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

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 Sotomayor, with whom Justice Breyer and Justice Kagan join, concurring in the judgment in part and dissenting in part.
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.
I
I have previously described the havoc S. B. 8’s unconstitutional scheme has wrought for Texas women seeking abortion care and their medical providers. I do not repeat those details here, but I briefly outline the law’s numerous procedural and substantive anomalies, most of which the Court simply ignores.
S. B. 8 authorizes any person—who need not have any relationship to the woman, doctor, or procedure at issue—to sue, for at least $10,000 in damages, anyone who performs, induces, assists, or even intends to assist an abortion in violation of Texas’ unconstitutional 6-week ban. See Tex. Health & Safety Code Ann. §171.208(a) (West Cum. Supp. ​2021). Those vulnerable to suit might include a medical provider, a receptionist, a friend who books an appointment, or a ride-share driver who takes a woman to a clinic.
Importantly, S. B. 8 also modifies state-court procedures to make litigation uniquely punitive for those sued. It allows defendants to be haled into court in any county in which a plaintiff lives, even if that county has no relationship to the defendants or the abortion procedure at issue. §171.210(a)(4). It gives the plaintiff a veto over any venue transfer, regardless of the inconvenience to the defendants. §171.210(b). It prohibits defendants from invoking nonmutual issue or claim preclusion, meaning that if they prevail, they remain vulnerable to suit by any other plaintiff anywhere in the State for the same conduct. §171.208(e)(5). It also bars defendants from relying on any nonbinding court decision, such as persuasive precedent from other trial courts. §171.208(e)(4). Although it guarantees attorney’s fees and costs to prevailing plaintiffs, §171.208(b)(3), it categorically denies them to prevailing defendants, §171.208(i), so they must finance their own defenses no matter how frivolous the suits. These provisions are considerable departures from the norm in Texas courts and in most courts across the Nation.
S. B. 8 further purports to limit the substantive defenses ​that defendants may raise. It permits what it calls an “undue burden” defense, but redefines that standard to be a shell of what the Constitution requires: Rather than considering the law’s cumulative effect on abortion access, see Whole Woman’s Health v. Hellerstedt, 579 U. S. 582, 609–624 (2016), it instructs state courts to focus narrowly on the effect on the parties, §§171.209(b)(2), (d)(2). It further purports to impose retroactive liability for abortion care provided while the law is enjoined if the injunction is later overturned on appeal, §171.208(e)(3), as well as for abortion care provided while Roe and Casey are in effect if this Court later overrules one of those cases, §171.209(e).
As a whole, these provisions go beyond imposing liability on the exercise of a constitutional right. If enforced, they prevent providers from seeking effective pre-enforcement relief (in both state and federal court) while simultaneously depriving them of effective post-enforcement adjudication, potentially violating procedural due process. To be sure, state courts cannot restrict constitutional rights or defenses that our precedents recognize, nor impose retroactive liability for constitutionally protected conduct. Such actions would violate a state officer’s oath to the Constitution. See U. S. Const., Art. VI, cl. 3. Unenforceable though S. B. 8 may be, however, the threat of its punitive measures creates a chilling effect that advances the State’s unconstitutional goals.
II
This Court has confronted State attempts to evade federal constitutional commands before, including schemes that forced parties to expose themselves to catastrophic liability as state-court defendants in order to assert their rights. Until today, the Court had proven equal to those challenges.
In 1908, this Court decided Ex parte Young, 209 U. S. 123. In Young, the Court considered a Minnesota law fixing ​new rates for railroads and adopting high fines and penalties for failure to comply with the rates. Id., at 128–129, 131. The law purported to provide no option to challenge the new rates other than disobeying the law and taking “the risk … of being subjected to such enormous penalties.” Id., at 145. Because the railroad officers and employees “could not be expected to disobey any of the provisions … at the risk of such fines and penalties,” the law effectively resulted in “a denial of any hearing to the company.” Id., at 146.
The Court unequivocally rejected this design. Concluding that the legislature could not “preclude a resort to the courts … for the purpose of testing [the law’s] validity,” the Court decided the companies could obtain pre-enforcement relief by suing the Minnesota attorney general based on his “connection with the enforcement” of the challenged act. Id., at 146, 157. The Court so held despite the fact that the attorney general’s only such connection was the “general duty imposed upon him, which includes the right and the power to enforce the statutes of the State, including, of course, the act in question.” Id., at 161. Over the years, “the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’ ” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 105 (1984) (quoting Young, 209 U. S., at 160); accord, e.g., Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247, 254–255 (2011).
Like the stockholders in Young, abortion providers face calamitous liability from a facially unconstitutional law. To be clear, the threat is not just the possibility of money judgments; it is also that, win or lose, providers may be forced to defend themselves against countless suits, all across the State, without any prospect of recovery for their losses or expenses. Here, as in Young, the “practical effect of [these] coercive penalties for noncompliance” is “to foreclose all access to the courts,” “a constitutionally intolerable choice.” ​Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 218 (1994). “It would be an injury to [a] complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity.” Young, 209 U. S., at 160. In fact, the circumstances at hand present an even stronger need for pre-enforcement relief than in Young, given how S. B. 8 not only threatens a multiplicity of suits, but also turns state-court procedures against providers to ensure they cannot effectively defend their rights in a suit.
Under normal circumstances, providers might be able to assert their rights defensively in state court. See ante, at 15. These are not normal circumstances. S. B. 8 is structured to thwart review and result in “a denial of any hearing.” Young, 209 U. S., at 146. To that end, the law not only disclaims direct enforcement by state officials to frustrate pre-enforcement review, but also skews state-court procedures and defenses to frustrate post-enforcement review. The events of the last three months have shown that the law has succeeded in its endeavor. That is precisely what the Court in Young sought to avoid. It is therefore inaccurate to characterize the foregoing analysis as advocating “an unqualified right to pre-enforcement review of constitutional claims in federal court.” Ante, at 15. If that were so, the same charge could be leveled against the Court’s decision in Young.
In addition, state-court clerks are proper defendants in this action. This Court has long recognized that “the action of state courts and judicial officers in their official capacities is to be regarded as action of the State.” Shelley v. Kraemer, 334 U. S. 1, 14 (1948). In Shelley, private litigants sought to enforce restrictive racial covenants designed to preclude Black Americans from home ownership and to preserve residential segregation. The Court explained that these ostensibly private covenants involved state action because “but ​for the active intervention of the state courts, supported by the full panoply of state power,” the covenants would be unenforceable. Id., at 19. Here, there is more. S. B. 8’s formidable chilling effect, even before suit, would be nonexistent if not for the state-court officials who docket S. B. 8 cases with lopsided procedures and limited defenses. Because these state actors are necessary components of that chilling effect and play a clear role in the enforcement of S. B. 8, they are proper defendants.
These longstanding precedents establish how, and why, the Court should authorize relief against these officials as well. The Court instead hides behind a wooden reading of Young, stitching out-of-context quotations into a cover for its failure to act decisively. The Court relies on dicta in Young stating that “the right to enjoin an individual … does not include the power to restrain a court from acting in any case brought before it” and that “an injunction against a state court would be a violation of the whole scheme of our Government.” 209 U. S., at 163. Modern cases, however, have recognized that suit may be proper even against state-court judges, including to enjoin state-court proceedings. See Mitchum v. Foster, 407 U. S. 225, 243 (1972); see also Pulliam v. Allen, 466 U. S. 522, 525 (1984). The Court responds that these cases did not expressly address sovereign immunity or involve court clerks. Ante, at 8–9. If language in Young posed an absolute bar to injunctive relief against state-court proceedings and officials, however, these decisions would have been purely advisory.
Moreover, the Court has emphasized that “the principles undergirding the Ex parte Young doctrine” may “support its application” to new circumstances, “novelty notwithstanding.” Stewart, 563 U. S., at 261. No party has identified any prior circumstance in which a State has delegated an enforcement function to the populace, disclaimed official enforcement authority, and skewed state-court procedures ​to chill the exercise of constitutional rights. Because S. B. 8’s architects designed this scheme to evade Young as historically applied, it is especially perverse for the Court to shield it from scrutiny based on its novelty.
Next, the Court claims that Young cannot apply because state-court clerks are not adverse to the petitioners. Ante, at 5–6. As The Chief Justice explains, however, ante, at 3 (opinion concurring in judgment in part and dissenting in part), the Texas Legislature has ensured that docketing S. B. 8 cases is anything but a neutral action. With S. B. 8’s extreme alterations to court procedure and substantive defenses, the Texas court system no longer resembles a neutral forum for the adjudication of rights; S. B. 8 refashions that system into a weapon and points it directly at the petitioners. Under these circumstances, the parties are sufficiently adverse.
Finally, the Court raises “the question of remedy.” Ante, at 6. For the Court, that question cascades into many others about the precise contours of an injunction against Texas court clerks in light of state procedural rules. Ante, at 6–7. Vexing though the Court may find these fact-intensive questions, they are exactly the sort of tailoring work that District Courts perform every day. The Court should have afforded the District Court an opportunity to craft appropriate relief before throwing up its hands and declaring the task unworkable. For today’s purposes, the answer is ​simple: If, as our precedents make clear (and as the question presented presumes), S. B. 8 is unconstitutional, contrary state rules of civil procedure must give way. See U. S. Const., Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land”).
III
My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.
The State’s concessions at oral argument laid bare the sweeping consequences of its position. In response to questioning, counsel for the State conceded that pre-enforcement review would be unavailable even if a statute imposed a bounty of $1,000,000 or higher. Tr. of Oral Arg. 50–53. Counsel further admitted that no individual constitutional right was safe from attack under a similar scheme. Tr. of Oral Arg. in United States v. Texas, No. 21–588, pp. 59–61, 64–65. Counsel even asserted that a State could further rig procedures by abrogating a state supreme court’s power to bind its own lower courts. Id., at 78–79. Counsel maintained that even if a State neutered appellate courts’ power in such an extreme manner, aggrieved parties’ only path to a federal forum would be to violate the unconstitutional law, accede to infringement of their substantive and procedural rights all the way through the state supreme court, and then, at last, ask this Court to grant discretionary certiorari review. Ibid. All of these burdens would layer atop ​S. B. 8’s existing manipulation of state-court procedures and defenses.
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. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.” Reply Brief for Intervenors in No. 21–50949 (CA5), p. 4.
The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished. They experienced a revival in the post-war South, and the violence that ensued led Congress to enact Rev. Stat. §1979, 42 U. S. C. §1983. “Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.” Mitchum, 407 U. S., at 240. Thus, §1983’s “very purpose,” consonant with the values that motivated the Young Court some decades later, was “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ” Mitchum, 407 U. S., at 242 (quoting Ex parte Virginia, 100 U. S. 339, 346 (1880)).
S. B. 8 raises another challenge to federal supremacy, and by blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment. The Court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas. These consequences have only rewarded the State’s effort at nullification. Worse, 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.
This is no hypothetical. New permutations of S. B. 8 are coming. In the months since this Court failed to enjoin the law, legislators in several States have discussed or introduced legislation that replicates its scheme to target locally disfavored rights. What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court. 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. *** In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor ​nullified indirectly by them through evasive schemes … whether attempted ‘ingeniously or ingenuously.’ ” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.
* ↑ See United States v. Texas, 595 U. S. ___, ___–___ (2021) (Sotomayor, J., concurring in part and dissenting in part) (slip op., at 4–7); Whole Woman’s Health v. Jackson, 594 U. S. ___, ___–___ (2021) (Sotomayor, J., dissenting) (slip op., at 1–3).
* ↑ S. B. 8’s procedural meddling is not limited to suits filed under the law. To deter efforts to seek pre-enforcement review, the law also establishes a special fee-shifting provision for affirmative challenges to Texas abortion laws, including S. B. 8 itself. Under that provision, any person or entity, including an attorney or a law firm, who seeks declaratory or injunctive relief against the enforcement of any state restriction on abortion is jointly and severally liable to pay the costs and attorney’s fees of a prevailing party. Tex. Civ. Prac. & Rem. Code Ann. §30.022 (West Cum. Supp. 2021). The provision specifies that it is “not a defense” to liability for attorney’s fees if “the court in the underlying action held that” any part of the fee-shifting provision “is invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.” §30.022(d)(3).
* ↑ The Court responds by seizing on my mention of S. B. 8’s chilling effect. Ante, at 16. No one contends, however, that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary “when the penalties for disobedience are … so enormous” as to have the same effect “as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights.” 209 U. S., at 147. All the more so here, where the State achieves its unconstitutional aim using novel procedural machinations that the Court fails to acknowledge.
* ↑ The Court also holds that the Texas attorney general is not a proper defendant. For the reasons explained by The Chief Justice, ante, at 2–3, this conclusion fails even under the Court’s own logic. The Court further observes that “no court may ‘lawfully enjoin the world at large.’ ” Ante, at 10–11 (quoting Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (CA2 1930)). But the petitioners do not seek such relief. It is Texas that has taken the unprecedented step of delegating its enforcement authority to the world at large without requiring any pre-existing stake. Under the Court’s precedents, private actors who take up a State’s mantle “exercise … a right or privilege having its source in state authority” and may “be described in all fairness as … state actor[s].” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 620 (1991). This Court has not held that state actors who have actual notice of an injunction may flout its terms, even if it nominally binds other state officials, and it errs by implying as much now. The Court responds by downplaying how exceptional Texas’ scheme is, but it identifies no true analogs in precedent. See ante, at 11 (identifying only “somewhat” analogous statutes). S. B. 8 is no tort or private attorneys general statute: It deputizes anyone to sue without establishing any pre-existing personal stake (i.e., standing) and then skews procedural rules to favor these plaintiffs.
* ↑ See Brief for Petitioners 48–49 (collecting examples targeting abortion rights and gun rights). In addition, one day after oral argument, Ohio legislators introduced a variation on S. B. 8 that would impose a near total ban on abortion care in that State. See H. B. 480, 134th Gen. Assem., Reg. Sess. (Ohio 2021).
* ↑ Not one of the Court’s proffered alternatives addresses this concern. The Court deflects to Congress, ante, at 17, but the point of a constitutional right is that its protection does not turn on the whims of a political majority or supermajority. The Court also hypothesizes that state courts might step in to provide pre-enforcement relief, even where it has prohibited federal courts from doing so. Ante, at 15, 16. As the State concedes, however, the features of S. B. 8 that aim to frustrate pre-enforcement relief in federal court could have similar effects in state court, potentially limiting the scope of any relief and failing to eliminate the specter of endless litigation. Tr. of Oral Arg. 86–88.