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United States v. Texas (2021)

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Supreme Court of the United States
United States v. Texas
Term: 2021
Important Dates
Argued: November 1, 2021
Decided: December 10, 2021
Outcome
Dismissed
Vote
NA
Majority
Per curiam

United States v. Texas was a case argued before the Supreme Court of the United States on November 1, 2021, during the court's October 2021-2022 term. In a per curiam decision on December 10, 2021, the court dismissed the writ of certiorari as improvidently granted and denied the application to vacate the stay presented to Justice Alito and by him referred to the court.[1] Click here for more information about the ruling.

This case was one of three heard by SCOTUS during its October 2021 term that related to abortion. To read more about the background of each of those cases, the questions presented, and the outcomes, click here.

HIGHLIGHTS
  • The issue: The case concerned whether the federal government has the right to challenge Texas state law S.B. 8 in federal court.
  • The question presented: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."[2]
  • The outcome: In a per curiam decision, the court dismissed the case as improvidently granted and denied the application to vacate the stay.[1]


    • The case came on an application by the U.S. Department of Justice to vacate the stay of a preliminary injunction issued by the United States Court of Appeals for the 5th Circuit. The Supreme Court elected to treat that application as a petition for writ of certiorari before judgment, and accordingly issued a writ of certiorari to the 5th Circuit. Click here to review the 5th Circuit's order issued on October 14.

    Timeline

    The following timeline details key events in this case:

    • December 10, 2021: The U.S. Supreme Court dismissed the case as improvidently granted and denied the application to vacate the stay presented to Justice Alito and by him referred to the court.
    • November 1, 2021: The U.S. Supreme Court heard oral argument.
    • October 22, 2021: The U.S. Supreme Court agreed to hear the case.
    • October 18, 2021: The U.S. Department of Justice filed an application to vacate the stay of the preliminary injunction issued by the 5th Circuit. The Supreme Court converted this application into a petition for writ of certiorari before a judgment.
    • October 14, 2021: The United States Court of Appeals for the 5th Circuit stayed the district court's preliminary injunction.
    • October 6, 2021: The United States District Court for the Western District of Texas issued a preliminary injunction preventing enforcement of S.B. 8.

    Background

    See also: Whole Woman's Health v. Jackson

    By midnight of August 31, 2021, the U.S. Supreme Court did not respond to an emergency appeal filed by a group of abortion providers—known as Whole Woman's Health v. Jackson, et al—seeking to block enforcement of a Texas law that banned abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law. The latter authorization allowed private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. The bill, S.B. 8, was signed into law on May 19, 2021, by Governor Greg Abbott (R). The petitioners initially challenged the law in federal district court, arguing that the law violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. While the district court was considering the challenge, the United States Court of Appeals for the 5th Circuit ordered a stay of the district court's proceedings, halting their consideration. The petitioners then filed an emergency appeal with the Supreme Court, submitted to Justice Samuel Alito, who was assigned to the 5th Circuit and was responsible for reviewing emergency appeals. As the circuit justice, Alito was authorized to respond to the request himself or refer the matter to the full court for consideration.[3][4][5] On September 1, the law went into effect.

    With litigation over S.B. 8 ongoing in the federal courts, the U.S. Department of Justice (DOJ) sought a preliminary injunction from the United States District Court for the Western District of Texas to stop Texas and any state employees or agents from enforcing the law while the courts determined the law's validity. The district court granted the DOJ's request for a preliminary injunction on October 6.[6] The state appealed to the United States Court of Appeals for the 5th Circuit, and on October 14, the 5th Circuit stayed, or paused, the preliminary injunction issued by the district court, allowing enforcement of S.B. 8 to resume.

    In response, the DOJ filed an emergency appeal with the U.S. Supreme Court to vacate the 5th Circuit's ruling which allowed the law's enforcement to resume.[7] SCOTUS allowed the 5th Circuit's ruling to stand, continuing to allow the law's enforcement. As well, the court converted the DOJ's application into a petition for writ of certiorari before judgment. This meant that, if the court accepted the petition, it would hear oral arguments in the case during the 2021-2022 term. On October 22, the court accepted the case and set the argument date for November 1, along with the case Whole Woman's Health v. Jackson, which also related to the Texas law.[8]

    In the Supreme Court's order, Justice Sonia Sotomayor filed an opinion dissenting from the court's decision to allow enforcement of S.B. 8. In her dissent, Justice Sotomayor wrote:[8]

    “ Recognizing that Texas’ scheme raises concerns of imperative public importance, the Court properly grants certiorari before judgment. ... However, the Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended. ... Whatever equities favor caution in staying a state law under normal circumstances cannot outweigh the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented.[9] ”

    Question presented

    The petitioner presented the following question to the court:[2]

    Question presented:
    “ May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.[9] ”

    Oral argument

    The court heard arguments in the case on November 1, 2021.

    Audio

    Audio of oral argument:[10]



    Transcript

    Transcript of oral argument:[11]

    Outcome

    In a per curiam decision, the court dismissed the case from its merits docket as improvidently granted, meaning that the court ruled that it should not have taken up the case.[12] The court also denied the application to vacate the stay presented to Justice Alito and by him referred to the court.[1]

    Text of the opinion

    Read the full opinion here.

    Reactions to argument

    The section below contains quotes from media outlets related to the argument in this case.

    Ed Whelan, a senior fellow of the Ethics and Public Policy Center, wrote the following in National Review:[13]

    “ It is indisputable that the Act has constitutionally permissible applications even under the terribly misguided regime of Roe and Casey. The simplest example concerns post-viability abortions that are not necessary to preserve the life or health of the mother. Other examples that intervenors supporting Texas present include lawsuits against those who provide financial coverage for post-heartbeat abortions and lawsuits against non-physicians who perform such abortions. (And if you think that either of these other examples is disputable, you’re just reinforcing my point below.)


    Under the severability provision, if the Court were somehow to block enforcement of the Act against physicians performing pre-viability abortions, it would still have to allow the Act to operate in applications that the Roe/Casey regime allows.

    Consider what this means for, say, the crazy option in which the Court would dictate that court clerks could be enjoined from docketing complaints by private parties to enforce the Act. By carving out, as it must, an exception for the Act’s constitutionally permissible applications, the Court would place a burden on court clerks of carefully examining every complaint before docketing it and of making sophisticated legal judgments as to whether the private party is suing over an application that the Roe/Casey regime allows—all at the risk of being held in contempt by a federal district judge.[9]

    		”

    Amy Davidson Sorkin, a reporter for The New Yorker, wrote:[14]

    “ The Texas law is fantastically reckless—not as much a legal moon shot as a volatile rocket poised to blow up—in more than one respect. In order to trample on reproductive rights, it tramples on all rights. Kavanaugh—and Amy Coney Barrett, who indicated similar concerns—seemed receptive to Elizabeth Prelogar, the U.S. Solicitor General, who asked them about the implications of a situation in which the “simple mechanism” of “a bounty of ten thousand dollars or a million dollars” meant that “no constitutional right is safe.” That would, Prelogar said, “be an intolerable state of affairs, and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”


    Prelogar is right. Stone spoke as if the Court were trapped by the language in Ex Parte Young about needing a state official to sue, which Kavanaugh referred to as a “loophole.” But the Court can close such loopholes, especially one that allows an outcome which runs so contrary to the whole intent of Ex Parte Young. (In that decision, an 8–1 majority opinion cited an earlier observation made by Chief Justice John Marshall, in 1821, that “it is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.”) After all, the Supreme Court can return to its own precedents, for better or worse. Indeed, if the Court does eventually get to look at its abortion precedents in this case, or in one from Mississippi which it will hear in few weeks, several Justices seem ready to overturn Roe v. Wade—a far more drastic move.[9]

    		”

    The editorial board of The Wall Street Journal, wrote:[15]

    “ The law in our view is clearly unconstitutional under the Court’s abortion precedents. But here’s the rub: Federal courts don’t have jurisdiction to hear the lawsuit by the abortion providers or the Justice Department. Full stop. Federal courts only decide cases and controversies between parties, and both plaintiffs lack legal standing to sue.[9] ”

    The editorial board of The Washington Post, wrote:[16]

    “ If state officers are not responsible for enforcing it, courts have no specific party to instruct to stand down. Once someone performs an abortion and is sued for it, that defendant can raise a constitutional challenge as their case is adjudicated. In fact, lawsuits have already been filed against a Texas abortion doctor who defied the law. But sorting that out could take a long time. It is no replacement for the timely review such a law would get if state officials were those enforcing it. Texas women’s abortion rights are being infringed every day the law remains in force.[9] ”

    Lower court rulings

    Three lower court rulings were made prior to the Supreme Court hearing this case. Those rulings were:[17]

    Western District of Texas ruling (October 2021)

    On October 6, 2021, Judge Robert Pitman of the United States District Court for the Western District of Texas issued a preliminary injunction against SB 8. Pitman was appointed to the court in 2014 by President Barack Obama (D). To read the full ruling, click here. In the conclusion to his ruling, Pitman wrote:[18]

    “ Moreover, had this Court not acted on its sound authority to provide relief to the United States, any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction. As has been reported, “legal scholars fear that the law in Texas will lead to a rush of similar efforts in other states, prompting local legislators to pursue new measures on gun rights, immigration[,] and other divisive political issues, all in an effort to sidestep the federal government. From the Deep South to the Upper Midwest, legislators in many conservative states have started to explore how similar laws could be put in place in the months ahead.” (The New Texas Abortion Law Is Becoming a Model for Other States, L.A. Times, Supp. Dec. Newman, Dkt. 56-2, at 10–11). Equally plausible is that states at the other end of the political spectrum could use a similar tactic to ban or impermissibly limit another constitutional right, like a right grounded in the Second Amendment, to further a political agenda. This Court’s preliminary injunction, should it stand, discourages states from doing so: if legislators know they cannot accomplish political agendas that curtail or eliminate constitutional rights and intentionally remove the legal remedy to challenge it, then other states are less likely to engage in copycat legislation. Thus, rather than increase the number of suits by the United States, this Court’s preliminary injunction maintains the status quo of very few such suits and preserves this cause of action for exceptional cases like this one.[9] ”

    Texas appealed Judge Pitman's ruling to the Fifth Circuit.

    Fifth Circuit issues initial stay (October 2021)

    On October 8, 2021, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued a preliminary stay against Pitman's order. This was a per curiam decision, so the order was issued by the court and not by an individual judge. The table below lists the judges who heard the case and the president that appointed the judge.[19]

    United States v. Texas preliminary stay ruling
    Judge Appointed by
    James Ho Donald Trump Republican Party
    Catharina Haynes George W. Bush Republican Party
    Carl Stewart Bill Clinton Democratic Party

    Fifth Circuit issues stay pending appeal (October 2021)

    On October 8, 2021, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued a stay against Pitman's order pending appeal by a 2-1 decision. The table below lists the judges who heard the case, their ruling, and the president that appointed the judge.[19]

    United States v. Texas stay ruling
    Judge Ruling Appointed by
    James Ho Majority Donald Trump Republican Party
    Catharina Haynes Majority George W. Bush Republican Party
    Carl Stewart Dissent Bill Clinton Democratic Party

    Cases related to abortion in the October 2021 SCOTUS term

    SCOTUS heard three cases related to abortion during its October 2021 term. Two of those cases (United States v. Texas and Whole Woman's Health v. Jackson) posed questions relating to a Texas abortion law. The other (Dobbs v. Jackson Women’s Health Organization) posed a question related to a Mississippi abortion law. Arguments in the Texas cases took place in November and argument took place in the Mississippi case was held in December.

    The sections below detail each case heard by SCOTUS during this term, including background on the case and the question presented to the court.

    Mississippi

    See also: Dobbs v. Jackson Women’s Health Organization

    This case directly challenged previous SCOTUS decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The argument took place on December 1, 2021. SCOTUS agreed to hear the case on May 17. The case came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit.


    HIGHLIGHTS
  • The case: In 2018, Jackson Women’s Health Organization, a clinic and abortion facility in Mississippi, challenged the constitutionality of the "Gestational Age Act" in federal court. The law, enacted March 19, 2018, prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court granted summary judgment in favor of the plaintiffs, holding that the law was unconstitutional, and put a permanent stop to the law's enforcement. On appeal, the 5th Circuit affirmed the district court's ruling. Click here to learn more about the case's background.
  • The issue: The case concerned the constitutionality of a Mississippi state law prohibiting abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities, and the Supreme Court's decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).[20]
  • The questions presented: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."[2]
  • The outcome: The court held that there is no constitutional right to abortion and overruled the court's previous decisions in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992).

    • Texas

    See also: Whole Woman's Health v. Jackson and United States v. Texas (2021)

    These cases questioned the legality of Texas' new abortion law S.B. 8 and whether the federal government had standing to sue the state to block enforcement. The arguments took place on November 1, 2021. SCOTUS agreed to hear the two cases on October 22. Whole Woman's Health v. Jackson came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit. United States v. Texas came via direct appeal by the federal government.

    Whole Woman's Health v. Jackson

    HIGHLIGHTS
  • The case: Texas law S.B. 8 restricted abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law, meaning private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. Whole Woman's Health et al, a group of Texas abortion providers challenged the law, alleging that it violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The petitioners also challenged the state law's provision that it was to be enforced by private citizens through civil suits. Click here to learn more about the case's background.
  • The question presented: "[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions."[2]
  • The outcome: The court ruled 8-1 that abortion providers may file suit in federal court against certain Texas executive officials to prevent them from enforcing provisions of S.B. 8 against abortion providers; it further held by a 5-4 vote that the abortion providers cannot bring suit against state judicial officials to prevent private lawsuits from being tried.[1]


    • United States v. Texas

    HIGHLIGHTS
  • The issue: The case concerned whether the federal government has the right to challenge Texas state law S.B. 8 in federal court.
  • The question presented: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."[2]
  • The outcome: In a per curiam decision, the court dismissed the case as improvidently granted and denied the application to vacate the stay.[1]


    • Additional reading

    October term 2021-2022

    See also: Supreme Court cases, October term 2021-2022

    The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[21]

    The court agreed to hear 68 cases during its 2021-2022 term.[22] Four cases were dismissed and one case was removed from the argument calendar.[23]

    The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 U.S. Supreme Court, "United States v. Texas: Per curiam," decided December 10, 2021
    2. ↑ 2.0 2.1 2.2 2.3 2.4 U.S. Supreme Court, "No. 21-588: Question Presented," accessed October 25, 2021 Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content
    3. ↑ U.S. Supreme Court, "Whole Woman's Health et al v. Jackson et al: EMERGENCY APPLICATION TO JUSTICE ALITO FOR WRIT OF INJUNCTION AND, IN THE ALTERNATIVE, TO VACATE STAYS OF DISTRICT COURT PROCEEDINGS," August 30, 2021
    4. ↑ SCOTUSblog, "Texas abortion ban goes into effect after justices fail to act," September 1, 2021
    5. ↑ SCOTUSblog, "Abortion providers ask court to block Texas ban on abortions beginning at six weeks of pregnancy," August 30, 2021
    6. ↑ United States District Court for the Western District of Texas, United States v. Texas, decided October 6, 2021
    7. ↑ U.S. Supreme Court, "United States v. Texas - Application to Vacate Stay of Preliminary Injunction Issued by the United States Court of Appeals for the Fifth Circuit," accessed October 25, 2021
    8. ↑ 8.0 8.1 U.S. Supreme Court, "United States v. Texas - On Application to Vacate Stay and Petition for Writ of Certiorari Before Judgment," accessed October 25, 2021
    9. ↑ 9.0 9.1 9.2 9.3 9.4 9.5 9.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    10. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued November 1, 2021
    11. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued November 1, 2021
    12. ↑ SCOTUSblog, "Practice Pointer: Digging into DIGs," April 25, 2019
    13. ↑ National Review, "The Texas Heartbeat Act and Severability," November 4, 2021
    14. ↑ The New Yorker, "The Supreme Court Wonders Where the Texas Abortion Law Might Lead," November 3, 2021
    15. ↑ The Wall Street Journal, "The Texas Abortion Case That Isn’t," October 31, 2021
    16. ↑ The Washington Post, "Opinion: The Texas case is not just about abortion. All sorts of rights are at stake." November 1, 2021
    17. ↑ Constitutional Accountability Center, "United States v. Texas (S.B. 8 litigation)" accessed November 17, 2021
    18. ↑ Court Listener, "United States v. Texas ," accessed November 17, 2021
    19. ↑ 19.0 19.1 Courthouse News, "Fifth Circuit allows Texas abortion ban to remain in effect," October 14, 2021
    20. ↑ SCOTUSblog, "Court to weigh in on Mississippi abortion ban intended to challenge Roe v. Wade," May 17, 2021
    21. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed February 4, 2021
    22. ↑ Consolidated cases are counted as one case for purposes of this number.
    23. ↑ U.S. Supreme Court, "Order List: 593 U.S.," May 17, 2021
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