Sources: the Court’s December 10 decision, Whole Women’s Health’s petition for certiorari, the Court’s earlier denial of injunctive relief. I’ve omitted citations throughout the following for ease of reading.
Two abortion-related cases came before the Supreme Court this fall. The second, Dobbs v. Jackson Women’s Health (19-1392), which originated in Mississippi, was argued on December 1. Dobbs has not been decided yet, but has already gotten more press time than the other abortion-related case – and justifiably so, as it seems to be a direct challenge to Roe v. Wade. The first case, on the other hand, was argued on November 1, and has already been decided. That case is Whole Woman’s Health v. Jackson (21-463), and it sprung out of the hysterically-decried Texas law that creates civil liabilities for those who perform abortions.
Before reviewing the decision, let’s go over the case background. The law in question is referred to as S. B. 8, but I’ll call it “the Texas law” here. The wacky feature of the Texas law is that it isn’t supposed to be enforceable by the State. Instead, private individuals may sue anyone who performs an abortion despite knowing that the fetus has a detectable heartbeat. But such a suit wouldn’t automatically shut down the abortion providers; they could defend themselves by showing that paying penalties would create an “undue burden” for their clients. That section of the law is clearly intended to stave off attacks based on the decision in Planned Parenthood v. Casey, which coined the “undue burden” standard.
Before the law had taken effect, Whole Women’s Health (and other co-petitioners, hoping for a class-action) brought suit in federal district court against a smorgasbord of respondents. Those respondents were Ken Paxton (Texas’s AG), a state-court judge and his clerk, a regular guy who had promised to sue abortion providers under the law, and a handful of officials from Texas licensing agencies. (Though the licensing agencies could not enforce the law directly, they could impose penalties on abortion providers who were successfully sued and thus shown to have violated the law.)
Realizing that the case would not be decided before the law was scheduled to take effect, Whole Women’s Health et al. asked for a preliminary injunction. In the meantime, the district court denied the respondents’ motions to dismiss, thus allowing Whole Women’s Health to continue with the suit. The respondents appealed to the Fifth Circuit Court of Appeals, which put the district court’s decision on hold pending its review. This stay from the Court of Appeals effectively canceled a hearing in the district court scheduled for August 30. The petitioners, finding again that that Court would likely not decide the case quickly enough, asked Justice Alito (assigned to the Fifth Circuit) for emergency relief; Justice Alito referred the question to the Court, which denied the requests on September 1. (The decision was split, with four dissenting opinions.) On that same day, the Texas law took effect.
On September 10, the Court of Appeals made its initial rulings, and clarified its reasons for having stayed the district court’s order. The petitioners (wrote the court) should not have sued any of the state officials: not the judge and his clerk (since they are neutral parties with respect to enforcing the law), not AG Paxton (since he has no power to enforce it at all), and not the licensing-agency officials (because their offices are not really empowered to enforce the law, either). Although this opinion wasn’t going to be the Court of Appeal’s final ruling on the case, Whole Women’s Health et al. appealed to the Supreme Court again for their opinion. This time, the Court agreed to hear them out.
This brings us to the Court’s decision, issued on December 10. After all this procedural tangle, the case wasn’t “ripe” for the Court to decide whether the Texas law is constitutional. Instead, the only question was whether Whole Women’s Health could continue suing the various respondents they had picked out. This is important: the decision is not about abortion – it’s about avenues to challenge the constitutionality of laws.
A persistent feature (or bug) of the US judicial system is that it’s very hard to sue the government. This feature (or bug) is a legacy of the English common-law system, where it was assumed that the King (or Queen) was always legally right, and no regular person could take him to court. This doctrine of “sovereign immunity” was somehow inherited by the US, and it applies to individual States by virtue of the 11th Amendment. This explains why Whole Women’s Health didn’t simply sue the state of Texas – it’s not allowed.
If States enact unconstitutional laws, however, you’d think that anyone unjustly penalized by such a law should have some recourse. The Supreme Court apparently thought so too, and, in 1908, held that unconstitutional laws could be challenged by suing state officials empowered to enforce them. After all, if Attorney General Eddy Young prosecutes someone under an unconstitutional law, then Young is himself violating that someone’s constitutional rights – even though the State’s legislature told Young he was free to do so. (If this sounds dumb, take comfort in the knowledge that this Ex parte Young decision is generally admitted as creating a “legal fiction.” Personally, I think the result of Ex parte Young – namely, that one may challenge a law’s constitutionality by preemptively suing its enforcers – is likely a net positive.) So Young created an exception to the rule of state sovereign immunity, which creates potential liability for certain public servants in their official capacities.
The Young exception thus drives most of the Court’s recent decision in Whole Women’s Health. Justice Gorsuch, writing for the plurality, agreed with the Court of Appeals that the state-court judge and his clerk could not be sued; as neutral officers of the state court, they are not the type of state officers liable under the Young exception. He also agreed with the Court of Appeals that Attorney General Paxton, who apparently has no role in enforcing the law, shouldn’t have been sued – there’s nothing that he could be stopped from doing.
At this point, the debate heats up. The plurality (Justices Gorsuch, Alito, Kavanaugh and Barrett) ruled that the heads of state licensing agencies were valid defendants, and that Whole Women’s Health could continue suing them. Justice Thomas disagreed – he would have thrown out all of the defendants, leaving Whole Women’s Health with no one to sue. The Justices seem to agree that, if those individuals have any role in enforcing the law, they are liable under the Ex parte Young exception. The disagreement turns on competing clauses in the disputed law: it says that it is “exclusively” enforced through civil actions, but that it does not “limit” any other laws that might “regulate or prohibit abortion.” That means the licensing-agency respondents are still permitted to enforce a separate statute (T.O.C. § 164.055), which authorizes “disciplinary action” against violators of the disputed abortion law. Does this make the licensing-agency respondents effectively enforcers of the disputed law, or does the extra step insulate them from liability? Then, if the licensing-agency respondents aren’t the direct enforcers of the law, they aren’t really in the same position as was Young in Ex parte Young, but they might be legally required to penalize the abortion providers due to that separate statute. Do they keep their immunity in spite of Young, or does the obligation of that separate statute make them liable for enforcing the disputed law? I’m not sure whom I agree with.
In a footnote to his dissent, Justice Thomas also notes that he would deny Whole Women’s Health standing to challenge the constitutionality of the Texas law, no matter whom they sued. Even if women have a constitutional right to an abortion, he reasons, no one said that doctors have a constitutional right to provide abortions – so Whole Women’s Health is actually trying to “assert the putative constitutional rights of their potential clients.” In other words, Whole Women’s Health hasn’t had its constitutional rights injured and shouldn’t be allowed to sue for someone else’s.
Finally: remember the regular guy that Whole Women’s Health included because he had said he would sue them? While the state defendants were arguing, he made a sworn affidavit to the Court of Appeals that he did not in fact intend to sue any of the petitioners under the Texas law. So the Supreme Court agreed that he could not be sued by Whole Women’s Health. In fact, his was the only aspect of the case that was decided unanimously.
What about the “liberal” justices? Besides that of Justice Thomas, there were two dissents: one by Chief Justice Roberts, and one by Justice Sotomayor. C.J. Roberts would have permitted the suit to proceed against both AG Paxton and the state-court clerk, but not against the state-court judge. Justices Breyer, Kagan and Sotomayor signed on to this opinion as well. (I imagine their clerks must be updating their resumes.)
Justice Sotomayor’s opinion, in which Justices Breyer and Kagan joined, sets off a few more fireworks: “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue.” “This is a brazen challenge to our federal structure.” In her view, the Texas law’s attempt to circumvent the Supreme Court’s own abortion precedents is a new manifestation of the same anti-federalism that led to the South’s secession and the Civil War. And just a few pages before, she’d characterized the plurality’s opinion as “handwringing.” Iron Law of Woke Projection, anyone?
Instead of my thoughts on Justice Sotomayor’s dissent, have some of Justice Gorsuch’s: “JUSTICE SOTOMAYOR offers a radical answer, suggesting once more that this Court should cast aside its precedents requiring federal courts to abide by traditional equitable principles. […] This time, however, JUSTICE SOTOMAYOR does not claim to identify any countervailing authority to support her proposal.” (Citation omitted.) “Nor does JUSTICE SOTOMAYOR explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop[.]” A bit later: “JUSTICE SOTOMAYOR charges this Court with ‘shrink[ing]’ from the task of defending the supremacy of the Federal Constitution over state law. That rhetoric bears no relation to reality.” (Citation omitted.) “[…] JUSTICE SOTOMAYOR’S suggestion that the Court’s ruling somehow ‘clears the way’ for the ‘nullification’ of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs.” “To the extent JUSTICE SOTOMAYOR seems to wish even more tools existed to combat this type of law, Congress is free to provide them. […] But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day.”
Justice Sotomayor was grateful enough to be nominated to the Court, but I wonder if she wouldn’t rather have been Queen.
Here are two vignettes to wrap up the tale (for now).
1. The Texas Tribune reports that on December 9, a state-court judge threw out 14 lawsuits against abortion providers, writing that the law was unconstitutional. Texans can still file suit under the law, but their suits may be dismissed, given this new precedent. The battles will likely continue in state court. Will those ultimately provide abortion providers with a better vehicle for challenging the law than did the Whole Women’s Health case? If so, will this case get quietly dropped?
2. The Wall Street Journal reports that California (at the prodding of Governor Gavin Newsom) plans to draft a gun-control law paralleling the Texas law. Under that law, private citizens of Californians would be allowed to sue manufacturers, sellers or distributers of “assault weapons.” The law would not be enforced by the State directly. Clearly, this is an absolute win for Newsom: if the private-enforcement provision is found illegal in the Texas case, he can proclaim his law to have been a stunt to show up Texas; if the private-enforcement provision is permitted in the Texas law, then Newsom can crow over his state’s new gun restrictions.
What do you think? Did I miss anything important? Which justice do you agree with (if any)? Do you think this whole business is the end of the republic, or the funniest thing since Gaige Grosskreutz?