How Narrow is the Pathway the Supreme Court Left for Suits Challenging SB 8 and Other Similar State Laws?

Justice Neil Gorsuch.


You can read my post in which I discussed today’s Supreme Court verdict in in Whole Woman’s Health, v. JacksonThe future’s key question will be how closely state officials have to enforce the law. If plaintiffs are able to bring up preenforcement issues against these officials, this is a crucial question.

While the Supreme Court permitted the anti SB 8 lawsuits against Texas doctors licensing boards officials to move forward, they barred them from suing state judges and the Attorney General. Jonathan Adler described this as a narrow path. Josh Blackman believes it could be narrower than that and says that Texas’ abortion clinics would not be allowed to reopen, regardless of their victory.

Justice Gorsuch may have given anti-SB 8 plaintiffs more room than the commentators suggested. Gorsuch explained that medical-licensing officers are the subject of preenforcement suits because they “are vulnerable to lawsuits.”[e]Each of these people is an executive licensing officer who can or must enforce the petitioners’ rights under Texas’s Health and Safety Code. 8.”

He explains that the following is how they could enforce SB 8:

Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” The Texas Medical Board is required to take appropriate disciplinary actions against physicians who are found guilty of violating this provision. . . The Texas Health and Safety Code Chapter 171, Health and Safety Code” is a section of Texas statute law which includes S. B. 8. Therefore, Texas law seems to impose on licensing-official defendants an obligation to enforce any law that “regulates”.[s]Or prohibit[s] abortion…”

However, Section 164.055 is not intended to impose criminal or civil penalties on those who violate it. It merely directs the Texas Medical Board “to take appropriate disciplinary actions against any physician who violates Section 170.002 or Chapter 171(Abortion), Health and Safety Code.” If a violation of that section, chapter, or subsection is found in the Texas Medical Board’s regulations, it will not admit or deny a patient to be examined.

Only the potential harm to medical providers is losing their opportunity for renewal or application for licensure. Although the Board is required to take disciplinary actions under Section 164.055, Justice Gorsuch’s opinion indicates that preenforcement lawsuits are not possible without such a mandate. The defendants need to be “officials who”MayEnforcement action is required or mandatory (emphasis on added).

I have already discussed how the modern regulatory state has a wide range of state and municipal officials as well as regulatory bodies that could deny permissions, licenses, or approvals for people and groups based upon possible violations of law. You can think of zoning boards and licensing boards as well as land-use regulators. Justice Gorsuch points out that plaintiffs should face “credible threats” of enforcement actions. However, this doesn’t mean that there has to be high probability of enforcement. A 5% chance of enforcement might still be credible, particularly in situations where severe consequences could result (e.g., the suspension or loss of a license).

Gorsuch’s reasoning may allow for preenforcement suits against officials against those charged with applying state-court decisions after the fact. These include sheriffs or other law enforcement officials. Recall that  Gorsuch’s reason for rejecting the idea of suing state court clerks is that clerks  “serve to file cases as they arrive, not to participate as adversaries in those disputes.” As judges, clerks are to deal impartially with the cases. They should not be able to help any side.

However, sheriffs and other officers who enforce judgments once a case has ended are not bound by this rule. They have the duty to uphold rulings that favor the winner. This is in the best interests of losers. The current SB 8 case does not include a sheriff and other defendants of similar nature. They might still be sued by abortion providers in the future. The same applies to lawsuits against law enforcement officials who are charged with applying judgements under the future SB 8 laws.

Although it is possible to interpret Gorsuch’s opinions in a different way than what was presented above, this interpretation may not be as accurate. It is not clear what the extent of preenforcement lawsuits are for officials. This issue is likely to be litigated again in future cases. It could include additional challenges to SB 8 as well as (potentially?) challenges to future imitation statutes.

Gorsuch’s opinion on the potential scope of lawsuits it authorizes against government officials may not be clear because it is a compromise between four justices: Alito (Barret), Kavanaugh (Kavanaugh) and Gorsuch. Oral argument showed that Barrett, Kavanaugh and especially Kavanaugh were concerned about the dangers of SB 8 setting for other Constitution rights laws. Gorsuch and Alito might be less concerned. If there are similar cases in the future, it is possible for the four-justice bloc to split. To form a 5-person majority, one “defector,” along with the four other justices would be needed to support broad preenforcement lawsuit rights. Whole Woman’s Health.

Although targets of SB 8-style legislation can bring lawsuits against various government officials, the rulings may only lead to injunctions against them, and not against the private “bounty hunters” litigants who are authorized to sue individuals under SB 8 or its possible imitations. However, successful suits against government officials may create precedents in federal court that can be binding for private litigants. However, federal court decisions that are made by the district courts do not form binding precedents. They can however be used as “persuasive authority”. However, the appeals courts are binding. These binding decisions not only apply to lower federal courts but also affect state courts in their respective jurisdictions. Cases involving important constitutional issues will most likely lead to appeals.

According to how the opinion is read, Justice Gorsuch’s decision in today’s SB 8 matter could open up wide opportunities for preenforcement action against SB 8 and future imitators. We won’t be able to know definitively until there has been a lot of litigation, or even another Supreme Court case.

It is one of the major functions of Supreme Court rulings to establish clear rules that lower courts can follow in future cases. Today’s decision fails to meet that standard. This decision creates more uncertainty than it solves. This uncertainty, however, could be solved in ways that prevent any further SB 8-style subversions by the judiciary.