Cite as: 594 U. S. ____ (2021)              1

                    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 application for a stay or an injunc-
tion, an applicant must carry the burden of making a
“strong showing” that it is “likely to succeed on the merits,”
that it will be “irreparably injured absent a stay,” that the
balance of the equities favors it, and that a stay is con-
sistent with the public interest. Nken v. Holder, 

, 434 (2009); Roman Catholic Diocese of Brooklyn v.
Cuomo, 

, 66 (2020) (citing Winter v. Natural
Resources Defense Council, Inc., 

, 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, federal 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, 

, 409 (2013) (“threatened injury must be certainly
impending” (citation omitted)). The State has represented
2           WHOLE WOMAN’S HEALTH v. JACKSON

                    ROBERTS, C. J., dissenting

that neither it nor its executive 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, 

, 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 JUSTICE 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 ante—before the law went
into effect—so 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-
                 Cite as: 594 U. S. ____ (2021)            3

                   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-
tions—at least preliminarily—in the first instance, in the
course 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 merits briefing and without oral
argument. These questions are particularly difficult, in-
cluding for example whether the exception to sovereign im-
munity recognized in Ex parte Young, 

 (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 argument, with consideration of
whether interim relief is appropriate should enforcement of
the law be allowed below.
                  Cite as: 594 U. S. ____ (2021)             1

                     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 JUSTICE 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, 

, 846 (1992); Roe v. Wade, 

, 164 (1973). And a “State cannot delegate . . . a
veto power [over the right to obtain an abortion] which the
state itself is absolutely and totally prohibited from exercis-
ing during the first trimester of pregnancy.” Planned
Parenthood of Central Mo. v. Danforth, 

, 69
(1976) (internal quotation marks omitted). Indeed, we have
made clear that “since the State cannot regulate or pro-
scribe abortion during the first stage . . . the State cannot
delegate authority to any particular person . . . to prevent
abortion during that same period.” 

 The applicants
persuasively 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
2           WHOLE WOMAN’S HEALTH v. JACKSON

                      BREYER, J., dissenting

“[d]ue to Texas’ SB 8 law,” it is “unable to provide abortion
procedures at this time.” 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,
148–150, 178–179. 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., 

, 392–393 (1988); Babbitt v. Farm
Workers, 

, 298 (1979); see also Susan B. An-
thony List v. Driehaus, 

, 164 (2014) (finding
substantial threat of future enforcement where statute per-
mits “ ‘any person’ ” to file a complaint and “the universe of
potential complainants is not restricted”).
    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
“ ‘invaded,’ ” the law provides “ ‘a legal remedy by suit or ac-
tion at law.’ ” Marbury v. Madison, 

, 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
                  Cite as: 594 U. S. ____ (2021)            3

                     BREYER, J., dissenting

officials whose actions are necessary to implement the stat-
ute’s enforcement powers. There 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 right—an invasion that threat-
ens immediate and serious injury.
   As THE 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 to
make (or to refute) these and other arguments supporting
the request for an injunction.
   For these reasons, and for the reasons stated by THE
CHIEF JUSTICE, JUSTICE SOTOMAYOR, and JUSTICE KAGAN,
I dissent.
                 Cite as: 594 U. S. ____ (2021)            1

                   SOTOMAYOR, 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 SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting.
   The Court’s order is stunning. Presented with an appli-
cation to enjoin a flagrantly unconstitutional law engi-
neered to prohibit women from exercising their constitu-
tional rights and evade judicial scrutiny, a majority of
Justices have opted to bury their heads in the sand. Last
night, the Court silently acquiesced in a State’s enactment
of a law that flouts nearly 50 years of federal precedents.
Today, the Court belatedly explains that it declined to grant
relief because of procedural complexities of the State’s own
invention. Ante, at 1. Because the Court’s failure to act
rewards tactics designed to avoid judicial review and in-
flicts significant harm on the applicants and on women
seeking abortions in Texas, I dissent.
   In May 2021, the Texas Legislature enacted S. B. 8 (the
Act). The Act, which took effect statewide at midnight on
September 1, makes it unlawful for physicians to perform
abortions if they either detect cardiac activity in an embryo
or fail to perform a test to detect such activity. §3 (to be
codified at Tex. Health & Safety Code Ann. §§171.201(1),
171.204(a) (West 2021)). This equates to a near-categorical
ban on abortions beginning six weeks after a woman’s last
menstrual period, before many women realize they are
pregnant, and months before fetal viability. According to
the applicants, who are abortion providers and advocates in
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) (ROBERTS, C. J., concurring in judg-
ment) (slip op., at 5) (explaining that “the State may not
impose an undue burden on the woman’s ability to obtain
an abortion” of a “nonviable fetus” (citing Roe v. Wade, 

 (1973), and Planned Parenthood of Southeastern
Pa. v. Casey, 

 (1992); internal quotation marks
omitted)). The respondents do not even try to argue other-
wise. Nor could they: No federal 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 private 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, “aids or abets” 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 “statutory damages” 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 are
brought against state officers who are in charge of enforcing
                      Cite as: 594 U. S. ____ (2021)                      3

                        SOTOMAYOR, J., dissenting

the law. See, e.g., Virginia Office for Protection and Advo-
cacy v. Stewart, 

, 254 (2011) (citing Ex parte
Young, 

 (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 a
statewide basis.
   Taken together, the Act is a breathtaking act of defi-
ance—of the Constitution, of this Court’s precedents, and of
the rights of women seeking abortions 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.*
——————
    * The Court’s inaction has had immediate impact. Two hours before

the Act took effect, one applicant reported that its waiting rooms were
“ ‘filled with patients” ’ urgently seeking care while “ ‘protesters [we]re
outside, shining lights on the parking [lot].’ ” De Vogue, Texas 6-Week
Abortion Ban Takes Effect after Supreme 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 (“We 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 period”); Southwest-
ern Women’s Surgery Center (Sept. 1, 2021), https://southwesternwom-
ens.com/southwestern-womens-surgery-center-dallas-texas/                (“In
compliance with Texas Senate Bill 8 of 2021, starting on September 1st
2021, our facility cannot provide abortions to patients with detectible em-
bryonic or fetal cardiac activity, which typically starts at 6 weeks LMP”).
Since then, at least one applicant has stopped providing abortions en-
tirely.      Planned Parenthood South Texas (Sept. 1, 2021),
https://www.plannedparenthood.org/planned-parenthood-south-texas
(“Due to Texas’ SB 8 law, we are unable to provide abortion procedures
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
“complex and novel antecedent procedural questions” that
counsel against granting the application, ante, at 1, just as
the 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. 

, *8–*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 the
Court’s precedents, through procedural entanglements of
the State’s own creation.
   The Court should not be so content 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.




——————
at this time”).
                  Cite as: 594 U. S. ____ (2021)            1

                      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 JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
   Without full briefing or argument, and after less than 72
hours’ thought, this Court greenlights the operation of
Texas’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 restrictions 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 them—in clear, and indeed undisputed, conflict with
Roe and Casey.
   Today’s ruling illustrates just how far the Court’s
“shadow-docket” 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 Appeals—which is
right 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 conclusion—that 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 decisionmaking—which every day becomes more un-
2          WHOLE WOMAN’S HEALTH v. JACKSON

                     KAGAN, J., dissenting

reasoned, inconsistent, and impossible to defend. I respect-
fully dissent.