# Whole Woman's Health v. Jackson

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WHOLE WOMAN’S HEALTH ET AL. v. JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 21–463. Argued November 1, 2021—Decided December 10, 2021
The Court granted certiorari before judgment in this case to determine whether the petitioners may pursue a pre-enforcement challenge to Texas Senate Bill 8—the Texas Heartbeat Act—a Texas statute enacted in 2021 that prohibits physicians from performing or inducing an abortion if the physician detected a fetal heartbeat. S. B. 8 does not allow state officials to bring criminal prosecutions or civil actions to enforce the law but instead directs enforcement through “private civil actions” culminating in injunctions and statutory damages awards against those who perform or assist with prohibited abortions. Tex. Health & Safety Code Ann. §§171.204(a), 171.207(a), 171.208(a)(2), (3). Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, S. B. 8 permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an “undue burden” on women seeking abortions. §§171.209(a)–(b).
Held: The order of the District Court is affirmed in part and reversed in part, and the case is remanded.
___F. Supp. 3d ___, affirmed in part, reversed in part, and remanded.
Justice Gorsuch announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C, concluding that a pre-enforcement challenge to S. B. 8 under the Federal Constitution may proceed past the motion to dismiss stage against certain of the named defendants but not others. Pp. 4–11, 14–17.
(a) Because the Court granted certiorari before judgment, the Court effectively stands in the shoes of the Court of Appeals and reviews the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, the Court’s review is limited to the particular order under review and any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of” it. Swint v. Chambers County Comm’n, 514 U. S. 35, 51. In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court. P. 4.
(b) The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others. Pp. 4–11, 14–17.
(1) Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state-court judge) should be dismissed. The petitioners have explained that they hope to certify a class and request an order enjoining all state-court clerks from docketing S. B. 8 cases, and all state-court judges from hearing them. The difficulty with this theory of relief is that States are generally immune from suit under the terms of the Eleventh Amendment or the doctrine of sovereign immunity. While the Court in Ex parte Young, 209 U. S. 123, did recognize a narrow exception allowing an action to prevent state officials from enforcing state laws that are contrary to federal law, that exception is grounded in traditional equity practice. Id., at 159–160. And as Ex parte Young itself explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. The traditional remedy against such actors has been some form of appeal, not an ex ante injunction preventing courts from hearing cases. As stated in Ex parte Young, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.” Id., at 163. The petitioners’ clerk-and-court theory thus fails under Ex parte Young.
It fails for the additional reason that no Article III “case or controversy” between “adverse litigants” exists between the petitioners who challenge S. B. 8 and either the state-court clerks who may docket disputes against the petitioners or the state-court judges who decide those disputes. Muskrat v. United States, 219 U. S. 346, 361; see Pulliam v. Allen, 466 U. S. 522, 538, n. 18. Further, as to remedy, Article III does not confer on federal judges the power to supervise governmental operations. The petitioners offer no meaningful limiting principle that would apply if federal judges could enjoin state-court judges and clerks from entertaining disputes under S. B. 8. And if the state-court judges and clerks qualify as “adverse litigants” for Article III purposes in the present case, when would they not? Many more questions than answers would present themselves if the Court journeyed the way of the petitioners’ theory. Pp. 4–9.
(3) The petitioners name other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants. Pp. 11–14.
(4) The sole private defendant, Mr. Dickson, should be dismissed. Given that the petitioners do not contest Mr. Dickson’s sworn declarations stating that he has no intention to file an S. B. 8 suit against them, the petitioners cannot establish “personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.” See California, 593 U. S., at ___ (slip op, at 9). P. 14.
Gorsuch, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. Alito, Kavanaugh, and Barrett, JJ., joined that opinion in full, and Thomas, J., joined except for Part II–C. Thomas, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which Breyer, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Breyer and Kagan, JJ., joined.
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