Cite as: 595 U. S. ____ (2022) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
IN RE WHOLE WOMAN’S HEALTH, ET AL.
ON PETITION FOR WRIT OF MANDAMUS
No. 21–962. Decided January 20, 2022
The petition for a writ of mandamus is denied.
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting from denial of mandamus.
In Whole Woman’s Health v. Jackson, 595 U. S. ___
(2021), this Court was clear. We said: “[E]ight Justices hold
this case may proceed past the motion to dismiss stage
against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms.
Young,” the state licensing-official defendants. Id., at ___
(slip op., at 17). When the mandate issued, I had thought
that the Court of Appeals would quickly remand the case to
the District Court so that it could reach the merits and en-
ter relief consistent with our ruling. After all,
“[w]hatever was before the Court, and is disposed of, is
considered as finally settled. The inferior court is
bound by the decree as the law of the case; and must
carry it into execution, according to the mandate. They
cannot vary it, or examine it for any other purpose than
execution; or give any other or further relief; or review
it upon any matter decided on appeal for error appar-
ent; or intermeddle with it, further than to settle so
much as has been remanded.” Sibbald v. United
States, 12 Pet. 488, 492 (1838).
Instead, the Court of Appeals ignored our judgment. It
kept the case and certified questions about the licensing-
official defendants to the Texas Supreme Court. See Whole
Woman’s Health v. Jackson, 2022 WL 142193, ___ F. 4th
___ (CA5 2022). As a result, an unconstitutional 6-week
abortion ban remains in effect in Texas—as it has for over
2 IN RE WHOLE WOMAN’S HEALTH
BREYER, J., dissenting
four months. For these reasons, as elaborated by JUSTICE
SOTOMAYOR, I would grant the writ petitioners seek.
I respectfully dissent.
Cite as: 595 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
IN RE WHOLE WOMAN’S HEALTH, ET AL.
ON PETITION FOR WRIT OF MANDAMUS
No. 21–962. Decided January 20, 2022
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting from denial of mandamus.
It has been over four months since Texas Senate Bill 8
(S. B. 8) took effect. The law immediately devastated access
to abortion care in Texas through a complicated private-
bounty-hunter scheme that violates nearly 50 years of this
Court’s precedents. Today, for the fourth time, this Court
declines to protect pregnant Texans from egregious viola-
tions of their constitutional rights.1 One month after direct-
ing that the petitioners’ suit could proceed in part, the
Court countenances yet another violation of its own com-
mands. Instead of stopping a Fifth Circuit panel from in-
dulging Texas’ newest delay tactics, the Court allows the
State yet again to extend the deprivation of the federal con-
stitutional rights of its citizens through procedural manip-
ulation. The Court may look the other way, but I cannot.
I
S. B. 8 amounts to a ban on abortion care after six weeks
from the last menstrual period, before many women realize
they are pregnant. See Whole Woman’s Health v. Jackson,
594 U. S. ___, ___ (2021) (SOTOMAYOR, J., dissenting) (slip
op., at 1) (Whole Woman’s Health I). The law authorizes
any person—regardless of relationship (or lack thereof ) to
the woman, provider, or procedure at issue—to sue, for at
least $10,000, anyone who provides abortion care, assists in
——————
1 See Whole Woman’s Health v. Jackson, 595 U. S. ___, ___–___ (2021)
(SOTOMAYOR, J., dissenting); United States v. Texas, 595 U. S. ___, ___–
___ (2021) (SOTOMAYOR, J., dissenting); Whole Woman’s Health v. Jack-
son, 594 U. S. ___, ___–___ (2021) (SOTOMAYOR, J., dissenting).
2 IN RE WHOLE WOMAN’S HEALTH
SOTOMAYOR, J., dissenting
the provision of such care, or intends to assist in the provi-
sion of such care after embryonic cardiac activity is detect-
able. See Whole Woman’s Health v. Jackson, 595 U. S. ___,
___–___ (2021) (SOTOMAYOR, J., dissenting) (slip op., at 2–
3) (Whole Woman’s Health II). This structure was designed
to make it more complicated for courts to enjoin the law’s
enforcement on a statewide basis. See Whole Woman’s
Health I, 594 U. S., at ___–___ (slip op., at 2–3). To maxim-
ize the burden of being sued, S. B. 8 also modifies the de-
fault rules of procedure to an extraordinary extent. See
Whole Woman’s Health II, 595 U. S., at ___–___ (slip op., at
3–4).
The petitioners, abortion providers and advocates, chal-
lenged S. B. 8 in the Western District of Texas. The defend-
ants, including several state medical licensing officials,
moved to dismiss the case. After this Court twice declined
to block S. B. 8 from taking effect, it granted certiorari be-
fore judgment to decide whether the case could proceed.
Whole Woman’s Health v. Jackson, 595 U. S. ___ (2021).
“[S]tand[ing] in the shoes of the Court of Appeals,” this
Court “review[ed] the defendants’ appeals challenging the
District Court’s order denying their motions to dismiss.”
Whole Woman’s Health II, 595 U. S., at ___ (opinion of the
Court) (slip op., at 4). The Court held suit could not proceed
against some defendants. Id., at ___–___ (slip op., at 4–11).
However, “eight Justices h[eld] th[e] case may proceed past
the motion to dismiss stage against” the licensing officials,
who had authority to enforce S. B. 8 for purposes of the mo-
tion to dismiss stage. Id., at ___ (slip op., at 17).
The eight Justices who “agree[d]” on this point, id., at ___
(ROBERTS, C. J., concurring in judgment in part and dis-
senting in part) (slip op., at 2), also made plain that the lit-
igation must continue apace. Four wrote that “the District
Court should resolve this litigation and enter appropriate
relief without delay.” Ibid. The other four stressed the “ex-
traordinary solicitude” they had given the case. Id., at ___,
Cite as: 595 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
n. 6 (opinion of the Court) (slip op., at 17, n. 6). And they
emphasized that any dispute among the eight Justices
“[wa]sn’t really about whether this case should proceed,”
but “about which particular defendants the petitioners may
sue.” Id., at ___, n. 5 (slip op., at 15, n. 5). Soon after,
JUSTICE GORSUCH granted the petitioners’ application to is-
sue the judgment forthwith, rather than waiting the stand-
ard 25 days.2
After this Court issued its judgment, however, the litiga-
tion stalled. The Fifth Circuit should have immediately re-
manded this case to the District Court, allowing it to con-
sider whether to issue preliminary relief. But Texas moved
to certify to the Supreme Court of Texas the question this
Court had just decided: whether state licensing officials had
authority under state law to enforce S. B. 8. Texas never
asked the Fifth Circuit to certify this question during its
first pass through that court, nor did it ever ask this Court
to do so. Even so, a Fifth Circuit panel indulged the request
by scheduling oral argument. Judge Higginson dissented
from the court’s decision to do so, explaining that he “d[id]
not read the Supreme Court’s judgment, especially in a case
of this magnitude and acceleration, to countenance such de-
lay.” Whole Woman’s Health v. Jackson, No. 21–50792
(Dec. 27, 2021), p. 1.
On January 3, 2022, the petitioners requested a writ of
mandamus from this Court ordering the panel below to re-
mand the case to the District Court. At argument before
the Fifth Circuit four days later, one judge on the panel
raised the notion that because this Court is considering a
challenge to Roe v. Wade, 410 U. S. 113 (1973), the panel
could “just sit on this until the end of June” rather than
fulfill its obligation to apply existing precedent. Recording
——————
2 The petitioners also asked the Court to remand the case directly to
the District Court, skipping over the Court of Appeals, but they did not
identify any previous case in which this Court had done so, nor any au-
thority under which this Court could have done so.
4 IN RE WHOLE WOMAN’S HEALTH
SOTOMAYOR, J., dissenting
of Oral Arg. in No. 21–50792 (CA5, Jan. 7, 2022), at 37:40–
38:17.
Ten days after argument, before this Court had taken any
action on the mandamus petition, the panel granted Texas’
request for certification. See Whole Woman’s Health v.
Jackson, 2022 WL 142193, *2, ___ F. 4th ___, ___ (CA5
2022). The majority professed that “the issues before [it]
[we]re not about abortion,” and it deemed certification war-
ranted primarily because the plurality and the solo dissent
in Whole Woman’s Health II had expressed some uncer-
tainty as to the best reading of state law. 2022 WL 142193,
*1–*3. Judge Higginson dissented again. He emphasized
that the delay inherent in certification was inconsistent
with this Court’s mandate. Id., at *6. He added that the
panel’s decision to certify “effectively t[old] the Court that
its opinion was advisory”; explained that Texas’ request
was untimely; and concluded that the panel’s decision gave
Texas a second bite at a reading of state law that the Fifth
Circuit had previously adopted, but this Court had rejected.
Id., at *7.
II
The panel’s actions on remand clearly defy this Court’s
judgment for the reasons ably explained by Judge Hig-
ginson. This Court could, and should, have granted a writ
of mandamus ordering the panel below to withdraw certifi-
cation and remand to the District Court. Mandamus relief
is an “extraordinary remedy” appropriate for the “excep-
tional circumstances” now before this Court, where a lower
court’s failure to follow this Court’s clear dictates has left
petitioners with “no other adequate means” to enforce their
“clear and indisputable” rights. Cheney v. United States
Dist. Court for D. C., 542 U. S. 367, 380–381 (2004) (inter-
nal quotation marks omitted).
After this Court resolved the appeal, there was no defen-
Cite as: 595 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
sible basis for the Fifth Circuit panel to delay the resump-
tion of proceedings in the District Court. Of course, “Texas
courts and not this one are the final arbiters of the meaning
of state statutory directions.” Whole Woman’s Health II,
595 U. S., at ___ (opinion of GORSUCH, J.) (slip op., at 13).
And, in appropriate cases and upon timely request, certifi-
cation is a valuable tool. It was not appropriate or timely
here. This Court had already “h[e]ld th[e] case may proceed
past the motion to dismiss stage” against the licensing offi-
cials based on the arguments before it. Id., at ___ (slip op.,
at 17). Texas, meanwhile, never asked for certification of
the question at any point before this Court decided it, de-
spite being on notice from the moment suit was filed that
the scope of the licensing officials’ state-law duties would be
at issue. Neither Texas nor the panel identify a single case
in which a lower federal court has certified a question in
such a posture. Under the circumstances at hand, Texas’
belated request was a transparent effort to impede adjudi-
cation of the merits of the petitioners’ claims. By blessing
this tactic, the panel ignored this Court’s clear message
that this case should proceed—and proceed expeditiously.
Nevertheless, the Court now denies mandamus relief.
This decision is especially troubling in view of the panel’s
misreading of Whole Woman’s Health II. As to the licensing
officials, the eight-Justice majority agreed: Suit could “pro-
ceed past the motion to dismiss stage” because, based on the
arguments presented, the licensing officials had sufficient
authority to enforce S. B. 8. Ibid.; see also id., at ___ (opin-
ion of ROBERTS, C. J.) (slip op., at 2) (“agree[ing]” and citing
the state statute on which the principal opinion had relied).
Despite this express consensus, the panel incorrectly in-
sisted that there was “no majority rationale.” 2022 WL
142193, *3. Straying further still, the panel described itself
as “bound” in part by the views of the lone dissent on this
6 IN RE WHOLE WOMAN’S HEALTH
SOTOMAYOR, J., dissenting
point. Ibid.3
This Court should not accept such an egregious distortion
of its decision. I would grant the writ.
III
Contrary to the assertions of the panel below, this case is
about abortion. As evidence, one need only note the judge
below’s musings about sitting on the case until this Court
decides the pending challenge to Roe. Indeed, the entire S.
B. 8 scheme employs technical entanglements specifically
to smother the federal right to choose. Because our prece-
dents are clear that Texas cannot directly ban abortion be-
fore viability, the state legislature enacted a convoluted law
that instills terror in those who assist women exercising
their rights between 6 and 24 weeks. State officials knew
that the fear and confusion caused by this legal-procedural
labyrinth would restrict citizens from accessing constitu-
tionally protected medical care, providers from offering it,
and federal courts from restoring it. The dilatory tactics to
which this Court accedes today are consistent with, and
part of, this scheme.
I dissented in Whole Woman’s Health II because the
Court’s dismissal of the most important portions of the pe-
titioners’ claims, beyond being unfaithful to our precedents,
left all manner of constitutional rights vulnerable to nulli-
fication. 595 U. S., at ___–___ (slip op., at 10–13). I ex-
plained that the Court had “clear[ed] the way for States to
reprise and perfect Texas’ scheme in the future” in order to
target this and other rights with impunity. Id., at ___ (slip
——————
3 The panel also emphasized that this Court issued its judgment to the
Fifth Circuit rather than the District Court after Texas first disclosed its
intent to seek certification. Whole Woman’s Health v. Jackson, 2022 WL
142193, *2, ___ F. 4th ___, ___ (CA5 2022). As explained, however, the
petitioners cited no authority under which this Court could remand di-
rectly to the District Court. Even if they had, a summary order from one
Justice would not give a lower court license to dismiss a holding of this
Court.
Cite as: 595 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
op., at 12). I refrained, however, from criticizing the effi-
cacy of any relief stemming from the limited slice of this
particular case that the Court allowed to proceed. I hoped
that even with the case narrowed, the District Court could
enter some mitigating relief, though not the complete relief
to which I believed the petitioners were entitled.
I was wrong. Today’s decision shows that any hope that
Whole Woman’s Health II might protect the Constitution’s
guarantees in this case was illusory. As it turns out, Texas
did not even have to amend its law to sidestep the minimal
relief this Court left available. Instead, Texas wagered that
this Court did not mean what little it said in Whole
Woman’s Health II or, at least, that this Court would not
stand behind those words, meager as they were. That bet
has paid off. Despite this Court’s protestations over the “ex-
traordinary solicitude” it gave this case and the narrowness
of any dispute, it accepts yet another dilatory tactic by
Texas. As a result, the District Court will remain powerless
to address S. B. 8’s unconstitutional chill on abortion care,
likely for months to come.
This case is a disaster for the rule of law and a grave dis-
service to women in Texas, who have a right to control their
own bodies. I will not stand by silently as a State continues
to nullify this constitutional guarantee. I dissent.