Supreme Court Leaves Texas Fetal Heartbeat Law In Place, Allows Limited Future Lower Court Challenges
In a complicated and contentious decision authored by Justice Gorsuch, Court rules that Texas state judges, clerks, and Attorney General Paxton cannot be sued to challenge the law, but certain state medical licensing officials can be sued.
Just the other day I noted, Supreme Court Sure Is Taking Its Time Deciding Texas Fetal Heartbeat Law “Expedited” Case.The Court just ruled.
In a complicated decision by Justice Gorsuch, the Court has left in place the Texas Fetal Heartbeat Law (the validity of which was not directly before the court, only whether pre-enforcment challenges could be made against state officials where those state officials had no enforcement power under the law), dismissed most defendants, but left an avenue for challengers to pursue on lower courts. Much of Gorsuch’s opinion was responding to the dissent by Justice Sotomayor.
From Gorsuch’s Opinion:
The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others…
Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. See United States v. Nixon, 418 U. S. 683, 690–692 (1974); S. Shapiro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, Supreme Court Practice 2-11 (11th ed. 2019). In this case, that means we must review the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and
any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of” them. Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995). In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.
After identifying persons and entities who could not be sued because of sovereign immunity, Gorsuch found some claims could be made:
While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage….
Gorsuch provided this summary of the decision:
The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.
Separately, the court rejected the attempt by the U.S. Justice Department to sue, dismissing the case.
(I’m just starting to read the opinions by the other Justices and will add to this post when I do that).
Justice Thomas would have thrown the whole challenge out:
I join all but Part II–C of the Court’s opinion. In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young, 209 U. S. 123 (1908).1 I would reverse in full the District Court’s denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.
 I also would hold that petitioners lack Article III standing. As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients. See June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opinion) (slip op., at 12–14). Third-party standing aside, petitioners also have not shown injury or redressability for many of the same reasons they cannot satisfy Ex parte Young. For injury, petitioners have shown no likelihood of enforcement by any respondent, let alone that enforcement is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410 (2013) (internal quotation marks omitted). For redressability, we held last Term that a party may not “attack an unenforceable statutory provision,” because this Court may not issue “an advisory opinion without the possibility of any judicial relief.” California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 9) (internal quotation marks omitted); see also Muskrat v. United States, 219 U. S. 346, 361 (1911). Likewise here, petitioners seek a declaration that S. B. 8 is unlawful even though no respondent can or will enforce it.
Chief Justice Roberts, joined by the liberal bloc (Breyer, Sotomayor, Kagan), would have allowed suit against additional defendants. In what may be a precursor to the Mississippi case that was just argued that squarely puts Roe v. Wade in issue, Roberts reiterated the Roe v. Wade force of law:
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.1
Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review….
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….
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…. 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….
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.
(2:25 p.m.) Finally completed my heat shield, and got to read Justice Sotomayor’s dissent, joined by Breyer and Kagan. Here’s the opening:
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.
Some more select excerpts.
Now I see why Gorsuch was so preoccupied with responding to Sotomayor’s dissent, she compared what the court was permitting to the breakaway Confederacy:
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….
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)….
The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished…. 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….
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.
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