By ED WHELAN
December 10, 2021 10:57 AM
The Supreme Court this morning issued its rulings in the Texas Heartbeat Act cases.
In Whole Woman’s Health v. Jackson, the Court delivered only a very limited victory for the plaintiff abortion providers. Justice Gorsuch wrote the lead opinion, joined in whole by Justices Alito, Kavanaugh, and Barrett and in all but one part by Justice Thomas. (So the opinion is a majority opinion except as to that one part.) The Chief Justice and the three liberal justices dissented in large part.
Gorsuch’s opinion holds that the case cannot proceed against several of the defendants—namely, the court clerk, the state judge, the state attorney general, and the private individual. The clerk and judge enjoy sovereign immunity and do not fall within the Ex parte Young exception. There is also no Article III “case or controversy” with respect to them, as they are not adverse to the plaintiffs. Allowing suit against them would present a host of problems, to which the dissenters supply no answers. (Slip op. at 4-9.)
Per Gorsuch, plaintiffs may also not pursue their claim against the state attorney general, who has no enforcement authority with respect to the Act. (Slip op. at 9-11.)
But Gorsuch opinion holds that petitioners can pursue claims against licensing officials, as they “may or must take enforcement actions” against persons who violate the Act. (Slip op. at 11-14.) Again, Thomas does not join this part, but the Chief and the three liberal justices concurred in the judgment, so there are eight justices on board with this holding.
In a holding that all the justices agree with, Gorsuch explains that the abortion clinics do not have standing to sue the private individual defendant, as they do not contest his testimony that he has no intention to sue under the Act. (Slip op. at 14.)
In a sort of postscript (slip op. at 14-17), Gorsuch explains that Justice Sotomayor’s “rhetoric” in dissent— about the Court’s supposedly “shrink[ing] from the task of defending the supremacy of the Federal Constitution over state law”—“bears no relation to reality.” There are “many paths … to vindicate the supremacy of federal law in this area,” including in state court. Any individual sued under the Act “may pursue state and federal constitutional arguments” in defense, irrespective what the Act says.
I’ll offer some further observations and address the other opinions in a follow-up post.
In a big and embarrassing defeat for the Department of Justice, the Court dismissed its certiorari petition as improvidently granted, with only Sotomayor registering a dissent.
By ED WHELAN
December 10, 2021 11:38 AM
1. The ruling strikes me overall as a big loss for the abortion providers. The only defendants whom they can pursue for relief are state licensing officials who might pursue them down the road for violations of the Texas Heartbeat Act. The ruling does nothing to remove the threat of lawsuits for violations of the Act.
To be sure, Justice Gorsuch’s opinion points out that defendants in enforcement actions may invoke their federal constitutional defenses, irrespective of what the Act says. But that is an uncontroversial point.
2. The ruling is also a warning to all of us (yes, myself definitely included in this case) against reading too much into questions at oral argument. Justices Kavanaugh and Barrett in particular proved themselves stalwart, just as they had in the Court’s denial of emergency relief on September 1.
3. In his separate opinion, Justice Thomas would hold that the state licensing officials are also not proper defendants, both because (in his view) they do not have any enforcement authority with respect to the Act and because, even if they did, there are no imminent threatened proceedings.
4. The Chief Justice wrote a dissent (except as to the licensing officials), joined by Justices Breyer, Sotomayor, and Kagan. Without embracing Roe and Casey, he observes that the Act’s heartbeat line is contrary to those decisions and “has had the effect of denying what we have held is a right protected under the Federal Constitution.” He would allow the suit to proceed against the state attorney general (who, he says, may pursue a civil penalty under another provision of Texas law against physicians who violate the Act) and against the court clerk (who is “unavoidably enlisted in the scheme to enforce” the Act).
The Chief invokes Marbury v. Madison in support of his assertion that “the role of the Supreme Court in our constitutional system … is at stake.” But (as I explain more fully here) Marbury expounded only the power of judicial review—the ability of a federal court to decline to apply a law that it deems to be unconstitutional. That power, and the supremacy of the federal Constitution on which it rests, are very different from the myth of judicial supremacy, which the Chief seems to be invoking. As Gorsuch points out, there are other means available to vindicate the supremacy of the Constitution over the Act, and there is no constitutional right to pre-enforcement review in federal court.
5. Justice Sotomayor wrote a separate dissent, joined by Breyer and Kagan, replete with a lot of headline-grabbing rhetoric. I have not yet had time to read through it, and will not try to summarize it here.
M. Edward Whelan III
Distinguished Senior Fellow and
Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036