SCOTUS Opinion: Court Permits Pre-Enforcement Challenge to Texas Abortion Law By Clinics, Not The Federal Government

The Court today resolved both challenges to Texas’ new abortion law, S.B. 8, which empowered private citizens to sue those who provided an abortion when a fetal heartbeat is detectable. In Whole Women’s Health v. Jackson, an abortion clinic sued a variety of defendants, seeking to enjoin enforcement of S.B. 8. The last time that case was before the Court, a narrow majority declined to enter an injunction because it was uncertain whether their claims could be maintained against any of the named defendants. On remand to the Fifth Circuit, the clinic sought certiorari to the Court before judgment, which the Court granted. Today, the Court ruled 8-1, in a majority opinion by Justice Gorsuch, that the clinics could maintain their action against state licensing officials who were empowered to enforce Texas’ Health and Safety Code, which included S.B. 8, even though the main enforcement mechanism of the law was through private action.

Justice Gorsuch ruled that the remaining defendants, including Texas state judges and court clerks, must be dismissed under the state sovereign immunity principles of Ex parte Young, 209 U.S. 123 (1908). Justice Thomas concurred, but argued that the claims against the state officials should have also been dismissed. Chief Justice Roberts, joined by Justices Breyer, Sotomayor, and Kagan, concurred as to the state officials, but dissented as to dismissal of the clerks and the state attorney general, arguing that neither enjoyed immunity. Justice Sotomayor, joined by Justices Breyer and Kagan, echoed the Chief Justice’s position, arguing that S.B. 8’s structure posed a “brazen challenge to our federal structure,” and faulted the Court for failing to “put an end to this madness months ago” by stopping enforcement of S.B. 8 until its constitutionality could be adjudicated. Meanwhile, in a per curiam decision, the Court dismissed the case of United States v. Texas as being improvidently granted certiorari, with only Justice Sotomayor dissenting, both without opinions.

A link to Whole Women’s Health is here:

A link to U.S. v. Texas is here: