement mechanisms, they are unprecedented and they provide cause for concern. so i'd really like to hear your explanation about why they're appropriate and how they can be limited to this case. start with the judges. it's unprecedented, and it is contrary to our system of federalism to enjoin a state judge even from hearing a case. when has that been done, and how can that be justified? the judge is a neutral arbiter. the judge is bound to apply the constitution. how can you enjoin a judge from performing a lawful act which is the adjudication of a case that is filed before the judge? >> well, i want to be perfectly precise that in our case the district court enjoined texas and found that injunction could properly reach the state court personnel who would be then exercise the state's authority. >> texas is an abstract entity. an injunction has to apply to
people. yes, there are instances where a state has been enjoined. what that means is that everybody under the control of, let's say, the state who -- everybody who has to follow what the state attorney general says has to comply, and the state can pick -- can work out the way that would work. that doesn't apply to state court judges. >> i certainly acknowledge, justice alito, that an injunction that would bind state court judges is extremely rare. it's not unheard of, and i think in the unprecedented facts of this case, it's appropriate relief. >> well, judges have been enjoined -- let me interrupt you. judges have been enjoined from
performing unlawful acts. here the act they're enjoined from performing is a lawful act. how can that be justified? let me give you this example. suppose an action is brought under sb8 in federal court pursuant to diversity jurisdiction. let's say a woman sues a doctor who has flown in from another state to perform the abortion. would the district judge in this case have the authority to enjoin another district judge from even hearing that case? >> no. i don't think the injunction could properly reach the federal system. i don't think there is any realistic possibility that any of these suits could possibly proceed in federal court because the distinct feature of sb8 is the plaintiffs who are authorized to sue need not have any injury or suffer any harm from the prohibited abortions. i think the idea there would be a proper basis for article 3 jurisdiction is certainly lacking. >> it's certainly possible to think of cases where there would be federal jurisdiction. a woman sues an out of state
doctor in diversity under sb8 for physical or emotional harm suffered as a result of the abortion. there's injury, in fact, and the amount in controversy could be met. your answer is one federal judge can enjoin a federal judge. a federal judge can enjoin state judges because they're lower creatures. that's the answer. >> that's not what i mean to suggest. here the injunction runs against texas and the state court judges in texas are being utilized to effectively create -- to constitutionally protected conduct that the mere existence of the suits, no matter how the judges adjudicate them create the constitutional harm by chilling the conduct. we are not suggesting that the judges would do anything other than actually follow federal law here. we think each and every one of these sb8 suits would inevitably be dismissed because the statute is so clearly unconstitutional. that doesn't remedy the
constitutional harm because the constitutionally protected care isn't being provided in the first place. >> general, to achieve this injunction against state courts, do we also have to overrule ex parte young where we said -- i'll quote, an injunction against a state court would be a violation of the whole scheme of our government. the difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of the power to do the former. do we have to overrule at least that aspect of ex parte young? >> no, justice gorsuch. i think that aspect of ex parte young has to be read in the context of the court's recognition there and the whole thrust of the opinion that the appropriate relief would run against the enforcement -- >> i understand that.
that was justice breyer's point earlier. ex parte young also said this -- and i think -- am i wrong? how do you reconcile saying you can never enjoin a court to saying you can't hear. something has to give. >> i certainly think it's not uncommon in equity to have relief to remedy a suit in law pro proceeding. if this court has concerns with that approach i think the court could rightly recognize the remedy should focus on the clerks engaged in the ministerial task of scheduling the cases and the sb8 plaintiffs exercising the court's authority. i think the court's statement in ex parte young has to be read against the backdrop of this court's recognition that there would be otherwise effective relief available. what we're confronting here is a situation where it's very difficult to find that effective
relief by design because texas designed the law specifically to thwart it. >> general, do you agree there are instances in which no federal forum is available to adjudicate a federal right? >> yes, i do agree that that is sometimes the case. >> you also agree it's sometimes the case that a federal right can only be enforced defensively and not in a pre enforcement challenge? >> yes, that can be the case. >> can you tell us what are the elements that must be necessary for you to have -- to seek the kind of equitable relief that you are seeking here? would it be limited to cases where every single one of the characteristics of sb8 that you mentioned are present? must they all be present? and if that is the case, is this really what you're seeking, a rule for one case? >> i don't want to suggest that every single feature of sb8 would necessarily have to be replicated, but i think the overall inquiry would have to focus on whether the state has deliberately sought to prevent any effective means of judicial review. here we have it both with respect to federal court. of course, the state sought to
supplant the 1983 ex parte young action, but we have it on the back end as well a where the state is trying to purposefully make these sb8 proceedings so procedurally anomalous and feature rules so stacked in favor of plaintiffs and defendants that the clear purpose and actual effect has been to chill the right. i think this is a response to justice gorsuch's questions as well. because although it is true that sometimes there's not a federal forum to raise a federal claim, for example, with defamation, it's not the case that in those circumstances the state court proceedings are heavily weighted in favor of the plaintiffs with the evident intent to chill the speech from occurring. the proof is in how this has actually worked in practice. defamation actions haven't meant
that no speech occurs. >> counsel, we've created a whole substantive law for defamation out of concern for chilling effects. why on that theory wouldn't we go one step further, for all the reasons you provided -- they're good reasons. i think justice alito said they're strong arguments. why wouldn't we do that for the second amendment right or right to exercise free religion? we don't get to pick and choose among our rights. we're supposed to enforce them all equally. why does this one get special treatment? >> this law is different because it has taken the ordinary state court mechanism that might be an appropriate way to vindicate the rights, whatever they are, and it's purposefully sought -- >> you'd agree tort laws for defamation have a chilling effect? >> yes, but -- >> that gun controls also have a chilling effect? >> they can, but not -- >> you'd agree laws restricting the exercise of religion can having a chilling effect? >> i'm not denying, justice gorsuch, those kind of laws can have some measure of chilling effects on the margins, but look
nothing like this law. >> you're not suggesting this right were different, are you? if this exact law were issued by a state that wanted to be hostile to gun rights, your argument would be the same, would it not. >> it would be exactly the same, because the threat is to the supremacy of federal law accomplished by trying to cut off the channels of judicial review that congress recognized in section 1983 would be vital to vindicating federal rights, whether that's second amendment rights or rights to religious liberty or here the right to abortion. >> well, it doesn't matter it's the abortion right. how about the issue of severability. you want to enjoin every action brought under sb 78 even though some of them would not violate roe or casey.
i guess the justification is that, in the abortion context as we held in the prior women's health case severability doesn't count. normally we pay attention to severability clauses. i guess when it's abortion, if there's one provision of the statute that's unconstitutional, the whole thing sinks. is that your position? >> our position is this concluded it would effectively amount to legislative work to walk through sb8 and try to parse it provision by provision and application by application to determine which applications would be constitutionally permissible. >> is that what you want ups to do? if we find one provision of some massive federal statute unconstitutional down the road, well, it's too much work to go through them all, we're just going to strike down the whole thing. you want us to do that? >> the difference here is the district court recognized it would actually require rewriting the statute to try to reach
those lawful applications. i think in particular in this preliminary injunction posture where the court was acting on an emergency basis, that kind of parsing wasn't necessary. if this court disagreed, i think all that would show is that the court should confine the injunction to the applications that are unlawful under casey and roe and make clear that the only acceptable implementation of this would be with respect to post viability abortions. texas already prohibits that. the providers don't provide them. i don't think that would have any actual real world effect. >> can you go back to justice thomas' question. imagine those columns there are filled with the california civil code. let's take out those parts that don't deal with private people so we have property and torts and so forth. someone in your office says i've been reading that -- don't ask me why -- but i found 19 provisions here that i think are unconstitutional. let's go bring a case. now, if we accept your argument, i guess that person has a good point. i'm a little nervous.
so far what you said to distinguish this one you said here texas purposely did this. boy, that raises a whole nother set of issues, as you know. you say they're not giving a good forum in the state to test out the constitutionality. and now i think about the california civil code or the procedure code or 15 other things. i don't know. is that the test? have you sat down and thought through what are the implications of the test, or is it that the federal government, no matter who is in charge without a statute, whatever party, whatever president can just go and intervene in any case, can bring a federal case whenever they think a state law is affecting private people is unconstitutional? if not, what's the test?
>> no, justice breyer. we are not urging broad authority to bring a suit like this in the circumstances that you identified. i think that there are two critical distinctions here that separate those circumstances from the ones we confront with sb8. first here it is perfectly clear that congress intended to have a federal court forum for the vindication of this type of claim through section 1983, and the state is purposefully trying to manipulate it through the delegated enforcement authority that and avoid the federal court forum. second, with regard to the state
court proceedings, it's not just that these proceedings deny a fair forum. it's that by their very design with respect to each and every procedural and substantive rule, they display open hostility to federal rights and try to prevent any effective forum to get statewide relief declaring this law in violation of this court's precedence. >> thank you, counsel. i share some of the concerns voiced by my colleagues. you say this case is very narrow, it's rare, particularly problematic. but the authority you assert to respond to it is as booed as can be. it's equity you said. we have the authority to sue states under equity which is a limitless, ill-defined authority. i just wonder -- i know you've been asked this question before,
but if you could repeat your answer. what is the limiting principle? when we get another case down the road where it's a different solicitor general who is making this argument in a different case, what are we going to be able to point to that says no, no, you can't invoke that broad equity power, or you can't say just because there's a state statute that is enforced by private parties, which is a very common phenomenon, that you then get to sue the states? >> mr. chief justice, the equitable remedy that we're seeking here is not limitless. it is the traditional remedy of enjoining implementation of an unconstitutional law, and the limiting principle -- >> well, it's hardly traditional to get injunctions against judges, injunctions against clerks, injunctions against everybody, right? that's part of the relief you seek, isn't it? anybody can bring one of these suits, so you're seeking an injunction against the world, right? >> no. we're seeking an injunction against those who actually choose to involve themselves in the constitutional violation by filing suit. >> anybody can do that, but anyway -- i'm sorry.
>> it's true. i just wanted to be very clear that the injunction doesn't apply to the potential plaintiffs, only to the actual plaintiffs. to try to address the concern you've raised, i think here the limiting principle arises from the way the statute operates, to try to deprive any meaningful review anywhere, whether in federal court at the outset, whether state court at the back end through enforcement proceedings. i recognize this seems like a novel case, and that's because it's a novel law. we do not think a recognition here that the united states can intervene to try to protect the supremacy of federal law would open the flood gates in the mine-run situations where the state is applying a right of action through ordinary and fair state court proceedings. >> justice thomas? >> no questions. >> justice breyer? justice alito? >> as to the potential private plaintiffs, how can they be bound under rule 65 under the federal rules of civil
procedure? with what party with they acting in concert? >> they're acting in concert with the state of texas which has created the bounty that incentivizes their conduct and created the apparatus through the enforcement proceedings -- >> with the state, not with any individual who is a party? >> that's right. we believe they act in concert with the state which is the named defendant here and bound by the injunction. >> so would any private plaintiff bringing any common law tort suit be acting in concert with the state under the laws of which that claim is asserted? >> no, but there's a world of difference between an ordinary private right of action and the exercise of that kind of private enforcement and what sb8 contemplates -- >> i understand that. why is the question whether they're acting in concert with
the state any different? here they're acting in concert with texas you say because they're bringing suit under a texas law. if somebody brings suit in maryland under maryland defamation law, they're acting in concert with maryland, is that right? >> no. we're not suggesting that every private right of action is governed by these same principles, but the key difference here is that the individuals who are sb8 plaintiffs are exercising the state's own enforcement authority. this is not meant to remedy some private arm those individuals suffered. i think the best example or illustration of that is that the $10,000-plus bounty the state has created is only available to the first-comer. the suggest that was made earlier by texas that this could be some redress for personal outrage i think is inconsistent with how the scheme is structured. this is meant to simply function as a method of encouraging the suits to be filed in the state's behalf. in that circumstance we think it can qualify as active concert or participation.
>> well, the texas constitution requires injury, in fact. this statute, as i understand it, permits an award of actual damages in addition to the liquidated damage. there's nothing particularly unusual about a statute that provides for liquidated damages. so i don't understand your answer at all. >> justice alito, if that's what the statute was attempting to accomplish, presumably it would apply those liquidated damages to every sb8 plaintiff. it wouldn't limit it to just the first person able to effectively bring to bear the coercive force of the state's enforcement authority. the suggestion here that the $10,000 is meant to provide a presumptive dollar amount on personal injury is inconsistent with how the statute operates. >> one final question. the federal rules do provide a mechanism for you to do what i gather you're trying to do with respect to these potential private plaintiffs, and that is to certify a defendant class. did you try to do that?
have you satisfied the requirements of rule 23 to do that? >> we did not try to do that. again, i think this relates to my answer to the chief justice, that the injunction doesn't reach the world at large or every possible person, anyone anywhere who is authorized under this suit, it's nair roily focused on those individuals who choose to exercise the enforcement authority by filing suit. >> justice sotomayor? >> what happens to your lawsuit if we were to find that whole woman's health is -- >> i think that wouldn't retroactively operate to extinguish the sovereign injury that the united states experienced when texas passed this law and clearly attempted to thwart judicial review at a time when the law was unsettled. i think if this court clarified in whole woman's health that the providers can move forward with their suit and it forcefully rejected texas' effort to sometime many that kind of federal court review, we
wouldn't have the same sovereign interest in a future case because the attempt at circumvention would not work. >> they can't sue the state the way you can because of sovereign immunity. so one of the big issues for them -- i'm not asking for you to litigate their case but asking how it affects yours. who do they sue? they haven't sued like you have, all sb8 plaintiffs who file suit. they've suit, a clerk, a court, a judge, attorney general and other state officials. so how do they get the relief that you're seeking? you've heard justice alito say not everybody has been named because the sb8 plaintiffs have not been named. so how can they be bound? >> that's right, justice sotomayor. i think that reflects that the
relief we're seeking is in some respects different than the relief the providers could obtain in their suit because they don't have a mechanism to identify or sue the sb8 plaintiffs. here our injunction can rightly reach those plaintiffs because the state of texas is subject to our suit, and then the plaintiffs can be bound under rule 65. i think the providers, therefore, have rightly focused on trying to target the aspect of the enforcement proceedings that create the harm through the filing of the cases in the first place. i understand that to be the basis of their request that the court recognize their claim as against the clerk class. >> thank you. >> justice kagan? >> well, is it also possible that in the whole woman's health suit that the a.g. could stand in for the individual plaintiffs in the way that in your suit the state essentially stands in for the individual plaintiffs? >> i think that is possible, justice kagan. if this court concluded that the a.g. of texas could properly be
enjoined here in the provider suit, that would pierce the fiction that the state has tried to create by delegating the a.g.'s enforcement authority to the world at large and could rightly try to target that aspect of the enforcement scheme. >> justice gorsuch? >> general, are you aware of a precedent that permits an injunction against all persons in the country, the world, the cosmos bring suit? >> no, justice gorsuch. our injunction doesn't do that either. >> you said against anyone who brings suit. i did include that in my limitation. am i missing something? >> just to be clear, and i'm sorry if i wasn't clear about this before. we understand the injunction only to bind those individuals who choose to file suit. >> that's my question. i'm asking you, counsel, are you aware of any other example of such an injunction? >> with that specific term, i can't cite one to you. >> not in the history of the united states you can't identify one?
>> in the history of the united states no state has done what texas has done here. >> with respect to those individuals who would be bound, could they -- for filing a lawsuit in defiance of it and maybe file discovery request or taking some other action be held in criminal contempt? >> they couldn't be held in contempt without receiving notice and an opportunity to be heard. i think they would have an opportunity -- >> there's always that opportunity to be heard before criminal contempt proceedings, but could they be held in criminal content consistent with procedural due process? >> yes, so long as they had notice of injunction they could be. >> if they didn't have notice, you're saying contempt is not possible? >> that's correct. >> are you aware of another circumstance where an injunction has been issued where contempt is not possible? >> justice gorsuch, i think in any circumstance where someone didn't have notice of injunction, contempt could be
possible. >> is the answer no, you're not aware? >> i think every injunction operates that way. >> because every other one provides notice in advance and this doesn't. this one wouldn't allow for contempt proceedings? >> no. the district court tried to facilitate notice -- >> counsel, if you can answer my question, please. you're saying an injunction could be entered without notice, you're not aware of one prior to that. i'd like a straight answer as to whether those individuals in these circumstance could be held in criminal contempt or not? >> if they didn't have notice of the injunction, no. >> is this an advisory opinion saying don't file these things, don't throw them away, but we have no power to enforce? >> no, because the injunction does appropriately bind texas and does appropriately bind all those individuals who exercise the state's enforcement authority. >> what is an injunction without enforcement power? >> there would be enforcement power both with respect to the state, with respect to the
individuals who have actually notice and file these suits, with respect to the court personnel who violate the terms of the injunction and the enforcement agents -- sdm on the question and equity right here, i think justice thomas alluded to this too. has the united states asserted this equity right to protect individual rights in any other state, ever? >> i want to be clear that the right we're asserting here is to protect the right of supremacy law. >> have you done that in any other situation in our history? >> we have brought suit before. it was a series of cases in the 1970s that did not work their way up to this court.
that's not the argument we're making here. >> besides that suit, are you referring to any others? >> no. i believe there were three suits. >> general in the prior case, the plaintiffs would be the same plaintiffs who were ordinary exparty young situation. general stone would be representing state d.a. or state executive official. we'd have arguments about the merits which we're not dealing with today. your case by contrast seems just different and irregular and unusual and we don't know where it goes.
if you could fill in and maybe this will be repetitive, but you think the u.s. has authority to bring a suit like this against any state law that -- >> that violates the court's precedence and tries to shield that from any effective judicial review in federal or state court. and i recognize justice cavanagh that this is an unusual suit. the reason we have done it here is that sb 8 is so unprecedented, extraordinary, and extraordinarily dangerous for our constitutional structure, that if texas is correct that it can successfully evade the mechanism that's this court recognizes and congress recognized, then no constitutional right is safe and we think in this extraordinary circumstance the united states should protect the federal supremacy of law. >> what if our precedent all together was just uncertain. if there was an open question about something, and a state wanted to draw a line with respect to the precedent? would the u.s. have an authority
there? is there something about what you think is the clarity of the violation here that triggers your authority? >> if the state structured that hypothetical law in the same way, we would have the same consider that they are seeking to take the issue away from the courts. you can imagine a circumstance where a right is more unsettled. the right to possess handguns in the home. if dc enacted to deputize members of the public to seek these suits, i think that would have raised the same concern that effectively the state is seeking to botch them out of. i think the state is more likely to not engage in this right. it would think it's law is constitutional and i assume it
would want to forthrightly defend it, but it a state, instead, worked to shield the law it would raise the supremacy clause concern. >> thank you. >> justice barrett. >> i want to follow up on the questions that justice kagan and justice sotomayor asked about what happens if your plaintiffs in the women's health suit prevail. imagine they prevail on a theory that the attorney general has authority and that the private parties can be bound as state actors pursuant to rule 65. you told justice sotomayor that then the united states' interest would not dissipate even in that scenario. i guess i didn't understand that. you phrased it, i think, in the past tense, that wouldn't cure the affront to sovereignty that was already there. but the force of your argument for equity here is the
inadequacy of a remedy at law because the way texas cut off access to the ex parte young remedy. could you explain why your suit would continue to be live or why there would be an argument in favor of it if justice sotomayor's hypothetical were in play? >> of course, justice barrett. i appreciate the chance to clarify. i don't mean to suggest that the suits wouldn't interact with each other with respect to what kind of equitable relief would be appropriate. i understood justice sotomayor to be asking whether our suit is effectively contingent on the whole women's health litigation, and my response was that you have to measure the sovereign injury here at the time the statute was enact the. it was clear that texas was seeking to deprive others of having an opportunity to go to federal court for a remedy. the law was unsettled and it was apparent and has been the effect that texas succeeded in fullfying the right currently while the cases are work, their
way through the courts. if this court provided guidance in whole women's health and made clear a state cannot succeed with what texas attempted to do here, we wouldn't have that same circumvention concern in the future. in all con der, the concern is that then a state might seek to legislate around the whole wilts health decision. tweak it in some way to get around that ruling. i think that shows what when a state attempts to thwart judicial review and that to creates that possibility, the united states may sue in equity to redress that harm. >> it would be kind of a pile-on injunction? they would have an injunction against the attorney general and the private plaintiffs acting, you know, as state actors and then we would -- let's say we didn't want to enjoin the clerks and the entire apparatus of the state. if we thought you getting an injunction against the state of texas could only obtain one against the executive officials who would enforce the law.
you are asking just for the same injunction in your suit which is acknowledging that the u.p.s. has the ability to bring this find of in re suit? >> it's important to question out the authority to sue. when we filed this suit at that point of course there was no relief being provided on the ground in texas, this law had taken effect and chilled a constitutionally protected right out of existence, at that point we were authorized to bring suit. the question of what the appropriate remedy would be i think is a separate one and i think it very well kwo be the case there would not be a need for duplicative injunctive remedies in both of these cases. that's a separate and distinct question from whether we could sue in the first place. >> thank you. >> general stone. welcome back. >> it's been a long time. thank you again, mr. chief justice. may it please the court.
the department of justice's suit offends of separation of powers by usurping for the executive branch the role congress plays in determining what cases may be heard or what rum recommend december may be provided in federal courts. no texas official is a proper defendant in a reinforce. challenge to sb8. the united states cannot cure that problem by naming the state of texas as a nominal defendant and then asking for relief that runs against the same texas officials that are inappropriate targets for injunction under bedrock article 3 and equitable principles. moreover, the united states is not a proper plaintiff. it cannot claim a sovereign interesting in suing to enforce individual rights under casey and the remedy foreign to traditional equity. congress must create such novel remedies if they are to exist at all. and congress has been rejected given the united states such
relief by providing other avenues to vindicate 14th amendment rights. like the petitioners in the whole women's health, the united states asks this court to disregard all of this because it keeps sb8 a and a halfle problem for which this court must concoct a novel solution. even if it were, and it is not, such a request must be directed to congress. the united states cannot seriously assert that the constitution requires reinforcement federal judicial review. it opposes that result in virtually every other case. this court should reject its request for a special forum, remedy and cause of action for this case alone. i welcome the court's questions. >> is there any instance in which the united states can do what it's doing now that would be acceptable to you?
that is, let's say there is no question whatsoever that a state is defying a national law or a federal law or a constitutional provision such as, for example, the second amendment. is there any instance in which the united states can step in? >> so, your honor, i have to first clarify. are you saying with a cause of action provided by style? >> in re debs. >> to the extent that congress provided a proprietary right or recognized a public harm and then also the united states was seeking a traditional form of equity relief, then it could proceed. >> so a very narrow set of cases? >> yes, your honor, but some. >> a separate question.
i am interested in the cases that are proceeding in state court. and this is a carryover from the first case. what remedies could be provided in those cases if they were allowed to proceed? >> an individual could receive, for example, an injunction preventing the bringing of an enforcement action or by bringing a lawsuit by a plaintiff who seeks to do so. now, of course, as discussed earlier to justice barrett, that would provide relief against that one individual. the more important part here is that eventually hose sorts of cases or stare decisis grounds. but in terms of relief, you get declarations out of the texas state system. a declaration that an application of sb8 against an individual -- i misspoke earlier, with an injunction, a declaration that an sb8 claim by that individual against the protected conduct that someone is raising would violate state
law, federal law, whatever the claim might be. >> one final point. why wouldn't -- and i think i have, you know, alluded to this before, i asked this before. why wouldn't these private individuals be considered private attorneys generals? because so much seems to be one thing that seems rather implicit on the other side is that they are new effect, if not in designation by law, attorneys generals. because they are enforcing a statewide policy. so your argument again would be that they are not private attorneys general because, or they are not acting in concert, they are not deputized, they are not agents because? >> because they are not subject to the state's control. they don't have access to the
state's investigatory resources. the state can't take the case over like -- those sorts of answers that i was provided earlier. my answer runs specifically to the lack of control between the state with regards to an sb8 private plaintiff suit. >> let me think about a specific example, which was the worst one i could think of for you. i mean, suppose the governor filed this, had this model law and said anyone who brings a black child to a white school is subject to, you know, and then we copy the law. there we are. now, if you were in that situation, which i'm sure you're glad you're not. what? what would you do? if we uphold this, are we retroactively upholding that? >> no, your honor. for that case, congress has specifically provided --. no, this is before congress -- '57. congress was no help. i mean, believe me, they did
nothing. or if they did something, i am not aware of it. if they did something, i assume it out of the hypothetical. >> fair enough, your honor. the answer would be that there would have to be recourse to the state court. i assume this is a state legislature. >> this was arkansas in 1957. >> sure, your honor. and that, in fact, that that court would be obligate today apply this court's decisions. it's a transparent violation of the 14th amendment, your honor. we have to assume that state court judges -- >> but they didn't. we have some experience. and most of those cases that came up in that period to this court, the judges were aware of that experience and they tried to shape the law to avoid it. so is there anything you can think of -- i am getting your answer as no, you cannot think of anything. the only thing we would have to have said then is, well, it's up to the state of arkansas'
judges. >> the problem, your honor, the number one answer to the question is a thing you asked me to assume away, which is in 42 usc 2000-c 6, a cause of action for the united states -- >> can i give you examples where congress hasn't? a state dissatisfied with heller says, anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets a $1 million bounty. no starry desigh sis, nothing. how about in oberger feld. imposes sb-style liability on anyone who officiates, aids or abets a same-sex sweating. how about lawrence v. texas, subjects a private consensual sexual conduct of which it
disapproved to the exact same law as sb8. how about griswold? >> the because and sale of contraception is subject to sb8 style liability. this is not limited to abortion. that's the point that's been raised. it's limited to any law that a state thinks it's satisfied with >> i have at no point asserted that the extent of federal court or federal court veil nlt turns on the underlying right here. quite the opposite. >> so your point is, no matter how much a state contends to chill the exercise of a constitutional right, as the chief said, imposing a $1 million liability for an act, which i think almost any sane person except a couple of billionaires might choose to resist, that that does not give
anyone a right to a federal forum when the state has deputized every citizen to act on its behalf? >> no, your honor, it does not create federal jurisdiction as a consequence. i do want -- however, in the spirit of the hypotheticals, to return to a point that justice barrett made at the end of my friend's previous argument, at a minimum, to the extent this court believes it has to alter the ex parte, et cetera, to find a way for the plaintiffs proceed, at a minute, the united states case must fail. the united states conceded whatever interest they had would be purely retrospective as there being some sort of ability to vindicate the rights that they are trying to provide. they only seek a preliminary injunction which is exclusively prospective relief and can't maintain their action any further. it goes one way. if the petitioner in whole women's health have a avenue for
relief, the united states must not. which makes sense given the extraordinary cause of action that they are trying to bring here. congress has provided the united states certainly at titles, sometimes with truly extraordinary powers such as the power of preclearance to, you know, under the voting rights act to give one extraordinary example. the united states would want to follow on injunction for in their words in the event that the state of texas changed it its law or otherwise tried to in a way of uncharitably put it, to comply with this state -- with this court's law and yet have something like sb8. we have a term for when a state is put into a state where they have to get the federal government's approval before it makes a relevant change, and that's preclearance. so it can't possibly be the case they would be entitled to that sort of remedy just as a matter of course this the event that whole women's health succeeds or prevails to any extent. that's one component of the
extraordinary expansion -- sorry. is of federal power that the united states is asking for me. they are claiming a brand-new sovereign interest which can be synthesized in ensuring the vindication of individual rights underneath this court's pronouncement in casey and subsequent due process or a sovereign right to ensure the expansion of access to the federal courts because after all section 1983 and congress' various statutes that compose the federal courts stand as they stand. texas understands them. the united states can't possibly have a sovereign interest in extending application of those doctrines to apply to cases they don't just because they deem this a very important case. >> general, if i understand your answer to justice sotomayor, well, even if that's a really good question that i don't have
an answer to in the other case, i have an answer in this case. and that's fine. that's, you know, here you are. we are in this case now. but i guess i just would like to take you back to the other case and to ask you to answer the question that you said you wanted to avoid for justice sotomayor. >> sorry, your honor. i thought i agreed it doesn't depend on the nature of the right being asserted and that also none of the -- we could sort of raise the potential sanction as high as possible and that wouldn't affect federal court availability. i thought i answered that. to make my answer -- >> thank you. >> the nature of the remedy -- >> i do want to ask a question about that though. i mean, if that's right, you know, and we say that, we would live in a very different world from the world we live in today. essentially, we would be
inviting states, all 50 of them, with respect to their unpreferred constitutional rights to try to nullify the law of the -- that this court has laid down as to the content of those rights. i mean, that was something that, until this law came along, no state dreamed of doing. essentially, we would be like -- you know, we're open for -- you're open for business. there is nothing the supreme court can do about it. guns, same-sex marriage, religious rights, whatever you don't like, go ahead. >> respectfully, your honor, i have to disagree within two points. the state of texas hasn't nullified anything. the state of texas specifically set up in state law a recognition of this court's holdings in casey providing an undue burden defense particularly to recognize that this court's holdings bind state courts in adjudication and of course the federal constitutional right cannon must be made available in state
courts regardless. the second point, to the extent that we are talking about sort of the extremist hypothetical with it's a $5 billion sanction and by the way court is on the moon -- >> this seems an extremist hypothetical actual, you know? because the actual provisions in this law have prevented every woman in texas from exercising a constitutional right as declared by this court. that's not a hypothetical. that's an actual. >> that's not true, your honor. there is evidence in the record that estimates the number of abortions occurring in texas right now is between 50 and 63% -- >> you're right. i should have said every woman in texas who has not made a decision before six weeks. >> respectfully, your honor, there is a difference between asserting the state has struck churtd its courts to defy federal law to extinguish a right and saying a state has codified this court's holdings in the applicable case and then also to that extent the deterrent effect has caused some
dimunition of the exercise of that right. that's a very substantial difference and substantial for the purpose of the judges of this court and the states of texas. again, just if i may, to go back to the extraordinary nature of the kind of remedy that the federal government -- >> just on the question of the kind of law, hb 1280, which has passed around the same same, as i understand it, the trigger law, so to speak, that has ordinary enforcement mechanisms, as i understand it. criminal, sanction, enforced by the state, civil. and if you pair that with this law, it looks like this law was designed to avoid the review that that law kind of openly would be available -- >> no doubt texas, just like every other state, is well aware
of the limits of federal jurisdiction in federal courts and no doubt texas crafted the law in part to avoid federal reinforce. challenges as opposed to having the challenges in state court. that's an obvious purpose of this law and the obvious way law functions. texas doesn't commit a constitutional wrong by challenging state court challenges into state court. that's not an independent constitutional obligation that texas is under. it's not -- it doesn't have to sort of fly blind as far as the collateral effects of what kind of challenges that were received when it decides how to structure a law. >> but it does have an obligation to follow, to respect people's federal constitutional rights. >> absolutely, your honor. again -- >> so if it's attempting to stifle those rights, chill their exercise and keep plaintiffs away from a 1983 action and ex parte young liability, you say
there is nothing wrong with that? >> your honor, the limits of section 1983 and ex parte young 'availability, specifically 1983, congress could ex tend ex parte young, are a matter of congress. the idea that texas would design a tort statute or liability that takes that in mind and says these cases have to go through the state tort system. for that matter, appellate judges in text, follow this court's precedents fully and faithfully. texas does not suppress any substantive right by saying it prefers to see certain kinds of challenges brought through the state court system. and to the extent that one collin morikawa texas state court judges fail to apply this court's precedents regarding casey or any other constitutional right this court is always the supreme arbiter of properly -- >> the problem they raise, and i'll just have you answer it, is
they say this law is designed to avoid all judicial review because the penalties that are imposed for violation are so substantial and then you combine that with the retroactivity provision that people aren't going to be willing to engage in activity that's prohibited by this law. so we know federal court review upfront, in state court review on the back end, which is the exact, the exact ex parte young situation. that's the exact situation. can you respond to that? >> of course, your honor. two points. the first that the procedure mechanisms, attorneys fees shifting provision and preferential venue, to effectively deny someone access to the court standing on their own, there are a lot of courts action has do that. another complaint of my friends on the other side in whole
women's health the lack of nonmutual collateral estoppel. it's never been a violation of due process. so i think what we are left with here is the $10,000 potential damages award or actual damages that is doing the chilling. to the extend -- >> i think it's the combination of everything. it's the $10,000 and it's everything that justice kavanaugh said and other provisions behind. we have had a little experiment here and we have seen what the chilling effect is. usually, in these chilling effect cases, we are kind of guessing. well, this would sort of chill me. here we're not guessing. we know exactly what happened as a result of this law. it has chilled everybody on the ground. >> your honor, to the extent that we are talking about whether one or more of these procedure mechanisms might be a burden in the undue burden sense
-- >> finish your answer. >> thank you. an individual could themselves raise one of these procedure mechanism or compliance with them in the state court action and say this particular fees provision defending this action actually is an undue burden on me because it prevents me from raising my undue burden right or a due process clause, other constitutional clauses that would protect an individual placed into a situation where the rules of the court prevent them from exercising an undue burden right. that wouldn't get you access to reinforce. federal review of the substantive due process right that an action may or may not implicate. >> thank you, counsel. anything further? >> if some abortions have been chilled, is there any way to determine the degree to which that is the result of the
potential for sb8 suits from the degree to which it is attributable to the fear of liability if roe or casey is altered? >> i don't think there is a way of being able to disaggregate those. undoubtedly, individuals engaging in protected conduct that believe the protect might be removed. undoubtedly, there is a chill they feel. that's not attributable to the state or anyone else for that matter. >> would the issuance of the injunction sought by the united states have any effect on liability for abortions performed after the effective date of this act? >> so it wouldn't have prevention of liability. it might stop anyone from filing a lawsuit. of course an injunction preventing someone from filing a lawsuit doesn't prevent a state law from being effective in the
event they file in another forum or they are not covered by the injunction, your honor. >> well, if the injunction were entered and abortions were performed, would that immunize the abortion providers subsequently from liability? >> no, your honor. all that would do would be preventing the individuals who had notice of the injunction. first they have to have an opportunity to respond before they are enjoined. but those individuals who merely would not be able to bring sb8 statutes. it wouldn't dissolved in the abstract for performing abortions. >> thank you. >> justice sotomayor? >> nothing. >> justice keagan? gorsuch? justice kavanaugh? >> can i just get more clarity how you think that retroactivity provision works? are you saying if an injunction were entered and someone, some clinic performed abortions now that were then legal under current law, if the law changes
in the future, such that the state could going forward restrict abortions at an earlier time, are you saying that the state could then reach back and retroactively or allow suits that would reach back and impose liability on entities that were committing lawful acts as of the time? >> it would be private plaintiffs again, your honor. but, of course -- >> is that a yes? >> yes, your honor, yes. >> is there any limit on that retroactive liability? >> there might be. i have to hypothesize. no, there is nothing on the face of sb8 that would provide it. >> isn't that part of the chilling effect that was raised, presumably one the concerns is even though you would challenge it today and think you would engage in the activity today
because you would be confident, you are chilled by the prospect of future changes and then someone reaching back and imposing millions and millions of dollars, right? >> perhaps so, your honor. but i think -- >> almost certainly so, right? millions and millions retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right? >> undoubtedly, your honor. >> okay. >> justice barrett? >> just one question. we are talking about reinforce. review and the chilling effect. so if not available your position it's not available in federal court. you pointed out in the last case that in state court it's not available in the ex parte young sense in which you could obtain injunction that would all together protect you from enforcement activity but you could on a case-by-case basis obtain injunction against individual plaintiffs. that might give you more protection because it goes up the chain and there would be
starry desigh sis effect. what if in addition to the other procedure obstacles, the legislature added a provision saying there would be no starry desigh sis effect reached by the texas supreme court. >> i would assume it would make it more imperative for one of those cases to be taken up by this court to resolve the questions presented there. that would be the only way to have binding starry desigh sis effect. >> thank you. >> mr. mitchell. >> mr. chief justice and may it please the court. the intervenors intend to sue those who violate senate bill 8 but only in response to conduct that falls outside the protections of roe and casey. the united states cannot seek or obtain relief that thwarts the
enforcement of sb8 in those situations. the statute contains emphatic severability and saving construction requirements and courts are obligated to preserve the constitutional applications of statutes for the maximum possible extent. the united states also cannot seek or obtain relief that would prevent private individuals from suing under sb8. because any such relief would be a flagrant violation of the due process clause. a federal court cannot ban private individuals from petitioning the courts in a case to which they have not been made a party. a federal court could not foreclose those individuals from suing under sb8 when they have been given no opportunity to defend the merits of the lawsuit that they intend to bring. i welcome the court's questions. >> i guess one would be, you have heard the exchanges with
general prelogar about the breadth of the asserted federal right. >> yes. >> and she offered some answers to those questions about the limited nature, and i wanted to get your reaction to that. >> yes. chief justice roberts, as i understand the united states' argument as they have spelled it out on pages 10 and 20 of the brief, the asserted sovereign interest that they are making under in re debs depends on the existence of a congressional enactment, section 1983, that does not go far enough in the views of the united states. what they are saying with respect to their sovereign interest is that texas is thwarting section 1983 and ex-party young by enacting a statute that is not subject to reinforcement challenge. that to us is not in any way asov earp interest under debs. that's a grievance with congress
that congress enacted a law that doesn't go far enough for the united states because texas has found a gap in this congressionally created remedial scheme that allows its law to escape reinforcement judicial review. the proper response is to go to congress and ask congress to amend the remedies that they have set forth by abrogating state sovereign immunity or enacting the whole women's health which would prevent sb8 and give the attorney general the explicit cause of action. in no way equity be invoked to patch up the holes or perceived holes in a statute that congress has enacted. the second issue schathe united states asserts surrounds ex parte young. they claim it does not go far enough in authorizing a
reinforcement challenge. there is clearly a traditional cause of action and equity for an individual to sue, an individual officer that is violating his federally protected rights, but there is no traditional cause of action or remedy in equity that would ever allow a court to enjoin the state judiciary from even hearing a case that has yet to be filed. ex parte young disclaims any such remedy on page 163. it says an injunction would be a violation of the whole scheme of government. >> at the same time t subsequent cases suggest that that language can't be read as broadly as you suggest. shelly against cramer, some where courts can be viewed as part of a mechanism of enforcing particular rights. >> that's true. but in neither of those cases that your honor cited was there an injunction directed at the state judiciary itself. under groupo mexicano, equitable
remedies must be traditionally available in remedy. a remedy that would enjoin or restrain a court or state judge from even considering a case is not a remedy that was traditionally available in equity. it's impossible to escape the conclusion that this relief requested by the united states is barred. >> well, i mean, group owe mexicano is notoriously cryptic. shelly against kraumer, terry against adams, if you look at justice frankfurt's opinion in terry, he says, you know, somewhere, somehow, to some extent you have to have some participation. that seems pretty flexible standards. >> again, in terry against adams, the cause of action was undisputed. the existence of an article 3 case or controversy was undisputed. those are the obstacles here that the united states must confront.
the fact that there is case law out there in which relief has been granted in similar situations involving situations where there was no question of the existence of an article 3 case for controversy and no question of the existence of a cause of action does not give any leverage to the united states' argument here when the very objection we are making is this they can't bring suit because there is no article 3 case or controversy under muskrat and they can't bring suit because there is no cause of action in equity because the relief they seek is not relief that is traditionally available. >> there is an article 3 case or controversy with respect to the clerks, right? it's a direct adversity. the clerks want to file the action and the plaintiffs don't want them to. >> true. but the clerks around the named defendants in this lawsuit. only the state of texas is. under muskrat you can't sue the sovereign entity when the complaint is -- that you believe to be unconstitutional.
it's no different from the abortion providers suing the united states government because they are allowing sb8 enforcement lawsuits under the diversity jurisdiction. there wouldn't be a case or controversy with the united states because it's opening its courtroom doors to the claims. they would have to wait for the cases to be filed and assert their constitutional challenges to the statute in that litigation between the private citizens. >> do you agree follow up on the chief justice's questions that state clerks, court clerks and state judges enforce state law when they entertain private civil suits? >> no, i don't believe they can be said to be enforcing state law in those situations. >> how do you deal with all the language in shelly v. cramer that says -- that uses the word enforce? >> i think in that context enforcement is after a judgment has been entered by the court and the judgment is being enforced. simile adjudicating a case at the out set and docketing a
complaint is not enforcement. this is another problem with the remedy that the united states is seeking with the respect to the private individuals. they are asking the court to restrain texas from adjudicating lawsuits. they want to stop the clerks from docketing the complaints. they want to stop the judges from hearing or presiding over the cases. and they ceja injunction should extend to private individuals under rule 65 d 2 c. the private individuals aren't doing any of those things that the state has been enjoyed from doing. they are filing the lawsuits. and the state can't file the lawsuit because it's not allow to file it under the statute and, therefore, can't be enjoyed from doing so because an injunction against the state that tells it not to file a lawsuit is enjoining the state from doing something they never would have done in the first place. there is a major problem with trying to get private individuals covered by this injunction that the district
court laid out. the conduct is conduct that the state of texas is not. >> counsel, a state is an idealized entity. the whole fiction of ex parte young had to be created because a state -- they could only designate people to act for it. and so if the state is designating whether its ordinary citizens or the attorney general or its district attorneys, if it's designating those people to act for it, why aren't those people bound by any judgment that says, state, what you are cog is unconstitutional? >> they would -- >> and no agent of yours can enforce this law. whether it's ordinary citizens, the attorney general, state
licensing officials, clerks of court, or as shelter recognized, a court system that would enforce a restricted covenant demanding segregation. why aren't we in exactly that same position? >> we would be found if they satisfy the test of rhule 65 which says they have to be acting in active concert -- >> why? they aren't. each of them is acting under the directives of the state law. so why aren't they acting like the state when they act? >> i respectfully disagree with that characterization. >> i know you disagree. i'm trying to -- >> i will explain why i disagree with it. the state is not directing the -- may i answer? >> please. >> the state is not directing the the activity of private individuals. the state has given them the option to sue and washed its hands. >> how is that any different
than there being state action when a prosecutor exercises a discriminatory facts and challenge? or how is their state action when state primary actors exclude racist or exclude people from primaries. we have called that state action, even though the state has just given them the authority to act with no control over what they are going to do. so we have recognized that people -- that washing your hands doesn't insulate a state. >> with your example on the -- >> or insulate people from acting on behalf the states. the prosecutor in your hypothetical an employee of the state. he is part of the state government. he is part of the machinery of state. the white primary example is a more difficult question because they were formally established as a private entity -- >> are you suggesting that states can hire agents to do unconstitutional acts?
>> no. >> how can the state designate a private individual? >> because he -- >> to act under its laws to violate a person's constitutional right? >> there is not an agency relationship here, justice sotomayor. >> it's saying to it, you under this law, our law, you can act. >> i think my time has long expired. may i continue to answer? >> briefly. >> if there were an agency relationship your honor would be correct. but there is no agency relationship here because the state is statutorily forbidden to enforce the law or have any enforcement law whatsoever. that is given to private citizens. there can't be joint conduct with the state with respect to that particular activity. >> thank you. justice thomas. justice buyer. alito? justice sotomayor?
>> thank you. >> rebuttal? >> thank you, mr. chief justice. three points in rebuttal. i'd like to begin with the point that i understood general stone to be making that if this court ultimately concludes that the providers can sue, that the authority we're claiming sue as well is extraordinary or unprecedented. and i think it is important to recognize that when the united states of america filed this suit to try to redress the harm to the supremacy of federal law in texas, the whole women's health providers didn't obtain any effective redress from the court. the law had been permitted to take effect and had its operation of chilling the exercise of constitutionally protected conduct all together so that abortions protected
under roe and casey after six weeks of pregnancy could not occur at all. i think that shows the threat to the supremacy that comes from this attempted design of a law to block access to the judiciary. it may well be and i hope that this court holds in whole women's health that the providers can move forward. but that hasn't stopped the harm to the sovereign interests of the united states in the meantime as texas has succeeded while these novel issues worked their way through the courts in blocking access to care protected under this court's precedents. that leads me to the second point, to emphasize the nature of the sovereign interest here. it is in preventing a state from being able to act in direct defiance of this court's precedents and block access to the judicial review that congress and this court have deemed necessary to vindicate federal rights and to further make it the state court mechanism that might provide an attive basis for raising
constitutional claims wholly ineffective and unavailable. the final point is to just step back for a moment and think about the startling implications of texas' argument here. across the arguments this morning, texas' position is that no one can sue. not the women whose rights are most directly affected. not the providers who have been clild in being able to provide the women with care and not the united states in this suit. they say that federal courts just have no authority under existing law to provide any mechanism to redress that harm. and if that is true, if a state can just take this simple mechanism of taking its enforcement authority and giving it to the general public backed one a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe. no constitutional decision from this court is safe. that would be an intolerable state of affairs and it cannot be the law. our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot
be that easily subject to manipulation. so we would ask this court to hold that the united states can proceed with this action and affirm the preliminary injunction entered by the district court and immediately vacate the state that the fifth circuit entered in this case so texas cannot continue to deny women and its borders a right protected by this court's precedents one day longer. >> thank you, counsel. the case is submitted. c-span offers podcasts for every listener. weekdays, washington today gives you the latest from the nation's capitol and every week book notes plus has in-depth interviews with writers about their latest works. the weekly uses audio from our immense archive to look how issues of the day developed over years. our occasional series talking with features conversations with historians about their lives and work. many of our television programs are also available at podcasts.
you can find them all on the c-span now mobile app or wherever you get your podcasts. we believe one the greatest characteristics of being american is we are striving to provide equal opportunity for all citizens. >> students across the country are giving us behind-the-scenes looks as they work on their entries using #studentcan. if you are a middle or high school student enter the c-span student camp competition. create a five to six-minute documentary using c-span video clips. answer the question, how does the federal government impact your life? >> be passionate about what you are discussing to express your view no matter how large or small you think the audience will receive it to be and know
that in the greatest country in the history of the earth your view does matter. >> to all the filmmakers out there, remember the content is it king. and just remember to be as neutral and impartial as possible in your portrayal of both sides of an issue. >> c-span awards $100,000 in total cash prizes and you have a hot at winning the grand prize of $5,000. entries must be received before january 20th, 2022. for competition rules, tutorials or just how to get started visit our website at studentcam.org. the supreme court heard oral argument in whole women's health v. jackson, a case by a group of healed providers changing the enforcement provision of the texas abortion law. by filing civil suits against violators and thereby evading federal court review. the law also referred to as sb8 ba