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

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]
Chief Justice Roberts, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, concurring in the judgment in part and dissenting in part.
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 Board’s rules—found in the Texas Administrative Code, see 22 Tex. Admin. Code §160.1(a) (West 2021)—prohibit licensed physicians from violating Texas’s ​Health and Safety Code, which includes S. B. 8. See 22 Tex. Admin. Code §190.8(7) (“the Board shall take appropriate disciplinary action against a physician who violates … Chapter 171, Texas Health and Safety Code”); S. B. 8, 87th Leg., Reg. Sess. (2021) (amending Chapter 171 of the Texas Health and Safety Code by adding Subchapter H). Under Texas law, then, the Attorney General maintains authority to “take enforcement actions” based on violations of S. B. 8. Ante, at 12. He accordingly also falls within the scope of Young’s exception to sovereign immunity. Ante, at 9–10.
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. The role that clerks play with respect to S. B. 8 is distinct from that of the judges. Judges are in no sense adverse to the parties subject to the burdens of S. B. 8. But as a practical matter clerks are—to the extent they “set in motion the machinery” that imposes these burdens on those sued under S. B. 8. Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337, 338 (1969).
The majority contends that this conclusion cannot be reconciled with Young, pointing to language in Young that suggests it would be improper to enjoin courts from exercising jurisdiction over cases. Ante, at 7–8; Young, 209 U. S., at 163. Decisions after Young, however, recognize that suits to enjoin state court proceedings may be proper. See Mitchum v. Foster, 407 U. S. 225, 243 (1972); see also Pulliam v. Allen, 466 U. S. 522, 525 (1984). And this conclusion is consistent with the entire thrust of Young itself. Just as ​in Young, those sued under S. B. 8 will be “harass[ed] … with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment.” 209 U. S., at 160. Under these circumstances, where the mere “commencement of a suit,” and in fact just the threat of it, is the “actionable injury to another,” the principles underlying Young authorize relief against the court officials who play an essential role in that scheme. Id., at 153. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme. *** The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
* ↑ The law states that abortion providers may raise an “undue burden” defense, see ante, at 2, but that defense is no more than a distorted version of the undue burden standard set forth in Casey, 505 U. S. 833. The defense in the statute does not, for example, allow defendants to rely on the effect that an award of relief would have on others throughout the State, see Tex. Health & Safety Code Ann. §171.209(d)(2) (West Cum. Supp. 2021), even though our precedents specifically permit such reliance. June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (opinion of Breyer, J.) (slip op., at 32–35). The provision, after all, is entitled “Undue Burden Defense Limitations.” See §171.209 (emphasis added).
* ↑ A recent summary judgment ruling in state court found S. B. 8 unconstitutional in certain respects, not including the ban on abortions after roughly six weeks. See ante, at 2, 15. That order—which does not grant injunctive relief and has not yet been considered on appeal—does not legitimate the State’s effort to legislate away a federally protected right.