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Cite as: 595 U. S. ____ (2021)

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Opinion of Thomas, J.

SUPREME COURT OF THE UNITED STATES

No. 21–463

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. AUSTIN REEVE JACKSON, JUDGE, DISTRICT COURT OF TEXAS, 114TH DISTRICT, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[December 10, 2021]

Justice Thomas, concurring in part and dissenting in part.

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 denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.

↑ I also would hold that petitioners lack Article III standing. As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients. See June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opinion) (slip op., at 12–14). 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 enforcement by any respondent, let alone that enforcement is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410 (2013) (internal 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) (slip op., at 9) (internal 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.

[1] I also would hold that petitioners lack Article III standing. As I have explained elsewhere, abortion providers lack standing to assert the putative constitutional rights of their potential clients. See June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___–___ (2020) (dissenting opinion) (slip op., at 12–14). 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 enforcement by any respondent, let alone that enforcement is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410 (2013) (internal 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) (slip op., at 9) (internal 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.

[1]