Courthouse Steps Decision Webinar: Whole Woman's Health v. Jackson

A Federalist Society Webinar

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On December 10, 2021, the U.S. Supreme Court decided Whole Woman's Health v. Jackson and dismissed the federal government's suit against Texas in United States v. Texas. The Court held 8-1 in Jackson that plaintiff abortion providers can pursue claims against licensing officials.

Justice Gorsuch wrote the majority opinion, joined in full by Justices Alito, Barrett, and Kavanaugh, with Justice Thomas joining as to all but one part. Justices Roberts wrote an opinion concurring in judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined, while Justice Sotomayor wrote a separate opinion concurring in the judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined.

A pair of distinguished federal-courts scholars join us to discuss the cases, the legal issues involved, and the implications going forward.
  • Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
  • Prof. Howard Wasserman, Professor of Law, Florida International University College of Law


This Zoom event is open to public registration at the link above.


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Nick Marr:  Welcome everyone to this Federalist Society Webinar as this afternoon, December 14, 2021, we're having a Courthouse Steps Decision Webinar on Whole Women's Health v. Jackson. I'm Nick Marr, Assistant Director of Practices Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts.


      We're very glad to be joined today by the folks we had preview the oral arguments in this case, this expedited case. And so here now we are going over the expedited ruling. I'll just give them that brief introduction, and I'll let them take it from there. A quick note though first, for the audience, we'll be looking to you for questions towards the second half of the program. So please submit those via the Chat or the Q&A chat, however you see fit, and we'll take those from the Chat box when we get to that portion of the call.

With that, we're joined this afternoon -- it's my pleasure to introduce them both -- Professor Stephen Sachs. He's Antonin Scalia Professor of Law at Harvard Law School. And Professor Howard Wasserman, he's a Professor of Law at Florida International University College of Law. Of course they have done much more work than just that, and you can find more information about them on our website and follow their links.

With that, Professor Wasserman is going to give a little bit of background on these bills and  the case, and then we'll go from there. So Professor Wasserman, thanks for being with us. I give you the floor.

Prof. Howard Wasserman:  Thank you, Nick. Thank you for having me, and thanks to everybody for joining today. So a very quick background on S. B. 8 and sort of the lead up to the two decisions that the Court issued on Friday.

      So S. B. 8 is called the Fetal Heartbeat Act, and the main substantive provision is a ban on the performance of abortions after detection of a fetal heartbeat, which usually occurs about five or six weeks of pregnancy. It requires doctors to check for a fetal heartbeat and prohibits the abortion if one is detected subject to certain exceptions with respect to the life or health of the pregnant person.

      Now, the law is invalid under Roe and Casey which established the proposition that a state cannot prohibit pre-viability abortions in this way. What was different about S. B. 8, though, was it didn't provide for any sort of public enforcement such as by the attorney general or by the head of the department of health services. And instead, it created a private cause of action for any person, regardless of injury, regardless of any connection to the particular abortion, could sue either the doctor or clinic that performed the abortion as well as anybody who aided and abetted that abortion in state court and could recover statutory damages of a minimum of $10,000 per unlawful abortion, an injunction prohibiting future unlawful abortions, and attorney's fees. And the idea behind the law was basically to either sue abortion providers and advocates into stopping their activity or slow the activity with a threat of lawsuit and crippling liability.

      Now, the abortion rights community followed its usual course which was to file a pre-enforcement lawsuit before the law actually took effect seeking a declaratory judgement of its invalidity and an injunction prohibiting its enforcement. And they sued the usual suspects like the attorney general and the head of the department of health services. They also sued the heads of various medical licensing boards. They then sued a state judge as a potential class representative, a state clerk of court as a potential class representative, and Mark Dickson who is the head of the East Texas Right to Life.

      The defendants' argument in this lawsuit was: you can't sue us. Because there is no public enforcement, then there's no one for the federal court to enjoin. There's no standing. There's no waver of sovereign immunity because you don't have a proper defendant who is charged with enforcing the law.

      When that lawsuit ran into some not unexpected hurdles, the United States filed a lawsuit against the State of Texas sort of seeking sort of a global injunction against anyone connected to the State of Texas enforcing the law. The United States actually succeeded in getting a preliminary injunction. SCOTUS then granted cert before judgement in both cases with an expedited briefing schedule of about five or six days and heard oral arguments on November 1 and announced the opinions in both cases last Friday.

Prof. Stephen Sachs:  Thank you. And I'll take over and discuss the opinions themselves. So it was somewhat of a fractured decision. In the U.S. v. Texas case -- sorry to bulk summarize -- the Court just dismissed it as improvident granted. But in the Whole Women's Health case, the Court per Justice Gorsuch allowed a very narrow means for the providers suits to go forward against some of the defendants, but in a such a way that signals that they really won't get what they want from the courts below which is protection in general against the future private suits.

      So Justice Gorsuch, writing mostly for five except for one part of the opinion that I'll raise later, held that many of the defendants were not proper defendants under Ex parte Young and could not be sued by the providers. So for instance the state bar judges, Ex parte Young had said that the machinery of the courts could not be the target of an injunction or that would disrupt our whole scheme of government.

      Likewise, the state court clerks who were merely part of that machinery and whose only job is to file the suits that are brought to them, they are, for one thing, outside the explicit terms of Ex parte Young, but they're also not adverse to the providers who are suing. The clerks are not on the other side of the lawsuit. They're merely the people handing the lawsuit, and the people who are on the other side are the private plaintiffs. The problem is, of course, you don't know who they are, and so you can't sue them yet, by and large. But the Court said that they are not, the clerks and judges are not sufficiently adverse. There is no case or controversy under Article III between the plaintiff providers and those judges and clerks.

      They also noted some practical problems that might ensue if judges or clerks were allowed as defendants. They have been made defendants in some prior cases where in some sense they were sort of going off on their own to impose a rule, generally not when they're merely filing or processing the claims brought by others. In general it's not the clerk's job to read the complaint or to know what it says. It's their job to stamp it and make sure that it's filed. And the kinds of review that would be necessary to figure out whether a new claim is brought under a statute that qualifies for the extraordinary treatment that the parties were seeking for S. B. 8, the majority was very skeptical that that could be done and indeed suggested that the other dissenting opinions had not fully worked out what the regime should look like.

      Likewise, the majority held that there could be no suit against the Texas AG because they lacked enforcement authority as relevant here, and that even if a suit were brought against then, a judgement against them couldn’t bind all of the private plaintiffs who might try and sue under the Texas statute and so wouldn't really get the providers what they want.

      There was one category where the Court said that the suit could go forward and that was as to the licensing officials. So here the argument really was that the architects of the statute didn't quite dot their i's and cross their t's well enough and that the statute still permitted some public enforcement by the Texas licensing officials whose job it was to deny licenses and otherwise initiate enforcement actions against doctors who violated the health and safety code of which this new S. B. 8 is part.

      There is broad language saying, not withstanding any other law, that there's not to be public enforcement here in S. B. 8, but the Court said that that was limited by other portions of S. B. 8 that said not to read it to limit the regulation of abortion under other statutes. And combining the statutory provisions in the view of the majority of the Court, the licensors had authority to enforce the statute and therefore could be sued in a standard Ex parte Young way.

      That part of the decision was actually 8-1. It was the rest of the Court against Justice Thomas who dissented on that ground in particular and held both as a matter of Texas law, the Texas statutory interpretation, that the licensors could not enforce on their own, but also as a matter of Ex parte Young factors that there was not the immediate danger of enforcement that was necessary to sustain the suit under Ex parte Young on those grounds. And no one seemed to think that the private party who was brought along for the ride could be sued here or had any intention to sue anyone.

      So what this means from the majority's judgement, combining the parts that had five votes and the parts that had eight votes and so on, is essentially that some suit can go forward against the Texas licensing officials unless the district court and the Fifth Circuit take a narrower view of Texas law or more information comes out about Texas law in the interim. I mean, what the Court is doing here is essentially is an eerie guess about what the content of Texas law is. And even if the providers win a judgement on that, all they get really is the district court judgement. The real ball game will be how quickly will they get a merits ruling in the Fifth Circuit, and will it come down before any decision in Dobbs, which I'm sure that Professor Wasserman will discuss later.

      But what they did not get was a remedy that would enable them to bar a new suit by a private plaintiff tomorrow. So if a provider performs an abortion tomorrow and were then sued by a private plaintiff, nothing coming out of this lawsuit would hold that private plaintiff in contempt for filing the lawsuit or would any way bar the lawsuit. There would just be the question under existing precedence can that lawsuit go forward, but it would have to be litigated in that fashion.

      I want to, briefly before going back to Professor Wasserman, mention the dissents, both by the Chief Justice and by Justice Sotomayor. The Chief Justice's dissent for four votes said that a suit against the Texas attorney general would be okay under Ex parte Young, in part reading the Texas statute slightly differently so as to allow for slightly more enforcement authority vis-à-vis the attorney general.

      More significantly, the Chief Justice would have allowed suits versus the court clerks. This is more significant because that's really the remedy that one of these plaintiffs needs in order to bar a future suit against them. And the Chief differentiated clerks from judges saying that no suit could go forward against the judges, but that a suit could go forward against the clerks because they play a distinct role. They set the litigation in motion, and he noted cases in which federal courts had enjoined state court proceedings. This is a very brief discussion and not a lot of detail of the kind that the majority of the Court was seeking. And how exactly would a remedy against the clerks work; how would it be consistent with due process for the parties who had not yet brought suit; how far would it extend to other folks with ministerial obligations vis-a-vis law suits; and when is it that a clerk of court is performing in some sense an unlawful act just by docketing a law suit that is brought under an allegedly unconstitutional statute?

      These questions were still open under the Chief Justice's opinion who has emphasized that the purpose and effect of the statute was to nullify the Court's rulings and in his view to limit the role of the Supreme Court in our constitutional system.

      Similarly, Justice Sotomayor, writing for only three justices not including the Chief, emphasized the chilling effect that the statute would have and, in addition to arguing that the clerks and others were proper defendants, argued essentially that the district court can handle all the implementation questions. We don't need to figure out exactly what an injunction against the clerks will look like. They can figure that out. Maybe even the private plaintiffs could be enjoined directly because they're being deputized by the states here. But really it emphasized the idea that Texas was in some sense at war with the Court's ruling. And I use that term advisedly in the sense that she cited the address of John Calhoun claiming that the state was seeking to nullify federal law, cited disapprovingly, very much so, the architect of the statute, Jonathan Mitchells' brief which stated that the Supreme Court's interpretations of the Constitution are not the Constitution itself. They are after all called opinions and stated that the nation fought a civil war over the proposition, but Calhoun's theories, were not extinguished.

      Others before have noted that this is slightly incongruous since to the extent that the Civil War was about the authority of the Supreme Court, the other side won in that it was Lincoln who challenged the authority of the Court in Dred Scott and Douglas who upheld it. Of course what Justice Sotomayor was really getting at was the relationship between state and federal government. To what extent will the federal government and the federal courts settle the question in ways that state laws cannot inhibit?

      One thing I do want to note though before handing it over to Professor Wasserman is that in his article sort of laying out the ideas behind the statute, Jonathan Mitchell had noted that the real issue here is not the relationship between states and the federal government but rather between courts and their successors. So the real question here is not whether the issue will come up in court because it definitely will.

      I mean it's coming up in a large number of state courts. Indeed, as the majority noted, there's a great deal of litigation in Texas right now on this question. A recent opinion by a Texas state judge held S. B. 8 unconstitutional as a matter of the Texas Constitution, arguing that it improperly deputized officials delegating power and exceeded the Texas Constitution's standing requirements. So it's possible that this will be resolved by courts which are indeed following the precedents laid down by the Supreme Court until the Supreme Court chooses to overrule them. The question is which courts and when. Will it be done post-enforcement? Will it be done in state court? Will it be done in federal court, and who are the proper defendants? The state litigation is all sort of one-on-one in some sense between the parties who are actually suing under the statute or the parties who are threatening to sue under the statute and providers whose conduct might be chilled thereby.

      Here the real question in the S. B. 8 case that the Supreme Court had was whether you could go after a defendant class of state judges or defendant class of state clerks and get a single ruling that would close off all avenues for suit. That, it seems, is not going to happen unless something interesting goes on the U.S. v. Texas lawsuit which is still out there. But it seems that for now, at least, it's the one-on-one state litigation that's going to proceed. Back to Professor Wasserman.

Prof. Howard Wasserman:  I just wanted to jump off on a couple of points that Professor Sachs made and then kind of suggest where we go from here. One X factor with the federal lawsuit that might go forward against the licensing boards is whether the state has any incentive to appeal even if the district court declares the law constitutionally invalid and enjoined, say, the medical board from taking away this doctor's license. The state might just decide okay, we're not going to bother appealing. And so now you have the district court's very narrow injunction. You have the district court's persuasive precedent but nothing else. We're not going to give the Fifth Circuit a chance to make a decision.

      The second thing is that even if you give the Fifth Circuit a chance to make a decision, that doesn't necessarily provide the precedent that you want because Texas has decided -- the Texas Supreme Court has decided that Fifth Circuit precedent is not binding on the Texas courts. It's persuasive. It has the same force and effect as a district court judgement.

      The second thing -- and Professor Sachs hinted at it -- is the, for lack of a better term, judicial supremacy or idea of judicial supremacy that underlies both the Chief's and Justice Sotomayor's dissenting opinions then. In sort of the Cooper v. Aaron, we get the last word on the meaning of the Constitution, and the state cannot act in any way that runs counter to that.

      And related to that is the assumption -- and this goes back to Jonathan Mitchell's point -- the assumption underlying the dissents is there shouldn't even be litigation about it, that having to litigate constitutional rights is itself a violation of constitutional rights. That having to go through the steps of arguing and getting a new ruling that this new law is constitutionally invalid in light of prior precedent is itself a violation of constitutional rights. And that just never has been the case. Judicial review means that it's the judiciary reviewing, but the judiciary reviews things when it comes up through litigation. So there's this odd disconnect where this law is undermining judicial review by making the courts do something. And it seems a strange position to try to balance.

      So what happens now? So besides the lawsuit against the licensing boards, which I expect the district court to issue a preliminary injunction unless the state officials can make a really convincing argument that state law does not authorize any use of an S. B. 8 violation as a predicate act for a licensure action, and then we're back to the question of really narrow injunction what does the state choose to do.

      There are three pending S. B. 8 actions in state court, all against a doctor named Alan Braid who set up a test case in the best tradition of American constitutionalism where he performed one unlawful abortion and then wrote about it in the Washington Post. And he's been sued by one anti-abortion rights group and two very strange private individuals neither of who is from Texas. But that's really set up, as this whole thing should be, that's set up for them to then defend, get this action dismissed, and get a state court ruling on it.

      And then the third thing as Professor Sachs mentioned is the state court action that ruled that the procedural aspects of S. B. 8, the delegation of private enforcement authority, the limits on raising affirmative defenses, and one other procedural issue -- I'm drawing a blank on which one -- but three of the procedural aspects of S. B. 8 are invalid under the Texas constitution. These are all issues that we would have expected to see doctors or clinic raise in an actual S. B. 8 action in addition to the core provision being invalid. Hey, this guy can't bring this lawsuit because Texas cannot just grant standing in this way to any person. The state trial court said no we can do that pre-enforcement in a declaratory judgement action. Although interestingly, it was a declaratory judgement, and the court explicitly declined to issue an injunction.

      So the next stop for that is going to be, I imagine, the Texas Intermediate Appellate Court. The interesting thing there is I'm not sure why they're -- that lawsuit was brought against an anti-abortion rights organization that there's sort of some open questions about whether they or their members intend to bring lawsuits or not. So I think some of the same traceability problems, some of the same standing problems that apply to Mark Dickson in the federal court may also apply to the organization there.

      That action and those three actual enforcement lawsuits are the ones to keep an eye on. And Professor Sachs, do you want to talk about what might happen with the United States lawsuit which is back down to the Fifth Circuit?

Prof. Stephen Sachs:  Sure. So in some sense we're not really sure because the position of the United States was essentially that even though there's not obvious source of a cause of action or authorization to sue in equity for the United States here, it was okay because of the very unusual circumstances of this case where there's no other route to reinforcement review. It's not clear what the Fifth Circuit is going to do with that argument. Again, so the district court had issued a preliminary injunction. The Fifth Circuit -- the U.S. immediately -- I'm sorry -- Texas immediately appealed. The Fifth Circuit stayed that injunction, and the U.S. sought in the Supreme Court to vacate the stay or else have certiorari before judgement. The Supreme Court granted certiorari and then changed its mind and dismissed it.

      So now we're back in the Fifth Circuit and, presumably, the lesson of this opinion is bad for the United States in two ways. One is that it seems that a lot of the actual outcomes that the U.S. wanted, namely the order forbidding Texas state judges from hearing cases under this law, which is the sort of order the district court had issued before it got stayed, that seems in some sense out as a result of the Supreme Court's opinion. It's not absolutely, definitely out. This is an opinion about Ex parte Young and sovereign immunity which is not an issue for the United States, but some of the discussion of the adversity and some of the discussion of sort of who is doing what that's unlawful here, I think is probably going to throw cold water on a lot of the United States' remedial theories.

      The other problem for the United States' suit is -- the whole premise of their suit is that there's no other route. Well, now this Supreme Court has identified a small other route, namely against licensing boards and licensing officials. So at least as long as that remedy is still kicking around, you can imagine the Fifth Circuit saying that's enough. What more do you need? I imagine the providers would say they'll need a great deal more than that, and the United States would probably agree. But it will take a while for that issue to get hashed out.

      Honestly, I would not be surprised if what we see in the Fifth Circuit is a round of briefing. Maybe they'll get to where they'll  calendar some oral argument. And in the meantime, Dobbs will be decided, and the issue of whether Roe and Casey are still good law will be determined, and that will have its own effects on this case. So I think that really the U.S. litigation is in sort of a holding pattern until we figure out what else is going on.

Nick Marr:  Very well. We are scheduled for the hour, so we've got about a half hour here left that we can use. I'll just offer another call to the audience, a reminder that we're looking to you for questions now. Please submit them via the Chat function. And we've actually got a couple here. One is about could a litigant avoid the ruling about licensing authorities by not seeking licensure action versus the abortionist, but instead seeking injunction statute or damages and counsel fees.

Prof. Howard Wasserman:  Yeah. I think that injunction was not directed at private individuals. I think that injunction is directed at the board itself. And so nothing stops anybody from filing a complaint with the licensing board. But typically they wouldn't have bothered with that anyway. With the injunction what the injunction is designed to do is to keep the medical licensing board from instituting any action whether on its own complaint or if somebody else complains. And there is actually a letter asking the board to open a medical licensure action against Dr. Braid.

      I think the private individuals were always going to file lawsuits because literally that's where the money is.

Prof. Stephen Sachs:  Yeah. The only advantage from the district court having entered in injunction that is now affirmed as to the licensing board is that at least in terms of the -- I'm sorry. Let me take that back. The district for having denied a motion to dismiss, the denial of which is now affirmed, vis-a-vis the licensing board, the only advantage of that is that it now goes up to the Fifth Circuit potentially if the district court reissues an actual injunction. And we might get some precedent on that.

      But ultimately the private suits are going to be out there until either the U.S. Supreme Court or the Texas supreme court says stop. Because the private suits, there's nothing you can do to enjoin all of them before they're brought. And the only thing you can do is to get a ruling that will have stare decisis affect and that will tell every future court in any of these private lawsuits that the private individual loses. Until you get that, there's no reason why the private suits would stop or unless the law were repealed or something like that.

Prof. Howard Wasserman:  And I would just add, and this really goes to the crux of -- I agree with Professor Sachs' description of the process. And I think part of -- I think the confusion here is the belief by a lot of people that that's unusual, and it's not. This is the same thing that we have with defamation law a whole bunch of other torts and other and property and contract actions and employment discrimination actions that potentially also implicate constitutional rights. We deal with this all the time in exactly this context.

Nick Marr:  A couple more questions came in. One is a technical question if we can talk a little about this. How did Justice Gorsuch end up with the opinion? Who chose, or how did it happen?

Prof. Stephen Sachs:  So normally the rule is that the most senior justice in the majority assigns, I suppose that would have been Justice Alito. Is that right?

Prof. Howard Wasserman:  Well, that's what I was trying to -- I've actually been thinking about this because I’m not sure what the majority looked like, the majority for what and what the majority looked like coming out of conference because there was agreement on some of the claims not against others, so I guess if the question is who is senior most that agreed across all possible defendants, then, yeah, it would have been Justice Alito.

Prof. Stephen Sachs:  But it's possible that Justice Thomas had not yet made up his mind as to the licensing boards and so was still in the majority at that time and assigned it and then dropped off. Who knows?

Prof. Howard Wasserman:   Yeah. I was wondering that when the -- I wondered the same thing when the opinion came down.

Nick Marr:  Great. Our next question is about what, if any, effect the ruling from the district court declaring the law unconstitutional, as the Chief mentioned in his opinion, would have in practical terms.

Prof. Stephen Sachs:  So if the question is about what would happen if tomorrow or whenever the mandate issues the district court gets the case back from the Fifth Circuit and issues a new preliminary injunction as to the licensing board, the effect would be that the licensing officials can't delicense any doctors. That's it, that they can't do anything.

      It would not establish precedent because district court decisions don't get stare decisis. In fact, they don't bind future courts. They're just persuasive authority. Presumably, as Professor Wasserman mentioned, it could be that Texas would appeal. It could be that the licensing officials would appeal and get a Fifth Circuit ruling. That would have more precedential effect because that would bind all of the federal district courts hearing cases in the Firth Circuit. But as mentioned, they might not do that. They may take that ruling and fine we won't delicense any doctors. There aren't any abortions going on after six weeks in Texas right now anyway. So there's really not much incentive for them to do much. They might just take the loss and then let the private individuals continue litigating.

Prof. Howard Wasserman:  I think practical terms in doing a lot of work in that question. And so what exactly we mean by practical terms is any practical effect that it's going to have, besides very limited effect on the licensing authorities, is what does it do to what everybody's really worried about which is the private actions in state court. And there its practical effect is it's going to be persuasive authority. It's something that a state court could look at in order to decide that the law is constitutionally invalid and therefore to dismiss an S. B. 8 action once it's brought. That's really the practical effect.

      I think in a lot of ways this is a good illustration of what really goes on on the ground in constitutional litigation but gets talked about in more ethereal terms is there's got to be litigation, some new decision that one court is then applying the decisions of a prior court to. But it all has to be sort of hashed out within litigation. It doesn't get just hashed out in the air.

Prof. Stephen Sachs:  And I should add that that's really the problem facing the providers here is that they need a real defendant. They need somebody to sue, and what the Court has said is that most of the people on your list are not the right person to sue. The right person to sue would be a private individual bringing one of these lawsuits, but we don't know who they are.

Nick Marr:  We've got another question on pre-enforcement efforts more broadly. I'm not sure if there's an example per se, but how do we think about pre-enforcement more broadly, maybe using this case as an example. And I'll connect my own example. Gavin Newsom in California recently announced that he's going to push legislation mirroring this one about firearms. So maybe one of you has some thoughts about that.

Prof. Stephen Sachs:  Well, I'll go first. I think he needs to be a little bit more careful. I don't think it's going to work. So part of the issue is that, as I understand it, California already has an assault weapons ban, and they already have public enforcement which gives you a person to sue. It gives you a public official who might bring prosecutions. And so that way you can get into federal court. You can eventually get up to the Ninth Circuit. You can get a ruling that will bind all the federal courts in California, and the availability of a private tort action doesn't happen.

      What was significant about S. B. 8's tort action was that it was a lawsuit that couldn't be brought by someone with no injury in fact, no ordinary sorts of standing, and it had no public enforcement tied to it. So there was no natural defendant other than the individual plaintiff. It's possible that other states will try this in more interesting ways. If a state wanted to -- I don’t know -- ban religion and make it anyone who practices religion can be sued for $10,000 by anybody. But I think what you'd see in those cases is two things. One is that it would have much less of a chilling effect because it's so obviously unconstitutional. One of the real sources of the chilling effect here is that no one's sure what's going to happen in Dobbs. No one is actually sure whether six months from now the received view of the legal profession will be that S. B. 8 is constitutional or not. It really only has the chilling effect where there's a great deal of uncertainty about the actual rule at the end of the day.

      The plaintiff who defends a lawsuit for $10,000 because they practice religion can be pretty sure at the end of the day the Supreme Court's going to have their back and that if they litigate this all the way up, they are going to win. That is not the case for the providers which is one of the reasons that they've sort of shut down.

Prof. Howard Wasserman:  You know, one of the things -- Ex parte Young rests very importantly on the idea -- and this has been followed up with a lot of subsequent cases -- is that pre-enforcement review is necessary because the violate and defend runs a lot of risk. You subject yourself to criminal or civil liability, potentially large sanctions. There's also a risk that the enforcer will choose not to enforce, and then you're stuck without -- you're chilled without the opportunity to get a judicial ruling. So one of the key pieces of Ex parte Young is that by itself the opportunity to violate and defend doesn't qualify as an adequate remedy at law, and therefore injunctive relief is possible.

      This gets at a slightly different part of that. The S. B. 8 gets at a slightly different part of that in that that part of Ex parte Young rested on the fact that there was some proper defendant in the court of equity. So there's no adequate remedy at law, yeah, but there's also a private and proper defendant in the federal equitable lawsuit.

      The problem here is the plaintiffs don't have that. The providers don't have that. There's not proper defendant, so we never reach the question of whether or not there's an adequate remedy at law making a pre-enforcement equitable action proper because you don't have a defendant. And you need that defendant first. You need somebody to actually be causing the constitutional violation.

Nick Marr:  Well, we've got another question about something Professor Sachs mentioned. Justice Sotomayor referred to the philosophy of John Calhoun in the context of saying that Texas's law is a challenge to our federal structure and this argument advanced by John Calhoun, there's a brief that says the Supreme Court's interpretations of the Constitution are not the Constitution itself. And someone is asking, what are your opinions about this parade of nullification horrors, so to speak. And then the question asks as to S. B. 8's precedential value in other areas of jurisprudence. I suppose one obvious area is in the Dobbs case before the Court right now.

Prof. Stephen Sachs:  So if we look at the Chief Justice's opinion, there's a very interesting turn of phrase as the end of the first paragraph, saying that S. B. 8 has had the effect of denying the exorcise of what we have held is a right protected under the federal Constitution. That language is careful. It's not saying there is such a right just that we've held that there is one. But then in the next sentence it says, "Texas employed an area of stratagems designed to shield its unconstitutional law from judicial review."

      And I think that both the dissenting opinions here have some difficulty in how they talk about the relationship between the Constitution and the Supreme Court because in some sense Jonathan Mitchell is obviously right. The Supreme Court opinions are opinions about the law. They are not the law itself. The Constitution is not just whatever the Supreme Court says it is such that if the Supreme Court tomorrow declared themselves a committee of nine emperors, well that must be what the Constitution provides. Everyone realizes that the Supreme Court can sometimes get constitutional questions wrong.

      The question, though, is what do you do in the meantime. So if the Supreme Court got a constitutional question wrong, there's some right answer and they picked the wrong one, what do you do? Who is bound by that? And there are lots of different views of this, some of which are more Calhounian than others. So Lincoln's view as that the judgement in a particular case is binding. Dred Scott, their decision was wrong, but the individual person Dred Scott could not be taken forcefully out of slavery because the Supreme Court had rule that the status of  slavery continued. And so Lincoln did not propose offering resistance to the judgement but did resist the opinion. He thought that slavery was unlawful in the territories. He thought that African Americans could be citizens, and he acted on those grounds. So he reserved the right to disagree with the opinion, even if he had to agree with the judgement.

      Now, there are good reasons in my view why governors, presidents, congressmen, legislators, other officials should not disagree with opinions all the time either. Just sort of ordinary reasons of political morality that if you bring 800 abortion prosecutions and each of them gets dismissed as unconstitutional, you're wasting everyone's time and making the world a worse place. But some people disagree on every issue, I'm sure. But there's at least some reason to want to stick with what the Court has said for the time being, even if you think it got it wrong, even if you would like to put forward a test case when the opportunity arises to overrule it.

      But I think that the difficulty that Justice Sotomayor and Chief Justice have in describing exactly what is wrong here is because we do recognize that what the Court says about the Constitution and the Constitution itself are in fact different things.

Nick Marr:  Anything to add, Professor Wasserman?

Prof. Howard Wasserman:  No. I would just cosign to everything that he just said, and I've written as much. So I want to leave us time for some other questions.

Nick Marr:  Great. Well, as to the future, we've got a question about Dobbs and how this might apply. Even if the Court overrules Roe and, I suppose here they assume, Casey in Dobbs, do you think there's any real chance the Supreme Court would allow an S. B. 8 plaintiff to collect money damages against a client for abortion -- or I suppose an abortionist who performed one -- performed before Dobbs overruled Roe? If not, what about the chilling effect?

Prof. Howard Wasserman:  So there is a provision in the law that says basically it is not a defense to an S. B. 8 claim that at the time there was a "decision". It's not a defense to a claim that the challenged abortion, at the time it was performed, there was a "decision" that caused the provider to believe that the -- or that authorized the abortion or caused the provider to believe that the abortion was lawful.

      Now the word decision is very nonspecific, and it's not clear if what they mean by that is an injunction prohibiting enforcement of this law or if they're just talking about the current state of judicial precedent. Now, if it's the latter, then at least on the face of the law, yes, they could potentially be liable. And I don't think there's any case law that establishes whether there's a due process problem with retroactive enforcement of a law that -- with retroactive enforcement of a law as a result of a change of precedent not as a result of vacating an injunction but just as a result of a change of precedent.

      Jonathan Mitchell's argument is no that the precedent establishing that the law is unenforceable is essentially a judicially imposed policy of non-enforcement, and you always run the risk that that policy of non-enforcement could change. So Mitchell, I think, would say that at least in the absence of an injunction against S. B. 8 itself, then, yeah, there is a risk of retroactive monetary relief, and that statutory provision is valid.

Prof. Stephen Sachs:  I think there's obvious reasons why states have a mistake of law defense. In a lot of states, if there is a state supreme court decision saying, "The statute does not cover your conduct," and you engage in the conduct, and then the Texas supreme court changes its mind, you're okay. You have a defense. It's mistake of law. Not every state has to have that, though. I don't know of any due process case law -- maybe there is, I'd be happy to be corrected -- saying that mistake of law is in some sense a constitutionally compelled defense. And if a state explicitly says no mistake of law defense here, I don't know of a due process doctrine that would allow one to say that you can't get in trouble for doing something that is not in fact constitutionally protected when the state warned you that if the judges ever change their mind, you might face trial.

      Obviously, that puts people in a very difficult position because they want to know what their rights are, and that's why we ask courts. But we also know that courts get things wrong sometimes, and we also know that courts don't have a pardon power. It's not like a court can just say, we thought it was okay and so we're pardoning everybody who did it during that time. I mean, that might be a really good case for the exercise of a pardon power by an executive official who has it, but nobody's got a pardon power to relieve folks of their $10,000 in S. B. 8 liability. And I don't know of a good legal theory as to how you would shelter conduct that was performed before the overruling. Even folks who might be sympathetic to the overruling might also be sympathetic to arguments that people should not be punished for stuff that a good lawyer might have thought was legal at the time.

Prof. Howard Wasserman:  Justice Sotomayor spends a lot of time talking in her dissent about this about the procedural aspects of S. B. 8; that it's any person standing; that you can be sued anywhere in the state; it's statewide; it's statewide venue; claim preclusion does not apply. And those objections have a -- she describes those objections in constitutional terms, that this is part of the constitutional problem with S. B. 8. And that is really new. No one has ever thought that venue rules or preclusion rules are constitutionally required. It's part of the -- I don't want to say over reaction because I understand the political concerns that are at work here. But I think it's part of where a lot of people are treating this as something, as this unheard of law. But a lot of what it's doing is pretty normal.

      The state could have statewide venue if it wants to for anything. A state could eliminate the doctrine of preclusion if it wants to. It's unwise to do it, but the idea that these are all constitutionally compelled doctrines, I think, is something really new.

Prof. Stephen Sachs:  The one asterisk I put on that is that to the extent that Texas purports to be restricting the scope of the undue burden category under Casey, to the extent that Casey is good law, that part isn't. And additionally, to the extent that Texas is relieving the plaintiffs, under S. B. 8, of an obligation to pay attorney's fees, even if their claims are frivolous, that would otherwise be required. So imaging that you sue an abortion provider for performing abortions on Mars. And they say, "Well, I didn't perform any abortions on Mars." They still have to hire a lawyer to say that. And you could file -- if you want to pay the filing fees, you could do that 800,000 times. And under S. B. 8, there's no sanctions.

      It's not obvious to me that there is not a due process problem there. The state doesn't have to award attorney's fees, but if they're going to award attorney's fees for frivolous litigation, except frivolous litigation in defense of one alleged constitutional right, I could understand the constitutional argument there might be a problem there.

      I don't know that at the end of the day that's correct, but I just want to say that there's certainly constitutional doubt about the degree to which the attorney's fees are one-sided. You have one-sided attorney's fees in lots of situations. They're not necessarily bad. But if even frivolous claims are protected from attorney's fees, that seems a little bit more like the use of the courts for harassment than for the determination of actual claims.

Prof. Howard Wasserman:  I will add I'm of the view that an S. B. 8 plaintiff who actually files a lawsuit does act under color of law and so can be sued in a 1983 action. So I think one thing that I could see happening is if an S. B. 8 plaintiff files a frivolous lawsuit, loses, the provider turning around and suing that person for damages in a 1983 action in federal court. I think there's a theory that supports that working, and that might provide the deterrent to frivolous litigation, or I would that that would provide the determent to frivolous litigation.

Prof. Stephen Sachs:  I'm so sorry to jump back in because I want to reserve time for our questions, but I have a question for Professor Wasserman which is what do you think would happen if Texas had rewritten its law such that you had to have an injury but in fact it was a very mild one? So if Texas had said we're not letting just anybody walk in the door, only persons within five degrees of consanguinity of the unborn child or only persons who live within 1000 feet of the abortion clinic. And in that case, would you really be an actor under color of state law? Because I wouldn't normally think that Kasky in Nike v. Kasky is acting under color. And so if you have some argument that you have your own interest at stake, is that enough, just sort of anything that will get you over the Article III standing bar?

Prof. Howard Wasserman:  Yeah. I think so or whatever the state standing bar is. Yeah, I think so. I think the fact that it's -- because if nothing else that narrows -- that, kind of like in Nike v. Kasky -- and I agree Kasky did not act under color of law -- you narrow the universe of potential plaintiffs from everybody in the state. And because there's some injury, however minor, it looks more like that individual is acting like a private tort plaintiff and not in deputized government official, not a deputized attorney general.

Prof. Stephen Sachs:  And if that's right then that might also be a roadmap to post S. B. 8 statutes. Instead of just opening it up to everyone, just open it to a very large number of people, and you get the same chilling effect, but it's much harder for the courts to process.

Prof. Howard Wasserman:  But that's always been where we were because a state could redefine it. A state could do what California did with its -- and say any person or any person with a small injury can sue to enforce consumer protection laws. That really is the landscape that we operate under both in federal court and in most state courts. And we are perfectly content in those other contexts to say well, you can raise it as a defense in the enforcement action, in the civil lawsuit.

Nick Marr:  Well, we just have a few minutes left. I want to press briefly the point about remedy. So when division among Gorsuch and the Chief and the other dissenters is whether the court clerk can be sued, and at least one reason Gorsuch brings up as to why this is problematic is because the clerks are supposed to be neutral. He cites the Texas code of judicial conduct, and so he's presenting possibly due process problems. But at the very least, he's pointing out the problem that what would be the workable remedy here. He says many more questions than answer would present themselves if the court journeyed down this way. And it strikes me a similar thing happened in Fulton when at least one big reason why Justices Barrett and Cavanaugh gave to not overruling Smith entirely was because they said well, what's going to replace it and we don't see an obvious new test to replace it. At least it's theoretically similar, so what's the role here of this -- I guess to put a point on the question -- when Gorsuch is saying there's a problem with how we don't know what the remedy would be. Is that a reason, good enough reason to not go the way that the Chief and the dissenters went?

Prof. Stephen Sachs:  So, it would have been nice I think to have gotten essentially a shadow majority opinion or a majority opinion in exile here saying this is how -- it's never required that dissenters do that, but in this case it would have been nice to see how would you have actually worked out all of the worries that would come up with an injunction being issued against a defendant class of state court clerks. And there would have been a lot.

      So one issue that I had raised in blogging is suppose an injunction's issued against state court clerks and some private plaintiff shows up and wants to file their lawsuit and they tear it up and throw it in the trash. And then the private plaintiff sues the court clerk under 1983 for interference with their right to petition and for due process. It's not obvious to me that the private plaintiff loses that lawsuit because they're not bound by a judgement against the court clerk in a case to which they were not a party. And if they argue that the district court issued this injunction was wrong, presumably they get the right to file their lawsuit. And so it strikes me that even the remedy sought here would not really help, and that ultimately all that really helps is the resolution of the constitutional uncertainty.

      The whole point of pre-enforcement challenges is to get a resolution of any constitutional uncertainty before you have to do the thing that might get you held liable or thrown in prison. And at the end of the day, the only thing that will solve this problem is a ruling in Dobbs.

Prof. Howard Wasserman:  Yeah. I think that's right. The other thing is just, besides the remedy in this case, is the boundlessness of the theory. I don't think anybody's come up with a stopping point for it. So if this goes forward, then what's to stop me as I'm CNN and I know someone's about to file a defamation lawsuit against me and I believe my speech was constitutionally protected. Well, let me run, and I'll sue the clerk of court where this person is probably going file the lawsuit, and I'll get an injunction. You're creating this race to the courthouse for all enforcement litigation. You would turn all litigation into pre-enforcement litigation. And I don't think Ex parte Young contemplated that.

Prof. Stephen Sachs:  Let me just say if I had made a false statement in my most recent corporate proxy, I'd love to be able to certify class of defendant court clerks rather than have to wait for stockholder litigation to crawl out of the woodwork. And in theory, statutes are law just as much as the Constitution is, so I'm not sure how you would right -- obviously, you can design a test that puts one case in column A and another in column B, but I don't know how you draw a principled distinction that will actually hold water as to when someone can run to sue the court clerks to forestall a great deal of unexpected litigation and when they can't.

Nick Marr:  Great. Well, on that note, we're a 2:00 o'clock. I want to thank you very much on behalf of The Federalist Society, Professors Sachs and Wasserman, for your time and expertise today and sharing with our audience. Thank you very much also to our audience for attending, your great questions. As always be keeping an eye on your email and our website for announcements about upcoming events like this one as we follow this case, the term before the Supreme Court, and more. Thanks very much for joining us. Until next time, we are adjourned. 




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at