In Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, authored by Justice Breyer, the Court considered two provisions of a 2013 Texas statute, which mandated that individual abortion providers have hospital admitting privileges (the admitting-privileges provision) and that abortion facilities meet standards applicable to surgical centers (the surgical-center provision), and concluded that they imposed an undue burden on abortion access. Before turning to the constitutional questions, the Court considered whether the petitioners—a group of abortion providers—were precluded from bringing their claims on the ground that several of the petitioners previously brought an unsuccessful facial challenge to the admitting-privileges provision. The Court relied on the Restatement Second of Judgments in reversing the Fifth Circuit’s judgment to the extent that it held that the claims were barred by claim preclusion.
The Court initially pointed out that the petitioners were not bringing a facial challenge to the admitting-privileges provision, but rather, were challenging the provision as it applied to two specific abortion clinics in Texas, and agreed with the Court of Appeals’ conclusion that the as-applied claim was not barred by claim preclusion. However, the Court disagreed with the lower court’s determination that claim preclusion barred the petitioners from obtaining facial relief as a remedy for the as-applied claim, citing Restatement Second of Judgments § 24 in support of the proposition that the development of new material facts could mean that a new case and an otherwise similar previous case did not present the same claim. The court concluded that the petitioners’ post-enforcement as-applied challenge, which was filed after a large number of abortion clinics had closed, did not present “the very same claim” as their pre-enforcement facial challenge, which was filed when it was unclear how many abortion clinics would be affected.
The Court similarly rejected the lower court’s ruling as to the surgical-center provision, holding that the petitioners were not required to have brought their constitutional challenge to that provision in the prior action. The Court reasoned that the two challenges did not arise from the same transaction for purposes of claim preclusion, because the surgical-center provision and the admitting-privileges provision were separate, distinct statutory provisions, which set forth different, independent requirements with different enforcement dates.
In a dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, argued in favor of affirming the Court of Appeals’ conclusions regarding claim preclusion, reasoning, in part, that the majority’s holding was contrary to both the first Restatement of Judgments and the Restatement Second of Judgments.
As to the admitting-privileges provision, the dissenting justices contended that the petitioners’ prior facial attack and their current facial attack were the same claim under both the first Restatement of Judgments § 61, which provided that a plaintiff who was unsuccessful in a first action was precluded from maintaining a second action based on the same transaction where the evidence needed to sustain the second action would have sustained the first action, and Restatement Second of Judgments §§ 24 and 19, which provided that a valid and final personal judgment rendered in favor of a defendant barred another action by the plaintiff on a claim that arose from the same transaction or common nucleus of operative facts; the operative fact in both cases was the enactment of the admitting-privileges provision, and the fact that the petitioners now had better evidence with respect to the number of clinics that would have to close as a result of the provision than they did at the time of the first case was irrelevant.
The dissenting justices pointed to Restatement Second of Judgments §§ 1 and 25 as setting forth the hornbook rule that a plaintiff who lost in a first case could not later bring the same case because the plaintiff now had gathered new and better evidence, and argued that Restatement Second of Judgments § 24 did not support the majority’s holding that a change of circumstances permitted the petitioners to relitigate their previously unsuccessful facial challenge to the admitting-privileges provision, particularly given that, here, the petitioner’s second facial challenge was not based on new acts postdating the first suit, but rather, on the same underlying act, specifically, the enactment of the statute that allegedly posed an undue burden.
As to the surgical-center provision, the dissenting justices again cited Restatement Second of Judgments § 24 in maintaining that the petitioners’ challenges to the admitting-privileges requirement and the surgical-center requirement were part of the same transaction or series of connected transactions. The dissenting judges argued that the admitting-privileges provision and the surgical-center provision were both part of the same transaction—the enactment of the statute—and that the petitioners’ challenges to the provisions formed a convenient trial unit, noting that the petitioners themselves contended that the provisions combined to have the effect of unconstitutionally restricting access to abortions, and made no effort to separate the effects of the two provisions.
Justice Sotomayor, delivering the opinion for a unanimous Court in Simmons v. Himmelreich, 136 S. Ct. 1843, cited the Restatements of Judgments in support of the conclusion that the so-called judgment-bar provision set forth in the Federal Tort Claims Act (FTCA), in which a judgment in an FTCA suit foreclosed any future suit against individual employees, 28 U.S.C. § 2676, did not apply to a claim that was dismissed under the “exceptions” provision, which dictated that the FTCA did not apply to certain categories of claims, 28 U.S.C. § 2680(a).
The case involved two suits filed by a federal prisoner who alleged that he was severely beaten by a fellow inmate in federal prison and that the beating was the result of prison officials’ negligence, the first suit against the United States, and the second suit against individual Bureau of Prison employees. After the first suit was dismissed under the FTCA’s exceptions provision on the ground that it was a claim based upon the exercise or performance of a discretionary function, namely, deciding where to house inmates, the second suit was also dismissed as foreclosed by the FTCA’s judgment-bar provision. After the Sixth Circuit reversed, the U.S. Supreme Court affirmed unanimously. The Court reasoned, in part, that its conclusion was buttressed by analogy to the common-law doctrine of claim preclusion as set forth in the Restatements of Judgments.
The Court explained that, while a plaintiff would ordinarily have been barred from suing the United States after having sued an employee but not vice versa under the first Restatement of Judgments §§ 99 and § 96(1)(a), Comments b and d, claim-preclusion principles would not foreclose a second suit where the first suit was dismissed under the exceptions provision, which reflected the United States’ decision not to accept liability for certain types of claims, and thus acted as a “personal immunity.” Under the first Restatement of Judgments § 96, Comment g, and Restatement Second of Judgments § 51(1)(b), Comment c, dismissals for defenses that could be asserted by one party but not others did not have claim-preclusive effect.