Tuesday, October 19, 2021
The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.
This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.
The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.
In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":
First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.
(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)
As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.
The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.