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Whole Woman's Health v. Jackson

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Supreme Court of the United States
Whole Woman's Health v. Jackson
Term: 2021
Important Dates
Argued: November 1, 2021
Decided: December 10, 2021
Outcome
affirmed in part, reversed in part, and case remanded
Vote
8-1
Majority
Neil Gorsuch • Clarence Thomas • Samuel Alito • Brett Kavanaugh • Amy Coney Barrett
Concurring
Chief Justice John Roberts (in part) • Clarence Thomas (in part) • Stephen Breyer (in part) • Sonia Sotomayor (in part) • Elena Kagan (in part)
Dissenting
Chief Justice John Roberts (in part) • Clarence Thomas (in part) • Stephen Breyer (in part) • Sonia Sotomayor (in part) • Elena Kagan (in part)

Whole Woman's Health v. Jackson is a case argued before the Supreme Court of the United States on November 1, 2021, during the court's October 2021-2022 term.

On December 10, 2021, the court affirmed in part and reversed in part the order of the U.S. District Court for the Western District of Texas that denied the defendants' motions to dismiss, and it remanded the case for further proceedings. It found that pre-enforcement actions—lawsuits filed before the law has been enforced—can proceed against certain defendants but not others. In an 8-1 decision authored by Justice Neil Gorsuch, the court held that abortion providers may file suit in federal court against state licensing officials to prevent them from enforcing the provisions of S.B. 8, the state law at issue, under an exception to the sovereign immunity doctrine established in Ex parte Young (1908). Justice Clarence Thomas was the sole dissenting justice to this part of the opinion. The court further ruled by a vote of 5-4 that the abortion providers cannot file suit against state judges and clerks to block them from trying private lawsuits brought in accordance with S.B. 8. On this vote, Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett were in the majority, and Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. The court noted that it was not ruling on the constitutionality of S.B. 8 itself.[1]


HIGHLIGHTS
  • The case: Texas law S.B. 8 restricted abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law, meaning private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. Whole Woman's Health et al, a group of Texas abortion providers challenged the law, alleging that it violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The petitioners also challenged the state law's provision that it was to be enforced by private citizens through civil suits. Click here to learn more about the case's background.
  • The question presented: "[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions."[2]
  • The outcome: The court ruled 8-1 that abortion providers may file suit in federal court against certain Texas executive officials to prevent them from enforcing provisions of S.B. 8 against abortion providers; it further held by a 5-4 vote that the abortion providers cannot bring suit against state judicial officials to prevent private lawsuits from being tried.[1]


    • The case came on a writ of certiorari before judgment to the United States Court of Appeals for the 5th Circuit. To review the lower court's opinion, click here.

    This case was one of three heard by SCOTUS during its October 2021 term that related to abortion. To read more about the background of each of those cases, the questions presented, and the outcomes, click here.

    Timeline

    The following timeline details key events in this case:

    • December 10, 2021: The U.S. Supreme Court affirmed in part and reversed in part the U.S. District Court for the Western District of Texas' order, and remanded the case for further proceedings.
    • November 1, 2021: The U.S. Supreme Court heard oral argument.
    • October 22, 2021: The U.S. Supreme Court agreed to hear the case.
    • October 18, 2021: SCOTUS granted the petitioners' request to expedite consideration of their petition for a writ of certiorari in the case Whole Woman's Health v. Jackson. Respondents were required to file a response to the petition on or before noon on October 21, 2021.[3]
    • September 23, 2021: Whole Woman's Health appealed to the U.S. Supreme Court.
    • September 10, 2021: The United States Court of Appeals for the 5th Circuit issued a per curiam ruling denying the plaintiffs' motion to dismiss private individual Mark Lee Dickson's appeal, granted Dickson's request to halt district court proceedings pending his appeal, and expedited the appeal. The court also held that S.B. 8 prohibited enforcement by state officials or agents, and as a result, the defendants could not be sued under Ex parte Young (1908).[4]
    • September 1, 2021: SCOTUS issued a 5-4 ruling denying the request to block enforcement of the Texas law.
    • August 31, 2021: SCOTUS did not respond to an emergency appeal filed by Whole Woman's Health v. Jackson, et al seeking to block enforcement of a Texas law that banned abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law.

    Background

    Emergency appeal

    By midnight of August 31, 2021, the U.S. Supreme Court did not respond to an emergency appeal filed by a group of abortion providers—known as Whole Woman's Health et al—seeking to block enforcement of a Texas law that banned abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law. The latter authorization allowed private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. The bill, S.B. 8, was signed into law on May 19, 2021, by Governor Greg Abbott (R). The petitioners initially challenged the law in federal district court, arguing that the law violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. While the district court was considering the challenge, the United States Court of Appeals for the 5th Circuit ordered a stay of the district court's proceedings, halting their consideration. The petitioners then filed an emergency appeal with the Supreme Court, submitted to Justice Samuel Alito, who was assigned to the 5th Circuit and was responsible for reviewing emergency appeals. As the circuit justice, Alito was authorized to respond to the request himself or refer the matter to the full court for consideration.[5][6][7] On September 1, the law went into effect.

    SCOTUS denies request to halt law's enforcement

    On September 1, the court issued a 5-4 ruling denying the request to block enforcement of the Texas law. In the unsigned opinion, the court ruled:[8][9]

    “ The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. ... And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. ... The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.[10] ”

    Dissenting opinions

    Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would have granted the application and filed dissenting opinions.[8]

    In his dissent, joined by Justices Breyer and Kagan, Chief Justice Roberts wrote:[8]

    “ The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then

    essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. ...[10]

    		”
    —Chief Justice John Roberts

    In his dissent, joined by Justices Sotomayor and Kagan, Justice Breyer wrote:[8]

    “ I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.[10] ”
    —Justice Stephen Breyer

    In her dissent, joined by Justices Breyer and Kagan, Justice Sotomayor wrote:[8]

    “ The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.[10] ”
    —Justice Sonia Sotomayor

    In her dissent, joined by Justices Breyer and Sotomayor, Justice Kagan wrote:[8]

    “ Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.


    Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.[10]

    		”
    —Justice Elena Kagan

    Text of the opinion

    Read the full opinion here.

    Petition to SCOTUS for review

    On September 23, 2021, Whole Woman's Health appealed to the Supreme Court to intervene in the case and review the constitutionality of the state law's enforcement mechanism which allowed private citizens to bring civil suits against individuals alleged to have assisted with an abortion procedure after the six-week mark of a pregnancy. Petitioners filed a petition for a writ of certiorari asking the court to consider the case before the 5th Circuit made a final ruling.[11] On October 18, SCOTUS granted the petitioners' request for expedited consideration, and on October 22, the court granted review and scheduled the case for oral argument on November 1, 2021.[12]

    Question presented

    The petitioner presented the following question to the court:[2]

    Question presented:
    “ [W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.[10] ”

    Oral argument

    The court heard arguments in the case on November 1, 2021.

    Audio

    Audio of oral argument:[13]



    Transcript

    Transcript of oral argument:[14]

    Outcome

    On December 10, 2021, the court affirmed in part and reversed in part the order of the U.S. District Court for the Western District of Texas that denied the defendants' motions to dismiss, and it remanded the case for further proceedings. It found that pre-enforcement actions—lawsuits filed before the law has been enforced—can proceed against certain defendants but not others. In an 8-1 decision authored by Justice Neil Gorsuch, the court held that abortion providers may file suit in federal court against state licensing officials to prevent them from enforcing the provisions of S.B. 8 under an exception to the sovereign immunity doctrine established in Ex parte Young (1908). Justice Clarence Thomas was the sole dissenting justice to this part of the opinion. The court further ruled by a vote of 5-4 that the abortion providers cannot file suit against state judges and clerks to block them from trying private lawsuits brought in accordance with S.B. 8. On this vote, Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett were in the majority, and Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. The court noted that it was not ruling on the constitutionality of S.B. 8 itself.[1]

    Opinion

    In the court's majority opinion, Justice Neil Gorsuch wrote:[1]

    “ 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.

    ...
    Almost immediately ... 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 (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 (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 enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases.
    ...
    Perhaps recognizing the problems with their court-and-clerk theory, the petitioners briefly advance an alternative. They say they seek to enjoin the Texas attorney general from enforcing S. B. 8. Such an injunction, the petitioners submit, would also automatically bind any private party who might try to bring an S. B. 8 suit against them. Reply Brief for Petitioners 21. But the petitioners barely develop this back-up theory in their briefing, and it too suffers from some obvious problems.
    ...
    While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who 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. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage.
    ...
    The order of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.[10]

    		”
    —Justice Neil Gorsuch

    Opinions concurring in part and dissenting in part

    Justice Clarence Thomas wrote an opinion concurring in part and dissenting in part. In his opinion, Thomas wrote:[1]

    “ I join all but Part II–C of the Court’s opinion. In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young, 209 U. S. 123 (1908). I would reverse in full the District Court’s denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.[10] ”
    —Justice Clarence Thomas


    Chief Justice John Roberts wrote an opinion concurring in the judgment in part and dissenting in part, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. In his opinion, Roberts wrote:[1]

    “ Texas has passed a law banning abortions after roughly six weeks of pregnancy. See S. B. 8, 87th Leg., Reg. Sess. (2021). That law is contrary to this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution. Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. To cite just a few, the law authorizes “[a]ny person,” other than a government official, to bring a lawsuit against anyone who “aids or abets,” or intends to aid or abet, an abortion performed after roughly six weeks; has special preclusion rules that allow multiple lawsuits concerning a single abortion; and contains broad venue provisions that allow lawsuits to be brought in any of Texas’s 254 far flung counties, no matter where the abortion took place. See Tex. Health & Safety Code Ann. §§171.208(a), (e)(5), 171.210 (West Cum. Supp. 2021). The law then provides for minimum liability of $10,000 plus costs and fees, while barring defendants from recovering their own costs and fees if they prevail. §§171.208(b), (i). It also purports to impose backward-looking liability should this Court’s precedents or an injunction preventing enforcement of the law be overturned. §§171.208(e)(2), (3). And it forbids many state officers from directly enforcing it. §171.207.


    These provisions, among others, effectively chill the provision of abortions in Texas. Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong. As eight Members of the Court agree, see ante, at 11, petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young, 209 U. S. 123 (1908), because there exist state executive officials who retain authority to enforce it. See, e.g., Tex. Occ. Code Ann. §164.055(a) (West 2021). Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.
    ...
    In my view, several other respondents are also proper defendants. First, under Texas law, the Attorney General maintains authority coextensive with the Texas Medical Board to address violations of S. B. 8. The Attorney General may “institute an action for a civil penalty” if a physician violates a rule or order of the Board. Tex. Occ. Code Ann. §165.101.
    ...
    The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not “usually” enforce a State’s laws. Ante, at 5. But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket S. B. 8 cases are unavoidably enlisted in the scheme to enforce S. B. 8’s unconstitutional provisions, and thus are sufficiently “connect[ed]” to such enforcement to be proper defendants. Young, 209 U. S., at 157.[10]

    		”
    —Chief Justice John Roberts


    Justice Sonia Sotomayor wrote an opinion concurring in the judgment in part and dissenting in part, joined by Justices Stephen Breyer and Elena Kagan. In her opinion, Sotomayor wrote:[1]

    “ For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. See Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). In open defiance of this Court’s precedents, Texas enacted Senate Bill 8 (S. B. 8), which bans abortion starting approximately six weeks after a woman’s last menstrual period, well before the point of fetal viability. 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. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.


    The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.[10]

    		”
    —Justice Sonia Sotomayor

    Text of the opinion

    Read the full opinion here.

    Advocacy Groups

    Supporting defendants

    Jordan Sekulow, Executive Director at the American Center for Law & Justice, said the following in a statement. The group filed briefs in support of the defendants in both cases.[15]

    “ This is a new world we are living in when it comes to the pro-life movement. We have remained diligent in our fight and we are starting to see a shift in the Courts. We hope many states follow the lead of Texas and that we are able to report on many more of these pro-life victories. Our fight is not over yet. We will look forward to the decision on the Dobbs case that will likely come in June, but we are directly engaging in many other pro-life cases nationwide in the meantime.[10] ”

    Ed Whelan, a senior fellow of the Ethics and Public Policy Center, wrote the following in National Review. The group filed a brief in support of the defendants in Dobbs v. Jackson Women’s Health Organization.[16]

    “ The ruling strikes me overall as a big loss for the abortion providers. The only defendants whom they can pursue for relief are state licensing officials who might pursue them down the road for violations of the Texas Heartbeat Act. The ruling does nothing to remove the threat of lawsuits for violations of the Act.


    To be sure, Justice Gorsuch’s opinion points out that defendants in enforcement actions may invoke their federal constitutional defenses, irrespective of what the Act says. But that is an uncontroversial point.[10]

    		”

    Supporting petitioners

    Nancy Northup, President and CEO of the Center for Reproductive Rights, said the following in a statement. The group filed a brief in support of the petitioners in Whole Women's Health v. Jackson.[17]

    “ It’s stunning that the Supreme Court has essentially said that federal courts cannot stop this bounty-hunter scheme enacted to blatantly deny Texans their constitutional right to abortion. The Court has abandoned its duty to ensure that states do not defy its decisions. For 100 days now, this six-week ban has been in effect, and today’s ruling means there is no end in sight. Pregnant people will continue to live in a state of panic and uncertainty.[10] ”

    Elizabeth Wydra, President of the Constitutional Accountability Center, said the following in a statement. The group filed briefs in support of the petitioners in both cases.[18]

    “ Let’s be clear: while today’s ruling contained one small step forward, allowing a portion of the SB 8 challenge to proceed, it contained many more ominous steps backward. The Court breaks faith with the Constitution by allowing a state to deny people their rights protected by the Constitution, rights that the Court has a duty to uphold. And hidden under the veneer of the Court allowing, in some limited respect, the challenge to SB 8 by Whole Woman’s Health to continue, the Court has effectively given a green light to state efforts to limit fundamental constitutional rights. Abortion rights are being denied in Texas, still, and only four Justices were willing to say today that SB 8 is unconstitutional.[10] ”

    Lower court rulings

    Two lower court rulings were made prior to the Supreme Court hearing this case. Those rulings were:[23]

    Western District of Texas ruling (August 2021)

    On August 25, 2021, Judge Robert Pitman of the United States District Court for the Western District of Texas denied a request by the defendants to dismiss the case. Defendants argued that the case should be dismissed due to plaintiffs' lack of standing and their sovereign immunity as state officials. The defendants included several officials—Texas Attorney General Ken Paxton (R), 114th District Court Judge Reeve Jackson, Smith County District Court Clerk Penny Clarkston, and Texas Medical Board Executive Director Stephen Brint Carlton— and private citizen Mark Lee Dickson. Pitman was appointed to the court in 2014 by President Barack Obama (D). To read the full ruling, click here. In the conclusion to his ruling, Pitman wrote:[24]

    “ The Court agrees that absent further instruction from the State or the Fifth Circuit regarding who would be the proper the defendant [sic] in this pre-enforcement suit for equitable relief, the Court finds that Supreme Court precedent dictates that the Judicial Defendants are the proper defendants. Shelley v. Kraemer, 334 U.S. 1. Indeed, the Judicial Defendants are the only members of the State immediately connected with the enforcement of S.B. 8 and an order from this Court precluding them from instituting or adjudicating private enforcement actions under S.B. 8 would serve the redress Plaintiffs’ alleged harm. Indeed, the correct answer cannot be that “there is no one [from the State] who can be sued to block enforcement” of S.B. 8 merely because the law was drafted to avoid federal review of its constitutionality. (Dkt. 62, at 14).[10] ”

    The defendants in the case appealed the ruling to the United States Court of Appeals for the 5th Circuit, but the Supreme Court intervened before the 5th Circuit could rule on it.

    Fifth Circuit stays direct court proceedings (September 2021)

    On September 10, 2021, a three-judge panel of the United States Court of Appeals for the Fifth Circuit ruled that the district court did not have jurisdiction in the case and stayed proceedings. This was a per curiam decision, so the order was issued by the court and not by an individual judge. The table below lists the judges who heard the case and the president that appointed the judge. In its opinion, the panel wrote:[25]

    “ We conclude that jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials' collateral-order appeal. The notice of appeal therefore divested the district court of jurisdiction over Dickson as well as the officials. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Accordingly, we DENY the plaintiffs' motion to dismiss Dickson's appeal, and we GRANT Dickson's motion to stay the district court proceedings pending appeal.[10] ”
    Whole Women's Health v. Jackson stay ruling
    Judge Appointed by
    Edith Jones Ronald Reagan Republican Party
    Stuart Kyle Duncan Donald Trump Republican Party
    Kurt Engelhardt Donald Trump Republican Party

    Aftermath

    Texas Supreme Court rules that suit against licensing agencies cannot proceed

    On March 11, 2022, the Texas Supreme Court ruled that state agencies could not enforce SB8 and thus could not be defendants in the case. Justice Jeffrey S. Boyd delivered the opinion of the court. He wrote, "Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the act’s requirements, either directly or indirectly."[26] Steve Vladeck, a professor at The University of Texas School of Law, wrote that "[t]he providers' suit against state defendants is now effectively over" following Boyd's ruling.[27]

    On January 17, 2022, a three-judge panel of the United States Court of Appeals for the Fifth Circuit sent the case back to the Texas Supreme Court for clarity over several issues raised in the Supreme Court ruling. In the panel's ruling, Judge Edith Jones wrote, "The unresolved questions of state law must be certified to the Texas Supreme Court . . . With no limit placed by the Supreme Court’s remand, this court may utilize the ordinary appellate tools at our disposal to address the case—consistent with the Court’s opinion." Jones was joined in her ruling by Judge Stuart Kyle Duncan. In a dissenting opinion, Judge Stephen Higginson wrote, "This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court."[28]

    California Gov. Gavin Newsom (D) proposes gun legislation modeled on SB8

    On December 10, 2021, California Gov. Gavin Newsom (D) said he would pursue gun legislation similar to SB 8 following the court's ruling. He said the following in a statement posted to Twitter:[29]

    “ I am outraged by yesterday's U.S. Supreme Court decision allowing Texas's ban on most abortion services to remain in place, and largely endorsing Texas's scheme to insulate its law from the fundamental protections of Roe v. Wade. But if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people's lives, where Texas used it to put women in harm's way.


    I have directed my staff to work with the Legislature and the Attorney General on a bill that would create a right of action allowing private citizens to seek injuctive relief, and statutory damages of at least $10,000 per violation plus costs and attorney's fees, against anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in the State of California. If the most efficient way to keep these devastating weapons off our streets is to add the threat of private lawsuits, we should do just that.[10]

    		”

    Texas State Sen. Bryan Hughes (R), the author of SB 8, said the following when asked about Newsom's statement:[30]

    “ I would tell Gov. Newsom good luck with that. If California takes that route, they’ll find that California gun owners will violate the law knowing that they’ll be sued and knowing that the Supreme Court has their back because the right to keep and bear arms is clearly in the Constitution, and the courts have clearly and consistently upheld it.[10] ”

    Cases related to abortion in the October 2021 SCOTUS term

    SCOTUS heard three cases related to abortion during its October 2021 term. Two of those cases (United States v. Texas and Whole Woman's Health v. Jackson) posed questions relating to a Texas abortion law. The other (Dobbs v. Jackson Women’s Health Organization) posed a question related to a Mississippi abortion law. Arguments in the Texas cases took place in November and argument took place in the Mississippi case was held in December.

    The sections below detail each case heard by SCOTUS during this term, including background on the case and the question presented to the court.

    Mississippi

    See also: Dobbs v. Jackson Women’s Health Organization

    This case directly challenged previous SCOTUS decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The argument took place on December 1, 2021. SCOTUS agreed to hear the case on May 17. The case came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit.


    HIGHLIGHTS
  • The case: In 2018, Jackson Women’s Health Organization, a clinic and abortion facility in Mississippi, challenged the constitutionality of the "Gestational Age Act" in federal court. The law, enacted March 19, 2018, prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court granted summary judgment in favor of the plaintiffs, holding that the law was unconstitutional, and put a permanent stop to the law's enforcement. On appeal, the 5th Circuit affirmed the district court's ruling. Click here to learn more about the case's background.
  • The issue: The case concerned the constitutionality of a Mississippi state law prohibiting abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities, and the Supreme Court's decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).[31]
  • The questions presented: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."[2]
  • The outcome: The court held that there is no constitutional right to abortion and overruled the court's previous decisions in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992).

    • Texas

    See also: Whole Woman's Health v. Jackson and United States v. Texas (2021)

    These cases questioned the legality of Texas' abortion law S.B. 8 and whether the federal government had standing to sue the state to block enforcement. The arguments took place on November 1, 2021. SCOTUS agreed to hear the two cases on October 22. Whole Woman's Health v. Jackson came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit. United States v. Texas came via direct appeal by the federal government.

    Whole Woman's Health v. Jackson

    HIGHLIGHTS
  • The case: Texas law S.B. 8 restricted abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law, meaning private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. Whole Woman's Health et al, a group of Texas abortion providers challenged the law, alleging that it violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The petitioners also challenged the state law's provision that it was to be enforced by private citizens through civil suits. Click here to learn more about the case's background.
  • The question presented: "[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions."[2]
  • The outcome: The court ruled 8-1 that abortion providers may file suit in federal court against certain Texas executive officials to prevent them from enforcing provisions of S.B. 8 against abortion providers; it further held by a 5-4 vote that the abortion providers cannot bring suit against state judicial officials to prevent private lawsuits from being tried.[1]


    • United States v. Texas

    HIGHLIGHTS
  • The issue: The case concerned whether the federal government has the right to challenge Texas state law S.B. 8 in federal court.
  • The question presented: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."[2]
  • The outcome: In a per curiam decision, the court dismissed the case and allowed enforcement of S.B. 8 to continue.[1]


    • October term 2021-2022

    See also: Supreme Court cases, October term 2021-2022

    The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[32]

    The court agreed to hear 68 cases during its 2021-2022 term.[33] Four cases were dismissed and one case was removed from the argument calendar.[34]

    The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.


    See also


    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 U.S. Supreme Court, Whole Woman's Health v. Jackson, decided December 10, 2021
    2. ↑ 2.0 2.1 2.2 2.3 2.4 U.S. Supreme Court, "No. 21-463: Question Presented," accessed October 25, 2021 Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content Cite error: Invalid <ref> tag; name "qp" defined multiple times with different content
    3. ↑ U.S. Supreme Court, "(ORDER LIST: 595 U.S.) ORDER IN PENDING CASE ," October 18, 2021
    4. ↑ U.S. Court of Appeals for the 5th Circuit, Whole Woman's Health v. Jackson, September 10, 2021
    5. ↑ U.S. Supreme Court, "Whole Woman's Health et al v. Jackson et al: EMERGENCY APPLICATION TO JUSTICE ALITO FOR WRIT OF INJUNCTION AND, IN THE ALTERNATIVE, TO VACATE STAYS OF DISTRICT COURT PROCEEDINGS," August 30, 2021
    6. ↑ SCOTUSblog, "Texas abortion ban goes into effect after justices fail to act," September 1, 2021
    7. ↑ SCOTUSblog, "Abortion providers ask court to block Texas ban on abortions beginning at six weeks of pregnancy," August 30, 2021
    8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 U.S. Supreme Court, "Whole Woman's Health et al v. Jackson et al: ON APPLICATION FOR INJUNCTIVE RELIEF," September 1, 2021
    9. ↑ SCOTUSblog, "Supreme Court leaves Texas abortion ban in place," September 2, 2021
    10. ↑ 10.00 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 10.13 10.14 10.15 10.16 10.17 10.18 10.19 10.20 10.21 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    11. ↑ U.S. Supreme Court, "Whole Woman's Health v. Jackson: Petition for a Writ of Certiorari Before Judgment," September 23, 2021
    12. ↑ U.S. Supreme Court," "Order List: October 22, 2021," accessed October 25, 2021
    13. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued November 1, 2021
    14. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued November 1, 2021
    15. ↑ American Center for Law & Justice, "Supreme Court Rules on Texas Abortion Case," December 10, 2021
    16. ↑ National Review, "More on Supreme Court’s Ruling in Whole Woman’s Health v. Jackson," December 10, 2021
    17. ↑ Center for Reproductive Rights, "U.S. Supreme Court Fails to Block Texas’s Unconstitutional Abortion Ban and Vigilante Scheme," December 10, 2021
    18. ↑ Constitutional Accountability Center, "RELEASE: Supreme Court Ruling Undermines Constitution by Allowing Texas to Continue Violating Right to Abortion While Permitting Limited Court Challenge," December 10, 2021
    19. ↑ National Review, "The Texas Heartbeat Act and Severability," November 4, 2021
    20. ↑ The New Yorker, "The Supreme Court Wonders Where the Texas Abortion Law Might Lead," November 3, 2021
    21. ↑ The Wall Street Journal, "The Texas Abortion Case That Isn’t," October 31, 2021
    22. ↑ The Washington Post, "Opinion: The Texas case is not just about abortion. All sorts of rights are at stake." November 1, 2021
    23. ↑ SCOTUSblog, "Whole Woman’s Health v. Jackson," accessed November 18, 2021
    24. ↑ Court Listener, "Whole Woman's Health v. Jackson," accessed December 13, 2021
    25. ↑ CaseText, "Whole Woman's Health v. Jackson Opinion," September 10, 2021
    26. ↑ Texas Courts, "Whole Women's Health v. Jackson," accessed March 14, 2022
    27. ↑ Twitter, "Steve Vladeck on March 11, 2022," accessed March 14, 2022
    28. ↑ Politico, "Appeals court detours Texas abortion ban case to state Supreme Court," January 17, 2022
    29. ↑ Twitter, "Gavin Newsom on December 10, 2021," accessed December 14, 2021
    30. ↑ The Texas Tribune, "Texas abortion law author reacts to California Gov. Gavin Newsom’s pledge to do the same thing with guns: 'Good luck,'" December 13, 2021
    31. ↑ SCOTUSblog, "Court to weigh in on Mississippi abortion ban intended to challenge Roe v. Wade," May 17, 2021
    32. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed February 4, 2021
    33. ↑ Consolidated cases are counted as one case for purposes of this number.
    34. ↑ U.S. Supreme Court, "Order List: 593 U.S.," May 17, 2021
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