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Constitutional Rights and the Public’s Health

Whole Woman’s Health v. Jackson


Whole Woman’s Health v. Jackson (U.S. Supreme Court, Dec. 10, 2021): The Supreme Court allowed private abortion providers in Texas to challenge Texas’s restrictive abortion law, SB8, but reasoned that the suit could not proceed against state court officers or the Texas Attorney General, allowing it to proceed only against state licensing officials. SB8, the bill in question, incentivized private citizens with enforcing a ban on abortions performed after fetal heartbeat detection. The law awards plaintiffs a minimum of $10,000 per successful lawsuit against a broad range of persons involved with post-fetal heartbeat abortions (including persons providing transportation to and from abortion clinics, or persons providing funding). SB8 attempted to sidestep judicial review by placing enforcement power in the hands of private citizens, rather than the state attorney general, as courts can generally block governmental actors, but not the public at large, from enforcing unconstitutional laws. The Court, in assessing challenges filed by abortion providers, reasoned that no suit could proceed against state court officers or against the Texas Attorney General, as the attorney general has no “enforcement” power under the law, and principles of sovereign immunity protect state court officers from being sued in federal court. However, the Court allowed the lawsuit to proceed against Texas state licensing officials, who can penalize or discipline state licensees (e.g., physicians, etc.) for violation of Texas Health & Safety Code (which includes SB8). Thus, the Court reasoned, state licensing officials retain some enforcement power under the law and can be prevented from seeking to enforce it. Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan dissented in part, arguing that the suit should be allowed to proceed against the Texas Attorney General and state court officers. The dissenters reasoned first that the Texas Attorney General holds the same enforcement authority as state licensing officials and second that the Texas legislature’s attempts through SB8 to skirt judicial review sufficiently connected court officials with enforcement powers to allow the suit to proceed. Read the full Opinion here.

View all cases in the Judicial Trends in Public Health – January 18, 2022.

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