I have now had the chance to digest Whole woman’s health c. Jackson. My prediction based on the pleading was really, really wrong. I can’t remember the last time I misjudged a case so badly. I tried to read the tea leaves and I was burnt. Ouch. And I was not alone. More … than 80% of the FantasySCOTUS crowd predicted a 6-3 reversal. False and false.
Here I will go over the mechanics of the decision and what will likely happen in pre-trial detention.
First of all, the Court only allowed one pre-execution challenge 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; Texas Board of Health and Human Services Executive Commissioner Cecile Young
Why can these four defendants be prosecuted? Because, according to the majority, these defendants have some role to play in upholding SB 8. Accordingly, sovereign immunity does not preclude prosecution.
From the account and argument before us, it appears that these particular defendants fall within the scope of Ex parte Youngthe historic exception of sovereign state immunity. Each of these individuals is an executive licensing officer who may or must take enforcement action against applicants if they violate the terms of the Texas Health and Safety Code, including SB 8. See, for example, Tex. Occ. Code Ann. §164.055 (a); Brief for petitioners 33-34. Accordingly, we are of the view that sovereign immunity does not preclude the plaintiffs from proceeding against these named defendants at the motion to dismiss.
Second, what exactly does it mean for plaintiffs to sue these named defendants? Here, I think the exchange between Judges Gorsuch and Thomas is significant. There are many areas of agreement between the majority and the agreement — and this agreement should inform the referral process.
Justice Gorsuch wrote on page 12:
[Justice Thomas] further emphasizes that the relevant tradition here, embodied in Ex parte Young, allows fair redress only against officials who have the power to enforce a challenged state law. To post, at 3–4. We agree with all these principles; our disagreement is limited to their application.
The majority agree that equitable relief is permitted “against those officials who have the power to enforce a contested state law”. And this inquiry is about the precise extent of authority. A lawsuit cannot be brought against a public servant on the basis of an authority which he lacks. Accordingly, the decision of the district court should be based on the extent of what these four state officials actually have the power to do. (Ask who attributed this majority opinion? I think it was Judge Thomas, who agreed that he should be partly dissenting.)
Third, this Thomas / Gorsuch agreement places a significant limitation on lower court proceedings. The district court cannot prohibit all facets of SB 8. The judge can only prohibit facets of SB 8 that fall under the authority of these officials. And these officials alone have the power to regulate health professionals. But these officials do not have the power to regulate other entities. For example, consider nonprofit organizations that can fund abortions. Insurance companies can fall into this category. This quartet would have no authority to sanction groups that fund abortions. Therefore, the decision of the district court could not relate to the proceedings against these other entities. Indeed, it would amount to an advisory opinion to comment on how SB 8 can be applied in independent contexts. Remember, the courts direct the parties, not the laws. And judges cannot address constitutional issues beyond the scope of its jurisdiction.
Fourth, footnote 3 provides an overview of how the jurisdiction of the district court is limited:
[FN3] Applicants can continue [executive commissioner of the Texas Health and Human Services Commission] Ms. Young solely on the basis of her authority to oversee the licensing of abortion facilities and outpatient surgery centers, and not in relation to any other enforcement authority under Chapter 171 of the Health and Safety Code. Texas security.
At least as far as Ms. Young is concerned, the district court would have no authorization to consider matters beyond “the authorization of abortion facilities and outpatient surgical centers.” On page 13, Justice Gorsuch discusses §164.055, which he mentioned on the previous page:
Consider, for example, the Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” This provision states that the Texas Medical Board “will take appropriate disciplinary action against a doctor who violates. . . Chapter 171, Health and Safety Code, “a part of Texas statutory law which understand SB 8. Accordingly, it appears that Texas law imposes on official license defendants a duty to enforce a law that “regulates[s] or forbid[s] abortion ”, a duty expressly preserved by the safeguard clause of SB 8.
Again, this regime only extends to “physicians[s], “and not other entities who can help or encourage the performance of an abortion.
Fifth, in his agreement, Justice Thomas identifies an obstacle for the lower court. The majority only identified a role played by a single official, Ms. Young. What about the other three officials?
For other licensing officials – the heads of the Texas Health and Human Services Commission, the Texas Board of Nursing, and the Texas Board of Pharmacy –the main opinion does not identify any law that links these officials to SB 8 or overrides the exclusion of government law enforcement authority. Indeed, with regard to the Health and Social Services Commission, SB 8 explicitly excludes the executing authority. The law states: “The commission shall execute [Chapter 171] with the exception of subchapter H, “where SB 8 is codified,” which will be applied exclusively by. . . civil actions deprived of execution. . . and cannot be applied by the commission. »Tex. Health & Safety Code Ann. §171.005 (West 2021).
The district court may have only been able to offer redress against Ms. Young, regarding “the authorization of abortion centers and outpatient surgery centers.” The other three officials may have no role to play. Again, all other potential entities related to abortions are beyond the limited jurisdiction of the court.
The hands of the district court are tied. Justice Gorsuch’s opinion provides a very narrow path to relief that will likely not allow clinics to reopen.
Sixth, don’t forget footnote 3 of Judge Thomas’ agreement:
Because the errors of the principal opinion are based on erroneous interpretations of Texan law, the Texan courts of course remain free to correct its errors. See, for example, estate of Thornton v. Caldor, Inc., 472 US 703, 709, n. 8 (1985).
The Texas Supreme Court may decide that the four named defendants have no role in enforcing SB 8. In which case, this dispute ends.
Seventh, I expect the district court to issue an injunction soon. It may be too wide, along the lines I discussed above. Still, the clinics are unlikely to reopen, as these four named defendants have limited regulatory jurisdiction. At this point, the Fifth Circuit may restrict judgment, in light of the Thomas / Gorsuch chord. And Whole Woman’s Health will return to the Supreme Court. The judges can then adjudicate the case, pending Dobbs, then dismissed without vacancy in the light of Dobbs.
Eighth, I expect to United States v. Texas disappear. The DIG here was absolutely the right choice. The Fifth Circuit will rule that the prosecution is not authorized and the Supreme Court will deny the certificate.
I will have more to say about the case in another post.