Supreme Court of the United States

“ As this Court has explained, “no case or controversy” exists “between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” Pulliam v. Allen, 466 U. S. 522, 538, n. ”

“ There, the petitioners simply sought to raise the Constitution as a defense against other private parties seeking to enforce a restrictive covenant, id., at 14, much as the petitioners here would be able to raise the Constitution as a defense in any S. B. 8 enforcement action brought by others against them. Simply put, nothing in any of our colleagues’ cases supports their novel suggestion that we should allow a pre-enforcement action for injunctive relief against state-court clerks, all while simultaneously holding the judges they serve immune. ”

“ For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. See Roe v. Wade, 410 U. S. 113 (1973) ; Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . In open defiance of this Court’s precedents, Texas enacted Senate Bill 8 (S. B. 8) , which bans abortion starting approximately six weeks after a woman’s last menstrual period, well before the point of fetal viability. ”

“ Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. To cite just a few, the law authorizes “ [a] ny person,” other than a government official, to bring a lawsuit against anyone who “aids or abets,” or intends to aid or abet, an abortion performed after roughly six weeks; has special preclusion rules that allow multiple lawsuits concerning a single abortion; and contains broad venue provisions that allow lawsuits to be brought in any of Texas’s 254 far flung counties, no matter where the abortion took place. ”

“ Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not. Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law’s meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation. ”

“ But as Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases. ”

“ Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. ”

“ The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. ”

“ It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “ [i] t is emphatically the province and duty of the judicial department to say what the law is.” ”

“ Texas Rule of Civil Procedure 24 directs state-court clerks to accept complaints and record case numbers. The petitioners have pointed to nothing in Texas law that permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits. Nor does Article III confer on federal judges some “amorphous” power to supervise “the operations of government” and reimagine from the ground up the job description of Texas state-court clerks. ”

“ Such a right would stand in significant tension with the longstanding Article III principle that federal courts generally may not “give advisory rulings on the potential success of an affirmative defense before a cause of action has even accrued.” ”

“ Third-party standing aside, petitioners also have not shown injury or redressability for many of the same reasons they cannot satisfy Ex parte Young. For injury, petitioners have shown no likelihood of enforcement by any respondent, let alone that enforcement is “certainly impending.” ”

“ The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
↑ The law states that abortion providers may raise an “undue burden” defense, see ante, at 2, but that defense is no more than a distorted version of the undue burden standard set forth in Casey, 505 U. S. 833. The defense in the statute does not, for example, allow defendants to rely on the effect that an award of relief would have on others throughout the State, see Tex. ”

“ Justice Sotomayor seems to admit at least part of the problem. She concedes that older “wooden” authorities like Ex parte Young appear to prohibit suits against state-court clerks. Post, at 7. Still, she insists, we should disregard those cases in favor of more “modern” case law. Ibid. In places, The Chief Justice’s opinion seems to pursue much the same line of argument. See post, at 4. But even overlooking all the other problems attending our colleagues’ “clerks-only” theory, the authorities they cite do not begin to do the work attributed to them. ”

“ If enforced, they prevent providers from seeking effective pre-enforcement relief (in both state and federal court) while simultaneously depriving them of effective post-enforcement adjudication, potentially violating procedural due process. To be sure, state courts cannot restrict constitutional rights or defenses that our precedents recognize, nor impose retroactive liability for constitutionally protected conduct. ”

“ But at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S. B. 8. [4]
In the face of this conclusion, Justice Thomas advances an alternative argument. He stresses that to maintain a suit consistent with this Court’s Ex parte Young and Article III precedents, “it is not enough that petitioners ‘feel inhibited’ ” or “ ‘chill [ed] ’ ” by the abstract possibility of an enforcement action against them. Post, at 6–7. Rather, they must show at least a credible threat of such an action against them. ”

“ In fact, the circumstances at hand present an even stronger need for pre-enforcement relief than in Young, given how S. B. 8 not only threatens a multiplicity of suits, but also turns state-court procedures against providers to ensure they cannot effectively defend their rights in a suit. ”

“ Under these circumstances, where the mere “commencement of a suit,” and in fact just the threat of it, is the “actionable injury to another,” the principles underlying Young authorize relief against the court officials who play an essential role in that scheme. Id., at 153. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme. ”

“ While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. ”

“ Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage. [3]
Justice Thomas alone reaches a different conclusion. He emphasizes that suits seeking equitable relief against executive officials are permissible only when supported by tradition. See post, at 2–3 (opinion concurring in part and dissenting in part) . He further emphasizes that the relevant tradition here, embodied in Ex parte Young, permits equitable relief against only those officials who possess authority to enforce a challenged state law. ”

“ In this case, that means we must review the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of” them. Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995) . In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. ”

“ But the same provision of S. B. 8 also states that the law “may not be construed to ... limit the enforceability of any other laws that regulate or prohibit abortion.” §171.207 (b) (3) . This saving clause is significant because, as best we can tell from the briefing before us, the licensing-official defendants are charged with enforcing “other laws that regulate ... abortion.” Consider, for example, Texas Occupational Code §164.055, titled “Prohibited Acts Regarding Abortion.” ”

“ Even if we could overcome this problem, doing so would only expose another. Supposing the attorney general did have some enforcement authority under S. B. 8, the petitioners have identified nothing that might allow a federal court to parlay that authority, or any defendant’s enforcement authority, into an injunction against any and all unnamed private persons who might seek to bring their own S. B. 8 suits. The equitable powers of federal courts are limited by historical practice. Atlas Life Ins. ”

“ Likewise here, petitioners seek a declaration that S. B. 8 is unlawful even though no respondent can or will enforce it. ↑ For the remaining licensing officials—the heads of the Texas Health and Human Services Commission, the Texas Board of Nursing, and the Texas Board of Pharmacy—the principal opinion identifies no law that connects these officials to S. B. 8 or overrides the Act’s preclusion of governmental enforcement authority. Indeed, as to the Health and Human Services Commission, S. B. 8 explicitly forecloses enforcement authority. ”

“ Petitioners offer nothing to make this showing. Even if the licensing-official respondents had enforcement authority, the chance of them using it is, at present, entirely “imaginary” and “speculative.” Younger, 401 U. S., at 42.
The irony of this case is that S. B. 8 has generated more litigation against those who oppose abortion than those who perform it. Respondent Clarkston, a state-court clerk, reports that only three S. B. 8 complaints have been filed in the State of Texas, none of which has been served. Brief for Respondent Clarkston 9–10. ”

“ The private litigants brought those actions only after a San Antonio doctor performed a postheartbeat abortion and openly advertised it in the Washington Post. See A. Braid, Why I Violated Texas’s Extreme Abortion Ban, Washington Post, Sept. 19, 2021, p. A31, col. 2. Opponents of abortion, meanwhile, have been sued 14 times in the Texas state courts, including by some of the very petitioners in this case. ”

“ At the end of that road is a world in which “ [t] he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984) . ”

“ See Brief for Respondent Clarkston 10. [4] Petitioners cast aspersions on the Texas state courts, but those courts are not dawdling in these pre-enforcement actions. The Texas courts held summary-judgment hearings on November 10 and entered partial judgment for the abortion providers on December 9. See Van Stean v. Texas, No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9, 2021) . Simply put, S. B. 8’s supporters are under greater threat of litigation than its detractors. ”

“ But whatever a state statute may or may not say, applicable federal constitutional defenses always stand fully available when properly asserted. See U. S. Const., Art. VI. ↑ This is not to say that the petitioners, or other abortion providers, lack potentially triable state-law claims that S. B. 8 improperly delegates state law enforcement authority. ”

“ But the petitioners do not seek such relief. It is Texas that has taken the unprecedented step of delegating its enforcement authority to the world at large without requiring any pre-existing stake. Under the Court’s precedents, private actors who take up a State’s mantle “exercise ... ”

“ Because these state actors are necessary components of that chilling effect and play a clear role in the enforcement of S. B. 8, they are proper defendants.
These longstanding precedents establish how, and why, the Court should authorize relief against these officials as well. The Court instead hides behind a wooden reading of Young, stitching out-of-context quotations into a cover for its failure to act decisively. The Court relies on dicta in Young stating that “the right to enjoin an individual ... ”