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Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. To be sure, in Ex parte Young, the U.S. Supreme Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. But this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to the Supreme Court, not the entry of an ex ante injunction preventing the state court from hearing cases. An injunction against a state court or its machinery would be a violation of the whole scheme of the U.S. Government.
Petitioner abortion providers sought pre-enforcement review of Texas Senate Bill 8—the Texas Heartbeat Act —a Texas statute enacted in 2021 that prohibited physicians from performing or inducing an abortion if the physician detected a fetal heartbeat in federal court based on the allegation that S. B. 8 violated the Federal Constitution. The petitioners sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young; and a single private party, Mark Lee Dickson. The public-official defendants moved to dismiss the complaint citing, among other things, the doctrine of sovereign immunity. The District Court denied these motions. The Fifth Circuit then denied the petitioners’ request for an injunction barring the law’s enforcement pending resolution of the merits of the defendants’ appeals, and instead issued an order staying proceedings in the District Court until that time. The petitioners then filed a request for injunctive relief with the U.S. Supreme Court, seeking emergency resolution of their application ahead of S. B. 8’s approaching effective date. In the abbreviated time available for review, the Court concluded that the petitioners’ filings failed to identify a basis in existing law that could justify disturbing the Fifth Circuit’s decision to deny injunctive relief. The petitioners then filed another emergency request asking the Court to grant certiorari before judgment to resolve the defendants’ appeals in the first instance.
Could the abortion providers pursue a pre-enforcement challenge to the Texas Heartbeat Act?
Yes, with regard to the licensing officials. No, with respect to the state court judge, state court clerk, and the Texas attorney general.
The Court held that the Eleventh Amendment sovereign immunity precluded the abortion providers from bringing a pre-enforcement challenge to the Texas Heartbeat Act against a state court judge and a state court clerk, as the Ex parte Young exception did not normally permit federal courts to issue injunctions against state court judges or clerks. In addition, there was no U.S. Const. art. III case or controversy because clerks and judges were not adversaries in the dispute. The Court further held that the Texas attorney general was not a proper defendant because the attorney general did not have any enforcement authority in connection with the Act that a federal court might enjoin him from exercising. However, the Court held that the suit could proceed against licensing officials who might or must take enforcement actions against the providers if they violated the Texas Health and Safety Code, including the Act.