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.