Sep 1, 2021 — no way limits other procedurally proper challenges to the. Texas law, including in Texas state courts. CHIEF JUSTICE ROBERTS, with whom
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_________________ _________________ 1 Cite as: 594 U. S. ____ (2021) ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN™S HEALTH ET AL . v. AUSTIN REEVE JACKSON, JUDGE, ET AL . ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021] The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to JUSTICE ALITO and by him referred to the Court is de -nied. To prevail in an applic ation for a stay or an injunc-tion, an applicant must carry the burden of making a ﬁstrong showingﬂ that it is ﬁlikely to succeed on the merits,ﬂ that it will be ﬁirreparably injured absent a stay,ﬂ that the balance of the equities favors it, and that a stay is con -sistent with the public interest. Nken v. Holder , 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc ., 555 U. S. 7, 20 (2008)). The applicants now before us have raised serious questions re -garding the constitutionality of the Texas law at issue. But their application also presents complex and novel anteced -ent procedural questions on which they have not carried their burden. For example, fe deral courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. Clapper v. Amnesty Int™l USA, 568 U. S. 398, 409 (2013) (ﬁthreatened injury must be certainly impendingﬂ (citation omitted)). The State has represented
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2 WHOLE WOMAN™S HEALTH v. JACKSON ROBERTS, C. J., dissenting that neither it nor its exec utive employees possess the au- thority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas™s law. See Ex parte Young , 209 U. S. 123, 163 (1908). Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no pre- sent intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this con- clusion, we stress that we do not purport to resolve defini- tively any jurisdictional or substantive claim in the appli- cants™ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas™s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts. CHIEF JUSTICE ROBERTS , with whom J USTICE BREYER and JUSTICE KAGAN join, dissenting. The statutory scheme before the Court is not only unu- sual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. The State defendants argue that they cannot be re- strained from enforcing their rules because they do not en- force them in the first place. I would grant preliminary re- lief to preserve the status quo anteŠbefore the law went into effectŠso that the courts may consider whether a state can avoid responsibility for its laws in such a manner. De- fendants argue that existing doctrines preclude judicial in- tervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the con-
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3 Cite as: 594 U. S. ____ (2021) ROBERTS, C. J., dissenting sequences of approving the state action, both in this partic -ular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the pro-gram devised by the State takes effect. We are at this point asked to resolve these novel ques -tionsŠat least preliminarilyŠin the first instance, in thecourse of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary meri ts briefing and without oral argument. These questions are particularly difficult, in – cluding for example whether th e exception to sovereign im-munity recognized in Ex parte Young , 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these. I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs™ claims.Although the Court denies the applicants™ request for emergency relief today, the Court™s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented. At such time the question could be decided after full briefing and oral argume nt, with consideration of whether interim relief is appropriate should enforcement of the law be allowed below.
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_________________ _________________ 1 Cite as: 594 U. S. ____ (2021) BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN™S HEALTH ET AL . v. AUSTIN REEVE JACKSON, JUDGE, ET AL . ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021] JUSTICE BREYER , with whom J USTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. The procedural posture of this case leads a majority of this Court to deny the applicants™ request for provisional relief. In my view, however, we should grant that request. I agree with THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN . Texas™s law delegates to private indi -viduals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion dur -ing that first stage. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 846 (1992) ; Roe v. Wade , 410 U. S. 113, 164 (1973) . And a ﬁState cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and to tally prohibited from exercis-ing during the first trimester of pregnancy.ﬂ Planned Parenthood of Central Mo. v. Danforth , 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that ﬁsince the State cannot regulate or pro-scribe abortion during the first stage . . . the State cannot delegate authority to any parti cular person . . . to prevent abortion during that same period.ﬂ Ibid. The applicantspersuasively argue that Texas™s law does precisely that.The very bringing into effect of Texas™s law may well threaten the applicants with imminent and serious harm. One of the clinic applicants has stated on its website that
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2 WHOLE WOMAN™S HEALTH v. JACKSON BREYER, J., dissenting ﬁ[d]ue to Texas™ SB 8 law,ﬂ it is ﬁunable to provide abortion procedures at this time.ﬂ Planned Parenthood South Texas, https:// www.plannedparenthood.org/planned-parenthood-south-texas. And the applicants, with supporting affida -vits, claim that clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law; they will simply close, depriving care to more than half the women seeking abor – tions in Texas clinics. See, e.g., App. to Application 105,148Œ150, 178Œ179. We have permitted those whom a law threatens with constitutional harm to bring pre-enforce-ment challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here. See Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392Œ393 (1988); Babbitt v. Farm Workers , 442 U. S. 289, 298 (1979); see also Susan B. An -thony List v. Driehaus, 573 U. S. 149, 164 (2014) (finding substantial threat of future enforcement where statute per -mits ﬁ‚any person™ﬂ to file a complaint and ﬁthe universe of potential complainants is not restrictedﬂ).I recognize that Texas™s law delegates the State™s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference.That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is ﬁ‚invaded,™ﬂ the law provides ﬁ ‚a legal remedy by suit or ac-tion at law.™ﬂ Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). It should prove possible to apply procedures adequate to that task here, perhaps by permitting lawsuits against a subset of delegatees (say, those particularly likely to exercise the del -egated powers), or perhaps by permitting lawsuits against
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3 Cite as: 594 U. S. ____ (2021) BREYER, J., dissenting officials whose actions are necessary to implement the stat -ute™s enforcement powers. Th ere may be other not-very-new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional rightŠan invasion that threat -ens immediate and serious injury. As T HE CHIEF JUSTICE writes, this Court should not per-mit the law to take effect without assuring the applicants (and the respondents) an opportunity first and fully tomake (or to refute) these and other arguments supporting the request for an injunction.For these reasons, and for the reasons stated by T HE CHIEF JUSTICE , JUSTICE SOTOMAYOR , and JUSTICE KAGAN, I dissent.
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2 WHOLE WOMAN™S HEALTH v. JACKSON SOTOMAYOR, J., dissenting Texas, the Act immediately prohibits care for at least 85%of Texas abortion patients and will force many abortion clinics to close. The Act is clearly unconstitutional under existing prece-dents. See, e.g., June Medical Servs. L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (R OBERTS , C. J., concurring in judg -ment) (slip op., at 5) (explaining that ﬁthe State may not impose an undue burden on the woman™s ability to obtain an abortionﬂ of a ﬁnonviable fetusﬂ (citing Roe v. Wade , 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); internal quotation marks omitted)). The respondents do not even try to argue other – wise. Nor could they: No fede ral appellate court has upheld such a comprehensive prohibition on abortions before via – bility under current law.The Texas Legislature was well aware of this binding precedent. To circumvent it, the Legislature took the ex – traordinary step of enlisting priv ate citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, ﬁaids or abetsﬂ such an abortion (in -cluding by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. §3 (to be codified at Tex. Health & Safety Code Ann. §171.208). Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in ﬁstatutory damagesﬂ for each forbidden abortion per -formed or aided by the defendant. Ibid. In effect, the Texas Legislature has deputized the State™s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors™ medical procedures. The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily arebrought against state officers who are in charge of enforcing
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3 Cite as: 594 U. S. ____ (2021) SOTOMAYOR, J., dissenting the law. See, e.g., Virginia Office for Protection and Advo -cacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citi -zen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on astatewide basis. Taken together, the Act is a breathtaking act of defi -anceŠof the Constitution, of this Court™s precedents, and of the rights of women seeking abo rtions throughout Texas. But over six weeks after the applicants filed suit to prevent the Act from taking effect, a Fifth Circuit panel abruptly stayed all proceedings before the District Court and vacated a preliminary injunction hearing that was scheduled to begin on Monday. The applicants requested emergency re – lief from this Court, but the Court said nothing. The Act took effect at midnight last night.* ŠŠŠŠŠŠ * The Court™s inaction has had imme diate impact. Two hours before the Act took effect, one applicant re ported that its waiting rooms were ﬁ ‚filled with patientsﬂ ™ urgently seeking care while ﬁ ‚protesters [we]re outside, shining lights on the parking [lot].™ ﬂ De Vogue, Texas 6-WeekAbortion Ban Takes Effect after Supr eme Court Inaction, CNN (Sept. 1, 2021), www.cnn.com/2021/09/01/politics /texas-abortion-supreme-court -sb8-roe-wade/index.html. Then, at midnight, the Act became law, and many abortion providers, including applicants, ceased providing abortion care after more than six weeks from a woman™s last menstrual period (LMP). See, e.g., Alamo Women™s Reproductive Care (Sept. 1, 2021), https://alamowomensclinic.com (ﬁWe cannot provide abortion services to anyone with detectable embryonic or fetal cardiac activity[,] which is typ – ically found at 6 weeks or more from last menstrual periodﬂ); Southwest -ern Women™s Surgery Center (Sept. 1, 2021), https://southwesternwom-ens.com/southwestern-womens-surgery-center-dallas-texas / (ﬁIn compliance with Texas Senate Bill 8 of 2021, starting on September 1st 2021, our facility cannot provide abortio ns to patients with detectible em -bryonic or fetal cardiac activity, which typically starts at 6 weeks LMPﬂ). Since then, at least one applicant has stopped providing abortions en -tirely. Planned Parenthood South Texas (Sept. 1, 2021), https://www.plannedparenthood.org/pla nned-parenthood-south-texas (ﬁDue to Texas™ SB 8 law, we are un able to provide abortion procedures
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4 WHOLE WOMAN™S HEALTH v. JACKSON SOTOMAYOR, J., dissenting Today, the Court finally tells the Nation that it declined to act because, in short, the State™s gambit worked. The structure of the State™s scheme, the Court reasons, raises ﬁcomplex and novel antecedent procedural questionsﬂ that counsel against granting the application, ante, at 1, just asthe State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourc -ing the enforcement of unconstitutional laws to its citi -zenry. Moreover, the District Court held this case justicia -ble in a thorough and well-reasoned opinion after weeks of briefing and consideration. 2021 WL 3821062, *8Œ*26 (WD Tex., Aug. 25, 2021). At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS , C. J., dissenting). Instead, the Court has re-warded the State™s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of theCourt™s precedents, through procedural entanglements of the State™s own creation. The Court should not be so co ntent to ignore its constitu-tional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law. I dissent. ŠŠŠŠŠŠ at this timeﬂ).
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_________________ _________________ 1 Cite as: 594 U. S. ____ (2021) KAGAN, J., dissenting SUPREME COURT OF THE UNITED STATES No. 21A24 WHOLE WOMAN™S HEALTH ET AL . v. AUSTIN REEVE JACKSON, JUDGE, ET AL . ON APPLICATION FOR INJUNCTIVE RELIEF [September 1, 2021] JUSTICE KAGAN, with whom J USTICE BREYER and JUSTICE SOTOMAYOR join, dissenting. Without full briefing or argument, and after less than 72 hours™ thought, this Court greenlights the operation ofTexas™s patently unconstitutional law banning most abor-tions. The Court thus rewards Texas™s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restri ctions on the State™s behalf. As of last night, and because of this Court™s ruling, Texas law prohibits abortions for the vast majority of women who seek themŠin clear, and indeed undisputed, conflict with Roe and Casey . Today™s ruling illustrates just how far the Court™s ﬁshadow-docketﬂ decisions may depart from the usual prin -ciples of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of AppealsŠwhich isright now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusionŠthat a chal -lenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority™s deci -sion is emblematic of too much of this Court™s shadow- docket decisionmakingŠwhich every day becomes more un –
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