United States v. Texas ( 2021 )


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  •                    Cite as: 595 U. S. ____ (2021)              1
    S
    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 21A85 (21-588)
    _________________
    UNITED STATES v. TEXAS, ET AL.
    ON APPLICATION TO VACATE STAY AND PETITION FOR WRIT
    OF CERTIORARI BEFORE JUDGMENT
    [October 22, 2021]
    Consideration of the application (21A85) to vacate stay
    presented to Justice Alito and by him referred to the Court
    is deferred pending oral argument.
    In addition, the application is treated as a petition for a
    writ of certiorari before judgment, and the petition is
    granted limited to the following question: 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.
    The briefs of the parties in No. 21-588, limited to 13,000
    words, are to be filed electronically on or before 5 p.m.,
    Wednesday, October 27, 2021. Reply briefs, if any, limited
    to 6,000 words, are to be filed electronically on or before 5
    p.m., Friday, October 29, 2021. Any amicus curiae briefs
    are to be filed electronically on or before 5 p.m., Wednesday,
    October 27, 2021. Booklet format briefs prepared in com-
    pliance with Rule 33.1 shall be submitted as soon as possi-
    ble thereafter. The parties are not required to file a joint
    appendix.
    The case is set for oral argument on Monday, November
    1, 2021.
    JUSTICE SOTOMAYOR, concurring in part and dissenting
    in part.
    For the second time, the Court is presented with an ap-
    plication to enjoin a statute enacted in open disregard of the
    2                 UNITED STATES v. TEXAS
    S
    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    constitutional rights of women seeking abortion care in
    Texas. For the second time, the Court declines to act im-
    mediately to protect these women from grave and irrepara-
    ble harm.
    The Court is right to calendar this application for argu-
    ment and to grant certiorari before judgment in both this
    case and Whole Woman’s Health v. Jackson, No. 21–463, in
    recognition of the public importance of the issues these
    cases raise. The promise of future adjudication offers cold
    comfort, however, for Texas women seeking abortion care,
    who are entitled to relief now. These women will suffer per-
    sonal harm from delaying their medical care, and as their
    pregnancies progress, they may even be unable to obtain
    abortion care altogether. Because every day the Court fails
    to grant relief is devastating, both for individual women
    and for our constitutional system as a whole, I dissent from
    the Court’s refusal to stay administratively the Fifth Cir-
    cuit’s order.
    I
    Texas Senate Bill 8 (S. B. 8 or the Act) imposes a near-
    categorical ban on abortions beginning six weeks after a
    woman’s last menstrual period, before many women even
    realize they are pregnant. Whole Woman’s Health v. Jack-
    son, 594 U. S. ___, ___ (2021) (SOTOMAYOR, J., dissenting).
    This is patently unconstitutional. See, e.g., June Medical
    Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020)
    (ROBERTS, C. J., concurring in judgment); Planned
    Parenthood of Southeastern Pa. v. Casey, 
    505 U. S. 833
    (1992); Roe v. Wade, 
    410 U. S. 113
     (1973). Rather than au-
    thorizing state officials to enforce this illegal law, the Act
    deputizes ordinary citizens as bounty hunters, offering
    $10,000 in damages (plus attorney’s fees and costs) to any-
    one who sues a person who provides an abortion in violation
    of S. B. 8, “aids or abets” such an abortion, or intends to
    engage in such conduct. Tex. Health & Safety Code Ann.
    Cite as: 595 U. S. ____ (2021)             3
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    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    §§171.208(a), (b)(3) (West 2021). The legislature designed
    this scheme to make it more complicated to enjoin the Act.
    Whole Woman’s Health, 594 U. S., at ___ (ROBERTS, C. J.,
    dissenting). To that end, S. B. 8 also purports to restrict
    constitutional and procedural defenses, limit the preclusive
    effect of court rulings, and impose retroactive liability for
    services provided while the Act is enjoined if the injunction
    is later overturned. See 
    Tex. Health & Safety Code Ann. §§171.208
    (e)(3)–(5), 171.209.
    In July 2021, abortion providers and advocates filed suit
    to challenge S. B. 8. As relevant, they sought to prevent
    Texas judges and court clerks from accepting S. B. 8 suits.
    Three days before the District Court’s scheduled hearing on
    preliminary injunctive relief, a panel of the Fifth Circuit
    stayed the proceedings. The plaintiffs applied to this Court
    for emergency relief. S. B. 8 took effect on September 1, and
    this Court denied relief that evening. See Whole Woman’s
    Health, 594 U. S., at ___. The Fifth Circuit later opined that
    “[p]laintiffs’ claims against a state judge and court clerk are
    specious” on the view that the Ex parte Young exception to
    state sovereign immunity “explicitly excludes judges from
    the scope of relief it authorizes.” Whole Woman’s Health v.
    Jackson, 
    13 F. 4th 434
    , 443 (2021) (citing Ex parte Young,
    
    209 U. S. 123
    , 163 (1908)). As a result, in the Fifth Circuit’s
    estimation, the abortion providers could not win relief from
    the law.
    State sovereign immunity, however, poses no bar to a
    challenge by the United States. See Alden v. Maine, 
    527 U. S. 706
    , 755 (1999). Accordingly, after this Court issued
    its order in Whole Woman’s Health, the United States filed
    the present suit. On October 6, the District Court issued a
    113-page opinion in which it thoroughly considered and
    carefully addressed the procedural questions presented,
    held this case justiciable, and enjoined the Texas law. ___
    F. Supp. 3d ___, 
    2021 WL 4593319
     (WD Tex. 2021). But a
    divided Fifth Circuit panel granted the State’s request for
    4                  UNITED STATES v. TEXAS
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    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    a stay pending appeal. 
    2021 WL 4786458
    , *1 (2021) (per cu-
    riam). Despite the fact that the instant suit presents dis-
    tinct issues from those raised in Whole Woman’s Health, the
    Fifth Circuit majority relied entirely on rulings from that
    litigation. The totality of its reasoning was as follows: “The
    emergency motions to stay the preliminary injunction pend-
    ing appeal are granted for the reasons stated in Whole
    Woman’s Health v. Jackson, 
    13 F. 4th 434
     (5th Cir. 2021),
    and Whole Woman’s Health v. Jackson, [594 U. S. ___]
    (2021).” 
    2021 WL 4786458
    , *1.
    II
    Recognizing that Texas’ scheme raises concerns of imper-
    ative public importance, the Court properly grants certio-
    rari before judgment. See this Court’s Rule 11. 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 delay-
    ing any remedy, the Court enables continued and irrepara-
    ble harm to women seeking abortion care and providers of
    such care in Texas—exactly as S. B. 8’s architects intended,
    see infra, at 6–7. Whatever equities favor caution in stay-
    ing a state law under normal circumstances cannot out-
    weigh the total and intentional denial of a constitutional
    right to women while this Court considers the serious ques-
    tions presented.
    The District Court concluded that S. B. 8 “ ‘has had an
    immediate and devastating effect on abortion care in
    Texas.’ ” 
    2021 WL 4593319
    , *36. That is because the Act’s
    chilling effects “operate . . . as an effective deterrent to pro-
    vision of pre-viability abortion services in Texas, precluding
    the vast majority of individuals from accessing this consti-
    tutional right” and causing a “dismantling of the provider
    network” across the State. 
    Id., at *38
    . Before the District
    Court, Texas identified only one abortion that had occurred
    in the State beyond S. B. 8’s unlawful 6-week restriction
    Cite as: 595 U. S. ____ (2021)                    5
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    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    since the law took effect. 
    Id., at *41
    . The court explained
    that most abortion patients in Texas first seek care more
    than six weeks after their last menstrual periods. 
    Id., at *2
    . The court thus found that S. B. 8 has prohibited as
    many as 95% of abortions previously provided in the State.
    
    Id., at *40
    ; see Whole Woman’s Health, 594 U. S., at ___
    (SOTOMAYOR, J., dissenting) (slip op., at 2) (warning that
    S. B. 8 would “immediately prohibi[t] care for at least 85%
    of Texas abortion patients and . . . force many abortion clin-
    ics to close”).
    On a human level, the District Court relied on credible
    declarations that described the threat of liability under
    S. B. 8 as “nothing short of agonizing” for abortion care pro-
    viders. 
    2021 WL 4593319
    , *38 (internal quotation marks
    omitted). Providers are “seriously concerned that even
    providing abortions in compliance with S. B. 8 will draw
    lawsuits from anti-abortion vigilantes or others seeking fi-
    nancial gain.” 
    Ibid.
     (internal quotation marks omitted).
    Patients are “devastated” to learn they cannot access care,
    and the “turmoil” caused by the Act leaves them “panicked,
    both for themselves and their loved ones.” 
    Id., at *40
     (in-
    ternal quotation marks omitted).* Even among the few
    women who are able to receive abortion services in Texas,
    S. B. 8 pushes patients “to make a decision about their abor-
    tion before they are truly ready to do so.” 
    Ibid.
     (internal
    quotation marks omitted).
    The District Court rejected the State’s claim that Texas
    residents could travel to other States to access abortion
    ——————
    * The harm to vulnerable populations is especially acute. For example,
    because Texas’ judicial bypass process for minors seeking abortion care
    “cannot realistically happen” before six weeks after the last menstrual
    period, S. B. 8 forces pregnant minors who cannot confide in their fami-
    lies (and unaccompanied migrant teenagers who cannot reach their fam-
    ilies) to choose between “carry[ing] to term” and “tak[ing] matters into
    their own hands.” 
    2021 WL 4593319
    , *40, and n. 62 (internal quotation
    marks omitted).
    6                 UNITED STATES v. TEXAS
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    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    care. 
    Id., at *41
    . To be sure, the court agreed, “[p]regnant
    people from Texas are scared and are frantically trying to
    get appointments” in other States. 
    Id., at *43
     (internal quo-
    tation marks omitted). The court found, however, that
    many patients are unable to seek out-of-state care based on
    financial constraints, dangerous family situations, immi-
    gration status, or other reasons. 
    Id., at *42
    . These individ-
    uals “are being forced to carry their pregnancy to term
    against their will or to seek ways to end their pregnancies
    on their own.” 
    Id., at *41
     (internal quotation marks omit-
    ted).
    The court also found that patients who are able to leave
    Texas have encountered restrictions and backlogs exacer-
    bated by S. B. 8, citing evidence of the Act’s “stunning” and
    “crushing” impacts on clinics in Oklahoma, Kansas, Colo-
    rado, New Mexico, and Nevada. 
    Id.,
     at *43–*45. An Okla-
    homa provider, for example, reported a “staggering 646%
    increase of Texan patients per day,” occupying between 50%
    and 75% of capacity. 
    Id., at *43
     (internal quotation marks
    omitted). A Kansas clinic similarly reported that about half
    of its patients now come from Texas. 
    Id., at *44
    . The Dis-
    trict Court found that this “constant stream of Texas pa-
    tients has created backlogs that in some places prevent res-
    idents from accessing abortion services in their own
    communities.” 
    Id., at *45
    .
    I cannot capture the totality of this harm in these pages.
    But as these excerpts illustrate, the State (empowered by
    this Court’s inaction) has so thoroughly chilled the exercise
    of the right recognized in Roe as to nearly suspend it within
    its borders and strain access to it in other States. The
    State’s gambit has worked. The impact is catastrophic.
    These ruinous effects were foreseeable and intentional.
    Were there any doubt, proponents of S. B. 8 have boasted
    in this very litigation that “Texas has boxed out the judici-
    ary” and crowed that “[a]bortion . . . is a court-invented
    Cite as: 595 U. S. ____ (2021)            7
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    Opinion of S, OTOMAYOR
    OTOMAYOR     J., dissenting
    , J.
    right that may not even have majority support on the cur-
    rent Supreme Court.” Reply Brief for Intervenors in No.
    21–50949 (CA5), pp. 3, 4; see also 
    id., at 4
     (“The Supreme
    Court’s interpretations of the Constitution are not the Con-
    stitution itself—they are, after all, called opinions”).
    There is no dispute that under this Court’s precedents,
    women have a constitutional right to seek abortion care
    prior to viability. As noted, S. B. 8 was created to frustrate
    that right by raising seemingly novel procedural issues, and
    it has had precisely the intended effect. Under such unique
    circumstances, the equities plainly favor administrative re-
    lief while this Court sorts out these issues. Every day that
    S. B. 8 remains in effect is a day in which such tactics are
    rewarded. And every day the scheme succeeds increases
    the likelihood that it will be adapted to attack other federal
    constitutional rights.
    *     *   *
    There are women in Texas who became pregnant on or
    around the day that S. B. 8 took effect. As I write these
    words, some of those women do not know they are pregnant.
    When they find out, should they wish to exercise their con-
    stitutional right to seek abortion care, they will be unable
    to do so anywhere in their home State. Those with suffi-
    cient resources may spend thousands of dollars and multi-
    ple days anxiously seeking care from out-of-state providers
    so overwhelmed with Texas patients that they cannot ade-
    quately serve their own communities. Those without the
    ability to make this journey, whether due to lack of money
    or childcare or employment flexibility or the myriad other
    constraints that shape people’s day-to-day lives, may be
    forced to carry to term against their wishes or resort to dan-
    gerous methods of self-help. None of this is seriously in dis-
    pute.
    These circumstances are exceptional. Women seeking
    abortion care in Texas are entitled to relief from this Court
    now. Because of the Court’s failure to act today, that relief,
    if it comes, will be too late for many. Once again, I dissent.
    

Document Info

Docket Number: 21A85

Judges: Sonia Sotomayor

Filed Date: 10/22/2021

Precedential Status: Relating-to orders

Modified Date: 10/22/2021