Judges: Sonia Sotomayor
Filed: Oct. 22, 2021
Latest Update: Oct. 23, 2021
Cite as: 595 U. S. ____ (2021) 1
S
Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
SUPREME COURT OF THE UNITED STATES
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No. 21A85 (21-588)
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UNITED STATES v. TEXAS, ET AL.
ON APPLICATION TO VACATE STAY AND PETITION FOR WRIT
OF CERTIORARI BEFORE JUDGMENT
[October 22, 2021]
Consideration of the application (21A85) to vacate stay
presented to Justice Alito and by him referred to the Court
is deferred pending oral argument.
In addition, the application is treated as a petition for a
writ of certiorari before judgment, and the petition is
granted limited to the following question: May the United
States bring suit in federal court and obtain injunctive or
declaratory relief against the State, state court judges,
state court clerks, other state officials, or all private parties
to prohibit S.B. 8 from being enforced.
The briefs of the parties in No. 21-588, limited to 13,000
words, are to be filed electronically on or before 5 p.m.,
Wednesday, October 27, 2021. Reply briefs, if any, limited
to 6,000 words, are to be filed electronically on or before 5
p.m., Friday, October 29, 2021. Any amicus curiae briefs
are to be filed electronically on or before 5 p.m., Wednesday,
October 27, 2021. Booklet format briefs prepared in com-
pliance with Rule 33.1 shall be submitted as soon as possi-
ble thereafter. The parties are not required to file a joint
appendix.
The case is set for oral argument on Monday, November
1, 2021.
JUSTICE SOTOMAYOR, concurring in part and dissenting
in part.
For the second time, the Court is presented with an ap-
plication to enjoin a statute enacted in open disregard of the
2 UNITED STATES v. TEXAS
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
constitutional rights of women seeking abortion care in
Texas. For the second time, the Court declines to act im-
mediately to protect these women from grave and irrepara-
ble harm.
The Court is right to calendar this application for argu-
ment and to grant certiorari before judgment in both this
case and Whole Woman’s Health v. Jackson, No. 21–463, in
recognition of the public importance of the issues these
cases raise. The promise of future adjudication offers cold
comfort, however, for Texas women seeking abortion care,
who are entitled to relief now. These women will suffer per-
sonal harm from delaying their medical care, and as their
pregnancies progress, they may even be unable to obtain
abortion care altogether. Because every day the Court fails
to grant relief is devastating, both for individual women
and for our constitutional system as a whole, I dissent from
the Court’s refusal to stay administratively the Fifth Cir-
cuit’s order.
I
Texas Senate Bill 8 (S. B. 8 or the Act) imposes a near-
categorical ban on abortions beginning six weeks after a
woman’s last menstrual period, before many women even
realize they are pregnant. Whole Woman’s Health v. Jack-
son, 594 U. S. ___, ___ (2021) (SOTOMAYOR, J., dissenting).
This is patently unconstitutional. See, e.g., June Medical
Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020)
(ROBERTS, C. J., concurring in judgment); Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833
(1992); Roe v. Wade,
410 U. S. 113 (1973). Rather than au-
thorizing state officials to enforce this illegal law, the Act
deputizes ordinary citizens as bounty hunters, offering
$10,000 in damages (plus attorney’s fees and costs) to any-
one who sues a person who provides an abortion in violation
of S. B. 8, “aids or abets” such an abortion, or intends to
engage in such conduct. Tex. Health & Safety Code Ann.
Cite as: 595 U. S. ____ (2021) 3
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
§§171.208(a), (b)(3) (West 2021). The legislature designed
this scheme to make it more complicated to enjoin the Act.
Whole Woman’s Health, 594 U. S., at ___ (ROBERTS, C. J.,
dissenting). To that end, S. B. 8 also purports to restrict
constitutional and procedural defenses, limit the preclusive
effect of court rulings, and impose retroactive liability for
services provided while the Act is enjoined if the injunction
is later overturned. See Tex. Health & Safety Code Ann.
§§171.208(e)(3)–(5), 171.209.
In July 2021, abortion providers and advocates filed suit
to challenge S. B. 8. As relevant, they sought to prevent
Texas judges and court clerks from accepting S. B. 8 suits.
Three days before the District Court’s scheduled hearing on
preliminary injunctive relief, a panel of the Fifth Circuit
stayed the proceedings. The plaintiffs applied to this Court
for emergency relief. S. B. 8 took effect on September 1, and
this Court denied relief that evening. See Whole Woman’s
Health, 594 U. S., at ___. The Fifth Circuit later opined that
“[p]laintiffs’ claims against a state judge and court clerk are
specious” on the view that the Ex parte Young exception to
state sovereign immunity “explicitly excludes judges from
the scope of relief it authorizes.” Whole Woman’s Health v.
Jackson, 13 F. 4th 434, 443 (2021) (citing Ex parte Young,
209 U. S. 123, 163 (1908)). As a result, in the Fifth Circuit’s
estimation, the abortion providers could not win relief from
the law.
State sovereign immunity, however, poses no bar to a
challenge by the United States. See Alden v. Maine,
527
U. S. 706, 755 (1999). Accordingly, after this Court issued
its order in Whole Woman’s Health, the United States filed
the present suit. On October 6, the District Court issued a
113-page opinion in which it thoroughly considered and
carefully addressed the procedural questions presented,
held this case justiciable, and enjoined the Texas law. ___
F. Supp. 3d ___,
2021 WL 4593319 (WD Tex. 2021). But a
divided Fifth Circuit panel granted the State’s request for
4 UNITED STATES v. TEXAS
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
a stay pending appeal. 2021 WL 4786458, *1 (2021) (per cu-
riam). Despite the fact that the instant suit presents dis-
tinct issues from those raised in Whole Woman’s Health, the
Fifth Circuit majority relied entirely on rulings from that
litigation. The totality of its reasoning was as follows: “The
emergency motions to stay the preliminary injunction pend-
ing appeal are granted for the reasons stated in Whole
Woman’s Health v. Jackson,
13 F. 4th 434 (5th Cir. 2021),
and Whole Woman’s Health v. Jackson, [594 U. S. ___]
(2021).”
2021 WL 4786458, *1.
II
Recognizing that Texas’ scheme raises concerns of imper-
ative public importance, the Court properly grants certio-
rari before judgment. See this Court’s Rule 11. However,
the Court’s failure to issue an administrative stay of the
Fifth Circuit’s order pending its decision on this application
will have profound and immediate consequences. By delay-
ing any remedy, the Court enables continued and irrepara-
ble harm to women seeking abortion care and providers of
such care in Texas—exactly as S. B. 8’s architects intended,
see infra, at 6–7. Whatever equities favor caution in stay-
ing a state law under normal circumstances cannot out-
weigh the total and intentional denial of a constitutional
right to women while this Court considers the serious ques-
tions presented.
The District Court concluded that S. B. 8 “ ‘has had an
immediate and devastating effect on abortion care in
Texas.’ ” 2021 WL 4593319, *36. That is because the Act’s
chilling effects “operate . . . as an effective deterrent to pro-
vision of pre-viability abortion services in Texas, precluding
the vast majority of individuals from accessing this consti-
tutional right” and causing a “dismantling of the provider
network” across the State.
Id., at *38. Before the District
Court, Texas identified only one abortion that had occurred
in the State beyond S. B. 8’s unlawful 6-week restriction
Cite as: 595 U. S. ____ (2021) 5
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
since the law took effect. Id., at *41. The court explained
that most abortion patients in Texas first seek care more
than six weeks after their last menstrual periods.
Id., at
*2. The court thus found that S. B. 8 has prohibited as
many as 95% of abortions previously provided in the State.
Id., at *40; see Whole Woman’s Health, 594 U. S., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 2) (warning that
S. B. 8 would “immediately prohibi[t] care for at least 85%
of Texas abortion patients and . . . force many abortion clin-
ics to close”).
On a human level, the District Court relied on credible
declarations that described the threat of liability under
S. B. 8 as “nothing short of agonizing” for abortion care pro-
viders.
2021 WL 4593319, *38 (internal quotation marks
omitted). Providers are “seriously concerned that even
providing abortions in compliance with S. B. 8 will draw
lawsuits from anti-abortion vigilantes or others seeking fi-
nancial gain.”
Ibid. (internal quotation marks omitted).
Patients are “devastated” to learn they cannot access care,
and the “turmoil” caused by the Act leaves them “panicked,
both for themselves and their loved ones.”
Id., at *40 (in-
ternal quotation marks omitted).* Even among the few
women who are able to receive abortion services in Texas,
S. B. 8 pushes patients “to make a decision about their abor-
tion before they are truly ready to do so.”
Ibid. (internal
quotation marks omitted).
The District Court rejected the State’s claim that Texas
residents could travel to other States to access abortion
——————
* The harm to vulnerable populations is especially acute. For example,
because Texas’ judicial bypass process for minors seeking abortion care
“cannot realistically happen” before six weeks after the last menstrual
period, S. B. 8 forces pregnant minors who cannot confide in their fami-
lies (and unaccompanied migrant teenagers who cannot reach their fam-
ilies) to choose between “carry[ing] to term” and “tak[ing] matters into
their own hands.”
2021 WL 4593319, *40, and n. 62 (internal quotation
marks omitted).
6 UNITED STATES v. TEXAS
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
care. Id., at *41. To be sure, the court agreed, “[p]regnant
people from Texas are scared and are frantically trying to
get appointments” in other States.
Id., at *43 (internal quo-
tation marks omitted). The court found, however, that
many patients are unable to seek out-of-state care based on
financial constraints, dangerous family situations, immi-
gration status, or other reasons.
Id., at *42. These individ-
uals “are being forced to carry their pregnancy to term
against their will or to seek ways to end their pregnancies
on their own.”
Id., at *41 (internal quotation marks omit-
ted).
The court also found that patients who are able to leave
Texas have encountered restrictions and backlogs exacer-
bated by S. B. 8, citing evidence of the Act’s “stunning” and
“crushing” impacts on clinics in Oklahoma, Kansas, Colo-
rado, New Mexico, and Nevada.
Id., at *43–*45. An Okla-
homa provider, for example, reported a “staggering 646%
increase of Texan patients per day,” occupying between 50%
and 75% of capacity.
Id., at *43 (internal quotation marks
omitted). A Kansas clinic similarly reported that about half
of its patients now come from Texas.
Id., at *44. The Dis-
trict Court found that this “constant stream of Texas pa-
tients has created backlogs that in some places prevent res-
idents from accessing abortion services in their own
communities.”
Id., at *45.
I cannot capture the totality of this harm in these pages.
But as these excerpts illustrate, the State (empowered by
this Court’s inaction) has so thoroughly chilled the exercise
of the right recognized in Roe as to nearly suspend it within
its borders and strain access to it in other States. The
State’s gambit has worked. The impact is catastrophic.
These ruinous effects were foreseeable and intentional.
Were there any doubt, proponents of S. B. 8 have boasted
in this very litigation that “Texas has boxed out the judici-
ary” and crowed that “[a]bortion . . . is a court-invented
Cite as: 595 U. S. ____ (2021) 7
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Opinion of S, OTOMAYOR
OTOMAYOR J., dissenting
, J.
right that may not even have majority support on the cur-
rent Supreme Court.” Reply Brief for Intervenors in No.
21–50949 (CA5), pp. 3, 4; see also id., at 4 (“The Supreme
Court’s interpretations of the Constitution are not the Con-
stitution itself—they are, after all, called opinions”).
There is no dispute that under this Court’s precedents,
women have a constitutional right to seek abortion care
prior to viability. As noted, S. B. 8 was created to frustrate
that right by raising seemingly novel procedural issues, and
it has had precisely the intended effect. Under such unique
circumstances, the equities plainly favor administrative re-
lief while this Court sorts out these issues. Every day that
S. B. 8 remains in effect is a day in which such tactics are
rewarded. And every day the scheme succeeds increases
the likelihood that it will be adapted to attack other federal
constitutional rights.
* * *
There are women in Texas who became pregnant on or
around the day that S. B. 8 took effect. As I write these
words, some of those women do not know they are pregnant.
When they find out, should they wish to exercise their con-
stitutional right to seek abortion care, they will be unable
to do so anywhere in their home State. Those with suffi-
cient resources may spend thousands of dollars and multi-
ple days anxiously seeking care from out-of-state providers
so overwhelmed with Texas patients that they cannot ade-
quately serve their own communities. Those without the
ability to make this journey, whether due to lack of money
or childcare or employment flexibility or the myriad other
constraints that shape people’s day-to-day lives, may be
forced to carry to term against their wishes or resort to dan-
gerous methods of self-help. None of this is seriously in dis-
pute.
These circumstances are exceptional. Women seeking
abortion care in Texas are entitled to relief from this Court
now. Because of the Court’s failure to act today, that relief,
if it comes, will be too late for many. Once again, I dissent.
