Thursday, September 9, 2021
Earlier today the United States filed a complaint against Texas in the Austin Division of the United States District Court for the Western District of Texas. The complaint seeks a declaratory judgment that the Texas Heartbeat Act is unconstitutional in its entirety, along with "[a] preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8."*
This complaint is a move I've been waiting for since first analyzing the jurisdictional and procedural complications posed by the Texas Heartbeat Act. It's not without its risks to the Biden Administration, but inaction would have been even worse. In a Prawfsblawg comment last Friday morning, I observed that "Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier." If the United States wanted to make a particularly forceful claim for attention, I suggested the potential for filing directly in the original jurisdiction of the Supreme Court of the United States. I noted the Court's 1892 decision allowing another case called United States v. Texas to proceed in the Court's original jurisdiction and pointed interested readers to James E. Pfander's important article "Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases." Those are still good places to start in diving in to some of the jurisdictional issues. Now that we have a complaint to focus on, though, it's better to begin with that.
There are three counts in the portion of the complaint labeled "Claims for Relief":
Count I (Supremacy Clause--Fourteenth Amendment) asserts that "S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the Supremacy Clause." ¶ 82.
Count II (Preemption) contends that "S.B. 8 is preempted by federal law—including the statutes and regulations outlined [earlier in the complaint]—to the extent it prohibits certain pre-viability abortions that federal agencies are charged with facilitating, funding, or reimbursing." ¶ 87.
Count III (Violation of Intergovernmental Immunity) states that "S.B. 8 directly regulates the activities of the federal government and its contractors, grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s intergovernmental immunity and is invalid in such applications." ¶ 91.
The complaint raises a bevy of complex and novel jurisdictional, procedural, and remedial issues, not to mention the high stakes of the substantive law at issue.
Those high stakes are perhaps the best place to start in analyzing this complaint. This sovereign v. sovereign lawsuit raises the stakes for the Supreme Court's consideration of the ongoing validity of its abortion precedents. The viability line of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey was already likely to be swept away in Dobbs v. Jackson Women's Health Organization. By filing United States v. Texas, the Biden Administration has raised the stakes even higher than they already were in Dobbs. My hopeful assessment is that the federal government's lawsuit today makes a broad decision Dobbs at least a little more likely than it had been. A decision that leaves the substantive constitutional law of abortion unclear as it applies to laws other than the 15-week ban at issue in Dobbs has always been undesirable for the Court. Assuming that a majority of the Justices already recognizes the unsoundness of Roe and Casey, one contributing factor leading to that conclusion is the perception that umpiring abortion laws has undermined the Court as an institution. With a presidential administration and one of the two major political parties already primed to attack the Court for the reversal of Roe and Casey, the Court may as well do its best to leave the field decisively. The way to do that is to acknowledge that state abortion restrictions are justified as extending the protection of the laws to unborn persons within their respective jurisdictions, and the federal judiciary has no judicially manageable standard by which it can displace the states' treatment of unborn persons as Fourteenth Amendment persons. Nor can the federal government by fiat simply render unborn persons as nonpersons by hiding behind Roe's erroneous determination that Fourteenth Amendment personhood definitively does not begin until birth.
As for United States v. Texas, I need to do more research and analysis, but I'm inclined to think now that (1) this suit by the federal government directly against the state will make it to a merits determination on at least one count (with Count I being the most likely), and (2) the federal government will lose on all counts whether or not the merits are reached on any of them.
I hope to have more to say in coming weeks as I and others dig deeper into the alluring complexities of United States v. Texas, but that's all I have for now.
* (S.B. 8 is what the complaint calls the Texas Heartbeat Act even though it's now an enacted law and not just a Senate Bill. This kind of rhetorical move is common in litigation like this. One way to form a quick assessment of the likely outlook of someone writing about this Texas law is to see what term they use to describe it.)