SCOTUS Says State Judges and Court Clerks Can’t Be Sued To Block Enforcement of the Texas Abortion Ban

Today’s Supreme Court held that Texas court clerks and judges cannot be sued for preventing enforcement of state laws that ban abortion after detection of fetal cardio activity. However, it said plaintiffs challenging S.B. 8., which became effective on September 1, is able to be used for claims against state medical regulators.

S.B. 8 clearly conflicts with Supreme Court abortion precedents. However, Texas lawmakers sought to stop early judicial review by creating a new enforcement mechanism that relies upon private civil actions. It prohibits state or local officials, but allows anyone to sue any person who performs, facilitates, or causes an illegal abortion. Plaintiffs are guaranteed at least $10,000 in “statutory damage” and reimbursement of legal expenses.

S.B. was challenged by the abortion providers 8. Whole Woman’s Health V. JacksonSmith County District Judge Austin Reeve Jackson, and Penny Clarkston were sued to remove the obstacle. They represented a group of officials from the judicial branch who they claimed would be essential in enforcement S.B. 8. by docketing and hearing lawsuits that it authorizes. Robert Pitman, United States District Judge accepted this argument. However, the U.S. Court of Appeals 5th Circuit deemed it to be “specious” because the Supreme Court made clear that judges from states are not permitted as defendants in constitutional cases.

The Court today agrees on this point with the 5th Circuit. “Generally speaking, States are exempt from suit according to the Eleventh Amendment.
doctrine of sovereign immunity,” Justice Neil Gorsuch noted in an opinion to the Court. The 1908 case Ex parte YoungCourt recognizes exception to this rule and states officials can be sued for enforcing an unconstitutional law in their official capacities.

“But as Ex parte YoungGorsuch states, “This traditional exception doesn’t normally allow federal courts to issue injunctions versus state-court judges and clerks. These individuals don’t enforce state laws like executive officers might. Instead, they resolve conflicts between the parties. A state court that makes erroneous rulings can appeal to the Court. This is not an injunction prohibiting the court from hearing any cases. This is how it works: Ex parte YoungSimply put, an injunction against the state court or its machinery’ would constitute a violation “of our entire Government scheme.”

Gorsuch notes also that Article III of the Constitution gives federal courts power to decide only actual controversies between adversaries. The private parties that seek to file S. B. 8, suits in state courts may be litigants adverse the petitioners,” said he, but “the statecourt clerks that docket these disputes and the statecourt judges who generally decide them generally aren’t.” Clerks are there to help with the filing of cases, but not as participants in disputes. Judges are there to solve controversies over a law or to conform it to the Federal or State Constitutions.

Additionally, Ken Paxton was not named as a defendant by the Court. “While Ex parte YoungGorsuch says that federal courts can enjoin state officials from violating state law enforcement. However, Gorsuch points out that the petitioners did not direct this Court toward any enforcement authority that S. B. has. 8 that could be enjoined by a federal Court.”

The Court however, states that the defendants are state health care regulators. This seems to be “in the scope of Ex parte YoungHistorical exception to sovereign immunity” because each of them is an executive licensing officer who can or must enforce the petitioners’ rights under Texas’s Health and Safety Code. 8.” The Court ruled that the providers of abortion can apply for an injunction to stop officials from violating S.B. 8. However, this would not prohibit civil actions from private plaintiffs.

Unanimity was reached by the Court regarding state judges. It also concluded that Mark Dickson, an activist for S.B., was the subject of all claims. He says that he has not yet filed any S.B. lawsuits, but he does have plans to. 8 suits should be dropped. The majority of justices agreed with Paxton and Clarkston that they cannot be sued in order to stop enforcement of S.B. 8. Clarence Thomas and all the justices agreed with Clarence Thomas that the regulators should be held responsible.

John Roberts (Chief Justice) joined by Stephen Breyer, Sonia Sotomayor and Elena Kagan in partial dissent, noted that S.B. 8 has had the effect “of denying the exercise of the right we held to be protected by the Federal Constitution.” He expressed concern over the “Texas’ use of a variety of strategies to protect its non-constitutional laws from judicial review.” He claims that these tricks have “effectively chilled the provision of abortions here in Texas.”

Roberts et al. Roberts et al. 8.” Clarkston was also considered a proper defendant. The mere threat that even failed suits under S. B. could be brought against Clarkston is enough to make them fearful. Roberts writes that there are 8 constitutionally protected acts, given the unique rules the State has set.” In these conditions, court clerks are required to file citations and enforce S. B. In order to enforce S. B., 8 cases will unavoidably be included in the program. 8 cases are unconstitutional and therefore are sufficient ‘connect'[ed]”To such enforcement, to be proper defendants.”

Sotomayor and Breyer joined Kagan to note that S.B. 8 “has threatened abortion-care providers with practically unlimited lawsuits, brought anywhere within Texas by private bounty hunters, in order to take any action to help women exercising their constitutional right of choice.” According to her, “the chilling effect of Texas’s abortion laws has had a devastating impact on Texas women who are pregnant after the sixth week.” People can sue under S.B. She writes that people can sue under S.B. 8 to raise constitutional issues. However, it is possible for them to bring up constitutional objections.

Sotomayor says that the Court would have stopped this madness many months earlier, prior to S. B. 8 was first implemented. She warns that this “brazen challenge to our federal structure” may inspire imitation by legislators bent on undermining other constitutional rights recognized by the Court—a concern Justice Brett Kavanaugh raised during oral arguments in this case.

Sotomayor wrote, “This is not a hypothetical.” S. B. has new permutations 8
coming. Since this Court did not enjoin it, many States legislatures debated and introduced legislation that mirrored its plan to protect locally disfavored rights. One footnote refers to proposals that target both gun rights and abortion rights.

What can federal courts do when a state prohibits worship of a religious minority by crushing the ‘private’ litigation burdens and skewed court proceedings, but it does better than Texas by disclaiming any enforcement by state officials? Sotomayor asks. Sotomayor asks. Even though there might be some relief available, this Court is now unable to provide it. “I fear that the Court and the country will regret this choice.