Whole Woman’s Health v. Jackson and its Implications

By: Daniel Wolf

Edited By: Alexandre Brunet and Michael Crystal

         The Supreme Court recently released its decision in Whole Woman’s Health v. Jackson. The case revolved around Texas’s S.B. 8 law, which prohibits doctors from performing abortions after around six weeks into a woman’s pregnancy. S.B. 8 clearly violates Roe v. Wade, the landmark 1973 case in which the Court determined that the Due Process Clause of the Fourteenth Amendment allows women to seek abortions. Consequently, Texas devised a unique strategy for enforcing S.B. 8. To elude judicial review, Texas granted only private citizens – rather than state officials – the right to enforce the law. S.B. 8 provides citizens with “not less than $10,000” for each successful lawsuit brought against someone seeking an abortion made illegal under S.B. 8 or someone who intended to help provide a woman with an illegal abortion.[1] Essentially, this law designated all citizens as bounty hunters and removed all enforcement responsibility from state officials. By positioning private citizens as the enforcers of S.B. 8, Texas intentionally made it unclear whom abortion providers could sue to overturn the law. Ultimately, the Supreme Court remanded the case to a lower court, allowing S.B. 8 to remain in effect for the time being. Moreover, the Court issued a separate decision that prevents citizens from suing most Texas state officials over S.B. 8, drastically limiting people’s ability to effectively challenge the law until its constitutionality can once again be questioned. The Court’s limited ruling in Jackson has troubling implications for protecting fundamental rights in America and could cause states to pass a spate of laws similar to S.B. 8. 

         The Court’s opinion in Jackson is multipronged. In an 8-1 decision, the Court ruled that abortion providers may challenge S.B. 8 by suing “executive licensing officials” in Texas.[2] While this ruling may sound exciting for abortion access supporters, “executive licensing officials” include only state officials “responsible for licensing medical providers.”[3] Notably, it excludes higher-ranking Texas officials, such as court clerks, the attorney general, or the governor. These narrow grounds on which the Court has authorized lawsuits will make further challenges to the law exceedingly difficult.[4] Those wishing to sue the state for S.B. 8 will only be able to secure injunctions “preventing medical providers from being delicensed,” which, as The Guardian writes, will render their lawsuits “largely toothless.”[5] There is no indication that lawsuits brought against licensing officials would prevent potential bounty hunters from filing their own lawsuits, and private citizens may still be able to sue those who help facilitate an abortion.[6]

         In a separate 5-4 decision, the Court explicitly ruled that abortion providers may not sue Texas state clerks or Texas’s attorney general. Justice Neil Gorsuch authored the 5-4 opinion, stating that providers could not sue these state officials because of the doctrine of sovereign immunity, which protects states and state officials from private lawsuits.[7] There exists an exception to sovereign immunity called Ex Parte Young, which allows individuals to sue government officials who “attempt to enforce an unconstitutional law” or a law that runs counter to federal law.[8] However, Justice Gorsuch wrote that Young was inapplicable for state clerks and judges because the exception “does not normally permit federal courts to issue injunctions against state-court judges or clerks.”[9] Gorsuch concluded that suits brought against the attorney general could not proceed because, under the specifics of S.B. 8, the attorney general lacks “any enforcement authority.”[10] 

         There are numerous points of contention in Gorsuch’s argument. First, Gorsuch opines that state clerks and the attorney general are free from lawsuits because of sovereign immunity. However, this assessment requires an exclusionary reading of the precedent outlined in Young. As Chief Justice Roberts noted in his dissent, Young allows individuals to sue state officials for enforcing unconstitutional laws so long as the official in question can “take enforcement actions” under the law.[11] Under S.B. 8, the Texas attorney general can “‘institute an action for a civil penalty’ if a physician violates a rule” of S.B. 8. Thus, the Texas attorney general can “take enforcement actions” under S.B. 8 and should fall under the Young exception.[12] Although court clerks do not “normally” enforce state laws, under the “peculiar” rules of S.B. 8, court clerks still “issue citations and docket S.B. 8 cases” and are thus “sufficiently ‘connect[ed] to such enforcement to be proper defendants’” under Young.[13] 

         A second and more critical issue with Gorsuch’s argument is that he focused too heavily on the intricacies of sovereign immunity and its exceptions. In his dissent, Roberts affirmed that the “novelty” in his analysis of whom sovereign immunity applies to was a consequence of the “novelty of Texas’s scheme.”[14] Indeed, a scheme like Texas’s is unprecedented in America. Gorsuch carefully analyzed the specific details of S.B. 8 and relevant precedent but failed to consider the bigger picture. Texas’s law is a blatant attempt to nullify past Supreme Court rulings. In Marbury v. Madison (1803), perhaps the most important Supreme Court case in America’s history, Chief Justice John Marshall declared for the first time that the Constitution is “the fundamental and paramount law of the nation.”[15] Further, he stated that it “is emphatically the province and duty of the judicial department to say what the law is.”[16] Roberts observed in his dissent that “‘if the legislatures of the several states may, at will, annul the judgments of the courts…and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’”[17] 

         Alas, at least regarding highly contested issues like abortion, the majority of the Court appears to have no interest in enforcing its own rulings. They have demonstrated such by refusing to repeal S.B. 8, which clearly violates the precedents outlined in Roe v. Wade and Planned Parenthood v. Casey. If Texas can violate federal law just by being creative with enforcement tactics, there is nothing to stop other states from doing the same. In a separate dissent, Justice Sonia Sotomayor lambasted the majority opinion because it “effectively invites other States to refine S.B. 8’s model for nullifying federal rights.”[18] Indeed, four states have already begun work on bills strikingly similar to S.B. 8.[19] On December 12, California Governor Gavin Newson announced his intention to design an assault weapons ban akin to S.B. 8 that could run afoul of the Second Amendment like S.B. 8 does of Roe v. Wade. Newsom’s announcement demonstrates that the Court’s decision in Jackson could have unforeseen consequences across the political spectrum.[20] The Court released its decision on December 10, and other states are already using the ruling to devise their own ways to undermine constitutional precedent. If the Court does not reverse course soon and resume enforcing its own precedential opinions, it could lose its position as the final authority on the law of the land, resulting in a dangerous destabilization of the stare decisis-based foundation on which our legal system rests.

Notes:

1. Whole Woman’s Health v. Jackson, 595 U.S. 4 (2021)

2. Whole Woman's Health v. Jackson, 4. 

3. Moira Donegan, “The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem,” The Guardian, Guardian News and Media, December 11, 2021, https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

4. “The Supreme Court’s Abortion Ruling,” The Guardian.

5. “The Supreme Court’s Abortion Ruling,” The Guardian.

6. Mark Joseph Stern, “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate,  December 10, 2021. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html. 

7. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

8. Ex Parte Young, 209 U.S. 123 (1908)

9. Whole Woman's Health v. Jackson, 3.

10. Whole Woman's Health v. Jackson, 3.

11. Whole Woman's Health v. Jackson, 4.

12. Whole Woman's Health v. Jackson, 3.

13. Whole Woman's Health v. Jackson, 3.

14. Whole Woman's Health v. Jackson, 5.

15. Marbury v. Madison, 5 U.S. 137 (1803)

16. Marbury v. Madison, 4.

17. Whole Woman's Health v. Jackson, 4.

18. Whole Woman's Health v. Jackson, 2.

19. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

20. The Associated Press, “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law,” NPR, NPR, December 12, 2021, https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law.

Bibliography:

Ex Parte Young, 209 U.S. 123 (1908)

Marbury v. Madison, 5 U.S. 137 (1803)

Press, The Associated. 2021. “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law.” NPR. NPR. December 12. https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law. 

“The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem | Moira Donegan.” 2021. The Guardian. Guardian News and Media. December 11. https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

Whole Woman's Health v. Jackson, 595 U.S. 4 (2021)

Stern, Mark Joseph. 2021. “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate. December 10. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html.