Today, the Supreme Court released its long-awaited opinion in the Whole Women’s Health v. Jackson case, which involves the Texas fetal heartbeat law. The case involves complex procedural questions (ones that were clearly head-scratchers even for the Justices themselves at oral argument). Legal commentators are combing the opinion now, preparing the delve into all those complex questions. But the question remains: what does this ruling mean practically, and what will happen now?
First, this case is not to be confused with Dobbs v. Jackson Women’s Health. It would be easy to confuse the two, since the court heard oral argument in Dobbs just last week. The Dobbs case involves Mississippi’s ban on most abortions after 15 weeks. The possibility of the Court finally reversing Roe v. Wade has made headlines, particularly in the last couple of weeks as the Supreme Court heard the oral argument in Dobbs.
But no one expected today’s decision to address the abortion question directly. And indeed, it was careful not to address Roe v. Wade, Planned Parenthood v. Casey, or abortion law more generally. Instead, today’s decision involves Texas’ S.B. 8, which prohibits most abortions after a fetal heartbeat can be detected.
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Other states have tried to enact heartbeat laws, and they have been promptly struck down in courts across the nation. What makes S.B. 8 unique is its enforcement mechanism, a scheme that has introduced complex procedural questions into the law and made it difficult for the courts to strike down the law.
Courts cannot resolve questions about the constitutionality of a law merely because people really want them to do so. Instead, before the Court hears a case, it must first ask whether the case involves the “right” parties. To bring a case before a court, a plaintiff must have someone to sue – and that someone must have caused the plaintiff some sort of harm (or must be threatening to cause harm).
Typically, in the abortion context, abortion providers sue the state officials, claiming that the state officials are threatening to enforce abortion restrictions against them. But Texas’ law explicitly stated that state officials could not enforce the law. Instead, private parties could sue abortion providers for aiding and abetting an abortion. That left the abortion clinics with no one to sue proactively. That’s because the state officials did not represent a threat, and though the law could be enforced by a private citizen, it is impossible to name every single human being as a defendant in a lawsuit.
Instead, the abortion clinic would have to sit back and wait for a private citizen to sue an abortionist for violating the law. That left the abortion clinics exposed to a lot of liability and uncertainty.
So, the abortion clinics got creative in naming some defendants so that they could get their case before the court. Today’s decision provides some direction for the litigation moving forward.
Here are the parties the abortion clinics sued, and what the Court said today about whether they are the “right” parties:
(1) a state court judge and state court clerk: (hoping that if the abortion clinic won the case, they could extend any prohibitions to all state court judges and clerks). This argument was a stretch to begin with. State court officials are generally immune from suit (under the Eleventh Amendment), unless an exception applies. The Court rightly found that no exception allows the abortion clinics to sue these officials.
(2) the state Attorney General: (abortion clinics commonly sue state attorneys general over abortion restrictions). But as explained above, the Texas law at issue did not grant enforcement power to the Attorney General. The Court noted this and ruled that the abortion clinics cannot sue him.
(3) the directors of the Texas Board of Nursing, the Texas Board of Pharmacy, and the Health and Human Services Commission (the “licensing officials”). The Court, ruling 8-1, will allow the lawsuit to proceed against these parties, on the theory that these officials have the authority to enforce S.B. 8.
(4) a private person, claiming that he was planning to sue the abortion clinics. The problem was that the private person gave sworn testimony that he was not planning to sue the abortion clinics. So the Supreme Court let him off the hook too.
The bottom line is: the Texas law will remain in effect, and the abortion clinics can continue their lawsuit against only certain parties. Now, the case will go back to the trial court, and the lawsuit regarding S.B. 8 will begin.
To be clear: The abortion clinics neither won nor lost today. They merely passed the first hurdle in any litigation: getting the “right” parties before the court to litigate. So now the lawsuits can (and will) proceed. And while today’s decision was about one lawsuit brought in federal court, there are numerous lawsuits proceeding in state court simultaneously.
I'm encouraged by today's decision because it was a refreshing departure from the "abortion distortion," where abortion providers have been able to skirt the typical legal procedures that everyone else must follow. It's about time for the rule of law to be applied to abortion providers just as it is to everyone else, and today it was.
So, will S.B. 8 stand? It remains to be seen.
