Whole Woman’s Health v. Jackson

Whole Woman’s Health filed a lawsuit to stop SB8, an abortion ban passed by the Texas Legislature, from taking effect. The law bans abortions after a fetal heartbeat is detected, which usually occurs six weeks into a pregnancy. Many women do not know they are pregnant at this time.

Notably, unlike many other bans or restrictions on abortion, SB8 does not rely on criminal prosecution or civil lawsuits by state officials for enforcement. Instead, the bill provides for enforcement through private action. Private citizens are permitted to sue anyone who receives, performs, or assists with an abortion. As an incentive, Texas provides statutory damages of $10,000 per abortion, plus legal costs and attorneys’ fees for plaintiffs who successfully sue defendants liable under SB8.

Whole Woman’s Health filed suit in the United States District Court for the Western District of Texas, seeking a preliminary injunction blocking the law from taking effect, and for the law to be struck down as unconstitutional. The complaint named as defendants all Texas state judges and court clerks as a proposed class, Texas Attorney General Ken Paxton, the executive directors of the Texas Medical Board and the Boards of Nursing and Pharmacy, and the executive commissioner of the Texas Health and Human Service Commission. Mark Lee Dickson, Director of Right to Life East Texas, an anti-abortion organization, was also sued, as he had publicly indicated his intent to sue Planned Parenthood under SB8 for facilitating abortion. The plaintiffs brought their lawsuit under 42 USC § 1983, a Reconstruction-era law that allows Americans to file lawsuits against all persons who deprive them of civil rights acting under color of law.

The defendant Texas state officials, judges, and court clerks filed a motion to dismiss, arguing they had sovereign immunity from lawsuits as state officials. Generally, under the Eleventh Amendment of the US Constitution, states cannot be sued in federal court. The district court denied the motion, citing the Ex parte Young doctrine, which allows state officials to be sued if they violate federal law or the United States Constitution under color of law. The court ruled that because the plaintiffs had proven they possessed standing, and because of the state government defendants’ role in enforcing SB8, whether through hearing cases brought by private parties under its provisions, or administering professional regulations, these defendants could not assert sovereign immunity as a defense under the 11th Amendment. The court also denied Mr. Dickson’s motion to dismiss.

The defendants then sought review by the Fifth Circuit Court of Appeals, which stayed all proceedings, including a hearing on a preliminary injunction, until it determined whether the defendant state officials could be sued at all. The Fifth Circuit also found that, under previous precedent, the proceedings by plaintiffs against Mr. Dickson should be stayed, as the issue of the court’s subject matter jurisdiction applied to both him and the defendant state officials who asserted that defense. Therefore, according to the court, the proceedings should be stayed until the court determined whether it had jurisdiction to hear the case at all.

In response, the plaintiffs then filed a petition for certiorari with the US Supreme Court. The League of Women Voters of the US, together with 12 other civil rights organizations, filed an amicus brief supporting the plaintiffs’ challenging the law. The brief, led by the Lawyers’ Committee for Civil Rights Under Law, argued that SB8 was an attempt to circumvent the Constitution, in violation of civil rights law dating back to Reconstruction. The brief urged the Court to block such a plan.

The Supreme Court declined to block the law from taking effect. Instead, the Court remanded the case to the Fifth Circuit Court of Appeals, which then certified a question of state law to the Texas Supreme Court to determine whether the plaintiffs had standing.

The Texas Supreme Court ruled that because SB8 was enforceable only by private individuals, and not state officials, the plaintiffs did not have standing to challenge the law. Effectively, the court ruled that the plaintiffs did not suffer a legally cognizable injury from the government, as the law was enforced by private citizens. Thus, the plaintiffs could not sue Texas state officials to block the law, and it would go into effect.