The Texas Heartbeat Law succeeded on its last and what is expected to be the final challenge in the Whole Women’s Health v. Jackson case with a unanimous decision from the Texas Supreme Court, leaving it undefeated with essentially a court challenge score of 4-0. The victory comes with little surprise considering the Texas Supreme Court was taking up a narrow remaining question that the U.S. Supreme Court left unanswered after the Texas Heartbeat Law prevailed at the high court in December 2021. But the victory should be no surprise to those carefully tracking the legal paper trail. Since the passage of the Texas Heartbeat Law, the abortion industry chose to use their old legal strategies to attack it: attempt to enjoin the law by stopping government officials from enforcing it. But the creators of the Texas Heartbeat Law were one step ahead— they made sure the Texas Heartbeat Law was completely free of any government enforcement that would draw a claim that the government was denying an alleged “constitutional right.” The strategy of a pro-life law free of government enforcement scares the abortion industry because there is no direct government person they can pin their litigation on. Not knowing how to proceed, the abortion industry attempted to create legal doubt that the law was truly free from any government enforcement at all. SCOTUS dismissed this doubt when it came to the lawsuit’s claim against the Texas Attorney General and Judge Austin Reeve Jackson. However, the court left the remaining question on whether state agency heads of the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the Texas Health and Human Services Commission were authorized to directly or indirectly enforce the state’s new abortion-restriction requirements. The answer was an easy “no” for the Texas Supreme Court because, as the language of the law makes clear, the law relies exclusively on civil enforcement.

 

The abortion industry’s argument on why state agencies were enforcers of the Texas Heartbeat Law relied on two forms of interpretation: direct enforcement and indirect enforcement. Their main argument was that the Texas Medical Board and other listed agencies would be enforcing the Texas Heartbeat Law by revoking or denying licenses to doctors who perform an abortion in violation of the Law. However, the abortion industry’s argument of direct and indirect enforcement of the Texas Heartbeat Law by state agencies is rejected by the language in the Texas Heartbeat Law. Ultimately, the abortionists’ case became an instance of knowing what the law says but making the case that the law implies something completely different.

 

Regarding the direct enforcement interpretation, the Texas Supreme Court found this argument easy to dismiss, simply because there is no textual evidence to suggest that state agencies would enforce the law. In fact, the Texas Heartbeat Law makes it explicitly clear that state agencies cannot engage in a civil lawsuit against someone who commits an abortion. Sec. 171.208 of the law states, “an person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against an 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 though insurance or otherwise …(3) intends to engage in conduct described by subdivision (1) or (2)”.[1] The text of the Texas Heartbeat Law could not be any clearer on whether state agencies could file a lawsuit in order to enforce the Texas Heartbeat Law. Additionally, the Texas Heartbeat Law is clear that “the state” any “state official” or “district or county attorney” may not intervene as party in a civil action brought under section 171.208 (h).[2]

 

Although, it seems clear that state agency heads could not use the primary enforcement mechanism of the law, a lawsuit; the abortionists were probably more confident in their indirect enforcement argument. The abortion industry’s legal minds must have thought that they were catching the courts off-guard by suggesting that an attenuated punishment for someone being involved with an abortion under the law would be alleged enforcement of the law. Evidently, this reasoning caught SCOTUS off guard and may be the reason why this question was remanded. However, the answer is simply textual.

 

The abortion industry claims that ‘other’ laws authorize state agencies to indirectly enforce the Texas Heartbeat Law. They claim that “administrative and public civil enforcement actions” against doctors, nurses, pharmacists, and other professional licenses for performing or assisting with an abortion would be enforcing the law.[3] The immediate answer as to why this argument is wrong is because the law states that it shall be exclusively enforced by civil action. Justice Jeff Boyd immediately shuts down this argument by noting that there is nothing in the law that categorizes direct and indirect enforcement. Justice Boyd noted that “section 171.005 unambiguously confirms that the only way to enforce subchapter H is by filing a civil action under section 171.208.”[4] Furthermore, the law is very specific that the Texas Health and Human Services Commission cannot enforce the law through civil enforcement. Sec. 171.005 states the Texas Health and Human Services Commission “shall enforce this chapter expect for Subchapter H, which shall be enforced exclusively through private civil enforcement actions described by Section 171.208 and may not be enforced by the commission.”[5]

 

While the text is directly clear that the only enforcement is through lawsuits and state agencies cannot bring the lawsuits, the argument was made and suggested a question of whether theoretically there is implicit enforcement through some other action the agency can take. If you punish someone for breaking the law, aren’t you enforcing the law? Wouldn’t denying medical licenses to abortionists be considered regulating the practice? The Texas Supreme Court said that is not the case. Previous legal precedent contends that “in order to regulate a particular subject a law must not have an impact on the subject but must be specifically directed towards that subject.”[6] In other words, to regulate or prohibit an abortion a law must be specifically directed at abortions and most substantively control, forbid, preclude, or hinder them.”[7]

 

The state agencies have a statutory defined role in granting, denying, or revoking medical licenses that existed prior to the Texas Heartbeat Law. Such activity is their daily function whenever any doctor or medical professional breaks any Texas law. One point the court did not note, is that the license revocation would not be immediate as soon as an abortion is performed. Like every agency, there would be a process to be completed for the license being revoked. Therefore, the first line of justice against the doctor who performed an abortion would be the civil penalty of $10,000 that the law grants. Thus, the argument that state agencies are revoking licenses under the guidance of the Texas Heartbeat Law fails.

 

The abortion advocates lost in their final chance in the Whole Women’s Health v. Jackson case. Planned Parenthood of Greater Texas, which often uses the Texas Heartbeat Bill number “SB 8” when referring to this pro-life law, tweeted that “SB 8 will remain in place indefinitely.”[8]  This success has been widely noted, including outside of Texas as well, as Idaho Governor signed into law a Heartbeat Bill identical to SB 8 on March 23, 2022. At least seven or more states are planning to pass Texas-style Heartbeat Laws.[9] They will continue to succeed because the strength in this pro-life law is the clear and precise text. The genius structure of the Texas Heartbeat Law has created a legal sense of paranoia where abortion activists cannot be sure who to sue since any citizen can enforce the law. In essence, the genius of the law is that it grants power to the people to defend the life of the preborn. Misunderstanding and ignoring this power is in large part what caused the abortion lawyers to stumble and fail and what allowed more babies to live. More information about the Texas Heartbeat law can be found at texashearbeatlaw.com.  

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[1] Texas Health and Safety Code §171.208 (2021).

[2] Id.

[3] Whole Women’s Health v. Jackson, No. 22-0033, 1, 7  (Tex. March 11, 2022)

[4] Id. at 10.

[5] Id.

[6] Whole Women’s Health v. Jackson at 13 quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987).

[7] Whole Women’s Health v. Jackson at 14.

[8] Planned Parenthood Greater Texas(@PPTXVotes), Twitter (Mar. 11, 2022, 12:02 PM) https://twitter.com/PPTXVotes/status/1502344313438674945

[9] States planning to pass Heartbeat laws with civil enforcement: Arkansas, Florida, Kentucky, Louisiana, Ohio, Oklahoma, South Carolina, and South Dakota.

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Mary Elizabeth Castle, J.D. 

Senior Policy Advisor

Texas Values

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