In The Supreme Court of the United States

[Pages:23]No. 21-463

In The Supreme Court of the United States

WHOLE WOMAN'S HEALTH, et al.,

Petitioners, v.

AUSTIN REEVE JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, et al.,

Respondents.

On Writ of Certiorari before Judgment to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF FIREARMS POLICY COALITION AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ERIK S. JAFFE Counsel of Record SCHAERR|JAFFE LLP 1717 K Street, NW, Suite 900 Washington, DC 20006 (202) 787-1060 ejaffe@schaerr-

Counsel for Amicus Curiae

TABLE OF CONTENTS Table of Authorities.....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of Argument................................................ 1

Argument ..................................................................... 4

I. Chilling the Exercise of a Constitutional Right Constitutes Present Infringement for Which There Must Be Present Redress. ............................................................. 4

II. The Approach Used by Texas Could Be Used Against Numerous Other Constitutional Rights and With Even More Abusive Deterrents. ................................ 9

III.A Pre-Enforcement Suit Against the Threatened Enforcement of S.B. 8 Can Proceed Under a Variety of Approaches. ....... 13

Conclusion.................................................................. 18

ii TABLE OF AUTHORITIES Cases Alabama v. Smith, 490 U.S. 794 (1989) ..................... 6 Caetano v. Massachusetts, 577 U.S. 411 (2016) ....... 10 Citizens United v. FEC, 558 U.S. 310 (2010) ............. 6 City of Houston v. Hill, 482 U.S. 451 (1987) .............. 8 Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 8 Edelman v. Jordan, 415 U.S. 651 (1974).................... 5 Hans v. Louisiana, 134 U.S. 1 (1890) ....................... 16 John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ............. 5 Laird v. Tatum, 408 U.S. 1 (1972) .............................. 5 Loving v. Virginia, 388 U.S. 1 (1967) ....................... 11 McDonald v. Chicago, 561 U.S. 742 (2010) .............. 17 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................................. 7 North Carolina v. Pearce, 395 U.S. 711 (1969) .......... 6 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ............................................ 11 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) .................................................. 5 Reno v. ACLU, 521 U.S. 844 (1997) ............................ 6 Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 5 Shelley v. Kraemer, 334 U.S. 1 (1948) ........................ 7 Steffel v. Thompson, 415 U.S. 452 (1974) ................... 6 Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).......................... 5 Timbs v. Indiana, 139 S. Ct. 682 (2019) ................... 17 United States v. Jackson, 390 U.S. 570 (1968)........... 5 Virginia v. Hicks, 539 U.S. 113 (2003) ....................... 6

iii TABLE OF AUTHORITIES (CONT'D)

Constitutional Provisions U.S. CONST., amend. XIV .......................................... 17 Statutes N.Y. GEN. BUS. LAW ? 898-a(4).................................... 9 N.Y. GEN. BUS. LAW ? 898-b(1).................................. 10 N.Y. GEN. BUS. LAW ? 898-e ........................................ 9 Other Authorities Andrew B. Coan, Text as Truce: A Peace

Proposal for the Supreme Court's Costly War Over the Eleventh Amendment, 74 Fordham L. Rev. 2511 (2006) ........................... 17 John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663 (2004) ...................................... 16 James Sample, Textual Rights, Living Immunities, 41 S. Ill. U. L.J. 29 (2016)...................................... 17

INTEREST OF AMICUS CURIAE1

The Firearms Policy Coalition, Inc. (FPC) is a nonprofit membership organization that works to defend constitutional rights and promote individual liberty, including the right to keep and bear arms and the freedom of speech, throughout the United States. FPC engages in direct and grassroots advocacy, research, legal efforts, outreach, and education to this end.

FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right. FPC takes no position on whether abortion should be protected by the Constitution but believes that judicial review of restrictions on even disputed constitutional rights as defined and protected under this Court's cases cannot be circumvented in the manner used by Texas.

SUMMARY OF ARGUMENT

This case in its current posture is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no po-

1 This brief is submitted pursuant to the written blanket consent of all parties. No counsel for a party authored this brief in whole or in part, nor did any person or entity, other than Amicus or its counsel, make a monetary contribution intended to fund the preparation or submission of this brief. Amicus is not publicly traded and has no parent corporations, and no publicly traded corporation owns 10% or more of Amicus.

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sition on such questions, which are before this Court in other cases. Rather, this case is about how far a State may go in deterring the exercise of any and all individual constitutional rights, as such rights are determined by this Court's cases. Texas's novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court's Roe and Casey decisions, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms.

1. Laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present redress without having to absorb the tremendous costs and risks of putting their heads on the proverbial chopping block by violating those laws and hoping for eventual vindication. Even where the risk derives from prospective litigation initiated by private parties invoking state law, such risks are still the product of state action in adopting and implementing the law. Whether the relevant state actors are the "deputized" potential plaintiffs and/or the court officials and jurists that wield the power of government at every stage of the litigation process, the chilling of protected conduct is the consequence of invoking state power to such ends, wholly apart from the outcome in any particular case. Indeed, the Texas law is designed precisely to have that effect, biasing the playing field in a manner that likely violates due process, the right to petition, and var-

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ious other provisions of the Constitution wholly apart from its restriction on abortion. In such circumstances, there should be no serious barrier to enjoining any and all state actors or agents who facilitate or play a role in such a farce.

2. If Texas's scheme for postponing or evading federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms. Other States will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who marry someone of the "wrong" sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct. And, if Texas's avoidance of pre-enforcement review succeeds, there is no reason to think the deterring penalties couldn't be made even more draconian. The precedent this law sets as a model for deterring the exercise of any and all rights amply illustrates why it is impermissible.

3. There are a variety of paths for allowing a preenforcement challenge to proceed in this case. The simplest path is the one suggested by petitioners ? a suit against those state employees and officials most instrumental in giving force and effect to the threat Texas levels against the exercise or facilitation of federal constitutional rights. Any concerns with

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ripeness are misplaced given that the imminent threat of litigation, even if not the specific litigants, is palpable and already having an immediate deterrent effect. That litigants have yet to exercise their delegated authority to sue under this scheme makes no more difference than if a prosecutor had yet exercised his or her authority to bring charges under a facially unconstitutional statute.

Alternatively, this Court could recognize the option of a suit against a defendant class of all persons empowered to act under the Texas law. If Texas is going to delegate the government function of enforcing the law to its residents, then those residents should also be subject to collective suit as the agents or functional contractors of the State.

Finally, if this Court views any of its precedents as a barrier to suit here, the solution is simple: expand the court-created work-around in Ex parte Young or just overrule Hans v. Louisiana to allow direct suit by a State's citizens against a State that "make[s] or enforce[s]" laws violating the privileges or immunities of those within their State. Such cases strayed from the text, structure, and logic of the Constitution and their errors should not be compounded by driving the train of misdirected precedent off the cliff proposed by Texas.

ARGUMENT

I. Chilling the Exercise of a Constitutional Right Constitutes Present Infringement for Which There Must Be Present Redress.

That the deterrence or "chill" of constitutionally protected activity constitutes an infringement of con-

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