Whole Woman's Health v. Jackson
595 U. S. ____ (2021) (2021)
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Rule of Law:
The Ex parte Young exception to sovereign immunity permits a pre-enforcement challenge in federal court against state executive officials who have a statutory duty to enforce, or a sufficient connection to the enforcement of, a challenged state law; however, it does not apply to state-court judges or clerks who merely process cases, nor to an attorney general lacking specific enforcement authority under the challenged statute, nor to a private party where there is no showing of imminent injury.
Facts:
- In 2021, Texas enacted Senate Bill 8 (S.B. 8), also known as the Texas Heartbeat Act, which prohibits physicians from performing or inducing an abortion if a fetal heartbeat is detected, except in cases of medical emergency.
- S.B. 8 explicitly states that state officials cannot bring criminal prosecutions or civil enforcement actions for violations of the law.
- Instead, S.B. 8 directs enforcement exclusively through 'private civil actions,' allowing any person, other than a state or local governmental officer or employee, to sue individuals who perform or assist with prohibited abortions.
- These private civil actions can result in injunctions and statutory damages awards of at least $10,000 per prohibited abortion against those found liable.
- S.B. 8 incorporates a defense for abortion providers, allowing them to defeat a suit by showing that holding them liable would place an 'undue burden' on women seeking abortions, tracking language from Planned Parenthood of Southeastern Pa. v. Casey.
- The petitioners are abortion providers who sought to challenge the constitutionality of S.B. 8 before it could be enforced.
- Mark Lee Dickson, a private individual named as a defendant, submitted sworn declarations stating that he has no intention of filing an S.B. 8 suit against the petitioners.
Procedural Posture:
- Petitioners (abortion providers) filed a pre-enforcement lawsuit in federal district court, alleging Texas S.B. 8 violates the Federal Constitution and seeking an injunction against various defendants (state-court judge Austin Jackson, state-court clerk Penny Clarkston, Texas Attorney General Ken Paxton, executive directors of state medical/nursing/pharmacy boards Stephen Carlton, Katherine Thomas, Allison Benz, executive commissioner of the Texas Health and Human Services Commission Cecile Young, and private party Mark Lee Dickson).
- The public-official defendants moved to dismiss, citing sovereign immunity.
- Private defendant Mark Lee Dickson moved to dismiss, claiming petitioners lacked standing.
- The District Court denied all motions to dismiss.
- The public-official defendants filed an interlocutory appeal with the U.S. Court of Appeals for the Fifth Circuit under the collateral order doctrine, appealing the denial of sovereign immunity.
- Mark Lee Dickson also filed an interlocutory appeal with the Fifth Circuit.
- The Fifth Circuit denied the petitioners’ request for an injunction to bar the law’s enforcement pending resolution of the defendants’ appeals.
- The Fifth Circuit issued an order staying proceedings in the District Court until the appeals were resolved.
- Petitioners then filed an emergency request for injunctive relief with the U.S. Supreme Court, which was denied (Whole Woman’s Health v. Jackson, 594 U. S. ___, ___).
- Petitioners then filed another emergency request asking the U.S. Supreme Court to grant certiorari before judgment to resolve the defendants’ appeals.
- The U.S. Supreme Court granted certiorari before judgment.
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Issue:
Does the Ex parte Young exception to sovereign immunity permit abortion providers to bring a pre-enforcement challenge in federal court against state-court judges, state-court clerks, the Texas Attorney General, state executive licensing officials, and a private individual to enjoin enforcement of Texas Senate Bill 8, a statute primarily enforced through private civil actions?
Opinions:
Majority - Neil Gorsuch
Yes, pre-enforcement challenges against executive licensing officials may proceed. No, challenges against state-court judges, state-court clerks, the Texas Attorney General, and the private individual Mark Lee Dickson may not proceed. The Court affirmed in part and reversed in part the District Court's order, emphasizing that its review was limited to the interlocutory appeals challenging the denial of motions to dismiss, not the ultimate merits of S.B. 8's constitutionality. The Court found that the Ex parte Young exception does not apply to state-court judges (Austin Jackson) or clerks (Penny Clarkston), reasoning that these individuals resolve disputes, rather than enforcing state laws as executive officials do, and issuing injunctions against them would violate the 'whole scheme of our Government' and exceed traditional equity practice. Furthermore, no Article III 'case or controversy' exists between petitioners and judges or clerks, as these officials are not 'adverse litigants.' The Court also concluded that the petitioners failed to identify any specific enforcement authority the Attorney General (Ken Paxton) possesses in connection with S.B. 8 that a federal court could enjoin, noting that his authority under the Texas Occupational Code is limited to that subtitle, not the Health and Safety Code where S.B. 8 is codified, and that federal courts cannot 'enjoin the world at large' or challenged 'laws themselves.' However, eight Members of the Court held that sovereign immunity does not bar a pre-enforcement challenge against executive licensing officials (Stephen Carlton, Katherine Thomas, Allison Benz, Cecile Young). These individuals have statutory duties to take enforcement actions, such as disciplinary measures, against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S.B. 8, as mandated by Texas Occupational Code §164.055 and preserved by S.B. 8's saving clause (§171.207(b)(3)). This established a plausible link to enforcement authority and a credible threat of action at the motion to dismiss stage. The Court unanimously dismissed private defendant Mark Lee Dickson because petitioners did not contest his sworn declarations that he has no intention of filing an S.B. 8 suit, thus failing to establish 'personal injury fairly traceable' to his conduct and lacking standing. The Court emphasized that many paths exist to challenge the constitutionality of state laws, including state-court pre-enforcement challenges and raising federal constitutional defenses in state enforcement actions, and rejected the idea of an 'unqualified right to pre-enforcement review' in federal court, stating that a 'chilling effect' alone is insufficient to justify federal intervention without proof of more concrete injury and compliance with traditional equitable practice.
Concurring in part and dissenting in part - Clarence Thomas
No, petitioners may not maintain suit against any of the governmental respondents. Justice Thomas joined all but Part II-C of the majority opinion. He argued that there is no freestanding constitutional right to pre-enforcement review in federal court. He contended that the Ex parte Young exception is narrow and applies only when the defendant has 'some connection with the enforcement of the act' and 'the right and the power to enforce' it. S.B. 8 explicitly denies enforcement authority to any governmental official, stating it is 'exclusively' enforced through private actions, 'notwithstanding . . . any other law.' He disagreed with the majority's interpretation of S.B. 8's saving clause and Texas Occupational Code §164.055, asserting that the latter does not 'regulate or prohibit abortion' itself, but merely grants authority to enforce other such laws. Therefore, he concluded, the licensing officials lack the requisite enforcement connection to S.B. 8. He also stated that petitioners failed to show a 'credible and specific threat of enforcement' by any licensing officials, rendering their alleged injury 'imaginary' and 'speculative'.
Concurring in the judgment in part and dissenting in part - John Roberts
Yes, the suit may proceed against executive licensing officials, the Attorney General, and court clerks. No, it shouldn't go forward against judges. Chief Justice Roberts (joined by Justices Breyer, Sotomayor, and Kagan) agreed that S.B. 8 is unconstitutional under Roe and Casey and that Texas's scheme is designed to shield it from judicial review. He concurred with the majority that executive licensing officials are proper defendants under Ex parte Young due to their authority to address S.B. 8 violations through the Texas Medical Board's rules. He argued that the Texas Attorney General (Ken Paxton) also falls within Young because the AG maintains authority coextensive with the Medical Board to address S.B. 8 violations through civil penalties if a physician violates Board rules. Importantly, he contended that state-court clerk Penny Clarkston is a proper defendant. While clerks don't 'usually' enforce laws, S.B. 8 by design uses the threat of even unsuccessful suits to chill conduct, and clerks who issue citations and docket S.B. 8 cases are 'unavoidably enlisted' in the enforcement scheme, thus sufficiently 'connected' to enforcement. He cited post-Young cases like Mitchum v. Foster and Pulliam v. Allen to support that suits to enjoin state court proceedings can be proper, noting that 'any novelty in this remedy is a direct result of the novelty of Texas’s scheme.' He agreed that judges are not proper defendants as they are 'in no sense adverse' to the parties whose cases they decide. He emphasized that the clear purpose and effect of S.B. 8 is to nullify the Court's rulings, challenging the 'fundamental and paramount law of the nation.'
Concurring in the judgment in part and dissenting in part - Sonia Sotomayor
Yes, the suit may proceed against executive licensing officials, state-court clerks, and the state attorney general. Justice Sotomayor (joined by Justices Breyer and Kagan) emphasized the 'havoc S.B. 8’s unconstitutional scheme has wrought,' creating a 'near total' chilling effect. She concurred with the judgment that the suit may proceed against executive licensing officials. She dissented from the Court's failure to allow suit against state-court clerks and the Attorney General, calling it a 'dangerous departure' that 'invites other States to refine S.B. 8’s model for nullifying federal rights.' She detailed S.B. 8's numerous procedural and substantive anomalies (e.g., universal private standing, $10,000 minimum damages, broad venue, no nonmutual preclusion, no defendant attorney's fees, retroactive liability, distorted 'undue burden' defense) that prevent effective pre- and post-enforcement adjudication, creating a 'denial of any hearing' as in Ex parte Young. She argued that state-court clerks are proper defendants because 'the action of state courts and judicial officers in their official capacities is to be regarded as action of the State' (Shelley v. Kraemer). S.B. 8 'refashions that system into a weapon' by enlisting clerks through skewed procedures and limited defenses, making them 'necessary components of that chilling effect.' She criticized the majority's 'wooden reading' of Young and its failure to apply the Young doctrine's underlying principles to novel circumstances designed to evade review. She agreed with Chief Justice Roberts that the Attorney General is a proper defendant. She highlighted the 'sweeping consequences' of the State's position, allowing states to 'nullify federal constitutional rights' through similar schemes, echoing John C. Calhoun's nullification theories. She warned that new permutations of S.B. 8 are coming and that the Court's decision leaves 'all manner of constitutional rights more vulnerable than ever before.'
Analysis:
This case significantly reinforces the narrow scope of the Ex parte Young exception to state sovereign immunity, particularly in the context of novel state laws designed to evade federal judicial review. By distinguishing between state executive officials with a direct, even if indirect, enforcement nexus to the challenged law (like licensing boards) and judicial actors or attorneys general lacking explicit enforcement authority, the Court limits the avenues for federal pre-enforcement challenges. The decision leaves open questions about how federal courts will address future state legislative schemes that further insulate controversial laws from traditional Ex parte Young suits, potentially shifting the burden onto defendants to raise constitutional defenses in state courts, even under punitive procedural rules. This ruling underscores the Court's reluctance to expand equitable powers beyond historical practice, even in the face of perceived state attempts to nullify federal rights, thereby maintaining a high bar for federal intervention in state law enforcement schemes.
