Over the past fifty years, the Supreme Court has repeatedly recognized that the right to a pre-viability abortion is protected from state infringement by the Fourteenth Amendment.  Yet in a blatant attack on the supremacy of federal law and the constitutional rights of its people, Texas enacted Senate Bill 8 (S.B. 8), banning abortion once a “fetal heartbeat” can be detected—well before a fetus reaches viability or most people even know that they are pregnant.  Rather than being enforced by state officials, S.B. 8 is enforced exclusively through private civil actions against anyone who aids or abets, or intends to aid or abet, a banned abortion in Texas.  The Texas legislature designed this enforcement scheme to evade pre-enforcement judicial review.

After the Supreme Court refused to enjoin S.B. 8 in a lawsuit brought by abortion advocates and providers, the Department of Justice filed its own lawsuit on behalf of the United States against the State of Texas in the United States District Court for the Western District of Texas, alleging, among other things, that S.B. 8 violates the Constitution’s Fourteenth Amendment and its Supremacy Clause.  Agreeing that the United States was likely to prevail on the merits of its claims, and that it had authority to bring the lawsuit, the district court issued a preliminary injunction halting S.B. 8.

Texas appealed to the United States Court of Appeals for the Fifth Circuit and filed a motion seeking a stay of the district court’s injunction pending appeal.  CAC filed an amicus curiae brief urging the Fifth Circuit to deny the stay. The Fifth Circuit, however, granted the stay in a one-sentence order, allowing S.B. 8 to remain in effect as the case proceeds through the courts.

The Department of Justice subsequently filed an emergency application in the Supreme Court, asking the Court to vacate the Fifth Circuit’s stay of the preliminary injunction. CAC filed another amicus curiae brief in support of the United States, urging the Court to grant the emergency application and lift the Fifth Circuit’s stay.

The Supreme Court agreed to hear the case limited to the issue of whether the United States could sue to stop S.B. 8, but refused to block the law’s enforcement in the interim. CAC filed a third amicus curiae brief in support of the United States.

All three of CAC’s briefs focused on why the United States had authority to sue Texas in this case even in the absence of a statutory cause of action.  In support of this argument, our briefs made two main points.

First, our briefs explained that the Supreme Court has repeatedly recognized the right of the federal government to sue to vindicate the public interest even when Congress has not passed a law explicitly authorizing it to do so.  The briefs trace a line of early Supreme Court precedents culminating in In re Debs, where the Supreme Court recognized that the United States could obtain an injunction against the Pullman rail strike of 1894 in order to vindicate the public interest.  Though the Court used sweeping language to discuss the United States’ authority to sue in Debs, it specifically found that because the strike imposed a substantial burden on interstate commerce, created a crisis for the rule of law, and resulted in a scenario in which it was exceedingly difficult for private individuals to enforce their own rights, the Attorney General had a special duty to sue on behalf of the public.  Our briefs explained why S.B. 8 satisfies these same criteria and thus the courts could uphold the authority of the United States to sue Texas even under a narrow construction of Debs.

Second, our briefs explained why recognizing the United States’ right to sue in this case would not undermine the constitutional principles of separation of powers or federalism.  As for the separation of powers, our briefs explained that Congress passed a statute called Section 1983 to enable private individuals to enforce their Fourteenth Amendment rights, yet Texas specifically designed S.B. 8 to evade judicial review pursuant to Section 1983, effectively rendering that statute a dead letter in the abortion context.  By stepping in on behalf of the American people to defend their constitutional rights, the executive branch sought to restore the congressional scheme disrupted by Texas.

As for principles of federalism, our briefs explained how our constitutional structure protects state sovereignty while also making the Constitution the “supreme Law of the land.”  In this case, we explained, Texas has flouted the rule of federal supremacy, intentionally crafting a state law that deprives Texans of their long-established Fourteenth Amendment right to a pre-viability abortion.  Under such circumstances, permitting the federal government to intervene in defense of that right would help preserve the Constitution’s delicate balance between state and federal power.

In December 2021, the Supreme Court dismissed the writ of certiorari as improvidently granted in a per curiam order. Justice Sotomayor dissented and would have granted the federal government’s application to lift the Fifth Circuit’s stay of the district court’s injunction.