Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court

The Supreme Court issued decisions today in the pending issues in Whole Woman’s Health v. Jackson and United States v. Texas. As anticipated in the earlier column, the Supreme Court did not grant an injunction and dismissed the Biden Administration’s lawsuit. The Court again rejected the notion of enjoining the judge and clerk but it did identify some private parties who can be sued as part of a pre-enforcement action. That represents a partial victory for pro-choice litigants, but the Court returned to a single track for its abortion review. That track originates in Mississippi, not Texas. Dobbs will remain the key decision on reproductive rights and is likely to answer many of the questions in the ongoing Texas litigation.

The Justice Department lawsuit was dismissed with only Justice Sotomayor dissenting.

Justice Sotomayor also criticized her colleagues in a partial dissent for not granting an injunction: “The (Supreme) Court should have put an end to this madness months ago. It failed to do so then, and it fails again today.”

Justice Neil Gorsuch wrote the lead opinion, joined by Justices Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts again joined the liberal wing of the court while Justice Clarence Thomas issued his own partial dissent.

The justices remained firm on their earlier rejection of the challenge against the judge and clerk as virtually arbitrary defendants. Ruling under the doctrine of sovereign immunity, it dismissed defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge). It also dismissed Texas Attorney General Paxton as a defendant.

It however found that some private parties could be sued in a pre-enforcement action.

The decision was decried immediately by liberal faculty and members of Congress.  However, in her dissent with Justices Breyer and Kagan, Sotomayor echoed those views:

“Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”

However, Gorsuch wrote that the refusal to enjoin the law was based on long-standing procedural principles:

“The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.”