We previously covered the lawsuit filed by the U.S. Department of Justice, after the Supreme Court refused to issue a stay of the Texas Fetal Heartbeat Law, Biden DOJ Sues To Stop Texas Fetal Heartbeat Law.
In that post, I noted that DOJ had not yet filed a motion for an injunction, but that such a request was inevitable:
The U.S. Supreme Court refused to halt the Texas Fetal Heartbeat law on procedural grounds, without reaching whether the law was constitutional. In so doing, SCOTUS left open other litigation paths for opponents of the law.One of those paths was in the state courts. And indeed, a state court judge issued an injunction temporarily protecting Planned Parenthood from lawsuits under the law. We’ll see how long that ruling stands.But today the U.S. Department of Justice filed suit in federal court seeking to halt the law. You can read the Complaint. As of now, there are no motion papers on the federal PACER electronic docket, but I would expect that soon.
I further noted:
“…. a problem for the DOJ, which is seeking an injunction to prevent private parties from suing. Even assuming the law is unconstitutional, I’m not sure there is an actual case or controversy — required for federal suit — until somone actually sues. Then the remedy is not an injunction, but dismissal of the lawsuit.That’s the ingenious nature of the law. It creates a fear of lawsuits, but until there actually are lawsuits, there is no one against whom to issue an injunction. That’s why SCOTUS wouldn’t hear it — the government has no enforcement power, so naming Texas was held insufficient for SCOTUS to rule.”
DOJ now has filed an Emergency Motion seeking a Temporary Restraining Order and Preliminary Injunction:
The State of Texas adopted S.B. 81 to prevent women from exercising their constitutional rights. Even though “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992), Texas has banned abortions months before viability—at a time before many women even know they are pregnant.When other States have enacted laws abridging reproductive rights to the extent that S.B. 8 does, courts have enjoined enforcement of the laws before they could take effect. In an effort to avoid that result, Texas devised an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand. The United States seeks a temporary restraining order or a preliminary injunction enjoining the enforcement of S.B. 8. This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States in ensuring that its States respect the terms of the national compact. It is also necessary to protect federal agencies, employees, and contractors whose lawful actions S.B. 8 purports to prohibit.Although S.B. 8 was designed to create jurisdictional obstacles to the ability of women and providers to sue to protect their rights, those obstacles do not impede the relief sought through this suit—an action brought by the United States against the State of Texas itself. The United States has the authority and responsibility to ensure that Texas cannot insulate itself from judicial review for its constitutional violations and to protect the important federal interests that S.B. 8 impairs. Accordingly, this Court should enjoin enforcement of S.B. 8.
Here’s a portion of the argument around the problem of private plaintiff enforcement as a procedural impediment — the federal government has an independent interest that it can protect:
Texas’s primary tactic in the related litigation pending before the Fifth Circuit has been not to defend S.B. 8 on the merits but instead to contend that lawsuits filed to challenge the Act are procedurally flawed, principally arguing that the Ex parte Young exception to sovereign immunity is unavailable given S.B. 8’s novel enforcement scheme. That asserted procedural flaw is not implicated in this lawsuit, however, which is filed by the United States, and thus is not subject to the same jurisdictional hurdles that have thus far impeded other litigants. As explained below, the United States has the authority to sue the State of Texas, the State is a proper defendant against whom to seek relief, and this Court can enjoin Texas from enforcing S.B. 8 and thereby redress the United States’ injuries….This litigation implicates numerous federal interests, which support the authority of the United States to seek equitable relief in this Court.A suit by the United States in equity is appropriate based on the extraordinary facts of this case because Texas has sought to inhibit other pathways for federal judicial review of an enactment that clearly violates the constitutional rights of its citizens, thereby depriving individuals of an adequate and effective remedy at law. To begin, S.B. 8 is an extraordinary and unprecedented attempt to evade a State’s obligation to respect the Fourteenth Amendment through the mechanisms established by Congress. Texas has enacted a law that indisputably violates individuals’ constitutional rights, and has simultaneously structured that law to prevent the very individuals it injures from vindicating their rights through the established process of federal judicial review….S.B. 8 seeks to thwart the mechanisms established by Congress and to circumvent Texas’s obligation to respect the federal constitutional right to abortion within its borders, by removing enforcement responsibility from state executive officials, who would ordinarily be enjoined under the doctrine of Ex parte Young—and thus far, it has largely succeeded….The unique circumstances presented here—including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action—distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue….Thus, the United States has authority to bring this equitable suit against Texas for its violations of the Constitution and interference with the administration of federal programs.
Considering the “emergency,” the Court did not set a particularly aggressive schedule. The hearing will be on October 1.
After the Court entered the scheduling Order, DOJ filed a motion to expedite the hearing for September 21, arguing that there was an ongoing deprivation of constitutional rights:
6. At bottom, S.B. 8 has thus far succeeded in depriving women of their constitutional rights while preventing women and providers from successfully seeking an injunction of enforcement of this plainly unconstitutional law. Indeed, one clinic attested that without “court ordered relief in the next couple of weeks, S.B. 8 will shutter most if not all of the remaining abortion clinics in Texas.” Dkt. 6-6 at 10. Emergency relief is necessary to ensure that, in the weeks prior to a preliminary injunction hearing, the State cannot continue to disregard the Constitution and further endanger the operations of abortion providers in the State.
The Court denied the motion to expedite.
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