Whole Woman’s Health v. Jackson

LII note: the oral arguments in Whole Woman’s Health v. Jackson are now available from Oyez. The U.S. Supreme Court has now decided Whole Woman’s Health v. Jackson .


Can states avoid federal court review of a law that prohibits the right to abortion by delegating the enforcement of that law to the public through conferral of a civil cause of action?

Oral argument: 
November 1, 2021

This case asks the Court to determine whether the enforcement scheme of S.B. 8, Texas’s law prohibiting abortion providers from performing abortions once a fetal heartbeat has been detected, shields the law from review in federal court. S.B. 8 delegates the enforcement of the law to private citizens, allowing them to file civil claims against abortion providers. Petitioner Whole Woman’s Health challenges the law in federal court, seeking to enjoin Texas state officials—including judges and judicial clerks —from enforcing the law, because as members of the judiciary they would be required to adjudicate S.B. 8 claims. Respondents Judge Austin Jackson, and other state officials, reply that, because the law explicitly delegates enforcement to private citizens, they cannot be enjoined from performing judicial functions under the doctrine of state sovereign immunity. The case has significant implications for accessing abortions and for protecting constitutional rights.

Questions as Framed for the Court by the Parties 

Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.


In 2021, Texas enacted a law which, in part, prohibits physicians from performing abortions on pregnant women once the fetus has a discernable heartbeat. Whole Woman’s Health v. Jackson I, at 4–5. The law, referred to as Senate Bill 8 (“S.B. 8”) limits enforcement exclusively to private civil actions, permitting “any person” other than state officials to bring claims against medical providers performing the abortion and any person who aided and abetted the said abortions. Id. at 5. The Texas legislature structured S.B. 8 such that private citizens bringing claims in Texas Courts are statutorily entitled to injunctive relief—an order stopping a physician from performing an abortion—and “not less than $10,000” per abortion in damages, as well as fees and costs. Id. S.B. 8 permitted multiple plaintiffs to bring cases against defendant medical providers for the same abortion, even if the provider had previously prevailed in that case. Id. While the Fifth Circuit had previously ruled that states may regulate pre-viability abortions “so long as [the regulations] do not impose an undue burden,” S.B. 8 required that the undue burden test be an affirmative defense, adjudicated anew with each case. Whole Woman’s Health v. Jackson, District Court Decision (“District Court Decision”), at 5–6.

Whole Woman’s Health, in concert with other abortion providers in Texas, sought a pre-enforcement injunction of S.B. 8 and filed suit against a consortium of state judges, including the named Judge Austin Reeve Jackson, clerks, and state agency heads, as well as a private citizen (collectively “Jackson”). Whole Woman’s Health, at 4. Whole Woman’s Health sought to enjoin state judges and clerks from hearing S.B. 8 cases, as well as prevent the private citizen from bringing their claim. Id. at 6. Jackson moved to dismiss on procedural grounds, arguing that sovereign immunity and the Eleventh Amendment barred suing state officials in their official capacity in federal courts. District Court Decision, at 1, 13.

The Western District of Texas (“District Court”) denied the motion to dismiss, applying the exception to sovereign immunity articulated in Ex Parte Young (“Young”), which permits lawsuits in federal courts against state officers when state officers, in their official capacity, violate federal law. Id. Here, the District Court determined that the state officials in question—judges and clerks—were the only state officials directly tasked with enforcing S.B. 8, and thus Whole Woman’s Health’s claims were not barred. Id.

Jackson appealed the procedural decision; concurrently, the Fifth Circuit entertained a flurry of motions regarding S.B. 8’s substantive validity, including an emergency motion from Whole Woman’s Health for an injunction of S.B. 8 pending appeal. Whole Woman's Health, at 2. The Fifth Circuit denied that motion, permitting the law to go into effect. Id. at 7. Whole Woman’s Health appealed that decision to the Supreme Court, which denied the emergency appeal due to “complex and novel antecedent procedural questions,” without making “any conclusion about the constitutionality of Texas’s law.” Whole Woman’s Health v. Jackson, Denial of Injunctive Relief, at 1. S.B. 8 then went into effect on September 1, 2021. Brief for Petitioners, Whole Woman’s Health, at 14.

Following the denial of injunctive relief by the Supreme Court, the Fifth Circuit responded to Jackson’s appeal in full. Whole Woman's Health, at 2. The Fifth Circuit determined that because S.B. 8 “emphatically precludes enforcement by any state, local, or agency officials,” no state official was enforcing the law as required by Young. Id. Moreover, it determined that Whole Woman’s Health could not sue the named private citizen because it lacked standing, thus removing all possible defendants from the case. Id. at 3.

Whole Woman’s Health filed both a petition for certiorari and a motion to expedite consideration of the writ of certiorari, because “of the urgency of the harm to residents of Texas and neighboring States.” See Petition for Writ of Certiorai; Motion to Expedite.

The Supreme Court granted certiorari to this case and United States v. Texas on October 22, 2021. In response to the motion to expedite, oral argument was set for November 1, 2021.



Petitioners Whole Woman’s Health et al. (“WWH”) assert that federal law, 42 U.S.C. § 1983, allows individuals to bring federal claims to challenge state laws. Brief for Petitioners, Whole Woman’s Health et al. at 21. WWH asserts that individuals can bring these claims against state court clerks, state court judges, state officials, and private individuals. Id. at 22. WWH argues that Section 1983 permits actions against any individual “acting under the color of state law.” Id. at 23. Additionally, WWH contends that Section 1983 permits challenges to laws prior to enforcement. Id. at 24. Therefore, WWH maintains, Section 1983 allows state judges to be sued for declaratory judgment, and injunctive relief should they violate the declaratory judgment. Id. at 32. Finally, WWH avers that even if a state court forum is available, that alone does not strip federal courts of jurisdiction. Id. at 25. Accordingly, WWH contends that federal law explicitly permits lawsuits such as WWH’s suit against the named defendants. Id. at 23.

Respondents Jackson et al, (“Jackson”). argue that Section 1983 does not permit actions against a judge for the purpose of challenging the constitutionality of a state law. Brief for Respondents, Jackson et al. at 24. Respondent Mark Lee Dickson (“Dickson”), a private citizen, adds that judges are not appropriate parties in Section 1983 claims. Brief for Respondent, Mark Lee Dickson at 23. Respondent Penny Clarkston (“Clarkston”), a judicial clerk, expands on this, arguing that judges are not appropriate parties because they are “disinterested neutrals.” Brief for Respondent, Penny Clarkston at 22. The named judges and clerk in this suit, Clarkston contends, are not subject to Section 1983 actions because they are acting “purely in their adjudicative capacity.” Id. at 24. Additionally, Clarkston argues that pre-enforcement suits are not appropriate where there is no immediate or impending injury. Id. at 33.


WWH argues that sovereign immunity does not bar their suit because the Young exception applies. Brief for Petitioners, at 25. WWH maintains that Young applies if a lawsuit seeks future relief, there is a continued violation of federal law, and all named defendants are connected to the enforcement of the law. Id. at 27. WWH contends that their suit satisfies these elements: it seeks future relief against clerks and judges, S.B. 8 lawsuits risk violating federal rights, and the Jackson constituents are connected to the allegedly unconstitutional enforcement of S.B. 8. Id. at 28.

Chiefly, WWH argues that clerks and judges are directly connected to the enforcement of S.B. 8, and thus may be sued under the Young exception. Id. Clerks, WWH explains, are connected to the enforcement of S.B. 8 because they docket S.B.8 cases and issue citations, and thus “their performance of a ministerial act” enforces the violation of a federal right. Id. WWH points out that Clarkston, the clerk named in this suit, has already docketed an S.B. 8 enforcement claim. Id. Judges, WWH explains, preside over S.B. 8 enforcement proceedings, enter judgments, and complete administrative tasks, which satisfactorily connects the judiciary to the enforcement of S.B. 8. Id. at 30. WWH maintains that, because states act through their judicial authority, clerks and judges are state officials for purposes of the Young exception to sovereign immunity, and thus may be enjoined from enforcing, or even processing, S.B. 8 claims. Id. at 31.

Jackson argues that the named defendants are protected from suit by sovereign immunity, which forbids citizens from suing states governments without their consent. Brief for Jackson et al., at 18–19. Jackson contends that the Young exception, upon which WWH relies, only applies to officials who “otherwise could and would enforce the law.” Id. Therefore, Jackson explains, because under Texas law all state officials are explicitly prohibited from enforcing S.B. 8, the Young exception is inapplicable. Id.

Moreover, Jackson maintains that judicial officials are neutral adjudicators who cannot be sued under traditional equitable injunction principles, including the principles undergirding the Young decision. Id. at 21–22. Jackson points out that, under caselaw from the circuit courts of appeal, judges are not the adversary of litigants who seek to challenge the constitutionality of a statute, and thus cannot be sued as enforcers of S.B. 8. Id. at 22–23. Clarkston echoes Jackson’s arguments, noting that the Young exception only applies to state officials who are capable of committing the constitutional wrong. Brief for Clarkston at 42. Court clerks who docket suits and issue citations, Clarkston maintains, are not acting to “enforce” the challenged law. Id. Respondent Dickson adds to this, arguing that court clerks do not judge the merits of lawsuits; therefore, clerks are incapable of doing anything illegal in their administrative tasks. Brief for Dickson at 29. Jackson contends that state courts are not bound by lower federal courts and that injunctions on state courts by federal courts “upend” the judicial system. Id. at 25.


WWH argues that they have standing because there is an injury-in-fact, their injuries would be helped by the requested relief, and there is no support for declining review. Brief for Petitioners at 43. First, WWH, as an abortion clinic, maintains that they are injured in fact because they cannot perform abortions after six weeks, have had difficulty hiring new staff, and will likely be subject to many enforcement actions. Id. at 39–40. Next, WWH explains that relief from each of the defendants would help their injuries; for example, WWH claims that an injunction stopping clerks from docketing or issuing S.B. 8 citations would prevent WWH from having to defend themselves. Id. at 40. Stopping judges from enjoining abortions or ordering fees, WWH adds, would save them time and money. Id. at 41–42. WWH argues that because they have shown “fact, causation and redressability,” they do not need to demonstrate that the defendants are their adversaries. Id. at 44. Either way, WWH contends, the parties are adversaries and sufficiently at cross-purposes to dispel any prudential concerns that either litigant would not zealously litigate any underlying constitutional controversy; therefore, there is no reason for the Court to decline review. Id. at 44–45. Finally, WWH asserts that if the Court does not permit this case to go forward this case, the Court risks allowing a challenged law to remain in effect that may cause increased litigation costs and affect the rights of thousands of individuals. Id. at 45.

Jackson argues WWH has no standing to sue because the alleged injury is not connected to the named defendants. Brief for Jackson et al. at 17. The petitioners, Jackson contends, are not able to sue to enjoin S.B. 8, under either a “direct state action” or an “indirect enforcement” theory; as here, they maintain, there has been no constitutional violation traceable to the conduct of a state official. Id. at 18–19. Clarkston adds that there is no controversy between the any of the original named defendants, including herself, and WWH, because judges and clerks are impartial and lack a personal stake in the proceeding. Brief for Clarkston at 22–23. Without a personal stake in the proceeding, Clarkston explains, the proceedings are less adversarial, which in turn make it more difficult to “illuminate” the constitutional questions. Id. at 25. Clarkston also notes that judicial clerks are not appropriate defendants because they act solely at the discretion of the judges. Id. at 26. Moreover, Clarkston argues that the alleged injury is too speculative as Clarkston had not docketed any actions under the challenged law. Id. at 34. Respondent Dickson adds that WWH does not have standing to sue because Dickson never intended to bring an action under the challenged law and thus there was no credible threat of suit. Brief for Dickson, at 31–32. Dickson acknowledges that WWH may be suffering an injury; however, Dickson maintains that this injury derives from the existence of the challenged law and not action taken by Dickson. Id. at 39.



Leading Medical Organizations (“Medical Organizations”), in support of Whole Woman’s Health, argues that S.B. 8 “effectively bans abortion[s]” by banning all abortions after six weeks. Brief of Amici Curiae Leading Medical Organizations, in Support of Petitioners, at 11–13, 16. As a result of the ban, Whole Woman’s Health contends that only one “post-heartbeat” abortion has occurred in Texas since the law went into effect, which prompted three individuals to file suit against the medical provider responsible. Brief of Whole Woman’s Health, at 16. Moreover, Massachusetts, with a coalition of states (“Massachusetts”), argues that Texas’s law is causing harm beyond its borders, as pregnant people from Texas flock to other states’ abortion providers and cause delays for abortion provision in other states. Brief of Amici Curiae Massachusetts et al., in Support of Petitioners, at 21–22. In a similar vein, the Constitutional Accountability Center points out that abortion is a highly time-sensitive procedure, and the effect of delay is often devastating for pregnant people seeking to exercise their right to an abortion. Brief of Amicus Curiae Constitutional Accountability Center, in Support of Petitioners, at 11. Medical Organizations adds that S.B. 8 disproportionately impacts poor communities and women of color, who are unable to travel out of state for abortions, thus exacerbating “deep inequities in women’s health and health care.” Brief of Medical Organizations, at 18–19.

Texas responds that S.B. 8 does not impose an undue burden, as defined by Casey v. Planned Parenthood, on those abortions which it must permit. Brief for State Respondents, at 57–58. It argues that the only possible undue burden under S.B. 8 is the “prospect of a civil lawsuit” for the performance of a “post-heartbeat abortion,” to which the abortion provider can bring up a defense claiming the law posed an undue burden in that particular case. Id. at 58. As a result, Texas asserts that S.B. 8 permits constitutionally lawful abortions, limiting only those beyond constitutional protection, as is in line with Texas’s desired abortion policy. Id. In addition, the California ProLife Council, in support of Jackson, contends that the Supreme Court precedent viewing abortion as a right contemplates the unborn as property, not persons, and is thus discriminatory towards an entire class of unborn persons. Brief of Amicus Curiae the California ProLife Council, in Support of Respondent, at 22. They describe centuries of criminalizing abortion as misdemeanors and non-capital felonies, indicating that, for much of the history of the United States, American laws viewed the unborn as natural persons meriting rights and the protection of the state. Id. at 17–18, 29. As a result, California ProLife Council argues that the practice of abortion “grant[s] doctors a license to kill,” in direct violation of medical ethics. Id. at 30.


Massachusetts, in support of Whole Woman’s Health, asserts that the delegation of the enforcement of a “plainly unconstitutional law” to private parties would have devastating collateral damage, undermining both the rule of law and the protection of constitutional rights. See Brief of Massachusetts et al., at 14, 15. Massachusetts describes how, under a statutory scheme similar to Texas’s enforcement, state officials could have deputized private citizens to sue Black children attending white schools in the days following Brown v. Board of Education. Id. at 16. Such a result, Massachusetts argues, would be plainly in defiance of the Fourteenth Amendment and Supreme Court precedent. Id. at 16–17. Similarly, Legal Scholars contend that S.B. 8’s enforcement structure, if permissibly copied, would not only impede the rights to judicial review and due process, but would have far-reaching impact beyond abortion, with the potential to target faith-based organizations, gun control advocates, and political action committees. Brief of Amici Curiae Legal Scholars, in Support of Petitioners, at 20–21. Massachusetts adds that enforcement schemes similar to S.B. 8 could also be used to evade constitutional protections in voting rights and marriage equality. Brief of Massachusetts et al., at 17.

The American Center for Law and Justice (“ACLJ”), in support of Jackson, responds that Whole Woman’s Health exaggerates the “parade of horribles,” or the potential violations of the Bill of Rights and other constitutional protections in laws with private enforcement standards. Brief of Amicus Curiae The American Center for Law and Justice, in Support of Respondent, at 10. The ACLJ contends that state courts are fully capable of respecting constitutional rights, and overturning “blatantly unconstitutional” state laws when necessary. Id. at 10, 12. To illustrate their argument, the ACLJ points to a range of tort cases and claims in which state parties were able to use the Bill of Rights, chiefly the First Amendment, as defenses against state laws. Id. at 11. The State of Texas adds that when state laws featuring a private cause of action violate the Constitution, the state courts may still review the claim, using as an example the challenge to racist covenants in Shelley v. Kraemer. Brief for State Respondents, at 56. Thus, both Texas and the ACLJ contend that the federal court system does not need to be called upon to protect the sanctity of the Constitution. See Brief of ACLJ, at 12; Brief for State Respondents, at 54, 56–57.



The authors would like to thank Deborah Dinner, Riley Keenan, and Michael Dorf for their insight and guidance in this case.