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Whole Woman’s Health v. Jackson: One Texas Law’s Procedural Peculiarities and its Monolithic Threat to Abortion Access

Published online by Cambridge University Press:  11 July 2022

Katrina Morris
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Recent case developments
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American Journal of Law & Medicine , Volume 48 , Issue 1 , March 2022 , pp. 158 - 171
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© 2022 The Author(s)

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References

1 See, e.g., Abortion, Am. Coll. Obstetricians & Gynecologists, https://www.acog.org/topics/abortion [https://perma.cc/DN2V-XACT] (last visited Apr. 11, 2022); Travis Loller, Amid abortion rights threat, OB-GYNs more vocal with support, ABC News (Mar. 8, 2022, 8:35 PM), https://abcnews.go.com/Health/wireStory/amid-abortion-rights-threat-ob-gyns-vocal-support-83319403 [https://perma.cc/DB5N-ZDW7]; Abortion in Ethics, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/abortion [https://perma.cc/B5EN-ZSSY] (last visited Apr. 11, 2022) (“The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion in accordance with good medical practice and under circumstances that do not violate the law.”); Mara Gordon, Doctors Say Federal Rules on Discussing Abortions Inhibit Relationships with Patients, NPR (Sept. 9, 2019, 5:00 AM), https://www.npr.org/ sections/health-shots/2019/09/09/756103421/doctors-say-federal-rules-on-discussing-abortions-inhibit-relationships-with-pat [https://perma.cc/Z8GX-RA5N]; Harvard Medical School, Abortion (Termination of Pregnancy), Harvard Health Publishing (Jan. 9, 2019), https://www.health.harvard.edu/medical-tests-and-procedures/abortion-termination-of-pregnancy-a-to-z [https://perma.cc/93XH-EWC8].

2 See Abortion is Health Care, Nat’l Health L. Program, https://healthlaw.org/abortion-is-health-care/#:~:text=Abortion%20is%20health%20care [https://perma.cc/D59N-JRRP] (last visited Apr. 11, 2022). See also Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992). Note, however, that while the Supreme Court in Roe and Casey affirmed the right to obtain pre-viability abortions without undue state interference, the Court did not in either case explicitly articulate abortion as a form health care.

3 Please note that this Recent Case Development attempts to use inclusive language wherever possible (“pregnant person” versus “pregnant woman,” for example). Studies and statistics concerning abortion volume have traditionally been framed using gender-specific language, however. Thus, to accurately convey the statistic cited here, the word “woman” is used in the stead of the more optimal and inclusive “pregnant person.”

4 Margot Sanger-Katz, Claire Cain Miller, & Quoctrung Bui, Who Gets Abortions in America? N.Y. Times: The Upshot (Dec. 14, 2021), https://www.nytimes.com/interactive/2021/12/14/upshot/who-gets-abortions-in-america.html [https://perma.cc/R6BA-7PED]; Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, Guttmacher Inst. (Oct. 19, 2017), https://www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates [https://perma.cc/35KV-KG2E]; Katherine Kortsmit, et al., Abortion Surveillance—United States, 2019, Ctrs. Disease Control & Prev. (Nov. 26, 2021), https://www.cdc.gov/mmwr/volumes/70/ss/ss7009a1.htm#suggestedcitation [https://perma.cc/2ZPK-UNX3]. Notably, however, studies like the CDC Surveillance likely fail to capture accurate abortion rates, in part because states are not required to report data to the CDC for inclusion in its annual reports. The Associated Press, Abortions may be inching up in the U.S. after decades of decline, CDC reports, NBC News (Nov. 24, 2021), https://www.nbcnews.com/health/health-news/abortions-may-be-inching-u-s-after-decades-decline-cdc-n1284584 [https://perma.cc/EH3U-V9BW].

5 Cesarean Delivery Rate by State, Ctrs. Disease Control & Prev. (Feb. 25, 2022), https://www.cdc.gov/nchs/pressroom/sosmap/cesarean_births/cesareans.htm [https://perma.cc/DHB2-USQ3] (providing C-section rates by state, which range from 22.9% of live births in Alaska to 38.2% of live births in Mississippi).

6 QuickStats: Percentage of Women Aged > 50 Years Who Have Had a Hysterectomy, by Race/Ethnicity and year—National Health Interview Survey, United States, 2008 and 2018, Ctrs. Disease Control & Prev. (Oct. 18, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6841a3.htm [https://perma.cc/QK95-6PVH].

7 Elizabeth Nash, For the First Time Ever, U.S. States Enacted More Than 100 Abortion Restrictions in a Single Year, Guttmacher Inst. (Oct. 4, 2021), https://www.guttmacher.org/ article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year [https://perma.cc/6DKG-CQC6].

8 Id.

9 Kaia Hubbard, States Enact Record Number of Abortion Restrictions in 2021, U.S. News (Oct. 5, 2021, 4:25 PM), https://www.usnews.com/news/national-news/articles/2021-10-05/states-enact-record-number-of-abortion-restrictions-in-2021 [https://web.archive.org/web/20220503193711/https://www.usnews.com/news/national-news/articles/2021-10-05/states-enact-record-number-of-abortion-restrictions-in-2021]; Brandon Richards, ICYMI: Worst Year For Abortion Restrictions Emphasizes Need for California to Build on Reproductive Freedom Status, Planned Parenthood (Oct. 7, 2021), https://www.plannedparenthoodaction.org/planned-parenthood-affiliates-california/media/icymi-worst-year-abortion-restrictions-emphasizes-need-californi [https://perma.cc/LE3T-2CC4].

10 Tex. Health & Safety Code Ann. §171.204(a) (West 2021). The “Legislative Findings” upon which SB 8’s passage is apparently predicated are listed in §171.202 of the act. There, for example, the Texas legislature declares that the basis for the law is rooted in the state of Texas’s “compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child.” §171.202 also provides that S.B. 8 serves to further the pregnant woman’s “compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity” by allowing her to make “an informed choice about whether to continue her pregnancy.” §171.202 further justifies S.B. 8’s passage as called for by “contemporary medical research” which establishes that “the fetal heartbeat has become a key medical predictor than an unborn child will reach live birth [and that] cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac.”

11 Id.

12 Professor Andrew Koppelman provides that laws do not need to rely on accurate medical premises to survive constitutional challenges, however. “Legislatures are free to define things any way they want and give it the force of law. The reality of medical science is not a constraint on what a legislature can do. What is a constraint on what a legislature can do are the constitutional rights of women.” Julie Carr Smyth & Kimberlee Kruesi, ‘Fetal heartbeat’ in abortion law taps emotion, not science, Daily J. (Apr. 30, 2021), https://www.djournal.com/print-features/fetal-heartbeat-in-abortion-laws-taps-emotion-not-science/article 7f3133fa-6f0a-5ce0-b12d-0b535b64c759.html [https://perma.cc/XVG3-Q6W6].

13 Selena Simmons-Duffin & Carrie Feibel, The Texas Abortion Ban Hinges on ‘Fetal Heartbeat.’ Doctors Call That Misleading, NPR (Sept. 3, 2021), https://www.npr.org/sections/healthshots/ 2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion [https://perma.cc/DP9W-JY5Q]; Adam Rogers, ‘Heartbeat’ Bills Get the Science of Fetal Heartbeats All Wrong, Wired (May 14, 2019, 6:00 AM), https://www.wired.com/story/heartbeat-bills-get-the-science-of-fetal-heartbeats-all-wrong/ [https://perma.cc/EKJ4-4ZC2]; Asher Stockler, What is a “Fetal Heartbeat”? As Louisiana Passes Latest Anti-Abortion Law, Doctors Say Term is a Misnomer, Newsweek (May 30, 2019, 6:32 PM), https://www.newsweek.com/what-fetal-heartbeat-doctors-say-thats-misnomer-1440178 [https://perma.cc/KP55-8FAW]; Jessica Glenza, Doctors’ organization: calling abortion bans ‘fetal heartbeats’ is misleading, Guardian (June 5, 2019, 2:00 PM), https://www.theguardian.com/world/2019/jun/05/abortion-doctors-fetal-heartbeat-bills-language-misleading [https://web.archive.org/web/20220503200036/https://www.theguardian.com/world/2019/jun/05/abortion-doctors-fetal-heartbeat-bills-language-misleading].

14 E.g., Mayo Clinic Staff, Pregnancy week by week, Mayo Clinic (Sept. 17, 2021), https://www.mayoclinic.org/healthy-lifestyle/pregnancy-week-by-week/in-depth/prenatal-care/art-20045302 [https://perma.cc/2C86-SKTU]. For context, pregnancy tissue begins as a zygote, a single-celled entity created by the union of a sperm cell and egg cell. Id. Approximately three weeks into a pregnancy, the zygote develops into a morula (a cluster of cells), and soon thereafter into an embryo. Id. The pregnancy tissue is identified as an embryo for around seven weeks before it develops into a fetus. Id.

15 “Until the chambers of the heart have been developed and can be detected via ultrasound (roughly 17-20 weeks of gestation, it is not accurate to characterize the embryo’s or fetus’s cardiac development as a heart.” ACOG Guide to Language and Abortion, Am. Coll. Obstetricians & Gynecologists, https://www.acog.org/contact/media-center/abortion-language-guide [https://perma.cc/4GVB-UXFY] (last visited Apr. 11, 2022).

16 See, e.g., Simmons-Duffin & Fiebel, supra note 13 (“‘At six weeks of gestation, [heart] valves don’t exist. The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine’….‘What we’re really detecting is a grouping of cells that are initiating some electrical activity…In no way is this detecting a functional cardiovascular system or a functional heart.’”); see also How Your Fetus Grows During Pregnancy: Frequently Asked Questions, Am. Coll. Obstetricians & Gynecologists (Aug. 2020), https://www.acog.org/womens-health/faqs/how-your-fetus-grows-during-pregnancy [https://perma.cc/W473-ZP7P] (describing fetal development and noting that the cardiovascular system begins forming during the first eight weeks of pregnancy).

17 America’s first heartbeat bill, HB 125, was introduced in the Ohio state legislature on February 24, 2011, almost exactly ten years prior to S.B.’s introduction in the Texas legislature. In what has become typical fashion for heartbeat bills, HB 125 set forth two primary requirements. Firstly, it required physicians intending to provide abortions to check pregnant women’s pregnancy tissue for such so-called “fetal heartbeats” before proceeding with abortion services. Secondly, if those physicians detected fetal heartbeat[s] upon such examinations, HB 125 required those physicians to refrain from providing abortion services, except in the event of medical necessity or emergency. As the first of its kind, HB 125 garnered national media attention and generated significant public scrutiny. HB 125 seemed to openly reject the viability standard set forth in Planned Parenthood v. Casey, the case in which the Supreme Court essentially held that states are constitutionally prohibited from unduly interfering with a woman’s access to abortion care before her pregnancy tissue becomes “viable” (able to survive outside of the uterus). Although the position of the viability line differs in each individual pregnancy, it typically measures at around twenty-three or twenty-four weeks. On the other hand, pregnancy tissue typically begins emitting detectable electrical activity six or seven weeks into a pregnancy. Because viability and detectable cardiac activity occur at such diametrically different points during a pregnancy, the limitations that HB 125 imposed on abortion access were widely disparaged as unquestionably constitutional, and the Ohio legislature shelved HB 125 in 2012, disallowing its passage. See Am. Sub. H.B. 125, 129th Gen. Assemb., Reg. Sess. (Ohio 2011); see also Tara Culp-Ressler, Ohio Lawmakers Give Up On Anti-Choice Legislation, ThinkProgress (Nov. 28, 2012, 10:45 AM), https://thinkprogress.org/ohio-lawmakers-give-up-on-anti-choice-legislation-5523c8152f6e/ [https://perma.cc/F57D-XBMF].

18 See, e.g., S.C. Code Ann. § 44-41-680; Okla. Stat. Ann. tit. 63, § 1-731.3 (West); Miss. Code. Ann. § 41-41-34.1 (West); N.D. Cent. Code Ann. § 14-02.1-05.2 (West) (held unconstitutional by MKB Mgt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015); Iowa Code Ann. § 146C.2 (West) (held unconstitutional by Planned Parenthood of the Heartland, Inc. v. Reynolds, 2019 WL 312072 (Iowa Dist.).

19 See, e.g., S.C. Code Ann. § 44-41-610 (“‘Fetal heartbeat’ means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac”); Okla. Stat. Ann. tit. 63, § 1-731.3 (West) (“A ‘detectable heartbeat’ shall mean embryonic or fetal cardiac activity or the steady or repetitive rhythmic contract of the heart within the gestational sac”); Miss. Code. Ann. § 41-41-34.1 (West) (“‘fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac”).

20 Just two years after HB 125’s rise and fall, the North Dakota legislature introduced and successfully passed its own heartbeat bill: HB 1456. Like H.B. 125, H.B. 1456 rendered illegal the performance of abortion procedures on pregnant women if, upon medical examination, the pregnant woman’s embryo or fetus (or, in the words of H.B. 1456’s text, her “unborn child”) was found to emit a “detectable heartbeat.” H.B. 1456 was short-lived despite its successful passage in March 2013. During the summer of 2013, the Center for Reproductive Rights brought suit in district court against then-North Dakota Governor Jack Dalrymple, seeking a pre-enforcement injunction of H.B. 1456 The District Court issued a permanent injunction against H.B. 1456, and the 8th Circuit affirmed. Notably, the Center for Reproductive Rights filed this suit on behalf of Red River Woman’s Clinic, which was then—and remains today—the only operative abortion clinic in the state of North Dakota). See H.B. 1456, 63rd Leg. Assemb., Reg. Sess. (N.D. 2013); see also Federal Appeals Court Permanently Blocks Most Extreme Abortion Ban in the U.S., Ctr for Reproductive Rights (July 22, 2015), https://reproductiverights.org/federal-appeals-court-permanently-blocks-most-extreme-abortion-ban-in-the-u-s/ [https://perma.cc/PME7-UYDX].

21 H.B. 59, 83rd Leg. Assemb., Reg. Sess. (Tex. 2013); Tara Culp-Ressler, Texas Legislators File Radical ‘Fetal Heartbeat’ Bill to Ban Abortion After Just Six Weeks, ThinkProgress (July 18, 2013, 9:27 PM), https://archive.thinkprogress.org/texas-legislators-file-radical-fetal-heartbeat-bill-to-ban-abortion-after-just-six-weeks-e641c8c7cbd1/ [https://perma.cc/Z3G4-YAMK].

22 H.B. 1500, 86th Leg. Assemb., Reg. Sess. (Tex. 2019); see also, e.g., John Engel, Texas Republicans eye heartbeat bill reboot amid SCOTUS transition, KXAN (Sept. 21, 2020, 8:57 PM), https://www.kxan.com/news/texas-politics/texas-republicans-eye-heartbeat-bill-reboot-amid-scotus-transition/ [https://perma.cc/K7KZ-BQGH] (discussing H.B. 1500’s failure to survive committee in 2019).

23 The two most common ultrasound methods used during pregnancy are the abdominal ultrasound and the transvaginal ultrasound. Abdominal ultrasounds require the practitioner to apply gel to the pregnant person’s abdomen before gliding the ultrasound transducer over the gelled abdomen to create an ultrasound image. Especially in early pregnancy, women often need to have full bladders for abdominal ultrasounds to reveal accurate imaging. Transvaginal ultrasounds are more commonly used during the early stages of pregnancy. To perform a transvaginal ultrasound, the practitioner inserts an ultrasound transducer into the pregnant person’s vagina and rests it against the far vaginal wall. The inducer then reveals an image. Many describe transvaginal ultrasounds as uncomfortable. Ultrasound in Pregnancy, Stan. Children’s Health, https://www.stanfordchildrens.org/en/topic/default?id=ultrasound-in-pregnancy-90-P02506 [https://perma.cc/52LG-YWPA] (last visited April 11, 2022). Notably, heartbeat bills and other abortion-related laws often require practitioners to perform ultrasounds before allowing these practitioners to proceed with abortion services and require practitioners to reveal the imaging to their patients, even if their patients expressly wish not to behold the imaging. Ultrasounds are not medically necessary to the performance of effective abortion procedures, however, and both abdominal and transvaginal ultrasounds increase the costs of abortion procedures, sometimes quite significantly. Jen Russo, Mandated Ultrasound Prior to Abortion, 16 Am. Med. Assoc. J. Ethics 240, 240-44 (Apr. 2014), https://journalofethics.ama-assn.org/article/mandated-ultrasound-prior-abortion/2014-04 [https://perma.cc/J8FA-7QQR].

24 Tex. Health & Safety Code Ann. § 171.208 (West).

25 Id. at § 171.206.

26 Id. at § 171.208.

27 See id.

28 Id. at § 171.207.

29 Id.

30 Id.

31 Id. at § 171.209.

32 Id.

33 Id.

34 See Tierney Sneed, Texas’ 6-week abortion ban lets private citizens sue in an unprecedented legal approach, CNN (Sept. 1, 2021), https://www.cnn.com/2021/08/31/politics/texas-six-week-abortion-ban-supreme-court-explainer/index.html [https://perma.cc/8XHM-QPQD]; Byron Tau, Texas Abortion Ban: What to Know About the New Law, Wall St. J. (Sept. 3, 2021, 10:56 AM), https://www.wsj.com/articles/texas-abortion-law-what-to-know-as-supreme-court-allows-it-to-take-effect-11630606238 [https://perma.cc/7F98-S3H9]; Jia Tolentino, S.B. 8 and the Texas Preview of a World Without Roe v. Wade, N.Y. Times (Sept. 5, 2021), https://www.newyorker.com/news/news-desk/sb-8-and-the-texas-preview-of-a-world-without-roe-v-wade [https://perma.cc/FX4X-9J5R]; Laurence H. Tribe, What the Justice Department should do to stop the Texas abortion law, Wash. Post (Sept. 5, 2021, 2:29 PM) https://www.washingtonpost.com/opinions/2021/09/05/justice-department-stop-texas-abortion-law-laurence-tribe/ [https://perma.cc/NW6T-CVZK]; Editorial Board, The best way to fight the Texas abortion law, Wash. Post (Sept 9, 2021, 5:13 PM) https://www.washingtonpost.com/opinions/2021/09/09/best-way-fight-texas-abortion-law/ [https://perma.cc/C2HD-DLLW]; Jessica Cisneros, Texas Abortion Laws Largely Ban the Procedure and Put Women at Risk, Teen Vogue (Aug. 31, 2021), https://www.teenvogue.com/story/texas-abortion-laws-six-week-ban [https://perma.cc/S2YK-ZX6L]; Gerald E. Harmon, AMA statement on Texas SB8, Am. Med. Ass’n (Sept. 1, 2021), https://www.ama-assn.org/press-center/press-releases/ama-statement-texas-sb8 [https://perma.cc/SXU2-R3VV]; Maureen G. Phipps, Statement on Texas SB8, Am. Coll. Obstetricians & Gynecologists (Sept. 1, 2021), https://www.acog.org/news/news-releases/ 2021/09/statement-on-texas-sb8 [https://perma.cc/5VEM-SGDM]; Akayla Galloway, SisterLove Inc’s Statement on Texas Abortion Law SB8, SisterLove Inc. (Sept. 3, 2021), https://www.sisterlove.org/post/texas-abortion-law [https://perma.cc/4JDE-69DZ]; YWCA Statement on Texas Law S.B. 8, YWCA (Sept. 2, 2021), https://www.ywca.org/blog/2021/09/02/ywca-statement-on-texas-law-s-b-8/ [https://perma.cc/2P4E-ACWD]. However, unified corporate response—indeed, any corporate response—to S.B. 8’s effectuation was notably absent from the collective outcry illustrated above; see Emma Hinchliffe, Where is the business backlash on Texas’s abortion law?, Fortune (Sept. 2, 2021), https://fortune.com/2021/09/02/texas-abortion-law-business-backlash-match-group-bumble-sb8/ [https://perma.cc/SP6L-WRZA]; David Gelles, Companies Stay Quiet on Texas’ New Abortion Law, N.Y. Times (Sept. 3, 2021), https://www.nytimes.com/2021/09/03/business/companies-texas-sb8-abortion-law.html [https://perma.cc/N9FK-7XLJ].

35 The full list of plaintiffs to the case included the following: Whole Woman’s Health; Alamo City Surgery Center PLLC d/b/a Alamo Women’s Reproductive Services; Brookside Women’s Medical Center Pa d/b/a Brookside Women’s Health Center And Austin Women’s Health Center; Houston Women’s Clinic; Houston Women’s Reproductive Services; Planned Parenthood Center For Choice; Planned Parenthood Of Greater Texas Surgical Health Services; Planned Parenthood South Texas Surgical Center; Southwestern Women’s Surgery Center; Whole Woman’s Health Alliance; Allison Gilbert, M.D; Bhavik Kumar, M.D; The Afiya Center; Frontera Fund; Fund Texas Choice; Jane’s Due Process; Lilith Fund; North Texas Equal Access Fund; Reverend Erika Forbes; Reverend Daniel Kanter; and Marva Sadler. See Complaint at 1, Whole Woman’s Health et al. v. Jackson et al., No. 1:21-cv-00616 (W.D. Tex. Jul. 13, 2021).

36 Whole Woman’s Health alleged in their suit only that the law violated the Federal Constitution, rather than both the Federal and Texas Constitutions. See id. at 2.

37 Defendants’ Motion to Dismiss at 1, Whole Woman’s Health et al. v. Jackson et al., No. 1:21-cv-00616 (W.D. Tex. Aug. 4, 2021).

38 Id.

39 Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021) (“To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a ‘strong showing’ that it is ‘likely to succeed on the merits,’ that it will be ‘irreparably injured absent a stay,’ that the balance of the equities favors it, and that a stay is consistent with the public interest….The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”).

40 Id.

41 See id. (“In reaching this conclusion we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”)

42 The Fifth Circuit addressed the impropriety of the state defendants by providing that because S.B. 8 “emphatically precludes enforcement by any state, local, or agency officials,” no state entity was able to enforce the law, and so wouldn’t fall under the Young exception (remember, to be captured by the Young exception, the state official[s] being sued must have some meaningful connection to the enforcement law in question; here, the Fifth Circuit found none). The Fifth Circuit also decided that Whole Woman’s Health’s inclusion of the private citizen in the defendant consortium was improper, finding that Whole Woman’s Health’s lacked standing to sue that defendant. Whole Woman’s Health et al. v. Jackson et al., 13 F4th 434 (5th Cir. 2021).

43 Petition for a Writ of Certiorari Before Judgment, Whole Woman’s Health et al. v. Jackson et al., 2021 WL 4463052 (No. 21-463).

44 Id. at *13.

45 Whole Woman’s Health v. Jackson, 152 S. Ct. 415 (2021).

46 Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (“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…”)

47 Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201 (2001).

48 See Ex Parte Young, 209 U.S. 123 (1908)

49 Id.

50 Id.; see also Georgina Yeomans, Ordering Conduct yet Evading Review: A Simple Step Toward Preserving Federal Supremacy, 131 Yale L.J. F. 513, 525 (2021).

51 Ex Parte Young, 209 U.S. at 176.

52 Brief for Petitioner at 25, Whole Woman’s Health et al. v. Jackson et al., 142 S. Ct. 522 (2021) (No. 21-463).

53 Brief for Respondents at 16, Whole Woman’s Health et al. v. Jackson et al., 142 S. Ct. 522 (2021) (No. 21-463)

54 Id.

55 Muskrat v. United States, 2019 U.S. 345, 361 (1911).

56 I.e., the law’s prohibitions against performing, or assisting in the performance, of an abortion procedure.

57 Brief for Petitioner at 29, Whole Woman’s Health et al. v. Jackson et al., 142 S. Ct. 522 (2021) (No. 21-463).

58 Transcript of Oral Argument at 26, Whole Woman’s Health et al. v. Jackson et al., 142 S. Ct. 522 (2021) (No. 21-463).

59 Transcript of Oral Argument at 45-46, Whole Woman’s Health et al. v. Jackson et al., 142 S. Ct. 522 (2021) (No. 21-463).

60 Id.

61 Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021).

62 Id. at 530.

63 Id. at 539.

64 Id.

65 Id. at 535.

66 Id.

67 Id.

68 Id. at 531.

69 Id.

70 Id. at 539.

71 Id. at 539-40 (Thomas, J., concurring in part).

72 Id. at 545 (Roberts, Chief J., concurring in part).

73 Id.

74 Id. (Sotomayor, J., concurring in part).

75 Id. at 546.

76 Id. at 550.

77 Id. at 552.

78 In the panel’s ruling, Judge Edith Jones wrote, “The unresolved questions of state law must be certified to the Texas Supreme Court … With no limit placed by the Supreme Court’s remand, this court may utilize the ordinary appellate tools at our disposal to address the case—consistent with the Court’s opinion.” Jones was joined in her ruling by Judge Stuart Kyle Duncan. Whole Woman’s Health v. Jackson, 23 F.4th 380 (5th Cir. 2022), certified question accepted (Jan. 21, 2022), certified question answered, 22-0033, 2022 WL 726990 (Tex. Mar. 11, 2022).

79 Whole Woman’s Health v. Jackson, No. 22-0033, 2022 WL 726990 (Tex. Mar. 11, 2022).

80 Belynn Hollers, Federal challenge of Texas SB 8 abortion law doomed in wake of new state Supreme Court ruling, Dallas Morning News (Mar. 11, 2022, 10:00 AM), https://www.dallasnews.com/news/politics/2022/03/11/texas-supreme-court-say-state-regulators-cant-be-sued-to-challenge-states-restrictive-abortion-law/ [https://perma.cc/ZDV7-2X4U]. Additionally, although not discussed in this Recent Case Development, the federal challenge brought against S.B. 8 by the federal government failed as well, coming to a definitive end in December 2021. See United States v. Texas, 142 S. Ct. 522 (2021).

81 Kate Zernike & Adam Liptak, Texas Supreme Court Shuts Down Final Challenge to Abortion Law, N.Y. Times (Mar. 11, 2022), https://www.nytimes.com/2022/03/11/us/texas-abortion-law.html [https://perma.cc/WH6T-NGVN].

82 Id.

83 Alison Durkee, Texas Supreme Court Deals Blow To Abortion Law Challenge—Likely Killing Providers’ Case, Forbes (Mar. 11, 2022, 12:10 PM), https://www.forbes.com/sites/alisondurkee/2022 /03/11/texas-supreme-court-deals-blow-to-abortion-law-challenge---likely-killing-providers-case/?sh=4b9fd 95f1daf [https://perma.cc/NFQ8-D42D].

84 See, e.g., Caroline Kitchener, Lawmakers are racing to mimic the Texas abortion law in their own states. They say the bills will fly through., Lily (Oct. 19, 2021), https://www.thelily.com/lawmakers-are-racing-to-mimic-the-texas-abortion-law-in-their-own-states-they-say-the-bills-will-fly-through/ [https://perma.cc/HC85-KS6H] (noting that shortly after S.B. 8 went into effect, legislators in West Virginia, Florida, Ohio, Missouri, Arkansas, South Dakota, and Indiana publicly announced their plans to use S.B. 8 as a stencil for similar abortion bans in their own states.)

85 E.g., S.B. 1339, 55th Gen. Assemb., Reg. Sess. (Ariz. 2022); H.B. 1477-FN, 2022 Leg., Reg Sess. (N.H. 2022); H.B. 800, 2022 Leg., Reg Sess. (La. 2022).

86 H.B. 366, 66th Gen. Assemb., Reg Sess. (Idaho 2021).

87 E.g., Rachel K. Jones et al., New Evidence: Texas Residents Have Obtained Abortions in at Least 12 States That Do Not Border Texas, Guttmacher Inst. (Nov. 9, 2021), https://www.guttmacher.org/article/ 2021/11/new-evidence-texas-residents-have-obtained-abortions-least-12-states-do-not-border [https://perma.cc/6X5Y-HGN3].

88 Claire Cain Miller, Quoctrung Bui, & Margot Sanger-Katz, Abortions Fell by Half in Month After New Texas Law, Upshot (Oct. 29, 2021), https://www.nytimes.com/interactive /2021/10/29/upshot/texas-abortion-data.html [https://perma.cc/7N6L-LH4Z].

89 Abigail R. A. Aiken, et al., Association of Texas Senate Bill 8 With Requests for Self-managed Medication Abortion, Jama Network (Feb. 25, 2022), https://jamanetwork.com/journals/jamanet workopen/fullarticle/2789428 [https://perma.cc/TDP8-A2GV].