Texas Heartbeat Act (S.B. 8) Litigation: Supreme Court Identifies Narrow Path for Challenges to Texas Abortion Law

Texas Heartbeat Act (S.B. 8) Litigation: Supreme Court Identifies Narrow Path for Challenges to Texas Abortion Law

Legal Sidebari

Texas Heartbeat Act (S.B. 8) Litigation:
Supreme Court Identifies Narrow Path
for Challenges to Texas Abortion Law
December 13, 2021
On December 10, 2021, the Supreme Court issued decisions in United States v. Texas and Whole Woman's
Health v. Jackson. Both cases involved challenges to the Texas Heartbeat Act, also known as S.B. 8, a
Texas state law that allows private citizens to sue healthcare providers and others who perform or abet
abortions after a fetal heartbeat is detected. The plaintiffs in both cases claim that S.B. 8 is
unconstitutional under Supreme Court abortion precedents such as Roe v. Wade.
The questions before the Court in Texas and Whole Woman’s Health were whether the plaintiffs could
challenge S.B. 8 before it was enforced against them and, if so, who the defendants should be. In its
December 10 decision in Whole Woman’s Health, the Court held that a constitutional challenge could
proceed against certain Texas medical licensing officials, but not against Texas court officials, the state
attorney general, or a private defendant. The Court dismissed United States v. Texas as improvidently
granted. The Court’s opinions in the two cases did not address the constitutional right to abortion or the
continuing validity of Roe v. Wade.
A previous Legal Sidebar answered frequently asked questions about the S.B. 8 litigation prior to
Supreme Court oral argument. This Legal Sidebar briefly summarizes the relevant legal background
related to S.B. 8 and the novel procedural questions regarding challenges to the law. It next outlines the
lower court proceedings in Texas and Whole Woman's Health before discussing the Supreme Court’s
decisions in the two cases. The Sidebar concludes with selected considerations for Congress related to the
S.B. 8 litigation.
The Texas Heartbeat Act
S.B. 8 prohibits physicians from performing or inducing an abortion after a fetal heartbeat is detected
(generally once an embryo reaches a gestational age of six weeks), unless the physician believes that a
medical emergency requires the procedure. The statute does not authorize civil or criminal proceedings
against a woman who seeks or obtains an abortion. However, it imposes civil liability on other persons
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who perform or induce an abortion in violation of S.B. 8; aid or abet such an abortion; or intend to
perform, induce, or aid or abet such an abortion.
S.B. 8 is novel from a procedural standpoint because it is enforceable only through private civil actions.
Most state laws regulating abortion authorize civil or criminal enforcement by government actors. For
example, the Mississippi Gestational Age Act at issue in a separate Supreme Court case, Dobbs v. Jackson
Women’s Health Organization, allows the state attorney general or the Mississippi State Board of Medical
Licensure to bring a civil suit to enforce the statute. By contrast, S.B. 8 expressly bars state officials from
enforcing its prohibition and instead authorizes enforcement only through civil suits by non-state actors.
If an S.B. 8 plaintiff is successful, a court is to award injunctive relief to prevent the defendant from
violating S.B. 8, damages of not less than $10,000 for each unlawful abortion performed or induced, and
legal costs and attorney’s fees. In addition to imposing civil liability, S.B. 8 contains several procedural
provisions that increase the litigation burden on defendants accused of performing or aiding prohibited
abortions who seek to defend their actions in court.
Novel Questions in Constitutional Challenges to S.B. 8
Supreme Court cases such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v.
Casey limit the ability of the states to prohibit abortion before fetal viability, which generally occurs at 23
weeks or greater in a pregnancy. By banning almost all abortions in Texas after six weeks of pregnancy,
S.B. 8 appears to conflict with Roe and Casey. However, Texas included several procedural features in
S.B. 8 to limit the ability of persons affected by the statute to challenge its constitutionality in court under
traditional theories.
Claims that a statute is unconstitutional generally proceed in one of two postures. In an offensive or pre-
enforcement challenge, people who are subject to an allegedly unconstitutional law file suit before the law
is enforced against them, seeking a court order preventing enforcement. In a defensive or post-
enforcement challenge, defendants in a civil or criminal case argue as a defense that the law is
unconstitutional. To challenge a law in a defensive posture, challengers generally must first violate the
law and face suit or criminal charges. This chain of events means that challengers cannot choose whether
or when a case will be filed—if the government or third parties do not enforce the law, a defensive
challenge is not possible. It also may limit the ability of challengers to proceed in their preferred court. A
defensive challenge may require challengers to incur significant legal risk, as they must violate the law
and face criminal or civil liability before a court even considers whether it is unconstitutional. (Criminal
sanctions are not a concern in the current cases, however, because S.B. 8 imposes only civil liability.)
Thus, when possible, persons challenging a law on constitutional grounds often prefer to do so in an
offensive posture. Pre-enforcement constitutional challenges to state laws often proceed via suits against
state officials charged with enforcing those laws under Ex parte Young. (That procedure is necessary
because the doctrine of state sovereign immunity generally bars individuals from suing a state directly
without the state’s consent.) Proponents of S.B. 8 have stated that the statute bars enforcement by state
officials in order to prevent such pre-enforcement suits.
Other aspects of S.B. 8 may limit both offensive and defensive challenges to the law. Suits challenging
abortion regulations are often brought by women seeking abortions, or by abortion providers, who may be
permitted to raise constitutional claims on behalf of their patients. However, S.B. 8 does not impose
liability on women who seek or obtain abortions, which may limit the ability of those women to challenge
the law, even if it effectively restricts their access to abortion. The statute also expressly limits the ability
of defendants—including abortion providers or those who aid or abet prohibited abortions—“to assert the
rights of women seeking an abortion.”

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S.B. 8 Litigation
Both Whole Woman’s Health v. Jackson and United States v. Texas raised the question of whether and
how opponents of S.B. 8 could bring pre-enforcement suits to challenge the law’s constitutionality.
In Whole Woman’s Health, a number of abortion providers and advocates brought suit in a federal district
court in Texas. The defendants included a private individual who had threatened to sue under S.B. 8; the
Texas attorney general; clerks and judges of Texas state courts that could hear claims brought under S.B.
8; and certain state medical licensing officials. The plaintiffs filed suit before the September 1, 2021,
effective date of S.B. 8, seeking to prevent the statute from taking effect. The district court refused to
dismiss the case, but the U.S. Court of Appeals for the Fifth Circuit stayed the district court proceedings.
On August 30, 2021, the plaintiffs filed an emergency application for injunctive relief in the Supreme
Court, seeking to prevent the enforcement of S.B. 8 while the appeal continued in the Fifth Circuit. The
Supreme Court denied the application on September 1, 2021, shortly after the statute went into effect. In a
short, unsigned opinion, the Court stated that the plaintiffs “have raised serious questions regarding the
constitutionality of the Texas law at issue. But their application also presents complex and novel
antecedent procedural questions on which they have not carried their burden.” Chief Justice Roberts and
Justices Breyer, Sotomayor, and Kagan each wrote a dissent.
Separately, in Texas, the United States sued the State of Texas, in part as a way to avoid the defense of
sovereign immunity that Texas raised against the private plaintiffs in Whole Woman’s Health. The district
court granted a preliminary injunction against S.B. 8, but a subsequent ruling of the Fifth Circuit allowed
the statute to take effect as the litigation continued.
In both cases, the plaintiffs sought Supreme Court review before the Fifth Circuit reached a judgment. On
October 22, 2021, the Supreme Court granted writs of certiorari before judgment in Whole Woman’s
Health and Texas. Certiorari before judgment essentially allows a case to skip the court of appeals and
instead move directly to the Supreme Court. Under Supreme Court Rule 11, a petition for a writ of
certiorari before judgment “will be granted only upon a showing that the case is of such imperative public
importance as to justify deviation from normal appellate practice and to require immediate determination
in this Court.” The Court has historically granted such petitions sparingly. The Court held oral argument
in both cases on November 1, 2021, ten days after the grant of certiorari. One commentator observed that
the highly compressed briefing and argument timeline was “a near record reminiscent only of the court’s
speed in resolving the 2000 presidential election in Bush v. Gore.” Over a dissent from Justice Sotomayor
in Texas, the Court allowed S.B. 8 to remain in effect while it considered the cases.
In their briefs and at oral argument, both the private plaintiffs and the United States argued that they were
authorized to challenge S.B. 8 and that to rule otherwise would allow Texas to burden a recognized
constitutional right without effective recourse in the federal courts. The State of Texas countered that none
of the challengers had demonstrated that the federal courts had jurisdiction over their claims, the
requested remedies were improper, and S.B. 8 was constitutional.
Supreme Court Decisions in Whole Woman's Health and Texas
On December 10, 2021, the Court ruled in Whole Women’s Health that a subset of the private plaintiffs’
challenges to S.B. 8 could proceed. Justice Gorsuch authored the opinion of the Court, plus one section
signed by four Justices; Justice Thomas concurred in part and dissented in part; and both Chief Justice
Roberts and Justice Sotomayor filed opinions concurring in the judgment in part and dissenting in part.
Justice Gorsuch summarized the import of these multiple opinions: the Court unanimously held that suit
could not proceed against state court judges or the sole private defendant; five Justices further held that
the plaintiffs could not sue state court clerks or the Texas attorney general; eight Justices held, however,
that the suit could proceed against the state medical licensing officials.

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Justice Gorsuch, joined by Justices Thomas, Alito, Kavanaugh, and Barrett, held that the private S.B. 8
challengers could not sue state judges or clerks because judicial officers are not subject to suit under Ex
Parte Young. Justice Gorsuch explained that clerks docketing cases and judges neutrally interpreting the
law are not adverse to those who oppose the law, and if judges err in applying an unconstitutional law to a
defendant, their decisions can be appealed. The majority further opined that the challengers failed to
identify a limiting principle that would allow suits against judicial officers in the context of S.B. 8 without
broadly authorizing federal courts to block state courts from hearing state law claims. With respect to the
state attorney general, the majority held that the suit could not proceed against him because he lacked the
authority to enforce S.B. 8. With respect to the private defendant, the full Court agreed that the suit
against him should be dismissed because he disclaimed any intent to sue under S.B. 8.
The majority emphasized that the Court’s decision was limited to procedural questions, stating that “the
ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the
Court. Nor is the wisdom of S. B. 8 as a matter of public policy.” It also stressed that pre-enforcement
suits in federal court are only one of several possible avenues through which opponents of S.B. 8 could
challenge the law’s constitutionality, including lawsuits in state court and defensive challenges. The
majority explained that some constitutional claims can only proceed in a defensive posture: “unlike the
petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to
pick and choose the timing and preferred forum for their arguments. This Court has never recognized an
unqualified right to pre-enforcement review of constitutional claims in federal court.”
In a section of his opinion joined by only three other Justices, Justice Gorsuch concluded that the private
plaintiffs’ suit could proceed against the state licensing officials. He determined that those officials had
some power to enforce the statute under their general authority to implement Texas’s Health and Safety
Code and, “[o]n the briefing and argument before us, it appears that these particular defendants fall within
the scope of Ex parte Young’s historic exception to state sovereign immunity.”
Justice Thomas concurred in part and dissented in part. He argued that the challengers “may not maintain
suit against any of the governmental respondents under Ex parte Young,” and further would have held that
the challengers lacked Article III standing to challenge S.B. 8.
Chief Justice Roberts, joined by Justices Breyer, Sotomayor, and Kagan, filed an opinion concurring in
the judgment in part and dissenting in part. He wrote that with S.B. 8, “Texas has employed an array of
stratagems designed to shield its unconstitutional law from judicial review” and thus “effectively chill the
provision of abortions in Texas” in violation of Roe and Casey. The Chief Justice argued that the Texas
attorney general was an appropriate defendant because he “maintains authority coextensive with the Texas
Medical Board to address violations of S. B. 8.” He further asserted that the suit should go forward
against the state court clerks because “the mere threat of even unsuccessful suits brought under S. B. 8
chills constitutionally protected conduct,” and court clerks are “unavoidably enlisted in the scheme to
enforce S. B. 8’s unconstitutional provisions.”
Justice Sotomayor, joined by Justices Breyer and Kagan, also filed an opinion concurring in the judgment
in part and dissenting in part, arguing that the private plaintiffs’ suit should proceed against the Texas
attorney general and state court clerks. Identifying the question before the Court as “whether States may
nullify federal constitutional rights by employing schemes like the one at hand,” Justice Sotomayor called
the majority opinion a “dangerous departure from [the Court’s] precedents, which establish that federal
courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional
right and aims to evade judicial review.”
Concurrently with its decision in Whole Woman’s Health, the Supreme Court dismissed United States v.
Texas as improvidently granted. Dismissal as improvidently granted indicates the Court’s determination
that it should not have granted certiorari and disposes of the case without a substantive decision. Justice
Sotomayor dissented from the dismissal. Having held that the private plaintiffs in Whole Woman’s Health

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could sue certain state officials under Ex Parte Young, the Court may have dismissed Texas because there
was less need to decide whether the United States could challenge S.B. 8 under a different legal theory.
Considerations for Congress
The Supreme Court’s December 10, 2021, decision in Whole Woman’s Health remanded the case to the
district court, where litigation challenging S.B. 8 may now proceed with the state medical licensing
officials as defendants. The Supreme Court has not stayed enforcement of S.B. 8, and the statute remains
in effect at the time of writing. Four Supreme Court Justices urged the district court to “resolve this
litigation and enter appropriate relief without delay.” Separate proceedings in state court could also
influence enforcement of S.B. 8. On December 9, 2021, a Texas state court judge issued a declaratory
judgment holding that S.B. 8 violates the Texas constitution “and should not be enforced or applied in
Texas courts,” but declined to issue an injunction pending further litigation on the merits.
Although the challenges to S.B. 8 in Whole Woman’s Health and Texas invoke the constitutional right to
abortion, the Supreme Court’s December 10, 2021, decisions did not address the substance of the Court’s
prior abortion jurisprudence, including Roe and Casey. The Supreme Court is considering whether all pre-
viability prohibitions on elective abortions are unconstitutional in a separate case, Dobbs v. Jackson
Women’s Health Organization. The Court’s decision in Dobbs, expected later this term, could affect the
constitutional analysis in the ongoing state and federal court litigation regarding S.B. 8.
Congress could also enact legislation related to abortion that could affect enforcement of S.B. 8. For
instance, the Women’s Health Protection Act (WHPA) (H.R. 3755/S. 1975) would grant health care
providers a statutory right to provide abortion services and would preempt any state law that limits or
restricts that right. The WHPA would also establish a corresponding right for patients to obtain abortion
services unimpeded by state law restrictions such as pre-viability abortion prohibitions. If enacted, the
WHPA could be construed to preempt S.B. 8. The House of Representatives passed the WHPA on
September 24, 2021, and the bill is awaiting further consideration in the Senate.
The more direct impact of Whole Woman’s Health concerns the ability of states to enact legislation that
limits the exercise of constitutional rights but evades federal judicial review. Following Texas’s enactment
of S.B. 8, other states are exploring similar private enforcement mechanisms for statutes that might
conflict with the Constitution or federal statutory law. The federal government, some commentators, and
both of the dissents in Whole Woman’s Health have expressed concerns that states might enact legislation
authorizing private civil suits that effectively nullify other existing rights under federal law. For example,
the Firearms Policy Coalition filed an amicus curiae brief in Whole Woman’s Health arguing that a
similar strategy could be used to infringe the right to bear arms under the Second Amendment. On
December 11, 2021, California Governor Gavin Newsom announced a plan to develop legislation
modeled on S.B. 8 to allow private civil suits against “anyone who manufactures, distributes, or sells an
assault weapon or ghost gun kit or parts in the State of California.”
The Supreme Court’s decision in Whole Woman’s Health does not fully resolve these questions. While
the Court allowed a subset of the current pre-enforcement challenges to S.B. 8 to go forward, it appears
states might be able to draft legislation to further limit such claims in future cases. It is possible that
opponents of such laws could effectively challenge them in state court, perhaps in a defensive posture, or
that challengers could identify proper defendants for future pre-enforcement federal suits on a case-by-
case basis.

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Author Information

Joanna R. Lampe

Legislative Attorney

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