In re Whole Woman's Health
The Court refused to step in and stop the Fifth Circuit from further delaying the Texas SB 8 abortion ban lawsuit, allowing the state's six-week ban to remain in effect while procedural maneuvering continued.
Three justices dissented sharply, with Justice Sotomayor calling the Court's inaction 'a disaster for the rule of law' and accusing the Fifth Circuit of openly defying the Court's own December 2021 ruling.
How it got here: After the Supreme Court's December 2021 ruling that SB 8 opponents could sue certain Texas licensing officials, the Fifth Circuit certified a state-law question to the Texas Supreme Court instead of remanding to the trial court; abortion providers then asked the Supreme Court to order an immediate remand.
The Case in Depth
What happened
Texas's SB 8 law bans abortion after roughly six weeks of pregnancy and lets any private citizen — not the government — sue anyone who helps a woman get an abortion, making it harder for courts to block the law through the usual legal channels. After the Supreme Court ruled in December 2021 that a lawsuit against certain Texas medical licensing officials could proceed, the Fifth Circuit — instead of sending the case back to the trial court as expected — agreed to Texas's last-minute request to ask the Texas Supreme Court a question about state law, causing further delay while the ban remained in effect.
The question before the Court
Should the Supreme Court order the Fifth Circuit to immediately send the Texas SB 8 abortion case back to the trial court, after the Fifth Circuit stalled by asking Texas's own courts a question the Supreme Court had already decided?
Why it matters
Abortion providers and Texans seeking abortions after six weeks remained without any federal court protection for additional months while the Fifth Circuit's certification process played out. The decision signaled that states could use procedural delay tactics to extend enforcement of laws federal courts had serious constitutional concerns about, with no guarantee of quick Supreme Court intervention.
What changes now
The Fifth Circuit would wait for the Texas Supreme Court to answer the certified question before sending the case back to the trial court. Texas's six-week abortion ban remained in effect throughout. The Supreme Court was separately hearing a challenge to Roe v. Wade — which one Fifth Circuit judge had openly suggested as a reason to delay — and its ruling in that case would eventually reshape the entire legal landscape surrounding abortion rights.
What this does not decide
The denial does not decide whether Texas's SB 8 six-week abortion ban is constitutional, whether the Fifth Circuit's certification to the Texas Supreme Court was legally proper, or whether the state licensing officials can ultimately be enjoined from enforcing the law. It resolves only that the Court would not intervene at this procedural stage.
Concurrences and dissents
Dissent — Justice Breyer
Justice Breyer argued that the Fifth Circuit flatly ignored the Supreme Court's prior ruling by certifying a question to the Texas Supreme Court instead of immediately remanding the case to the trial court. He invoked the long-standing principle that lower courts must carry out a higher court's mandate without variation or delay, and stated plainly that he would have granted the writ. He deferred to Justice Sotomayor's opinion for the fuller explanation.
Dissent — Justice Sotomayor
Justice Sotomayor argued that the Fifth Circuit openly defied the Court's December 2021 mandate, which eight justices had agreed required the case to move forward quickly. She contended that Texas's certification request — raised for the first time after the Supreme Court had already ruled — was a transparent delay tactic, and that the majority's acceptance of it was the fourth time the Court had declined to protect Texans from what she called egregious constitutional violations. She called the outcome 'a disaster for the rule of law' and said it proved that even the limited relief the December 2021 ruling offered was illusory.
How the Court got there
The legal reasoning, step by step
- A writ of mandamus is an extraordinary order a higher court can issue to force a lower court to act immediately. To obtain one, the party seeking it must show the lower court clearly defied its legal obligations, that there is no other adequate way to fix the problem, and that the right being enforced is clear and beyond dispute — a high standard the dissenters argued was plainly met here.
- The Court's December 2021 ruling in Whole Woman's Health v. Jackson had established, with eight justices agreeing, that a lawsuit challenging SB 8 could proceed against certain state medical licensing officials; several justices expressly said the case should move forward 'without delay,' and one justice even accelerated the issuance of the Court's mandate.
- After that ruling, rather than sending the case back to the trial court as required, the Fifth Circuit agreed to Texas's request to certify a question of state law to the Texas Supreme Court — asking whether the licensing officials actually had authority to enforce SB 8 — even though Texas had never raised that issue at any earlier stage of the litigation before the Fifth Circuit or before the Supreme Court.
- Three dissenters argued this certification directly defied the Supreme Court's mandate and was a transparent delay tactic, pointing to a Fifth Circuit judge's suggestion at oral argument that the panel could simply 'sit on' the case until the Supreme Court ruled in a separate challenge to Roe v. Wade — rather than apply the existing law as required.
- The majority denied the writ of mandamus in a single sentence, without explanation, leaving the Fifth Circuit's certification in place and the trial court unable to consider any relief against SB 8 for the foreseeable future.