1 Cite as: 595 U. S. ____ (2022)

B REYER , J., dissenting 

## SUPREME COURT OF THE UNITED STATES
IN RE WHOLE WOMAN’S HEALTH, ET AL

.
ON PETITION FOR WRIT OF MANDAMUS
No. 21–962. Decided January 20, 2022
The petition for a writ of mandamus is denied.
J USTICE B REYER , with whom J USTICE S OTOMAYOR and J USTICE K AGAN join, dissenting from denial of mandamus.
In Whole Woman’s Health v. Jackson , 595 U. S. ___ (2021), this Court was clear. We said: “[E]ight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young,” the state licensing -official defendants. Id. , at ___ (slip op., at 17). When the mandate issued, I had thought that the Court of Appeals would quickly remand the case to the District Court so that it could reach the merits and en

ter relief consistent with our ruling. After all, “[w]hatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error appar

ent; or intermeddle with it, further than to settle so much as has been remanded.” Sibbald v. United States , 12 Pet. 488, 492 (1838). Instead, the Court of Appeals ignored our judgment. Itkept the case and certified questions about the licensingofficial defendants to the Texas Supreme Court. See Whole Woman’s Health v. Jackson , 2022 WL 142193, ___ F. 4th ___ (CA5 2022). As a result, an unconstitutional 6-week abortion ban remains in effect in Texas—as it has for over2 IN RE WHOLE WOMAN’S HEALTH

B REYER , J., dissenting four months. For these reasons, as elaborated by J USTICE S OTOMAYOR , I would grant the writ petitioners seek. I respectfully dissent.1 Cite as: 595 U. S. ____ (2022)

S OTOMAYOR , J., dissenting 

## SUPREME COURT OF THE UNITED STATES
IN RE WHOLE WOMAN’S HEALTH, ET AL

.
ON PETITION FOR WRIT OF MANDAMUS
No. 21–962. Decided January 20, 2022

J USTICE S OTOMAYOR , with whom J USTICE B REYER and J USTICE K AGAN join, dissenting from denial of mandamus.
It has been over four mont hs since Texas Senate Bill 8 (S. B. 8) took effect. The law immediately devastated access to abortion care in Texas th rough a complicated privatebounty-hunter scheme that violat es nearly 50 years of this Court’s precedents. Today, for the fourth time, this Court declines to protect pregnant Texans from egregious viola

tions of their constitutional rights. 1 One month after direct

ing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own com

mands. Instead of stopping a Fifth Circuit panel from in

dulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal con

stitutional rights of its citi zens through procedural manip

ulation. The Court may look the other way, but I cannot.

I
S. B. 8 amounts to a ban on abortion care after six weeks from the last menstrual period, before many women realize they are pregnant. See Whole Woman’s Health v. Jackson
, 594 U. S. ___, ___ (2021) (S OTOMAYOR , J., dissenting) (slip op., at 1) ( Whole Woman’s Health I ). The law authorizes any person—regardless of relationship (or lack thereof ) to the woman, provider, or proced ure at issue—to sue, for at least $10,000, anyone who provides abortion care, assists in

——————

1 See Whole Woman’s Health v. Jackson , 595 U. S. ___, ___–___ (2021) (S OTOMAYOR , J., dissenting); United States v. Texas , 595 U. S. ___, ___– ___ (2021) (S OTOMAYOR , J., dissenting); Whole Woman’s Health v. Jack

son , 594 U. S. ___, ___–___ (2021) (S OTOMAYOR , J., dissenting).2 IN RE WHOLE WOMAN’S HEALTH

S OTOMAYOR , J., dissenting the provision of such care, or intends to assist in the provi

sion of such care after embryo nic cardiac activity is detect

able. See Whole Woman’s Health v. Jackson , 595 U. S. ___, ___–___ (2021) (S OTOMAYOR , J., dissenting) (slip op., at 2– 3) ( Whole Woman’s Health II ). This structure was designed to make it more complicated for courts to enjoin the law’s enforcement on a statewide basis. See Whole Woman’s Health I , 594 U. S., at ___–___ (slip op., at 2–3). To maxim

ize the burden of being sued, S. B. 8 also modifies the de

fault rules of procedure to an extraordinary extent. See Whole Woman’s Health II , 595 U. S., at ___–___ (slip op., at 3–4). The petitioners, abortion providers and advocates, chal

lenged S. B. 8 in the Western District of Texas. The defend

ants, including several state medical licensing officials, moved to dismiss the case. Af ter this Court twice declined to block S. B. 8 from taking effect, it granted certiorari be

fore judgment to decide whet her the case could proceed. Whole Woman’s Health v. Jackson
, 595 U. S. ___ (2021). “[S]tand[ing] in the shoes of the Court of Appeals,” this Court “review[ed] the defendants’ appeals challenging the District Court’s order denying their motions to dismiss.” Whole Woman’s Health II , 595 U. S., at ___ (opinion of the Court) (slip op., at 4). The Court held suit could not proceed against some defendants. Id., at ___–___ (slip op., at 4–11). However, “eight Justices h[eld] th[e] case may proceed past the motion to dismiss stage ag ainst” the licensing officials, who had authority to enforce S. B. 8 for purposes of the mo

tion to dismiss stage. Id., at ___ (slip op., at 17). The eight Justices who “agree[d]” on this point, id., at ___ (R OBERTS , C. J., concurring in judgment in part and dis

senting in part) (slip op., at 2), also made plain that the lit

igation must continue apace. Four wrote that “the District Court should resolve this litigation and enter appropriate relief without delay.” Ibid. The other four stressed the “ex

traordinary solicitude” they had given the case. Id., at ___,3 Cite as: 595 U. S. ____ (2022)

S OTOMAYOR , J., dissenting

n. 6 (opinion of the Court) (slip op., at 17, n. 6). And they emphasized that any dispute among the eight Justices “[wa]sn’t really about whether this case should proceed,” but “about which particular defendants the petitioners may sue.” Id., at ___, n. 5 (slip op., at 15, n. 5). Soon after, J USTICE G ORSUCH granted the petitioners’ application to is

sue the judgment forthwith, rather than waiting the stand

ard 25 days. 2 After this Court issued its judgment, however, the litiga

tion stalled. The Fifth Circuit should have immediately re

manded this case to the Distri ct Court, allowing it to con

sider whether to issue prelimi nary relief. But Texas moved to certify to the Supreme Court of Texas the question this Court had just decided: whethe r state licensing officials had authority under state law to enforce S. B. 8. Texas never asked the Fifth Circuit to certify this question during its first pass through that court, no r did it ever ask this Court to do so. Even so, a Fifth Circuit panel indulged the request by scheduling oral argument. Judge Higginson dissented from the court’s decision to do so, explaining that he “d[id] not read the Supreme Court’s judgment, especially in a case of this magnitude and acceleration, to countenance such de

lay.” Whole Woman’s Health v. Jackson , No. 21–50792 (Dec. 27, 2021), p. 1. On January 3, 2022, the petitioners requested a writ of mandamus from this Court ordering the panel below to re

mand the case to the District Court. At argument before the Fifth Circuit four days later, one judge on the panel raised the notion that because this Court is considering a challenge to Roe v. Wade , 410 U. S. 113 (1973), the panel could “just sit on this until the end of June” rather than fulfill its obligation to apply existing precedent. Recording

——————

2 The petitioners also asked the Cour t to remand the case directly to the District Court, skipping over th e Court of Appeals, but they did not identify any previous case in which this Court had done so, nor any au

thority under which this Court could have done so.4 IN RE WHOLE WOMAN’S HEALTH

S OTOMAYOR , J., dissenting of Oral Arg. in No. 21–50792 (CA5, Jan. 7, 2022), at 37:40– 38:17. Ten days after argument, before this Court had taken any action on the mandamus petition, the panel granted Texas’ request for certification. See Whole Woman’s Health v. Jackson , 2022 WL 142193, *2, ___ F. 4th ___, ___ (CA5 2022). The majority professed that “the issues before [it] [we]re not about abortion,” and it deemed certification war

ranted primarily because the pl urality and the solo dissent in Whole Woman’s Health II had expressed some uncer

tainty as to the best reading of state law. 2022 WL 142193, *1–*3. Judge Higginson dissented again. He emphasized that the delay inherent in ce rtification was inconsistent with this Court’s mandate. Id., at *6. He added that the panel’s decision to certify “effe ctively t[old] the Court that its opinion was advisory”; explained that Texas’ request was untimely; and concluded that the panel’s decision gave Texas a second bite at a reading of state law that the Fifth Circuit had previously adopted, but this Court had rejected. Id., at *7.

II The panel’s actions on remand clearly defy this Court’s judgment for the reasons ably explained by Judge Hig

ginson. This Court could, and should, have granted a writ of mandamus ordering the panel below to withdraw certifi

cation and remand to the District Court. Mandamus relief is an “extraordinary remedy” appropriate for the “excep

tional circumstances” now before this Court, where a lower court’s failure to follow this Co urt’s clear dictates has left petitioners with “no other adequate means” to enforce their “clear and indisputable” rights. Cheney v. United States Dist. Court for D. C. , 542 U. S. 367, 380–381 (2004) (inter

nal quotation marks omitted). After this Court resolved the appeal, there was no defen

-5 Cite as: 595 U. S. ____ (2022)

S OTOMAYOR , J., dissenting sible basis for the Fifth Circuit panel to delay the resump

tion of proceedings in the Distri ct Court. Of course, “Texas courts and not this one are the final arbiters of the meaning of state statutory directions.” Whole Woman’s Health II

, 595 U. S., at ___ (opinion of G ORSUCH , J.) (slip op., at 13). And, in appropriate cases and upon timely request, certifi

cation is a valuable tool. It was not appropriate or timely here. This Court had already “h[e]ld th[e] case may proceed past the motion to dismiss stag e” against the licensing offi

cials based on the arguments before it. Id., at ___ (slip op., at 17). Texas, meanwhile, neve r asked for certification of the question at any point before this Court decided it, de

spite being on notice from the moment suit was filed that the scope of the licensing officials’ state-law duties would be at issue. Neither Texas nor the panel identify a single case in which a lower federal court has certified a question in such a posture. Under the circumstances at hand, Texas’ belated request was a transpare nt effort to impede adjudi

cation of the merits of the petitioners’ claims. By blessing this tactic, the panel ignore d this Court’s clear message that this case should proceed —and proceed expeditiously. Nevertheless, the Court now denies mandamus relief. This decision is especially troubling in view of the panel’s misreading of Whole Woman’s Health II

. As to the licensing officials, the eight-Justice majo rity agreed: Suit could “pro

ceed past the motion to dismiss stage” because, based on the arguments presented, the licensing officials had sufficient authority to enforce S. B. 8. Ibid. ; see also id., at ___ (opin

ion of R OBERTS , C. J.) (slip op., at 2) (“agree[ing]” and citing the state statute on which the principal opinion had relied). Despite this express consensus, the panel incorrectly in

sisted that there was “no majority rationale.” 2022 WL 142193, *3. Straying further still, the panel described itself as “bound” in part by the views of the lone dissent on this6 IN RE WHOLE WOMAN’S HEALTH

S OTOMAYOR , J., dissenting point. Ibid. 3 This Court should not accept such an egregious distortion of its decision. I would grant the writ.

III Contrary to the assertions of the panel below, this case is about abortion. As evidence, one need only note the judge below’s musings about sitting on the case until this Court decides the pending challenge to Roe

. Indeed, the entire S. B. 8 scheme employs technica l entanglements specifically to smother the federal right to choose. Because our prece

dents are clear that Texas cannot directly ban abortion be

fore viability, the state legislature enacted a convoluted law that instills terror in those who assist women exercising their rights between 6 and 24 weeks. State officials knew that the fear and confusion caus ed by this legal-procedural labyrinth would restrict citizens from accessing constitu

tionally protected medical care, providers from offering it, and federal courts from restoring it. The dilatory tactics to which this Court accedes today are consistent with, and part of, this scheme. I dissented in Whole Woman’s Health II because the Court’s dismissal of the most important portions of the pe

titioners’ claims, beyond bein g unfaithful to our precedents, left all manner of constitutional rights vulnerable to nulli

fication. 595 U. S., at ___–___ (slip op., at 10–13). I ex

plained that the Court had “clear[ed] the way for States to reprise and perfect Texas’ scheme in the future” in order to target this and other rights with impunity. Id., at ___ (slip

——————

3 The panel also emphasized that this Court issued its judgment to the Fifth Circuit rather than the District Court after Texas first disclosed its intent to seek certification. Whole Woman’s Health v. Jackson
, 2022 WL 142193, *2, ___ F. 4th ___, ___ (CA5 20 22). As explained, however, the petitioners cited no authority under which this Court could remand di

rectly to the District Court. Even if they had, a summa ry order from one Justice would not give a lower court lic ense to dismiss a holding of this Court.7 Cite as: 595 U. S. ____ (2022)

S OTOMAYOR , J., dissenting op., at 12). I refrained, however, from criticizing the effi

cacy of any relief stemming from the limited slice of this particular case that the Court allowed to proceed. I hoped that even with the case narro wed, the District Court could enter some mitigating relief, th ough not the complete relief to which I believed the petitioners were entitled. I was wrong. Today’s decisi on shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off. Despite this Court’s protestations over the “ex

traordinary solicitude” it gave this case and the narrowness of any dispute, it accepts yet another dilatory tactic by Texas. As a result, the Dis trict Court will remain powerless to address S. B. 8’s unconstitutional chill on abortion care, likely for months to come. This case is a disaster for the rule of law and a grave dis

service to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee. I dissent.