IssuesSCOTUS Lets Heartbeat Act Challenge Continue Against State Agencies, Dismisses Judicial Defendants

The court also dismissed the Biden administration's lawsuit against Texas over SB 8 by a nearly unanimous decision.
December 10, 2021
The U.S. Supreme Court acted on both of the major challenges to the Texas Heartbeat Act in federal court on Friday, potentially signaling favor for the law and leaving its central enforcement scheme in place.

The court dismissed the Biden administration’s lawsuit against Texas over the law, passed during the regular Texas legislature as Senate Bill (SB) 8.

Additionally, the court dismissed several key defendants from the first major challenge to SB 8, potentially hamstringing the suit.

The Heartbeat Act bans abortions once cardiac activity can be detected in the womb. However, to comply with Supreme Court precedent, SB 8 bars any government or official in Texas from enforcing it. Instead, citizens can sue anyone besides the mother herself that performs or aids the abortion of a child with a pulse.

In an effort to stop enforcement of the law, a group of abortion providers and industry members sued several state agencies, Texas Attorney General Ken Paxton, private citizen Mark Lee Dickson, a state judge, and a state clerk.

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Each defendant plays a different role in enforcing SB 8, the plaintiffs claim.

According to the plaintiffs’ original complaint, Paxton and state agencies such as the Texas Medical Board may enforce SB 8 indirectly despite the law’s provision that no government action can be taken to enforce it. The plaintiffs attempted to establish state judge Austin Jackson and clerk Penny Clarkston as class representatives of all state judges and clerks in Texas, who allegedly participate in SB 8 enforcement by filing and judging lawsuits brought under the law. Lastly, the plaintiffs sued Dickson, a pro-life activist, under the claim that he would likely sue them under SB 8.

The Supreme Court ruled that the plaintiffs, led by Whole Woman’s Health, may continue their lawsuit against the state agencies but dismissed Paxton, Jackson, Clarkston, and Dickson as parties in the lawsuit. In other words, the abortion providers may still argue that SB 8 threatens them with some regulatory harm, but they cannot pursue action against the defendants whose only conflict with the plaintiffs was the threat of lawsuits.

This decision leaves SB 8’s civil enforcement method in place.

Justice Neil Gorsuch delivered the principal opinion, joined by Justices Samuel Alito, Brett Kavanaugh, and Amy Barrett. Justice Clarence Thomas mostly concurred but dissented in part, arguing that the case should be entirely dismissed.

The Principal Opinion

In their principal opinion, the majority wrote that the substance of SB 8’s effect was not at issue in this decision.

“In this preliminary posture, the ultimate merits question — whether SB 8 is consistent with the Federal Constitution — is not before the Court. Nor is the wisdom of SB 8 as a matter of public policy,” it reads.

The majority remained unconvinced by the abortion providers’ claims that state judges and clerks could be considered adverse actors, suitable for litigation, merely by exercising their regular duties.

“Private parties who seek to bring SB 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,” the opinion reads.

“Troubling, too, the petitioners have not offered any meaningful limiting principles for their theory. If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”

With regards to the attorney general, the judges dismissed him from this case for the same reason they refused to take up the abortion providers’ first petition to the Supreme Court, interpreting the law to give Paxton no enforcement authority.

“[T]he petitioners do not direct this Court to any enforcement authority the attorney general possesses in connection with SB 8 that a federal court might enjoin him from exercising,” the judges wrote.

Since Dickson swore that he has no intent to sue the plaintiffs for violating SB 8, the whole court agreed that he should be dismissed.

The majority briefly touched on the validity of SB 8’s civil enforcement method, pointing out that similar measures exist elsewhere in the law. Private attorneys general acts, statutes that create private rights of action, tort law, and even the Civil Rights Act of 1964 all “in some sense” delegate enforcement of the law to regular citizens, the court wrote.

Thomas’ Dissent

Thomas agreed that Paxton, Clarkston, Jackson, and Dickson should be dismissed from the case. However, he wrote that the state agencies should have been dismissed as well since SB 8 forbids them from enforcement.

“[T]hat statute explicitly denies enforcement authority to any governmental official. On this point, the Act is at least triply clear,” Thomas wrote.

“Rather than introduce competing instructions in SB 8, I would read the Act as a ‘harmonious whole.’”

As one example, Thomas used the Texas Medical Board, an agency that the plaintiffs claim could discipline doctors for performing post-heartbeat abortions. He interpreted the law to allow the board the same authority it has always possessed to enforce other abortion regulations even while foreclosing enforcement of SB 8.

Additionally, Thomas maintained his longstanding position that abortion providers lack standing to assert the rights of their potential clients. He added that SB 8 has incited more lawsuits against its defenders than its critics.

“The irony of this case is that SB 8 has generated more litigation against those who oppose abortion than those who perform it,” Thomas wrote, noting that only three SB 8 enforcement lawsuits have been filed, none of which has been served.

“Opponents of abortion, meanwhile, have been sued 14 times in the Texas state courts, including by some of the very petitioners in this case… Simply put, SB 8’s supporters are under greater threat of litigation than its detractors.”

Roberts’ Dissent

Chief Justice Roberts wrote a short dissent that Breyer, Sotomayor, and Kagan joined, arguing that an extraordinarily broad injunction would be needed to address an extraordinarily broad law.

“The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not ‘usually’ enforce a State’s laws. But by design, the mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants,” Roberts wrote.

“Any novelty in this remedy is a direct result of the novelty of Texas’s scheme… 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.”

Sotomayor’s Dissent

Sotomayor, joined by Breyer and Kagan, wrote a strongly worded dissent that compared SB 8 to Jim Crow laws meant to evade the Constitution. She further cautioned that the same model could be used elsewhere for different purposes.

“By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine SB 8’s model for nullifying federal rights,” Sotomayor wrote.

She agreed with Roberts that judges and clerks may be considered adverse litigants.

“SB 8’s formidable chilling effect, even before suit, would be nonexistent if not for the state-court officials who docket SB 8 cases with lopsided procedures and limited defenses. Because these state actors are necessary components of that chilling effect and play a clear role in the enforcement of SB 8, they are proper defendants,” Sotomayor wrote.

“With SB 8’s extreme alterations to court procedure and substantive defenses, the Texas court system no longer resembles a neutral forum for the adjudication of rights; SB 8 refashions that system into a weapon and points it directly at the petitioners.”

Though this decision fractured the court, only Sotomayor dissented from the decision to dismiss the Biden administration’s lawsuit. It will continue at the Fifth Circuit Court of Appeals.

The court’s principal opinion left the question of a constitutional right to abortion unanswered and the precedent set by Roe v. Wade so far untouched.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.