SCOTX Holds that SCOTUS Was Wrong, Justice Thomas Was Right, and Jonathan Mitchell Is Still A Genius
In December, the Supreme Court of the United States decided Whole Woman’s Health v. Jackson. This case ruled that abortion providers could not sue the Attorney General, state judges, and clerks of court. These state officers had no role to enforce S.B. 8. But Justice Gorsuch’s majority opinion suggested that state licensing officials may play some role in enforcing the law:
On 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. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. See, e.g., Tex. Occ. Code Ann. §164.055(a); Brief for Petitioners 33–34. Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage.
This paragraph had more hedges than the gardens of Versailles. Justice Gorsuch took pains to not forcefully disagree with Ju
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