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Greetings, Court Fans!

On Friday, the Court issued its second signed opinion of the term, and it was the decision we all thought was going to be OT21’s first: Whole Women’s Health v. Jackson, No. 21-463. As we previewed last time, the case involves two challenges to a recently enacted Texas law, S.B.8, which generally prohibits physicians from performing abortions if the physician detects a fetal heartbeat. Because the law effectively bans abortion after the sixth week of pregnancy, it’s in clear conflict with the Supreme Court’s decisions in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). But the issue before the Court in Whole Women’s Health was not whether S.B. 8 was constitutional, but whether the law could be challenged at all given its unique enforcement mechanism: Unlike most statutes, which task state executive officials with bringing civil or criminal proceedings to enforce it, S.B. 8 prohibits state actors from enforcing it and instead empowers private citizens to do so by bringing statutory suits for damages against those who perform or assist with prohibited abortions. In a 5-4 decision, with the Chief joining the more liberal justices in dissent, the Court concluded that this novel procedural enforcement mechanism barred a pre-enforcement challenge to S.B. 8 against most of the defendants named in the suit, while allowing the providers’ suit to proceed against one narrow class of defendants (an opening that may well prove illusory or meaningless). Thus, while any defendant sued for violating S.B. 8 in state court will be able to assert federal constitutional defenses (including that the statute violates Roe and Casey), the law’s constitutionality likely cannot be litigated through a pre-enforcement suit seeking to enjoin it.

Because this case is all about procedural details, understanding it requires a bit of background. As noted, S.B. 8 prohibits physicians from performing or inducing abortion after a fetal heart beat is detected. But unlike basically any prior law regulating abortion (or anything else, really), its only enforcement mechanism is “private civil actions.” Specifically, it allows anyone to bring a lawsuit in Texas state court against any person who performs or makes possible an abortion in violation of S.B. 8. And it authorize successful plaintiffs in such suits to recover damages of at least $10,000, get their attorneys’ fees, and obtain injunctions. This novel enforcement process was specifically designed to evade judicial review by making it harder to bring a pre-enforcement suit seeking to enjoin the law. In most cases where a state statute is alleged to be unconstitutional, plaintiffs can seek an injunction against state officials—like the state attorney general—tasked with enforcing the law through civil or criminal proceedings. But because Texas executive branch officials have no role in enforcing S.B. 8, it’s not clear who a plaintiff would have to sue in order to have the law enjoined.

Before S.B. 8 was enacted, a group of Texas clinics and other abortion providers tried to answer that question by suing four groups of defendants in federal court. First, they sued a state-court judge and a state-court clerk, who would be responsible for deciding or docketing any private enforcement actions under S.B.8. Second, they sued Texas’s attorney general, who could bring civil enforcement actions related to medical licensing (and thus might be able to indirectly enforce the law). Third, they sued various Texas executive branch officials responsible for licensing medical providers, who could bring enforcement actions against alleged violators of the law. And fourth, they sued a guy named Mark Dickson, an anti-abortion activist who had suggested he might bring a private enforcement action under S.B. 8. The judge and the clerk moved to dismiss the suit based on sovereign immunity and standing and, when the district court denied their motion, they appealed. The Fifth Circuit then stayed all district-court proceedings, including a scheduled hearing where the court was set to decide whether to issue an emergency injunction against the law taking effect. The providers sought emergency relief from the Supreme Court, but in a one-paragraph unsigned order, the Court’s conservative majority declined to vacate the Fifth Circuit’s stay due to the “complex and novel” questions created by S.B. 8’s enforcement mechanism. So, despite the fact that everyone agrees the law violates Roe and Casey, it was permitted to go into effect. But the Court did expedite its review, granting certiorari before judgment in Whole Women’s Health and a companion case United States v. Texas (No. 21-588), which was brought by the Attorney General.  

The Court heard argument in November and issued its decision six weeks later. Writing for the Court’s five most conservative members, Justice Gorsuch found that most of the defendants were not proper defendants in a suit seeking to enjoin S.B. 8. Start with the state judge and the state clerk: The providers argued they could be enjoined from docketing or deciding private civil enforcement actions. But under the Eleventh Amendment, state and state officials are generally immune from suit in federal court. While the Court created an exception to that rule in Ex parte Young (1908), allowing federal courts to issue injunctions prohibiting state executive-branch officials from enforcing unconstitutional laws, Justice Gorsuch concluded Ex parte Young did not permit suits against members of a state’s adjudicative branch. In addition, the majority reasoned that the providers lacked standing to sue these defendants because judicial officials involved in docketing or deciding any potential S.B. 8 enforcement suit would not be adverse to the challengers. The Court reached the same result as to the Texas attorney general: while he had some potential authority to bring civil enforcement actions against medical providers, the Court found it overly speculative that this authority would be used to enforce S.B. 8. Finally, the Court held that the claims against Mr. Dickson should be dismissed based on his sworn declaration that he had no intention to bring a private suit under S.B. 8.

That leaves only the third category of defendants discussed above: some executive branch officials involved in medical licensing. The providers argued a suit against these officials was proper because they could take adverse action (such as taking away medical licenses) against providers accused of violating S.B. 8. Eight members of the Court (all but Justice Thomas) agreed that these defendants could be enjoined. Thus the Court ultimately allowed the case to proceed against these defendants only, remanding to the lower courts for further proceedings (including potentially deciding whether S.B. 8 is in fact unconstitutional). But whether a suit against that narrow class of defendants provides will provide much relief remains to be seen. After all, a district-court order enjoining state licensing officials from taking actions to enforce S.B. 8 does nothing to prevent private citizens from bringing civil enforcement actions seeking damages, nor does it address the chilling effect the threat of such suits has.

Chief Justice Roberts, joined by the Court’s three liberal justices, dissented. He would have allowed the providers’ suit to go ahead against all the defendants (save Dickson). In his view, S.B. 8’s enforcement scheme was a rather obvious mechanism to avoid Ex parte Young and inhibit pre-enforcement suits to enjoin an unconstitutional law. And he warned that allowing this sort of private-enforcement dodge would open the door to states infringing other constitutional rights (something that may come to pass soon in California, where Governor Newsom has already suggested California should enact a similarly designed law regulating gun ownership). Justice Sotomayor, joined by Justices Kagan and Breyer, wrote a more strongly worded dissent, chastising the Court for rewarding Texas’s brazen scheme to effectively outlaw abortion while evading any court challenge.

So what about the second case, United States v. Texas No. 21-588? Eight members of the Court voted to dismiss it as improvidently granted without explanation, with Justice Sotomayor alone dissenting. That result is not too surprising: At oral argument, several members of the Court expressed doubt about the United States’ authority to bring a suit directly against a state to enjoin its enforcement of an allegedly unconstitutional statute. Apparently those doubts won out, with the Court finding it unnecessary to decide (at least today) those thorny questions.

With all the procedural wrangling now over, the case will return to the district court where it will decide whether S.B. 8 is constitutional and, assuming no, what exactly it can do about that given the narrow set of defendants before it. Of course, the district court will be deciding those questions in the shadow of Dobbs v. Jackson Women’s Health (No. 19-1392), the case that actually poses a direct challenge to Roe and Casey.

That’s all for this week. We expect the Court is going to take a bit of a break over the coming weeks, returning in January with more decisions in argued cases. Until then!

Dave and Tadhg