Whole Woman's Health v. Jackson ( 2021 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
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 en-
acted 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).
The petitioners are abortion providers who sought pre-enforcement
review of S. B. 8 in federal court based on the allegation that S. B. 8
violates the Federal Constitution. The petitioners sought an injunc-
tion barring the following defendants from taking any action to enforce
the statute: a state-court judge, Austin Jackson; a state-court clerk,
Penny Clarkston; Texas attorney general, Ken Paxton; executive di-
rector of the Texas Medical Board, Stephen Carlton; executive director
of the Texas Board of Nursing, Katherine Thomas; executive director
of the Texas Board of Pharmacy, Allison Benz; executive commissioner
of the Texas Health and Human Services Commission, Cecile Young;
2 WHOLE WOMAN’S HEALTH v. JACKSON
Syllabus
and a single private party, Mark Lee Dickson. The public-official de-
fendants moved to dismiss the complaint citing, among other things,
the doctrine of sovereign immunity. Mr. Dickson also moved to dis-
miss, claiming that the petitioners lacked standing to sue him. The
District Court denied these motions. The public-official defendants
filed an interlocutory appeal with the Fifth Circuit under the collateral
order doctrine, which allows immediate appellate review of an order
denying sovereign immunity. The Fifth Circuit decided to entertain a
second interlocutory appeal filed by Mr. Dickson given the overlap in
issues between his appeal and the appeal filed by the public-official
defendants. The Fifth Circuit denied the petitioners’ request for an
injunction barring the law’s enforcement pending resolution of the
merits of the defendants’ appeals, and instead issued an order staying
proceedings in the District Court until that time. The petitioners then
filed a request for injunctive relief with the Court, seeking emergency
resolution of their application ahead of S. B. 8’s approaching effective
date. In the abbreviated time available for review, the Court concluded
that the petitioners’ filings failed to identify a basis in existing law that
could justify disturbing the Fifth Circuit’s decision to deny injunctive
relief. Whole Woman’s Health v. Jackson, 594 U. S. ___, ___. The pe-
titioners then filed another emergency request asking the Court to
grant certiorari before judgment to resolve the defendants’ appeals in
the first instance, which the Court granted.
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 deliv-
ered 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 mean-
ingful 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-en-
forcement challenge against certain of the named defendants but not
others. Pp. 4–11, 14–17.
Cite as: 595 U. S. ____ (2021) 3
Syllabus
(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 al-
lowing an action to prevent state officials from enforcing state laws
that are contrary to federal law, that exception is grounded in tradi-
tional 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 Govern-
ment.” 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 contro-
versy” between “adverse litigants” exists between the petitioners who
challenge S. B. 8 and either the state-court clerks who may docket dis-
putes 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 op-
erations. 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 an-
swers would present themselves if the Court journeyed the way of the
petitioners’ theory. Pp. 4–9.
(2) Texas Attorney General Paxton should be dismissed. The pe-
titioners seek to enjoin him from enforcing S. B. 8, which the petition-
ers suggest would automatically bind any private party interested in
pursuing an S. B. 8 suit. The petitioners have not identified any en-
forcement authority the attorney general possesses in connection with
S. B. 8 that a federal court might enjoin him from exercising. The pe-
titioners point to a state statute that says the attorney general “may
institute an action for a civil penalty of $1,000” for violations of “this
subtitle or a rule or order adopted by the [Texas Medical B]oard,” Tex.
Occ. Code Ann. §165.101, but the qualification “this subtitle” limits the
4 WHOLE WOMAN’S HEALTH v. JACKSON
Syllabus
attorney general’s enforcement authority to the Texas Occupational
Code, and S. B. 8 is not codified within “this subtitle.” Nor have the
petitioners identified for us any “rule or order adopted by the” Texas
Medical Board that the attorney general might enforce against them.
And even if the attorney general did have some enforcement power
under S. B. 8 that could be enjoined, the petitioners have identified no
authority that might allow a federal court to parlay any defendant’s
enforcement authority into an injunction against any and all unnamed
private parties who might seek to bring their own S. B. 8 suits. Con-
sistent with historical practice, a court exercising equitable authority
may enjoin named defendants from taking unlawful actions. But un-
der traditional equitable principles, no court may “enjoin the world at
large,” Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (CA2), or purport to
enjoin challenged “laws themselves.” Whole Woman’s Health, 594
U. S., at ___ (citing California v. Texas, 593 U. S. ___, ___ (slip op, at
8)). Pp. 9–11.
(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 ac-
tions 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-enforce-
ment 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 declara-
tions 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.
(c) The Court holds that the petitioners may bring a pre-enforcement
challenge in federal court as one means to test S. B. 8’s compliance
with the Federal Constitution. Other pre-enforcement challenges are
possible too; one such case is ongoing in state court in which the plain-
tiffs have raised both federal and state constitutional claims against
S. B. 8. Any individual sued under S. B. 8 may raise state and federal
constitutional arguments in his or her defense without limitation.
Whatever a state statute may or may not say about a defense, applica-
ble federal constitutional defenses always stand available when
properly asserted. See U. S. Const., Art. VI. Many federal constitu-
tional rights are as a practical matter asserted typically as defenses to
state-law claims, not in federal pre-enforcement cases like this one.
See, e.g., Snyder v. Phelps, 562 U. S. 443 (First Amendment used as a
defense to a state tort suit). Other viable avenues to contest the law’s
compliance with the Federal Constitution also may be possible and the
Cite as: 595 U. S. ____ (2021) 5
Syllabus
Court does not prejudge the possibility. Pp. 14–16.
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BAR-
RETT, 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.
Cite as: 595 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
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]
JUSTICE GORSUCH delivered the opinion of the Court, ex-
cept as to Part II–C.
The Court granted certiorari before judgment in this case
to determine whether, under our precedents, certain abor-
tion 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.
I
Earlier this year Texas passed the Texas Heartbeat Act,
87th Leg., Reg. Sess., also known as S. B. 8. The Act pro-
hibits physicians from “knowingly perform[ing] or in-
duc[ing] an abortion on a pregnant woman if the physician
detected a fetal heartbeat for the unborn child” unless a
medical emergency prevents compliance. Tex. Health &
Safety Code Ann. §§171.204(a), 171.205(a) (West Cum.
Supp. 2021). But the law generally does not allow state of-
ficials to bring criminal prosecutions or civil enforcement
actions. Instead, S. B. 8 directs enforcement “through . . .
2 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
private civil actions” culminating in injunctions and statu-
tory damages awards against those who perform or assist
prohibited abortions. §§171.207(a), 171.208(a)(2), (3). The
law also provides a defense. Tracking language from
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), the statute 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). 1
After the law’s adoption, various abortion providers
sought to test its constitutionality. Not wishing to wait for
S. B. 8 actions in which they might raise their arguments
in defense, they filed their own pre-enforcement lawsuits.
In all, they brought 14 such challenges in state court seek-
ing, among other things, a declaration that S. B. 8 is incon-
sistent with both the Federal and Texas Constitutions. A
summary judgment ruling in these now-consolidated cases
arrived last night, in which the abortion providers pre-
vailed on certain of their claims. Van Stean v. Texas, No.
D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9,
2021).
Another group of providers, including the petitioners be-
fore us, filed a pre-enforcement action in federal court. In
their complaint, the petitioners alleged that S. B. 8 violates
the Federal Constitution and sought an injunction barring
the following defendants from taking any action to enforce
the statute: a state-court judge, Austin Jackson; a state-
court clerk, Penny Clarkston; Texas attorney general, Ken
——————
1 JUSTICE SOTOMAYOR suggests that the defense described in S. B. 8
supplies only a “shell of what the Constitution requires” and effectively
“nullif[ies]” its guarantees. Post, at 2–4 (opinion concurring in judgment
in part and dissenting in part); see also post, at 1, n. 1 (ROBERTS, C. J.,
concurring in judgment in part and dissenting in part). But whatever a
state statute may or may not say, applicable federal constitutional de-
fenses always stand fully available when properly asserted. See U. S.
Const., Art. VI.
Cite as: 595 U. S. ____ (2021) 3
Opinion of the Court
Paxton; executive director of the Texas Medical Board, Ste-
phen Carlton; executive director of the Texas Board of
Nursing, Katherine Thomas; executive director of the Texas
Board of Pharmacy, Allison Benz; executive commissioner
of the Texas Health and Human Services Commission,
Cecile Young; and a single private party, Mark Lee Dick-
son.
Shortly after the petitioners filed their federal complaint,
the individual defendants employed by Texas moved to dis-
miss, citing among other things the doctrine of sovereign
immunity. App. to Pet. for Cert. 3a. The sole private de-
fendant, Mr. Dickson, also moved to dismiss, claiming that
the petitioners lacked standing to sue him. 13 F. 4th 434,
445 (CA5 2021) (per curiam). The District Court denied the
motions. Ibid.The defendants employed by Texas responded by pursu-
ing an interlocutory appeal in the Fifth Circuit under the
collateral order doctrine. See Puerto Rico Aqueduct and
Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 147
(1993) (collateral order doctrine allows immediate appellate
review of order denying claim of sovereign immunity). Mr.
Dickson also filed an interlocutory appeal. The Fifth
Circuit agreed to take up his appeal because the issues it
raised overlapped with those already before the court in the
Texas official defendants’ appeal. 13 F. 4th, at 438–439.
Separately, the petitioners also sought relief from the
Fifth Circuit. Citing S. B. 8’s impending effective date, they
asked the court to issue an injunction suspending the law’s
enforcement until the court could hear and decide the mer-
its of the defendants’ appeals. Ibid. The Fifth Circuit de-
clined the petitioners’ request. Instead, that court issued
an order staying proceedings in the District Court until it
could resolve the defendants’ appeals. App. to Pet. for Cert.
79a; 13 F. 4th, at 438–439, 443.
In response to these developments, the petitioners sought
emergency injunctive relief in this Court. In their filing,
4 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
the petitioners asked us to enjoin any enforcement of
S. B. 8. And given the statute’s approaching effective date,
they asked us to rule within two days. The Court took up
the application and, in the abbreviated time available for
review, concluded that the petitioners’ submission failed to
identify a basis in existing law sufficient to justify disturb-
ing the Court of Appeals’ decision denying injunctive relief.
Whole Woman’s Health v. Jackson, 594 U. S. ___ (2021).
After that ruling, the petitioners filed a second emer-
gency request. This time they asked the Court to grant
certiorari before judgment to resolve the defendants’ inter-
locutory appeals in the first instance, without awaiting the
views of the Fifth Circuit. This Court granted the petition-
ers’ request and set the case for expedited briefing and
argument. 595 U. S. ___ (2021).
II
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. Himmel-
farb, 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 mo-
tions to dismiss. As with any interlocutory appeal, our re-
view is limited to the particular orders under review and
any other ruling “inextricably intertwined with” or “neces-
sary to ensure meaningful review of ” them. Swint v. Cham-
bers County Comm’n, 514 U. S. 35, 51 (1995). In this pre-
liminary 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.
A
Turning to the matters that are properly put to us, we
Cite as: 595 U. S. ____ (2021) 5
Opinion of the Court
begin with the sovereign immunity appeal involving the
state-court judge, Austin Jackson, and the state-court clerk,
Penny Clarkston. While this lawsuit names only one state-
court judge and one state-court clerk as defendants, the pe-
titioners explain that they hope eventually to win certifica-
tion of a class including all Texas state-court judges and
clerks as defendants. In the end, the petitioners say, they
intend to seek an order enjoining all state-court clerks from
docketing S. B. 8 cases and all state-court judges from hear-
ing them.
Almost immediately, however, the petitioners’ theory
confronts a difficulty. Generally, States are immune from
suit under the terms of the Eleventh Amendment and the
doctrine of sovereign immunity. See, e.g., Alden v. Maine,
527 U. S. 706, 713 (1999). To be sure, in Ex parte Young,
this Court recognized a narrow exception grounded in tra-
ditional equity practice—one that allows certain private
parties to seek judicial orders in federal court preventing
state executive officials from enforcing state laws that are
contrary to federal law. 209 U. S. 123, 159–160 (1908). But
as Ex parte Young explained, this traditional exception does
not normally permit federal courts to issue injunctions
against state-court judges or clerks. Usually, those individ-
uals do not enforce state laws as executive officials might;
instead, they work to resolve disputes between parties. If a
state court errs in its rulings, too, the traditional remedy
has been some form of appeal, including to this Court, not
the entry of an ex ante injunction preventing the state court
from hearing cases. As Ex parte Young put it, “an injunc-
tion against a state court” or its “machinery” “would be a
violation of the whole scheme of our Government.” Id., at
163.
Nor is that the only problem confronting the petitioners’
court-and-clerk theory. Article III of the Constitution af-
fords federal courts the power to resolve only “actual con-
troversies arising between adverse litigants.” Muskrat v.
6 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
United States, 219 U. S. 346, 361 (1911). Private parties
who seek to bring S. B. 8 suits in state court may be liti-
gants adverse to the petitioners. But the state-court clerks
who docket those disputes and the state-court judges who
decide them generally are not. Clerks serve to file cases as
they arrive, not to participate as adversaries in those dis-
putes. Judges exist to resolve controversies about a law’s
meaning or its conformance to the Federal and State Con-
stitutions, not to wage battle as contestants in the parties’
litigation. As this Court has explained, “no case or contro-
versy” exists “between a judge who adjudicates claims un-
der a statute and a litigant who attacks the constitutional-
ity of the statute.” Pulliam v. Allen, 466 U. S. 522, 538,
n. 18 (1984).
Then there is the question of remedy. Texas Rule of Civil
Procedure 24 directs state-court clerks to accept complaints
and record case numbers. The petitioners have pointed to
nothing in Texas law that permits clerks to pass on the sub-
stance of the filings they docket—let alone refuse a party’s
complaint based on an assessment of its merits. Nor does
Article III confer on federal judges some “amorphous”
power to supervise “the operations of government” and
reimagine from the ground up the job description of Texas
state-court clerks. Raines v. Byrd, 521 U. S. 811, 829 (1997)
(internal quotation marks omitted).
Troubling, too, the petitioners have not offered any mean-
ingful limiting principles for their theory. If it caught on
and federal judges could enjoin state courts and clerks from
entertaining disputes between private parties under this
state law, what would stop federal judges from prohibiting
state courts and clerks from hearing and docketing disputes
between private parties under other state laws? And if the
state courts and clerks somehow qualify as “adverse liti-
gants” for Article III purposes in the present case, when
would they not? The petitioners offer no satisfactory an-
swers.
Cite as: 595 U. S. ____ (2021) 7
Opinion of the Court
Instead, only further questions follow. Under the peti-
tioners’ theory, would clerks have to assemble a blacklist of
banned claims subject to immediate dismissal? What kind
of inquiry would a state court have to apply to satisfy due
process before dismissing those suits? How notorious would
the alleged constitutional defects of a claim have to be be-
fore a state-court clerk would risk legal jeopardy merely for
filing it? Would States have to hire independent legal coun-
sel for their clerks—and would those advisers be the next
target of suits seeking injunctive relief ? When a party
hales a state-court clerk into federal court for filing a com-
plaint containing a purportedly unconstitutional claim,
how would the clerk defend himself consistent with his eth-
ical obligation of neutrality? See Tex. Code of Judicial Con-
duct Canon 3(B)(10) (2021) (instructing judges and court
staff to abstain from taking public positions on pending or
impending proceedings). Could federal courts enjoin those
who perform other ministerial tasks potentially related to
litigation, like the postal carrier who delivers complaints to
the courthouse? Many more questions than answers would
present themselves if the Court journeyed this way.
Our colleagues writing separately today supply no an-
swers either. They agree that state-court judges are not
proper defendants in this lawsuit because they are “in no
sense adverse” to the parties whose cases they decide. Post,
at 4 (opinion of ROBERTS, C. J.). At the same time, our col-
leagues say they would allow this case to proceed against
clerks like Ms. Clarkston. See ibid.; see also post, at 7 (opin-
ion of SOTOMAYOR, J.). But in doing so they fail to address
the many remedial questions their path invites. They ne-
glect to explain how clerks who merely docket S. B. 8 law-
suits can be considered “adverse litigants” for Article III
purposes while the judges they serve cannot. And they fail
to reconcile their views with Ex parte Young. THE CHIEF
JUSTICE acknowledges, for example, that clerks set in mo-
tion the “ ‘machinery’ ” of court proceedings. Post, at 4. Yet
8 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
he disregards Ex parte Young’s express teaching against
enjoining the “machinery” of courts. 209 U. S., at 163.
JUSTICE SOTOMAYOR seems to admit at least part of the
problem. She concedes that older “wooden” authorities like
Ex parte Young appear to prohibit suits against state-court
clerks. Post, at 7. Still, she insists, we should disregard
those cases in favor of more “modern” case law. Ibid. In
places, THE CHIEF JUSTICE’s opinion seems to pursue much
the same line of argument. See post, at 4. But even over-
looking all the other problems attending our colleagues’
“clerks-only” theory, the authorities they cite do not begin
to do the work attributed to them.
Most prominently, our colleagues point to Pulliam. But
that case had nothing to do with state-court clerks, injunc-
tions against them, or the doctrine of sovereign immunity.
Instead, the Court faced only the question whether the suit
before it could proceed against a judge consistent with the
distinct doctrine of judicial immunity. 466 U. S., at 541–
543. As well, the plaintiff sought an injunction only to pre-
vent the judge from enforcing a rule of her own creation.
Id., at 526. No one asked the Court to prevent the judge
from processing the case consistent with state statutory
law, let alone undo Ex parte Young’s teaching that federal
courts lack such power under traditional equitable princi-
ples. Tellingly, our colleagues do not read Pulliam to au-
thorize claims against state-court judges in this case. And
given that, it is a mystery how they might invoke the case
as authority for claims against (only) state-court clerks, of-
ficials Pulliam never discussed.
If anything, the remainder of our colleagues’ cases are
even further afield. Mitchum v. Foster did not involve state-
court clerks, but a judge, prosecutor, and sheriff. See 315
F. Supp. 1387, 1388 (ND Fla. 1970) (per curiam). When it
came to these individuals, the Court held only that the
Anti-Injunction Act did not bar suit against them. 407 U. S.
225, 242–243 (1972). Once more, the Court did not purport
Cite as: 595 U. S. ____ (2021) 9
Opinion of the Court
to pass judgment on any sovereign immunity defense, let
alone suggest any disagreement with Ex parte Young. To
the contrary, the Court went out of its way to emphasize
that its decision should not be taken as passing on the ques-
tion whether “principles of equity, comity, and federalism”
might bar the suit. 407 U. S., at 243. Meanwhile, Shelley
v. Kraemer did not even involve a pre-enforcement chal-
lenge against any state-official defendant. 334 U. S. 1(1948). There, the petitioners simply sought to raise the
Constitution as a defense against other private parties seek-
ing to enforce a restrictive covenant, id., at 14, much as the
petitioners here would be able to raise the Constitution as
a defense in any S. B. 8 enforcement action brought by oth-
ers against them. Simply put, nothing in any of our col-
leagues’ cases supports their novel suggestion that we
should allow a pre-enforcement action for injunctive relief
against state-court clerks, all while simultaneously holding
the judges they serve immune.
B
Perhaps recognizing the problems with their court-and-
clerk theory, the petitioners briefly advance an alternative.
They say they seek to enjoin the Texas attorney general
from enforcing S. B. 8. Such an injunction, the petitioners
submit, would also automatically bind any private party
who might try to bring an S. B. 8 suit against them. Reply
Brief for Petitioners 21. But the petitioners barely develop
this back-up theory in their briefing, and it too suffers from
some obvious problems.
Start with perhaps the most straightforward. While
Ex parte Young authorizes federal courts to enjoin certain
state officials from enforcing state laws, the petitioners do
not direct this Court to any enforcement authority the at-
torney general possesses in connection with S. B. 8 that a
federal court might enjoin him from exercising. Maybe the
closest the petitioners come is when they point to a state
10 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
statute that says the attorney general “may institute an ac-
tion for a civil penalty of $1,000” for violations of “this sub-
title or a rule or order adopted by the [Texas Medical
B]oard.” Tex. Occ. Code Ann. §165.101 (West 2012). But
the qualification “this subtitle” limits the attorney general’s
enforcement authority to the Texas Occupational Code, spe-
cifically §§151.001 through 171.024. By contrast, S. B. 8 is
codified in the Texas Health and Safety Code at §§171.201–
171.212. The Act thus does not fall within “this subtitle.”
Nor have the petitioners identified for us any “rule or order
adopted by the” Texas Medical Board related to S. B. 8 that
the attorney general might enforce against them. To be
sure, some of our colleagues suggest that the Board might
in the future promulgate such a rule and the attorney gen-
eral might then undertake an enforcement action. Post, at
3 (opinion of ROBERTS, C. J.) (citing 22 Tex. Admin. Code
§190.8(7) (West 2021)). But this is a series of hypotheticals
and an argument even the petitioners do not attempt to ad-
vance for themselves.
Even if we could overcome this problem, doing so would
only expose another. Supposing the attorney general did
have some enforcement authority under S. B. 8, the peti-
tioners have identified nothing that might allow a federal
court to parlay that authority, or any defendant’s enforce-
ment authority, into an injunction against any and all un-
named private persons who might seek to bring their own
S. B. 8 suits. The equitable powers of federal courts are lim-
ited by historical practice. Atlas Life Ins. Co. v. W. I. South-
ern, Inc., 306 U. S. 563, 568 (1939). “A court of equity is as
much so limited as a court of law.” Alemite Mfg. Corp. v.
Staff, 42 F. 2d 832 (CA2 1930) (L. Hand, J.). Consistent
with historical practice, a federal court exercising its equi-
table authority may enjoin named defendants from taking
specified unlawful actions. But under traditional equitable
principles, no court may “lawfully enjoin the world at
Cite as: 595 U. S. ____ (2021) 11
OpinionofofGthe
Opinion Court
ORSUCH, J.
large,” ibid., or purport to enjoin challenged “laws them-
selves,” Whole Woman’s Health, 594 U. S., at ___ (slip op.,
at 1) (citing California v. Texas, 593 U. S. ___, ___ (2021)
(slip op., at 8)).
Our colleagues offer no persuasive reply to this problem.
THE CHIEF JUSTICE does not address it. Meanwhile,
JUSTICE SOTOMAYOR offers a radical answer, suggesting
once more that this Court should cast aside its precedents
requiring federal courts to abide by traditional equitable
principles. Post, at 9, n. 3. This time, however, JUSTICE
SOTOMAYOR does not claim to identify any countervailing
authority to support her proposal. Instead, she says, it is
justified purely by the fact that the State of Texas in S. B. 8
has “delegat[ed] its enforcement authority to the world at
large.” Ibid. But somewhat analogous complaints could be
levied against private attorneys general acts, statutes al-
lowing for private rights of action, tort law, federal anti-
trust law, and even the Civil Rights Act of 1964. In some
sense all of these laws “delegate” the enforcement of public
policy to private parties and reward those who bring suits
with “bount[ies]” like exemplary or statutory damages and
attorney’s fees. Nor does JUSTICE SOTOMAYOR explain
where her novel plan to overthrow this Court’s precedents
and expand the equitable powers of federal courts would
stop—or on what theory it might plausibly happen to reach
just this case or maybe those exactly like it. 2
C
While this Court’s precedents foreclose some of the peti-
tioners’ claims for relief, others survive. The petitioners
——————
2 This is not to say that the petitioners, or other abortion providers,
lack potentially triable state-law claims that S. B. 8 improperly dele-
gates state law enforcement authority. Nor do we determine whether
any particular S. B. 8 plaintiff possesses standing to sue under state jus-
ticiability doctrines. We note only that such arguments do not justify
federal courts abandoning traditional limits on their equitable authority
and our precedents enforcing them.
12 WHOLE WOMAN’S HEALTH v. JACKSON
OpinionofofGthe
Opinion Court
ORSUCH, J.
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 indi-
viduals is an executive licensing official who may or must
take enforcement actions against the petitioners if they vi-
olate the terms of Texas’s Health and Safety Code, includ-
ing 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. 3
JUSTICE THOMAS alone reaches a different conclusion.
He emphasizes that suits seeking equitable relief against
executive officials are permissible only when supported by
tradition. See post, at 2–3 (opinion concurring in part and
dissenting in part). He further emphasizes that the rele-
vant tradition here, embodied in Ex parte Young, permits
equitable relief against only those officials who possess au-
thority to enforce a challenged state law. Post, at 3–4. We
agree with all of these principles; our disagreement is re-
stricted to their application.
JUSTICE THOMAS suggests that the licensing-official de-
fendants lack authority to enforce S. B. 8 because that stat-
ute says it is to be “exclusively” enforced through private
civil actions “[n]otwithstanding . . . any other law.” See
Tex. Health & Safety Code Ann. §171.207(a). But the same
provision of S. B. 8 also states that the law “may not be con-
strued to . . . limit the enforceability of any other laws that
regulate or prohibit abortion.” §171.207(b)(3). This saving
clause is significant because, as best we can tell from the
briefing before us, the licensing-official defendants are
——————
3 The petitioners may proceed against Ms. Young solely based on her
authority to supervise licensing of abortion facilities and ambulatory sur-
gical centers, and not with respect to any other enforcement authority
under Chapter 171 of the Texas Health and Safety Code.
Cite as: 595 U. S. ____ (2021) 13
OpinionofofGthe
Opinion Court
ORSUCH, J.
charged with enforcing “other laws that regulate . . . abor-
tion.” Consider, for example, Texas Occupational Code
§164.055, titled “Prohibited Acts Regarding Abortion.”
That provision states that the Texas Medical Board “shall
take an appropriate disciplinary action against a physician
who violates . . . Chapter 171, Health and Safety Code,” a
part of Texas statutory law that includes S. B. 8. Accord-
ingly, it appears Texas law imposes on the licensing-official
defendants a duty to enforce a law that “regulate[s] or pro-
hibit[s] abortion,” a duty expressly preserved by S. B. 8’s
saving clause. Of course, Texas courts and not this one are
the final arbiters of the meaning of state statutory direc-
tions. See Railroad Comm’n of Tex. v. Pullman Co., 312
U. S. 496, 500 (1941). But at least based on the limited ar-
guments put to us at this stage of the litigation, it appears
that the licensing defendants do have authority to enforce
S. B. 8. 4
In the face of this conclusion, JUSTICE THOMAS advances
an alternative argument. He stresses that to maintain a
suit consistent with this Court’s Ex parte Young and Article
III precedents, “it is not enough that petitioners ‘feel inhib-
ited’ ” or “ ‘chill[ed]’ ” by the abstract possibility of an en-
forcement action against them. Post, at 6–7. Rather, they
must show at least a credible threat of such an action
against them. Post, at 7. Again, we agree with these obser-
vations in principle and disagree only on their application
——————
4 Tending to confirm our understanding of the statute is the fact that
S. B. 8 expressly prohibits “enforcement of Chapters 19 and 22, Penal
Code, in response to violations of this subchapter.” Tex. Health & Safety
Code Ann. §171.207(a). This language suggests that the Texas Legisla-
ture knew how to prohibit collateral enforcement mechanisms when it
adopted S. B. 8, and understood that it was necessary to do so. To read
S. B. 8 as barring any collateral enforcement mechanisms without a spe-
cific exclusion would thus threaten to render this statutory language su-
perfluous. See Kallinen v. Houston, 462 S. W. 3d 25, 28 (Tex. 2015)
(courts should avoid treating any statutory language as surplusage);
Kungys v. United States, 485 U. S. 759, 778 (1988) (same).
14 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
to the facts of this case. The petitioners have plausibly al-
leged that S. B. 8 has already had a direct effect on their
day-to-day operations. See Complaint ¶¶103, 106–109.
And they have identified provisions of state law that appear
to impose a duty on the licensing-official defendants to
bring disciplinary actions against them if they violate
S. B. 8. In our judgment, this is enough at the motion to
dismiss stage to suggest the petitioners will be the target of
an enforcement action and thus allow this suit to proceed.
D
While this interlocutory appeal focuses primarily on the
Texas official defendants’ motion to dismiss on grounds of
sovereign immunity and justiciability, before we granted
certiorari the Fifth Circuit also agreed to take up an appeal
by the sole private defendant, Mr. Dickson. In the briefing
before us, no one contests this decision. In his appeal, Mr.
Dickson argues that the petitioners lack standing to sue
him because he possesses no intention to file an S. B. 8 suit
against them. Mr. Dickson has supplied sworn declarations
so attesting. See, e.g., Brief for Respondent Dickson 32.
The petitioners do not contest this testimony or ask us to
disregard it. Accordingly, on the record before us the peti-
tioners cannot establish “personal injury fairly traceable to
[Mr. Dickson’s] allegedly unlawful conduct.” California v.
Texas, 593 U. S., at ___ (slip op., at 9) (internal quotation
marks omitted). No Member of the Court disagrees with
this resolution of the claims against Mr. Dickson.
III
While this should be enough to resolve the petitioners’
appeal, a detour is required before we close. JUSTICE
SOTOMAYOR charges this Court with “shrink[ing]” from the
task of defending the supremacy of the Federal Constitu-
tion over state law. Post, at 10. That rhetoric bears no re-
lation to reality.
Cite as: 595 U. S. ____ (2021) 15
Opinion of the Court
The truth is, many paths exist to vindicate the supremacy
of federal law in this area. Even aside from the fact that
eight Members of the Court agree sovereign immunity does
not bar the petitioners from bringing this pre-enforcement
challenge in federal court, everyone acknowledges that
other pre-enforcement challenges may be possible in state
court as well. 5 In fact, 14 such state-court cases already
seek to vindicate both federal and state constitutional
claims against S. B. 8—and they have met with some suc-
cess at the summary judgment stage. See supra, at 2. Sep-
arately, any individual sued under S. B. 8 may pursue state
and federal constitutional arguments in his or her defense.
See n. 1, supra. Still further viable avenues to contest the
law’s compliance with the Federal Constitution also may be
possible; we do not prejudge the possibility. Given all this,
JUSTICE SOTOMAYOR’S suggestion that the Court’s ruling
somehow “clears the way” for the “nullification” of federal
law along the lines of what happened in the Jim Crow South
not only wildly mischaracterizes the impact of today’s deci-
sion, it cheapens the gravity of past wrongs. Post, at 11.
The truth is, too, that unlike the petitioners before us,
those seeking to challenge the constitutionality of state
laws are not always able to pick and choose the timing and
preferred forum for their arguments. This Court has never
recognized an unqualified right to pre-enforcement review
of constitutional claims in federal court. In fact, general
federal question jurisdiction did not even exist for much of
this Nation’s history. See Mims v. Arrow Financial Ser-
vices, LLC, 565 U. S. 368, 376 (2012). And pre-enforcement
review under the statutory regime the petitioners invoke,
——————
5 JUSTICE SOTOMAYOR’s complaint thus isn’t really about whether this
case should proceed. It is only about which particular defendants the
petitioners may sue in this particular lawsuit. And even when it comes
to that question, JUSTICE SOTOMAYOR agrees with the Court regarding
the proper disposition of several classes of defendants—state-court
judges, licensing officials, and Mr. Dickson.
16 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
42 U. S. C. §1983, was not prominent until the mid-
20th century. See Monroe v. Pape, 365 U. S. 167, 180
(1961); see also R. Fallon, J. Manning, D. Meltzer, & D.
Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System 994 (7th ed. 2015). To this day, many fed-
eral constitutional rights are as a practical matter asserted
typically as defenses to state-law claims, not in federal pre-
enforcement cases like this one. See, e.g., Snyder v. Phelps,
562 U. S. 443 (2011) (First Amendment used as a defense
to a state tort suit).
Finally, JUSTICE SOTOMAYOR contends that S. B. 8
“chills” the exercise of federal constitutional rights. If noth-
ing else, she says, this fact warrants allowing further relief
in this case. Post, at 1–2, 7–8. Here again, however, it
turns out that the Court has already and often confronted—
and rejected—this very line of thinking. As our cases ex-
plain, the “chilling effect” associated with a potentially un-
constitutional law being “ ‘on the books’ ” is insufficient to
“justify federal intervention” in a pre-enforcement suit.
Younger v. Harris, 401 U. S. 37, 42, 50–51 (1971). Instead,
this Court has always required proof of a more concrete in-
jury and compliance with traditional rules of equitable
practice. See Muskrat, 219 U. S., at 361; Ex parte Young,
209 U. S., at 159–160. The Court has consistently applied
these requirements whether the challenged law in question
is said to chill the free exercise of religion, the freedom of
speech, the right to bear arms, or any other right. The pe-
titioners are not entitled to a special exemption.
Maybe so, JUSTICE SOTOMAYOR replies, but what if other
States pass legislation similar to S. B. 8? Doesn’t that pos-
sibility justify throwing aside our traditional rules? Post,
at 10. It does not. If other States pass similar legislation,
pre-enforcement challenges like the one the Court approves
today may be available in federal court to test the constitu-
tionality of those laws. Again, too, further pre-enforcement
challenges may be permissible in state court and federal
Cite as: 595 U. S. ____ (2021) 17
Opinion of the Court
law may be asserted as a defense in any enforcement action.
To the extent JUSTICE SOTOMAYOR seems to wish even more
tools existed to combat this type of law, Congress is free to
provide them. In fact, the House of Representatives re-
cently passed a statute that would purport to preempt state
laws like S. B. 8. See H. R. 3755, 117th Cong., 1st Sess.
(2021). But one thing this Court may never do is disregard
the traditional limits on the jurisdiction of federal courts
just to see a favored result win the day. At the end of that
road is a world in which “[t]he division of power” among the
branches of Government “could exist no longer, and the
other departments would be swallowed up by the judiciary.”
4 Papers of John Marshall 95 (C. Cullen ed. 1984). 6
IV
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 At-
torney 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, de-
fendants with specific disciplinary authority over medical
licensees, including the petitioners. (5) Every Member of
——————
6 JUSTICE SOTOMAYOR charges this Court with “delay” in resolving this
case. See post, at 11. In fact, this case has received extraordinary solic-
itude at every turn. This Court resolved the petitioners’ first emergency
application in approximately two days. The Court then agreed to decide
in the first instance the merits of an appeal pending in the Court of Ap-
peals. The Court ordered briefing, heard argument, and issued an opin-
ion on the merits—accompanied by three separate writings—all in fewer
than 50 days.
18 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of the Court
the Court accepts that the only named private-individual
defendant, Mr. Dickson, should be dismissed.
The order of the District Court is affirmed in part and
reversed in part, and the case is remanded for further pro-
ceedings consistent with this opinion.
So ordered.
Cite as: 595 U. S. ____ (2021) 1
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
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]
JUSTICE THOMAS, concurring in part and dissenting in
part.
I join all but Part II–C of the Court’s opinion. In my view,
petitioners may not maintain suit against any of the gov-
ernmental respondents under Ex parte Young, 209 U. S.
123 (1908). 1 I would reverse in full the District Court’s de-
nial of respondents’ motions to dismiss and remand with
instructions to dismiss the case for lack of subject-matter
jurisdiction.
——————
1 I also would hold that petitioners lack Article III standing. As I have
explained elsewhere, abortion providers lack standing to assert the pu-
tative constitutional rights of their potential clients. See June Medical
Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opin-
ion) (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 with-
out 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, pe-
titioners seek a declaration that S. B. 8 is unlawful even though no re-
spondent can or will enforce it.
2 WHOLE WOMAN’S HEALTH v. JACKSON
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
To begin, there is no freestanding constitutional right to
pre-enforcement review in federal court. See Thunder Ba-
sin Coal Co. v. Reich, 510 U. S. 200, 220 (1994) (Scalia, J.,
concurring in part and concurring in judgment). Such a
right would stand in significant tension with the longstand-
ing Article III principle that federal courts generally may
not “give advisory rulings on the potential success of an af-
firmative defense before a cause of action has even ac-
crued.” MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118,
142 (2007) (THOMAS, J., dissenting); see also Coffman v.
Breeze Corps., 323 U. S. 316, 324 (1945) (a party may not
“secur[e] an advisory opinion in a controversy which has not
arisen”).
That said, a party subject to imminent threat of state en-
forcement proceedings may seek a kind of pre-enforcement
review in the form of a “negative injunction.” This proce-
dural device permits a party to assert “in equity . . . a de-
fense that would otherwise have been available in the
State’s enforcement proceedings at law.” Virginia Office for
Protection and Advocacy v. Stewart, 563 U. S. 247, 262
(2011) (Kennedy, J., concurring); accord, Douglas v. Inde-
pendent Living Center of Southern Cal., Inc., 565 U. S. 606,
620 (2012) (ROBERTS, C. J., dissenting). In Ex parte Young,
this Court recognized that use of this negative injunction
against a governmental defendant provides a narrow excep-
tion to sovereign immunity. See 209 U. S., at 159–160.
That exception extends no further than permitting private
parties in some circumstances to prevent state officials
from bringing an action to enforce a state law that is con-
trary to federal law.
The negative injunction remedy against state officials
countenanced in Ex parte Young is a “standard tool of eq-
uity,” J. Harrison, Ex Parte Young, 60 Stan. L. Rev. 989,
990 (2008), that federal courts have authority to entertain
under their traditional equitable jurisdiction, see Judiciary
Cite as: 595 U. S. ____ (2021) 3
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
Act of 1789, §11, 1 Stat. 78. As we have explained else-
where, a federal court’s jurisdiction in equity extends no
further than “the jurisdiction in equity exercised by the
High Court of Chancery in England at the time of the adop-
tion of the Constitution and the enactment of the original
Judiciary Act.” Grupo Mexicano de Desarrollo, S. A. v. Al-
liance Bond Fund, Inc., 527 U. S. 308, 318 (1999) (internal
quotation marks omitted). For this reason, a negative in-
junction must fall “within some clear ground of equity ju-
risdiction.” Boise Artesian Hot & Cold Water Co. v. Boise
City, 213 U. S. 276, 285 (1909); see also Missouri v. Jenkins,
515 U. S. 70, 127 (1995) (THOMAS, J., concurring) (“[C]ourts
of equity must be governed by rules and precedents no less
than the courts of law”). Federal courts therefore lack
“power to create remedies previously unknown to equity ju-
risprudence.” Grupo Mexicano, 527 U. S., at 332.
The principal opinion “agree[s] with all of these princi-
ples.” Ante, at 12. I part ways with the principal opinion
only in its conclusion that the four licensing-official re-
spondents are appropriate defendants under Ex parte
Young. For at least two reasons, they are not.
First, an Ex parte Young defendant must have “some con-
nection with the enforcement of the act”—i.e., “the right and
the power to enforce” the “act alleged to be unconstitu-
tional.” 209 U. S., at 157, 161. The only “act alleged to be
unconstitutional” here is S. B. 8. And that statute explicitly
denies enforcement authority to any governmental official.
On this point, the Act is at least triply clear. The statute
begins: “Notwithstanding . . . any other law, the require-
ments of this subchapter shall be enforced exclusively
through . . . private civil actions.” Tex. Health & Safety
Code Ann. §171.207(a) (West Cum. Supp. 2021) (emphasis
added). The Act continues: “No enforcement of this sub-
chapter . . . in response to violations of this subchapter, may
be taken or threatened by this state . . . or an executive or
administrative officer or employee of this state.” Ibid.4 WHOLE WOMAN’S HEALTH v. JACKSON
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
Later on, S. B. 8 reiterates: “Any person, other than an of-
ficer or employee of a state or local governmental entity in
this state, may bring a civil action.” §171.208(a) (emphasis
added). In short, the Act repeatedly confirms that respond-
ent licensing officials, like any other governmental officials,
“hav[e] no duty at all with regard to the act,” and therefore
cannot “be properly made parties to the suit.” Ex parte
Young, 209 U. S., at 158.
The principal opinion does not dispute the meaning of
these provisions. Instead, it finds residual enforcement au-
thority for the licensing officials elsewhere in S. B. 8. In its
saving clause, the Act provides that no court may construe
S. B. 8 as “limit[ing] the enforceability of any other laws
that regulate or prohibit abortion.” §171.207(b)(3). If one
of these “other laws” permits a governmental official to en-
force S. B. 8, the principal opinion reasons, the saving
clause preserves that enforcement authority. The principal
opinion then proposes that the Texas Medical Board may
enforce S. B. 8 under §164.055 of the Texas Occupations
Code. Thus, on that view, S. B. 8 permits the Medical
Board to discipline physicians for violating the statute de-
spite the Act’s command that “the requirements of this sub-
chapter shall be enforced exclusively through . . . private
civil actions,” “[n]otwithstanding . . . any other law.” Tex.
Health & Safety Code Ann. §171.207(a) (emphasis added).
Rather than introduce competing instructions in S. B. 8,
I would read the Act as a “ ‘harmonious whole.’ ” Roberts v.
Sea-Land Services, Inc., 566 U. S. 93, 100 (2012). By its
terms, S. B. 8’s saving clause preserves enforcement only of
laws that “regulate or prohibit abortion.” §171.207(b)(3)
(emphasis added). Such laws include, for example, re-
strictions on late-term or partial-birth abortions. See
§§171.044, 174.102. Section 164.055 of the Texas Occupa-
tions Code, by contrast, does not “regulate or prohibit abor-
tion.” As the principal opinion explains, that provision
Cite as: 595 U. S. ____ (2021) 5
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
merely grants authority to the Texas Medical Board to en-
force other laws that do regulate abortion. See Tex. Occ.
Code Ann. §164.055 (West 2012). Thus, the saving clause
does not apply, and S. B. 8 explicitly forecloses enforcement
of its requirements by the Texas Medical Board. 2
The principal opinion contends that the Act “confirm[s
its] understanding” by explicitly proscribing criminal pros-
ecution. Ante, at 13, n. 3 (citing Tex. Health & Safety Code
Ann. §171.207(a)). By withholding criminal enforcement
authority, the principal opinion argues, S. B. 8 tacitly
leaves at least some civil enforcement authority in place.
But “[t]he force of any negative implication . . . depends on
context.” Marx v. General Revenue Corp., 568 U. S. 371, 381
(2013). A statute may “indicat[e] that adopting a particular
rule . . . was probably not meant to signal any exclusion.”
Ibid. (internal quotation marks omitted).
That is the case here. Again, S. B. 8 repeatedly bars gov-
ernmental enforcement. See supra, at 3–4. That Texas
identified a “specific example” of withheld enforcement au-
thority alongside the Act’s “general” proscription “is not in-
consistent with the conclusion that [S. B. 8] sweeps as
broadly as its language suggests.” Ali v. Federal Bureau of
Prisons, 552 U. S. 214, 226–227 (2008). Texas “may have
simply intended to remove any doubt” that criminal prose-
cution is unavailable under S. B. 8. Id., at 226; see also
——————
2 For the remaining licensing officials—the heads of the Texas Health
and Human Services Commission, the Texas Board of Nursing, and the
Texas Board of Pharmacy—the principal opinion identifies no law that
connects these officials to S. B. 8 or overrides the Act’s preclusion of gov-
ernmental enforcement authority. Indeed, as to the Health and Human
Services Commission, S. B. 8 explicitly forecloses enforcement authority.
The Act states: “The commission shall enforce [Chapter 171] except for
Subchapter H,” where S. B. 8 is codified, “which shall be enforced exclu-
sively through . . . private civil enforcement actions . . . and may not be
enforced by the commission.” Tex. Health & Safety Code Ann. §171.005(West 2021).
6 WHOLE WOMAN’S HEALTH v. JACKSON
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
Yellen v. Confederated Tribes of Chehalis Reservation, 594
U. S. ___, ___ (2021) (GORSUCH, J., dissenting) (slip op., at
14) (“illustrative examples can help orient affected parties
and courts to Congress’s thinking”). It is unsurprising that
Texas repeated itself to make its point “doubly sure.” Bar-
ton v. Barr, 590 U. S. __, __ (2020) (slip op., at 16). And, in
all events, “[r]edundancy in one portion of a statute is not a
license to rewrite or eviscerate another portion of the stat-
ute contrary to its text.” Ibid. 3
Second, even when there is an appropriate defendant to
sue, a plaintiff may bring an action under Ex parte Young
only when the defendant “threaten[s] and [is] about to com-
mence proceedings.” 209 U. S., at 156. Our later cases ex-
plain that “the prospect of state suit must be imminent.”
Morales v. Trans World Airlines, Inc., 504 U. S. 374, 382
(1992). Here, none of the licensing officials has threatened
enforcement proceedings against petitioners because none
has authority to bring them. Petitioners do not and cannot
dispute this point.
Rather, petitioners complain of the “chill” S. B. 8 has on
the purported right to abortion. But as our cases make
clear, it is not enough that petitioners “feel inhibited” be-
cause S. B. 8 is “on the books.” Younger v. Harris, 401 U. S.
37, 42 (1971) (internal quotation marks omitted). Nor is a
“vague allegation” of potential enforcement permissible.
Boise Artesian, 213 U. S., at 285. To sustain suit against
the licensing officials, whether under Article III or Ex parte
Young, petitioners must show at least a credible and spe-
cific threat of enforcement to rescind their medical licenses
or assess some other penalty under S. B. 8. See Susan B.
Anthony List v. Driehaus, 573 U. S. 149, 159 (2014). Peti-
tioners offer nothing to make this showing. Even if the
——————
3 Because the principal opinion’s errors rest on misinterpretations of
Texas law, the Texas courts of course remain free to correct its mistakes.
See, e.g., Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8
(1985).
Cite as: 595 U. S. ____ (2021) 7
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
licensing-official respondents had enforcement authority,
the chance of them using it is, at present, entirely “imagi-
nary” and “speculative.” Younger, 401 U. S., at 42.
The irony of this case is that S. B. 8 has generated more
litigation against those who oppose abortion than those who
perform it. Respondent Clarkston, a state-court clerk, re-
ports that only three S. B. 8 complaints have been filed in
the State of Texas, none of which has been served. Brief for
Respondent Clarkston 9–10. The private litigants brought
those actions only after a San Antonio doctor performed a
postheartbeat abortion and openly advertised it in the
Washington Post. See A. Braid, Why I Violated Texas’s Ex-
treme Abortion Ban, Washington Post, Sept. 19, 2021,
p. A31, col. 2. Opponents of abortion, meanwhile, have been
sued 14 times in the Texas state courts, including by some
of the very petitioners in this case. See Brief for Respond-
ent Clarkston 10. 4 Petitioners cast aspersions on the Texas
state courts, but those courts are not dawdling in these pre-
enforcement actions. The Texas courts held summary-
judgment hearings on November 10 and entered partial
judgment for the abortion providers on December 9. See
Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct.
Travis Cty., Tex., Dec. 9, 2021). Simply put, S. B. 8’s sup-
porters are under greater threat of litigation than its de-
tractors.
Despite the foregoing, the principal opinion indicates that
the prospect of suit by the licensing respondents is immi-
nent. It cites petitioners’ complaint, but the only relevant
paragraph conclusorily asserts a “risk [of] professional dis-
cipline” because certain respondents allegedly “retain the
——————
4 Dr. Braid also has filed suit in the Northern District of Illinois against
the three pro se plaintiffs who filed S. B. 8 actions against him. See Com-
plaint in Braid v. Stilley, No. 21–cv–5283 (Oct. 5, 2021), ECF Doc. 1. Two
of the three S. B. 8 plaintiffs have made filings in the case, and both are
proceeding pro se. Meanwhile, 12 attorneys, all from major law firms or
interest groups, represent Dr. Braid.
8 WHOLE WOMAN’S HEALTH v. JACKSON
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
authority and duty to enforce other statutes and regulations
. . . that could be triggered by a violation of S. B. 8.” Com-
plaint ¶107. This “conclusory statemen[t],” paired with a
bare “ ‘legal conclusion,’ ” cannot survive a motion to dis-
miss. Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009).
* * *
I would instruct the District Court to dismiss this case
against all respondents, including the four licensing offi-
cials, because petitioners may not avail themselves of the
exception to sovereign immunity recognized in Ex parte
Young. I join the Court’s opinion in all other respects and
respectfully dissent only from Part II–C.
Cite as: 595 U. S. ____ (2021) 1
ROBERTS, C. J., concurring
Opinion of in part and
ROBERTS dissenting in part
, C.J.
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. 1
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
——————
1 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 ver-
sion 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 reli-
ance. 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 (em-
phasis added).
2 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of ROBERTS, C. J.
“aids or abets,” or intends to aid or abet, an abortion per-
formed 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 mat-
ter 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-look-
ing 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 pro-
vision 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 Mem-
bers 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 au-
thority 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 liti-
gation and enter appropriate relief without delay.
In my view, several other respondents are also proper de-
fendants. First, under Texas law, the Attorney General
maintains authority coextensive with the Texas Medical
Board to address violations of S. B. 8. The Attorney Gen-
eral may “institute an action for a civil penalty” if a physi-
cian violates a rule or order of the Board. Tex. Occ. Code
Ann. §165.101. The Board’s rules—found in the Texas Ad-
ministrative Code, see 22 Tex. Admin. Code §160.1(a) (West
2021)—prohibit licensed physicians from violating Texas’s
Cite as: 595 U. S. ____ (2021) 3
Opinion of ROBERTS, C. J.
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 unsuc-
cessful 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 dis-
tinct from that of the judges. Judges are in no sense ad-
verse 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 rec-
onciled with Young, pointing to language in Young that sug-
gests 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 Pul-
liam v. Allen, 466 U. S. 522, 525 (1984). And this conclusion
is consistent with the entire thrust of Young itself. Just as
4 WHOLE WOMAN’S HEALTH v. JACKSON
Opinion of ROBERTS, C. J.
in Young, those sued under S. B. 8 will be “harass[ed] . . .
with a multiplicity of suits or litigation generally in an en-
deavor to enforce penalties under an unconstitutional en-
actment.” 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. 2
* * *
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 A recent summary judgment ruling in state court found S. B. 8 un-
constitutional in certain respects, not including the ban on abortions af-
ter 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.
Cite as: 595 U. S. ____ (2021) 1
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
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]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, concurring in the judgment in part
and dissenting in part.
For nearly three months, the Texas Legislature has sub-
stantially suspended a constitutional guarantee: a preg-
nant woman’s right to control her own body. See Roe v.
Wade, 410 U. S. 113 (1973); Planned Parenthood of South-
eastern 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 dam-
ages, brought anywhere in Texas by private bounty hunt-
ers, 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 vir-
tually 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
2 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
term or attempt self-induced abortions outside of the medi-
cal 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 cer-
tain 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 dis-
sent, 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.
I
I have previously described the havoc S. B. 8’s unconsti-
tutional scheme has wrought for Texas women seeking
abortion care and their medical providers. 1 I do not repeat
those details here, but I briefly outline the law’s numerous
procedural and substantive anomalies, most of which the
Court simply ignores.
S. B. 8 authorizes any person—who need not have any
relationship to the woman, doctor, or procedure at issue—
to sue, for at least $10,000 in damages, anyone who per-
forms, induces, assists, or even intends to assist an abortion
in violation of Texas’ unconstitutional 6-week ban. See Tex.
Health & Safety Code Ann. §171.208(a) (West Cum. Supp.
——————
1 See United States v. Texas, 595 U. S. ___, ___–___ (2021) (SOTOMAYOR,
J., concurring in part and dissenting in part) (slip op., at 4–7); Whole
Woman’s Health v. Jackson, 594 U. S. ___, ___–___ (2021) (SOTOMAYOR,
J., dissenting) (slip op., at 1–3).
Cite as: 595 U. S. ____ (2021) 3
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
2021). Those vulnerable to suit might include a medical
provider, a receptionist, a friend who books an appoint-
ment, or a ride-share driver who takes a woman to a clinic.
Importantly, S. B. 8 also modifies state-court procedures
to make litigation uniquely punitive for those sued. It al-
lows defendants to be haled into court in any county in
which a plaintiff lives, even if that county has no relation-
ship to the defendants or the abortion procedure at issue.
§171.210(a)(4). It gives the plaintiff a veto over any venue
transfer, regardless of the inconvenience to the defendants.
§171.210(b). It prohibits defendants from invoking nonmu-
tual issue or claim preclusion, meaning that if they prevail,
they remain vulnerable to suit by any other plaintiff any-
where in the State for the same conduct. §171.208(e)(5). It
also bars defendants from relying on any nonbinding court
decision, such as persuasive precedent from other trial
courts. §171.208(e)(4). Although it guarantees attorney’s
fees and costs to prevailing plaintiffs, §171.208(b)(3), it cat-
egorically denies them to prevailing defendants,
§171.208(i), so they must finance their own defenses no
matter how frivolous the suits. These provisions are con-
siderable departures from the norm in Texas courts and in
most courts across the Nation. 2
S. B. 8 further purports to limit the substantive defenses
——————
2 S. B. 8’s procedural meddling is not limited to suits filed under the
law. To deter efforts to seek pre-enforcement review, the law also estab-
lishes a special fee-shifting provision for affirmative challenges to Texas
abortion laws, including S. B. 8 itself. Under that provision, any person
or entity, including an attorney or a law firm, who seeks declaratory or
injunctive relief against the enforcement of any state restriction on abor-
tion is jointly and severally liable to pay the costs and attorney’s fees of
a prevailing party. Tex. Civ. Prac. & Rem. Code Ann. §30.022 (West
Cum. Supp. 2021). The provision specifies that it is “not a defense” to
liability for attorney’s fees if “the court in the underlying action held
that” any part of the fee-shifting provision “is invalid, unconstitutional,
or preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.” §30.022(d)(3).
4 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
that defendants may raise. It permits what it calls an “un-
due burden” defense, but redefines that standard to be a
shell of what the Constitution requires: Rather than consid-
ering the law’s cumulative effect on abortion access, see
Whole Woman’s Health v. Hellerstedt, 579 U. S. 582, 609–
624 (2016), it instructs state courts to focus narrowly on the
effect on the parties, §§171.209(b)(2), (d)(2). It further pur-
ports to impose retroactive liability for abortion care pro-
vided while the law is enjoined if the injunction is later
overturned on appeal, §171.208(e)(3), as well as for abortion
care provided while Roe and Casey are in effect if this Court
later overrules one of those cases, §171.209(e).
As a whole, these provisions go beyond imposing liability
on the exercise of a constitutional right. If enforced, they
prevent providers from seeking effective pre-enforcement
relief (in both state and federal court) while simultaneously
depriving them of effective post-enforcement adjudication,
potentially violating procedural due process. To be sure,
state courts cannot restrict constitutional rights or defenses
that our precedents recognize, nor impose retroactive liabil-
ity for constitutionally protected conduct. Such actions
would violate a state officer’s oath to the Constitution. See
U. S. Const., Art. VI, cl. 3. Unenforceable though S. B. 8
may be, however, the threat of its punitive measures cre-
ates a chilling effect that advances the State’s unconstitu-
tional goals.
II
This Court has confronted State attempts to evade fed-
eral constitutional commands before, including schemes
that forced parties to expose themselves to catastrophic li-
ability as state-court defendants in order to assert their
rights. Until today, the Court had proven equal to those
challenges.
In 1908, this Court decided Ex parte Young, 209 U. S.
123. In Young, the Court considered a Minnesota law fixing
Cite as: 595 U. S. ____ (2021) 5
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
new rates for railroads and adopting high fines and penal-
ties for failure to comply with the rates. Id., at 128–129,
131. The law purported to provide no option to challenge
the new rates other than disobeying the law and taking “the
risk . . . of being subjected to such enormous penalties.” Id.,
at 145. Because the railroad officers and employees “could
not be expected to disobey any of the provisions . . . at the
risk of such fines and penalties,” the law effectively resulted
in “a denial of any hearing to the company.” Id., at 146.
The Court unequivocally rejected this design. Conclud-
ing that the legislature could not “preclude a resort to the
courts . . . for the purpose of testing [the law’s] validity,” the
Court decided the companies could obtain pre-enforcement
relief by suing the Minnesota attorney general based on his
“connection with the enforcement” of the challenged act.
Id., at 146, 157. The Court so held despite the fact that the
attorney general’s only such connection was the “general
duty imposed upon him, which includes the right and the
power to enforce the statutes of the State, including, of
course, the act in question.” Id., at 161. Over the years,
“the Young doctrine has been accepted as necessary to per-
mit the federal courts to vindicate federal rights and hold
state officials responsible to ‘the supreme authority of the
United States.’ ” Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89, 105 (1984) (quoting Young, 209
U. S., at 160); accord, e.g., Virginia Office for Protection and
Advocacy v. Stewart, 563 U. S. 247, 254–255 (2011).
Like the stockholders in Young, abortion providers face
calamitous liability from a facially unconstitutional law. To
be clear, the threat is not just the possibility of money judg-
ments; it is also that, win or lose, providers may be forced
to defend themselves against countless suits, all across the
State, without any prospect of recovery for their losses or
expenses. Here, as in Young, the “practical effect of [these]
coercive penalties for noncompliance” is “to foreclose all ac-
cess to the courts,” “a constitutionally intolerable choice.”
6 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 218 (1994).
“It would be an injury to [a] complainant to harass it with
a multiplicity of suits or litigation generally in an endeavor
to enforce penalties under an unconstitutional enactment,
and to prevent it ought to be within the jurisdiction of a
court of equity.” Young, 209 U. S., at 160. In fact, the cir-
cumstances at hand present an even stronger need for pre-
enforcement relief than in Young, given how S. B. 8 not only
threatens a multiplicity of suits, but also turns state-court
procedures against providers to ensure they cannot effec-
tively defend their rights in a suit.
Under normal circumstances, providers might be able to
assert their rights defensively in state court. See ante, at
15. These are not normal circumstances. S. B. 8 is struc-
tured to thwart review and result in “a denial of any hear-
ing.” Young, 209 U. S., at 146. To that end, the law not
only disclaims direct enforcement by state officials to frus-
trate pre-enforcement review, but also skews state-court
procedures and defenses to frustrate post-enforcement re-
view. The events of the last three months have shown that
the law has succeeded in its endeavor. That is precisely
what the Court in Young sought to avoid. It is therefore
inaccurate to characterize the foregoing analysis as advo-
cating “an unqualified right to pre-enforcement review of
constitutional claims in federal court.” Ante, at 15. If that
were so, the same charge could be leveled against the
Court’s decision in Young.
In addition, state-court clerks are proper defendants in
this action. This Court has long recognized that “the action
of state courts and judicial officers in their official capacities
is to be regarded as action of the State.” Shelley v. Kraemer,
334 U. S. 1, 14 (1948). In Shelley, private litigants sought
to enforce restrictive racial covenants designed to preclude
Black Americans from home ownership and to preserve res-
idential segregation. The Court explained that these osten-
sibly private covenants involved state action because “but
Cite as: 595 U. S. ____ (2021) 7
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
for the active intervention of the state courts, supported by
the full panoply of state power,” the covenants would be un-
enforceable. Id., at 19. Here, there is more. S. B. 8’s for-
midable chilling effect, even before suit, would be nonexist-
ent if not for the state-court officials who docket S. B. 8
cases with lopsided procedures and limited defenses. Be-
cause these state actors are necessary components of that
chilling effect and play a clear role in the enforcement of
S. B. 8, they are proper defendants.
These longstanding precedents establish how, and why,
the Court should authorize relief against these officials as
well. The Court instead hides behind a wooden reading of
Young, stitching out-of-context quotations into a cover for
its failure to act decisively. The Court relies on dicta in
Young stating that “the right to enjoin an individual . . .
does not include the power to restrain a court from acting
in any case brought before it” and that “an injunction
against a state court would be a violation of the whole
scheme of our Government.” 209 U. S., at 163. Modern
cases, however, have recognized that suit may be proper
even against state-court judges, including to enjoin state-
court proceedings. See Mitchum v. Foster, 407 U. S. 225,
243 (1972); see also Pulliam v. Allen, 466 U. S. 522, 525
(1984). The Court responds that these cases did not ex-
pressly address sovereign immunity or involve court clerks.
Ante, at 8–9. If language in Young posed an absolute bar to
injunctive relief against state-court proceedings and offi-
cials, however, these decisions would have been purely ad-
visory.
Moreover, the Court has emphasized that “the principles
undergirding the Ex parte Young doctrine” may “support its
application” to new circumstances, “novelty notwithstand-
ing.” Stewart, 563 U. S., at 261. No party has identified
any prior circumstance in which a State has delegated an
enforcement function to the populace, disclaimed official
enforcement authority, and skewed state-court procedures
8 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
to chill the exercise of constitutional rights. Because S. B.
8’s architects designed this scheme to evade Young as his-
torically applied, it is especially perverse for the Court to
shield it from scrutiny based on its novelty. 3
Next, the Court claims that Young cannot apply because
state-court clerks are not adverse to the petitioners. Ante,
at 5–6. As THE CHIEF JUSTICE explains, however, ante, at
3 (opinion concurring in judgment in part and dissenting in
part), the Texas Legislature has ensured that docketing S.
B. 8 cases is anything but a neutral action. With S. B. 8’s
extreme alterations to court procedure and substantive de-
fenses, the Texas court system no longer resembles a neu-
tral forum for the adjudication of rights; S. B. 8 refashions
that system into a weapon and points it directly at the pe-
titioners. Under these circumstances, the parties are suffi-
ciently adverse.
Finally, the Court raises “the question of remedy.” Ante,
at 6. For the Court, that question cascades into many oth-
ers about the precise contours of an injunction against
Texas court clerks in light of state procedural rules. Ante,
at 6–7. Vexing though the Court may find these fact-inten-
sive questions, they are exactly the sort of tailoring work
that District Courts perform every day. The Court should
have afforded the District Court an opportunity to craft ap-
propriate relief before throwing up its hands and declaring
the task unworkable. For today’s purposes, the answer is
——————
3 The Court responds by seizing on my mention of S. B. 8’s chilling
effect. Ante, at 16. No one contends, however, that pre-enforcement re-
view should be available whenever a state law chills the exercise of a
constitutional right. Rather, as this Court explained in Young, pre-en-
forcement review is necessary “when the penalties for disobedience are . . .
so enormous” as to have the same effect “as if the law in terms prohibited
the [litigant] from seeking judicial construction of laws which deeply af-
fect its rights.” 209 U. S., at 147. All the more so here, where the State
achieves its unconstitutional aim using novel procedural machinations
that the Court fails to acknowledge.
Cite as: 595 U. S. ____ (2021) 9
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
simple: If, as our precedents make clear (and as the ques-
tion presented presumes), S. B. 8 is unconstitutional, con-
trary state rules of civil procedure must give way. See U. S.
Const., Art. VI, cl. 2 (“This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof
. . . shall be the supreme Law of the Land”).
In the midst of its handwringing over remedy, the Court
also complains that the petitioners offer no “meaningful
limiting principles for their theory.” Ante, at 6. That is in-
correct. The petitioners explain: “Where, as here, a State
law (1) deliberately seeks to evade federal judicial review
by outsourcing enforcement of the law to private individu-
als without any personal stake, while forbidding state exec-
utive officials from direct enforcement; and (2) creates spe-
cial rules for state-court adjudication to maximize
harassment and make timely and effective protection of
constitutional rights impossible, federal relief against
clerks is warranted.” Reply Brief for Petitioners 6. The pe-
titioners do not argue that pre-enforcement relief against
state-court clerks should be available absent those two
unique circumstances, and indeed, those circumstances are
why the petitioners are threatened with a multiplicity of
suits and face a constitutionally intolerable choice under
Young. 4
——————
4 The Court also holds that the Texas attorney general is not a proper
defendant. For the reasons explained by THE CHIEF JUSTICE, ante, at 2–
3, this conclusion fails even under the Court’s own logic.
The Court further observes that “no court may ‘lawfully enjoin the
world at large.’ ” Ante, at 10–11 (quoting Alemite Mfg. Corp. v. Staff, 42
F. 2d 832 (CA2 1930)). But the petitioners do not seek such relief. It is
Texas that has taken the unprecedented step of delegating its enforce-
ment authority to the world at large without requiring any pre-existing
stake. Under the Court’s precedents, private actors who take up a State’s
mantle “exercise . . . a right or privilege having its source in state author-
ity” and may “be described in all fairness as . . . state actor[s].” Edmon-
son v. Leesville Concrete Co., 500 U. S. 614, 620 (1991). This Court has
not held that state actors who have actual notice of an injunction may
10 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
III
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 enforce-
ment 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.
The State’s concessions at oral argument laid bare the
sweeping consequences of its position. In response to ques-
tioning, counsel for the State conceded that pre-enforce-
ment review would be unavailable even if a statute imposed
a bounty of $1,000,000 or higher. Tr. of Oral Arg. 50–53.
Counsel further admitted that no individual constitutional
right was safe from attack under a similar scheme. Tr. of
Oral Arg. in United States v. Texas, No. 21–588, pp. 59–61,
64–65. Counsel even asserted that a State could further rig
procedures by abrogating a state supreme court’s power to
bind its own lower courts. Id., at 78–79. Counsel main-
tained that even if a State neutered appellate courts’ power
in such an extreme manner, aggrieved parties’ only path to
a federal forum would be to violate the unconstitutional
law, accede to infringement of their substantive and proce-
dural rights all the way through the state supreme court,
and then, at last, ask this Court to grant discretionary cer-
tiorari review. Ibid. All of these burdens would layer atop
——————
flout its terms, even if it nominally binds other state officials, and it errs
by implying as much now. The Court responds by downplaying how ex-
ceptional Texas’ scheme is, but it identifies no true analogs in precedent.
See ante, at 11 (identifying only “somewhat” analogous statutes). S. B. 8
is no tort or private attorneys general statute: It deputizes anyone to sue
without establishing any pre-existing personal stake (i.e., standing) and
then skews procedural rules to favor these plaintiffs.
Cite as: 595 U. S. ____ (2021) 11
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
S. B. 8’s existing manipulation of state-court procedures
and defenses.
This is a brazen challenge to our federal structure. It ech-
oes 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. Cal-
houn 17–43 (1843). Lest the parallel be lost on the Court,
analogous sentiments were expressed in this case’s com-
panion: “The Supreme Court’s interpretations of the Consti-
tution are not the Constitution itself—they are, after all,
called opinions.” Reply Brief for Intervenors in No. 21–
50949 (CA5), p. 4.
The Nation fought a Civil War over that proposition, but
Calhoun’s theories were not extinguished. They experi-
enced a revival in the post-war South, and the violence that
ensued led Congress to enact Rev. Stat. §1979, 42 U. S. C.
§1983. “Proponents of the legislation noted that state
courts were being used to harass and injure individuals, ei-
ther because the state courts were powerless to stop depri-
vations or were in league with those who were bent upon
abrogation of federally protected rights.” Mitchum, 407
U. S., at 240. Thus, §1983’s “very purpose,” consonant with
the values that motivated the Young Court some decades
later, was “to protect the people from unconstitutional ac-
tion under color of state law, ‘whether that action be execu-
tive, legislative, or judicial.’ ” Mitchum, 407 U. S., at 242(quoting Ex parte Virginia, 100 U. S. 339, 346 (1880)).
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 mo-
ment. The Court’s delay in allowing this case to proceed
has had catastrophic consequences for women seeking to
exercise their constitutional right to an abortion in Texas.
These consequences have only rewarded the State’s effort
at nullification. Worse, by foreclosing suit against state-
12 WHOLE WOMAN’S HEALTH v. JACKSON
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
court officials and the state attorney general, the Court
clears the way for States to reprise and perfect Texas’
scheme in the future to target the exercise of any right rec-
ognized by this Court with which they disagree.
This is no hypothetical. New permutations of S. B. 8 are
coming. In the months since this Court failed to enjoin the
law, legislators in several States have discussed or intro-
duced legislation that replicates its scheme to target locally
disfavored rights. 5 What are federal courts to do if, for ex-
ample, a State effectively prohibits worship by a disfavored
religious minority through crushing “private” litigation
burdens amplified by skewed court procedures, but does a
better job than Texas of disclaiming all enforcement by
state officials? Perhaps nothing at all, says this Court. 6
Although some path to relief not recognized today may yet
exist, the Court has now foreclosed the most straightfor-
ward route under its precedents. I fear the Court, and the
country, will come to regret that choice.
* * *
In its finest moments, this Court has ensured that consti-
tutional rights “can neither be nullified openly and directly
by state legislators or state executive or judicial officers, nor
——————
5 See Brief for Petitioners 48–49 (collecting examples targeting abor-
tion rights and gun rights). In addition, one day after oral argument,
Ohio legislators introduced a variation on S. B. 8 that would impose a
near total ban on abortion care in that State. See H. B. 480, 134th Gen.
Assem., Reg. Sess. (Ohio 2021).
6 Not one of the Court’s proffered alternatives addresses this concern.
The Court deflects to Congress, ante, at 17, but the point of a constitu-
tional right is that its protection does not turn on the whims of a political
majority or supermajority. The Court also hypothesizes that state courts
might step in to provide pre-enforcement relief, even where it has pro-
hibited federal courts from doing so. Ante, at 15, 16. As the State con-
cedes, however, the features of S. B. 8 that aim to frustrate pre-enforce-
ment relief in federal court could have similar effects in state court,
potentially limiting the scope of any relief and failing to eliminate the
specter of endless litigation. Tr. of Oral Arg. 86–88.
Cite as: 595 U. S. ____ (2021) 13
SOTOMAYOR, J., Opinion
concurring
of SinOTOMAYOR
part and,dissenting
J. in part
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.