The NCSL Blog


By Lisa Soronen

Texas’s SB 8 prohibits abortion after approximately six weeks in contradiction with Roe v. Wade (1973). The question in Whole Woman’s Health v. Jackson was whether abortion providers can sue any state government officials in federal court before the law went into effect.

SB 8 is generally enforced by private parties and not state government officials. All the Supreme Court justices except Clarence Thomas agree that abortion providers may sue executive licensing officials because they have some enforcement authority under SB 8.

US Supreme CourtJustice Neil Gorsuch began the court’s analysis by pointing out that states are generally immune from lawsuits per the 11th Amendment and sovereign immunity. However, in Ex parte Young (1908), the court created an exception to sovereign immunity holding that private parties could sue state officials to prevent them from enforcing state laws that violate federal law.

The abortion clinics argued that per Ex parte Young they should be able to sue state-court judges or clerks, the attorney general and licensing officials. The majority of the court disagreed regarding state-court judges or clerks and the attorney general.

Regarding state-court judges or clerks, the majority reasoned, Ex parte Young’s “exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties.” Regarding the attorney general, according to the majority, the abortion clinics failed to “direct this court to any enforcement authority the attorney general possesses in connection with S.B. 8 that a federal court might enjoin him from exercising.”

The court allowed a pre-enforcement challenge in federal court to go forward against executive licensing officials because they “may or must take enforcement actions” against abortion clinics if they violate SB 8.

Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elise Kagan didn’t join the majority opinion. They concurred in the court’s judgment that licensing officials could be sued but otherwise dissented.

Roberts, Breyer, Sotomayor and Kagan, would have allowed the attorney general and court clerks to be sued as well. They reasoned the attorney general has enforcement authority as he may “institute an action for a civil penalty” against any doctor who violates SB 8. While these justices noted that court clerks don’t “usually” enforce state laws, per SB 8’s design, “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.”

Sotomayor wrote a separate decision which Breyer and Kagan joined. They opined the court’s decision will allow states to evade federal judicial review of unconstitutional state statutes “so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.”

Gorsuch responded to Sotomayor’s concerns noting that “[t]his court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.” He also pointed out that “everyone acknowledges that other pre-enforcement challenges may be possible in state court as well” and some state court challenges of SB 8 have been successful.

In United States v. Texas, the United States asked the Supreme Court whether it could sue the state of Texas or a variety of Texas officials in federal court to prohibit SB 8 from being enforced. The court issued no opinion in that case dismissing it as improvidently granted.

For now, SB 8 remains in effect but presumably, a federal district court will strike it down shortly. 

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.