Whole Woman's Health v. Jackson, 21-463

CourtUnited States Supreme Court
Writing for the CourtGorsuch, Justice
Docket Number21-463
Decision Date10 December 2021



No. 21-463

United States Supreme Court

December 10, 2021

Revised Date 12/10/21

Argued November 1, 2021


The Court granted certiorari before judgment in this case to determine whether the petitioners may pursue a pre-enforcement challenge to Texas Senate Bill 8-the Texas Heartbeat Act-a Texas statute enacted in 2021 that prohibits physicians from performing or inducing an abortion if the physician detected a fetal heartbeat. S. B. 8 does not allow state officials to bring criminal prosecutions or civil actions to enforce the law but instead directs enforcement through "private civil actions" culminating in injunctions and statutory damages awards against those who perform or assist with prohibited abortions. Tex. Health & Safety Code Ann. §§171.204(a), 171.207(a), 171.208(a)(2), (3). Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, S. B. 8 permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an "undue burden" on women seeking abortions. §§171.209(a)-(b).

The petitioners are abortion providers who sought pre-enforcement review of S. B. 8 in federal court based on the allegation that S. B. 8 violates the Federal Constitution. The petitioners sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young;


and a single private party, Mark Lee Dickson. The public-official defendants moved to dismiss the complaint citing, among other things, the doctrine of sovereign immunity. Mr. Dickson also moved to dismiss, claiming that the petitioners lacked standing to sue him. The District Court denied these motions. The public-official defendants filed an interlocutory appeal with the Fifth Circuit under the collateral order doctrine, which allows immediate appellate review of an order denying sovereign immunity. The Fifth Circuit decided to entertain a second interlocutory appeal filed by Mr. Dickson given the overlap in issues between his appeal and the appeal filed by the public-official defendants. The Fifth Circuit denied the petitioners' request for an injunction barring the law's enforcement pending resolution of the merits of the defendants' appeals, and instead issued an order staying proceedings in the District Court until that time. The petitioners then filed a request for injunctive relief with the Court, seeking emergency resolution of their application ahead of S. B. 8's approaching effective date. In the abbreviated time available for review, the Court concluded that the petitioners' filings failed to identify a basis in existing law that could justify disturbing the Fifth Circuit's decision to deny injunctive relief. Whole Woman's Health v. Jackson, 594 U.S.___, ____. The petitioners then filed another emergency request asking the Court to grant certiorari before judgment to resolve the defendants' appeals in the first instance, which the Court granted.

Held: The order of the District Court is affirmed in part and reversed in part, and the case is remanded.

____F.Supp.3d___, affirmed in part, reversed in part, and remanded. Justice Gorsuch announced the judgment of the Court, and delivered the opinion of the Court except as to Part II-C, concluding that a pre-enforcement challenge to S. B. 8 under the Federal Constitution may proceed past the motion to dismiss stage against certain of the named defendants but not others. Pp. 4-11, 14-17.

(a)Because the Court granted certiorari before judgment, the Court effectively stands in the shoes of the Court of Appeals and reviews the defendants' appeals challenging the District Court's order denying their motions to dismiss. As with any interlocutory appeal, the Court's review is limited to the particular order under review and any other ruling "inextricably intertwined with" or "necessary to ensure meaningful review of" it. Swint v. Chambers County Comm'n, 514 U.S. 35, 51. In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court. P. 4.

(b)The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others. Pp. 4-11, 14-17.


(1)Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state-court judge) should be dismissed. The petitioners have explained that they hope to certify a class and request an order enjoining all state-court clerks from docketing S. B. 8 cases, and all state-court judges from hearing them. The difficulty with this theory of relief is that States are generally immune from suit under the terms of the Eleventh Amendment or the doctrine of sovereign immunity. While the Court in Ex parte Young, 209 U.S. 123, did recognize a narrow exception allowing an action to prevent state officials from enforcing state laws that are contrary to federal law, that exception is grounded in traditional equity practice. Id., at 159-160. And as Ex parte Young itself explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. The traditional remedy against such actors has been some form of appeal, not an ex ante injunction preventing courts from hearing cases. As stated in Ex parte Young, "an injunction against a state court" or its "machinery" "would be a violation of the whole scheme of our Government." Id., at 163. The petitioners' clerk-and-court theory thus fails under Ex parte Young.

It fails for the additional reason that no Article III "case or controversy" between "adverse litigants" exists between the petitioners who challenge S. B. 8 and either the state-court clerks who may docket disputes against the petitioners or the state-court judges who decide those disputes. Muskrat v. United States, 219 U.S. 346, 361; see Pulliam v. Allen 466 U.S. 522, 538, n. 18. Further, as to remedy, Article III does not confer on federal judges the power to supervise governmental operations. The petitioners offer no meaningful limiting principle that would apply if federal judges could enjoin state-court judges and clerks from entertaining disputes under S. B. 8. And if the state-court judges and clerks qualify as "adverse litigants" for Article III purposes in the present case, when would they not? Many more questions than answers would present themselves if the Court journeyed the way of the petitioners' theory. Pp. 4-9.

(2)Texas Attorney General Paxton should be dismissed. The petitioners seek to enjoin him from enforcing S. B. 8, which the petitioners suggest would automatically bind any private party interested in pursuing an S. B. 8 suit. The petitioners have not identified any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising. The petitioners point to a state statute that says the attorney general "may institute an action for a civil penalty of $1, 000" for violations of "this subtitle or a rule or order adopted by the [Texas Medical B]oard," Tex. Occ. Code Ann. §165.101, but the qualification "this subtitle" limits the


attorney general's enforcement authority to the Texas Occupational Code, and S. B. 8 is not codified within "this subtitle." Nor have the petitioners identified for us any "rule or order adopted by the" Texas Medical Board that the attorney general might enforce against them. And even if the attorney general did have some enforcement power under S. B. 8 that could be enjoined, the petitioners have identified no authority that might allow a federal court to parlay any defendant's enforcement authority into an injunction against any and all unnamed private parties who might seek to bring their own S. B. 8 suits. Consistent with historical practice, a court exercising equitable authority may enjoin named defendants from taking unlawful actions. But under traditional equitable principles, no court may "enjoin the world at large," Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2), or purport to enjoin challenged "laws themselves." Whole Woman's Health, 594 U.S., at ___(citing California v. Texas, 593 U.S.___, ___(slip op, at 8)). Pp. 9-11.

(3)The petitioners name other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas's Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants. Pp. 11-14.

(4)The sole private defendant, Mr. Dickson, should be dismissed. Given that the petitioners do not contest Mr. Dickson's sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the petitioners cannot establish "personal injury fairly traceable to [Mr. Dickson's] allegedly unlawful conduct." See California, 593 U.S., at ___ (slip op, at 9). P. 14.

(c) The Court holds that the petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8's compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one...

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