SCOTUS Decisions in Texas Abortion Cases: United States v. Texas and Whole Woman's Health v. Jackson

Today the Supreme Court issued its decisions in two cases involving Texas’s abortion law, S.B. 8 (covered earlier here).

In United States v. Texas, the Court issued a one-page per curiam order dismissing the writ of certiorari as improvidently granted and denying the application to vacate the stay. Justice Sotomayor dissents.

In Whole Woman’s Health v. Jackson, the Court issued a fractured decision that does permit some of the abortion providers’ claims to go forward. Here’s the headcount for the various opinions:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.

Part IV of Justice Gorsuch’s opinion provides this summary:

The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.