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

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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

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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.

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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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