Whole Woman’s Health v. Jackson

The Texas legislature passed a six-week abortion ban, S.B. 8, which delegated enforcement to private citizens. S.B. 8 specifically forbade the state and state officials from enforcing S.B. 8’s abortion ban. S.B. 8 was in direct violation of then-current constitutional law under Roe v. Wade and Planned Parenthood v. Casey protecting abortion access up to the point of fetal viability. A group of abortion providers (plaintiffs) sued Texas state court judges, Texas county clerks, and leaders of antiabortion organizations (collectively, the S.B. 8 proponents) (defendants) in federal district court, seeking to enjoin enforcement of S.B. 8 as unconstitutional. The S.B. 8 proponents challenged, arguing that the abortion providers lacked standing and that the S.B. 8 proponents had sovereign immunity. The district court’s ruling on the sovereign-immunity issue was immediately appealed to the Fifth Circuit. The Fifth Circuit then issued a total administrative stay on all proceedings. Because S.B. 8 was scheduled to imminently go into effect on September 1, 2021, the abortion providers petitioned the United States Supreme Court for an injunction to prevent S.B. 8 from going into effect while the litigation was pending. The abortion providers’ injunction petition was placed on the Supreme Court’s emergency docket, also called the shadow docket.