Government Moves to Lift Stay on S.B. 8 Injunction

On Monday, an application was filed before the Supreme Court of the United States to restore a preliminary injunction that blocks enforcement of Texas’s controversial S.B. 8 abortion restrictions.

Procedurally, the filing seeks to vacate a stay on a preliminary injunction; the stay was imposed by the Fifth Circuit Court of Appeals. This preliminary injunction would have halted the enforcement of Texas S.B. 8, in regards to the ban on abortion absent very restrictive time limitations and physical markers.

The applicants, the United States, argue that S.B. 8 is unconstitutional on its face, and that the bill acts in an area that has been occupied by federal precedent. The stay from the Fifth Circuit specifically states that the stay should be granted due to the parties involved in the suit having sovereign immunity from prosecution on this issue. The plaintiff argues this doctrine is misapplied, as the party in this suit is the state of Texas as a whole, not individual governmental entities that are subject to sovereign immunity in their roles as government actors. In the absences of this sovereign immunity and in the absence of any other argument given by the Fifth Circuit, the plaintiff argues that the stay was improperly applied and should be lifted, allowing the preliminary injunction to stand while the constitutionality of the bill is determined at trial.

The plaintiff also argues that the original injunction is valid and should be permitted to take effect, noting that preliminary injunctions are considered appropriate when the party seeking the injunction is likely to prevail in the final decision. The United States notes that the restrictions of S.B. 8 do not comport with the court precedent in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

The plaintiff specifically argues that this violates the Supremacy Clause.  The bill also does not provide safe harbor for federal employees who might be affected by the provisions of S.B. 8 in the course of their roles as federal employees, such as prison employees. This is specifically noted to violate the intergovernmental immunity doctrine.

The applicant is specifically requesting the injunction be in effect until the Fifth Ciruit, and, potentially, the Supreme Court itself, hears the case.