The Volokh Conspiracy
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I have now had a chance to digest Whole Woman's Health v. Jackson. My prediction based on oral argument was really, really wrong. I can't remember the last time I misjudged a case this badly. I tried to read the tea leaves, and I got burned. Ouch. And I wasn't alone. More than 80% of the FantasySCOTUS crowd predicted a 6-3 reversal. Wrong and wrong.
Here, I will walk through the mechanics of the decision, and what will likely happen on remand.
First, the Court only permitted a pre-enforcement challenge to proceed against four named defendants.
executive director 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
Why can these four defendants be sued? Because, according to the majority, these defendants have some role to enforce S.B. 8. As a result, sovereign immunity does not bar the suit.
On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young's historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas's Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners' suit against these named defendants at the motion to dismiss stage.
Second, what exactly does it mean for the Plaintiffs to proceed against these named defendants? Here, I think the exchange between Justices Gorsuch and Thomas is significant. There are many areas of agreement between the majority and concurrence–and that agreement should inform the proceedings on remand.
Justice Gorsuch wrote on p.12:
[Justice Thomas] further emphasizes that the relevant tradition here, embodied in Ex parte Young, permits equitable relief against only those officials who possess authority to enforce a challenged state law. Post, at 3–4. We agree with all of these principles; our disagreement is restricted to their application.
The majority agrees that equitable relief is permitted "against only those officials who possess authority to enforce a challenged state law." And that inquiry turns on the precise scope of authority. A suit cannot proceed against an official based on authority he lacks. As a result, the District Court's ruling should be cabined by the scope of what these four state officials actually have the authority to do. (Query who assigned this majority opinion? I think it was Justice Thomas, who recognized that he would have to dissent in part.)
Third, this Thomas/Gorsuch agreement imposes a significant limitation on the lower court proceedings. The District Court cannot enjoin all facets of S.B. 8. The judge can only enjoin the facets of S.B. 8 that fall within the ambit of the authority possessed by these officials. And these officials only have authority to regulate health professionals. But these officials do not have authority to regulate other entities. For example, consider non-profits that may fund abortions. Insurance companies may fall in this category. This quartet would lack any authority to sanction groups that fund abortions. Therefore, the District Court's ruling could not speak to suits against these other entities. Indeed, it would border on an advisory opinion to opine on how S.B. 8 can be enforced in unrelated contexts. Remember, courts enjoin parties, not statutes. And judges cannot reach constitutional questions beyond the scope of its jurisdiction.
Fourth, Footnote 3 provides a preview of how the District Court's jurisdiction is constrained:
[FN3] The petitioners may proceed against [executive commissioner of the Texas Health and Human Services Commission] Ms. Young solely based on her authority to supervise licensing of abortion facilities and ambulatory surgical centers, and not with respect to any other enforcement authority under Chapter 171 of the Texas Health and Safety Code.
At least with respect to Ms. Young, the District Court would have no license to consider issues beyond "licensing of abortion facilities and ambulatory surgical centers." On page 13, Justice Gorsuch discusses §164.055, which he mentioned on the prior page:
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. Accordingly, it appears Texas law imposes on the licensing-official defendants a duty to enforce a law that "regulate[s] or prohibit[s] abortion," a duty expressly preserved by S. B. 8's saving clause.
Again, this regime only extends to "physician[s]," and not other entities who may aid or abet in the performance of an abortion.
Fifth, in his concurrence, Justice Thomas identifies a roadblock for the lower court. The majority only identified a role played by a single official, Ms. Young. What about the other three officials?
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 governmental 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 exclusively through . . . private civil enforcement actions . . . and may not be enforced by the commission." Tex. Health & Safety Code Ann. §171.005 (West 2021).
It may be that the District Court could only offer relief against Ms. Young, with respect to "licensing of abortion facilities and ambulatory surgical centers." The other three officials may have no role, whatsoever, to play. Again, all other potential entities connected with abortions are beyond the scope of the court's limited jurisdiction.
The District Court's hands are tied. Justice Gorsuch's opinion provides a very narrow path for relief that probably won't allow the clinics to reopen.
Sixth, don't forget Footnote 3 of Justice Thomas's concurrence:
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).
The Texas Supreme Court may hold that the four named defendants do not have a role to enforce S.B. 8–in which case this dispute ends.
Seventh, I expect the District Court to promptly issue an injunction. It may be overbroad, along the lines I discuss above. Still, the clinics likely will not re-open, because these four named defendants have a limited regulatory jurisdiction. At that point, the Fifth Circuit may narrow the judgment, in light of the Thomas/Gorsuch agreement. And Whole Woman's Health will return to the Supreme Court. The Justices may then hold the case, pending Dobbs, then remand without vacatur in light of Dobbs.
Eighth, I expect United States v. Texas to fade away. The DIG here was absolutely the right move. The Fifth Circuit will rule the suit is not permissible, and the Supreme Court will deny cert.
I will have more to say about the case in another post.