Whole Woman’s Health v. Jackson

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 1
Pages 30–73
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
December 10, 2021
REBECCA A. WOMELDORF
reporter of decisions
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30 OCTOBER
TERM, 2021
Syllabus
WHOLE WOMAN'S HEALTH et al. v. JACKSON,
JUDGE
, DISTRICT COURT OF TEXAS, 114th
DISTRICT, et al.
certiorari to the united states court of appeals for
the fth circuit
No. 21–463. Argued November 1, 2021—Decided December 10, 2021
The Court granted certiorari before judgment in this case to determine
whether the petitioners may pursue a pre-enforcement challenge to
Texas Senate Bill 8—the Texas Heartbeat Act—a Texas statute enacted
in 2021 that prohibits physicians from performing or inducing an abor-
tion if the physician detected a fetal heartbeat. S. B. 8 does not allow
state offcials to bring criminal prosecutions or civil actions to enforce
the law but instead directs enforcement through “private civil actions”
culminating in injunctions and statutory damages awards against those
who perform or assist with prohibited abortions. Tex. Health & Safety
Code Ann. §§ 171.204(a), 171.207(a), 171.208(a)(2), (3). Tracking lan-
guage from Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833, S. B. 8 permits abortion providers to defeat any suit against them
by showing, among other things, that holding them liable would place
an “undue burden” on women seeking abortions. §§ 171.209(a)–(b).
The petitioners are abortion providers who sought pre-enforcement
review of S. B. 8 in federal court based on the allegation that S. B. 8
violates the Federal Constitution. The petitioners sought an injunction
barring the following defendants from taking any action to enforce the
statute: a state-court judge, Austin Jackson; a state-court clerk, Penny
Clarkston; Texas attorney general, Ken Paxton; executive director of
the Texas Medical Board, Stephen Carlton; executive director of the
Texas Board of Nursing, Katherine Thomas; executive director of the
Texas Board of Pharmacy, Allison Benz; executive commissioner of the
Texas Health and Human Services Commission, Cecile Young; and a
single private party, Mark Lee Dickson. The public-offcial defendants
moved to dismiss the complaint citing, among other things, the doctrine
of sovereign immunity. Mr. Dickson also moved to dismiss, claiming
that the petitioners lacked standing to sue him. The District Court
denied these motions. The public-offcial defendants fled an interlocu-
tory appeal with the Fifth Circuit under the collateral order doctrine,
which allows immediate appellate review of an order denying sovereign
immunity. The Fifth Circuit decided to entertain a second interlocu-
tory appeal fled by Mr. Dickson given the overlap in issues between his

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31
Syllabus
appeal and the appeal fled by the public-offcial defendants. The Fifth
Circuit
denied the petitioners' request for an injunction barring the
law's enforcement pending resolution of the merits of the defendants'
appeals, and instead issued an order staying proceedings in the District
Court until that time. The petitioners then fled a request for injunc-
tive relief with the Court, seeking emergency resolution of their applica-
tion ahead of S. B. 8's approaching effective date. In the abbreviated
time available for review, the Court concluded that the petitioners' fl-
ings failed to identify a basis in existing law that could justify disturbing
the Fifth Circuit's decision to deny injunctive relief. Whole Woman's
Health v. Jackson, 594 U. S. –––. The petitioners then fled another
emergency request asking the Court to grant certiorari before judg-
ment to resolve the defendants' appeals in the frst instance, which the
Court granted.
Held: The order of the District Court is affrmed in part and reversed in
part, and the case is remanded.
556 F. Supp. 3d 595, affrmed in part, reversed in part, and remanded.
Justice Gorsuch announced the judgment of the Court, and deliv-
ered the opinion of the Court except as to Part II–C, concluding that a
pre-enforcement challenge to S. B. 8 under the Federal Constitution
may proceed past the motion to dismiss stage against certain of the
named defendants but not others. Pp. 38–45, 48–51.
(a) Because the Court granted certiorari before judgment, the Court
effectively stands in the shoes of the Court of Appeals and reviews the
defendants' appeals challenging the District Court's order denying their
motions to dismiss. As with any interlocutory appeal, the Court's re-
view is limited to the particular order under review and any other ruling
“inextricably intertwined with” or “necessary to ensure meaningful re-
view of ” it. Swint v. Chambers County Comm'n, 514 U. S. 35, 51. In
this preliminary posture, the ultimate merits question, whether S. B. 8
is consistent with the Federal Constitution, is not before the Court.
P. 38.
(b) The Court concludes that the petitioners may pursue a pre-
enforcement challenge against certain of the named defendants but not
others. Pp. 38–45, 48–51.
(1) Under the doctrine of sovereign immunity, named defendants
Penny Clarkston (a state-court clerk) and Austin Jackson (a state-court
judge) should be dismissed. The petitioners have explained that they
hope to certify a class and request an order enjoining all state-court
clerks from docketing S. B. 8 cases, and all state-court judges from hear-
ing them. The diffculty with this theory of relief is that States are
generally immune from suit under the terms of the Eleventh Amend-

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Syllabus
ment or the doctrine of sovereign immunity. While the Court in Ex
par
te Young, 209 U. S. 123, did recognize a narrow exception allowing
an action to prevent state offcials from enforcing state laws that are
contrary to federal law, that exception is grounded in traditional equity
practice. Id., at 159–160. And as Ex parte Young itself explained, this
traditional exception does not normally permit federal courts to issue
injunctions against state-court judges or clerks. The traditional rem-
edy against such actors has been some form of appeal, not an ex ante
injunction preventing courts from hearing cases. As stated in Ex parte
Young, “an injunction against a state court” or its “machinery” “would
be a violation of the whole scheme of our Government.” Id., at 163.
The petiti oners' clerk-and-cour t theory thus fai ls under Ex par te
Young.
It fails for the additional reason that no Article III “case or contro-
versy” between “adverse litigants” exists between the petitioners who
challenge S. B. 8 and either the state-court clerks who may docket dis-
putes against the petitioners or the state-court judges who decide those
disputes. Muskrat v. United States, 219 U. S. 346, 361; see Pulliam v.
Allen 466 U. S. 522, 538, n. 18. Further, as to remedy, Article III does
not confer on federal judges the power to supervise governmental oper-
ations. The petitioners offer no meaningful limiting principle that
would apply if federal judges could enjoin state-court judges and clerks
from entertaining disputes under S. B. 8. And if the state-court judges
and clerks qualify as “adverse litigants” for Article III purposes in the
present case, when would they not? Many more questions than an-
swers would present themselves if the Court journeyed the way of the
petitioners' theory. Pp. 38–43.
(2) Texas Attorney General Paxton should be dismissed. The peti-
tioners seek to enjoin him from enforcing S. B. 8, which the petitioners
suggest would automatically bind any private party interested in pursu-
ing an S. B. 8 suit. The petitioners have not identifed any enforcement
authority the attorney general possesses in connection with S. B. 8 that
a federal court might enjoin him from exercising. The petitioners point
to a state statute that says the attorney general “may institute an action
for a civil penalty of $1,000” for violations of “this subtitle or a rule or
order adopted by the [Texas Medical B]oard,” Tex. Occ. Code Ann.
§ 165.101, but the qualifcation “this subtitle” limits the attorney gener-
al's enforcement authority to the Texas Occupational Code, and S. B. 8
is not codifed within “this subtitle.” Nor have the petitioners identi-
fed for us any “rule or order adopted by the” Texas Medical Board
that the attorney general might enforce against them. And even if the
attorney general did have some enforcement power under S. B. 8 that
could be enjoined, the petitioners have identifed no authority that

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Syllabus
might allow a federal court to parlay any defendant's enforcement au-
thor
ity into an injunction against any and all unnamed private parties
who might seek to bring their own S. B. 8 suits. Consistent with histor-
ical practice, a court exercising equitable authority may enjoin named
defendants from taking unlawful actions. But under traditional equita-
ble principles, no court may “enjoin the world at large,” Alemite Mfg.
Corp. v. Staff, 42 F. 2d 832 (CA2), or purport to enjoin challenged “laws
themselves.” Whole Woman's Health, 594 U. S., at ––– (citing Califor-
nia v. Texas, 593 U. S. –––, –––). Pp. 43–45.
(3) The petitioners name other defendants (Stephen Carlton, Kath-
erine Thomas, Allison Benz, and Cecile Young), each of whom is an exec-
utive licensing offcial who may or must take enforcement actions
against the petitioners if the petitioners violate the terms of Texas's
Health and Safety Code, including S. B. 8. Eight Members of the Court
hold that sovereign immunity does not bar a pre-enforcement challenge
to S. B. 8 against these defendants. Pp. 45–48.
(4) The sole private defendant, Mr. Dickson, should be dismissed.
Given that the petitioners do not contest Mr. Dickson's sworn declara-
tions stating that he has no intention to fle an S. B. 8 suit against them,
the petitioners cannot establish “personal injury fairly traceable to
[Mr. Dickson's] allegedly unlawful conduct.” See California, 593 U. S.,
at –––. P. 48.
(c) The Court holds that the petitioners may bring a pre-enforcement
challenge in federal court as one means to test S. B. 8's compliance with
the Federal Constitution. Other pre-enforcement challenges are possi-
ble too; one such case is ongoing in state court in which the plaintiffs
have raised both federal and state constitutional claims against S. B. 8.
Any individual sued under S. B. 8 may raise state and federal constitu-
tional arguments in his or her defense without limitation. Whatever a
state statute may or may not say about a defense, applicable federal
constitutional defenses always stand available when properly asserted.
See U. S. Const., Art. VI. Many federal constitutional rights are as a
practical matter asserted typically as defenses to state-law claims, not
in federal pre-enforcement cases like this one. See, e. g., Snyder v.
Phelps, 562 U. S. 443 (First Amendment used as a defense to a state
tort suit). Other viable avenues to contest the law's compliance with
the Federal Constitution also may be possible and the Court does not
prejudge the possibility. Pp. 48–51.
Gorsuch, J., announced the judgment of the Court, and delivered the
opinion of the Court except as to Part II–C. Alito, Kavanaugh, and
Barrett, JJ., joined that opinion in full, and Thomas, J., joined except for
Part II–C. Thomas, J., fled an opinion concurring in part and dissenting
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34 WH
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Syllabus
in part, post, p. 52. Roberts, C. J., fled an opinion concurring in the
judg
ment in part and dissenting in part, in which Breyer, Sotomayor,
and Kagan, JJ., joined, post, p. 58. Sotomayor, J., fled an opinion con-
curring in the judgment in part and dissenting in part, in which Breyer
and Kagan, JJ., joined, post, p. 62.
Marc A. Hearron argued the cause for petitioners. With
him on the briefs were Julie A. Murray, Richard Muniz,
Molly Duane, Kirby Tyrrell, Jamie A. Levitt, James R.
Sigel, Stephanie Toti, Julie Kaye, Brigitte Amiri, Lorie
Chaiten, David Cole, and Andre Segura.
Judd E. Stone II, Solicitor General of Texas, argued the
cause for respondents. With him on the briefs were Ken
Paxton, Attorney General of Texas, Brent Webster, First As-
sistant Attorney General, Lanora C. Pettit, Principal Deputy
Solicitor General, Beth Klusmann and Natalie D. Thomp-
son, Assistant Solicitors General, and William T. Thompson.
Heather Gebelin Hacker and Andrew B. Stephens fled briefs
for private respondent Penny Clarkston. Jonathan F.
Mitchell and D. Bryan Hughes fled briefs for private re-
spondent Mark Lee Dickson.*
*Erik S. Jaffe fled a brief of amicus curiae for the Firearms Policy
Coalition urging reversal. A brief of amici curiae urging vacatur was
fled for Leading Medical Organizations by Shannon Rose Selden, Anna
A. Moody, and Shiri A. Hickman.
Briefs of amici curiae urging affrmance were fled for the American
Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby
M. May, Jordan A. Sekulow, Laura B. Hernandez, Andrew J. Ekonomou,
Cecilia Noland-Heil, and Walter M. Weber; for the Becket Fund for Reli-
gious Liberty by Mark L. Rienzi; for the Life Legal Defense Foundation
by Catherine W. Short; and for the NAACP Legal Defense & Educational
Fund, Inc., by Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, and
Mahogane D. Reed.
Briefs of amici curiae were fled for the Commonwealth of Massachu-
setts et al. by Maura Healey, Attorney General of Massachusetts, Eliza-
beth N. Dewar, State Solicitor, and Amanda Hainsworth, Assistant Attor-
ney General, by Andrew J. Bruck, Acting Attorney General of New Jersey,
and by the Attorneys General for their respective jursidictions as follows:
Rob Bonta of California, Philip J. Weiser of Colorado, William Tong of
Connecticut, Kathleen Jennings of Delaware, Karl A. Racine of the Dis-
trict of Columbia, Clare E. Connors of Hawaii, Kwame Raoul of Illinois,
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Opinion of the Court
Justice Gorsuch announced the judgment of the Court,
and
delivered the opinion of the Court except as to Part
II–C.
The Court granted certiorari before judgment in this case
to determine whether, under our precedents, certain abor-
tion providers can pursue a pre-enforcement challenge to a
recently enacted Texas statute. We conclude that such an
action is permissible against some of the named defendants
but not others.
I
Earlier this year Texas passed the Texas Heartbeat Act,
87th Leg., Reg. Sess., also known as S. B. 8. The Act pro-
hibits physicians from “knowingly perform[ing] or induc[ing]
an abortion on a pregnant woman if the physician detected
a fetal heartbeat for the unborn child” unless a medical
emergency prevents compliance. Tex. Health & Safety
Code Ann. §§ 171.204(a), 171.205(a) (West Cum. Supp. 2021).
But the law generally does not allow state offcials to bring
criminal prosecutions or civil enforcement actions. Instead,
Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Dana Nessel of
Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Hector
Balderas of New Mexico, Letitia James of New York, Joshua H. Stein of
North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsyl-
vania, Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Ver-
mont, Mark R. Herring of Virginia, Robert W. Ferguson of Washington,
and Joshua L. Kaul of Wisconsin; for the California ProLife Council by
Sheila Ann Green; for the Constitutional Accountability Center by Eliza-
beth B. Wydra, Brianne J. Gorod, and David H. Gans; for Constitutional
Law Scholars et al. by Kathleen R. Hartnett and Adam Gershenson; for
the Lawyers' Committee for Civil Rights Under Law et al. by Claudia
Hammerman, Sidney S. Rosdeitcher, Damon Hewitt, and Jon Green-
baum; for Legal Scholars by Alison B. Miller and Benjamin F. Heidlage;
for Local Governments by Jonathan B. Miller, Meghan L. Riley, Esteban
A. Aguilar, Jr., Jessica M. Scheller, Kristin M. Bronson, Arturo G. Mi-
chel, Michael N. Feuer, Rodrigo A. Castro-Silva, Barbara J. Parker,
Diana P. Cortes, Lyndsey M. Olson, Dennis J. Herrera, James R. Wil-
liams, Joseph Lawrence, and Peter S. Holmes; for Professor Adam Lamp-
arello et al. by Mr. Lamparello, pro se; and for 128 Current and Former
Prosecutors et al. by John P. Mastando III and David Weiss.
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S. B. 8 directs enforcement “through . . . private civil actions”
cu
lminating in injunctions and statutory damages awards
against those who perform or assist prohibited abortions.
§§ 171.207(a), 171.208(a)(2), (3). The law also provides a de-
fense. Tracking language from Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the statute
permits abortion providers to defeat any suit against them
by showing, among other things, that holding them liable
would place an “undue burden” on women seeking abortions.
§§ 171.209(a)–(b).
1
Af ter the law's adopti on, var i ous abor ti on providers
sought to test its constitutionality. Not wishing to wait for
S. B. 8 actions in which they might raise their arguments in
defense, they fled their own pre-enforcement lawsuits. In
all, they brought 14 such challenges in state court seeking,
among other things, a declaration that S. B. 8 is inconsistent
with both the Federal and Texas Constitutions. A summary
judgment ruling in these now-consolidated cases arrived last
night, in which the abortion providers prevailed on certain
of their claims. Van Stean v. Texas, No. D–1–GN–21–004179
(Dist. Ct. Travis Cty., Tex., Dec. 9, 2021).
Another group of providers, including the petitioners be-
fore us, fled a pre-enforcement action in federal court. In
their complaint, the petitioners alleged that S. B. 8 violates
the Federal Constitution and sought an injunction barring
the following defendants from taking any action to enforce
the statute: a state-court judge, Austin Jackson; a state-court
clerk, Penny Clarkston; Texas attorney general, Ken Paxton;
1
Justice Sotomayor suggests that the defense described in S. B. 8
supplies only a “shell of what the Constitution requires” and effectively
“nullif[ies]” its guarantees. Post, at 63–65 (opinion concurring in judgment
in part and dissenting in part); see also post, at 59, n. 1 (Roberts, C. J.,
concurring in judgment in part and dissenting in part). But whatever a
state statute may or may not say, applicable federal constitutional defenses
always stand fully available when properly asserted. See U. S. Const.,
Art. VI.
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Opinion of the Court
executive director of the Texas Medical Board, Stephen Carl-
ton;
executive director of the Texas Board of Nursing,
Katherine Thomas; executive director of the Texas Board of
Pharmacy, Allison Benz; executive commissioner of the
Texas Health and Human Services Commission, Cecile
Young; and a single private party, Mark Lee Dickson.
Shortly after the petitioners fled their federal complaint,
the individual defendants employed by Texas moved to dis-
miss, citing among other things the doctrine of sovereign
immunity. App. to Pet. for Cert. 3a. The sole private de-
fendant, Mr. Dickson, also moved to dismiss, claiming that
the petitioners lacked standing to sue him. 13 F. 4th 434,
445 (CA5 2021) (per curiam). The District Court denied the
motions. Ibid.
The defendants employed by Texas responded by pursuing
an interlocutory appeal in the Fifth Circuit under the collat-
eral order doctrine. See Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 147 (1993)
(collateral order doctrine allows immediate appellate review
of order denying claim of sovereign immunity). Mr. Dickson
also fled an interlocutory appeal. The Fifth Circuit agreed
to take up his appeal because the issues it raised overlapped
with those already before the court in the Texas offcial de-
fendants' appeal. 13 F. 4th, at 438–439.
Separately, the petitioners also sought relief from the
Fifth Circuit. Citing S. B. 8's impending effective date, they
asked the court to issue an injunction suspending the law's
enforcement until the court could hear and decide the merits
of the defendants' appeals. Ibid. The Fifth Circuit de-
clined the petitioners' request. Instead, that court issued
an order staying proceedings in the District Court until it
could resolve the defendants' appeals. App. to Pet. for Cert.
79a; 13 F. 4th, at 438–439, 443.
In response to these developments, the petitioners sought
emergency injunctive relief in this Court. In their fling,
the petitioners asked us to enjoin any enforcement of S. B. 8.
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And given the statute's approaching effective date, they
asked
us to rule within two days. The Court took up the
application and, in the abbreviated time available for review,
concluded that the petitioners' submission failed to identify
a basis in existing law suffcient to justify disturbing the
Court of Appeals' decision denying injunctive relief. Whole
Woman's Health v. Jackson, 594 U. S. ––– (2021).
After that ruling, the petitioners fled a second emergency
request. This time they asked the Court to grant certiorari
before judgment to resolve the defendants' interlocutory ap-
peals in the frst instance, without awaiting the views of the
Fifth Circuit. This Court granted the petitioners' request
and set the case for expedited briefng and argument. 595
U. S. ––– (2021).
II
Because this Court granted certiorari before judgment, we
effectively stand in the shoes of the Court of Appeals. See
United States v. Nixon, 418 U. S. 683, 690–692 (1974); S. Sha-
piro, K. Geller, T. Bishop, E. Hartnett, D. Himmelfarb, Su-
preme Court Practice 2-11 (11th ed. 2019). In this case, that
means we must review the defendants' appeals challenging
the District Court's order denying their motions to dismiss.
As with any interlocutory appeal, our review is limited to
the particular orders under review and any other ruling
“inextricably intertwined with” or “necessary to ensure
meaningful review of ” them. Swint v. Chambers County
Comm'n, 514 U. S. 35, 51 (1995). In this preliminary pos-
ture, the ultimate merits question—whether S. B. 8 is con-
sistent with the Federal Constitution—is not before the
Court. Nor is the wisdom of S. B. 8 as a matter of public
policy.
A
Turning to the matters that are properly put to us, we
begin with the sovereign immunity appeal involving the
state-court judge, Austin Jackson, and the state-court clerk,
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Opinion of the Court
Penny Clarkston. While this lawsuit names only one state-
cour
t judge and one state-court clerk as defendants, the peti-
tioners explain that they hope eventually to win certifcation
of a class including all Texas state-court judges and clerks
as defendants. In the end, the petitioners say, they intend
to seek an order enjoining all state-court clerks from docket-
ing S. B. 8 cases and all state-court judges from hearing
them.
Almost immediately, however, the petitioners' theory con-
fronts a diffculty. Generally, States are immune from suit
under the terms of the Eleventh Amendment and the doc-
trine of sovereign immunity. See, e. g., Alden v. Maine, 527
U. S. 706, 713 (1999). To be sure, in Ex parte Young, this
Court recognized a narrow exception grounded in traditional
equity practice—one that allows certain private parties to
seek judicial orders in federal court preventing state execu-
tive offcials from enforcing state laws that are contrary to
federal law. 209 U. S. 123, 159–160 (1908). But as Ex parte
Young explained, this traditional exception does not nor-
mally permit federal courts to issue injunctions against
state-court judges or clerks. Usually, those individuals do
not enforce state laws as executive offcials might; instead,
they work to resolve disputes between parties. If a state
court errs in its rulings, too, the traditional remedy has been
some form of appeal, including to this Court, not the entry
of an ex ante injunction preventing the state court from
hearing cases. As Ex parte Young put it, “an injunction
against a state court” or its “machinery” “would be a viola-
tion of the whole scheme of our Government.” Id., at 163.
Nor is that the only problem confronting the petitioners'
court-and-clerk theory. Article III of the Constitution af-
fords federal courts the power to resolve only “actual contro-
versies arising between adverse litigants.” Muskrat v.
United States, 219 U. S. 346, 361 (1911). Private parties
who seek to bring S. B. 8 suits in state court may be litigants
adverse to the petitioners. But the state-court clerks who
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docket those disputes and the state-court judges who decide
them
generally are not. Clerks serve to fle cases as they
arrive, not to participate as adversaries in those disputes.
Judges exist to resolve controversies about a law's meaning
or its conformance to the Federal and State Constitutions,
not to wage battle as contestants in the parties' litigation.
As this Court has explained, “no case or controversy” exists
“between a judge who adjudicates claims under a statute and
a litigant who attacks the constitutionality of the statute.”
Pulliam v. Allen, 466 U. S. 522, 538, n. 18 (1984).
Then there is the question of remedy. Texas Rule of Civil
Procedure 24 directs state-court clerks to accept complaints
and record case numbers. The petitioners have pointed to
nothing in Texas law that permits clerks to pass on the sub-
stance of the flings they docket—let alone refuse a party's
complaint based on an assessment of its merits. Nor does
Article III confer on federal judges some “amorphous” power
to supervise “the operations of government” and reimagine
from the ground up the job description of Texas state-court
clerks. Raines v. Byrd, 521 U. S. 811, 829 (1997) (internal
quotation marks omitted).
Troubling, too, the petitioners have not offered any mean-
ingful limiting principles for their theory. If it caught on
and federal judges could enjoin state courts and clerks from
entertaining disputes between private parties under this
state law, what would stop federal judges from prohibiting
state courts and clerks from hearing and docketing disputes
between private parties under other state laws? And if
the state courts and clerks somehow qualify as “adverse
litigants” for Article III purposes in the present case,
when would they not? The petitioners offer no satisfac-
tory answers.
Instead, only further questions follow. Under the peti-
tioners' theory, would clerks have to assemble a blacklist of
banned claims subject to immediate dismissal? What kind
of inquiry would a state court have to apply to satisfy due
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41
Opinion of the Court
process before dismissing those suits? How notorious would
the
alleged constitutional defects of a claim have to be before
a state-court clerk would risk legal jeopardy merely for fling
it? Would States have to hire independent legal counsel for
their clerks—and would those advisers be the next target of
suits seeking injunctive relief ? When a party hales a state-
court clerk into federal court for fling a complaint containing
a purportedly unconstitutional claim, how would the clerk
defend himself consistent with his ethical obligation of neu-
trality? See Tex. Code of Judicial Conduct Canon 3(B)(10)
(2021) (instructing judges and court staff to abstain from
taking public positions on pending or impending proceed-
ings). Could federal courts enjoin those who perform other
ministerial tasks potentially related to litigation, like the
postal carrier who delivers complaints to the courthouse?
Many more questions than answers would present them-
selves if the Court journeyed this way.
Our colleagues writing separately today supply no answers
either. They agree that state-court judges are not proper
defendants in this lawsuit because they are “in no sense ad-
verse” to the parties whose cases they decide. Post, at 61
(opinion of Roberts, C. J.). At the same time, our col-
leagues say they would allow this case to proceed against
clerks like Ms. Clarkston. See post, at 60–61; see also post,
at 67–68 (opinion of Sotomayor, J.). But in doing so they
fail to address the many remedial questions their path in-
vites. They neglect to explain how clerks who merely
docket S. B. 8 lawsuits can be considered “adverse litigants”
for Article III purposes while the judges they serve cannot.
And they fail to reconcile their views with Ex parte Young.
The Chief Justice acknowledges, for example, that clerks
set in motion the “ `machinery' ” of court proceedings. Post,
at 61. Yet he disregards Ex parte Young's express teaching
against enjoining the “machinery” of courts. 209 U. S., at 163.
Justice Sotomayor seems to admit at least part of the
problem. She concedes that older “wooden” authorities like
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Opinion of the Court
Ex parte Young appear to prohibit suits against state-court
clerks.
Post, at 68. Still, she insists, we should disregard
those cases in favor of more “modern” case law. Ibid. In
places, The Chief Justice's opinion seems to pursue much
the same line of argument. See post, at 61. But even over-
looking all the other problems attending our colleagues'
“clerks-only” theory, the authorities they cite do not begin
to do the work attributed to them.
Most prominently, our colleagues point to Pulliam. But
that case had nothing to do with state-court clerks, injunc-
tions against them, or the doctrine of sovereign immunity.
Instead, the Court faced only the question whether the suit
before it could proceed against a judge consistent with the
distinct doctrine of judicial immunity. 466 U. S., at 541–543.
As well, the plaintiff sought an injunction only to prevent
the judge from enforcing a rule of her own creation. Id.,
at 526. No one asked the Court to prevent the judge from
processing the case consistent with state statutory law,
let alone undo Ex parte Young's teaching that federal courts
lack such power under traditional equitable principles. Tell-
ingly, our colleagues do not read Pulliam to authorize claims
against state-court judges in this case. And given that, it is
a mystery how they might invoke the case as authority for
claims against (only) state-court clerks, offcials Pulliam
never discussed.
If anything, the remainder of our colleagues' cases are
even further afeld. Mitchum v. Foster did not involve
state-court clerks, but a judge, prosecutor, and sheriff. See
315 F. Supp. 1387, 1388 (ND Fla. 1970) (per curiam). When
it came to these individuals, the Court held only that the
Anti-Injunction Act did not bar suit against them. 407 U. S.
225, 242–243 (1972). Once more, the Court did not purport
to pass judgment on any sovereign immunity defense,
let alone suggest any disagreement with Ex parte Young.
To the contrary, the Court went out of its way to emphasize
that its decision should not be taken as passing on the ques-

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Opinion of the Court
tion whether “principles of equity, comity, and federalism”
might
bar the suit. 407 U. S., at 243. Meanwhile, Shelley
v. Kraemer did not even involve a pre-enforcement challenge
against any state-offcial defendant. 334 U. S. 1 (1948).
There, the petitioners simply sought to raise the Constitu-
tion as a defense against other private parties seeking to
enforce a restrictive covenant, id., at 14, much as the peti-
tioners here would be able to raise the Constitution as a de-
fense in any S. B. 8 enforcement action brought by others
against them. Simply put, nothing in any of our colleagues'
cases supports their novel suggestion that we should allow a
pre-enforcement action for injunctive relief against state-
court clerks, all while simultaneously holding the judges they
serve immune.
B
Perhaps recognizing the problems with their court-and-
clerk theory, the petitioners briefy advance an alternative.
They say they seek to enjoin the Texas attorney general
from enforcing S. B. 8. Such an injunction, the petitioners
submit, would also automatically bind any private party who
might try to bring an S. B. 8 suit against them. Reply Brief
for Petitioners 21. But the petitioners barely develop this
back-up theory in their briefng, and it too suffers from some
obvious problems.
Start with perhaps the most straightforward. While
Ex parte Young authorizes federal courts to enjoin certain
state offcials from enforcing state laws, the petitioners do
not direct this Court to any enforcement authority the attor-
ney general possesses in connection with S. B. 8 that a fed-
eral court might enjoin him from exercising. Maybe the
closest the petitioners come is when they point to a state
statute that says the attorney general “may institute an ac-
tion for a civil penalty of $1,000” for violations of “this subti-
tle or a rule or order adopted by the [Texas Medical B]oard.”
Tex. Occ. Code Ann. § 165.101 (West 2012). But the qualif-
cation “this subtitle” limits the attorney general's enforce-
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Opinion of the Court
ment authority to the Texas Occupational Code, specifcally
§§
151.001 through 171.024. By contrast, S. B. 8 is codifed
in the Texas Health and Safety Code at §§ 171.201–171.212.
The Act thus does not fall within “this subtitle.” Nor have
the petitioners identifed for us any “rule or order adopted by
the” Texas Medical Board related to S. B. 8 that the attorney
general might enforce against them. To be sure, some of
our colleagues suggest that the Board might in the future
promulgate such a rule and the attorney general might then
undertake an enforcement action. Post, at 60 (opinion of
Roberts, C. J.) (citing 22 Tex. Admin. Code § 190.8(7) (West
2021)). But this is a series of hypotheticals and an argu-
ment even the petitioners do not attempt to advance for
themselves.
Even if we could overcome this problem, doing so would
only expose another. Supposing the attorney general did
have some enforcement authority under S. B. 8, the petition-
ers have identifed nothing that might allow a federal court
to parlay that authority, or any defendant's enforcement au-
thority, into an injunction against any and all unnamed pri-
vate persons who might seek to bring their own S. B. 8 suits.
The equitable powers of federal courts are limited by histori-
cal practice. Atlas Life Ins. Co. v. W. I. Southern, Inc., 306
U. S. 563, 568 (1939). “A court of equity is as much so lim-
ited as a court of law.” Alemite Mfg. Corp. v. Staff, 42 F. 2d
832 (CA2 1930) (L. Hand, J.). Consistent with historical
practice, a federal court exercising its equitable authority
may enjoin named defendants from taking specifed unlawful
actions. But under traditional equitable principles, no court
may “lawfully enjoin the world at large,” ibid., or purport to
enjoin challenged “laws themselves,” Whole Woman's
Health, 594 U. S., at ––– (citing California v. Texas, 593 U. S.
–––, ––– (2021)).
Our colleagues offer no persuasive reply to this problem.
The Chief Justice does not address it. Meanwhile, Jus-
tice Sotomayor offers a radical answer, suggesting once
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45
Opinion of Gorsuch, J.
more that this Court should cast aside its precedents requir-
i
ng federal courts to abide by traditional equitable principles.
Post, at 68–69, n. 3. This time, however, Justice Soto-
mayor does not claim to identify any countervailing author-
ity to support her proposal. Instead, she says, it is justifed
purely by the fact that the State of Texas in S. B. 8 has
“delegat[ed] its enforcement authority to the world at large.”
Post, at 70, n. 4. But somewhat analogous complaints could
be levied against private attorneys general acts, statutes
allowing for private rights of action, tort law, federal anti-
trust law, and even the Civil Rights Act of 1964. In some
sense all of these laws “delegate” the enforcement of public
policy to private parties and reward those who bring suits
with “bount[ies]” like exemplary or statutory damages and
attorney's fees. Nor does Justice Sotomayor explain
where her novel plan to overthrow this Court's precedents
and expand the equitable powers of federal courts would
stop—or on what theory it might plausibly happen to reach
just this case or maybe those exactly like it.
2
C
While this Court's precedents foreclose some of the peti-
tioners' claims for relief, others survive. The petitioners
a lso name as defendants Stephen Car lton, Kather i ne
Thomas, Allison Benz, and Cecile Young. On the briefng
and argument before us, it appears that these particular de-
fendants fall within the scope of Ex parte Young's historic
exception to state sovereign immunity. Each of these indi-
viduals is an executive licensing offcial who may or must
take enforcement actions against the petitioners if they vio-
2
This is not to say that the petitioners, or other abortion providers, lack
potentially triable state-law claims that S. B. 8 improperly delegates state
law enforcement authority. Nor do we determine whether any particular
S. B. 8 plaintiff possesses standing to sue under state justiciability doc-
trines. We note only that such arguments do not justify federal courts
abandoning traditional limits on their equitable authority and our prece-
dents enforcing them.
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late 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.
3
Justice Thomas alone reaches a different conclusion. He
emphasizes that suits seeking equitable relief against execu-
tive offcials are permissible only when supported by tradi-
tion. See post, at 53–54 (opinion concurring in part and dis-
senting in part). He further emphasizes that the relevant
tradition here, embodied in Ex parte Young, permits equita-
ble relief against only those offcials who possess authority
to enforce a challenged state law. Post, at 54. We agree
with all of these principles; our disagreement is restricted to
their application.
Justice Thomas suggests that the licensing-offcial de-
fendants lack authority to enforce S. B. 8 because that stat-
ute says it is to be “exclusively” enforced through private
civil actions “[n]otwithstanding . . . any other law.” See Tex.
Health & Safety Code Ann. § 171.207(a). But the same pro-
vision of S. B. 8 also states that the law “may not be con-
strued to . . . limit the enforceability of any other laws that
regulate or prohibit abortion.” § 171.207(b)(3). This saving
clause is signifcant because, as best we can tell from the
briefng before us, the licensing-offcial defendants are
charged with enforcing “other laws that regulate . . . abor-
tion.” Consider, for example, Texas Occupational Code
§ 164.055, titled “Prohibited Acts Regarding Abortion.”
That provision states that the Texas Medical Board “shall
take an appropriate disciplinary action against a physician
who violates . . . Chapter 171, Health and Safety Code,” a
part of Texas statutory law that includes S. B. 8. Accord-
3
The petitioners may proceed against Ms. Young solely based on her
authority to supervise licensing of abortion facilities and ambulatory sur-
gical centers, and not with respect to any other enforcement authority
under Chapter 171 of the Texas Health and Safety Code.
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47
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ingly, it appears Texas law imposes on the licensing-offcial
defendants
a duty to enforce a law that “regulate[s] or pro-
hibit[s] abortion,” a duty expressly preserved by S. B. 8's
saving clause. Of course, Texas courts and not this one
are the fnal arbiters of the meaning of state statutory direc-
tions. See Railroad Comm'n of Tex. v. Pullman Co., 312
U. S. 496, 500 (1941). But at least based on the limited ar-
guments put to us at this stage of the litigation, it appears
that the licensing defendants do have authority to enforce
S. B. 8.
4
In the face of this conclusion, Justice Thomas advances
an alternative argument. He stresses that to maintain a
suit consistent with this Court's Ex parte Young and Arti-
cle III precedents, “it is not enough that petitioners `feel in-
hibited' ” or “ `chill[ed]' ” by the abstract possibility of an en-
forcement action against them. Post, at 57. Rather, they
must show at least a credible threat of such an action against
them. Post, at 58. Again, we agree with these observations
in principle and disagree only on their application to the facts
of this case. The petitioners have plausibly alleged that
S. B. 8 has already had a direct effect on their day-to-day
operations. See Complaint ¶¶103, 106–109. And they have
identifed provisions of state law that appear to impose a
duty on the licensing-offcial defendants to bring disciplinary
actions against them if they violate S. B. 8. In our judg-
ment, this is enough at the motion to dismiss stage to sug-
4
Tending to confrm our understanding of the statute is the fact that
S. B. 8 expressly prohibits “enforcement of Chapters 19 and 22, Penal
Code, in response to violations of this subchapter.” Tex. Health & Safety
Code Ann. § 171.207(a). This language suggests that the Texas Legisla-
ture knew how to prohibit collateral enforcement mechanisms when it
adopted S. B. 8, and understood that it was necessary to do so. To read
S. B. 8 as barring any collateral enforcement mechanisms without a spe-
cifc exclusion would thus threaten to render this statutory language su-
perfuous. See Kallinen v. Houston, 462 S. W. 3d 25, 28 (Tex. 2015)
(courts should avoid treating any statutory language as surplusage); Kun-
gys v. United States, 485 U. S. 759, 778 (1988) (same).
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gest the petitioners will be the target of an enforcement ac-
ti
on and thus allow this suit to proceed.
D
While this interlocutory appeal focuses primarily on the
Texas offcial defendants' motion to dismiss on grounds of
sovereign immunity and justiciability, before we granted cer-
tiorari the Fifth Circuit also agreed to take up an appeal
by the sole private defendant, Mr. Dickson. In the briefng
before us, no one contests this decision. In his appeal,
Mr. Dickson argues that the petitioners lack standing to sue
him because he possesses no intention to fle an S. B. 8 suit
against them. Mr. Dickson has supplied sworn declarations
so attesting. See, e. g., Brief for Respondent Dickson 32.
The petitioners do not contest this testimony or ask us to
disregard it. Accordingly, on the record before us the peti-
tioners cannot establish “personal injury fairly traceable to
[Mr. Dickson's] allegedly unlawful conduct.” California v.
Texas, 593 U. S., at ––– (internal quotation marks omitted).
No Member of the Court disagrees with this resolution of
the claims against Mr. Dickson.
III
While this should be enough to resolve the petitioners'
appeal, a detour is required before we close. Justice Soto-
mayor charges this Court with “shrink[ing]” from the task
of defending the supremacy of the Federal Constitution over
state law. Post, at 71. That rhetoric bears no relation to
reality.
The truth is, many paths exist to vindicate the supremacy
of federal law in this area. Even aside from the fact that
eight Members of the Court agree sovereign immunity does
not bar the petitioners from bringing this pre-enforcement
challenge in federal court, everyone acknowledges that other
pre-enforcement challenges may be possible in state court
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Opinion of the Court
as well.
5
In
fact, 14 such state-court cases already seek to
vindicate both federal and state constitutional claims against
S. B. 8—and they have met with some success at the sum-
mary judgment stage. See supra, at 36. Separately, any
individual sued under S. B. 8 may pursue state and federal
constitutional arguments in his or her defense. See n. 1,
supra. Still further viable avenues to contest the law's com-
pliance with the Federal Constitution also may be possible;
we do not prejudge the possibility. Given all this, Justice
Sotomayor’s suggestion that the Court's ruling somehow
“clears the way” for the “nullifcation” of federal law along
the lines of what happened in the Jim Crow South not only
wildly mischaracterizes the impact of today's decision, it
cheapens the gravity of past wrongs. Post, at 72.
The truth is, too, that unlike the petitioners before us,
those seeking to challenge the constitutionality of state laws
are not always able to pick and choose the timing and pre-
ferred forum for their arguments. This Court has never
recognized an unqualifed right to pre-enforcement review of
constitutional claims in federal court. In fact, general fed-
eral question jurisdiction did not even exist for much of this
Nation's history. See Mims v. Arrow Financial Services,
LLC, 565 U. S. 368, 376 (2012). And pre-enforcement review
under the statutory regime the petitioners invoke, 42 U. S. C.
§ 1983, was not prominent until the mid-20th century. See
Monroe v. Pape, 365 U. S. 167, 180 (1961); see also R. Fallon,
J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's
The Federal Courts and the Federal System 994 (7th ed.
2015). To this day, many federal constitutional rights are as
5
Justice Sotomayor's complaint thus isn't really about whether this
case should proceed. It is only about which particular defendants the
petitioners may sue in this particular lawsuit. And even when it comes
to that question, Justice Sotomayor agrees with the Court regarding
the proper disposition of several classes of defendants—state-court judges,
licensing offcials, and Mr. Dickson.
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a practical matter asserted typically as defenses to state-law
clai
ms, not in federal pre-enforcement cases like this one.
See, e. g., Snyder v. Phelps, 562 U. S. 443 (2011) (First
Amendment used as a defense to a state tort suit).
Finally, Justice Sotomayor contends that S. B. 8 “chills”
the exercise of federal constitutional rights. If nothing else,
she says, this fact warrants allowing further relief in this
case. Post, at 62–63, 67–69. Here again, however, it turns
out that the Court has already and often confronted—and
rejected—this very line of thinking. As our cases explain,
the “ `chilling effect' ” associated with a potentially unconsti-
tutional law being “ `on the books' ” is insuffcient to “justify
federal intervention” in a pre-enforcement suit. Younger v.
Harris, 401 U. S. 37, 42, 50–51 (1971). Instead, this Court
has always required proof of a more concrete injury and com-
pliance with traditional rules of equitable practice. See
Muskrat, 219 U. S., at 361; Ex parte Young, 209 U. S., at 159–
160. The Court has consistently applied these requirements
whether the challenged law in question is said to chill the
free exercise of religion, the freedom of speech, the right to
bear arms, or any other right. The petitioners are not enti-
tled to a special exemption.
Maybe so, Justice Sotomayor replies, but what if other
States pass legislation similar to S. B. 8? Doesn't that possi-
bility justify throwing aside our traditional rules? Post,
at 71. It does not. If other States pass similar legislation,
pre-enforcement challenges like the one the Court approves
today may be available in federal court to test the constitu-
tionality of those laws. Again, too, further pre-enforcement
challenges may be permissible in state court and federal law
may be asserted as a defense in any enforcement action. To
the extent Justice Sotomayor seems to wish even more
tools existed to combat this type of law, Congress is free to
provide them. In fact, the House of Representatives re-
cently passed a statute that would purport to preempt state
laws like S. B. 8. See H. R. 3755, 117th Cong., 1st Sess.
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(2021). But one thing this Court may never do is disregard
the
traditional limits on the jurisdiction of federal courts just
to see a favored result win the day. At the end of that road
is a world in which “[t]he division of power” among the
branches of Government “could exist no longer, and the other
departments would be swallowed up by the judiciary.”
4 Papers of John Marshall 95 (C. Cullen ed. 1984).
6
IV
The petitioners' theories for relief face serious challenges
but also present some opportunities. To summarize: (1) The
Court unanimously rejects the petitioners' theory for relief
against state-court judges and agrees Judge Jackson should
be dismissed from this suit. (2) A majority reaches the
same conclusion with respect to the petitioners' parallel the-
ory for relief against state-court clerks. (3) With respect to
the back-up theory of relief the petitioners present against
Attorney General Paxton, a majority concludes that he must
be dismissed. (4) At the same time, eight Justices hold this
case may proceed past the motion to dismiss stage against
Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defend-
ants with specifc disciplinary authority over medical licens-
ees, including the petitioners. (5) Every Member of the
Court accepts that the only named private-individual defend-
ant, Mr. Dickson, should be dismissed.
The order of the District Court is affrmed in part and
reversed in part, and the case is remanded for further pro-
ceedings consistent with this opinion.
So ordered.
6
Justice Sotomayor charges this Court with “delay” in resolving this
case. Post, at 72. In fact, this case has received extraordinary solicitude
at every turn. This Court resolved the petitioners' frst emergency appli-
cation in approximately two days. The Court then agreed to decide in
the frst instance the merits of an appeal pending in the Court of Appeals.
The Court ordered briefng, heard argument, and issued an opinion on
the merits—accompanied by three separate writings—all in fewer than
50 days.
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Justice Thomas, concurring in part and dissenting in
par
t.
I join all but Part II–C of the Court's opinion. In my
view, petitioners may not maintain suit against any of the
governmental respondents under Ex parte Young, 209 U. S.
123 (1908).
1
I would reverse in full the District Court's de-
nial of respondents' motions to dismiss and remand with
instructions to dismiss the case for lack of subject-matter
jurisdiction.
To begin, there is no freestanding constitutional right to
pre-enforcement review in federal court. See Thunder
Basin Coal Co. v. Reich, 510 U. S. 200, 220 (1994) (Scalia, J.,
concurring in part and concurring in judgment). Such a
right would stand in signifcant tension with the longstand-
ing Article III principle that federal courts generally may
not “give advisory rulings on the potential success of an af-
frmative defense before a cause of action has even accrued.”
MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 142 (2007)
(Thomas, J., dissenting); see also Coffman v. Breeze Corps.,
323 U. S. 316, 324 (1945) (a party may not “secur[e] an advi-
sory opinion in a controversy which has not arisen”).
1
I also would hold that petitioners lack Article III standing. As I have
explained elsewhere, abortion providers lack standing to assert the puta-
tive constitutional rights of their potential clients. See June Medical
Services L. L. C. v. Russo, 591 U. S. –––, ––– – ––– (2020) (dissenting opin-
ion). Third-party standing aside, petitioners also have not shown injury
or redressability for many of the same reasons they cannot satisfy
Ex parte Young. For injury, petitioners have shown no likelihood of en-
forcement by any respondent, let alone that enforcement is “certainly im-
pending.” Clapper v. Amnesty Int'l USA, 568 U. S. 398, 410 (2013) (inter-
nal quotation marks omitted). For redressability, we held last Term that
a party may not “attack an unenforceable statutory provision,” because
this Court may not issue “an advisory opinion without the possibility of
any judicial relief.” California v. Texas, 593 U. S. –––, ––– (2021) (inter-
nal quotation marks omitted); see also Muskrat v. United States, 219 U. S.
346, 361 (1911). Likewise here, petitioners seek a declaration that S. B. 8
is unlawful even though no respondent can or will enforce it.
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Opinion of Thomas, J.
That said, a party subject to imminent threat of state en-
forcement
proceedings may seek a kind of pre-enforcement
review in the form of a “negative injunction.” This proce-
dural device permits a party to assert “in equity . . . a de-
fense that would otherwise have been available in the State's
enforcement proceedings at law.” Virginia Offce for Pro-
tection and Advocacy v. Stewart, 563 U. S. 247, 262 (2011)
(Kennedy, J., concurring); accord, Douglas v. Independent
Living Center of Southern Cal., Inc., 565 U. S. 606, 620
(2012) (Roberts, C. J., dissenting). In Ex parte Young, this
Court recognized that use of this negative injunction against
a governmental defendant provides a narrow exception to
sovereign immunity. See 209 U. S., at 159–160. That ex-
ception extends no further than permitting private parties
in some circumstances to prevent state offcials from bring-
ing an action to enforce a state law that is contrary to fed-
eral law.
The negative injunction remedy against state offcials
countenanced in Ex parte Young is a “standard tool of eq-
uity,” J. Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 990
(2008), that federal courts have authority to entertain under
their traditional equitable jurisdiction, see Judiciary Act of
1789, § 11, 1 Stat. 78. As we have explained elsewhere, a
federal court's jurisdiction in equity extends no further than
“the jurisdiction in equity exercised by the High Court of
Chancery in England at the time of the adoption of the Con-
stitution and the enactment of the original Judiciary Act.”
Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond
Fund, Inc., 527 U. S. 308, 318 (1999) (internal quotation
marks omitted). For this reason, a negative injunction must
fall “within some clear ground of equity jurisdiction.” Boise
Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276,
285 (1909); see also Missouri v. Jenkins, 515 U. S. 70, 127
(1995) (Thomas, J., concurring) (“[C]ourts of equity must be
governed by rules and precedents no less than the courts of
law”). Federal courts therefore lack “power to create reme-
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dies previously unknown to equity jurisprudence.” Grupo
Mex
icano, 527 U. S., at 332.
The principal opinion “agree[s] with all of these princi-
ples.” Ante, at 46. I part ways with the principal opinion
only in its conclusion that the four licensing-offcial respond-
ents are appropriate defendants under Ex parte Young. For
at least two reasons, they are not.
First, an Ex parte Young defendant must have “some con-
nection with the enforcement of the act”—i. e., “the right
and the power to enforce” the “act alleged to be unconstitu-
tional.” 209 U. S., at 157, 161. The only “act alleged to be
unconstitutional” here is S. B. 8. And that statute explicitly
denies enforcement authority to any governmental offcial.
On this point, the Act is at least triply clear. The statute
begins: “Notwithstanding . . . any other law, the require-
ments of th is subchapter sha l l be enforced exclu si v ely
through . . . private civil actions.” Tex. Health & Safety
Code Ann. § 171.207(a) (West Cum. Supp. 2021) (emphasis
added). The Act continues: “No enforcement of this sub-
chapter . . . in response to violations of this subchapter, may
be taken or threatened by this state . . . or an executive
or administrative offcer or employee of this state.” Ibid.
Later on, S. B. 8 reiterates: “Any person, other than an off-
cer or employee of a state or local governmental entity in
this state, may bring a civil action.” § 171.208(a) (emphasis
added). In short, the Act repeatedly confrms that respond-
ent licensing offcials, like any other governmental offcials,
“hav[e] no duty at all with regard to the act,” and therefore
cannot “be properly made parties to the suit.” Ex parte
Young, 209 U. S., at 158.
The principal opinion does not dispute the meaning of
these provisions. Instead, it fnds residual enforcement au-
thority for the licensing offcials elsewhere in S. B. 8. In its
saving clause, the Act provides that no court may construe
S. B. 8 as “limit[ing] the enforceability of any other laws that
regulate or prohibit abortion.” § 171.207(b)(3). If one of
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these “other laws” permits a governmental offcial to enforce
S.
B. 8, the principal opinion reasons, the saving clause pre-
serves that enforcement authority. The principal opinion
then proposes that the Texas Medical Board may enforce
S. B. 8 under § 164.055 of the Texas Occupations Code.
Thus, on that view, S. B. 8 permits the Medical Board to
discipline physicians for violating the statute despite the
Act's command that “the requirements of this subchapter
shall be enforced exclusively through . . . private civil ac-
tions,” “[n]otwithstanding . . . any other law.” Tex.
Health & Safety Code Ann. § 171.207(a) (emphasis added).
Rather than introduce competing instructions in S. B. 8, I
would read the Act as a “ `harmonious whole.' ” Roberts v.
Sea-Land Services, Inc., 566 U. S. 93, 100 (2012). By its
terms, S. B. 8's saving clause preserves enforcement only
of laws that “regulate or prohibit abortion.” § 171.207(b)(3)
(emphasis added). Such laws include, for example, restric-
tions on late-term or partial-birth abortions. See §§ 171.044,
174.102. Section 164.055 of the Texas Occupations Code, by
contrast, does not “regulate or prohibit abortion.” As the
principal opinion explains, that provision merely grants au-
thority to the Texas Medical Board to enforce other laws that
do regulate abortion. See Tex. Occ. Code Ann. § 164.055
(West 2012). Thus, the saving clause does not apply, and
S. B. 8 explicitly forecloses enforcement of its requirements
by the Texas Medical Board.
2
2
For the remaining licensing offcials—the heads of the Texas Health
and Human Services Commission, the Texas Board of Nursing, and the
Texas Board of Pharmacy—the principal opinion identifes no law that
connects these offcials to S. B. 8 or overrides the Act's preclusion of gov-
ernmental enforcement authority. Indeed, as to the Health and Human
Services Commission, S. B. 8 explicitly forecloses enforcement authority.
The Act states: “The commission shall enforce [Chapter 171] except for
Subchapter H,” where S. B. 8 is codifed, “which shall be enforced exclu-
sively through . . . private civil enforcement actions . . . and may not be
enforced by the commission.” Tex. Health & Safety Code Ann. § 171.005
(West 2021).
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Opinion of Thomas, J.
The principal opinion contends that the Act “confrm[s its]
underst
anding ” by explicitly proscribing criminal prosecu-
tion. Ante, at 47, n. 4 (citing Tex. Health & Safety Code
Ann. § 171.207(a)). By withholding criminal enforcement
authority, the principal opinion argues, S. B. 8 tacitly leaves
at least some civil enforcement authority in place. But
“[t]he force of any negative implication . . . depends on con-
text.” Marx v. General Revenue Corp., 568 U. S. 371, 381
(2013). A statute may “indicat[e] that adopting a particular
rule . . . was probably not meant to signal any exclusion.”
Ibid. (internal quotation marks omitted).
That is the case here. Again, S. B. 8 repeatedly bars gov-
ernmental enforcement. See supra, at 54–55. That Texas
identifed a “specifc example” of withheld enforcement au-
thority alongside the Act's “general” proscription “is not in-
consistent with the conclusion that [S. B. 8] sweeps as
broadly as its language suggests.” Ali v. Federal Bureau
of Prisons, 552 U. S. 214, 226–227 (2008). Texas “may have
simply intended to remove any doubt” that criminal prosecu-
tion is unavailable under S. B. 8. Id., at 226; see also Yellen
v. Confederated Tribes of Chehalis Reservation, 594 U. S.
–––, ––– (2021) (Gorsuch, J., dissenting) (“illustrative exam-
ples can help orient affected parties and courts to Congress's
thinking ”). It is unsurprising that Texas repeated itself to
make its point “doubly sure.” Barton v. Barr, 590 U. S.
–––, ––– (2020). And, in all events, “[r]edundancy in one por-
tion of a statute is not a license to rewrite or eviscerate an-
other portion of the statute contrary to its text.” Ibid.
3
Second, even when there is an appropriate defendant to
sue, a plaintiff may bring an action under Ex parte Young
only when the defendant “threaten[s] and [is] about to com-
mence proceedings.” 209 U. S., at 156. Our later cases ex-
plain that “the prospect of state suit must be imminent.”
Morales v. Trans World Airlines, Inc., 504 U. S. 374, 382
3
Because the principal opinion's errors rest on misinterpretations of
Texas law, the Texas courts of course remain free to correct its mistakes.
See, e. g., Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8 (1985).
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(1992). Here, none of the licensing offcials has threatened
enforcement
proceedings against petitioners because none
has authority to bring them. Petitioners do not and cannot
dispute this point.
Rather, petitioners complain of the “chill” S. B. 8 has on
the purported right to abortion. But as our cases make
clear, it is not enough that petitioners “feel inhibited” be-
cause S. B. 8 is “on the books.” Younger v. Harris, 401 U. S.
37, 42 (1971) (internal quotation marks omitted). Nor is a
“vague allegation” of potential enforcement permissible.
Boise Artesian, 213 U. S., at 285. To sustain suit against
the licensing offcials, whether under Article III or Ex parte
Young, petitioners must show at least a credible and specifc
threat of enforcement to rescind their medical licenses
or assess some other penalty under S. B. 8. See Susan B.
Anthony List v. Driehaus, 573 U. S. 149, 159 (2014). Peti-
tioners offer nothing to make this showing. Even if the
licensing-offcial respondents had enforcement authority, the
chance of them using it is, at present, entirely “imaginary”
and “speculative.” Younger, 401 U. S., at 42.
The irony of this case is that S. B. 8 has generated more
litigation against those who oppose abortion than those who
perform it. Respondent Clarkston, a state-court clerk, re-
ports that only three S. B. 8 complaints have been fled in
the State of Texas, none of which has been served. Brief for
Respondent Clarkston 9–10. The private litigants brought
those actions only after a San Antonio doctor performed a
postheartbeat abortion and openly advertised it in the Wash-
ington Post. See A. Braid, Why I Violated Texas's Extreme
Abortion Ban, Washington Post, Sept. 19, 2021, p. A31, col. 2.
Opponents of abortion, meanwhile, have been sued 14 times
in the Texas state courts, including by some of the very peti-
tioners in this case. See Brief for Respondent Clarkston
10.
4
Petitioners cast aspersions on the Texas state courts,
4
Dr. Braid also has fled suit in the Northern District of Illinois against
the three pro se plaintiffs who fled S. B. 8 actions against him. See Com-
plaint in Braid v. Stilley, No. 21–cv–5283 (Oct. 5, 2021), ECF Doc. 1. Two
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but those courts are not dawdling in these pre-enforcement
ac
tions. The Texas courts held summary-judgment hear-
ings on November 10 and entered partial judgment for the
abortion providers on December 9. See Van Stean v. Texas,
No. D–1–GN–21–004179 (Dist. Ct. Travis Cty., Tex., Dec. 9,
2021). Simply put, S. B. 8's supporters are under greater
threat of litigation than its detractors.
Despite the foregoing, the principal opinion indicates that
the prospect of suit by the licensing respondents is imminent.
It cites petitioners' complaint, but the only relevant para-
graph conclusorily asserts a “risk [of] professional discipline”
because certain respondents allegedly “retain the authority
and duty to enforce other statutes and regulations . . . that
could be triggered by a violation of S. B. 8.” Complaint
¶107. This “conclusory statemen[t],” paired with a bare
“ `legal conclusion,' ” cannot survive a motion to dismiss.
Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009).
***
I would instruct the District Court to dismiss this case
against all respondents, including the four licensing offcials,
because petitioners may not avail themselves of the excep-
tion to sovereign immunity recognized in Ex parte Young.
I join the Court's opinion in all other respects and respect-
fully dissent only from Part II–C.
Chief Justice Roberts, with whom Justice Breyer,
Justice Sotomayor, and Justice Kagan join, concurring
in the judgment in part and dissenting in part.
Texas has passed a law banning abortions after roughly
six weeks of pregnancy. See S. B. 8, 87th Leg., Reg. Sess.
(2021). That law is contrary to this Court's decisions in Roe
v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of
of the three S. B. 8 plaintiffs have made flings in the case, and both are
proceeding pro se. Meanwhile, 12 attorneys, all from major law frms or
interest groups, represent Dr. Braid.
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59
Opinion of Roberts, C. J.
Southeastern Pa. v. Casey, 505 U. S. 833 (1992). It has had
the
effect of denying the exercise of what we have held is a
right protected under the Federal Constitution.
1
Texas has employed an array of stratagems designed to
shield its unconstitutional law from judicial review. To cite
just a few, the law authorizes “[a]ny person,” other than a
government offcial, to bring a lawsuit against anyone who
“aids or abets,” or intends to aid or abet, an abortion per-
formed after roughly six weeks; has special preclusion rules
that allow multiple lawsuits concerning a single abortion;
and contains broad venue provisions that allow lawsuits to
be brought in any of Texas's 254 far fung counties, no matter
where the abortion took place. See Tex. Health & Safety
Code Ann. §§ 171.208(a), (e)(5), 171.210 (West Cum. Supp.
2021). The law then provides for minimum liability of
$10,000 plus costs and fees, while barring defendants from
recover i ng their own costs and fees i f they prevai l.
§§ 171.208(b), (i). It also purports to impose backward-
looking liability should this Court's precedents or an injunc-
tion preventing enforcement of the law be overturned.
§§ 171.208(e)(2), (3). And it forbids many state offcers from
directly enforcing it. § 171.207.
These provisions, among others, effectively chill the provi-
sion of abortions in Texas. Texas says that the law also
blocks any pre-enforcement judicial review in federal court.
On that latter contention, Texas is wrong. As eight Mem-
bers of the Court agree, see ante, at 45–46, petitioners may
1
The law states that abortion providers may raise an “undue burden”
defense, see ante, at 36, but that defense is no more than a distorted ver-
sion of the undue burden standard set forth in Casey, 505 U. S. 833. The
defense in the statute does not, for example, allow defendants to rely on
the effect that an award of relief would have on others throughout the
State, see Tex. Health & Safety Code Ann. § 171.209(d)(2) (West Cum.
Supp. 2021), even though our precedents specifcally permit such reliance.
June Medical Services L. L. C. v. Russo, 591 U. S. –––, ––– – ––– (2020)
(opinion of Breyer, J.). The provision, after all, is entitled “Undue Bur-
den Defense Limitations.” See § 171.209 (emphasis added).
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bring a pre-enforcement suit challenging the Texas law in
federa
l court under Ex parte Young, 209 U. S. 123 (1908),
because there exist state executive offcials who retain
authority to enforce it. See, e. g., Tex. Occ. Code Ann.
§ 164.055(a) (West 2021). Given the ongoing chilling effect
of the state law, the District Court should resolve this litiga-
tion and enter appropriate relief without delay.
In my view, several other respondents are also proper de-
fendants. First, under Texas law, the Attorney General
maintains authority coextensive with the Texas Medical
Board to address violations of S. B. 8. The Attorney Gen-
eral may “institute an action for a civil penalty” if a physician
violates a rule or order of the Board. Tex. Occ. Code Ann.
§ 165.101. The Board's rules—found in the Texas Adminis-
trative Code, see 22 Tex. Admin. Code § 160.1(a) (West
2021)—prohibit licensed physicians from violating Texas's
Health and Safety Code, which includes S. B. 8. See 22 Tex.
Admin. Code § 190.8(7) (“the Board shall take appropriate
disciplinary action against a physician who violates . . . Chap-
ter 171, Texas Health and Safety Code”); S. B. 8, 87th Leg.,
Reg. Sess. (2021) (amending Chapter 171 of the Texas Health
and Safety Code by adding Subchapter H). Under Texas
law, then, the Attorney General maintains authority to “take
enforcement actions” based on violations of S. B. 8. Ante,
at 45. He accordingly also falls within the scope of Young's
exception to sovereign immunity. Ante, at 43–44.
The same goes for Penny Clarkston, a court clerk. Court
clerks, of course, do not “[u]sually” enforce a State's laws.
Ante, at 39. But by design, the mere threat of even unsuc-
cessful suits brought under S. B. 8 chills constitutionally pro-
tected conduct, given the peculiar rules that the State has
imposed. Under these circumstances, the court clerks who
issue citations and docket S. B. 8 cases are unavoidably
enlisted in the scheme to enforce S. B. 8's unconstitutional
provisions, and thus are suffciently “connect[ed]” to such en-
forcement to be proper defendants. Young, 209 U. S., at 157.
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The role that clerks play with respect to S. B. 8 is distinct
from
that of the judges. Judges are in no sense adverse to
the parties subject to the burdens of S. B. 8. But as a prac-
tical matter clerks are—to the extent they “set[ ] in motion
the machinery” that imposes these burdens on those sued
under S. B. 8. Sniadach v. Family Finance Corp. of Bay
View, 395 U. S. 337, 338 (1969).
The majority contends that this conclusion cannot be rec-
onciled with Young, pointing to language in Young that sug-
gests it would be improper to enjoin courts from exercising
jurisdiction over cases. Ante, at 41–42; Young, 209 U. S.,
at 163. Decisions after Young, however, recognize that
suits to enjoin state court proceedings may be proper. See
Mitchum v. Foster, 407 U. S. 225, 243 (1972); see also Pul-
liam v. Allen, 466 U. S. 522, 525 (1984). And this conclusion
is consistent with the entire thrust of Young itself. Just as
in Young, those sued under S. B. 8 will be “harass[ed] . . .
with a multiplicity of suits or litigation generally in an en-
deavor to enforce penalties under an unconstitutional enact-
ment.” 209 U. S., at 160. Under these circumstances,
where the mere “commencement of a suit,” and in fact just
the threat of it, is the “actionable injury to another,” the
principles underlying Young authorize relief against the
court offcials who play an essential role in that scheme. Id.,
at 153. Any novelty in this remedy is a direct result of the
novelty of Texas's scheme.
2
***
The clear purpose and actual effect of S. B. 8 has been to
nullify this Court's rulings. It is, however, a basic principle
that the Constitution is the “fundamental and paramount law
of the nation,” and “[i]t is emphatically the province and duty
2
A recent summary judgment ruling in state court found S. B. 8 uncon-
stitutional in certain respects, not including the ban on abortions after
roughly six weeks. See ante, at 36, 49. That order—which does not
grant injunctive relief and has not yet been considered on appeal—does not
legitimate the State's effort to legislate away a federally protected right.
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of the judicial department to say what the law is.” Marbury
v
. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legis-
latures of the several states may, at will, annul the judg-
ments of the courts of the United States, and destroy the
rights acquired under those judgments, the constitution it-
self becomes a solemn mockery.” United States v. Peters,
5 Cranch 115, 136 (1809). The nature of the federal right
infringed does not matter; it is the role of the Supreme Court
in our constitutional system that is at stake.
Justice Sotomayor, with whom Justice Breyer and
Justice Kagan join, concurring in the judgment in part and
dissenting in part.
For nearly three months, the Texas Legislature has sub-
stantially suspended a constitutional guarantee: a pregnant
woman's right to control her own body. See Roe v. Wade,
410 U. S. 113 (1973); Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833 (1992). In open defance of this
Court's precedents, Texas enacted Senate Bill 8 (S. B. 8),
which bans abortion starting approximately six weeks after
a woman's last menstrual period, well before the point of
fetal viability. Since S. B. 8 went into effect on September
1, 2021, the law has threatened abortion care providers with
the prospect of essentially unlimited suits for damages,
brought anywhere in Texas by private bounty hunters, for
taking any action to assist women in exercising their consti-
tutional right to choose. The chilling effect has been near
total, depriving pregnant women in Texas of virtually all
opportunity to seek abortion care within their home State
after their sixth week of pregnancy. Some women have vin-
dicated their rights by traveling out of State. For the many
women who are unable to do so, their only alternatives are to
carry unwanted pregnancies to term or attempt self-induced
abortions outside of the medical system.
The Court should have put an end to this madness months
ago, before S. B. 8 frst went into effect. It failed to do so
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Opinion of Sotomayor, J.
then, and it fails again today. I concur in the Court's judg-
ment
that the petitioners' suit may proceed against certain
executive licensing offcials who retain enforcement author-
ity under Texas law, and I trust the District Court will act
expeditiously to enter much-needed relief. I dissent, how-
ever, from the Court's dangerous departure from its prece-
dents, which establish that federal courts can and should
issue relief when a State enacts a law that chills the exercise
of a constitutional right and aims to evade judicial review.
By foreclosing suit against state-court offcials and the state
attorney general, the Court effectively invites other States
to refne S. B. 8's model for nullifying federal rights. The
Court thus betrays not only the citizens of Texas, but also
our constitutional system of government.
I
I have previously described the havoc S. B. 8's unconstitu-
tional scheme has wrought for Texas women seeking abor-
tion care and their medical providers.
1
I do not repeat those
details here, but I briefy outline the law's numerous proce-
dural and substantive anomalies, most of which the Court
simply ignores.
S. B. 8 authorizes any person—who need not have any re-
lationship to the woman, doctor, or procedure at issue—to
sue, for at least $10,000 in damages, anyone who performs,
induces, assists, or even intends to assist an abortion in
violation of Texas' unconstitutional 6-week ban. See Tex.
Health & Safety Code Ann. § 171.208(a) (West Cum. Supp.
2021). Those vulnerable to suit might include a medical pro-
vider, a receptionist, a friend who books an appointment, or
a ride-share driver who takes a woman to a clinic.
Importantly, S. B. 8 also modifes state-court procedures to
make litigation uniquely punitive for those sued. It allows
1
See United States v. Texas, 595 U. S. –––, ––– – ––– (2021) (Sotomayor,
J., concurring in part and dissenting in part); Whole Woman's Health v.
Jackson, 594 U. S. –––, ––– – ––– (2021) (Sotomayor, J., dissenting).

64 WH
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defendants to be haled into court in any county in which
a
plaintiff lives, even if that county has no relationship
to the defendants or the abortion procedure at issue.
§ 171.210(a)(4). It gives the plaintiff a veto over any venue
transfer, regardless of the inconvenience to the defendants.
§ 171.210(b). It prohibits defendants from invoking nonmu-
tual issue or claim preclusion, meaning that if they prevail,
they remain vulnerable to suit by any other plaintiff any-
where in the State for the same conduct. § 171.208(e)(5). It
also bars defendants from relying on any nonbinding court
decision, such as persuasive precedent from other trial
courts. § 171.208(e)(4). Although it guarantees attorney's
fees and costs to prevailing plaintiffs, § 171.208(b)(3), it cate-
gorically denies them to prevailing defendants, § 171.208(i),
so they must fnance their own defenses no matter how frivo-
lous the suits. These provisions are considerable depar-
tures from the norm in Texas courts and in most courts
across the Nation.
2
S. B. 8 further purports to limit the substantive defenses
that defendants may raise. It permits what it calls an
“undue burden” defense, but redefnes that standard to be a
shell of what the Constitution requires: Rather than consid-
ering the law's cumulative effect on abortion access, see
Whole Woman's Health v. Hellerstedt, 579 U. S. 582, 609–624
2
S. B. 8's procedural meddling is not limited to suits fled under the law.
To deter efforts to seek pre-enforcement review, the law also establishes
a special fee-shifting provision for affrmative challenges to Texas abortion
laws, including S. B. 8 itself. Under that provision, any person or entity,
including an attorney or a law frm, who seeks declaratory or injunctive
relief against the enforcement of any state restriction on abortion is jointly
and severally liable to pay the costs and attorney's fees of a prevailing
party. Tex. Civ. Prac. & Rem. Code Ann. § 30.022 (West Cum. Supp.
2021). The provision specifes that it is “not a defense” to liability for
attorney's fees if “the court in the underlying action held that” any part
of the fee-shifting provision “is invalid, unconstitutional, or preempted by
federal law, notwithstanding the doctrines of issue or claim preclusion.”
§ 30.022(d)(3).
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(2016), it instructs state courts to focus narrowly on the ef-
fec
t on the parties, §§ 171.209(b)(2), (d)(2). It further pur-
ports to impose retroactive liability for abortion care pro-
vided while the law is enjoined if the injunction is later
overturned on appeal, § 171.208(e)(3), as well as for abortion
care provided while Roe and Casey are in effect if this Court
later overrules one of those cases, § 171.209(e).
As a whole, these provisions go beyond imposing liability
on the exercise of a constitutional right. If enforced, they
prevent providers from seeking effective pre-enforcement
relief (in both state and federal court) while simultaneously
depriving them of effective post-enforcement adjudication,
potentially violating procedural due process. To be sure,
state courts cannot restrict constitutional rights or defenses
that our precedents recognize, nor impose retroactive liabil-
ity for constitutionally protected conduct. Such actions
would violate a state offcer's oath to the Constitution. See
U. S. Const., Art. VI, cl. 3. Unenforceable though S. B. 8
may be, however, the threat of its punitive measures creates
a chilling effect that advances the State's unconstitutional
goals.
II
This Court has confronted State attempts to evade federal
constitutional commands before, including schemes that
forced parties to expose themselves to catastrophic liability
as state-court defendants in order to assert their rights.
Until today, the Court had proven equal to those challenges.
In 1908, this Court decided Ex parte Young, 209 U. S. 123.
In Young, the Court considered a Minnesota law fxing new
rates for railroads and adopting high fnes and penalties for
failure to comply with the rates. Id., at 128–129, 131. The
law purported to provide no option to challenge the new
rates other than disobeying the law and taking “the risk . . .
of being subjected to such enormous penalties.” Id., at 145.
Because the railroad offcers and employees “could not be
expected to disobey any of the provisions . . . at the risk of
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such fnes and penalties,” the law effectively resulted in “a
denia
l of any hearing to the company.” Id., at 146.
The Court unequivocally rejected this design. Conclud-
ing that the legislature could not “preclude a resort to the
courts . . . for the purpose of testing [the law's] validity,” the
Court decided the companies could obtain pre-enforcement
relief by suing the Minnesota attorney general based on his
“connection with the enforcement” of the challenged act.
Id., at 146, 157. The Court so held despite the fact that the
attorney general's only such connection was the “general
duty imposed upon him, which includes the right and the
power to enforce the statutes of the State, including, of
course, the act in question.” Id., at 161. Over the years,
“the Young doctrine has been accepted as necessary to per-
mit the federal courts to vindicate federal rights and hold
state offcials responsible to `the supreme authority of the
United States.' ” Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89, 105 (1984) (quoting Young, 209
U. S., at 160); accord, e. g., Virginia Offce for Protection and
Advocacy v. Stewart, 563 U. S. 247, 254–255 (2011).
Like the stockholders in Young, abortion providers face
calamitous liability from a facially unconstitutional law. To
be clear, the threat is not just the possibility of money judg-
ments; it is also that, win or lose, providers may be forced to
defend themselves against countless suits, all across the
State, without any prospect of recovery for their losses or
expenses. Here, as in Young, the “practical effect of [these]
coercive penalties for noncompliance” is “to foreclose all ac-
cess to the courts,” “a constitutionally intolerable choice.”
Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 218 (1994).
“It would be an injury to [a] complainant to harass it with a
multiplicity of suits or litigation generally in an endeavor to
enforce penalties under an unconstitutional enactment, and
to prevent it ought to be within the jurisdiction of a court of
equity.” Young, 209 U. S., at 160. In fact, the circum-
stances at hand present an even stronger need for pre-

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enforcement relief than in Young, given how S. B. 8 not only
threatens
a multiplicity of suits, but also turns state-court
procedures against providers to ensure they cannot effec-
tively defend their rights in a suit.
Under normal circumstances, providers might be able to
assert their rights defensively in state court. See ante, at
49. These are not normal circumstances. S. B. 8 is struc-
tured to thwart review and result in “a denial of any hear-
ing.” Young, 209 U. S., at 146. To that end, the law not
only disclaims direct enforcement by state offcials to frus-
trate pre-enforcement review, but also skews state-court
procedures and defenses to frustrate post-enforcement re-
view. The events of the last three months have shown that
the law has succeeded in its endeavor. That is precisely
what the Court in Young sought to avoid. It is therefore
inaccurate to characterize the foregoing analysis as advocat-
ing “an unqualifed right to pre-enforcement review of consti-
tutional claims in federal court.” Ante, at 49. If that were
so, the same charge could be leveled against the Court's deci-
sion in Young.
In addition, state-court clerks are proper defendants in
this action. This Court has long recognized that “the action
of state courts and judicial offcers in their offcial capacities
is to be regarded as action of the State.” Shelley v.
Kraemer, 334 U. S. 1, 14 (1948). In Shelley, private litigants
sought to enforce restrictive racial covenants designed to
preclude Black Americans from home ownership and to pre-
serve residential segregation. The Court explained that
these ostensibly private covenants involved state action be-
cause “but for the active intervention of the state courts,
supported by the full panoply of state power,” the covenants
would be unenforceable. Id., at 19. Here, there is more.
S. B. 8's formidable chilling effect, even before suit, would be
nonexistent if not for the state-court offcials who docket
S. B. 8 cases with lopsided procedures and limited defenses.
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68 WH
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chilling effect and play a clear role in the enforcement of
S.
B. 8, they are proper defendants.
These longstanding precedents establish how, and why, the
Court should authorize relief against these offcials as well.
The Court instead hides behind a wooden reading of Young,
stitching out-of-context quotations into a cover for its failure
to act decisively. The Court relies on dicta in Young stating
that “the right to enjoin an individual . . . does not include
the power to restrain a court from acting in any case brought
before it” and that “an injunction against a state court would
be a violation of the whole scheme of our Government.” 209
U. S., at 163. Modern cases, however, have recognized that
suit may be proper even against state-court judges, including
to enjoin state-court proceedings. See Mitchum v. Foster,
407 U. S. 225, 243 (1972); see also Pulliam v. Allen, 466 U. S.
522, 525 (1984). The Court responds that these cases did
not expressly address sovereign immunity or involve court
clerks. Ante, at 42–43. If language in Young posed an ab-
solute bar to injunctive relief against state-court proceedings
and offcials, however, these decisions would have been
purely advisory.
Moreover, the Court has emphasized that “the principles
undergirding the Ex parte Young doctrine” may “support its
application” to new circumstances, “novelty notwithstand-
ing.” Stewart, 563 U. S., at 261. No party has identifed
any prior circumstance in which a State has delegated an
enforcement function to the populace, disclaimed offcial en-
forcement authority, and skewed state-court procedures to
chill the exercise of constitutional rights. Because S. B. 8's
architects designed this scheme to evade Young as histori-
cally applied, it is especially perverse for the Court to shield
it from scrutiny based on its novelty.
3
3
The Court responds by seizing on my mention of S. B. 8's chilling effect.
Ante, at 50. No one contends, however, that pre-enforcement review
should be available whenever a state law chills the exercise of a constitu-
tional right. Rather, as this Court explained in Young, pre-enforcement
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Next, the Court claims that Young cannot apply because
st
ate-court clerks are not adverse to the petitioners. Ante,
at 39–40. As The Chief Justice explains, however, ante,
at 60–61 (opinion concurring in judgment in part and dissent-
ing in part), the Texas Legislature has ensured that docket-
ing S. B. 8 cases is anything but a neutral action. With S. B.
8's extreme alterations to court procedure and substantive
defenses, the Texas court system no longer resembles a
neutral forum for the adjudication of rights; S. B. 8 refash-
ions that system into a weapon and points it directly at the
petitioners. Under these circumstances, the parties are
suffciently adverse.
Finally, the Court raises “the question of remedy.” Ante,
at 40. For the Court, that question cascades into many oth-
ers about the precise contours of an injunction against Texas
court clerks in light of state procedural rules. Ante,
at 40–41. Vexing though the Court may fnd these fact-
intensive questions, they are exactly the sort of tailoring
work that District Courts perform every day. The Court
should have afforded the District Court an opportunity to
craft appropriate relief before throwing up its hands and de-
claring the task unworkable. For today's purposes, the an-
swer is simple: If, as our precedents make clear (and as the
question presented presumes), S. B. 8 is unconstitutional,
contrary state rules of civil procedure must give way. See
U. S. Const., Art. VI, cl. 2 (“This Constitution, and the Laws
of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land”).
In the midst of its handwringing over remedy, the Court
also complains that the petitioners offer no “meaningful lim-
review is necessary “when the penalties for disobedience are . . . so enor-
mous” as to have the same effect “as if the law in terms prohibited the
[ litigant] from seeking judicial construction of laws which deeply affect its
rights.” 209 U. S., at 147. All the more so here, where the State
achieves its unconstitutional aim using novel procedural machinations that
the Court fails to acknowledge.

70 WH
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Opinion of Sotomayor, J.
iting principles for their theory.” Ante, at 40. That is incor-
rec
t. The petitioners explain: “Where, as here, a State law
(1) deliberately seeks to evade federal judicial review by out-
sourcing enforcement of the law to private individuals with-
out any personal stake, while forbidding state executive of-
fcials from direct enforcement; and (2) creates special rules
for state-court adjudication to maximize harassment and
make timely and effective protection of constitutional rights
impossible, federal relief against clerks is warranted.”
Reply Brief for Petitioners 6. The petitioners do not argue
that pre-enforcement relief against state-court clerks should
be available absent those two unique circumstances, and
indeed, those circumstances are why the petitioners are
threatened with a multiplicity of suits and face a constitu-
tionally intolerable choice under Young.
4
III
My disagreement with the Court runs far deeper than a
quibble over how many defendants these petitioners may
4
The Court also holds that the Texas attorney general is not a proper
defendant. For the reasons explained by The Chief Justice, ante,
at 60, this conclusion fails even under the Court's own logic.
The Court further observes that “no court may `lawfully enjoin the
world at large.' ” Ante, at 44 (quoting Alemite Mfg. Corp. v. Staff, 42
F. 2d 832 (CA2 1930)). But the petitioners do not seek such relief. It is
Texas that has taken the unprecedented step of delegating its enforcement
authority to the world at large without requiring any pre-existing stake.
Under the Court's precedents, private actors who take up a State's mantle
“exercise . . . a right or privilege having its source in state authority” and
may “be described in all fairness as . . . state actor[s].” Edmonson v.
Leesville Concrete Co., 500 U. S. 614, 620 (1991). This Court has not held
that state actors who have actual notice of an injunction may fout its
terms, even if it nominally binds other state offcials, and it errs by imply-
ing as much now. The Court responds by downplaying how exceptional
Texas' scheme is, but it identifes no true analogs in precedent. See ante,
at 45 (identifying only “somewhat” analogous statutes). S. B. 8 is no tort
or private attorneys general statute: It deputizes anyone to sue without
establishing any pre-existing personal stake (i. e., standing) and then
skews procedural rules to favor these plaintiffs.
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sue. The dispute is over whether States may nullify federal
constituti
onal rights by employing schemes like the one at
hand. The Court indicates that they can, so long as they
write their laws to more thoroughly disclaim all enforcement
by state offcials, including licensing offcials. This choice to
shrink from Texas' challenge to federal supremacy will have
far-reaching repercussions. I doubt the Court, let alone the
country, is prepared for them.
The State's concessions at oral argument laid bare the
sweeping consequences of its position. In response to ques-
tioning, counsel for the State conceded that pre-enforcement
review would be unavailable even if a statute imposed a
bounty of $1,000,000 or higher. Tr. of Oral Arg. 50–53.
Counsel further admitted that no individual constitutional
right was safe from attack under a similar scheme. Tr. of
Oral Arg. in United States v. Texas, No. 21–588, pp. 59–61,
64–65. Counsel even asserted that a State could further rig
procedures by abrogating a state supreme court's power to
bind its own lower courts. Id., at 78–79. Counsel main-
tained that even if a State neutered appellate courts' power
in such an extreme manner, aggrieved parties' only path to
a federal forum would be to violate the unconstitutional law,
accede to infringement of their substantive and procedural
rights all the way through the state supreme court, and then,
at last, ask this Court to grant discretionary certiorari re-
view. Ibid. All of these burdens would layer atop S. B. 8's
existing manipulation of state-court procedures and defenses.
This is a brazen challenge to our federal structure. It
echoes the philosophy of John C. Calhoun, a virulent de-
fender of the slaveholding South who insisted that States
had the right to “veto” or “nullif[y]” any federal law with
which they disagreed. Address of J. Calhoun, Speeches of
John C. Calhoun 17–43 (1843). Lest the parallel be lost on
the Court, analogous sentiments were expressed in this
case's companion: “The Supreme Court's interpretations of
the Constitution are not the Constitution itself—they are,
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after all, called opinions.” Reply Brief for Intervenors in
N
o. 21–50949 (CA5), p. 4.
The Nation fought a Civil War over that proposition, but
Calhoun's theories were not extinguished. They experi-
enced a revival in the post-war South, and the violence that
ensued led Congress to enact Rev. Stat. § 1979, 42 U. S. C.
§ 1983. “Proponents of the legislation noted that state
courts were being used to harass and injure individuals,
either because the state courts were powerless to stop depri-
vations or were in league with those who were bent upon
abrogation of federally protected rights.” Mitchum, 407
U. S., at 240. Thus, § 1983's “very purpose,” consonant with
the values that motivated the Young Court some decades
later, was “to protect the people from unconstitutional action
under color of state law, `whether that action be executive,
legislative, or judicial.' ” Mitchum, 407 U. S., at 242 (quot-
ing Ex parte Virginia, 100 U. S. 339, 346 (1880)).
S. B. 8 raises another challenge to federal supremacy, and
by blessing signifcant portions of the law's effort to evade
review, the Court comes far short of meeting the moment.
The Court's delay in allowing this case to proceed has had
catastrophic consequences for women seeking to exercise
their constitutional right to an abortion in Texas. These
consequences have only rewarded the State's effort at nulli-
fcation. Worse, by foreclosing suit against state-court off-
cials and the state attorney general, the Court clears the
way for States to reprise and perfect Texas' scheme in the
future to target the exercise of any right recognized by this
Court with which they disagree.
This is no hypothetical. New permutations of S. B. 8 are
coming. In the months since this Court failed to enjoin the
law, legislators in several States have discussed or intro-
duced legislation that replicates its scheme to target locally
disfavored rights.
5
What are federal courts to do if, for ex-
5
See Brief for Petitioners 48–49 (collecting examples targeting abortion
rights and gun rights). In addition, one day after oral argument, Ohio
legislators introduced a variation on S. B. 8 that would impose a near total
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ample, a State effectively prohibits worship by a disfavored
rel
igious minority through crushing “private” litigation bur-
dens amplifed by skewed court procedures, but does a better
job than Texas of disclaiming all enforcement by state off-
cials? Perhaps nothing at all, says this Court.
6
Although
some path to relief not recognized today may yet exist, the
Court has now foreclosed the most straightforward route
under its precedents. I fear the Court, and the country, will
come to regret that choice.
***
In its fnest moments, this Court has ensured that consti-
tutional rights “can neither be nullifed openly and directly
by state legislators or state executive or judicial offcers, nor
nullifed indirectly by them through evasive schemes . . .
whether attempted `ingeniously or ingenuously.' ” Cooper v.
Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311
U. S. 128, 132 (1940)). Today's fractured Court evinces no
such courage. While the Court properly holds that this suit
may proceed against the licensing offcials, it errs gravely in
foreclosing relief against state-court offcials and the state
attorney general. By so doing, the Court leaves all manner
of constitutional rights more vulnerable than ever before, to
the great detriment of our Constitution and our Republic.
ban on abortion care in that State. See H. B. 480, 134th Gen. Assem.,
Reg. Sess. (Ohio 2021).
6
Not one of the Court's proffered alternatives addresses this concern.
The Court defects to Congress, ante, at 50, but the point of a constitu-
tional right is that its protection does not turn on the whims of a political
majority or supermajority. The Court also hypothesizes that state courts
might step in to provide pre-enforcement relief, even where it has prohib-
ited federal courts from doing so. Ante, at 48–50. As the State con-
cedes, however, the features of S. B. 8 that aim to frustrate pre-enforce-
ment relief in federal court could have similar effects in state court,
potentially limiting the scope of any relief and failing to eliminate the
specter of endless litigation. Tr. of Oral Arg. 86–88.

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 35, line 1, “delivered the opinion of the Court” is replaced with “an-
nounced the judgment of the Court, and delivered the opinion of the
Court”