Whole Woman's Health v. Jackson

• Decision Date: 10 December 2021
• Docket Number: 21-463
• Citation: 142 S.Ct. 522,211 L.Ed.2d 316
• Parties: WHOLE WOMAN'S HEALTH, et al., Petitioners v. Austin Reeve JACKSON, Judge, District Court of Texas, 114th District, et al.
• Court: U.S. Supreme Court

142 S.Ct. 522

211 L.Ed.2d 316

WHOLE WOMAN'S HEALTH, et al., Petitioners

v.Austin Reeve JACKSON, Judge, District Court of Texas, 114th District, et al.

No. 21-463

Supreme Court of the United States.

Argued November 1, 2021

Decided December 10, 2021

Marc A. Hearron, Washington, DC, for the petitioners.

Solicitor General Judd E. Stone, II, for the respondents.

Gene P. Hamilton, Vice President & General Counsel, America First Legal Foundation, Washington, DC, Jonathan F. Mitchell, Counsel of Record, Mitchell Law PLLC, Austin, TX, D. Bryan Hughes, Law Office of D. Bryan Hughes, Tyler, TX, for respondent, Mark Lee Dickson.

Heather Gebelin Hacker, Counsel of Record, Andrew B. Stephens, Hacker Stephens LLP, Austin, TX, for respondent Penny Clarkston.

Julie A. Murray, Richard Muniz, Planned Parenthood, Federation of America, Washington, DC, Sarah Mac Dougall, Planned Parenthood Federation of America, New York, NY, Marc Hearron, Counsel of Record, Center for Reproductive Rights, Washington, DC, Julia Kaye, Brigitte Amiri, Chelsea Tejada, American Civil Liberties Union Foundation, New York, NY, Lorie Chaiten, American Civil Liberties Union Foundation, Chicago, IL, David Cole, American Civil Liberties Union Foundation, Washington, DC, Adriana Pinon, David Donatti, Andre Segura, ACLU Foundation of Texas, Inc., Houston, TX, Molly Duane, Melanie Fontes, Nicolas Kabat, Kirby Tyrrell, Center for Reproductive Rights, New York, NY, Jamie A. Levitt, J. Alexander Lawrence, Morrison & Foerster, New York, NY, James R. Sigel, Morrison & Foerster LLP, San Francisco, CA, Rupali Sharma, Lawyering Project, South Portland, ME, Stephanie Toti, Lawyering Project, Brooklyn, NY, for petitioners.

Ken Paxton, Attorney General of Texas, Brent Webster, First Assistant Attorney General, Office of the Attorney General, Austin, TX, Judd E. Stone II, Solicitor General, Counsel of Record, Lanora C. Pettit, Principal Deputy Solicitor General, Beth Klusmann, Natalie D. Thompson, Assistant Solicitors General, William T. Thompson, Deputy Chief, Special Litigation Unit, for respondents Jackson, Carlton, Thomas, Young, Benz, Paxton, and the State of Texas.

Justice GORSUCH announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C.

The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.

I

Earlier this year Texas passed the Texas Heartbeat Act, 87th Leg., Reg. Sess., also known as S. B. 8. The Act prohibits physicians from "knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child" unless a medical emergency prevents compliance. Tex. Health & Safety Code Ann. §§ 171.204(a), 171.205(a) (West Cum. Supp. 2021). But the law generally does not allow state officials to bring criminal prosecutions or civil enforcement actions. Instead, S. B. 8 directs enforcement "through ... private civil actions" culminating in injunctions and statutory damages awards against those who perform or assist prohibited abortions. §§ 171.207(a), 171.208(a)(2), (3). The law also provides a defense. Tracking language from Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the statute 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).¹

After the law's adoption, various abortion providers sought to test its constitutionality. Not wishing to wait for S. B. 8 actions in which they might raise their arguments in defense, they filed their own pre-enforcement lawsuits. In all, they brought 14 such challenges in state court seeking, among other things, a declaration that S. B. 8 is inconsistent with both the Federal and Texas Constitutions. A summary judgment ruling in these now-consolidated cases arrived last night, in which the abortion providers prevailed on certain of their claims. Van Stean v. Texas , No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021).

Another group of providers, including the petitioners before us, filed a pre-enforcement action in federal court. In their complaint, the petitioners alleged that S. B. 8 violates the Federal Constitution and 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.

Shortly after the petitioners filed their federal complaint, the individual defendants employed by Texas moved to dismiss, citing among other things the doctrine of sovereign immunity. App. to Pet. for Cert. 3a. The sole private defendant, Mr. Dickson, also moved to dismiss, claiming that the petitioners lacked standing to sue him. 13 F.4th 434, 445 (CA5 2021) (per curiam ). The District Court denied the motions. Ibid.

The defendants employed by Texas responded by pursuing an interlocutory appeal in the Fifth Circuit under the collateral order doctrine. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (collateral order doctrine allows immediate appellate review of order denying claim of sovereign immunity). Mr. Dickson also filed an interlocutory appeal. The Fifth Circuit agreed to take up his appeal because the issues it raised overlapped with those already before the court in the Texas official defendants’ appeal. 13 F.4th at 438–439.

Separately, the petitioners also sought relief from the Fifth Circuit. Citing S. B. 8's impending effective date, they asked the court to issue an injunction suspending the law's enforcement until the court could hear and decide the merits of the defendants’ appeals. Ibid. The Fifth Circuit declined the petitioners’ request. Instead, that court issued an order staying proceedings in the District Court until it could resolve the defendants’ appeals. App. to Pet. for Cert. 79a; 13 F.4th at 438–439, 443.

In response to these developments, the petitioners sought emergency injunctive relief in this Court. In their filing, the petitioners asked us to enjoin any enforcement of S. B. 8. And given the statute's approaching effective date, they asked us to rule within two days. The Court took up the application and, in the abbreviated time available for review, concluded that the petitioners’ submission failed to identify a basis in existing law sufficient to justify disturbing the Court of Appeals’ decision denying injunctive relief. WholeWoman's Health v. Jackson , 594 U. S. ––––, 141 S.Ct. 2494, ––– L.Ed.2d –––– (2021).

After that ruling, the petitioners filed a second emergency request. This time they asked the Court to grant certiorari before judgment to resolve the defendants’ interlocutory appeals in the first instance, without awaiting the views of the Fifth Circuit. This Court granted the petitioners’ request and set the case for expedited briefing and argument. 595 U. S. ––––, 142 S.Ct. 415, ––– L.Ed.2d –––– (2021).

II

Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. See United States v. Nixon , 418 U.S. 683, 690–692, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ; S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, Supreme Court Practice 2-11 (11th ed. 2019). In this case, that means we must review the defendants’ appeals challenging the District Court's order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and any other ruling "inextricably intertwined with" or "necessary to ensure meaningful review of " them. Swint v. Chambers County Comm'n , 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.

A

Turning to the matters that are properly put to us, we begin with the sovereign immunity appeal involving the state-court judge, Austin Jackson, and the state-court clerk, Penny Clarkston. While this lawsuit names only one state-court judge and one state-court clerk as defendants, the petitioners explain that they hope eventually to win certification of a class including all Texas state-court judges and clerks as defendants. In the end, the petitioners say, they intend to seek an order enjoining all state-court clerks from docketing S. B. 8 cases and all state-court judges from hearing them.

Almost immediately, however, the petitioners’ theory confronts a difficulty. Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. See, e.g. , Alden v. Maine , 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). To be sure, in Ex parte Young , this Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. 209 U.S. 123, 159–160, 28 S.Ct. 441, 52 L.Ed. 714 (1908). But as Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not...