The Supreme Court of the United States (SCOTUS) issued opinions on Dec. 10 in two cases concerning Texas Senate Bill 8 (S.B. 8). To date, the court has issued decisions in five cases during the 2021-2022 term. Two of those cases were decided without argument.
United States v. Texas concerned whether the federal government had the right to challenge S.B. 8 in federal court. In a two-sentence per curiam opinion, the court held that the “writ of certiorari is dismissed as improvidently granted. The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is denied.” Justice Sonia Sotomayor dissented from this decision. A per curiam opinion is unsigned and delivered by the court as a whole.
In its opinion in Whole Woman’s Health v. Jackson, SCOTUS affirmed in part and reversed in part the order of the U.S. District Court for the Western District of Texas that denied the defendants’ motions to dismiss the case against them and remanded the case for further proceedings. SCOTUS found that pre-enforcement actions—lawsuits filed before S.B. 8 had been enforced—can proceed against certain defendants but not others.
In an 8-1 decision authored by Justice Neil Gorsuch, the court held that abortion providers may file suit in federal court against state licensing officials to prevent them from enforcing the provisions of S.B. 8 under an exception to the sovereign immunity doctrine established in Ex parte Young (1908). Justice Clarence Thomas was the sole dissenting justice to this part of the opinion. The court further ruled by a vote of 5-4 that the abortion providers cannot file suit against state judges and clerks to block them from trying private lawsuits brought in accordance with S.B. 8. On this vote, Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett were in the majority, and Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. The court noted that it was not ruling on the constitutionality of S.B. 8 itself.
As of Dec. 10, the court had agreed to hear 53 cases during the current term. Four cases were dismissed, and one case was removed from the argument calendar. Twelve cases have not yet been scheduled for argument.