Texas and its supporting intervenors have just filed their oppositions to the Department of Justice’s request that the Supreme Court vacate the Fifth Circuit’s stay pending appeal of the district judge’s preliminary injunction against Texas’s enforcement of the Texas Heartbeat Act. DOJ also invited the Court to treat its request as a petition for certiorari before judgment. In response, Texas and its supporting intervenors have invited the Court to treat their oppositions as conditional cross-petitions for certiorari asking the Court to overturn Roe v. Wade and Planned Parenthood v. Casey.

I offer below an excerpt from Texas’s opposition. The intervenors’ opposition is also definitely worth reading, and I will excerpt it in a separate post.

Those following this matter closely will also find of interest this blog post by law professor Sam Bray, an expert in the field of equity. Bray concludes that the district judge’s effort to distinguish Grupo Mexicano v. Alliance Bond Fund “runs off the rails,” offers an “impossible reading” of the case, and “is startling and implausible.”

Texas:

The federal government failed to learn the lessons of the Fifth Circuit’s decision in Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021) (Jackson I), and this Court’s decision in Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Jackson II). Texas executive officials do not enforce SB 8, and Texas’s judicial branch is not adverse to litigants who appear before it and who believe SB 8 is unconstitutional. As there is therefore no state executive or judicial official who can be enjoined, there is no Article III case or controversy in which a federal court may enter an injunction.
The federal government appears to believe that it can fix this defect by swapping out the named officials for the “State of Texas.” But “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Jackson II, 141 S. Ct. at 2495. The district court’s injunction against the State must still operate against individuals, Nken v. Holder, 556 U.S. 418, 428 (2009)—none of whom enforce SB 8.
But that is not even the beginning of the problems with the federal government’s lawsuit. Under binding case law, the federal government is not adverse to Texas merely because it thinks a Texas law is unconstitutional. And it lacks standing because it has not been injured by SB 8. The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion. Thus, the theory of standing found in In re Debs, 158 U.S. 564 (1895), is inapplicable. And its speculation that SB 8 may adversely affect various federal programs is just that—speculation unsupported by the government’s own witnesses….
And even if the federal government could establish standing, it can point to no doctrine that allows a federal district court to enjoin the entire Texas judicial system and millions of individuals who were not parties….
Aside from these jurisdictional and prudential problems with even entertaining this suit, the federal government lacks an equitable cause of action to sue Texas in these circumstances. Precedent squarely forecloses the federal government’s effort to vindicate its citizens’ Fourteenth Amendment rights, and the federal government cannot avoid that conclusion by recasting its claim as a “sovereign injury” caused by Texas’s “nullification” of this Court’s precedent. Behind the artful pleading, this is still an effort to bring Fourteenth Amendment claims on behalf of a subset of women in Texas. But it is also nonsensical: the only right that is supposedly nullified is the right to litigate a constitutional question as a federal-court plaintiff rather than a state-court defendant. The federal government can point to no case from this Court recognizing any such right.