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 PaxtonWhole 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
Argued February 24, 2022
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 аdded a new subchapter H to chapter 171 of the Texas Health and Safety Code. See
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
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 thаt 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.
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.”
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 рhysicians, 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
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 mаin 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
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 оf 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.
Another provisiоn 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
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, 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 mеans 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 thе 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.
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.”
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.
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 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
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
To be sure, Texas has enacted many “other laws“—other than the Heartbeat Act—that “regulate or prohibit abortion.” The savings clause ensures that the Act may not be construed to limit the enforcement of those “other laws,” whether directly or indirectly through disciplinary actions.
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
The plaintiffs argue that the Penal Code clause expressly prohibits prosecutors from indirectly enforcing the Act‘s requirements 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 enforcemеnt 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 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
Moreover, even if the Penal Code clause did not perform this funсtion 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, 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,”
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.”
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. P‘ship, 564 U.S. 91, 106 (2011) (declining to rely on the surplusage canon becausе “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-agenсy 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
We have repeatedly recognized, when faced with legal language that appears repetitive or otherwise unnecessary, that drafters often include redundant languagе 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 royаlty 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
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 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 indirеctly. We answer the Fifth Circuit‘s certified question No.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: March 11, 2022