US District Court: Case 1:21-cv-00796-R&P
Western District of Texas Austin Division
United States of America v The State of Texas
Complaint dated 9 September 2021
Editorial Note:
How interesting. The Roe v Wade debate heads to the Western District of Texas District Court, and likely to the US Supreme Court, in an action commenced by Garland Merrick, as USA Attorney-General, seeking a declaration from the District Court, that Texas S.B.8 (the recent Texas law empowering private citizens to sue where an abortion takes place after a discernible heart beat, effectively preventing any abortion in Texas, seemingly in contravention of the principles set out by the Supreme Court in Roe v Wade) is unconstitutional, and a temporary and permanent injunction.
USA says:
It is settled constitutional law that “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); accord Roe v. Wade, 410 U.S. 113 (1973). But Texas has done just that. It has
enacted a statute banning nearly all abortions in the State after six weeks—months before a pregnancy
is viable. …..
Texas enacted S.B. 8 in open defiance of the Constitution. The statute prohibits most
pre-viability abortions, even in cases of rape, sexual abuse, or incest. It also prohibits any effort to
aid—or, indeed, any intent to aid—the doctors who provide pre-viability abortions or the women who
exercise their right to seek one. Because S.B. 8 clearly violates the Constitution, Texas adopted an
unprecedented scheme “to insulate the State from responsibility,”…. by making the statute
harder to challenge in court. Instead of relying on the State’s executive branch to enforce the law, as
is the norm in Texas and elsewhere, the State has deputized ordinary citizens to serve as bounty
hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who
facilitate a woman’s exercise of her constitutional rights. And Texas has mandated that its state judicial
officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably
burden constitutionally protected rights.
USA says, in the Complaint:
To quote Ted lasso, “I appreciate you”.
Looking forward to the next exciting instalment.
US District Court: Case 1:21-cv-00796-R&P
Western District of Texas Austin Division
United States of America v The State of Texas
Emergency Motion for Temporary Restraining Order dated 14 September 2021
Editorial Note:
So now the USA government (DOJ) seeks the Temporary Restraining Order in relation to its Action in the Western District of Texas District Court, seeking a declaration and injunctions to stop Texas S.B.8 (the recent Texas law empowering private citizens to sue where an abortion takes place after a discernible heart beat, effectively preventing any abortion in Texas, seemingly in contravention of the principles set out by the Supreme Court in Roe v Wade). The first big test.
USA argues:
USA puts the heart of its motion at the start:
Nearly fifty years ago, the Supreme Court held that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.” Roe v Wade …. Thirty years ago, the Court in Casey '"reaffirmed' 'the most central principle'" of Roe-"a woman's right to terminate her pregnancy before viability." …. Casey also reaffirmed Roe's "essential holding" recognizing the "right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure." …. The Fifth Circuit has likewise recognized that, "[i]n an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability." …. Indeed, the Fifth Circuit declared invalid a law enacted by Mississippi that, like S.B. 8, imposed a near-total ban on abortions after detection of a fetal heartbeat …. Other courts have done the same.
The substantive response from Texas will come soon, in response to this Emergency Motion.
Can’t wait.
US District Court: Case 1:21-cv-00796-R&P
Western District of Texas Austin Division (Judge Robert Pitman)
United States of America v The State of Texas
Temporary Restraining Order dated 6 October 2021
Editorial Note:
On 6 October 2021, the West Texas District Court granted the USA government (DOJ) Emergency Motion for a Temporary Restraining Order (Note: already an appeal has been filed in the Louisiana Circuit Court of Appeal), to stop Texas S.B.8 (the recent Texas law empowering private citizens to sue where an abortion takes place after a discernible heart beat, effectively preventing any abortion in Texas, seemingly in contravention of the principles set out by the Supreme Court in Roe v Wade).
The first big test.
USA had argued:
USA put the heart of its motion at the start:
Nearly fifty years ago, the Supreme Court held that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.” Roe v Wade …. Thirty years ago, the Court in Casey '"reaffirmed' 'the most central principle'" of Roe-"a woman's right to terminate her pregnancy before viability." …. Casey also reaffirmed Roe's "essential holding" recognizing the "right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure." …. The Fifth Circuit has likewise recognized that, "[i]n an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability." …. Indeed, the Fifth Circuit declared invalid a law enacted by Mississippi that, like S.B. 8, imposed a near-total ban on abortions after detection of a fetal heartbeat …. Other courts have done the same.
Texas had argued for dismissal:
Texas argued against the preliminary injunction motion:
Firstly, Judge Pitman found that USA had standing:
“For there to be a case, the plaintiff must have a ‘personal stake’ in the case. The plaintiff must show (i) that the injury it suffers is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”
USA had demonstrated that S.B.8 impeded the federal government’s ability to provide abortion-related services mandated by regulations, statutes, and case law, relying on examples of federal agencies impacted by S.B. 8 the Department of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and Medicaid Services, the Office of Personnel Management, and the Department of Defense.
The court concluded that USA did, in fact, suffer an injury such that it had standing to challenge a potential violation of Constitutional rights that not only impacts federal agencies, but the public at large, rejecting Texas’ argument that parens patriae standing is limited to state governments. Ultimately, the concluded that USA possessed an “indisputably sovereign interest sufficient to support its standing in the lawsuit.
The court concluded that, separately, the concepts underpinning In Re Debs ( an 1895 Supreme Court decision that a particular injury to sovereign interests of USA arose out of a rail strike giving USA the right to sue parties for injunctive relief as the strike was obstructing interstate commerce) that Debs supports standing where the government’s interest is preventing harms to “the general welfare” and the “public at large”, finding that USA had demonstrated that its interest in this case did relate to such harms.
His Honour concluded that S.B.8 caused the injury, finding that USA had established that the passgae of S.B.8 caused immediate injuries to interests of USA, including ensuring that federal agencies could follow statutes, regulations, and judicial decisions instructing them to provide abortion-related services without the agencies being subject to liability.
Secondly, Judge Pitman found that S.B. 8 was deliberately crafted to avoid redress through the courts, that .”this very unavailability of redress that makes an injunction the proper remedy—indeed, the only remedy for this clear constitutional violation”. His Honour concluded that traditional principles of equity allow the United States to seek an injunction to protect its sovereign rights, and the fundamental rights of its citizens under the circumstances present here.
Thirdly, Judge Pitman found that the Court has the authority to enjoin the State, its officials, and private individuals.
The court concluded, on the facts before the court, together with its analysis of the parties’ submissions:
“Indisputable, binding precedent holds that pre-viability bans on abortions are unconstitutional. Indeed, the Supreme Court has long held that “a State may not prohibit any man from making the ultimate decision to terminate her pregnancy before viability.””
The Temporary Restraining Order is now on appeal to Federal Court of Appeal.
Love or hate the result, this is ripping read, a wonderfully written judgment, delivered at light speed (filed on 9 September 2021, evidentiary and legal argument hearing on 1 October 2021, judgment delivered on 6 October 2021). Let’s see what the Court of Appeal has to say.