The Volokh Conspiracy

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Supreme Court

Breaking: Supreme Court Allows Slim Pathway to Challenge Texas S.B. 8

The private litigation against some defendants may proceed, but the federal lawsuit is gone.


In an unusual December Friday morning decision hand-down, the Supreme Court has decided the two cases concerning challenges to the S.B. 8, the controversial Texas abortion law that created a somewhat novel private enforcement scheme so as to frustrate judicial review.

First, in Whole Women's Health v. Jackson, the Court concluded that abortion providers may maintain a pre-enforcement challenge to S.B. 8 against state licensing board officials, but not against other state officials, judges or clerks. The decision to allow suit against the licensing officials was 8-1. The decision to preclude suit against the Attorney General and court clerks was 5-4.

Justice Gorsuch delivered the opinion for the Court, authoring a majority opinion dismissing the claims against most of the defendants and a plurality opinion allowing suit against the licensing officials. He was joined in full by Justices Alito, Kavanaugh and Barrett, and in part by Justice Thomas.

Justice Thomas wrote an opinion concurring in part and dissenting in part, arguing that the suit should be dismissed as against all defendants. The Chief Justice wrote an opinion concurring in the judgment in part and dissenting in part, joined by the Court's liberal justices. The Chief would have allowed the suit to proceed against the state AG and a state court clerk. Justice Sotomayor also wrote an opinion concurring in the judgment in part and dissenting in part, joined by Justices Breyer and Kagan.

There is a decent amount of back and forth between the opinions, which may explain why it took so long for these decisions to issue.

In United States v. Texas, the Court dismissed the writ of certiorari as improvidently granted (what is often referred to as a DIG). Justice Sotomayor dissented from the DIG without opinion. This conclusion was presumably a consequence of the Court's resolution of the private case. Insofar as private suits may proceed, there is less need to allow the federal government to pursue claims in equity.

One quick reaction: The Court's disposition would seem to allow the abortion providers to challenge S.B. 8's substantive restrictions on abortion (at least until the Court decides Dobbs). However, because the court does not allow the abortion providers to maintain their suits against state judges or clerks, it does not seem that they are able to challenge S.B. 8's private enforcement regime.

I am confident my co-bloggers will have more to say about these decisions later today and in the days ahead.