tv Justices Hear Health Providers Challenge to Texas Abortion Law CSPAN December 12, 2021 1:32am-2:59am EST
leave the texas abortion law in place but emphasized abortion providers have the right to proceed with challenges to the law in the lower courts. also referred to as sb-8, the law bans almost all abortions after six weeks of pregnancy. the justices heard oral arguments in this case on november 1, 2021. this is about 90 minutes. -- minutes. >> the honorable, the chief justice, and the associate justices of the supreme court of the united states. o yea, o yea, o yea, all persons having business before the honorable, the supreme court of the united states, are admonished to draw near and give their attention, for that court is now sitting. god save the united states and this honorable court.
chief justice roberts: the orders of this court have been duly entered and certified with the clerk. i would like to note that today marks the 30th anniversary of the investiture of justice thomas as a member of the court. exactly 30 years ago, we stood right behind here on the bench. on behalf of the court, i would like to extend to justice thomas our heartfelt congratulations. and from all of us, have a very happy anniversary. the court now recognizes deputy solicitor general brian fletcher. the court wishes to note that mr. fletcher has served as active solicitor general from august 2021, to october 2021. the court recognizes the considerable responsibility placed upon mr. fletcher to
represent the government of the united states before this court. you have our sincere appreciation. mr. fletcher: thank you, mr. chief justice. and may it please the court, i have the honor to present to the court the solicitor general of the united states. the honorable elizabeth vargas prelogger of idaho. chief justice roberts: solicitor general prelogar, the court welcomes you as the solicitor general of the united states and the important office that you have assumed representing the government of the united states before this court. i am pleased to note that you are the 48th solicitor general. of the united states. you're also the 10th solicitor general of justice thomas's tenure. you follow in the footsteps of other outstanding attorneys who have held your office. the commission will be duly recorded. ms. prelogar: thank you, it will be an honor to serve.
chief justice roberts: we'll hear argument first this morning in case 21-463, whole woman's health vs. jackson. mr. hearron. mr. hearron: mr. chief justice, and may it please the court - in enacting senate bill 8, the texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court. texas delegated enforcement to literally any person anywhere except it sound state officials. the only conceivable reason for doing so was to evade federal court review under ex parte young. texas then created special rules applicable only to s.b. 8 claims that make it all but impossible to protect one's constitutional rights in state court.
for a single abortion, the law authorizes limitless suits in all 254 counties and provides that a victory in one has no preclusive effect in any other. texas incentivized enforcement through awards of at least $10,000 per prohibited abortion against each defendant, without any showing of injury, and it added draconian one-sided fees provisions, with liability extended even to attorneys themselves. the combined effect is to transform the state courts from a forum for the protection of rights into a mechanism for
nullifying them. as respondent dickson has said, no rational abortion provider would violate this law. while court clerks are not ordinarily proper defendants, in these circumstances, the principles underlying ex parte young authorize federal court relief against clerks. their docketing of s.b. 8 suits, which is critical to effectuate texas's illegal scheme, inflicts article iii injury, in fact, and is redressable by an order barring such docketing. s.b. 8 is an abortion prohibition, but the issues before this court are far more sweeping. to allow texas's scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagree. at issue here is nothing less than the supremacy of federal law. justice thomas: counsel, you rely on ex parte young to some extent, but ex parte young makes clear that federal courts cannot enjoin state judges. so how do you distinguish your case from the express language in ex parte young? mr. hearron: your honor, the
language in ex parte young that i believe you're referring to discusses and specifically allows an injunction against the commencement of the suit. and, your honor, i think here, that supports an injunction against the clerks. it distinguishes between restraining the commencement of a suit versus a suit that after it has already been filed. so i think that language actually supports relief against the clerks here. it's also premised, honor, on there being an executive who you could enjoin. and, here, the state has intentionally taken away the executive officials. justice thomas: but that's what the case was about. it was about enforcing an action against a party. hence, the case, the focus is on enforcement as opposed to adjudicating that enforcement. and i don't think it really distinguishes it to say, well, this isn't about that. i mean, it expressly excludes enjoining a state court. mr. hearron: well, your honor, i think it excludes enjoining the court, an action after it has already been filed, but it says that there is the power to restrain the commencement of the
suit. and i understand, your honor, that in that suit it was an injunction against the state, who was commencing the suit, but i don't think that it is -- i think the principles underlying ex parte young, which are to allow a federal forum for the vindication of federal constitutional rights, would support an action here against the clerks to enjoin the commencement of the suit. i also think that that language in ex parte young is not about sovereign immunity. it wasn't the part of the opinion where the court was addressing sovereign immunity. it was addressing a remedy that's available by courts in equity. and, here, section 1983 now provides that remedy, and it expressly allows suits against judges acting in their judicial capacity. but i don't think you need to reach the judge's issue, your
honor, because i think that language does support an injunction and the principles underlying ex parte young. justice sotomayor: counsel, i read your complaint, and i thought you only asked for declaratory judgment against the judges and an injunction against the clerks. did i misread your complaint? mr. hearron: no, you're exactly right, your honor. we sought, consistent with the text of section 1983, we sought declaratory relief against judges and an injunction against the clerks, and i think that -- justice sotomayor: so let's go to what the harm is that you're seeking an injunction against the clerks for. am i understanding correctly that you believe that the way this s.b. 8 is structured, that what the chilling effect is the very multiplicity of lawsuits that are threatened against you? mr. hearron: yes, your honor, that's exactly right. it is the fact, there's a combination of various ways that the state has created special rules applicable only to s.b. 8 to make state courts a tool that can be used to nullify
constitutional rights that have been recognized by this court. and i think there are four essential components of s.b. 8 that the legislature created. first is it allows anyone to enforce, regardless of any injury. second, it allows those suits to be brought anywhere in texas, even for one abortion. so an abortion provider could face suits all across the state for a single abortion, multiplied by all of the additional abortions that are provided. and then there's no preclusive effect. even if an abortion provider wins a case about that abortion, they still have to continue to face suit after suit after suit, because there's no preclusive effect. it turns the provider or the abortion supporter into a permanent defendant. justice alito: well, counsel, i don't want to interrupt your answer to justice sotomayor, but just to pick up on a point that
you made, and maybe you could clarify this before you finish answering her question if you haven't finished already. isn't it the case that the texas constitution requires a plaintiff to show injury in fact, in accordance with the same standard that applies in federal court? one of the first points you made, i think maybe the first point, was that s.b. 8 allows anybody to sue, whether or not that person has suffered any injury. is that accurate under texas law? mr. hearron: i think the answer is unclear, but in the united states' case, in the preliminary
injunction hearing, texas, the lawyer for the state told the district court that texas law is quite different from federal law on the question of how standing and private interests versus public interests work. they said that at page 49 of the transcript of the preliminary injunction hearing. and texas courts -- justice alito: but hasn't the texas supreme court said that they follow the same standard as the federal court? haven't they said that? mr. hearron: they said that recently, but texas courts are not bound to follow this court's precedents on article iii. they're not bound to follow -- justice alito: well, of course, they're not, but they are bound to follow the state supreme court, are they not? mr. hearron: they are, but the texas supreme court has never addressed a law like s.b. 8. and, clearly, the legislature thought that it could create standing by creating a cause of action and give everyone an injury. but even if that's correct, even if an injury is required, it wouldn't stop uninjured people from filing suit. and it is the filing of the suit that is the point here. chief justice roberts: well, counsel, the matters that you're talking about now, they're essential to your argument, right? you agree that it would be adequate to have federal court review at the end of the state process but for the chilling effect that you're talking about, right? mr. hearron: i think not in the
way that s.b. 8 is structured. i mean, if there is review from this court holding that the law is unconstitutional, that would be adequate. but there are a number -- chief justice roberts: review at the end of the day, right, when we have a final judgment from the state judiciary? mr. hearron: but there are a number of reasons that that is unlikely to happen. first of all, if you win in the trial court, if the state trial court says that the law is unconstitutional, then getting broader relief depends on your opponents appealing that to the intermediate court through the texas supreme court. and the proponents of this law are acting very strategically. chief justice roberts: well, that's true in any case, right? i mean, if you get relit in a -- relief in a trial court and your opponent doesn't appeal, there's no real reason for you to seek relief in the supreme court, is there? mr. hearron: but, in the normal case, if you win that case, if if you win then you don't have to continue litigating that. here, s.b. 8 says there is no preclusive effect. chief justice roberts: i know, you're getting back to the argument that there is a chilling effect. i'm asking for your position in the absence of that. if it's just a regular type of case, surely it's adequate to have federal review at the end of the state court process. mr. hearron: in the normal case, yes, you are -- that is correct. i agree with that, that, you
know, under a normal tort lawsuit, that is adequate. it is the chilling effect that is -- that in this case is created by the combination of delegation of enforcement of a public policy to the general public at large, and there's no preclusive effect. and all of the special rules that are created in order to turn the texas state courts into a tool that can be used to nullify -- justice barrett: even apart from these procedural requirements that you're talking about, i'm wondering if, in a defensive posture in state court, the constitutional defense can be fully aired? and i'm wondering that for this reason, the statute says that a defendant may not establish an undue burden, and this is even assuming that the defendant can satisfy third-party standing rules because the statute says it has to be craig versus boren, not the regular abortion third-party standing rules, but it says that: "a defendant may not establish an undue burden
under this section by" -- and this is (d)(2) in this section -- "arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion." so i take that to mean that a defendant can only say an award against me would place a substantial obstacle. and that's not the full constitutional holding of either whole woman's health or june medical. it's looking at the law as a whole and its deterrent effect. do you read that the same way? mr. hearron: i completely agree, your honor, yes. justice barrett: so, if that's the case, the full constitutional defense cannot be asserted in the defensive posture. am i right? mr. hearron: i think that's right, your honor, that the title of that section that you're referencing is called limitations on undue burden defense. clearly, it's not only the procedural rules, that the texas legislature has tried to change the substantive rules that this court applies to protect the -- the - justice barrett: so does that mean you cannot get full review even on the back end if it goes
up through the texas supreme court and up to us the way the statute is structured? mr. hearron: we would have an argument, your honor and we would obviously make the argument that that provision of the texas law is unconstitutional because it conflicts with this court's precedence in kasey, but your honor it's unclear exactly how the texas courts would apply that, whether they would follow the undue burden standard. and, clearly, what the legislature was trying to limit the undue burden defense -- justice alito: wouldn't they be obligated under the supremacy clause to apply the federal constitution as opposed to a provision of the state statute that purports to preclude them from considering a constitutional claim? mr. hearron: they would, your honor, but -- justice alito: so then your argument is that they would not follow -- they would not abide by the constitution? mr. hearron: i'm not suggesting that they would not abide by the constitution. what i'm saying is that even if you have to prove
that undue burden defense in every single case, we wouldn't say if the state of texas had passed a law making it a criminal violation to provide an abortion after six weeks, that there's no problem because you can simply raise undue burden at trial, at your criminal trial. this court's precedents allow pre-enforcement relief, allow you to come into court and say, i don't need to violate the law in order to first raise my constitutional defenses. i can come into court under ex parte young and section 1983 and sata ruling that my -- seek a ruling that my constitutional rights are being violated. justice sotomayor: counsel, we have laws that preclude the enforcement of judgments in which process has been denied, where you're not given an opportunity to air your claims. justice barrett pointed out to a provision of this law that says you can't present this claim this way, all right?
what the judges will do is irrelevant. i thought the essence of your argument was that the law as law is precluding you from using the judicial system as a neutral arbitrator. mr. hearron: that's right, because even if we raise a successful undue burden defense in one case, you have to do it again in case after case after case. justice sotomayor: well, it doesn't really matter. it's not a neutral arbitrator. it's an enforcer being tried, being used as an enforcer of - mr. hearron: i agree with that your honor, but the point is
that regardless of the outcome of the case, it is the threat of filing an unlimited number of cases in county -- in counties all across the state where there is no preclusive effect and where the state has even made it more difficult to get an attorney by making attorneys liable for fees -- for the other side's fees - justice kavanaugh: mr. hearron -- mr. hearron: that all of that -- yes, your honor. justice kavanaugh: keep going. sorry. mr. hearron: i was just going to say, the combination of all of those factors together creates a chilling effect that is preventing the exercise, and that is under this court's precedents an irreparable injury. justice kavanaugh: could we talk about ex parte young a little bit? you make the point correctly that usually you can get pre-enforcement review in federal court when it's enforced, a law is enforced by a state prosecutor or a state executive. that's long-standing law. the issue here is different because it's private enforcement in state courts, and that raises a novel issue for us about how to apply ex parte young. the ex parte young principle is that
those who enforce the law can be enjoined or can be sued in pre-enforcement suits in federal court. but, as justice thomas points out, in the two paragraphs at the top of page 163 of ex parte young, state courts seem to be carved out from that. so that's the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163, for me, that's been a real sticking point in trying to sort this out. now one answer you didn't give is that subsequent law says that when state courts entertain private civil suits, they enforce state law. shelley versus kraemer being the most prominent landmark example of that. so can you fill in the gaps there and explain to me how we should think about the ex parte young language in light of how we conceptualize state court enforcement of private civil suits now? mr. hearron: yes, your honor. so i think that the most straightforward way to apply ex parte young or to allow relief
here under ex parte young is against the clerks, as i've said, because that would stop the commencement of the suits and wouldn't create any of the problems raised in ex parte young itself about stopping the adjudication. justice kavanaugh: sorry to interrupt. but i think justice thomas's question was also getting at, though i take the point of distinguishing fat judges from the clerks. are the clerks subsumed within that language in ex parte young, and you're saying we shouldn't do that? and i just want to hear your answer why shouldn't we do that. mr. hearron: that's right, i don't think so, because that language distinguishes between the power to restrain commencement of suits, which i think that language actually supports relief against the clerks, versus whether courts should restrain a case brought
before it. which would mean that would revert to the judges here. now i do think, in subsequent decisions of this court, you're correct, there are instances where the court has recognized in pulliam and in mitchum where relief against the state judges, and in fact, congress recognized in section 1983, in the text of section 1983, that judges can be proper defendants, and we've brought that declaratory relief, but i think -- justice kavanaugh: well, it's -- it's more than just that, frankly, because ex parte young depends on enforcement. i think that's the key word. well, it turns out in shelley versus kraemer the word "enforcement" is in there, by my count, 27 times, give or take a couple, to describe what state courts do when they adjudicate private civil suits. mr. hearron: that's right, and, in fact, judge jackson at a press conference said he's the enforcer of the laws in east
texas. and that it's clearly correct that when the court issues an injunction, a mandatory injunction, or issues them monetary penalties, what the court is doing is enforcing s.b. 8. justice alito: a judge may be enforcing a state law when the judge renders a decision based on that state law and provides relief based on that state law. but do you think a judge is enforcing a law when the judge merely begins to adjudicate the case? mr. hearron: i think one way of potentially looking at it is that by requiring, so, in a sense, and one way of looking at it is by requiring litigants to be in court and requiring them to make filings and appear in court, it would, because, here, it would be multiplied in courts. justice alito: i mean, really? i mean suppose a legislature enacted a statute that said henceforth people of a certain race may not make any public statement, and someone brings suit under that. the judge begins to enforce that just by entertaining the suit? mr. hearron: i think, in -- justice alito: even if it's certain that at the end of the case the judge is going to say no, this is an invalid -- this
is an unconstitutional statute? mr. hearron: i think, in certain circumstances, that even in a situation like s.b. 8, where the point is the filing of the suit and the point is the making you appear in courts all across the state over and over again, making you a permanent defendant, that - justice breyer: who -- mr. hearron: in these circumstances i'm -- yes? justice breyer: were you finished? because i'm taking up his argument. look, you say a judge is, at least in many circumstances, an enforcer. there are 4 billion tort suits in the united states, okay? and probably in 3 billion of them, somebody thinks something is unconstitutional. all right? so can they all sue the judge? mr. hearron: no. justice breyer: everybody goes into federal court and sues the judge? mr. hearron: no, your honor. justice breyer: and in state court? all right. what's the difference between this case, where you think he's an enforcer, and 4 billion other cases where you've read their briefs, all right, you understand their argument. what's your response to it? mr. hearron: the response is that under the rule that we are advancing here is that where a state is trying to nullify the exercise of a right, a constitutional right that's been recognized by this court, by
delegating enforcement to the public and taking away the normal ordinary executives and then also creating special court rules, to turn the court system, we're not saying that judges or clerks are intending to do anything here, but it's the rules that have been created by the texas legislature that turn courts into a weapon that can be used to nullify constitutional rights. chief justice roberts: you might appreciate that the idea of suing the judges sort of got our attention, but is there even -- is there even a case or controversy in such a suit? i understand the position of the -- of the plaintiff, exactly what he or she wants. the judge is not necessarily adverse to that. the judge's role is to issue a decision. the idea of someone who's going to decide a question, that person is not automatically adverse to the person who asks
the question. and that seems to me to raise a real problem under the case or controversy requirement. mr. hearron: so i think there is a case or controversy, and if i could address the clerks first, that there is adversity in a case or controversy against the clerks, your honor, because the clerks are saying they have a duty under state law to docket a petition to issue summonses. and we are saying that even the initiation of an enforcement proceeding violates constitutional rights and that they should not docket? that is adversary. it doesn't matter whether the clerks agree with the law or want to defend the law. justice alito: i mean, the clerk performs a ministerial function. somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. the clerk doesn't have the authority to say, you can't file this complaint because it's a bad complaint. what if the judge, the presiding judge in a particular jurisdiction said, okay, fine, you don't want the clerks filing these things, if anybody shows up with an s.b. 8
complaint, call me and i'll docket it myself? then what? mr. hearron: your honor, that's why we have asked for declaratory relief against the judges, but i think that -- justice alito: so you've got to get to the judges. this business about the clerks is a, you know -- mr. hearron: no, i do think that relief against the clerks, your honor, would alleviate most of the harm and would thaw the chill and would allow abortion providers to understand and, in fact, the ministerial nature of their docketing is exactly what makes them a proper defendant here. we know that clerks will docket every s.b. 8 petition that is brought forward. and the state has encouraged and it has incentivized enforcement by offering $10,000 or more bounties, effectively, and by lowering the barriers of entry for people across the state by allowing anyone to sue without having to show an injury, by allowing them to sue in their home county, and to not have to worry about paying the other
side's attorney's fees and even get their own attorney's fees paid. so we know there will be enforcement, and the ministerial act of the clerk's docketing is exactly what, the state has made the clerks an essential role in machinery that they have created to nullify constitutional rights that have been recognized by this court. justice barrett: counsel, are you arguing that there's a constitutional right to pre-enforcement review? and, if so, how do you reconcile that with sheldon versus sill? mr. hearron: so our first argument is actually that congress created the right in section 1983. justice barrett: somehow i don't buy that. mr. hearron: so i think that, yes, there is, and ex parte young recognized that in these circumstances, where it's not going to be -- where the penalties are so severe and where it's difficult to find someone who is willing to even violate the law for a test case, i think ex parte young addressed all of that and said that, in fact, there is a procedural due process violation. justice barrett: i think there
is that language in ex parte young that favors you. and i don't think thunder basin -- i think thunder basin assumes that there might be some circumstances in which pre-enforcement review is constitutionally required. in this context, presumably, that might happen in state courts? even if there is some sort of constitutional right to pre-enforcement review, need it be provided by a federal court? mr. hearron: i'm sorry, i missed the last part of your question. justice barrett: if there is a constitutional right to pre-enforcement review, on your reading of ex parte young, does it have to be provided by a federal court? mr. hearron: i think ex parte young does support in federal court. yes, in part because state court review in circumstances like in young and here is inadequate for a number of reasons that i'm happy to get into. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: no, chief. chief justice roberts: justice breyer? justice breyer: i'd like to just be sure i have this.
your basic point, i take it here, as we've discussed it, is this kind of private lawsuit is not an ordinary tort suit. ok? so i've tried to write down the reasons, and i want you to add anything i leave out. one, anybody can sue. well, ok. debatable. two, anywhere in texas. texas is a bigger problem than rhode island there. the rate, it has no preclusive effect. jones 1 sues the clinic. clinic wins. jones 2 through 4,000 can sue. four, the attorney's fees are very heavy. five, and they don't apply both ways -- five, the penalty of $10,000, etc., is heavy. and, six, you are limited if you are defendant as to which kinds
of defense you can make in respect to there being an undue burden, which is a problem because most of the undue burden cases speak generally of the effect of the law of the state, not on this particular defendant. ok? i have six that i got from you. is there a seventh? mr. hearron: i have two more, your honor. justice breyer: okay. mr. hearron: the first is that damages are not tied to the amount of any harm, which would be normally the case in a tort suit. and the second one is that s.b. 8 provides for a mandatory injunction, if there is a successful claimant, to prevent further violations, not to prevent further harm to the claimant. it's not tied to -- the mandatory injunction is not tied to the harm. justice breyer: thank you. chief justice roberts: justice alito? justice alito: suppose this happens, a woman shows up at the clerk's office and says, i want
to file a pro se complaint against the doctor who performed my abortion because it caused me physical and/or emotional harm and i want to sue under s.b. 8 because i want actual damages, but i also want the $10,000 in liquidated damages. and you say the clerk should say what? mr. hearron: the clerk should reject the filing of that lawsuit. justice alito: thank you. chief justice roberts: justice sotomayor? justice sotomayor: i presume that any other lawsuit based on common law torts, emotional infliction of harm, breach of contract, medical malpractice, whatever else was available would still be available to that woman? mr. hearron: if there is a common law tort lawsuit, that is not an s.b. 8 lawsuit, yes. justice sotomayor: contract or otherwise, common law tort or contract? mr. hearron: yes. justice sotomayor: thank you.
chief justice roberts: justice kagan? justice kagan: mr. hearron, if i could turn technical for a minute. should one of your arguments prevail or another argument in support of your position prevail, it doesn't matter exactly which argument it is to me, what exact relief are you requesting? mr. hearron: we are requesting an injunction. so we have a pending class certification motion for a defendant class against the clerks, so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks of the state of texas, as well as injunctive relief against the state executives for their residual authority to enforce s.b. 8. justice kagan: i mean, suppose i i think, tell me if i'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law is that we would really be telling the fifth circuit,
again, if your position prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. is that correct? mr. hearron: i think, technically, what you would be doing is affirming the district court's denial of the respondents' motion to dismiss, which would then allow us to proceed to our pending preliminary injunction motion and pending summary judgment motion and pending class certification motion. justice kagan: yeah. and while the district court does all that, which we would be saying the district court should go do, have you made a motion for interim relief? i know that there's a motion for interim relief in the united states versus texas case, but if you were to prevail, we wouldn't even have to rule on the united states versus texas case.
you know, we could -- that's very complicated for other reasons. we could just sort of leave that be. but the motion for interim relief is in that case, not in your case. am i wrong about that? or do you have a motion in your case that would enable interim relief? mr. hearron: we haven't filed such a motion, but i would ask the court now that if it is not going to reinstate the injunction in the united states case, that it issue interim relief now against enforcement because the law is patently unconstitutional, and if these are the correct defendants, then enforcement should flow. so we would ask the court to issue such interim relief. justice kagan: thank you, mr. hearron. justice sotomayor: would the chief permit me a follow-up on that? chief justice roberts: sure. justice sotomayor: counsel, if we vacate the fifth circuit's order, orders, basically staying the district court proceedings.
presumably that would vacate its denial of the stay that you had asked from the district court order. if we reinstated the district court order, you would have a stay in place, wouldn't you? mr. hearron: so technically, there are two stays in place, one that was issued by the district court and one that was issued by the fifth circuit. and if you were to vacate those stays, in the interim, then we would be able to go back to the district court and ask for an interim believe in the district court. justice sotomayor: were you granted a stay of enforcement of the law by the district court? mr. hearron: we have never gotten to that point, your honor. justice sotomayor: ah, okay. thank you. mr. hearron: yes. we did not yet -- justice sotomayor: i forgot. thank you. chief justice roberts: justice gorsuch? justice gorsuch: i do have a couple of questions. on the chilling effect, do you agree that other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively?
mr. hearron: not to this extent, yeah, but there may - justice gorsuch: but do you agree that there are laws -- defamation laws, gun control laws, rules during the pandemic about the exercise of religion -- that discourage and chill the exercise of constitutionally protected liberties? mr. hearron: yes. justice gorsuch: and that they can only be challenged after the fact? mr. hearron: i'm not sure that all of those laws could only be challenged after the fact, but there may be some laws. justice gorsuch: certainly, there are certain circumstances where that's true, right? mr. hearron: that's probably correct. justice gorsuch: okay. so it's a line-drawing between those cases and your case mr. hearron: yes. justice gorsuch: okay. and then, on the relief, am i understanding you correctly that relief against the clerks you think is sufficient for your purposes? mr. hearron: i think that it would go most of the way to getting the relief that we need in order for abortion providers to begin providing again. we do think that it is also appropriate for a declaratory judgment against the judges, but i think that the clerks -- that relief against the clerks would
-- justice gorsuch: so if that -- and you agreed previously they're under obligation under state law to file everything that comes in without looking at its contents or judging its contents, right? mr. hearron: yes, although i think that there are circumstances in which, for example a judge may direct particular person may not file that a because they have filed too many frivolous lawsuits, for example. there are -- justice gorsuch: but that's pursuant to a judicial order? mr. hearron: yes. justice gorsuch: but, otherwise they're obliged to file everything that comes their way? mr. hearron: yes. justice gorsuch: okay. and so you'd say the constitution overrides that requirement in this case? mr. hearron: yes, we believe so, your honor. justice gorsuch: okay. and what about the cases where s.b. 8 could be constitutionally applied, consistent with roe and casey? should they file those lawsuits? should they try and determine which side of the line they fall on? i mean, post-viability, not for medical reasons, you know, that would meet a roe and casey test? are they supposed to apply roe and casey themselves? mr. hearron: i don't think no, i think that they should be
enjoined from docketing any s.b. 8 lawsuits, because s.b. 8, we believe, is -- justice gorsuch: including constitutional ones? mr. hearron: but i think that that would -- the existence of those claims is not chilling the exercise of constitutional rights here. justice gorsuch: but you'd enjoin them anyway? mr. hearron: yes, because -- justice gorsuch: and if a clerk then dockets a permissible non-chilling petition, a federal judge could find him in contempt and put him in jail, right? mr. hearron: i think that would be -- there's standards for criminal due process -- justice gorsuch: but subject to those due process standards? mr. hearron: subject to those standards, but i think that would follow those injunctions in good faith. chief justice roberts: justice kavanaugh. justice kavanaugh: a couple follow-ups to justice kagan's question. i think you also had a pending tro in the district court with
the preliminary injunction and the class certification. is that accurate? mr. hearron: yes. justice kavanaugh: okay. and then, to follow up on the chief justice's question, which reflects, from my viewpoint, a change in your reply brief or maybe -- i don't want to say "change" -- shift in focus in the reply brief to the clerks from the judges and clerks. and if i'm understanding you correctly, you're saying that ex parte young principle should apply to both, but the adverseness issue may be more serious with judges, and therefore, you focused on the clerks. that's how i read your reply brief because it was noticeable to me. mr. hearron: i think that that's right, your honor. that it is easier to say that we are adverse to clerks because the filing of the lawsuits, which is the point here, to create the in terrorem effect and to chill the constitutional rights is the filing of the lawsuits, and that creates a sharp adversity to the clerks, who are just performing their ministerial duty and not adjudicating anything.
justice kavanaugh: okay. and then just to follow up on justice breyer's question, he mentioned the floodgates issue which the state has raised. and obviously, there are already a lot of ex parte young suits in federal court to enjoin the usual state laws that are assertedly unconstitutional, but the claim by texas is that this will increase the load. i'll give you another chance to respond to that. mr. hearron: i don't think that's correct. this is exceptional, unprecedented, and under the principle that we're advancing, it would not allow suits against clerks to challenge most laws. this is a unique law, created because the state has delegated this is a unique law, created because the state has delegated enforcement and has taken away the normal executives who -- executive officials who would enforce and has weaponized the state court system into a tool that can be used to abrogate constitutional rights. so this is a unique situation. i think the real danger is, if this court does not allow this suit, then that will provide a roadmap for other states to
abrogate other rights that have been recognized by this court. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: no. chief justice roberts: thank you, counsel. general stone. mr. stone: thank you, mr. chief justice, and may it please the court. petitioners' pursuit of an injunction suffers from two fundamental problems. first, none of the individuals that petitioners sued are appropriate defendants under well-established article iii and equitable principles. second, petitioners ask for an expansion of access to the federal courts that only congress, and not this court may provide. petitioners' article iii and equitable problems begin with what they really want, an injunction against s.b. 8, the law itself. they can't receive that because federal courts don't issue injunctions against laws but against officials enforcing
laws. no texas executive enforces s.b. 8 either, and so no texas executive may then be enjoined. petitioners then turned to state court judges and state court clerks and, apparently, in this court, now narrow their focus to state court clerks. but even they don't suggest that either judges or clerks act unlawfully in the ordinary course by adjudicating a case or receiving a complaint. so petitioners' harms are not fairly traceable to any allegedly unlawful behavior by state court judges or clerks. and this court recognized in ex parte young itself that such an injunction would be a vile -- a violation of the whole scheme of our government. state judges are presumed to faithfully apply federal law and this courts decisions. if they do not, this court may
exercise appellate review. that is exactly how federal constitutional defenses are presented and adjudicated all the time. if congress believes it needs to expand access to the lower federal courts in order to protect petitioners' rights, then that is a matter for congress, not a basis to alter bedrock doctrines organizing the federal courts. i welcome the court's questions. justice thomas: mr. stone, why wouldn't you consider the s.b. 8 plaintiffs to be sort of private attorneys general? if the attorney general or other state officials don't ep force the law, would it be that unusual to consider them as acting in concert with the state to ep force a state-preferred policy? mr. stone: two points, your honor. first, every tort action undoubtedly advances a state
preferred policy. the reason why they're not acting in concert with or cannot be called agents -- justice thomas: well, but usually, when you think of traditional torts, there is a duty, there's an injury to the individual. it's a private matter. there is no requirement here that there be an injury to the plaintiff. mr. stone: your honor, the texas supreme court has followed article iii requirements in terms of injury in fact that doesn't need to appear on the face of the statute. justice thomas: so what would that injury be under s.b. 8, if it's an injury in fact? mr. stone: one example could be akin to the injury suffered in the tort of outrage, where an individual becomes aware of a non-compliant abortion and they suffer the sort of same extreme emotional harm. that would ground an article iii injury for purposes of texas law that would be sufficient to satisfy the texas article iii-style screen that addresses some of my friend's on the other side's concerns about an unlimited set of lawsuits or that anyone could possibly bring an s.b. 8 action. congress passes laws all the time that don't expressly require that individuals show, for example, their own personal injury or traceability or
reddressability. but, nonetheless, this court says those are fundamental requirements of article iii. and the texas supreme court traces that same requirement to its own constitutional analog, the open courts provision. justice thomas: forgive me, but i don't recall an outrage injury. what would that be? you said extreme outrage, that would be the injury. mr. stone: well, the injury would be akin to the one suffered in a tort of outrage, where a person witnesses something they essentially find to be so extreme and outrageous it causes them extreme moral or otherwise psychological harm. justice thomas: give me an example of that. mr. stone: an individual discovers that someone, a close friend of theirs who they'd spoken with about pro-life issues and about abortion has chosen instead to have a late-term abortion in violation of s.b. 8, and they were very invested basically, in that child's upbringing and the child's coming into being. to the extent to which there's going to have to be a tighter nexus, or what's a sufficient injury in fact, is going to be
something that the texas courts have to develop in the first instance. and, of course, there's going to be some -- there's going to be some tether between a real-world -- not just an offense but sort of grievous offense that we underline -- that we understand underlies iied as a tort and still nonetheless has a real-world harm. justice thomas: thank you. chief justice roberts: i was just going to ask, assume that the bounty is not $10,000, but a million dollars. do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process? mr. stone: no, your honor, because that wouldn't affect either the article iii or sovereign immunity problems inherent in this case. undoubtedly, it would increase the chill the same way that individuals who are exercising their arguably protected conduct -- chief justice roberts: but, as i understand it, the only way in which you get federal court
review is, of course, for somebody to take action that violates the state law and then be sued under the law and then have the opportunity to raise their defense in federal court eventually. and you're saying that somebody is going to undertake that activity even though they're going to be subject to suit for a million dollars repetitively because it doesn't exercise a chilling effect? mr. stone: that's not what i'm saying at all, your honor. what i'm saying is it doesn't expand access to the federal courts. there is still pre-enforcement review, i might note. there are currently 14 pre-enforcement review challenges pending in a multi-district litigation in travis county state court. so, to speak to specifically your concern about federal court pre-enforcement access, no, that wouldn't change the article iii or sovereign immunity doctrines in play here. and that might very well be a reason why congress could be moved to expand access to the federal courts either through the ordinary course or by using their section 5 powers under the 14th amendment.
but even if the amount of the sanction, again, i agree with you, a million dollars would be tremendous, we could increase it further, no number would suddenly cause the federal courts to become more open. chief justice roberts: it's not a question of the federal courts being more open. it's a question of anybody having the capacity or ability to go to the federal court because nobody is going to risk violating the statute because they'll be subject to suit for a million dollars. that takes a lot of fortitude to undertake the prohibited conduct in that case. and under the system, it is only by undertaking the prohibited conduct that you can get into federal court. mr. stone: well, your honor, again, to the extent that we're dealing with the sorts of very high-stakes prohibited conduct, fines, sanctions, etc., i might add this is specifically a damages action, it is capped at much less than that, that is a significant difference. chief justice roberts: yeah. my question is what we call a hypothetical. mr. stone: of course, mr. chief justice. but, nonetheless, an individual facing extreme sanctions still
nonetheless often has to go through state court systems to vindicate their federal rights. individuals are charged with possessions of firearms in states like illinois and new york, and they face multiple-year incarceration stints as a possibility of trying to exercise their second amendment rights. it is, in fact, the case that constitutional rights are litigated right now with very severe potential sanctions for going through the state courts and with no ability to go to the federal courts before essentially that pre-criminal process ends. chief justice roberts: why does s.b. 8 allow plaintiffs suing abortion providers to sue anywhere in the state? that's not the normal way venue works in texas, is it? mr. stone: it's not, your honor. and undoubtedly, there are a variety of individual procedural rules inherent to s.b. 8 that are designed to favor this cause of action, the same way that there are some designed to favor causes of action like bringing a suit under the antitrust laws or under 1983.
happy to stipulate that. but those, to the extent that they became extraordinary, if anything, might sound in a procedural due process claim, which my friends here aren't bringing. they're bringing a substantive due process claim to s.b. 8 and its liability itself and they're attempting to cash that out through some form of enforcement against, well, first, texas's and then court clerks and so on and so on. i might point out, turning specifically to the assertions my friend on the other side has said regarding court clerks, that it's actually not even clear that injunctive relief against a court clerk would give him what he wants. because under texas rule of civil procedure 22, a petition is deemed filed upon receipt by the clerk. so the clerk doesn't have the opportunity to reject that petition. it would obviously be a question of texas law in the event that this court interceded in essentially the post -- justice breyer: can i go back for a second from detail to the bigger picture, which stuck in my mind when i read all of this you know, roadmap.
that should call up a lot of arguments in the briefs. and i thought of holmes. two statements, first, holmes, remember had seen john c. calhoun's theories of nullification, interposition, destroyed really by the civil war. all right? he -- you've heard -- you read the arguments that say this is sorts of like that. mr. stone: of course, justice. justice breyer: sort of. okay, holmes said this: "i do not think the united states would come to an end if we lost" -- we, the court here -- "lost our power to declare an act of congress void. i do think the union would be imperiled if we could not make that declaration as to the laws of the states." all right? keep that in mind. now holmes was on the court for ex parte young. that court said: "to await proceedings against the company" -- which is the equivalent of the clinics, "in a state court
and then obtain review in this court would place the company" -- i.e., women and clinics -- "in peril of large risk and its agents in great risk of fine and imprisonment" which you've just heard, the equivalent of "this risk, the company, ought not to be required to take." now, why doesn't holmes' statement in your opinion illustrate what is the underlying problem here, generally speaking, and why doesn't ex parte young point the way towards, not precisely but point the way towards, an answer? mr. stone: two points, justice breyer, the latter being what you're describing would be something of an expansion of ex parte young, as i think even my friends on the other side concede. as this court noted, that an injunction against the courts
themselves through the ex parte young device would have been a violation of our whole scheme of government. this court in grupo mexicano said, specifically speaking about an expansion from a post-judgment creditor's ability to distraint a debtor's assets, moving to a pre-judgment creditor's ability to do so, that was simply too great of a novel equitable innovation for this court to be able to permit itself to essentially innovate. to do something that would have been understood in ex parte young, in the very same opinion, as the violation of our whole scheme of government, is surely a much greater innovation. and if this court is going to stand by its word -- justice kagan: general stone, i think what justice breyer is suggesting is that the entire point of this law, its purpose and its effect, is to find the chink in the armor of ex parte young. that ex parte young set out a basic principle of how our government is supposed to work and how people can seek review
of unconstitutional state laws. and the fact that after, all these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the broader principle that states are not to nullify federal constitutional rights. and to say, oh, we've never seen this before, so we can't do anything about it. i guess i just don't understand the argument. mr. stone: let me speak to the latter point that you're raising, justice kagan, first, and then turning back to the ex parte young one. this statute on its own terms, specifically incorporates as a matter of state law the undue burden defense as articulated by this court in casey and
subsequent cases. now there have been some previous questions regarding whether or not it has incorporated that in every particular regard. there is a separate provision of the very law that specifically says that nothing in this section basically prohibits individuals from asserting their constitutional rights. and so, to the extent that the texas legislature has either imperfectly or in an incomplete way recorded as a matter of state law this court's recognition of the casey right, individuals may still erect that right fully and completely. nothing in this law even pretends that texas courts could evade that because it can't. justice barrett: well when it said that, their rights, i took that to be, say, their first amendment rights. if you had somebody who was counseling someone to get an abortion, say, and then was prosecuted -- or was sued, sorry, not prosecuted, under this law, that they could say, i have a first amendment right to free speech, and so it would be unconstitutional. i didn't take that particular portion of the law to mean that they could assert third-party rights. mr. stone: we're speaking about two different portions of the
law, justice barrett. there is a portion that says something very closely tracking what you said. there's also subsection f, which says that nothing in this section shall in any way prohibit, limit, preclude a defendant from asserting that defendant's personal constitutional rights as a defense and so on and so forth. justice barrett: aren't personal constitutional rights not third-party rights, and so the clinic's personal rights would differ from the rights of the woman who's the rights holder? mr. stone: there's a different provision, your honor, that says that individuals may raise the undue burden defense, the undue burdens rights to the limit allowed by this court specifically. now it may be the case that those three provisions don't perfectly line up, and by interpretive forces that at some point a third-party right that's recognized by this court can't be perfectly raised as a state law defense. if so, as in all cases, an individual can raise that particular piece or the entire case as a federal constitutional right, that is, a default, state court judges who swear an oath to the constitution, just the way that the justices on this court and the lower federal courts do, are presumed that they will apply in good faith, and they are always subject to correction by this court in any appropriate case.
what can't occur is what couldn't occur in, for example, new york times versus sullivan or, for that matter, masterpiece cake shop. an individual there who thinks that they're going to be subjected to a state court process that's either going to be very difficult for them or otherwise unfair to them in terms of the merits of the decision is not permitted to go to a lower federal court and seek functionally an injunction against the states trial courts. justice kavanaugh: general stone? mr. stone: yes, justice. justice kavanaugh: sorry. keep going. mr. stone: i'm coming to the close of my point. i'd be glad to answer your question. justice kavanaugh: well, i think all these arguments were the same arguments that minnesota raised in ex parte young itself. i mean, you look at the history of that case, it was an extraordinary controversy in the united states and in minnesota about the federal court review, and that itself didn't exist before ex parte young. in other words, that was an extension of preexisting doctrine to recognize a problem that the chief justice was identifying with deprivation of constitutional rights and chilling on the ability to get judicial appeal.
so ex parte young sets out this principle that you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional. and 999 times out of 1,000 or maybe every time until this case, that's a state executive official. it's a pro forma exercise usually to identify the state executive official. and justice kagan points out there's a loophole that's been exploited here or used here, which is the private suits are enforced by state court clerks or judges. so the question becomes, should we extend the principle of ex parte young to, in essence, close that loophole? in other words, put aside the language in ex parte young for a second, and that is strong for you, i agree, but the principle of ex parte young and the whole sweep of ex parte young would suggest extending the principle here, arguably. mr. stone: two points, your honor. one, no, precisely because this court has disclaimed the power
to create such an innovation in grupo mexicano. to the extent that were still an open question, then my friend's arguments on the other side might militate towards having one exception to this question. but this court has already disclaimed the ability to give itself the power to essentially create a novel, non-traditional cause of action. and if the language that we're discussing in ex parte young means anything, it means that certainly an injunction running against a state court to prevent the adjudication of a state law case is something entirely foreign in a traditional way. >> do you agree there's state court action? mr. stone: the key part is my friends aren't arguing the docket of a petition are a violation of the 14th amendment or is a violation itself. it's the nature that potentially
later town the line that s.b.8 case might in fact be adjudicated negatively against them. a state court clerk who receive pes decisions and puts them on the docket and a state court judge who is required to apply this court'ss predepts and everything else, they're not article 3 adversaries when doing that process. justice kavanaugh: i think the argument is it's adverse to their interest and the state court clerk is part of the chain of state official who was some connection which is the language of ex parte young as part of the law. mr. stone: but that's with the attorney general bringing the suit. to stop the commence ovment a suit in ex parte young meant bringing the suit.
>> can we go to that question? the attorney general has been sued here. i know the argument is he doesn't ep force these laws, the attorney general doesn't enforce the laws but the district court suggested that wasn't true. justice sotomayor: it has some direct enforcement authority with regard to s.b. 8's legal provision concerning legal challenge to any abortion restriction or regulation and may also have some constitutional authority under texas law to enforce texas law. the ex parte young fiction was that if there is an agent who can enforce the law in part or in whole and they're sued, then everyone else in the enforcement chain is enjoined. so if every private citizen here
has been deputized by the state to enforce this law for the bounty, then why wouldn't an injunction against the a.g. bar those citizens from going into court? just the way it would bar district attorneys or police officers from arresting people once that order has been issued or district attorneys from prosecuting those people for violation of the law that a court has found unconstitutional? and told the attorney general, the representative of the state, is not -- it's not legal. mr. stone: two points. one on the attorney general's side and one on the private litigant's side. on the private litigant side,
there is no deputization -- justice sotomayor: assume i disagree. you didn't answer to my satisfaction the justice's question about bring regular dress for harm and whether you need to prove injury for standing is irrelevant to what qualifies you for the bounty which is injury doesn't qualify you for that. just bringing the suit does. mr. stone: speaking only specifically, i understand the direction of your question, your honor, the attorney general just like every other texas official lacks the power to either direct a suit, to order that a suit be dismissed, to intervene in a suit, to otherwise -- justice sotomayor: you don't understand the point. it is part of the enforcement mechanism of the suit. not the whole because the state has chosen to deputize an entire
s.w.a.t. of citizenry to do that for it. but it retains some direct and indirect enforcement power. so answer the ex parte young fiction. we issue an injunction in the traditional course against an a.g. and we expect everybody to understand that they're precluded, who acts on behalf of the state, to be precluded from continuing under a nonconstitutional law. mr. stone: the most direct answer to your question is an injunction against the attorney wouldn't change anything he could do. it wouldn't change the ability to bring a suit or stop a suit. >> think about the question this way. suppose this were a normal law you'd sue the attorney general. wouldn't you?
mr. stone: if the attorney general were the one charged to sue. justice kagan: if the attorney general were charged to sue, the actions wouldn't be brought by the attorney general but by local d.a.'s, wouldn't they? mr. stone: local d.a.'s in texas are locally elected officials who aren't answerable to the attorney general. i don't know how to push back on whether they'd be accountable. justice kagan: are you saying in a normal heart beat abortion restriction, a suit against the attorney general would not be sufficient because local district attorneys are bringing the suits? mr. stone: it would depend on whether or not it was charged by the attorney general's office to sue or county dvment a.'s who are not accountable to the attorney general anyway. if i may modify your -- justice kagan: what i was suggesting is that in just the samey the droarng doesn't have direct line authority over the d.a.'s but nobody would dream of
bringing a challenge to ex parte young in that circumstance, so too the fact that they don't have direct authority over these private, delegated, private individuals exercising delegated power, shouldn't matter for the same reason. mr. stone: in the example you're citing, they would be able to bring ex parte young challenges goans those individuals but not the attorney general. the difference is those individuals, county attorneys and district attorneys would be able to enforce the law by bringing the lawsuit. the reason, the hypos i'm pushing back against here is the attorney general doesn't have any control of the procession of s.b. 8 lawsuits in any way. he doesn't have a mechanism to take over the litigation. he can't certify a lawsuit isn't in the state's interest and order it dismissed. he has none of those mechanisms whatsoever. because of that, that can't possibly at a minimum redress
injuries of the petitioners unless the court were to say private individuals who have not articulated they are going to bring suits are somehow agents acting in concert with the attorney general and the problem is that is we have no authority over them. the basic concept of agency is there is a principal and an agent and the prince pal is answerable. they have no authority over putative suit bringers. and we're not being approached thises a matter that can be resolved in the district court fit gets that far. wie not being approached regarding other litigation. individual people are choosing to bring or not bring these in free enforcement challenges in state court. >> can i ask you about the implications of your position for other constitutional rights, the amicus brief, the firearms policy coalition says, quote this will easily become the model for suppression of other
constitutional rights with second amendment rights being the most likely target, end quote. and it could be free speech rights, could be free exercise of religion rights, could be second amendment rights. justice kavanaugh: if this is accepted, it could be replicated in other states that disfavor other constitutional rights. your response? mr. stone: in several of those circumstances, individuals concerned would cause rues now liability or suppress their ability to pursue their rights have turned to congress and succeeded. the protection of lawful commerce and arms act was passed in response to state tort lawsuit in which there was no immediate federal review, it could only at most be brought here. justice kavanaugh: in most cases it would be difficult to get them through congress. are you saying that free speech
rights, free exercise of religion right, could be targeted by other states in this using the ex parte young language on 163 and to really infringe those and put huge penalties to the hypothetical say everyone who sells an ar-15 is liable for $1 million to any citizen, uncertain what the second amendment status of that will be, which is where those laws will have purchase. would that law be exempt from preenforcement review in federal court? mr. stone: my answer does not turn on the nature of the right. so we can put in religious liberty. justice kavanaugh: we can assume it will be equally an apublicable to all constitutional rights? and you also said the amount the penalty doesn't matter, $1 million per sale, anyone who
declines to provide a good or service for fuse in a same-sex marriage, $1 million. sued by anyone in the state. that's exempt from pre-enforcement review? mr. stone: again, what we'd -- yes. justice kavanaugh: that's a yes, that's exempt from prereview. mr. stone: in the sense that it would have to be modified by congress. >> general stone, your answer to justice kavanaugh, which is go ask congress, isn't the point of a right that you don't have to ask congress? isn't the point of a right that it doesn't matter what congress thinks or the majority of the american people think as to that right? mr. stone: the answer to that in both parts of justice kavanaugh's question, just as i'm asking here for texas state considerate judges, we have to assume other state court judges will faithfully apply the
constitution, it will have to occur through the state court process but that's an adequate subject -- >> in the state court process, maybe many years from now, with a chilling effect that deprives people who want to dpers the right from the opportunity to do so in the maybe long-term interim. mr. stone: no doubt that's the case in many lawsuits, but no one thought litigation delays had constitutional dimension for access to expanding courts before. i don't think this should be the first case to start. >> thank you, general stone. i have one additional question. there was a statement in one of the briefs filed below, not by you, that said, quote, states have every prerogative to adopt interpretations of the constitution that differ from the supreme court's. does the state of texas have a position on that? mr. stone: the state of texas' position is that the courts of
the state of texas will faithfully apply any digs of this court and that the other officers inside -- within texas are bound likewise to take the interpretations from this court and federal law and faithfully implement them. chief justice roberts: thank you, counsel. justice thomas? justice briere? justice breyer: in reading ex parte young, i got the impression the enforcement mechanism was private shippers or passengers who were supposed to assume, the railroad. the attorney general didn't have direct power. he had a kind of residual power. i looked up up the texas statute and it seems the attorney general has the same kind of residual power. it was hard to see that in ex parte young, but they say this attorney general with just the residual power, we can go sue him. then all your problems would in
that case they didn't appear and it turned out that statute, nobody enforced. because it had been said to be unconstitutional in the a.g.'s case is there a difference i overlooked? mr. stone: even given all those provisions, your honor, nonetheless this court in ex parte young described a violation. in this case the attorney general has no connection whatsoever not even and attenuated one to the enforcement of s.b. 8. chief justice roberts: justice alito. justice alito: what can you tell us about the state multidistrict litigation? this law was enacted i believe in the middle of may. when were those suits filed? where do they stand now? are they being delayed as a result of the federal court litigation? how quickly might we expect to see a decision in that case?
mr. stone: i can answer some of those questions. they were filed fairly promptly, i believe just before s.b. 8's effective date, there are 14 of them proceeding in multidistrict litigation. there's motions for summary judgment due 10 days from now, i assume the judge is acting on a highly expedited schedule. as to whether there'll be motions practiced or other than that, i couldn't say. i have little doubt the texas courts will treat this as a case to treat expeditiously. justice alito: they were filed around the time when s.b. 8 took effect or when it was filed back in may? mr. stone: i believe around when it took effect. justice alito: are they being delayed as a result of litigation? mr. stone: it appears they're continuing apace even given this court's granted certiorari. justice alito: i understand they
haven't raised constitutional claims? mr. stone: at least one litigant is planned parenthood who raised the undue burden offense. at least in that one, i couldn't swear to the others, but in that one they're explicitly raising this court's decision. chief justice roberts: justice sotomayor. justice sotomayor: grupo mexicano talked about raising private parties. we had just created a new system of government so we hadn't had an ex parte young because we didn't have anything like this before in england or anywhere else. the system of government we have recy ated. now, i take and i listen to what ex parte young said about not interfering with the work of the court and its branches, ongoing
work of the court and its branches, but one thing we said in cooper vs. aaron was equally important and that was, constitutional rights declared by this court can nevert be nullified openly and directly by state legislatures or state executives or judicial officers. these are the key words. nor indirectly. so given what i just said, that that principle is inherent in the constitution, why am i limited by grupo mexicano. why would i look for something that can't exist by its very nature? what does exist are the words we said in ex parte young which was, we are charged by congress in ensuring that federal rights
are respected directly or indirectly. so could you respond and tell me why we're limited by anything in terms of what an equitable remedy would be like assuming we were to find, and you can challenge the assumption but you'll waste your time, assuming we were to find that this was -- this scheme was intended to chill abortions. that were constitutional. mr. stone: taking all the assumptions i'm obligated to, your honor, at a minute mum, this court's statement that congress was the one that vested the federal courts with equitable jeurs kix in the first place, whatever equitable jurisdiction occurs in the courts because congress gave it to them. the court recognized their limitation in grupo mexicano that i don't understand if it
was across public-private distinction or separation of powers distinction, whether or not it was this court or congress had to expand beyond traditional remedies available if nothing else is salient on this part one thing that the violates our scheme of government is relevant for is that that kind of injunction is not traditional equity. chief justice roberts: justice kagan. justice gorsuch. justice gorsuch: a couple of questions. with respect to the n.d.l. justice alito was asking about, is there anything in that that prohibits parties from bringing a preenforcement action against texas' law for violating the constitution? mr. stone: no. there are individuals raising preenforcement.
individuals suffering criminal action for second amendment rights all the time. $10,000 liquidated damages provision and potentially a fee shifting mechanism on top of it is comparatively mild compared to incarceration for asserting a second amendment right. realistically none of the complaints about the plaintiff favoring procedural rules in s.b. 8 would amount to anything considering procedural due process violation if law were about making widgets. chief justice roberts: justice barrett. justice barrett: i want to follow up about the pre-enforcement challenges in state court, you said it's a matter of finding a private plaintiff to sue. mr. stone: a private individual who holds out they're going to
sue. justice barrett: so the same problems that pervade this enforcement challenge exist there. even if they identify a private potential plaintiff who expresses intent to sue, the injunction would run only against that one plaintiff and we would have all these same problems because the attorney general can't be sued in state court so it wasn't resolve, it's not ex parte young style, i guess is what i'm asking. mr. stone: no more than there's no ex parte young remedy against individuals. if many people acted in concert they could be joined, there is something brought up before if an individual who has an action brought against them pays the statutory damages, then no further liability can be brought for anyone for that same act that would extinguish the down the line possibility of serving an infinite series of lawsuits. justice barrett: for that one
abortion. what i'm getting at because you're shifting is that you cannot get global relief in the same way that pre-enporsment challenge in ex perta -- ex parte young giveus relief from the statute enforced against you. you're saying in state court these pre-enforcement actions do not offer that based on an individual-by-individual basis. mr. stone: yes, in the same way a remedy would be unknown -- justice barrett: you've answered my question. >> thank you -- chief justice roberts: thank you, counsel. rebuttal, mr. hearron. mr. hearron: i'd like to begin by picking up on the point, the question that justice barrett
was asking. the 15 pending state court proceedings in relief would be against only those defendants who were sued in those proceedings, private defendants, not the state, and in fact, the defendants are asking strategically to preclude any broader review. they've stipulated to temporary injunctions in order to prevent an injunction that might then get appealed and get broader relief from higher courts. the other point about all of this is, and this is another special feature of s.b. 8, which is that normally in texas law, texas has a declaratory judgment act that allows citizens to sue the state of texas or the state agency under the texas declaratory judgment act to get that broader relief and in s.b. 8, section 171.211, s.b. 8 overrides the state declaratory judgment act and reasserts
sovereign immunity to prevent that kind of lawsuit against the state to seek broader review in state courts. on the concern about post-viability abortions, i don't think that's a concern for the court prartly because the petitioners do not provide post-viability abortions and under this court's precedent in whole women's health that doesn't preclude the statute from being cle declared facially unconstitutional, i don't think that's a concern that the court needs to deal with. at the end of the day, what the state of texas and what my friends on the other side are saying is that clinics should just violate the law. they should go out there, they should go about business as usual, and subject themselves to the risk that they will be forced to close their doors. but i want to make clear, your honor, that this has not just a decision for clinics to make. even if clinics and helicopter
centers decided to violate the law, they may not find physicians, nurses, ultra sound technicians, staff members willing to work behind the desk because this law targets all of them. every single person would have to make the decision, am i willing to subject myself to the risk of $10,000 or more, that's a minimum, liability per abortion, plus the risk that i'm going to be into suits all across the state and i'm going to have my ability to have an attorney taken away from me because my attorney may have to pay attorneys' fees. every single person, and that's exactly what this court addressed in ex parte young. ex parte young and the reasons the principles underlying ex parte young apply here, one of the things it said, the railroad may not be able to find an agent or employee willing to violate the law to generate a test case.