Supreme Court narrows scope of potential challenges to Texas six-week abortion law
© WikiMedia (Joe Ravi)
Supreme Court narrows scope of potential challenges to Texas six-week abortion law

The Supreme Court on Friday refused for a second time to block Texas Senate Bill 8 (SB8), which bans abortions as early as six weeks into pregnancy, in what may seem like a misleading 8-1 vote in favor of abortion providers’ attempts to challenge the law.

The reason the 8-1 vote is misleading stems from the fact that the Court left open “a single tenuous route to challenging” SB8 while not only keeping intact the most restrictive anti-abortion law in the US, but also foreclosing relief against Texas state court officials and its attorney general. As one academic commentator from Florida State University remarked, “If you read the win for abortion providers here as some kind of positive sign in the Dobbs case, I think you’re deluding yourself.”

The opinion, largely written by Justice Neil Gorsuch, has invited scathing dissents from Chief Justice John Roberts and Justice Sonia Sotomayor and criticism from academic and legal commentators. Professor of Law Stephen Vladeck from the University of Texas described the decision as “radical,” and stated that it “has incredibly ominous implications for the ability of federal courts to strike down state laws that interfere with our constitutional rights, and more importantly for the ability of those whose rights are violated to actually have their day in court.”

The case was filed by Whole Woman’s Health (“the plaintiffs”) against various executive licensing officials in Texas, Texas state court judge Austin Jackson and court clerk Penny Clarkston, Texas Attorney General Ken Paxton (collectively “state officials”), and a private party by the name of Mark Dickson (“the defendants” or “defendants”). The state officials filed a motion to dismiss the suit on grounds of sovereign immunity while Dickson moved to dismiss the suit claiming the plaintiffs lacked standing.

The federal district court denied all of the motions and both sets of defendants filed interlocutory appeal with the US Court of Appeals for the Fifth Circuit under the “collateral order doctrine,” which paves the way for an immediate appellate review of an order denying sovereign immunity, before the lower court can rule on the merits. The appellate court refused the plaintiff’s request for an injunction against SB8 while the appeals were pending and instead stayed the district court’s proceedings. The Supreme Court then granted the plaintiffs’ emergency request for certiorari.

The Court essentially dismissed the suit against the state court officials citing Ex parte Young, which “does not normally permit federal courts to issue injunctions against state-court judges or clerks.” The Court added that an injunction against state court officials “would be a violation of the whole scheme of our Government” and that “traditional remedy against such actors has been some form of appeal, not an ex ante injunction preventing courts from hearing cases.”

As to the state attorney general, the Court similarly dismissed the suit stating the plaintiffs “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 Court further stated that federal courts lack the authority to “parlay any defendant’s enforcement authority into an injunction against any and all unnamed private parties” who seek to file suits under SB8.

The Court also dismissed the suit against Dickson explaining that the plaintiffs failed to establish “personal injury fairly traceable” to Dickson’s conduct, given his sworn declaration that he has no intention to file an SB8 suit against the plaintiffs and the plaintiffs’ acknowledgment of the same. However, the Court held 8-1 that the other state officials are not protected by sovereign immunity or any other form of affirmative defense and pre-enforcement challenges to SB8 may proceed against them.

Justice Sonia Sotomayor dissented in part criticizing the majority decision to foreclose relief against the state court officials and the attorney general, remarking that the majority has essentially given a green light to the states to nullify federal constitutional rights, “so long as they write their laws to more thoroughly disclaim all enforcement by state officials.” Sotomayor added:

Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose…This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed…by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree…Although some path to relief not recognized today may yet exist, the Court has now foreclosed the most straightforward route under its precedents. I fear the Court, and the country, will come to regret that choice.

Chief Justice John Roberts also dissented in part and sided with the liberal justices in concluding that the state-court officials and the attorney general are fair game in a pre-enforcement challenge against SB8, while Justice Clarence Thomas dissented in part arguing that he would have gone further in ruling against all avenues of challenge.