Page:Whole Woman's Health v. Jackson.pdf/41

6 Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 218 (1994). “It would be an injury to [a] complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity.” Young, 209 U. S., at 160. In fact, the circumstances at hand present an even stronger need for pre-enforcement relief than in Young, given how S. B. 8 not only threatens a multiplicity of suits, but also turns state-court procedures against providers to ensure they cannot effectively defend their rights in a suit.

Under normal circumstances, providers might be able to assert their rights defensively in state court. See ante, at 15. These are not normal circumstances. S. B. 8 is structured to thwart review and result in “a denial of any hearing.” Young, 209 U. S., at 146. To that end, the law not only disclaims direct enforcement by state officials to frustrate pre-enforcement review, but also skews state-court procedures and defenses to frustrate post-enforcement review. The events of the last three months have shown that the law has succeeded in its endeavor. That is precisely what the Court in Young sought to avoid. It is therefore inaccurate to characterize the foregoing analysis as advocating “an unqualified right to pre-enforcement review of constitutional claims in federal court.” Ante, at 15. If that were so, the same charge could be leveled against the Court’s decision in Young.

In addition, state-court clerks are proper defendants in this action. This Court has long recognized that “the action of state courts and judicial officers in their official capacities is to be regarded as action of the State.” Shelley v. Kraemer, 334 U. S. 1, 14 (1948). In Shelley, private litigants sought to enforce restrictive racial covenants designed to preclude Black Americans from home ownership and to preserve residential segregation. The Court explained that these ostensibly private covenants involved state action because “but