Friday, March 11, 2022

Texas Supreme Court Decision on S.B. 8

This morning, the Supreme Court of Texas issued its decision in Whole Woman’s Health v. Jackson. It is the latest development in the litigation over Texas’s abortion law, S.B. 8. After the U.S. Supreme Court’s decisions in December (covered here), the Fifth Circuit certified to the Texas Supreme Court the following question, which implicates one narrow path for challenging S.B. 8 that the U.S. Supreme Court left open:

Whether Texas law authorizes the Attorney General, 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.

23 F.4th 380, 389 (5th Cir. 2022).

In today’s opinion by Justice Boyd, the Texas Supreme Court gives the following 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.

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