# Whole Woman's Health v. Jackson/Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 21–463
WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. AUSTIN REEVE JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [December 10, 2021]
Justice Thomas, concurring in part and dissenting in part.
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.
​To begin, there is no freestanding constitutional right to pre-enforcement review in federal court. See Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 220 (1994) (Scalia, J., concurring in part and concurring in judgment). Such a right would stand in significant tension with the longstanding Article III principle that federal courts generally may not “give advisory rulings on the potential success of an affirmative defense before a cause of action has even accrued.” MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 142 (2007) (Thomas, J., dissenting); see also Coffman v. Breeze Corps., 323 U. S. 316, 324 (1945) (a party may not “secur[e] an advisory opinion in a controversy which has not arisen”).
That said, a party subject to imminent threat of state enforcement proceedings may seek a kind of pre-enforcement review in the form of a “negative injunction.” This procedural device permits a party to assert “in equity … a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 262 (2011) (Kennedy, J., concurring); accord, Douglas v. Independent Living Center of Southern Cal., Inc., 565 U. S. 606, 620 (2012) (Roberts, C. J., dissenting). In Ex parte Young, this Court recognized that use of this negative injunction against a governmental defendant provides a narrow exception to sovereign immunity. See 209 U. S., at 159–160. That exception extends no further than permitting private parties in some circumstances to prevent state officials from bringing an action to enforce a state law that is contrary to federal law.
The negative injunction remedy against state officials countenanced in Ex parte Young is a “standard tool of equity,” J. Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 990 (2008), that federal courts have authority to entertain under their traditional equitable jurisdiction, see Judiciary ​Act of 1789, §11, 1 Stat. 78. As we have explained elsewhere, a federal court’s jurisdiction in equity extends no further than “the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.” Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 318 (1999) (internal quotation marks omitted). For this reason, a negative injunction must fall “within some clear ground of equity jurisdiction.” Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276, 285 (1909); see also Missouri v. Jenkins, 515 U. S. 70, 127 (1995) (Thomas, J., concurring) (“[C]ourts of equity must be governed by rules and precedents no less than the courts of law”). Federal courts therefore lack “power to create remedies previously unknown to equity jurisprudence.” Grupo Mexicano, 527 U. S., at 332.
The principal opinion “agree[s] with all of these principles.” Ante, at 12. I part ways with the principal opinion only in its conclusion that the four licensing-official respondents are appropriate defendants under Ex parte Young. For at least two reasons, they are not.
First, an Ex parte Young defendant must have “some connection with the enforcement of the act”—i.e., “the right and the power to enforce” the “act alleged to be unconstitutional.” 209 U. S., at 157, 161. The only “act alleged to be unconstitutional” here is S. B. 8. And that statute explicitly denies enforcement authority to any governmental official. On this point, the Act is at least triply clear. The statute begins: “Notwithstanding … any other law, the requirements of this subchapter shall be enforced exclusively through … private civil actions.” Tex. Health & Safety Code Ann. §171.207(a) (West Cum. Supp. 2021) (emphasis added). The Act continues: “No enforcement of this subchapter … in response to violations of this subchapter, may be taken or threatened by this state … or an executive or administrative officer or employee of this state.” Ibid. ​Later on, S. B. 8 reiterates: “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action.” §171.208(a) (emphasis added). In short, the Act repeatedly confirms that respondent licensing officials, like any other governmental officials, “hav[e] no duty at all with regard to the act,” and therefore cannot “be properly made parties to the suit.” Ex parte Young, 209 U. S., at 158.
The principal opinion does not dispute the meaning of these provisions. Instead, it finds residual enforcement authority for the licensing officials elsewhere in S. B. 8. In its saving clause, the Act provides that no court may construe S. B. 8 as “limit[ing] the enforceability of any other laws that regulate or prohibit abortion.” §171.207(b)(3). If one of these “other laws” permits a governmental official to enforce S. B. 8, the principal opinion reasons, the saving clause preserves that enforcement authority. The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through … private civil actions,” “[n]otwithstanding … any other law.” Tex. Health & Safety Code Ann. §171.207(a) (emphasis added).
Rather than introduce competing instructions in S. B. 8, I would read the Act as a “ ‘harmonious whole.’ ” Roberts v. Sea-Land Services, Inc., 566 U. S. 93, 100 (2012). By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” §171.207(b)(3) (emphasis added). Such laws include, for example, restrictions on late-term or partial-birth abortions. See §§171.044, 174.102. Section 164.055 of the Texas Occupations Code, by contrast, does not “regulate or prohibit abortion.” As the principal opinion explains, that provision ​merely grants authority to the Texas Medical Board to enforce other laws that do regulate abortion. See Tex. Occ. Code Ann. §164.055 (West 2012). Thus, the saving clause does not apply, and S. B. 8 explicitly forecloses enforcement of its requirements by the Texas Medical Board.
The principal opinion contends that the Act “confirm[s its] understanding” by explicitly proscribing criminal prosecution. Ante, at 13, n. 3 (citing Tex. Health & Safety Code Ann. §171.207(a)). By withholding criminal enforcement authority, the principal opinion argues, S. B. 8 tacitly leaves at least some civil enforcement authority in place. But “[t]he force of any negative implication … depends on context.” Marx v. General Revenue Corp., 568 U. S. 371, 381 (2013). A statute may “indicat[e] that adopting a particular rule … was probably not meant to signal any exclusion.” Ibid. (internal quotation marks omitted).
That is the case here. Again, S. B. 8 repeatedly bars governmental enforcement. See supra, at 3–4. That Texas identified a “specific example” of withheld enforcement authority alongside the Act’s “general” proscription “is not inconsistent with the conclusion that [S. B. 8] sweeps as broadly as its language suggests.” Ali v. Federal Bureau of Prisons, 552 U. S. 214, 226–227 (2008). Texas “may have simply intended to remove any doubt” that criminal prosecution is unavailable under S. B. 8. Id., at 226; see also ​Yellen v. Confederated Tribes of Chehalis Reservation, 594 U. S. ___, ___ (2021) (Gorsuch, J., dissenting) (slip op., at 14) (“illustrative examples can help orient affected parties and courts to Congress’s thinking”). It is unsurprising that Texas repeated itself to make its point “doubly sure.” Barton v. Barr, 590 U. S. __, __ (2020) (slip op., at 16). And, in all events, “[r]edundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text.” Ibid.
Second, even when there is an appropriate defendant to sue, a plaintiff may bring an action under Ex parte Young only when the defendant “threaten[s] and [is] about to commence proceedings.” 209 U. S., at 156. Our later cases explain that “the prospect of state suit must be imminent.” Morales v. Trans World Airlines, Inc., 504 U. S. 374, 382 (1992). Here, none of the licensing officials has threatened enforcement proceedings against petitioners because none has authority to bring them. Petitioners do not and cannot dispute this point.
Rather, petitioners complain of the “chill” S. B. 8 has on the purported right to abortion. But as our cases make clear, it is not enough that petitioners “feel inhibited” because S. B. 8 is “on the books.” Younger v. Harris, 401 U. S. 37, 42 (1971) (internal quotation marks omitted). Nor is a “vague allegation” of potential enforcement permissible. Boise Artesian, 213 U. S., at 285. To sustain suit against the licensing officials, whether under Article III or Ex parte Young, petitioners must show at least a credible and specific threat of enforcement to rescind their medical licenses or assess some other penalty under S. B. 8. See Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014). Petitioners offer nothing to make this showing. Even if the ​licensing-official respondents had enforcement authority, the chance of them using it is, at present, entirely “imaginary” and “speculative.” Younger, 401 U. S., at 42.
The irony of this case is that S. B. 8 has generated more litigation against those who oppose abortion than those who perform it. Respondent Clarkston, a state-court clerk, reports that only three S. B. 8 complaints have been filed in the State of Texas, none of which has been served. Brief for Respondent Clarkston 9–10. The private litigants brought those actions only after a San Antonio doctor performed a postheartbeat abortion and openly advertised it in the Washington Post. See A. Braid, Why I Violated Texas’s Extreme Abortion Ban, Washington Post, Sept. 19, 2021, p. A31, col. 2. Opponents of abortion, meanwhile, have been sued 14 times in the Texas state courts, including by some of the very petitioners in this case. See Brief for Respondent Clarkston 10. Petitioners cast aspersions on the Texas state courts, but those courts are not dawdling in these pre-enforcement actions. The Texas courts held summary-judgment hearings on November 10 and entered partial judgment for the abortion providers on December 9. See Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021). Simply put, S. B. 8’s supporters are under greater threat of litigation than its detractors.
Despite the foregoing, the principal opinion indicates that the prospect of suit by the licensing respondents is imminent. It cites petitioners’ complaint, but the only relevant paragraph conclusorily asserts a “risk [of] professional discipline” because certain respondents allegedly “retain the ​authority and duty to enforce other statutes and regulations … that could be triggered by a violation of S. B. 8.” Complaint ¶107. This “conclusory statemen[t],” paired with a bare “ ‘legal conclusion,’ ” cannot survive a motion to dismiss. Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). *** I would instruct the District Court to dismiss this case against all respondents, including the four licensing officials, because petitioners may not avail themselves of the exception to sovereign immunity recognized in Ex parte Young. I join the Court’s opinion in all other respects and respectfully dissent only from Part II–C.
* ↑ I also would hold that petitioners lack Article III standing. As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients. See June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opinion) (slip op., at 12–14). Third-party standing aside, petitioners also have not shown injury or redressability for many of the same reasons they cannot satisfy Ex parte Young. For injury, petitioners have shown no likelihood of enforcement by any respondent, let alone that enforcement is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410 (2013) (internal quotation marks omitted). For redressability, we held last Term that a party may not “attack an unenforceable statutory provision,” because this Court may not issue “an advisory opinion without the possibility of any judicial relief.” California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 9) (internal quotation marks omitted); see also Muskrat v. United States, 219 U. S. 346, 361 (1911). Likewise here, petitioners seek a declaration that S. B. 8 is unlawful even though no respondent can or will enforce it.
* ↑ For the remaining licensing officials—the heads of the Texas Health and Human Services Commission, the Texas Board of Nursing, and the Texas Board of Pharmacy—the principal opinion identifies no law that connects these officials to S. B. 8 or overrides the Act’s preclusion of governmental enforcement authority. Indeed, as to the Health and Human Services Commission, S. B. 8 explicitly forecloses enforcement authority. The Act states: “The commission shall enforce [Chapter 171] except for Subchapter H,” where S. B. 8 is codified, “which shall be enforced exclusively through … private civil enforcement actions … and may not be enforced by the commission.” Tex. Health & Safety Code Ann. §171.005 (West 2021).
* ↑ Because the principal opinion’s errors rest on misinterpretations of Texas law, the Texas courts of course remain free to correct its mistakes. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8 (1985).
* ↑ Dr. Braid also has filed suit in the Northern District of Illinois against the three pro se plaintiffs who filed S. B. 8 actions against him. See Complaint in Braid v. Stilley, No. 21–cv–5283 (Oct. 5, 2021), ECF Doc. 1. Two of the three S. B. 8 plaintiffs have made filings in the case, and both are proceeding pro se. Meanwhile, 12 attorneys, all from major law firms or interest groups, represent Dr. Braid.