Whole Woman’s Health et al. v. Jackson et al.

(Updated 2.24.22) On December 10, 2021, the U.S. Supreme Court issued its ruling in this case, refusing to block Texas’s unconstitutional abortion ban and vigilante scheme that has denied Texans their constitutional right to abortion and ended most abortion access in the state. The case was argued before the Court on November 1.

“The Supreme Court has ruled that federal courts are powerless to protect constitutional rights in the face of a devious state scheme that hands over state enforcement power to private citizens,” says Marc Hearron, Senior Counsel of the Center for Reproductive Rights, who argued the case. “The Court has effectively endorsed Texas’s efforts to subvert the U.S. Constitution.”

In a 5-4 decision, the Court dismissed the most significant part of the Center’s case, ruling that the providers could not bring suit against the classes of state judges and clerks or the state Attorney General. While the Court allowed a narrow portion of the case to proceed in federal court against the Texas Medical Board and other licensing authorities, an injunction against those officials would not block Texas’s vigilante scheme.

After the Supreme Court remanded the case to the Fifth Circuit, Texas on December 16 asked the Fifth Circuit to certify to the Texas Supreme Court the question of whether the state licensing officials have any enforcement authority.  On December 27, the appellate court issued an order scheduling oral argument on the State’s motion for January 7, 2022.  The order was accompanied by a dissent from Judge Higginson, who wrote that the case should be immediately remanded to the district court.  The Center on December 29 filed a motion in the Fifth Circuit for reconsideration, asking the appellate court to remand the case to the district court, but the motion was denied the following day. Oral arguments were held on January 7 at the Fifth Circuit and on January 17 the court ruled in favor of Texas and sent the case to the Texas Supreme Court. The ruling is inconsistent with the U.S. Supreme Court’s decision in December 2021 and will further delay the case challenging the Texas ban, which has ended most abortion access in the state since September 1. Oral argument took place at the Texas Supreme Court February 24.

On January 3, 2022, the Center filed a petition for a writ of mandamus, requesting that the U.S. Supreme Court order the Fifth Circuit to remand the case to the district court. On January 20, the Court denied the request in a 6-3 vote. Justice Sotomayor, who authored the dissent and was joined by Justices Breyer and Kagan, wrote, “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.”

Case Background

The Center for Reproductive Rights and its partners brought the case to challenge Texas’s S.B. 8, which bans abortion after approximately six weeks of pregnancy, before many know they’re pregnant.  The law, S.B. 8, also incentivizes individuals—including anti-abortion activists—to bring costly and harassing lawsuits against anyone who provides abortion care or assists someone in obtaining an abortion in violation of the ban. The Texas law took effect September 1, 2021.

The Center argued this case at the U.S. Supreme Court on November 1, 2021. The issue before the Supreme Court was whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.

The Center and its partners filed this case on July 13 in an attempt to block the law before it took effect, representing the plaintiffs: Texas abortion providers led by Whole Woman’s Health and other independent abortion clinics, doctors, clinic staff, abortion funds, support networks, and clergy members. (The Center has also filed a separate lawsuit in district court, Braid v. Stilley, defending a Texas physician who violated the Texas ban and asking the court to strike the law down as unconstitutional.)

However, the Fifth Circuit Court of Appeals allowed the law to take effect and blocked further proceedings from going forward in the district court.  The Center and its partners then filed an emergency request with the U.S. Supreme Court asking it to block the Texas abortion ban before it’s effective date of September 1. But in a contentious 5-4 ruling, the Supreme Court denied that request, citing “complex and novel” procedural questions about whether it has the authority to do so.

In late September, the plaintiffs filed a new request with the Supreme Court, urging the Court to hear the case without waiting for a final ruling from the Fifth Circuit. On October 22, the Supreme Court granted an emergency request to hear the case, along with a case by the U.S. Department of Justice, setting arguments for both cases on November 1. While the Court agreed to hear the case and arguments on the procedural questions it had earlier refused to consider, it declined to rule on a request to block the law before the argument date.

The Center filed its opening brief with the Supreme Court in the case on October 27.

Among other claims, the lawsuit in Whole Woman’s Health v. Jackson argues that S.B. 8 blatantly violates Texans’ constitutional right to privacy and liberty as established by Roe v. Wade nearly 50 years ago. The law also violates the constitutional rights of abortion providers and supporters, including their right to equal protection under the law, and their First Amendment rights to free speech and access to the courts.

Defendants in the lawsuit include every state court trial judge and clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and Mark Lee Dickson, Director of Right to Life East Texas, an individual who has threatened to sue under the new law. Each of these parties will have a role in enforcement of S.B. 8. 

The Center argued the case at the U.S. Supreme Court on November 1, 2021. The issue before the Supreme Court was whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right, by delegating to the general public the authority to enforce that prohibition through civil actions.

Under S.B. 8, anyone who successfully sues another person or provider will be entitled to at least a $10,000 monetary award, an injunction preventing future violations, as well as attorney’s fees and costs. Lawsuits could be filed against both abortion providers and a broad range of people—considered by the law to be “aiders and abettors”—including a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and a member of the clergy who counsels or assists an abortion patient. People who successfully defend themselves from such lawsuits, however, are prohibited under S.B. 8 from recovering their fees and costs. 

The law attempts to evade legal accountability in court by shifting enforcement from state officials to private individuals. If permitted to take effect, abortion providers, clinic staff, and abortion funds could be saddled with endless lawsuits that consume their time and resources and prevent them from providing health care services, potentially forcing them to ultimately shut down.

Timeline of the case:

• May 19: TX Gov. Greg Abbott signed Senate Bill 8 into law.
• July 13: Plaintiffs filed the case in federal district court.
• August 4-5: The defendants filed motions to dismiss, asking the district court to end the case.
• August 12: The federal district court judge scheduled a preliminary injunction hearing for August 30 to determine whether to block the law before it takes effect on September 1.
• August 25: The federal district court judge denied the defendant’s motions to dismiss the case. Defendants immediately filed a notice of appeal with the Fifth Circuit, as well as a motion to stop all proceedings in the district court, including canceling the district court’s preliminary injunction hearing.
• August 27: The Fifth Circuit Court of Appeals issued an order stopping all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. The court also denied the plaintiffs’ request to expedite the appeal of the state’s motion to dismiss. Without expediting the appeal process, the law could be in effect for months before the Fifth Circuit issues a decision.
• August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.
• August 30: The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it can take effect on Wednesday and to allow district court proceedings to resume.
• September 1: S.B. 8 takes effect; ending most abortion care in Texas.
• September 1: U.S. Supreme Court denies the emergency request to block the law, allowing the law to remain in effect. The case returned to the Fifth Circuit for briefing on defendants’ appeal of the district court’s denial of their motions to dismiss.
• September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants’ appeals to “the next available oral argument panel.”
• September 22: The Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December.
• September 23: Plaintiffs filed a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants’ appeal on an expedited basis. If granted, the case will bypass further proceedings in the Fifth Circuit.
• October 22: The U.S. Supreme Court granted cert in the case (along with the DOJ’s case challenging the same law)
• October 27: The Center files its opening brief with the Supreme Court
• November 1: Oral arguments presented
• December 10: U.S. Supreme Court issues its ruling
• January 3, 2022: Center files Writ of Mandamus Petition at the U.S. Supreme Court
• January 7: Oral arguments held at the Fifth Circuit
• January 17: Fifth Circuit issues ruling sending the case to the Texas Supreme Court
• January 20: U.S. Supreme Court rejects the Writ of Mandamus petition
• February 24: Oral argument held at the Texas Supreme Court

Center Attorneys: Marc Hearron, Molly Duane, Kirby Tyrell, Melanie Fontes, Nicolas Kabat

Co-Counsel/Cooperating Attorneys: Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, Morrison & Foerster LLP, and Austin attorney Christen Mason Hebert

Plaintiffs: WHOLE WOMAN’S HEALTH; ALAMO CITY SURGERY CENTER PLLC d/b/a ALAMO WOMEN’S REPRODUCTIVE SERVICES; BROOKSIDE WOMEN’S MEDICAL CENTER PA d/b/a BROOKSIDE WOMEN’S HEALTH CENTER AND AUSTIN WOMEN’S HEALTH CENTER; HOUSTON WOMEN’S CLINIC; HOUSTON WOMEN’S REPRODUCTIVE SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; SOUTHWESTERN WOMEN’S SURGERY CENTER; WHOLE WOMAN’S HEALTH ALLIANCE; ALLISON GILBERT, M.D; BHAVIK KUMAR, M.D; THE AFIYA CENTER; FRONTERA FUND; FUND TEXAS CHOICE; JANE’S DUE PROCESS; LILITH FUND; NORTH TEXAS EQUAL ACCESS FUND; REVEREND ERIKA FORBES;  REVEREND DANIEL KANTER; and MARVA SADLER

Legal documents in Whole Woman’s Health v. Jackson:

• U.S. Supreme Court Ruling on Writ of Mandamus Petition, 01.20.22
• Fifth Circuit Court Ruling, 01.17.22
• Writ of Mandamus Petition, U.S. Supreme Court, 01.03.22
• U.S. Supreme Court ruling, 12.10.21
• Brief filed at the U.S. Supreme Court, 10.27.21
• U.S. Supreme Court order granting certiorari, 10.22.21
• Petition for writ of certiorari before judgment, 09.23.21
• U.S. Supreme Court Ruling, 09.01.21
• Emergency Filing at the U.S. Supreme Court, 08.30.2021
• Fifth Circuit Denial of Emergency Relief, 08.29.2021
• Fifth Circuit Stay Order, 08.27.2021
• District Court Denial of Motions to Dismiss, 08.25.2021
• Complaint, 07.13.2021

Case news:

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