Citing threats to constitutional rights and the rule of law—as well as harms to health and wellbeing—experts in constitutional law, health care, government, and civil rights filed amicus briefs in support of two cases challenging Texas’s extreme abortion ban.
The cases —Whole Woman’s Health v. Jackson, filed by the Center for Reproductive Rights and its partners, and United States v. Texas, filed by the U.S. Department of Justice— are being argued at the U.S. Supreme Court on Monday, November 1, 2021.
The Texas law, S.B. 8, bans abortion care after approximately six weeks of pregnancy—before many know they’re pregnant—and incentivizes individuals to seek monetary penalties by suing anyone who provides an abortion or assists someone in obtaining one after the law’s limit.
The ban took effect on September 1 and has ended most abortion access in the state.
Amicus briefs—also known as “friend of the court” briefs—were submitted by over 22 State Attorneys General, 30 local governments, and 128 current and former prosecutors and law enforcement leaders, legal scholars, and civil rights organizations— just one week after the Court announced it would hear the cases on an expedited basis. Find the briefs and their summaries here.
In Whole Woman’s Health v. Jackson, the Supreme Court will decide whether federal courts have the power to review Texas’s law, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.
In United States v. Texas, the Court will decide whether to reinstate the order by the federal district court blocking the Texas law and whether the United States government has the authority to bring this case against the state of Texas.
Highlights of select briefs and their arguments include:
- Current and Former Prosecutors and Law Enforcement Leaders: S.B. 8 is a blatant evasion of federal authority and allowing this scheme to remain in place threatens the rule of law.
- Local Governments: The Constitution does not permit Texas to deputize individual enforcement that will both deny pregnant people their constitutional right and impose harms on local governments that strive to ensure access to that right.
- State Attorneys General: S.B. 8 is unconstitutional, disregards the Court’s precedent and represents an attack on the rule of law.
- Leading Medical Associations and the Texas Medical Association: The Texas abortion ban is contrary to patient health, well-settled law, and core principles of medical ethics and it interferes with the patient-clinician relationship.
- American Bar Association: The federal government’s enforcement of constitutional rights is a cornerstone of federal constitutional order and essential to the rule of law.
- Constitutional Accountability Center: Federal judicial review of a state action designed to undermine federal rights is necessary to our constitutional system and the U.S. has the power to defend its sovereign interests in maintaining the supremacy of federal law over harmful and unconstitutional laws like S.B. 8.
- Constitutional Law, Federal Courts, Civil Rights, and Civil Procedure Scholars: In seeking to deprive individuals of their constitutional rights and access to the federal courts, S.B. 8 subverts the purpose of Section 1983 of the Civil Rights Act and undermines the supremacy of federal law. (Section 1983 was enacted in response to state-sanctioned vigilantism during the Reconstruction era that violated federal constitutional rights.)
- Constitutional Scholars: Texas’s transparent scheme to evade judicial review of S.B. 8 represents an exceptional circumstance that the U.S. has standing to challenge. If allowed to stand, it would lead to intimidation and denial of other constitutional rights.
- Lawyers’ Committee for Civil Rights Under Law and 11 Other Civil Rights Organizations: States should not be allowed to circumvent Section 1983’s promise of accountability by delegating enforcement of unconstitutional schemes to private parties, as Texas’s scheme sets out to do, and if S.B. 8’s enforcement model is upheld a range of rights that would be at risk.
- Legal Scholars: S.B. 8’s enforcement scheme violates due process and sets a dangerous precedent that is already being copied to other areas of constitutional rights, with grave implications for constitutional governance and the rule of law.
- NAACP Legal Defense & Educational Fund: Inaction by the Supreme Court would threaten to upend all manner of constitutional rights and protections and allow S.B. 8 to continue to disproportionately burden Black people, Latino people, and other low-income people.