Published October 26, 2021
It took the vote of four justices to grant certiorari in both the abortion providers’ and the Department of Justice’s cases against the Texas Heartbeat Act, and it took five votes to dramatically expedite the Court’s consideration of those cases. So it might well be that the four justices who (wrongly) dissented from the Court’s denial of the abortion providers’ request for emergency relief against the Texas Heartbeat Act think that they have a path to winning a majority in the DOJ case. But the path strikes me as steep and deceptively treacherous. Some observations:
1. DOJ has the same ultimate problem that the abortion providers do: it can’t obtain injunctive relief that applies against state judges and court clerks. As the Court explained in denying the abortion providers’ request for emergency relief, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
It’s noteworthy that the Court, in an opinion by Justice Breyer for seven justices, invoked this basic principle just last term when it ruled (in California v. Texas) that individual plaintiffs did not have standing to challenge Obamacare’s individual mandate once Congress eliminated any governmental means of enforcing it. It would be extraordinary if any of these justices were now to disregard the principle. (The two dissenters did not dispute that principle, nor did they contend that the individual plaintiffs had standing.)
The role of state judges is to decide lawsuits between private parties under the Texas Heartbeat Act, not to enforce the Act. As the Court stated in the landmark case of Ex parte Young (1908) (emphasis added):
It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature…. [A]n injunction against a State court would be a violation of the whole scheme of our government….
The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former.
So while state judges do not have the additional sovereign-immunity defense against DOJ that they have against the private plaintiffs, they are beyond the reach of any injunction that the Court would issue against Texas for the same reason the Court majority recognized that they were beyond the reach of any injunctive relief in favor of the abortion providers. Ditto for court clerks, who, far from enforcing the Act, have the ministerial role of processing pleadings.
2. DOJ encounters additional obstacles that the abortion providers don’t. The United States faces a further obstacle to standing and also lacks an equitable cause of action because there is no basis in history or tradition for the United States to sue a state to enforce individual constitutional rights. The Court’s ruling in Grupo Mexicano v. Alliance Bond Fund (1999) establishes that the federal courts’ equitable powers are limited to the relief “traditionally accorded by courts of equity” at the time the Constitution was adopted. DOJ cannot possibly show that such relief included enjoining a court from hearing a case. More broadly, as the Third Circuit explained in United States v. City of Philadelphia (1980), the United States does not have an equitable cause of action to sue states for violating individual constitutional rights.
As an alternative, DOJ attempts to concoct an injury to its “sovereign interests.” But that attempt rests on a boundless reading of In re Debs (1895) that courts have soundly rejected. (See, e.g., Fourth Circuit’s ruling in United States v. Solomon (1977).)
3. The whole notion that there must be some sort of constitutional right to pre-enforcement review of a state law in federal court turns federalism on its head. It also contravenes the federal separation of powers. The federal body that has authority to assess whether the Act poses a novel problem that warrants a novel remedy is Congress, not the executive branch and not the federal courts. The Constitution vests Congress with the specific power “to enforce [the Fourteenth Amendment] by appropriate legislation” as well as the general power to regulate the jurisdiction of, and remedies available in, federal courts. Congress has exercised these powers to enact a comprehensive remedial scheme that authorizes various lawsuits to enforce the Fourteenth Amendment, but it has not authorized lawsuits by the United States to enforce abortion rights under Roe and Casey. The Court cannot grant relief to DOJ in this case without demolishing the limits on equitable relief in federal court.
4. Even under Roe v. Wade and Planned Parenthood v. Casey, the Act has applications that are indisputably permissible and others that are very likely so. The Act also has a stringent and elaborate severability clause (section 171.212) that specifies (among other things) that “[i]f any application of any provision … is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.”
That means that even if there were persons or entities who could be enjoined from enforcing the Act, the Court would have to do the hard work of sorting out which applications are permissible (and therefore outside the scope of injunctive relief) and which aren’t.
Intervenors in the case include an individual who intends to sue employers and insurance companies that provide coverage for post-heartbeat abortions as well as the city of Austin if it uses taxpayer funds to subsidize the provision of such abortions; an individual who intends to sue over non-physician abortions, self-administered abortions, and post-viability abortions; and an individual who intends to sue abortion funds that pay for post-heartbeat abortions. Beyond the specific question whether these individuals can somehow be enjoined from enforcing the Act in these applications is the broader question whether anyone could be.
5. Even if the Court were somehow to prevent state judges from deciding, and court clerks from accepting, lawsuits to enforce the Act, it’s far from clear thatabortion providers would decide that it is in their interests to resume providing post-heartbeat abortions. In particular, if the Court overturns Roe and Casey next spring (in Dobbs v. Jackson Women’s Health Organization), the predicate for preventing enforcement of the Act would collapse and the Act would become enforceable again, even if Texas might have to jump through a hoop or two to make that happen. At that point, the Act would become enforceable against any post-heartbeat abortions that had occurred in the interim. (As Justice John Paul Stevens explained in his concurring opinion in Edgar v. MITE Corp. (1982), an injunction doesn’t immunize interim conduct; it merely prevents enforcement during that interim. Nor would there be any Due Process problem with imposing such liability, as the Act itself provides clear notice that it would apply.)
So the same massive liability concerns that have deterred abortion providers from violating the Act so far—and that deterred most of them from doing so during the brief period that the district judge’s preliminary injunction was in effect—might well deter them from doing so in that interim. That very real prospect means that DOJ is unable to demonstrate that the relief it seeks would even be capable of redressing the various injuries it asserts.
Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.