San Francisco – November 10, 2021 – Cooley has filed an amicus brief in Whole Woman's Health v. Jackson, one of the two cases currently before the Supreme Court challenging Texas Senate Bill 8 (SB 8), an unprecedented attempt to nullify the federal constitutional right to receive an abortion recognized in Roe v. Wade and Planned Parenthood v. Casey. Lawyers Kathleen Hartnett, Adam Gershenson, Julie Veroff, Patrick Hayden, Kelsey Spector, Marc Suskin, Rachel Thorn and Alessandra Vittoria Rafalson led the Cooley effort. The Supreme Court heard arguments on November 1, and a decision is forthcoming.
SB 8 bans abortions after just six weeks into pregnancy and months before viability, in clear violation of the rights recognized in Roe and Casey. However, unlike other abortion bans – and in an effort to avoid pre-enforcement constitutional review – SB 8 outsources enforcement to private citizens, who can win a minimum of $10,000 in damages if they successfully sue someone who performs a prohibited abortion or "knowingly engages in conduct that aids or abets" such an abortion. SB 8 also erects unique procedural barriers against those sued under SB 8, including suspending the normal rules of standing, allowing suit anywhere in Texas, removing key defenses and allowing one-sided fee shifting. In light of SB 8's structure, Texas argued that the only way for someone to challenge the law's application to them would be for a doctor to violate it and argue, as a defense, that the law is unconstitutional.
One of the challenges to SB 8, brought by Whole Woman's Health, a facility that performs abortions, seeks a pre-enforcement injunction against SB 8 by suing, among others, certain state officers. Whole Woman's Health argues that SB 8's intentional design, under which the state officers disclaim any role in enforcing the law, does not preclude federal court review of SB 8's constitutionality. As the Cooley amicus brief explains in support of Whole Woman's Health, SB 8's "official, state-sanctioned vigilantism is as unprecedented as it is unlawful." The other case, United States v. Texas, was brought by the US government to enjoin SB 8 in order to protect federal interests and secure the supremacy of federal law, with Texas arguing that the federal government has no basis for such a suit.
US Solicitor General and former Cooley partner Elizabeth Prelogar argued on behalf of the United States in United States v. Texas, urging the Supreme Court to exercise the federal courts' power to enjoin SB 8, arguing that "our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation."
Cooley has filed amicus briefs in two other Supreme Court cases this term addressing abortion restrictions:
- Dobbs v. Jackson Women's Health Organization: Cooley filed an amicus brief in the US Supreme Court on behalf of the International Federation of Gynecology and Obstetrics addressing the impact of abortion restrictions on women's health and well-being from a global perspective, including the disparate impact of such laws on marginalized communities. The brief demonstrates that restrictions do not decrease the number of overall abortions, but only increase the proportion of unsafe abortions.
- Cameron v. EMW Women's Surgical Center: Cooley filed an amicus brief in the US Supreme Court on behalf of well-regarded federal courts scholars, including Stephen Vladeck and Erwin Chemerinsky, among others, addressing civil procedure and jurisdictional issues in a case regarding a Kentucky abortion law.
