Supreme Court Allows Pre-enforcement Challenge Against Texas Abortion Law to Proceed

The U.S. Supreme Court held in Whole Woman’s Health v. Jackson that abortion providers may bring a pre-enforcement challenge in federal court as one means to test whether Texas’ s strict abortion law violates the U.S. Constitution, albeit only against certain state medical licensing officials. The justices also ruled that the law (S.B. 8) may remain in effect while the legal challenges lay out.

Facts of the Case

Texas Senate Bill 8, also known as the Texas Heartbeat Act, 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. Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), 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.

The petitioners, which include several Texas abortion providers, sought pre-enforcement review of S.B. 8 in federal court based on the allegation that S.B. 8 violates the 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 Supreme

Court, seeking emergency resolution of their application ahead of S.B. 8’s approaching effective date.

Supreme Court’s Decision

By a vote of 8-0, the Supreme Court held that a pre-enforcement challenge under the federal Constitution to S.B. 8 may proceed past the motion to dismiss stage. However, it further held that the suit may only proceed against certain of the named defendants, namely state medical licensing officials.

Justice Gorush wrote on behalf of the majority. In his opinion, Justice Gorsuch emphasized that it was not addressing whether S.B. 8 is constitutional, merely whether pre-enforcement challenges may proceed.

A five-member majority of the Court first held that the suit may not proceed against state court clerks and judges. In support, Justice Gorsuch noted that although the Supreme Court’s decision in Ex parte Young, 209 U.S. 123 (1908), recognized a narrow exception allowing an action to prevent state officials from enforcing state laws that are contrary to federal law, the traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks.

“Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not,” Justice Gorsuch wrote. “Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law’s meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation.”

The same majority also concluded that the providers may not sue Texas Attorney General Ken Paxton. “While Ex parte Young authorizes federal courts to enjoin certain state officials from enforcing state laws, the petitioners do not direct this Court to any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising,” Justice Gorsuch explained. The majority further found that even if the attorney general did have some enforcement power under S.B. 8 that could be enjoined, the petitioners 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.

Eight members of the Court agreed that the lawsuit could proceed against state officials responsible for medical licensing and the head of the Texas health department, holding that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants. According to the Court, the state licensing officials fall within the scope of Ex parte Young’s exception to state sovereign immunity because they may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S.B. 8.

Finally, all nine justices held that Mark Lee Dickson, an anti-abortion activist, must be dismissed from the suit. Citing Dickson’s sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the Court held that the petitioners could not establish “personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.”