Paul, Weiss Files Amicus Brief in Support of Texas Abortion Providers’ U.S. Supreme Court Challenge of Texas Anti-Abortion Law

Paul, Weiss and the Lawyers’ Committee for Civil Rights Under Law filed an amicus brief on behalf of the Lawyers’ Committee and 11 other civil rights organizations in Whole Woman’s Health v. Jackson. The brief urges the Court to block a Texas law that defies 50 years of Supreme Court precedent affirming the constitutional right to terminate a pregnancy before viability.

The law in question, S.B. 8, bans all abortions after a physician detects a so-called fetal heartbeat—usually around the sixth week of pregnancy, before many women are even aware of a pregnancy. But unlike similar bans in other states, the law was designed to evade judicial review by deputizing private citizens, rather than state officials, to enforce it; S.B. 8 creates a civil right of action authorizing the general public to sue anyone who provides an abortion, “aids or abets” such an abortion or intends to engage in such conduct. Among other things, S.B. 8 allows vigilante private plaintiffs to collect at least $10,000 in damages, plus attorney’s fees and costs, from the defendant, does not require that the vigilante plaintiff reside in Texas, and does not limit how many civil suits can be brought against a single defendant in connection with a single abortion—all of which unequivocally expose abortion providers and their allies to potentially crippling liability. In a bid to make it more difficult to obtain injunctive relief blocking the law, S.B. 8 also purports to restrict constitutional and procedural defenses, limits the preclusive effects of certain court rulings, and imposes retroactive liability for abortion care provided while the law is enjoined, if such an injunction is later overturned.

A coalition of abortion providers challenged S.B. 8 in July 2021. However, only three days before the district court’s scheduled hearing on preliminary injunctive relief, the Fifth Circuit stayed the proceedings. The providers next unsuccessfully sought emergency pre-enforcement relief from the Supreme Court. On September 1, S.B. 8 went into effect, creating a crisis for abortion providers in Texas and neighboring states, and leaving Texans who lack the means to travel to obtain abortion care with few options other than taking matters into their own hands or carrying an involuntary pregnancy to term. On October 22, the Supreme Court granted the providers’ petition for a writ of certiorari before judgment, agreeing to hear the case on an expedited basis without awaiting a further ruling on the merits of the providers’ appeal from the Fifth Circuit. The Supreme Court also agreed to review a challenge to S.B. 8 brought by the United States.

On the evening of Saturday, October 23—only four days before the filing deadline for the parties and amici curiae to file their submissions—Paul, Weiss was retained by the Lawyers’ Committee to draft an amicus brief in support of the providers’ challenge. In the brief, the Lawyers’ Committee and other civil rights organizations argue forcefully that Congress’s enforcement power under the Reconstruction Amendments, now codified as Section 1983 of Title 42 of the U.S. Code, provides a broad remedy that was intended to apply precisely in this situation. Section 1983 was enacted in response to Southern states’ inaction and complicity in the face of a concerted campaign of terror to deter Black Americans from the voting polls and interfere with their exercise of federal civil rights. One hundred fifty years later, S.B. 8 mirrors Reconstruction-era laws enacted in Southern states that criminalized petty crimes, such as vagrancy, and provided financial incentives for citizens’ arrests of Black people who violated state law. S.B. 8’s scheme of state-sanctioned private vigilantism to thwart a constitutional right is well within the scope of threats Section 1983 was meant to combat. If S.B. 8’ stratagem to evade judicial review is allowed to stand, no federal right would be safe from similar attacks by other states, including the constitutional rights and landmark civil rights statutes that amici work to vindicate.

Supreme Court oral argument is scheduled for November 1. The Paul, Weiss team that drafted the amicus brief includes litigation partner Claudia Hammerman, of counsel Sidney Rosdeitcher and associates Melina Meneguin Layerenza, James Mandilk, Matteo Godi, Amanda Valerio and Sander Saba.

» read the amicus brief