With all of the national media attention focused on the Texas Supreme Court’s response to the U.S. Fifth Circuit Court of Appeals’ certified question regarding SB 8, we feel it is important to note exactly what the Court actually did. When the Court accepts a certified question, as it did here, its opinion is limited to the precise contours of the question itself. In this case, the Fifth Circuit asked whether Texas law authorizes the OAG, several health care professional licensing boards (Medical, Nursing, and Pharmacy), or the Texas Health and Human Services Commission,“directly or indirectly, to take disciplinary or adverse action of any sort against individual or entities that violate the Texas Heartbeat Act . . .” The question further requests the Court to consider the enforcement authority granted by the Occupations Code, Texas Administrative Code, and Texas Health and Safety Code in its response.
In an opinion by Justice Boyd, the Court answered the question “No.” It reached this conclusion by performing a standard exercise in statutory construction, the same as it has done in countless other cases in the past. To that extent, there is nothing strange or different about SB 8. Whether one agrees with the policy of the bill is an entirely different matter, but the policy questions were not before the Court and are unlikely ever to reach the Court. It is true that the Court disagreed with the U.S. Supreme Court’s plurality opinion that left open the possibility of indirect enforcement of the statute by state agencies because of language in the bill expressly forbidding indirect enforcement by criminal prosecution under the Penal Code. Differing from SCOTUS, the Court found that this language was not mere surplusage, but even if it was, SB 8 makes it crystal clear that a private cause of action is the exclusive means for enforcing SB 8’s testing and no-heartbeat requirements, whether directly or indirectly.
There is no question that the Court’s response puts an end to challenges to SB 8 by abortion providers that have made the indirect enforcement argument. Those challenges will have to be made in the context of private litigation brought against providers and others under the terms of the law. Moreover, SCOTX is emphatic that any attempt by any state official or prosecuting attorney to do anything based on the requirements of SB 8 are out-of-bounds. There is nothing lurking under the surface of the bill in that respect.
As to the merits of SB 8, we have expressed and will continue to express grave concerns about giving standing to private citizens to pursue private litigation against anybody as a means of promoting this or that social or economic policy, especially on something as bitterly contested as this. What has been done in SB 8 may easily be done in other contexts and in the name of other social issues. Today it’s one thing, say fracking, tomorrow it’s climate change, the next day gun rights. We stand opposed to legislation by litigation in all of its guises. But it should be emphasized that SCOTX’s ruling on Friday has nothing at all to do with that. That ruling is a purely legal one that scrupulously follows well-established principles of statutory construction. There was nothing else the Court could have—or should have—done.