By ED WHELAN
September 29, 2021 11:23 AM
I’ve highlighted, and offered comments on, DOJ’s lawsuit against Texas over the Texas Heartbeat Act and its motion for injunctive relief. Today Texas filed its opposition to DOJ’s motion and its motion to dismiss DOJ’s complaint. The district court will hold a hearing on DOJ’s motion on Friday.
Here is Texas’s introduction (some citations simplified or omitted):
The Court should deny the federal government’s motion for a preliminary injunction and dismiss this case. Article III does not permit courts to hear “a proceeding against the government in its sovereign capacity” when “the only judgment required is to settle the doubtful character of the legislation in question.”
Disregarding this jurisdictional defect, the federal government seeks extraordinary relief—an injunction against non-party private individuals and state judges—without even identifying a cause of action. Congress has created numerous specific causes of action for the Attorney General, but not one applies here. Congress has created causes of action for the Attorney General to enforce various constitutional rights and statutory abortion rights under the Freedom of Access to Clinic Entrances Act. But Congress has never created a cause of action to enforce a constitutional right to abortion. Instead, it has repeatedly refused to create a broader cause of action for the Attorney General.
The federal government asks the Court to dispense with the normal cause-of-action requirement based on unfounded fears that the Texas Heartbeat Act will otherwise “evade judicial review.” Nothing could be further from the truth. The constitutionality of the Texas Heartbeat Act can be reviewed in the same way that virtually all of state tort law is: State-court defendants raise constitutional defenses before neutral judges sworn to follow the U.S. Constitution and, if necessary, appeal to the U.S. Supreme Court. See, e.g., New York Times Co. v. Sullivan (1964).
True, some abortion providers might prefer to be federal-court plaintiffs rather than state-court defendants, but that preference is not a constitutional right. It is also an issue that Congress has already considered. The Attorney General has statutory causes of action to enforce certain Fourteenth Amendment rights if he concludes that the affected individuals “are unable . . . to initiate and maintain appropriate legal proceedings.” But those causes of action are limited to equal protection rights. Congress’s detailed cause-of-action scheme precludes the Attorney General from bringing this suit to enforce a constitutional right to abortion.
The federal government also asks this Court to disregard the standard limitations on injunctive relief. Effectively conceding that an injunction against the State would be useless—because the State does not enforce the Heartbeat Act—the federal government seeks an injunction running against two groups of non-parties: (1) private individuals who might bring heartbeat suits and (2) state courts that might adjudicate those suits. Binding precedent forecloses both options.
The Court cannot decide that absent third parties are subject to an injunction without letting them be heard. And “an injunction against a state court would be a violation of the whole scheme of our government.” Ex parte Young (1908). As the Fifth Circuit recently held, “[i]t is absurd to contend . . . that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.”
What is worse, the federal government asks the Court to overcome all of these hurdles in order to issues an ineffective injunction against a valid law. According to the federal government, abortion providers are “chilled” by the prospect of future liability in state court. But on these facts, a preliminary injunction would not “unchill” abortion providers. In light of the strong possibility that any preliminary injunction would eventually be stayed or reversed, allowing heartbeat suits in state court to proceed, abortion providers would still face the prospect of future liability. In this case—where the alleged irreparable harm flows from the mere prospect of future liability—a preliminary injunction would not help.
Finally, the Texas Heartbeat Act is constitutional. Even the federal government does not challenge the constitutionality of many provisions in the Heartbeat Act. No one disputes the constitutionality of requiring doctors to determine “whether the woman’s unborn child has a detectable fetal heartbeat. No one disputes the constitutionality of the provision governing attorney’s fees. The federal government’s challenge is limited to the provision authorizing private causes of action, but even that argument is limited to the statute’s pre-viability applications. The federal government raises no argument that Texas cannot authorize heartbeat suits for post-viability abortions. In any event, the Heartbeat Act cannot violate Supreme Court precedent because it incorporates the Court’s “undue burden” test as a defense.
In the end, the motion for a preliminary injunction “presents complex and novel antecedent procedural questions on which [the federal government has] not carried [its] burden.” Whole Woman’s Health v. Jackson (U.S. Sept. 1, 2021). As a result, the Court “cannot say” that the federal government has “met [its] burden to prevail [on] an injunction.”