More on Supreme Court’s Ruling in Whole Woman’s Health v. Jackson


On top of my summary of Justice Gorsuch’s lead opinion for the Court n Whole Woman’s Health v. Jackson, some quick observations and a review of the other opinions in the case:

1. The ruling strikes me overall as a big loss for the abortion providers. The only defendants whom they can pursue for relief are state licensing officials who might pursue them down the road for violations of the Texas Heartbeat Act. The ruling does nothing to remove the threat of lawsuits for violations of the Act.

To be sure, Justice Gorsuch’s opinion points out that defendants in enforcement actions may invoke their federal constitutional defenses, irrespective of what the Act says. But that is an uncontroversial point.

2. The ruling is also a warning to all of us (yes, myself definitely included in this case) against reading too much into questions at oral argument. Justices Kavanaugh and Barrett in particular proved themselves stalwart, just as they had in the Court’s denial of emergency relief on September 1.

3. In his separate opinion, Justice Thomas would hold that the state licensing officials are also not proper defendants, both because (in his view) they do not have any enforcement authority with respect to the Act and because, even if they did, there are no imminent threatened proceedings.

4. The Chief Justice wrote a dissent (except as to the licensing officials), joined by Justices Breyer, Sotomayor, and Kagan. Without embracing Roe and Casey, he observes that the Act’s heartbeat line is contrary to those decisions and “has had the effect of denying what we have held is a right protected under the Federal Constitution.” He would allow the suit to proceed against the state attorney general (who, he says, may pursue a civil penalty under another provision of Texas law against physicians who violate the Act) and against the court clerk (who is “unavoidably enlisted in the scheme to enforce” the Act).

The Chief invokes Marbury v. Madison in support of his assertion that “the role of the Supreme Court in our constitutional system … is at stake.” But (as I explain more fully here) Marbury expounded only the power of judicial review—the ability of a federal court to decline to apply a law that it deems to be unconstitutional. That power, and the supremacy of the federal Constitution on which it rests, are very different from the myth of judicial supremacy, which the Chief seems to be invoking. As Gorsuch points out, there are other means available to vindicate the supremacy of the Constitution over the Act, and there is no constitutional right to pre-enforcement review in federal court.

5. Justice Sotomayor wrote a separate dissent, joined by Breyer and Kagan, replete with a lot of headline-grabbing rhetoric. I have not yet had time to read through it, and will not try to summarize it here.