tv Justices Hear Justice Dept. Challenge to Texas Abortion Law CSPAN December 7, 2021 2:54am-4:24am EST
>> the united states versus texas, general. >> mr. chief justice, texas designed the primacy of federal law is open if our constitutional structure and the states are free to escort to reconsider the presidents that they are not free to place themselves above this court nullify the course decisions in their borders, and judicial review necessary to vindicate federal rights as this case comes to the core, there are three questions. first, the texas is possible for this law, second, can the united
states hold texas to account and third, is the injunctive religious available in the answers is yes, down the line. texas is responsible for the constitutional violations here and in enacted a law that clearly violates his course presidents and it can enter design that lot for the judicial review by offering counties to the general public to carry out this enforcement function in a structured this system proceedings and so burdensome. insignificant liability that they chill the exercise in the constitutional rights altogether. in the united states and solvent interest in addressing this violation and sbh, and the brazen attack on the coordinate grants of the federal government is an attack on the authority of this court to stay with a lot is and have the judgment affected across the state and it is an attack on the congress' determination there should be access to report for review and federal courts for the right in
the united states may protective supremacy of federal law against this attack. finally, the injunction of the proper response to texas unprecedented law, if texas can nullify case in this manner, than other states could do the same with other constitutional rights are the decisions of this course in their favor and federal courts are not powerless to correct the lease and is not that intolerable threat to our constitutional hierarchy. >> general, which is been just few minutes on the united states interest that gives your basis for being involved in this. >> yes justice thomas, ensures that the states cannot plot the supremacy of federal law by enacting a law unconstitutional and then through the simple
mechanism of outsourcing enforcement authority to a remote underworld a large blocking the traditional mechanisms for judicial review the congress in section 1983, this court and young recognizes it would be vital to securing federal constitutional right against that kind of law pretty. >> is there any difference between legislation and residences of this course as far as the supremacy interest that you have. >> i think of the state structured a lot exactly this, interpreting statutes that it would erase that sima supremacy concern but of course you're done i think the situation has additional urgency because what texas has done is taken constitutional precedents and escort and legislated in defiance of that presidents and then tried to intervene or box the judiciary and of the equation and prevent course to be able to provide any
meaningful form of redress. >> you base your involvement quite a bit, can you give me a couple of examples for the united states has taken a similar action based on debt. >> we can point to a case looks exactly like this one and that is because there is never been a law exist exactly like this one and estate is bought the supremacy of federal law so is quite the same way but i think that they're all relevant principles from the cases and what the court is said is that the run states and it cannot come in and intervene in fairly private dispute connecting on the basis of a public interest in the public at large and that further the subject matter has week one that and entrusted to the care of the nation as a whole and for which the nation
as a duty to its citizens in this court in various presidents is a deadline has recognize that kind of sovereign interest can occur in a variety of circumstances for example in the american belt case, the court recognizes the united states could sue inequities to seek to avoid - by fraud even though the united states had no reversionary interest or proprietary interest in the pattern was acting on behalf of the nation as a whole which are cannot be a monopoly is based on front of the manor arctic. >> actually more interested in have you done something similar when a constitutional right has been involved for example much discussion about tort actions that were allowed in states involving the second amendment rights. i'm sure there were many opportunities in the manner of race pretty good during
segregation to do similar things. do you have any examples not residences but the examples of the national government taking part in the exact same role or doing exactly what you are doing in other areas involving constitutional rights. >> i don't have examples because a state before and fought to prevent access to the ordinary mechanisms for the judicial review - >> even if it's on exactly the same when when a constitutional right is being frustrated by a state process, and you saw to participate in the manners that you're participating now because the supremacy of the u.s. law or constitutional right is not being respected. >> i want to be very clear that we are not be here to be an
authority just because the state enacted an unconstitutional law ordinary that would not have great threat to that present ramsey because under 1983, there would be a free of any and so the riskier is. [background sounds]. is not tied to the underlying issue, is tied into the fact that the state has structured this and delivered an attempt to prevent federal courts from doing anything about the violation because estate is never before and unfortunately this comes up in the kind of situation that would print the united states to intervene in this matter. >> i take you to another questioning started with this, and these extremely unusual unprecedented circumstances, you said the court is not powerless to graphically, will you are the less argument and there were much of the last argument was all about what his relief look like and how should we graph relief if it were appropriate
and there were an injunction against the clerks or against the state date or injunction against phil and the like, how should we graph relief. >> the court enjoyed texas from implementing and enforcing it in any manner and in the court went further to identify the stages of the enforcement proceedings without injunction would operate to stop the enforcement actions and show the exorcist is right and first the district court said that the injunction when appropriate find those plaintiffs to actually choose to exercise enforcement authorities of those who actually filed suit, thereby acting in anticipation with the state and second, the court recognizes these very unusual circumstances, i would also
appropriate by the courts and the judges who are being used as part of the machinery of this apparatus to impose the substantial chilling effect for these actions and finally the district court recognizes reaching on the back and any effort by state officials to enforce those judgments because that too would perpetuate the constitutional violation so i think that we have the model already, the injunction of the united states and is intended to provide full and complete relief against the threat, the great threat there having the supremacy of federal law right now predict. >> if there's some fear that the law would make about how we would craft relief, what would you say and do to ensure that did not take place, essentially, kevin is kind of relief in the kuril are circumstances of this case printed. >> to a son first, in recognition that ordinarily, is far more appropriate to enjoin
the upstream enforcement agent who would bring cases to the court in the first instance and that's how they ordinarily proceed and they didn't specifically to that mechanism here by outsourcing the authority to the general public, the kind of injunction would then be appropriate and the problem is say specifically delegating to the general publi, specifically made it impossible to determine in advance it was going to become plaintiff and would actually filed suit and i think in that circumstance, injunctive relief that prevents the state corpus from going forward is appropriate in the second limitation that i think they can articulate is that this is the rare case where the mere existence in front of the litigation is itself causing it the constitutional harm and the flood for the purposes could be filed that is chilling the exercise of the constitutional rights today is that normally the case in ordinary suit in the
process there could be a case filed that would create this kind of profound carbon chilling effect on the constitutional rights and that texas not their intent here is a purpose for the actual effect because right now, in texas that constitutional particular care is not available. >> ivory trigger point and texas has done everything he can to make it difficult for abortion providers to indicate their rights i get it. i think it is 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 and a lot of your grief and all of the other briefs that have been filed against texas in both of these
cases, suggest that we should issue a rule that applies just to this case that's inconsistent with the rule of law and we decided of the rule that we establish should apply to everybody who similarly situated if you look at the particulars of the enforcement mechanism, they are unprecedented they provide cause for concern itself i really like to hear your explanation about why they are appropriate how they can be limited to this case and start with the judges. it is unprecedented and is contrary to enjoin a state judge even from hearing that case. when has that been done and how can that be justified in the judge's failed to apply the constitution. how can you enjoin a judge which
is the adjudication of the case filed for the judge predict. >> while i want to be precise that in our case, the district court enjoins texas and found that injunction was properly reached the personnel would then be exercising the states authority - >> that is an abstract entity and injunction, and applies to the people and yes there are instances where a state has been enjoyed and what that means is everybody under the control of let's say the state to has to follow what the state attorney general says, and has to comply the state can work out the way that would work but that does not apply to the state court judges printed. >> will it certainly acknowledge that an injunction that would in print bind them would be extremely rare but it's unheard of and i think that in the unprecedented acts of this case, is appropriate relief.
[inaudible]. >> let me interrupt you, here the acts that they are enjoined from performing is a lawful act and how can it be justified to me you this example, first at first, an action is brought under sb eight in federal court pursuant to diversity jurisdiction must say a woman sues a doctor who has flown in from another state to perform the abortion and when the district judge in this case have the authority to enjoin it in another or under judge from even hearing a case. >> no i don't think that i could properly freeze the or possibility that any of these suits could proceed in federal court because i think the future there authorized to sue may not have or suffer any harms from that prohibited abortion so i think that the idea that there would be a proper article three
jurisdiction - >> will is certainly possible and think of cases where there would be federal jurisdiction, a woman sues an out-of-state doctor under sb8, for physical or emotional harm suffered as a result of the abortion and there's been in fact be a controversy could be that so your answer is that one federal judge can enjoin another federal judge in the judge can enjoy state judges because they are lower creatures is that your answer. >> that is not what, i mean, to suggest in here the injunction runs against texas in state court judge in texas are being utilized by texas to effectively create an apparatus that is so lopsided. and it's the constitutionally product that is merely the existence of no matter how the judge adjudicate them creates constitutional harm by killing that so assess suggesting that
it doesn't do anything than other actually follow federal law here we think that each and every one of these suits was inevitably be dismissed because the constitution is so clearly unconstitutional but it doesn't remedy the constitutional because it care not being provided in the first place. >> to achieve this, do we also have to overrule x part - young where the court developed this injunction against the state court, in violation of the whole of the government and the difference between a power to enjoin an individual from doing certain things in the course from proceeding in their own way to exercise jurisdictions is fine and no power to do the latter exists because of the power to perform. so do we have to overrule at least that aspect of that printed. >> no justice i think that has to be read in the context of the
courts recognition there and the whole of the opinion that the appropriate relief would be the enforcement. >> i understand that and that was the justices point earlier and they also said this, and i think in my wrong, how do you reconcile saying that you can never enjoin the court with saying that you can hear, something has to give, doesn't it. >> i certainly don't think it's uncommon to have relief targeted from a lot to proceed and i've knowledge is unusual and this court if they have concerns of the approach that i think the court can rightly recognize that the remedy here is focus on the clerk and the task of docketing the cases in our injunction against the sb8 plaintiffs exercising the course enforcement authorities but i do think that the court statement has to be read against the backdrop of the backdrop of the course recognition there were to
be otherwise effective relief available. in the situation where it's very difficult to find that relief by design because texas designed the law specifically for it. >> general do you agree that there are instances which none is available for a federal right rated. >> i agree that is the case pretty. >> and also that the federal i can only be enforced defensively and not pretty enforcement challenge. yes and can you tell us what are the elements that must be necessary for you to have and to seek the kind of equitable relief that you are seeking here and wouldn't be be limited to cases where every single one of the characteristics of sb8 that you mentioned it on present must they all be present and that is the case, is this really what
you're seeking for one case. >> i don't want to say that every single feature of sb8 would have to be replicated but i think the overall inquiry would have to focus on whether the state has deliberately fought to prevent any effective judicial review and until we have it, that the federal court and of course the traditional 1983, action and versus young action but we have it on the backend is well with the state is trying to purposely make these sb8 proceedings so anonymous procedurally anomalous and feature rules that are so to the defendants that are near purpose in actual effect to jolt the rights and thank you so the response because i think although it is true that sometimes is not a federal quoro raise with defamation, it is not the case that those circumstances the court
proceeded are heavily weighted with the plaintiffs with the evidence intent to chill the speech from occurring it and they actually work in practice because defamation action is not meant that and occurs. >> but the concern for the chilling effects and why on the theory when we go one step further and for all the reasons you provided in the good reasons and i think that just assessment, there are arguments why would we do the same thing for the another very vitally important right for the second amendment right or the right to free exercise religion. we don't get to pick and choose and why does this one get special treatment. >> this was different because it's taking these ordinary mechanisms that might be an appropriate way to indicate the rights whenever they are and i thought to it.
>> you do agree that tort law does have a chilling effect and you agree that gun control laws also have a chilling effect pretty and you would agree as well and the laws of restricting the exercise of religion can have a chilling effect. >> i'm not denying get those kind of laws can have a measure of a chilling effect they look nothing like this law. >> suggesting the right is different, are you is a longer issued by estate possibly gun rights, your argument would be the same, would it not. >> it would be exactly the same, the supremacy would trying to cut off the judicial review in congress recognizes in 1983, would be vital mitigating federal rights with the second amendment right rights to religious liberty or give the right to abortion.
>> how about the issue of severability and you want to enjoin it every action that is brought under sb8 even though some of them will not violate pro or casey i guess the justification is that in the abortion context, as we held in prior of women's health, severability does not count and normally we pay attention to the severability cause putting estimates abortion, if there's one provision of the statute, is unconstitutional and the whole thing sinks, is that your position. >> and it concluded that they would effectively and as legislative work to go through sb8 and go through it provision by provision application my application to determine which applications would be constitutional rated. >> to 70 want us to do if we find one provision it is a massive federal statute
unconstitutional down the road, is too much work to go through them all. what is going to start down the whole thing. do you want us to do that printed. >> the different tears would actually require rewriting the statute to try to reach an application i think in particular in this preliminary posture, they were acting on an emergency basis in the kind of thing does not necessary for this court is a disgrace think all that we chose that the courts should confine the injunction to the applications that are unlawful under casey arrow make clear that the only implementation of this could be effective for the viability of abortion for texas, nor ready prohibits out and provide an ten and don't think that would have an actionable effect. >> can you go back to justice thomas' question, mention those columns there were fields of the california civil code and is takeout those to deal with
property and torts and so forth. in summary in your office and i've been reading and honestly what, 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. and so far what you said to distinguish this one, is that you said the texas purposely did this and that raises a whole another set of issues as you well know when you say the legislative history blah blah blah okay. but now you say that they had this in the state and regarding the constitutionality and now i think about the california civil code or procedure code and i don't know.
and have you sat down and thought through 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 and just go and intervene in any case, can be a federal case, whatever they thank you so state law is affecting the private people is unconstitutional and it is not the test. >> no, were not having broad authority to bring a suit like this in the circumstances that you identified and i think that there two critical distinctions here a separate those circumstances from the ones from sb8, first is perfectly clear that congress intended a federal court foreign of indication of this type of claimant section 1983. in the state is purposely trying to manipulate it through the
authority and avoid that and second, it is not just that these proceedings in my estimation affair form is that by their very defined respect to each and every procedural and substantive rule, the display open hostility to the right and try to prevent this form to get statewide relief declaring this law in violation. >> i sure come some of the concern that that was voiced by my colleagues when you say is narrow and rare accordingly problematic and with the authority you assert to respond to it is this bronze can be, it's equity you said coming you said we have the authority to sue the state under equity which is the limitless ill-defined authority. i know you've been asked this question before but if you could repeat your answer what is the limiting principle and there's
another case down the road, when there's a different sort of it making this argument in a different case. what will we be able to point to and say no you can invoke that fraud equity power 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 would think it is to the states. >> the equitable remedy sinking here is the traditional remedy of joining a non- unconstitutional law the limiting principle that will - >> the traditional to get injunctions against the judges injunctions against the clark's and injunctions against everybody, that is part of what you seek is in it, anybody can bring these issues so you're seeking an injunction against the world, right.
>> no those who actually choose to involve themselves in constitution. >> anybody can do that but anyway, i'm sorry pretty. >> destroy just want to be very clear that the injunction does not apply to the potential plaintiff, holding to the actual plaintiff and to try to address the concerns you raise, i think that here the principle arises from the way the statute operates to try to deprive any meaningful review anywhere either in federal court at the onset or whether it's a course, on the back and through the enforcement proceedings in the recognize this seems to be a novel case and that is because it's a novel law we do not think that the united states can intervene to try to protect the supremacy of federal law would open the floodgates and the situations where the state has simply applying the right of actions through ordinary affairs at the state court proceedings. >> no questions.
>> as to the potential private plaintiffs, how can they be bound on rule 6500 federal civil procedures with what party are they acting in concert predict. >> with the state of texas which has created the bounties and incentivizes their conic and created this apparatus to the enforcement proceedings that allows them to perpetuate the constitutional violations pretty. >> within the individuals with this. >> the main defendant here with the state and found by the injunction. >> so when any private plaintiff be able to bring in pursuit when they be acting in concert with the state under the laws of which the claims asserted. >> know there's a world of
difference between the private right of action and that kind of private enforcement with the sb8 enforcing. >> i understand that but why is the question with acting with the state, but you say this is enacting with taxes because the brain bringing suit against texas law and so is 70 brings it in maryland under that maryland defamation bother acting in concert with the law pretty. >> known were not suggesting that every private right of action is governed by these same principles with the key difference here, is that the individuals who are sb8 plaintiffs exercising the states own enforcement authorities and this is not meant to remedy some private harm to the individual suffrage and the best example is that $10000 bounty in the state is created, is only available to the first covers so the suggestion was made earlier by texas, that this could be some
redress for personal outright to my thank you so inconsistent without seeing as being structured event is simply function as a method of encouraging is to be filed of the state's behalf in this circumstance i think in qualify as a active concert and participation. >> the statute permits an award of actual bouncing in addition so liquidated damages and there is nothing particularly unusual about the statute provides for liquidated damages so i do understand your answer at all. >> that's with the statute is attempting to accomplish pretty ... ...
did you try to do that? have you satisfied the requirements of rule 23 to do that? >> we did not try to do that and 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's authorized under this law to bring suit. instead it is narrowly focused on those individuals who choose affirmatively to exercise the enforcement authority by filing suits. >> justice sotomayor? >> what happens to your lawsuit if we were to find the whole woman's health is just civil? >> i think that wouldn't retroactively operate to distinguish the sovereign injury but the united states
experienced when texas passed this law and clearly attempted to thwart judicial review out of time with the law was unsettled but i do think if this court clarified in whole woman's health that the providers can move forward with their suit and if it forcefully rejected texas efforts here to stymie that review then we wouldn't have the same sovereign interest in a future case because at that point the law would be settled and this attempt to circumvention would clearly network. >> so you can't sue the state the way you can because of sovereign immunity? one of the big issues for then and i'm asking you to litigate their case but i'm asking for your views of how it affects yours, is who do they sue? they haven't sued like you have, s.b.-8 plaintiffs who filed suit. they have sued a clerk of the court, a judge, and attorney general and other state officials. so how do they get the relief
that you are seeking? you heard justice alito say not everybody has been named because the s.b.-8 plaintiffs have not been named. so how can they do that? >> that's right, justice sotomayor, , and that reflects e relief we are seeking is in some respect different from the relief the providers could obtain in their suit because they don't have the mechanism to identify or sue the s.b.-8 plaintiffs here. our injunction can reach those place because the state of texas is subject or suit and planus can be found under rule 65. i think that the providers therefore have rightly focus on trying to target the aspects of the enforcement proceedings that create the harm to the finding of the cases in the first place and and i understand that to be the basis of the request that the court recognized the claim is against the clerk class.
>> thank you. >> justice kagan? >> is it possible in the whole woman's health suit that the ag 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 and so if this court concluded that the ag of texas could properly be enjoined here in the providers suit then that effectively i think would pierce a fiction here that the status tried to create by delegating the 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, and the world, the cosmos? >> no, justice gorsuch. our injunction doesn't do that either.
>> you said anyone who brings suits and it did include that in my limitation. a missing something? >> just to be clear and its rfi was a clear about this before, we understand injunction only to bind those individuals who choose to file suit and that's one thing -- >> are you aware of any other example of such an injunction? >> with that specific -- i can't cite one to you. >> not in history of the united states you can't identify one for us, right? >> in history of the united states no status and what texas has done here. >> and then with respect to those individuals who be bound, could they for filing a lawsuit in defiance of it and maybe file discovery request or take some other action be held in criminal contempt? >> they couldn't be held in contempt without receiving notice and an opportunity to be heard and so i think they would have an opportunity -- >> there's always an opportunity to be heard, but then could they be held in contempt?
>> yes. salonga said notice of injunction. >> also if they didn't have notice of injunction in your same content is not possible? >> that's correct. >> are you aware of another circumstance where it injunction has been issued or content is not possible? >> justice gorsuch, i think in any circumstance where someone didn't have notice, content would be possible. >> the interest no, you're not aware of one? >> i think that is actually every injunction operates that we. >> every other injunction provides notice in advance and this one doesn't so this would uniquely about wouldn't allow for contempt proceedings is at your art? >> no. the court tried to facilitate notice by providing speedy counsel if he did answer my please. are you saying without notice and injunction be entered without notice you were not aware of one prior to that? i would just like a liket interest whether those individuals and the circumstances could be held in criminal contempt or not? >> if they did not have notice, the know they could not be. >> is this an advisory opinion
from saying don't file these things? we will throw them away but we have no contempt power to enforce? >> no, because the injunction does appropriate bind texas and it does appropriately bind all of those individuals exercise the states enforcement -- >> what about enforcement power? >> the would-be enforcement power here both with respect to the state with respect to the individuals have actual notice and file the suit with respect to the court personnel who violate the terms of injunction and with respect enforcement agents at the end end of thy would be enforcing these judgments. >> on the question the chief justice raised, and assertion of equity rights here, i think justice thomas alluded to this, to, the united states government ever before asserted this equity right to protect individual rights any other state ever? >> i want to be clear that the right we are asserting here is to protect the supremacy of federal law. >> i'm asking have you ever done
that, to defend this in terms of individual rights in any other situation anywhere in the country in our history? >> we have brought suit before. as a series of cases in at least the 1970s the did not work the way up to this court. the united states brought up broader theory but that's not the argument we are making here instead we're arguing specific thing that gives -- >> beside that are you aware of any other? >> no. i believe there were three suits in that line. >> thank you. >> justice kavanaugh? >> general, in the prior case the plaintiffs would be the same plaintiffs who were an ordinary ex parte young situation. general stone would be representing a state dea or state executive official. we have arguments about the merits which were obvious and i did with state but it would be
the same basic situation. there's an extension of ex parte young to get to the prior case we talked about that that's an important step that we have to analyze. your case by contrast though seems probably repeating others' questions, just different in a regular and unusual and we don't know where it goes. and i just if you could fill in and may be this will be repetitive but you think the u.s. has authority to bring a a suit like this against any state law that -- >> that violates this court's precedents and tries to shield that violation from any affect to judicial review in federal or state courts. and i recognize justice kavanaugh this is an annual suit. the united states does not lightly invoking authority like this to sue a state. the reason we have done here is because s.b.-8 is so unprecedented, extraordinary, an extraordinarily dangerous for constitutional structure. if texas is correct that it can
nullify this court's precedents and successfully evade the mechanisms that this court recognize and ex parte young and congress recognizes in section 1983 the no constitutional right is safe and we think that in this extraordinary circumstance the united states has a sovereign interest in intervening to protect the supremacy of federal law. >> what if our president on something a different eddie glaude altogether was just uncertain? there was an open question about something and the state wanted to cabin or draw a line with respect to the the presiden? with the u.s. have the authority there? is a something that what you think is the clarity of the violation here that triggers your authority? >> if the state structured that hypothetical law in this same way then we would have the same concern that the state is effectively seeking to take the issue away from the courts. so you can imagine a circumstance where our right is more unsettled.
imagine for example, in a pre-heller circumstance the right to handguns in hope. if d.c. had enacted a law that deputize numbers of the general public to seek these kinds of suits against that conduct even before the court had clarified the right i think the way to phrase the same concern that effectively the state is seeking to box the judiciary out of being the final arbiter of constitutional rights. now i will say i think a state is far less likely to engage in this mechanism with an unsettled rights because it with think it's law is constitutionally adequate as soon forthrightly to defend and get a court ruling that confirms at that point but if the state instead thought to shield of the law to this mechanism it would raise the supremacy clause concern. >> thank you. >> justice barrett? >> i want to follow up briefly on the questions justice kagan and justice sotomayor were asking about, what happened to your suit if the plaintiffs in the women's health suit prevails. let's imagine that they do prevail on a theory that the attorney general has this
residual of authority and the private party can be bound as state acted pursuant to rule 65. you told justice sotomayor but then the united states interest would not dissipate even in that scenario and i guess i didn't understand that. you phrased it i think in the past tense that that wouldn't -- to sovereignty that was already there. the force of your argument for equity here is the inadequacy of a remedy at law because the way that texas has cut off access to the ex parte young remedy. so could you just explain to me why your suit would continue to be lies quite of the argument in favor of it if justice sotomayor ours hypothetical were in play? >> yes, of course, justice barrett and appreciate the chance to clarify. i don't mean to suggest 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 me whether our suit is effectively contingent on the whole woman's health limitation.
my response was that you have to measure sovereign injury at the time the statute was enacted and when the statute was enacted it was clear texas with seeking to deprive others of having opportunity to go to federal court for a remedy. the law was unsettled and it was apparent and, in fact, has been the fact texas has succeeded in being able to nullify the right currently while these cases are working their way through the courts. but i do think that this court provided guidance and whole woman's health and made clear a state cannot succeed with what texas has attempted to do here, and we wouldn't have the same circumvent and concern in the future. but in all candor the concern is that the state might seek to legislate around whatever the whole woman's health decision says. may try to tweak the mechanism to get around the ruling and what that shows is when a state attempts to thwart judicial review and creates the possibility that the supremacy of this court's decision will not be respected, the united states may need to redress the.
>> so would be a pile on injunction like an injunction against the attorney general and the private plaintiffs acting as state actors and then we would also enjoy, let's say we didn't want to enjoin the clerks and the entire apparatus of the state. let's say that we thought you didn't an injunction against the state of texas could really only obtain one against the executive officials would enforce the law. you are asking just for the same injunction in your suit but just acknowledging that the united states has the ability to bring this kind of suit? >> i think it's important to separate out the question of authority to sue with what kind of relief might be appropriate. we do think when we filed this suit and at that point of course there was no relief being provided on the ground in texas. this life taken effect and that shield the constitution protected right out of existence. that, at that point were authorized to bring suit. the question of what the appropriate remedy would be i
think it's a separate one and a think it very well could be the case it would not be a need for duplicative injunctive remedies in both of these cases that that's a separate and distinct question from whether we could sue in the first place. >> thank you. >> thank you. general stone, welcome back. >> it's been a long time. >> thank you again, mr. chief justice, and may it please the court. the department of justice is suit the separation of powers by usurping for executive branch the role congress plays in determining what cases may be heard from what remedies may be provided in the federal courts. as discussed earlier this morning of texas official is a proper defendant in a pre-enforcement challenge to s.b.-8. the united states cannot cure the problem by naming the state of texas as a nominal defendant and then asking for relief the runs against the same texas officials, their inappropriate target for injunction under bedrock article iii in equitable
principles. moreover, the united states is not a proper plaintiff. he cannot claim a sovereign interest in suing to enforce individual rights under casey, the remedy six of the complete before traditional equity. congress must create such novel remedies if there to exist at all. congress is rejected given the united states such relief while overwriting other at least indicate 14th amendment rights. like the petitioners in whole woman's health the united states ask this court to disregard all of this which deems s.b.-8 a novel solution for which -- novel problem for which this court must concoct a novel solution to 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 free enforcement federal judicial review. has that result in every other
case. this court should reject its request for special for him, 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 is doing now that would be acceptable to you? that is, let's say there is no question whatsoever that a state is defined a national law or a federal law, or a constitutional provision. such as, for example, the second amendment. is it any instance in which the united states can step in? >> so, mr. chief yourn gosar only in this -- >> in re. >> your honor, to the extent that congress had provided
either proprietary right on it recognize the public harm in the form of the statute, for example, the interstate commerce act, and then also the united states with seeking a traditional form of equitable relief such as public nuisance, then it could proceed. >> so a very narrow set of cases. >> yes, your honor, some. >> on a separate question, i'm interested in the cases that are perceived 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 come for example, an injunction preventing the bring of enforcement action or by bring a lawsuit by a plaintiff who seeks to do so. now of course as discussed earlier to justice barrett that would only provide relief against that one individual but the more important part here is
that eventually those cases be decide on stare decisis ground by appellate courts would prevent follow-on cases to some extent but in terms of really you get declarations basically, a declaration, and application of an individual or i misspoke or become an injunction sorry. a declaration that in s.b.-8 claimed by that individual against the protected conduct would violate state law, , fedel law, whatever the claimant be. >> and one final point. why wouldn't, i think i've alluded to this before and asked this before. why wouldn't these private individuals be considered private attorneys general? because so much seems to be one thing that seems rather implicit on the other side is that they are in effect if not designation bylaw attorneys generals.
because they are enforcing 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 deputize, they are not agents because? >> because they're not subject to the states control. given access to states investigatory resources. the state can't some point for example, or take it over like -- those sorts of answers, provide earlier. specifically to the lack of control between the state with regard to in s.b.-8 private plaintiffs suit. >> let me think of a specific example which was the worst one i could think of. 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. here we are. now, if you're in that situation, , which i'm sure youe glad you're not, what? what would you do? if we uphold this our week retroactively upholding that. >> was no, your honor. for that specific case congress has specifically provided -- >> this is before congress. 57, congress was no help. i mean, believe believe me they did not -- with the did something i'm unaware of it and if they did something, i assume it out of my hypothetical. >> fair enough, your honor. [laughing] the answer would be the would have to be recourse again to state court, pyramus and this is a state legislature because were talking a federal court. >> this is arkansas in 1957. >> sure, your honor. and, in fact, the court will be obligated to apply this court's decision. it's a transparent violation of the 14th. rectus in the state court judges -- >> but they didn't. i mean, we had 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. is anything you can think of, i'm getting your answer as no, you cannot think of any. the only thing we would have to decide them, well, it's up to the state of arkansas is judges. >> the problem is the number what answered your question is the thing you've asked me to assume a way which is the thing congress has actually done, which is in 42 usc 2000 c6 specifically provide a cause of action for the united states to maintain a cause of action under equal protection clause. >> can i give you an example where congress hasn't? estate dissatisfied with heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets $1 million bounty. no stare decisis, no -- how
about in a birkenfeld imposes s.b.-8 style liability anyone who officiates, aids or abet same-sex wedding? how about subject sexual conduct of which it disapproved to the exact same law as s.b.-8 eight. how about griswold? the use and sale of contraception is subject to s.b.-8 liability? so this is not limited to abortion. that's the point that is been raised. it's limited to any law that the state thinks is it is dissatisfied with. >> ino . have asserted the extent of federal courts are federal regulatory turns on the underlying reiki. quite the opposite. >> so your point is that no matter how much the state
intends to chill the exercise of constitutional right, as the chief said, imposing $1 million liability for an act which i think almost anything person except a couple of billionaires might choose to resist. that does not give anyone our right to a federal forum when the state has deputized every citizen to act on its behalf. >> was no, it does not create federal jurisdiction as a consequence. however, in the spirit of the hypothetical you delivering to a point that justice barrett made at the end of my friends previous argument, at a very minimum to the extent this court believes it has to somehow alter the ex parte to find a way to allow the plaintiffs in whole woman's health to proceed come at a minimum the united states case must thereby fail. the united states just conceded appear whatever interest they
had would be purely retrospective as there being some sort of ability to vindicate their rights the whole woman's health and other petitions are trying to provide. they only seek a preliminary injunction which is by definition exclusively prospective relief and they cannot possibly maintain their action any further. it goes exactly one way. if petitioners in whole woman's health had some avenue for relief and the united states must not. which makes sense given for the extraordinary cause of action they are trying to bring here. congress has provided the united states certainly at times, sometimes truly asked ordinary powers such as the power of preclearance, the voting rights act to get one extraordinary example. the united states here would want to effectively a follow e injunction for in their word in the event that the state of texas changed its law or otherwise try to come if the state of texas changes law to comply with this court's law and yet nonetheless that something
like s.b.-8. we have a term for when a state is put into state would have to get the federal government approval before it makes a rather legal change and that's called preclearance. it's precisely injunction my friend on the other side was speaking up. so it can't possibly be the case that would be entitled for that sort of remedy just as a matter of course in the event whole woman's health succeeds or fails to any extent. that's just one component of the extraordinary expansion -- sorry, justice kavanaugh, i thought you're going to ask me a question. just one component of the extraordinary expansion of federal power that the united states is asking for here. not only are they claiming a brand-new sovereign interests which can be synthesized one of two ways either in ensuring the vindication of individual rights underneath this court's casey or apparently a sovereign right to ensure the expansion of access to the federal courts because after all, section 1983 in
congress is various statutes that compose the federal courts they stand as the standard texas understands this court. the united states can possibly have a sovereign interest in extending the application of those doctrines to apply to cases to which they don't just because they deem this a very important case. >> general, if i understand your answer to justice sotomayor, it was well, even if that's a really good question but i don't have an answer to any of the case, i do have an answer to it in this case. and that's fine. here you are, we are in this case now. 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. >> i'm sorry, your honor, i thought i agreed it doesn't depend on the nature of the right being assertive and also we could sort of raise the potential sanctions as possible and that wouldn't affect federal court availability or answer a funny answer that but to make my
answer expressly clear. >> okay. >> via the mention of which the turn is asking for an extruded part is the nature of the remedy their seeking. >> i guess it do what question about that. [laughing] 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 and preferred constitutional rights to try to nullify the law that this court has laid down as to the content of those rights. i mean, the something that until this law came along no state dreamed of doing. essentially we would be like, you know, we are open, you are open for business. there's nothing the supreme court can do about it. gubbins, same-sex marriage, religious rights, whatever you don't like go ahead.
>> respectfully, your honor, i have to disagree with your two points. the for something the state of texas has an olefin anything. 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 their adjudication and, of course, the federal constitutional right can't and must be made available in the state courts regardless. the second pointing to the extent we're talking about sort of the extremist hypothetical where it's a $5 billion sanction and by the way court is on the mound -- >> by the way this seems pretty hypothetical actual, you know? because the actual provisions in this law have prevented every woman in texas exercising a constitutional right as declared by this court. >> that -- >> that's just not true. there's evidence that the state the number of abortions occurring now in texas is
between 50 and speedy you're exactly right, should us that every woman in texas who has not learn learned and has not made a decision before six weeks. >> respectfully there's a big difference between asserting the state a structured its courts to certify federal law to establish a right and saying a status codified specific at this court's holdings in the applicable case. and also to that extent the deterrent effect has got some diminution of the exercise of the brick. that's a very substantial difference and the potential difference for of the judges of this court's and the state of texas. >> fma to go back to the extraordinary nature of the kind of remedy the federal government is seeking -- >> just on the question of the kind of law. hb 1280 which is passed from the same time as i understand it, which is the law, the trigger law so to speak, that is ordinary enforcement mechanisms as i understand it.
criminal sanction enforced by the states, civil. and if you care that with this lot it looks like this law was designed to avoid the review of that law, and openly would be available. >> no doubt texas every other state has to get flaws are well aware of every jurisdiction in federal courts and no doubt texas crafted this one part because wanted to avoid federal pre-enforcement challenges as opposed to having those challenges in state court. i agree that's obvious purpose of this law or the way this law functions. texas doesn't commit a constitutional wrong by channeling its state court challenges into state court. that is not an independent texas -- not an independent constitutional obligation that texas is under. it doesn't have to fly blind as far as the collateral effects of what kind of challenges when it decides how to structure a law.
>> but it does have an application to follow come to respect people's federal constitutional rights. >> absolutely, your honor, and again -- >> so if it is attempting to stifle those rights, chill their exercise and keep plaintiffs away from 1983 action and ex parte young liability, you say there's nothing wrong with that? >> your honor, the limits of section 1983 and ex parte young availability specifically 1983 that congress could extend ex parte young are a matter of congress big idea texas we design a tort statute or other liability that takes it in mind and then says these claims have to go through the state tort system, the state court system. texas judges are presumed by this court and by for that matter appellate judges in texas to follow this court's precedents fully and faithfully. texas is not suppress any
substantive right by saying it wants, but he prefers to see certain kinds of challenges brought to the state court system. to the extent one of our texas state court judges failed to fully apply and faithfully apply this court's precedents regarding case or any other constitutional right, this court is and always is the supreme arbiter of properly -- >> the problem the race and educators they say this law is designed to avoid all judicial review because -- they raise -- the penalties for violation or so substantial in the new combined that with the retroactivity provision that people are not going to be willing to engage in activity that is prohibited by this law. so the would be no federal court review up front, no state court review on the backend which is the exact, the exact ex parte young situation can put aside the name but that's exact situation.
can you respond to that? >> of course, your honor. two points. the first one being the procedural mechanism the attorneys fees shifting provision and the preferential venue provision, to the extent those things would be sufficient to deny someone access to the court standing on their own, and are lot -- an awful lot of action to deny access to the course alone. complaints, the lack of non-mutual collateral, this court is held there certain applications a non-mutual collateral that violate due process. is there a been a violation of due process to not import that doctrine interstates adjudication system. what we are left with the $10,000 potential damage award or actual damages that is doing the chilling. to the extent -- >> i think it's accommodation of everything. it's a $10,000 and it's everything that justice kavanaugh said and his other provisions behind, , and we hada little experiment here and we we
seen with the chilling effect is. usually in these chilling effect cases we're kind of guessing. this would sort of chill me. here we are not guessing. we know exactly what is happening as result of this law. it is chilled everybody on the ground. >> your honor, to the extent we are talking with one or more of these procedural mechanisms might itself end up being a burden in the undue burden sense, an individual could themselves raise one of these procedural mechanisms or compliance in the state court action and say this particular fees provision is an undue burden on me because it prevents me from raising my undue burden right itself, or perhaps petition clause are due process clause there might be other constitutional clauses that would protect an individual whose place in a situation where the rules of the court itself prevent them from exercising an undue burden right. but still what that wouldn't get u.s. access to pre-enforcement
federal review of the substantive due process right that an action address may or may not implicate. >> thank you, counsel. justice thomas, anything further? justice breyer? justice alito? >> if some abortions have been chilled, is there any way to determine the degree to which that is the result of the potential for s.b.-8 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's a way to disaggregate those, and undoubtedly individuals engaging in protective contact that bully the protection might be renewed for reasonably believe that there undoubtedly there's an expert shielding filter that's not a true bill to the state or anyone else to the matter. >> with 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 would prevent -- and would have prevention of liability that might stopping one from filing a lawsuit but, of course, the injunction prevent someone from filing a lawsuit doesn't prevent a state law from being effective and that they could file in another form or in some way not covered by the injunction. >> 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 is preventing the individuals who had notice of the injunction. first an opportunity respond before they were enjoined let's skip all of the over those problems. those individuals would be not be able to bring s.b.-8 suits.
>> thank you. >> justice sotomayor? justice gorsuch? justice kavanaugh? >> cannot just get more clarity but i think that retroactivity provision works? are you saying that if the injunction were entered and someone come some clinic performed abortions now that we've been illegal under current law, the law changes in the future, such that the state could going forward restrict abortions in an earlier time? are you saying that the state could then reach back and retroactively or allow suits that would reach back and retroactively impose liability on entities that were committing lawful acts as of the time? >> it would be private plaintiffs but, of course, speedy is that a yes? >> yes, your honor. >> is a limit on that retroactive liability? >> there might be.
can of have to hypothesize a e process claim if it weren't some extreme circumstance but no, nothing on the face of s.b.-8 that would provide a. >> does that chilling effect argument that was being raised,, presumably one of the concerns is even though you a challenge it today and think him you would engage in 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 it think -- >> almost certainly so, right? millions and millions retroactively impose even though the activity was perfectly lawful under all court orders and president at the time it was undertaken, right? >> undoubtedly, your honor. but -- >> justice barrett? >> one question. we're talking that pre-enforcement review and the chilling effect.
so it's not available. your position is is not available in federal court and you pointed out when you're talking to me before in the last case that in state court is not available in ex parte young since in which you could obtain injunction that would altogether protect you from enforcement activity which good on a case-by-case basis obtain an injunction against individual plaintiffs. you pointed out that might ultimately give you more protection because would go up the chain and the would-be stare decisis effect. what in addition to the other procedural obstacles that the law contains your the legislature also added a provision saying there would be no stare decisis effect of any decision which by the texas supreme court -- reached? >> then i would assume it would make it even more imperative for one of this case to be taken up by this court to resolve any questions that were presented there. that would mean that would be the only final what you could have binding stare decisis. >> thank you. >> thank you, counsel.
mr. mitchell? >> mr. chief justice, and may it please the court. the intervenors intend to sue those who violate senate bill eight but only in response to conduct that falls outside the protection of roe and casey. the united states cannot seek or obtain relief that sorts the enforcement of s.b.-8 in those situations. the statute contains emphatic severability and saving construction requirements and courts are obligated to preserve the constitutional application of statutes or the maximum possible extent. the united states also cannot seek or obtain relief that would prevent private individuals from suing under s.b.-8. 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've not been made a party. and a federal court cannot foreclose those individuals from suing under s.b.-8 when they've 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 for 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. and chief justice roberts as understand the united states argued as a spelled it out on pages ten and 20, the asserted sovereign interest that they are making depends entirely on the existence of the congressional enactment, section 1983 that
does not go far enough in the use of the united states. what they're saying with respect to the sovereign interest is that texas is thwarting section 1983 and ex parte young by enacting a statute that is not subject to pre-enforcement challenge under either of those sources of law. that to us is not anyway a sovereign interest under debt. that's a grievance with congress. if congress enacted a law, congress is law doesn't go far enough for the united states, texas has found a gap in this congressionally created remedial scheme that allows this law to escape pre-enforcement judicial review. the proper response is to go to congress and ask congress to amend the remedies they have set forth either by aggregating state sovereign immunity or perhaps by enacting the woman's health protection act which would present s.b.-8 and aggregate state immunity and give the attorney general exclusive cause of action. but in no way can equity be invoked to patch up the holes or
the perceived holes in the statute that congress has enacted. >> the second issue with respect to the sovereign interest that the united states asserts surrounds ex parte young because they claim in the brief of ex parte young does not go far enough in authorizing of pre-enforcement challenge. that rented the problem of mexicana. there is colluding a traditional cause of action and equity for an individual to sue an individual officer that it violated 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 the case that is yet to be filed. ex parte young explicitly disclaims any such remedy on page 163 when it says an injunction against the state court would be a violation whole scheme of government. >> but at the same time
subsequent cases suggest that language can't be read as broadly as you suggest shelley v. kraemer come some from e others where they recognize that courts can be viewed as part of a mechanism of enforcing particular rights. >> that's true but in need of those cases you said it was her injunction directed at the state judiciary itself. and under grupo mexicano equitable remedies must be limited to those that were traditionally available in equity. ex parte young makes clear that a remedy that would enjoin or restrain a state court or a state judge from even considering a case is not a remedy that was traditionally available in equity. so it's impossible to escape the conclusion that this relief requested by the united states is barred. >> well, grupo mexicano is notoriously cryptic. but shelley v. kraemer, kerry versus adams, , if look at juste frankfurters opinion in terry,
he says somewhere somehow to some extent you have to have some participation. it seems pretty flexible standard. >> again, in adams the cause of action was undisputed the existence of an controversy was undisputed. those are the obstacles here that the united states must confront. so the fact 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 iii case or controversy and a question the existence of the cause of action does not give any leverage to the united states argument here when every objection were making is that they can't bring sue because is no article iii case or controversy and on top of that they can't bring sue because there's no cause of action in equity because the relief they seek is not believe that is traditionally available. >> well there is an article iii case or controversy which in turn with respect to the clerks.
it's a direct adversity. the want to file the action, and the plaintiffs don't want them to. >> true but the clerks are not the named defendant in this lawsuit only the state of texas is an under muskrat you cannot sue the sovereign entity when your complaint is the sovereigns allowing its court to adjudicate cases under statute that you believe to be unconstitutional. it would be no different from the abortion providers suing the united states government because of their allowing s.b.-8 enforcement lawsuits to be heard under the diversity jurisdiction. it would be a case or controversy with the united states because it's opening its court room doors to these claims. what they have to do is wait for the cases to be filed and then assert the constitutional challenges in that litigation between the private citizen. >> do you agree to 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 leave they can be enforcement state law. >> how do you deal with all the language and shelley v. kraemer that says come that uses the word enforce? >> in the context enforcement is coming after a judgment has been entered by the court and in the judgment is being enforced but simply adjudicating a a case t the outset and simply docketing a complaint that is not a fortunate. this goes to another problem with a remedy that the trend is seeking with respect to the private individuals. they are asking the court to restrain texas from adjudicating lawsuits. they're what to stop the clerks from docketing the complaint. you want to stop the judges from hearing or presiding over the cases and then they say that injunction should extend to private individuals under rule 65. the problem is the private individuals are not doing any of those things that the state has been enjoined from doing. they're doing something entirely different. they are the ones were filing the lawsuits.
the state can file the lawsuit because it does not allow to filed under the statute and that therefore cannot be enjoined from doing so because an injunction against the state that tells them not to file a lawsuit is enjoying the state from doing something they never would have done in the first place. there's another major problem with trying to get private individuals covered by this injunction that the district court made that particular conduct private individual engaged in misconduct of the state the state of texas is not. >> counsel, the state is an idealized entity. the whole fiction of ex parte young had to be created because a state can't -- it can only designate people to act for it. and so if the state is designating whether it's ordinary citizens or the attorney general, district attorneys, if it is designating those people to act for it, why
are those people bound by any judgment that says state, , what you're doing is unconstitutional? >> they -- >> they are no agent of yours. can enforce this law. whether it's ordinary citizens, the attorney general, state licensing officials, clerks of court or as shelley recognized the court system that would enforce a restrictive covenant demanding segregation. why aren't we in exactly that same position? >> they would be bound if they could satisfy the test of rule 65 which says they have to be acting in active concert. >> why? each of them is acting under the directives of the state law so why aren't they acting like the state? >> i respectfully disagree with
that characterization. >> i know you disagree. >> i'm going to explain why i disagree with it. the state is anyway directing the activity, the state in that directing the activity of these private individuals. this date has passed a law that gives them the option to sue and washed its hands of the matter. there is no joint participation with the state in their decision -- >> how is that any different from there being state action when a prosecutor exercises a discriminatory challenge? or how is their state action when state primary actors exclude races or exclude people from primaries? even though the state has just given them the authority to act with no control over what they're going to do. >> so -- >> so we have recognized that people, that washing your hands doesn't insulate us.
>> with your example on -- >> or insulated from acting on behalf of the state. >> the prosecutor in your hypothetical is an employee of the state turkeys part of the state government, part of the machinery estate. the white primary example is more difficult question because they would -- were formally established as a private entities for i suggesting states can hire agents to join -- >> no. >> how can the state designate a private individual to act on, under its laws to violate a person constitutional rights? >> does nonagency relationship here, justice sotomayor or. >> eighty saying to it you under this law, , our law, you can ac. >> i see my time has not expired. expired. may i continue to answer? >> yes please. >> if the when agency relationship then you would be correct in what he bound by an injunction of the principles of rule 65 but there's no agency
relationship here because the state is statutory forbidden to enforce the law or of any enforcement role whatsoever. that was given to private citizens. the state can have any involvement so they can be joint conduct with the state with respect to that particular activity. >> justice thomas? >> justice breyer? justice alito? justice sotomayor? justice barrett? thank you, counsel. time for rebuttal. >> thank you, mr. chief justice. i would like to just make three points in rebuttal and i'd like to begin with the point uninterested general stone to be making that if this court ultimately concludes in whole woman's health providers can sue, that the authority we are claiming here to 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 woman's health providers have not been able to obtain any effective redress from the courts. the law had been permitted to take effect and it had immediately had its intended operation of chilling the exercise of constitutionally protected conduct altogether 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 supreme civic comes from this attempt the design of a law to block access to the judiciary. it may well be and hope that this court holds in whole woman's health providers can move forward but that hasn't stopped the harm to the somber interest of the united states in the meantime as texas has succeeded while these novel issues work the way to the court in blocking access to care that is protected under this court precedents. that leads me to my second point which is 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 precedents and block access to the judicial review that congress and this court have deemed necessary to vindicate federal rights and to further make the state court mechanism that might provide some alternative basis for raising those 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 is argument here, that across the arguments this morning texas position is that no one can see you, not the women whose rights are most directly affected, not the providers who have been chilled in being able to provide women with care and not the united states industry. they say federal courts just have no authority under existing law to provide any mechanism to redress that harm. and if that is true if the state can just take the simple
mechanism of taking its enforcement authority and giving it to the general public backed up with a bounty of $10,000 or $1 million, if they, if they can do that, then no constitutional right is safe. no constitutional decision from this court is safe. that would be 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 a from the lunar injunction entered by the district court and immediately vacate the stay at the fifth circuit entered in this case so that texas cannot continue to deny women in its borders a right protected by this court's presidents one day longer.