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December 10, 2021

Supreme Court Decides Whole Woman’s Health et al. v. Jackson

On December 10, 2021, the U.S. Supreme Court decided Whole Woman’s Health et al. v. Jackson, holding that abortion providers’ pre-enforcement challenge to the Texas Heartbeat Act — S.B. 8 — could proceed as to certain state medical licensing officials, though sovereign immunity and a lack of standing barred the suit as to the other defendants.

In 2021, Texas passed the Texas Heartbeat Act, referred to as S.B. 8, which prohibits physicians from performing or inducing an abortion after a fetal heartbeat is detected. Rather than state officials enforcing the law through criminal prosecutions or civil enforcement actions, S.B. 8 directs enforcement through private civil actions that can result in injunctions and statutory damages against those who perform or assist prohibited abortions. Abortion providers, including Whole Woman’s Health, challenged the law in a pre-enforcement action in federal court against a state-court judge, state-court clerk, the Texas Attorney General, various state medical licensing officials, and a private individual.

The Texas defendants moved to dismiss on the basis of sovereign immunity, and the private individual moved to dismiss on the basis that the providers lacked standing to bring a claim against him. The district court denied the motions, and the Texas defendants sought interlocutory review. The Fifth Circuit declined a request by the abortion providers to issue an injunction preventing S.B. 8’s enforcement pending the resolution of the merits of the defendants’ appeals. The Fifth Circuit instead stayed the proceedings in the district court until it could rule on the interlocutory appeals. The providers then sought emergency relief from the Supreme Court, which also denied injunctive relief. In a second emergency request for relief, the abortion providers asked the Court to grant certiorari before judgment to resolve the Texas defendants’ interlocutory appeals in the first instance, which the Court granted.

The Supreme Court held that sovereign immunity bars the claims against as to the state-court judge, and a majority reached the same conclusion regarding the state-court clerk. States are typically immune from suit under the Eleventh Amendment and the doctrine of sovereign immunity. And although Ex parte Young provides an exception to sovereign immunity, allowing suits to proceed that would prevent state officials from enforcing state laws that are contrary to federal law, that exception did not extend to the state-court judge and clerk.

The Court also explained that the action against the state-court judge and clerk failed to meet Article III’s case-or-controversy requirement, because state-court judges and clerks do not “enforce” state laws, but rather “work to resolve disputes between parties.” Additionally, citing precedent, “‘no case or controversy’ [as required by Article III] exists ‘between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.’” Although all the justices agreed that state-court judges are not proper defendants, Justice Sotomayor as well as the Chief Justice would have found that sovereign immunity did not bar the suit as to the state-court clerks.

The Court also held that the abortion providers’ claims against the Texas Attorney General were barred, because the Texas Attorney General does not possess any enforcement authority to enforce S.B. 8. Petitioners pointed to a subtitle of the Texas Code, pursuant to which the Texas Attorney General can impose a civil penalty in certain circumstances for violations of that subtitle or rule or order adopted by the Texas Medical Board, but S.B. 8 did fall within that subtitle.

A plurality of the Court concluded in Part II-C that the state medical licensing officials fell “within the scope of Ex parte Young’s historic exception to state sovereign immunity,” so the abortion providers’ claims against the licensing officials could proceed. The plurality reasoned that each of these officials “is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.” Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan concurred with the plurality’s decision, so claims against the medical licensing officials may proceed. Because Justice Thomas would prohibit suit against the medical licensing officials as well, the plurality’s reasoning is controlling as the most narrow grounds for allowing suit against the licensing officials.

Finally, based on the sworn declarations that the individual defendant had no intention of bringing a suit against Petitioners, the Court concluded there was no standing to assert the claims against the individual defendant.

Justice Gorsuch delivered the opinion of the Court except as to Part II-C. Justices Alito, Kavanaugh, and Barrett joined the opinion in full, and Justice Thomas joined except as to Part II-C. Justice Thomas filed an opinion concurring in part and dissenting in part. Chief Justice Roberts filed an opinion concurring the judgment in part and dissenting in part, joined by Justices Breyer, Sotomayor, and Kagan. Justice Sotomayor filed an opinion concurring in part and dissenting in part, joined by Justices Breyer and Kagan.

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