Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Courts may provide relief from government wrongs under the doctrine that sovereign immunity does not prevent suits to restrain individual government officials.1 The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.2 The doctrine is often associated with the decision in Ex parte Young.3

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiffs brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice John Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.4 He modified his position to preclude suit when an official, the governor of a state, was sued in his official capacity,5 but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a state statutory obligation did not make the suit one against the state.6 Subsequently the Court developed another more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, which evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property7 and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.8

Two of the leading cases concerned suits to prevent Southern states from defaulting on bonds.9 In Louisiana v. Jumel,10 a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.11 Then, In re Ayers12 purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.13 That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.14

Although Ayers was in all relevant points on all fours with Young,15 the Young Court held that the court had properly issued the injunction against the state attorney general, even though the state was in effect restrained as well. The Court stated that “[t]he act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity.” 16 Rather, the Court noted, “[i]t is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.” 17 Justice John Harlan was the only dissenter, arguing that in law and fact the suit was one only against the state and that the suit against the individual was a mere “fiction.” 18

Justice John Harlan’s “fiction” remains a mainstay of Eleventh Amendment jurisprudence.19 It accounts for much of the litigation brought by individuals to challenge the execution of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which the validity of state legislation in federal courts is tested prior to enforcement and thus interpretation by state courts.20 Similarly, suits to restrain state officials from contravening federal statutes21 or to compel undertaking affirmative obligations imposed by the Constitution or federal laws22 are common.

For years, the accepted rule was that the Eleventh Amendment did not preclude suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority23 or that they are not doing something required by state law.24 However, in Pennhurst State School & Hospital v. Halderman,25 the Court held that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine, first pronounced in Governor of Georgia v. Madrazo,26 that some suits against officers are actually suits against the state27 and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority.28

For example, a suit to prevent tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of the decedent foundered upon the conclusion that there could be no credible claim of a constitutional or federal law violation; state law imposed the obligation upon the officials and “in reality” the action was against the state.29 Suits against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that the state sovereign immunity prevented a suit to recover money in the state treasury,30 the Court also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.31 Beginning, however, with Great Northern Life Insurance Co. v. Read,32 the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in federal courts. In this case, the state statute provided for payment of taxes under protest and for suits afterward against state tax collection officials for recovery of taxes illegally collected, which revenues were required to be kept segregated.33

In Edelman v. Jordan,34 the Court appeared to begin to adopt new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced in dictum that a suit “seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” 35 The Court held, however, that it was permissible for federal courts to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully withheld.36 Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to imposing liabilities which must be paid from public funds in the treasury, and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their conduct in accordance with a prospective-only injunction is “an ancillary effect” which “is a permissible and often an inevitable consequence” of Ex parte Young, whereas “payment of state funds . . . as a form of compensation” to those wrongfully denied the funds in the past “is in practical effect indistinguishable in many aspects from an award of damages against the State.” 37

That Edelman, in many instances, may be a formal rather than an actual restriction is illustrated by Milliken v. Bradley,38 in which state officers were ordered to spend money from the state treasury to finance remedial educational programs to counteract effects of past school segregation; the decree, the Court said, “fits squarely within the prospective-compliance exception reaffirmed by Edelman.” 39 Although the payments were a result of past wrongs, the Court did not view them as “compensation,” inasmuch as they were not to be paid to victims of past discrimination but rather used to better conditions either for them or their successors.40 The Court also applied Edelman in Papasan v. Allain,41 holding that a claim against a state for payments representing a continuing obligation to meet trust responsibilities stemming from a nineteenth century grant of public lands for the benefit of educating the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.

In Idaho v. Coeur d’Alene Tribe of Idaho,42 the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, because of the narrowness of the Court’s holding, the closeness of the vote (5-4), and the inability of the majority to agree on a rationale. The Court held that the Tribe’s suit against state officials for a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is barred by the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders issued in the 1870s, prior to Idaho statehood. The portion of Justice Anthony Kennedy’s opinion that represented the Court’s opinion concluded that the Tribe’s “unusual” suit was “the functional equivalent of a quiet title action which implicates special sovereignty interests.” 43 The case was “unusual” because state ownership of submerged lands traces to the Constitution through the “equal footing doctrine,” and because navigable waters “uniquely implicate sovereign interests.” 44 This was therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant of the “far-reaching and invasive relief” sought by the Tribe “would diminish, even extinguish, the State’s control over a vast reach of lands and waters long . . . deemed to be an integral part of its territory.” 45

The Supreme Court faced a novel question related to state sovereign immunity in the 2021 case Whole Woman’s Health v. Jackson.46 That case involved a challenge to a Texas state law known as the Texas Heartbeat Act or S.B. 8, which allowed private citizens to sue healthcare providers and others who perform or abet abortions after a fetal heartbeat is detected. Because S.B. 8 banned some pre-viability abortions, it appeared to conflict with the Supreme Court’s abortion jurisprudence at the time it was enacted. However, because the statute was enforced through private civil suits, rather than by state actors, it was not clear whether people challenging the law could bring suit under Ex parte Young to prevent its enforcement. Some opponents of S.B. 8 brought suit under Young against the Texas attorney general, clerks and judges of Texas state courts that could hear S.B. 8 claims, and certain state medical licensing officials. The Supreme Court held that the suit could not proceed against state court judges or clerks because judicial officers are not subject to suit under Young,47 and that the plaintiffs could not sue the Texas attorney general because he lacked the power to enforce S.B. 8.48 The Court allowed the suit to proceed against the state medical licensing officials, however, concluding that those officials had some authority to enforce S.B. 8.49 Whole Woman’s Health did not fully resolve questions about the extent to which states can enact legislation that limits the exercise of constitutional rights but evades federal judicial review under Young.50

WL 2276808 (June 24, 2022). The procedural issues presented in Whole Woman’s Health remain unresolved, as legislation based on S.B. 8 may u See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.

Thus, as with the cases dealing with suits facially against the states themselves, the Court’s greater attention to state immunity in the context of suits against state officials has resulted in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have increasingly turned to the Eleventh Amendment as a means to reduce federal-state judicial conflict.51

Footnotes

1

See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949). It should be noted, however, that as a threshold issue in lawsuits against state employees or entities, courts must look to whether the sovereign is the real party in interest to determine whether state sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Court must determine “whether the remedy sought is truly against the sovereign,” and if an “action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protections.” See Lewis v. Clarke, 137 S. Ct. 1285, 1290–91 (2017). As a result, arms of the state, such as a state university, enjoy sovereign immunity. Id. at 6. Likewise, lawsuits brought against employees in their official capacity “may also be barred by sovereign immunity.” Id.

2

C. Wright, The Law of Federal Courts § 48 (4th ed. 1983). 3. 209 U.S. 123 (1908).

3

209 U.S. 23 (1908).

4

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

5

Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).

6

Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).

7

Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United States v. Lee, the first case in which the sovereign immunity of the United States was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III, “Suits Against United States Officials.” However, the Court sustained the suit against the federal officers by only a 5-4 vote, and the dissent presented the arguments that were soon to inform Eleventh Amendment cases.

8

134 U.S. 1 (1890).

9

See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.

10

107 U.S. 711 (1882).

11

“The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.” 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890).

12

123 U.S. 443 (1887).

13

123 U.S. at 500–01, 502.

14

Ayers sought to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the state and the bondholders to receive the bond coupons for tax payments. The Court asserted that the state’s contracts impliedly contained the state’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1883). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).

15

Ayers “would seem to be decisive of the Young litigation.” C. Write, The Law of Federal Courts § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952).

16

Ex parteYoung, 209 U.S. 123, 159–60 (1908). The opinion did not address the issue of how an officer “stripped of his official . . . character” could violate the Constitution, in that the Constitution restricts only “state action,” but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25–26 (1960).

17

Ex parte Young, 209 U.S. 123, 159–60 (1908).

18

Ex parte Young, 209 U.S. 123, 173–74 (1908) (Harlan, J., dissenting). In the process of limiting application of Young, a Court majority referred to “the Young fiction.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).

19

E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 685 (1982).

20

See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon state through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint—constitutional, statutory, and prudential—discussed under Article III.

21

E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).

22

E.g., Whole Woman’s Health v. Jackson, No. 21-463 (2021) (citing Ex Parte Young in refusing to enjoin state court clerks and judges from enforcement of a state law); Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979).

23

E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the state under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the state’s claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices who agreed that the Eleventh Amendment applied divided 4-4 over the proper interpretation.

24

E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).

25

465 U.S. 89 (1984).

26

Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).

27

E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).

28

In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, then such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the Eleventh Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 442.

29

Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and receiver in interpleader proceeding in which state had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).

30

Smith v. Reeves, 178 U.S. 436 (1900).

31

Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912).

32

322 U.S. 47 (1944).

33

See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).

34

415 U.S. 651 (1974).

35

415 U.S. at 663.

36

415 U.S. at 667–68. Where the money at issue is not a state’s, but a private party’s, then the distinction between retroactive and prospective obligations is not important. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002), the Court held that a challenge to a state agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 648. In fact, three justices questioned whether the Eleventh Amendment is even implicated where there is a challenge to a state’s determination of liability between private parties. Id. at 649 (Justice David Souter, concurring).

37

415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, but holding that state officials could be ordered to notify members of the class that had been denied retroactive relief in that case that they might seek back benefits by invoking state administrative procedures; the order did not direct the payment but left it to state discretion to award retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985). “Notice relief” permitted under Quern v. Jordan is consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where Congress has changed the AFDC law and the state is complying with the new law, an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment.

38

433 U.S. 267 (1977).

39

433 U.S. at 289.

40

433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978) (affirming order to pay attorney’s fees out of state treasury as an “ancillary” order because of state’s bad faith).

41

478 U.S. 265 (1986).

42

521 U.S. 261 (1997).

43

521 U.S. at 281.

44

521 U.S. at 284.

45

521 U.S. at 282.

46

142 S. Ct. 522 (2021).

47

142 S. Ct. 522 (2021).

48

Id. at 531–34.

49

Id. at 534–35. In addition to their claims against state officials under Young, the S.B. 8 challengers sued a private individual who had threatened to sue under S.B. 8; the Court held that claim could not proceed because the private defendant later disclaimed any intent to sue under S.B. 8. Id. at 537.

50

Id. at 535–37; id. at 544 (Roberts, C.J, dissenting); id. at 545 (Sotomayor, J., dissenting).

Following remand and certification of a state law question to the Texas Supreme Court, the state court ruled that Texas law did not authorize state medical licensing officials to enforce S.B. 8, Whole Woman’s Health v. Jackson, 642 S.W. 3d 569 (Tex. 2022), and the U.S. Court of Appeals for the Fifth Circuit dismissed the claims against those officials, Whole Woman’s Health v. Jackson, 31 F.4th 1004 (Mem) (5th Cir. 2022). The U.S. Supreme Court later overruled key abortion precedents that applied when it decided Whole Woman’s Health, removing the main substantive basis for constitutional challenges to S.B. 8. Dobbs v. Jackson Women’s Health Organization, No.

19-1392, 2022

WL 2276808 (June 24, 2022). The procedural issues presented in Whole Woman’s Health remain unresolved, as legislation based on S.B. 8 may u See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.

51

142 S. Ct. 522 (2021).