Whole Woman's Health v. Jackson

• Citation: 642 S.W.3d 569
• Decision Date: 11 March 2022
• Docket Number: 22-0033
• Parties: WHOLE WOMAN'S HEALTH, et al., Plaintiffs-Appellees, v. Judge Austin Reeve JACKSON; Penny Clarkston; Mark Lee Dickson; Stephen Brint Carlton; Katherine A. Thomas; Cecile Erwin Young; Allison Vordenbaumen Benz; Ken Paxton, Defendants-Appellants
• Court: Supreme Court of Texas

642 S.W.3d 569

WHOLE WOMAN'S HEALTH, et al., Plaintiffs-Appellees,

v.Judge Austin Reeve JACKSON; Penny Clarkston; Mark Lee Dickson; Stephen Brint Carlton; Katherine A. Thomas; Cecile Erwin Young; Allison Vordenbaumen Benz; Ken Paxton, Defendants-Appellants

No. 22-0033

Supreme Court of Texas.

Argued February 24, 2022

OPINION DELIVERED: March 11, 2022

Julie A. Murray, Planned Parenthood Federation of America, for Appellees Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Kumar, Bhavik.

Marc Hearron, Center for Reproductive Rights, for Appellees Brookside Women's Medical Center, P.A., Houston Women's Reproductive Services, Forbes, Erika, Alamo City Surgery Center, P.L.L.C., Frontera Fund, North Texas Equal Access Fund, Jane's Due Process, Southwestern Women's Surgery Center, Afiya Center, Gilbert, Allison, Fund Texas Choice, Lilith Fund, Incorporated, Kanter, Daniel, Whole Women's Health Alliance.

Adriana Pinon, David Donatti, Andre Segura, American Civil Liberties Union of Texas, Houston, Julia Kaye, American Civil Liberties Union Foundation, for Appellee Houston Women's Clinic.

Beth E. Klusmann, Assistant Solicitor General, Benjamin Walton, Natalie D. Thompson, Judd E. Stone II, Office of the Attorney General, Austin, for Appellants Benz, Allison Vordenbaumen, Paxton, Ken, Young, Cecile Erwin, Carlton, Stephen Brint, Jackson, Austin Reeve, Thomas, Katherine A.

Andrew B. Stephens, Heather Gebelin Hacker, Hacker Stephens LLP, Austin, for Appellant Clarkston, Penny.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, for Appellant Dickson, Mark Lee.

J. Alexander Lawrence, Jamie A. Levitt, Morrison & Foerster LLP, Marc Hearron, Center for Reproductive Rights, for Appellee Whole Woman's Health.

Justice Boyd delivered the opinion of the Court.

We address in this case a certified question from the United States Court of Appeals for the Fifth Circuit,¹ asking whether Texas law authorizes certain state officials to directly or indirectly enforce the state's new abortion-restriction requirements. We conclude it does not.

I.Background

The Texas Legislature passed and the Governor signed Senate Bill 8—labeled the "Texas Heartbeat Act"—in 2021.² Section 3 of the Act added a new subchapter H to chapter 171 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE §§ 171.201 –.212. Subchapter H prohibits physicians from knowingly "perform[ing]" or "induc[ing]" an abortion unless they first perform an "appropriate" test and do not detect a "fetal heartbeat." Id. §§ 171.203(a)–(c), .204(a).³

The plaintiffs in this case provide and fund abortions and support women who obtain them in Texas.⁴ They filed suit in federal court requesting a declaration that the Act unconstitutionally restricts their rights and an injunction prohibiting the defendants from enforcing its requirements. The defendants include the executive director of the Texas Medical Board, the executive director of the Texas Board of Nursing, the executive director of the Texas Board of Pharmacy, and the executive commissioner of the Texas Health and Human Services Commission.

These state-agency executives moved to dismiss the lawsuit, asserting sovereign immunity, lack of standing, and other jurisdictional challenges. Pertinent to the Fifth Circuit's certified question, they argued that they are immune from the plaintiffs’ federal suit because Texas law does not grant them any authority to enforce the Act's requirements.⁵ The federal district court disagreed and denied their dismissal motions. The United States Supreme Court also disagreed, affirmed the denial of the state-agency executives’ dismissal motions, and remanded the case to the Fifth Circuit.⁶ At the state-agency executives’ request, the Fifth Circuit then certified the following question to us:

Whether Texas law authorizes the Attorney General,^{[7 ]} [the] Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207, and 171.208(a) of the Texas Health and Safety Code.

Whole Woman's Health , 23 F.4th at 389.⁸

We accepted the certified question and, like the Supreme Court, expedited briefing and oral argument. We conclude that Texas law does not authorize the state-agency executives to enforce the Act's requirements, either directly or indirectly.

II.Direct Enforcement Authority

We begin with the question of whether Texas law authorizes the state-agency executives to "directly" enforce the Act's requirements. Section 171.208 creates a private civil action to enforce the Act's requirements:

(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described by Subdivision (1) or (2).

(b) If a claimant prevails in an action brought under this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3) costs and attorney's fees.

TEX. HEALTH & SAFETY CODE § 171.208(a) – (b).

Two subsections of section 171.208 unambiguously confirm that the state-agency executives cannot bring a civil action under that section to enforce the Act's requirements. First, subsection (a) provides that the civil action it authorizes may be brought by "any person, other than an officer or employee of a state or local governmental entity in this state. " Id. § 171.208(a) (emphasis added).⁹ And second, subsection (h) provides that neither "this state," any "state official," nor any "district or county attorney" may intervene as a party in a civil action brought under section 171.208. Id. § 171.208(h).

These subsections unequivocally provide that (1) the Act's testing and no-heartbeat requirements may be enforced by a private civil action under section 171.208, and (2) no state official may bring or participate as a party in any such action. As the plaintiffs themselves concede, it is thus "clear that public officials cannot enforce the Act directly by bringing civil enforcement actions created therein."

III.Indirect Enforcement Authority

The plaintiffs contend, however, that other Texas laws authorize the state-agency executives to indirectly enforce the Act's requirements through "administrative and public civil enforcement actions" against Texas physicians, nurses, pharmacists, and other professional licensees. For example, the Texas Medical Practice Act requires the Texas Medical Board to take disciplinary action against a licensed physician (or deny a license to an applicant) who violates any state or federal law in connection with the practice of medicine.¹⁰ Other Texas laws grant similar general license-enforcement authority and obligations to the executives of the Texas Nursing Board,¹¹ the Texas Board of Pharmacy,¹² and the Texas Health and Human Services Commission.¹³

The plaintiffs contend these laws grant the state-agency executives authority to indirectly enforce the Heartbeat Act by sanctioning and disciplining professional licensees who violate it. In particular, the plaintiffs note that the Medical Practice Act and the Medical Board's rules expressly authorize and require disciplinary action against a licensee who performs, procures, induces, aids, or abets a "criminal" or illegal abortion,¹⁴ including an abortion prohibited by chapter 171.¹⁵

We agree that these laws grant the state agencies and their executives broad authority to enforce other state laws—including abortion-restriction laws—through the professional-disciplinary process, at least unless the other laws provide otherwise. But we conclude that the Heartbeat Act expressly provides otherwise. Our analysis in reaching that conclusion involves three main considerations. First, we simply apply the Act's emphatic, unambiguous, and repeated provisions declaring that the civil action section 171.208 provides is the "exclusive" method for enforcing the Act's requirements. Next, we address the plaintiffs’ contention that a "savings clause" in section 171.207(b) preserves the state-agency executives’ general power to indirectly enforce the Act's requirements through disciplinary actions. And finally, we consider the plaintiffs’ argument that the canon against surplusage precludes our construction of the exclusive-enforcement provisions because it leaves one clause in section 171.207(a) without any apparent independent meaning.

A. The exclusive-enforcement provisions

As explained, section 171.208 creates a private civil action to enforce the Act's requirements and also prohibits any state official from bringing or participating as a party in any such action. See TEX. HEALTH & SAFETY CODE § 171.208(a), (h). But the Act does much more than that.

First, section...