Whole Woman's Health v. Jackson

On December 10, 2021, the U.S. Supreme Court decided Whole Woman’s Health v. Jackson. Texas enacted S.B. 8, which bans abortions after about six weeks and authorizes private citizens to sue anyone who performs or aids an abortion. Abortion providers, including Whole Woman’s Health, sued Texas state court judges, clerks, and licensing officials, seeking to block the law before it took effect. The Court dismissed claims against state court judges and clerks, holding they were not proper defendants under Ex parte Young. A narrow challenge against medical licensing officials was allowed to continue. Because private enforcement remained possible, the law stayed in effect, leaving most abortions in Texas prohibited while litigation continued.

The Supreme Court dismissed the providers’ claims against Texas state court judges and clerks, holding that they were not proper defendants under Ex parte Young. The Court allowed a narrower suit against Texas medical licensing officials to proceed. S.B. 8 remained in effect, so its near-total abortion ban continued to be enforced through private lawsuits.

Whether abortion providers can sue state judges and clerks in federal court to stop S.B. 8’s private civil-enforcement mechanism, and whether sovereign immunity bars pre-enforcement challenges to a law that deliberately avoids direct state enforcement.

The ruling dealt a major blow to abortion access by allowing Texas to evade federal judicial review through private enforcement. It encouraged other states to copy S.B. 8’s bounty model for abortion restrictions and other rights, and helped set the stage for the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.