Two cases challenging the S.B. were decided by the Supreme Court in an extraordinary Friday morning decision. 8: The controversial Texas abortion law created a novel private enforcement program to stop judicial review.
Erstens, Whole Women’s Health: JacksonThe Court found that providers of abortion may continue to challenge S.B. 8 against officials of the state licensing boards, but not against judges, clerks, or other state officials. 8-1 was the vote to let suit be brought against licensing officers. 5-4 votes were cast to prevent suit being brought against the Governor or court clerk.
The Court received Judge Gorsuch’s opinion. He authored a majority opinion discharging the claims against many of the defendants, and a plurality opinie allowing the prosecution against licensing officers. Justices Alito Kavanaugh, Barrett and Justice Thomas joined him in total.
Justice Thomas wrote an opinion agreeing with part of the judgment and dissipating in part. He argued that the suit should not be filed against any defendants. In an opinion that concurred in the judgment, the Chief Justice joined the Court’s liberal justices in dissenting. Justice Sotomayor wrote another opinion, concurring in part of it and dissidenting in other parts. Justices Breyer (and Kagan) joined the Court’s liberal justices.
The opinions are often in conflict, and this may be why these decisions took so long to take effect.
United States v. TexasIn the end, the Court dismissed certiorari’s application as insufficiently granted. This is commonly referred as a DIG. Justice Sotomayor abstained from the DIG with no opinion. This was probably due to the Court’s decision in the private case. Private suits can be brought, but the federal government is not required to seek equity claims.
A quick response: One instant reaction. The Court’s disposition seems to permit the abortion providers challenge S.B. 8. The substantive abortion restrictions (at least up to the Court’s decision) Dobbs). It is unclear, however, that the court will not permit abortion providers or state clerks to continue their cases against the judges or clerks. 8’s private enforcement system.
These decisions will be discussed more by my fellow bloggers later today, and over the coming days.