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—months 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.

Days before the law went into effect, abortion providers and advocates, Petitioners here, filed an emergency application with the Supreme Court seeking to block the law. In an unsigned 5‑4 opinion, the Court declined to do so, citing complex procedural questions posed by S.B. 8’s enforcement mechanism that prevented it from enjoining the law, at least before full briefing on the merits.

Petitioners then filed a petition for a writ of certiorari before judgment, asking the Supreme Court to hear the case on the merits as soon as possible—and even before the court of appeals had done so—given the ongoing and devastating effects of S.B. 8.  The Court agreed to hear the case, limited to the question of whether federal courts can review state laws that delegate enforcement to private citizens. CAC filed an amicus brief in support of the Petitioners.

Our brief made two essential points that both illustrate why, under a doctrine named for a 1908 Supreme Court case called Ex parte Young, federal courts could review S.B. 8.

First, our brief explained that the Ex parte Young doctrine is grounded in principles of federal supremacy. From the very beginning of our Constitution’s history, federal courts were designed to be the front line against unlawful acts committed by state governments. Against the backdrop of the Articles of Confederation, which left the federal government defenseless against unlawful actions by state governments, the Framers included the Supremacy Clause in the Constitution to establish federal law as “the supreme law of the land” and mandate that courts void any state law that is contrary to federal law.

Emerging out of these principles was the landmark case of Ex parte Young, which held that federal courts could bar state officials from enforcing unconstitutional state laws without violating the Eleventh Amendment’s state sovereign immunity provision. The Court reasoned that states cannot impart immunity from the supreme authority of the Constitution because to allow them to do so would undermine the Constitution itself.

Our brief then explained that the providers’ challenge to S.B. 8 fits squarely within the Ex parte Young doctrine because it seeks to stop state officials, including clerks, judges, and the Texas Attorney General himself, from taking steps that make real the threat that S.B. 8 poses to the constitutional right to abortion. If the Supreme Court were to rule to the contrary, we explained, it would eviscerate the rule of federal supremacy that gave rise to Ex parte Young in the first place, opening the door to widespread nullification of constitutional rights.

Second, our brief explained that Texas officials’ argument that abortion providers must wait to challenge S.B. 8 in state court proceedings brought against them for violating the law cannot be squared with Ex parte Young. Indeed, in Ex parte Young, the Supreme Court explicitly rejected the argument that a person must await enforcement of an allegedly unconstitutional law to challenge it in federal court. As our brief illustrated, the supremacy of federal law is meaningless if months can pass during which citizens are deprived of their federal rights by state law because they are powerless to challenge the law creating the deprivation. This is especially true in abortion cases where the right being infringed involves a highly time-sensitive procedure. Under these circumstances, we argued, pre-enforcement judicial review of S.B. 8 pursuant to Ex parte Young was needed to protect the rights enshrined in our Constitution and the supremacy of federal law.

In December 2021, the Supreme Court issued its decision. Justice Gorsuch, writing for five justices, held that the vast majority of the Petitioners’ claims against S.B. 8 could not proceed. Justice Thomas wrote separately, explaining that he would not even allow that shred of the case to continue. Both Chief Justice Roberts and Justice Sotomayor penned partial dissents. Justice Sotomayor, in language echoing our brief’s description of the history of the Ex parte Young doctrine and its role in enforcement of the supremacy of federal law, emphasized that her dispute with the majority, at its core, was “over whether States may nullify federal constitutional rights by employing schemes like the one at hand.”  She described the majority’s ruling as ratifying a claim that “echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.” In practical effect, as Justice Sotomayor emphasized, the majority’s decision in this case permits any state to make an end-run around the Constitution by delegating enforcement of unconstitutional laws to private parties.