Whole Woman's Health v. Judge Austin Reeve Jackson Penny Clarkston Mark Lee Dickson Stephen Brint Carlton Katherine A. Thomas Cecile Erwin Young Allison Vordenbaumen Benz Ken Paxton

Supreme Court of Texas
══════════
No. 22-0033
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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
═══════════════════════════════════════
On Certified Question from the
United States Court of Appeals for the Fifth Circuit
═══════════════════════════════════════
Argued February 24, 2022
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.
1 See TEX. CONST. art. V § 3-c(a) (granting this Court “jurisdiction to
answer questions of state law certified from a federal appellate court”); TEX. R.
APP. P. 58 (governing certified questions in this Court).
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
2 Act of May 13, 2021, 87th Leg., R.S., ch. 62, 2021 Tex. Sess. Law Serv.
125 (West) (current version at TEX. HEALTH & SAFETY CODE §§ 171.005, .008,
.012(a), .201–.212, 245.011(c); TEX. CIV. PRAC. & REM. CODE § 30.022; TEX.
GOV’T CODE § 311.036); see id. § 1 (“This Act shall be known as the Texas
Heartbeat Act.”).
3 The Act provides an exception if the physician “believes a medical
emergency exists that prevents compliance.” TEX. HEALTH & SAFETY CODE
§ 171.205(a). It also provides a number of affirmative defenses, one of which
applies if the requirements will “impose an undue burden” on the woman or
group of women seeking an abortion and the defendant has standing to assert
the woman’s or women’s third-party rights. Id. § 171.209(b). That affirmative
defense, however, “is not available if the United States Supreme Court
overrules Roe v. Wade, 410 U.S. 113 (1973)[,] or Planned Parenthood v. Casey,
505 U.S. 833 (1992).” Id. § 171.209(e).
4 Specifically, the plaintiffs are Whole Woman’s Health; Alamo City
Surgery Center P.L.L.C., d/b/a Alamo Women’s Reproductive Services;
Brookside Women’s Medical Center, P.A., d/b/a Brookside Women’s Health
Center and Austin Women’s Health Center; Houston Women’s Reproductive
Services; Southwestern Women’s Surgery Center; Whole Woman’s Health
Alliance; Allison Gilbert, M.D.; Reverend Erika Forbes; Reverend Daniel
Kanter; Marva Sadler; Planned Parenthood Center for Choice; Planned
Parenthood of Greater Texas Surgical Health Services; Planned Parenthood
2
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
South Texas Surgical Center; Bhavik Kumar, M.D.; Houston Women’s Clinic;
The Afiya Center; Frontera Fund; Fund Texas Choice; Jane’s Due Process;
Lilith Fund, Incorporated; and North Texas Equal Access Fund.
5 Generally, the United States Constitution’s Eleventh Amendment and
the doctrine of sovereign immunity prohibit federal courts from exercising
jurisdiction over claims against the states, but a narrow exception permits
them to hear claims for prospective relief against state officials who have some
connection with the enforcement of a state law that is alleged to violate federal
law. See Ex parte Young, 209 U.S. 123, 157 (1908).
6 See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021). The
Supreme Court agreed to decide the case without waiting on the Fifth Circuit’s
decision. See Whole Woman’s Health v. Jackson, 142 S. Ct. 415, 415 (2021)
(granting certiorari before judgment). Although the Supreme Court affirmed
3
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
the district court’s denial of the state-agency executives’ dismissal motions, it
partially reversed the district court’s order, holding that the court lacked
jurisdiction over—and thus should have dismissed—the plaintiffs’ claims
against other defendants, including a state district judge, a state district court
clerk, the Texas attorney general, and a private individual who allegedly
intended to file suit to enforce the Act’s requirements. See Whole Woman’s
Health, 142 S. Ct. at 539.
7 The Fifth Circuit panel acknowledged that the Supreme Court held
that Texas law does not grant the state’s attorney general authority to enforce
the Act and dismissed the claims against the attorney general, and it further
acknowledged that our answer regarding the attorney general’s authority “will
have no impact on the present litigation.” Whole Woman’s Health, 23 F.4th 380,
388 n.13 (5th Cir. 2022). Nevertheless, the panel “welcome[d]” this Court’s
answer regarding the attorney general’s enforcement authority. Id.8 The plaintiffs objected to certification, arguing that the Supreme
Court decided the issue in their favor and that the Fifth Circuit’s only option
was to remand the case to the district court. Id. at 383. A split Fifth Circuit
panel disagreed, concluding that the Supreme Court “did not conclusively
determine the scope of the officials’ state law duties, if any, under S[enate]
B[ill] 8,” that “the Supreme Court ordered remand in light of [the defendants’]
explicit notice that [they] would seek certification from the Fifth Circuit,” and
4
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
that this Court’s “decision interpreting state law will be controlling.” Id. at 384.
The plaintiffs then asked the Supreme Court to order the Fifth Circuit to
remand the case to the district court without certifying the question to this
Court. The Supreme Court denied that relief, In re Whole Woman’s Health, 142
S. Ct. 701 (2022), and we accepted the certified question. We limit our answer
to the certified question and do not consider or address the propriety of the
Fifth Circuit’s decision to certify it, the effect of our answer, or the merits of
the underlying claims. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59
(Tex. 2019) (“In answering certified questions, we are limited to answering only
the questions before us.”); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 349
(Tex. 1990) (“This is a very limited procedural device; we answer only the
questions certified and nothing more.”).
5
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.”
6
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
9 Subsection (j) also excludes from “any person” a “person who
impregnated the abortion patient through an act of rape, sexual assault,
incest,” or certain other criminal conduct. TEX. HEALTH & SAFETY CODE
§ 171.208(j).
10 See TEX. OCC. CODE §§ 164.001(a)–(b), .051(a)(3), (6), .052(a)(5),
.053(a)(1).
7
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
11 See id. §§ 301.101(b), .452(b)(1), (10), .453(a); 22 TEX. ADMIN. CODE
§ 217.11.
12 See TEX. OCC. CODE §§ 553.003(b)(3), 565.001(a), .002(a), 566.001(1);
22 TEX. ADMIN. CODE § 281.7(a).
13 TEX. HEALTH & SAFETY CODE §§ 243.011(a), 245.013; 25 TEX. ADMIN.
CODE § 135.4(l).
14 See TEX. OCC. CODE § 164.052(a)(16), (17)–(21); 22 TEX. ADMIN. CODE
§ 190.14(9).
15 See TEX. OCC. CODE § 164.055(a); 25 TEX. ADMIN. CODE § 139.60(l).
8
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 171.207(a) broadly and emphatically declares that
the section 171.208 civil action is the only method by which the Act’s
testing and no-heartbeat requirements may be enforced:
Notwithstanding Section 171.005 or any other law, the
requirements of this subchapter [H] shall be enforced
exclusively through the private civil actions described in
Section 171.208. No enforcement of this subchapter, and no
enforcement of Chapters 19 and 22, Penal Code, in
response to violations of this subchapter, 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.
Id. § 171.207(a) (emphases added). Unlike subsections 171.208(a) and
(h), this subsection does not merely provide that only private persons
9
may bring a section 171.208 civil action and that state officers and
employees may not bring or participate as a party in such an action. It
adds to those limitations by providing that a section 171.208 civil action
is the exclusive method to enforce subchapter H’s requirements.
Another provision of Senate Bill 8—specifically, section 6—
solidifies that limitation. Before Senate Bill 8, section 171.005—one of
chapter 171’s “general provisions” located within subchapter A—
provided simply that the Texas Department of State Health Services
“shall enforce this chapter [171].” Section 6 of Senate Bill 8 amended
section 171.005 to provide that the Texas Health and Human Services
Commission, rather than the Department of State Health Services,
“shall enforce this chapter [171] except for Subchapter H, which shall be
enforced exclusively through the private civil enforcement actions
described by Section 171.208 and may not be enforced by the
commission.” Id. § 171.005 (emphasis added). Like the exclusive-
enforcement provision in section 171.207(a), section 171.005
unambiguously confirms that the only way to enforce subchapter H is
by filing a civil action under section 171.208.
The plaintiffs contend that these provisions merely make a
section 171.208 civil action the “exclusive means for directly enforcing
Sub-chapter H” and do not preclude indirect enforcement through the
“enforcement of other laws in response to a violation of Sub-chapter H.”
[Emphasis added.] But this argument trips over its own logic. If a section
171.208 civil action constitutes the method for “directly” enforcing the
Act’s requirements and other actions (like disciplinary proceedings)
constitute methods for “indirectly” enforcing the Act’s requirements,
10
then by definition, the section 171.208 civil action is the only method for
“direct” enforcement. And if that were true, there would be no need to
include any provision (much less two separate provisions) stating that
the requirements “shall be [directly] enforced exclusively through” a
section 171.208 civil action.
But more importantly, neither of the exclusive-enforcement
provisions uses the word “directly” or implies any distinction between
direct or indirect enforcement. Instead, they both broadly declare that
subchapter H “shall be enforced exclusively through” a section 171.208
civil action. And section 171.207(a) goes even further, making a section
171.208 civil action the exclusive means for enforcing not just
subchapter H, but its “requirements.” The plaintiffs do not dispute that
a disciplinary action based on a licensee’s performance of an abortion
without first performing an “appropriate” test that does not detect a
“fetal heartbeat” would enforce the Act’s “requirements.”
We cannot rewrite the statute by adding the word “directly” or
replacing the word “requirements,” see In re G.X.H., 627 S.W.3d 288, 300
(Tex. 2021), at least in the absence of “extraordinary circumstances” and
“unmistakable” textual guidance requiring that result, Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999).
And we find no such guidance here. By unambiguously declaring a
section 171.208 civil action to be the exclusive means to enforce the Act’s
requirements, these provisions deprive the state-agency executives of
any authority they might otherwise have to enforce the requirements
through a disciplinary action.
11
B. The savings clause
The plaintiffs contend that section 171.207(b)—the Act’s so-called
“savings clause”—confirms that the Act does not prohibit enforcement
through state-agency disciplinary proceedings. Section 171.207(b)
provides, in relevant part, that section 171.207(a) “may not be construed
to . . . limit the enforceability of any other laws that regulate or prohibit
abortion.” TEX. HEALTH & SAFETY CODE § 171.207(b)(3) (emphasis
added). The plaintiffs contend this savings clause preserves the state-
agency executives’ authority to enforce the Act’s requirements because
the laws that authorize them to take disciplinary actions against
licensees who perform “criminal abortions” or abortions that violate
some other law 16 are themselves laws that “regulate or prohibit
abortion.”
Senate Bill 8 does not define the terms “regulate” or “prohibit,”
but the parties agree that, under their common, ordinary meanings, to
“regulate” means to “control (an activity or process) esp[ecially] through
the implementation of rules,” and to “prohibit” means to “forbid by law”
or to “prevent, preclude, or severely hinder.” Regulate & Prohibit,
BLACK’S LAW DICTIONARY (11th ed. 2019). But the savings clause applies
not just to “other laws that regulate or prohibit,” but to “other laws that
regulate or prohibit abortion,” and the parties dispute whether the laws
that empower the state-agency executives to discipline licensees for
violations of other laws that regulate or prohibit abortions are
themselves laws that regulate or prohibit abortions.
16 See, e.g., TEX. OCC. CODE §§ 164.052(a)(16), (17)–(21), .055(a).
12
We conclude that they are not. In reaching this conclusion, we
find guidance in the Supreme Court’s recognition that, “in order to
regulate” a particular subject, “a law must not just have an impact on”
the subject, “but must be specifically directed toward” that subject. Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987) (addressing whether a
law “regulates insurance” for purposes of ERISA preemption). 17 For
example, under this “common-sense view of the word ‘regulates,’” id.,laws that are “directed specifically at the insurance industry” and are
“applicable only to insurance contracts” may be laws that “regulate
insurance.” Cisneros v. UNUM Life Ins. Co. of Am., 134 F.3d 939, 945
(9th Cir. 1998). But common-law doctrines “not specifically directed
toward the insurance industry,” Phx. Mut. Life Ins. Co. v. Adams, 30
F.3d 554, 561 (4th Cir. 1994), and “general laws of contract
interpretation, even when directed at the insurance industry,” Sec. Life
Ins. Co. of Am. v. Meyling, 146 F.3d 1184, 1188 (9th Cir. 1998), are not.
In addition to giving proper recognition to the stated object of the
regulation or prohibition (“abortion”), this understanding respects the
distinction between laws that “regulate” or “prohibit” particular conduct
and laws that more broadly “relate to” that conduct. See Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 385 (1992) (holding that party’s
argument that statute only preempts states “from prescribing rates,
routes, or services . . . simply reads the words ‘relating to’ out of the
statute” and that “[h]ad the statute been designed to pre-empt state law
17 See also Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341–
42 (2003); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365–66 (2002);
Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 (1985).
13
in such a limited fashion, it would have forbidden the States to
‘regulate rates, routes, and services’”); see also Fredericksburg Care Co.
v. Perez, 461 S.W.3d 513, 528 (Tex. 2015) (holding statute that governs
agreements to arbitrate healthcare-liability claims between patients
and healthcare providers was not a statute enacted for the purpose of
“regulating the business of insurance”).
Thus, to “regulate or prohibit abortion,” a law must do more than
relate to or have an impact on abortions; it must be specifically directed
at abortions and must substantively control, forbid, preclude, or hinder
them. We agree with the state-agency executives that the general laws
that procedurally authorize them to discipline licensees who violate
Texas’s abortion-restriction laws do not themselves substantively
“regulate or prohibit abortion.” Most of these laws make no mention of
abortion at all, but instead merely authorize or require the defendants
to enforce other laws, rules, or standards that regulate or prohibit
specific conduct. 18 Even sections 164.052 and 164.055 of the Occupations
Code, which expressly refer to abortions, do not themselves specifically
regulate or prohibit abortions. See TEX. OCC. CODE §§ 164.052(a)(16),
(18)–(21), .055(a). They are specifically directed at the Medical Board,
not at abortions, and require the Board to “take an appropriate
disciplinary action” against a physician who violates other laws that do
regulate or prohibit abortion. Id.
18 See TEX. OCC. CODE §§ 164.001(a)–(b), .051(a)(3), (6), .052(a)(5),
.053(a)(1), 165.101(a), 301.101(b), .452(b)(1), (10), .453(a), 553.003(b)(3),
565.001(a), .002(a), 566.001(1); TEX. HEALTH & SAFETY CODE §§ 243.011(a),
245.013–.017; TEX. GOV’T CODE § 402.023(b); 22 TEX. ADMIN. CODE §§ 217.11,
281.7(a); 25 TEX. ADMIN. CODE § 135.4(l).
14
One of the “other laws” to which section 164.055 refers is chapter
171 of the Health and Safety Code, of which subchapter H (which
includes the testing and no-heartbeat requirements) is a part. See id.
§ 164.055(a). Based on this reference, the plaintiffs assert that section
164.055 is an “other law that regulates or prohibits abortion” by allowing
indirect enforcement through disciplinary actions, and thus falls within
the savings clause. See TEX. HEALTH & SAFETY CODE § 171.207(b)(3). But
this assertion fails to consider subsection 171.207(a)’s emphatic
declaration that the Act’s requirements “shall be enforced exclusively
through” a section 171.208 civil action, “[n]otwithstanding . . . any other
law.” Id. § 171.207(a) (emphasis added). This “notwithstanding”
language confirms that the exclusive-enforcement provisions control
over “any other law” that may conflict with its provisions. See Sunstate
Equip. Co. v. Hegar, 601 S.W.3d 685, 695 (Tex. 2020). 19 So the fact that
Senate Bill 8 did not amend section 164.055 to exclude subchapter H
from that section’s reference to chapter 171, as it did with section
171.005, is irrelevant. Under section 171.207(a), the Act’s substantive
timing and no-heartbeat requirements “shall be enforced exclusively
through” a section 171.208 civil action “notwithstanding” the fact that
section 164.055 procedurally authorizes the Medical Board to indirectly
enforce chapter 171 through disciplinary actions.
To be sure, Texas has enacted many “other laws”—other than the
Heartbeat Act—that “regulate or prohibit abortion.” The savings clause
19 See also In re Fisher, 433 S.W.3d 523, 533–34 (Tex. 2014); In re Lee,
411 S.W.3d 445, 454 (Tex. 2013); Molinet v. Kimbrell, 356 S.W.3d 407, 413 (Tex.
2011); Bala v. Maxwell, 909 S.W.2d 889, 892–93 (Tex. 1995).
15
ensures that the Act may not be construed to limit the enforcement of
those “other laws,” whether directly or indirectly through disciplinary
actions. TEX. HEALTH & SAFETY CODE § 171.207(b)(3). But the Texas
laws that procedurally authorize such indirect enforcement are not
themselves laws that substantively “regulate or prohibit abortion,”
and—notwithstanding any other law—the Act’s requirements may be
enforced only through a section 171.208 civil action.
C. The Penal Code clause and the surplusage canon
In addition to their reliance on the savings clause, the plaintiffs
contend that a clause contained within section 171.207(a) demonstrates
that the exclusive-enforcement provisions of that subsection and of
section 171.005 are not as unambiguous as they seem. Specifically, the
plaintiffs note that after subsection 171.207(a) states that the Act’s
requirements “shall be enforced exclusively” through a section 171.208
civil action, the next sentence states that “[n]o enforcement of this
subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in
response to violations of this subchapter, may be taken or threatened by”
any government actor. Id. § 171.207(a) (emphasis added). The parties
agree that the emphasized language (which we will refer to as “the Penal
Code clause”) expressly prohibits criminal prosecutions of persons who
perform an abortion without meeting the Act’s testing and no-heartbeat
requirements, even if that abortion would otherwise constitute a
homicide or assault against an “unborn child” under Penal Code
chapters 19 and 22.
The plaintiffs argue that the Penal Code clause expressly
prohibits prosecutors from indirectly enforcing the Act’s requirements
16
through a criminal prosecution. And this, they say, is important for two
reasons. First, as Justice Gorsuch observed in the Supreme Court’s
plurality opinion in this case, the Penal Code clause “suggests that the
Texas Legislature knew how to prohibit collateral enforcement
mechanisms when it adopted S[enate] B[ill] 8, and understood that it
was necessary to do so.” Whole Woman’s Health, 142 S. Ct. at 536 n.4.
And second, if the exclusive-enforcement provisions broadly prohibit
any indirect enforcement of the Act’s requirements, there would be no
need to specifically prohibit indirect enforcement through criminal
prosecutions. See id. (“To read S[enate] B[ill] 8 as barring any collateral
enforcement mechanisms without a specific exclusion would thus
threaten to render this statutory language superfluous.”). To read the
Act as broadly prohibiting all indirect enforcement actions, they
contend, would render the Penal Code clause mere surplusage, such that
the Act would bear the exact same meaning if the clause were omitted
completely.
We do not agree that construing the exclusive-enforcement
provisions to prohibit enforcement of the Act’s requirements by any
method other than a section 171.208 civil action renders the Penal Code
clause surplusage. As explained, the savings clause permits
enforcement of “other laws that restrict or prohibit abortion” despite the
Act’s exclusive-enforcement provisions. And unlike the laws that
procedurally authorize the state-agency executives to pursue
disciplinary actions against licensees based on violations of other laws
that impose substantive restrictions and prohibitions, chapters 19 and
22 of the Penal Code themselves substantively prohibit certain abortions
17
and thus constitute laws that “restrict or prohibit abortion.” 20 The Penal
Code clause confirms that, although the Act is a civil statute,
prosecutors cannot pursue criminal homicide or assault charges based
on an abortion that violates the Act’s requirements even though the
savings clause would otherwise permit such prosecutions. It thus
narrows the scope of the savings clause by barring criminal prosecutions
under Chapters 19 and 22 that are based on and “in response to
violations of” the Act’s testing and no-heartbeat requirements. Id.
§ 171.207(a).
Moreover, even if the Penal Code clause did not perform this
function and were mere surplusage, we disagree with the plaintiffs that
such a redundancy would alter the clear terms of the exclusive-
enforcement provisions. We have consistently and repeatedly
acknowledged that courts “must give effect to all words of a statute and
not treat any language as surplusage.” In re CenterPoint Energy Hous.
Elec., LLC, 629 S.W.3d 149, 159 (Tex. 2021). And we have often
expressed this surplusage canon in mandatory and inflexible terms,
20 Chapters 19 and 22 of the Texas Penal Code make it a criminal
offense to commit certain homicides or assaults against an individual. See TEX.
PENAL CODE §§ 19.01–.05, 22.01–.11. An “individual” includes “an unborn child
at every stage of gestation from fertilization until birth,” and “death” includes,
“for an individual who is an unborn child, the failure to be born alive.” TEX.
PENAL CODE § 1.07(a)(26), (49). So homicide under Chapter 19 includes causing
an unborn child not to be born alive, and assault under Chapter 22 includes
injuring an unborn child. Although these substantive prohibitions do not apply
to the death or assault of an unborn child if the conduct is “a lawful medical
procedure,” id. §§ 19.06(2), 22.12(2), an abortion performed without meeting
the Act’s testing and no-heartbeat requirements is not a lawful medical
procedure, TEX. HEALTH & SAFETY CODE § 171.204(a).
18
stating that courts “may not interpret a statute in a way that renders
any part of it meaningless,” Randol Mill Pharmacy v. Miller, 465 S.W.3d
612, 617 (Tex. 2015) (emphasis added), “must not interpret the statute
in a manner that renders any part of [it] . . . superfluous,” Columbia
Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)
(emphasis added), and “must examine and consider the entire writing in
an effort to harmonize and give effect to all the provisions of the contract
so that none will be rendered meaningless,” J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 229 (Tex. 2003) (emphasis added). We have
even referred to the canon against surplusage as a “cardinal rule of
statutory interpretation.” Waak v. Rodriguez, 603 S.W.3d 103, 108 (Tex.
2020).
But we have also repeatedly recognized that, as useful as the
surplusage canon may be, even it has its exceptions. We have explained,
for example, that we must “endeavor to afford meaning to all of a
statute’s language so none is rendered surplusage,” In re Tex. Educ.
Agency, 619 S.W.3d 679, 688 (Tex. 2021) (emphasis added), 21 and must
do so “[i]f possible,” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127, 134 (Tex. 2019), 22 “if reasonable and possible,” id., or
“[w]hen possible,” Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658,
21 See also In re Off. of Atty. Gen., 422 S.W.3d 623, 629 (Tex. 2013) (“We
must endeavor to read the statute contextually, giving effect to every word,
clause, and sentence.”).
See also Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19
22
S.W.3d 393, 402 (Tex. 2000) (“[W]e give effect to all words of a statute, and, if
possible, do not treat any statutory language as mere surplusage.” (emphasis
added)).
19
663 (Tex. 2010). And with similar caution, we have said that an
“interpretation that gives each word meaning is preferable to one that
renders one surplusage,” U.S. Metals, Inc. v. Liberty Mut. Grp., Inc., 490
S.W.3d 20, 23–24 (Tex. 2015), and that we will not “lightly presume that
the Legislature may have done a useless act,” Liberty Mut. Ins. Co. v.
Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex. 1998) (emphasis
added).
Here, it is impossible to give the Penal Code clause the full effect
the plaintiffs propose without rendering other language in the Act
superfluous or rewriting it altogether. If, as the plaintiffs assert, the
Penal Code clause confirmed that prosecutors cannot indirectly enforce
the Act’s requirements through prosecutions but the state-agency
executives could indirectly enforce the Act’s requirements through
professional-disciplinary actions, then it would not be true that the Act
and its “requirements” “shall be enforced exclusively through the private
civil enforcement actions described by Section 171.208.” TEX. HEALTH &
SAFETY CODE §§ 171.005, .207(a) (emphasis added). Unless we judicially
rewrite those emphatic and unambiguous declarations, they would
become surplusage under the plaintiffs’ proposed construction of the
Penal Code clause.
Like all canons of construction, the surplusage canon “must be
applied with judgment and discretion, and with careful regard to
context.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 176–77 (2012) (emphasis omitted).
And we cannot apply the canon when its application renders other
statutory language surplusage. See, e.g., Microsoft Corp. v. I4I Ltd.
20
P’ship, 564 U.S. 91, 106 (2011) (declining to rely on the surplusage canon
because “no interpretation” of the statute “avoids excess language”);
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011) (explaining that the
surplusage canon “applies only if verbosity and prolixity can be
eliminated by giving the offending passage, or the remainder of the text,
a competing interpretation”). Under such circumstances, application of
the canon becomes impossible, and we will not rely on it because it
cannot serve its purpose. See Moskal v. United States, 498 U.S. 103, 120
(1990) (Scalia, J., dissenting) (noting that the surplusage canon “is
sound, but its limitation (‘if possible’) must be observed”).
We are left, then, with deciding what to make of the Penal Code
clause. Even if it did not carry the independent meaning we have
described, we would agree with the state-agency executives that the
most logical conclusion, and (more importantly) the one most true to all
of the Act’s language, is that the Legislature included the clause not to
prohibit indirect enforcement that would be permitted in the clause’s
absence, but to emphasize and make it unmistakably clear that by
prohibiting all enforcement methods other than a section 171.208 civil
action, the Act even prohibits criminal prosecutions against those who
commit homicide or assault against an unborn child. 23
23 See Whole Woman’s Health, 142 S. Ct. at 541–42 (Thomas, J.,
dissenting in part) (concluding that the Penal Code clause provides a “‘specific
example’ of withheld enforcement authority alongside the Act’s ‘general’
proscription,” to “‘remove any doubt’ that criminal prosecution is unavailable”
and make the point “doubly sure” (quoting Ali v. Fed. Bureau of Prisons, 552
U.S. 214, 226–227 (2008), and Barton v. Barr, 590 U. S. —, —, 140 S. Ct. 1442,
1453 (2020))).
21
We have repeatedly recognized, when faced with legal language
that appears repetitive or otherwise unnecessary, that drafters often
include redundant language to illustrate or emphasize their intent. See,
e.g., Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 477 (Tex. 2016)
(concluding that lease language “distinctly impose[d] responsibility” on
the tenant for particular damage unless caused by the landlord, despite
broad language imposing all responsibility on the tenant for damage not
caused by the landlord, “for clarity, emphasis, or both”); Chesapeake
Expl., L.L.C. v. Hyder, 483 S.W.3d 870, 873 (Tex. 2016) (concluding that
a gas-lease provision stating that the royalty would be “free and clear of
all production and post-production costs and expenses” must “be
regarded as” either “emphasizing the cost-free nature of the gas royalty,
or as surplusage,” because “like any other royalty, the gas royalty does
not share in production costs”); In re City of Georgetown, 53 S.W.3d 328,
336 (Tex. 2001) (concluding that the legislature “repeated itself” in the
Texas Public Information Act “out of an abundance of caution, for
emphasis, or both”). In short, as we have observed, “there are times
when redundancies are precisely what the Legislature intended.” In re
Est. of Nash, 220 S.W.3d 914, 918 (Tex. 2007).
Reading all of subsection 171.207(a) together and within its
statutory context, including section 171.005, we conclude that the
surplusage canon simply cannot and does not undermine the exclusive-
enforcement provisions’ emphatic and unambiguous language. Instead
of rendering the exclusive-enforcement provisions surplusage or
judicially rewriting them in over-simplistic adherence to the typically
useful surplusage canon, we conclude that the Act makes a section
22
171.208 civil action the “exclusive” method for enforcing the Act’s
requirements and prohibits any indirect-enforcement method.
IV.
Conclusion and Answer
Senate Bill 8 provides that its requirements may be enforced by
a private civil action, that no state official may bring or participate as a
party in any such action, that such an action is the exclusive means to
enforce the requirements, and that these restrictions apply
notwithstanding any other law. Based on these provisions, we conclude
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. We answer the Fifth Circuit’s certified
question No.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: March 11, 2022
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