In Whole Woman’s Health v. Jackson, the Supreme Court of Texas held that certain state officials were not authorized to enforce the Texas Heartbeat Act directly or indirectly, ending abortion clinics’ pre-enforcement lawsuit challenging the Act’s constitutionality.

In 2021, the Texas Legislature passed and Governor Greg Abbott signed Senate Bill 8, known as the Texas Heartbeat Act. The Act requires physicians to test for a fetal heartbeat before performing an abortion. If a physician performs an abortion when a fetal heartbeat has been detected or without testing for a fetal heartbeat, the physician commits a violation of civil law.

The Texas Heartbeat Act contains an unusual provision stating that:

[T]he requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement . . . may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.[1]

Section 171.208 creates a private civil cause of action for damages that can be enforced by “[a]ny person, other than an officer or employee of a state or local government entity in this state.”[2]

Despite these provisions, abortion-clinic plaintiffs brought a pre-enforcement challenge to the Texas Heartbeat Act against a variety of government officials. The U.S. Supreme Court dismissed claims against several of the defendants but held that certain defendants who were state officials with responsibilities over professional licensing could be subject to a pre-enforcement suit based on the possibility that they could take enforcement actions against the plaintiffs.[3] The Court noted that its decision was “based on the limited arguments put to us at this stage” and recognized that “Texas courts and not this one are the final arbiters of the meaning of state statutory directives.”[4] The Court remanded the case to the Fifth Circuit for further proceedings consistent with its opinion.

The Fifth Circuit, upon a request by the remaining defendants, certified the following questions to the Supreme Court of Texas:

Whether Texas law authorizes the Attorney General, [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.[5]

              The Supreme Court of Texas accepted the Fifth Circuit’s certified questions. In a unanimous opinion written by Justice Jeffrey S. Boyd, the court held that the state agencies identified by the Fifth Circuit in its certified questions could not enforce the Texas Heartbeat Act.[6]

Beginning with the question of “direct” enforcement, the court held that two provisions unambiguously preclude direct enforcement by the defendants.[7] First, Texas Health & Safety Code § 171.208(a) prohibits enforcement by any “officer or employee of a state or local governmental entity in this state.” Second, Texas Health & Safety Code § 171.208(h) states that “[n]otwithstanding any other law, this state, a state official, or a district or county attorney may not intervene in an action brought under this section.” These provisions make it “clear that public officials cannot enforce the Act directly by bringing civil enforcement actions created therein.”[8]

Turning to the question of “indirect” enforcement, the court acknowledged that Texas statutes and regulations authorize and require disciplinary action against licensees who perform illegal abortions.[9] But the court held that the Texas Heartbeat Act expressly provided otherwise based on three considerations. First, sections 171.005 and 171.207(a) of the Texas Health & Safety Code describe the Act’s private cause of action as the “exclusive” method for enforcing the Act’s requirements. Second, the “savings clause” of the Act, which states that section 171.207(a) “may not be construed to . . . limit the enforceability of any other laws that regulate or prohibit abortion”[10] did not alter the court’s conclusion, because that provision preserves the enforceability of substantive regulations or prohibitions on abortion, and not procedural mechanisms of enforcement. Third, and finally, the court noted that a provision barring criminal prosecutions for violations of the Act did not constitute an implicit recognition of the availability of “indirect” enforcement, which would be contrary to the Act provisions making the Act’s private cause of action the “exclusive” method of enforcement.

For these reasons, the Supreme Court of Texas concluded that “Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.”[11] After receiving the court’s answer to its certified questions, the Fifth Circuit remanded the case to the district court with instructions to dismiss all challenges to the private enforcement provisions of the Texas Heartbeat Act and to consider whether the plaintiffs have standing to challenge the Act’s provision concerning the award of attorney’s fees.[12]

[1] Texas Health & Safety Code § 171.207(a).
[2] Texas Health & Safety Code § 171.208(a).
[3] Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021).
[4] Id. at 536.
[5] Whole Woman’s Health v. Jackson, 23 F.4th 380, 389 (5th Cir. 2022).
[6] Whole Woman’s Health v. Jackson, No. 22-0033, 2022 WL 726990 (Tex. 2022).
[7] Id. at *3.
[8] Id.
[9] Id. at *3–4.
[10] Texas Health & Safety Code § 171.207(b)(3).
[11] Whole Woman’s Health, 2020 WL 726990, at *9.
[12] Whole Woman’s Health v. Jackson, --- F.4th ----, 2022 WL 1231756 (5th Cir. 2022) (per curiam).

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