Texas Supreme Court Rules Licensing Boards Aren’t Eligible for Lawsuit in Abortion Ban

AUSTIN, Texas — The Texas Supreme Court ruled on Friday that abortion providers cannot sue state medical licensing boards to counteract the state’s law that bans the procedure after six weeks of pregnancy.

The case was brought by Whole Women’s Health to determine whether the law unconstitutionally restricts their rights to provide the procedure and sought an injunction prohibiting the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy and the Texas Health and Human Services Commission from enforcing its requirements.

The defendants in the case were represented by Solicitor General Judd Stone, who was appointed to the position by Attorney General Ken Paxton in January.

“If a state revoked a doctor’s license as a consequence for violating [the law], any ordinary individual would describe that as unfortunate,” Stone said during the case’s oral arguments. “[The] plaintiffs indirect enforcement theory cannot supplant the legislature’s clear no-enforcement directive.”

The unique enforcement method of the law, known as “Senate Bill 8” during its time in the legislature, allows private individuals to sue abortion providers or anyone who aids and abets an abortion procedure past six weeks of pregnancy.

The Fifth U.S. Circuit Court of Appeals asked the state Supreme Court in January to determine whether the medical licensing officials named in the lawsuit are responsible for enforcing the law and are vulnerable to being sued to block it.

Because certain provisions of the law call for disciplinary action against a licensed physician who violates the law, the plaintiffs argued the state-agency executives indirectly enforce its requirements through civil and administrative enforcement actions.

Abortion providers who break the law could have their medical license revoked for doing so.

“Unless S.B. 8 abrogates the agency defendant’s authority, it is undisputed that they can indirectly enforce [the law] by taking disciplinary or civil enforcement actions under other laws using violations of S.B. 8,” Marc Hearron, senior counsel for the Center for Reproductive Rights, said during the case’s oral arguments.

Following a brief suspension last year, The Well News reported a three-judge panel of the Fifth Circuit Court of Appeal restored the law in October, allowing its continuation while legal challenges to it were heard.

The executives of the state agencies moved to dismiss the lawsuit by contending they are in fact immune from the suit because the law does not grant them any authority to enforce its requirements.

The court’s opinion, delivered by Justice Jeff Boyd, ruled that because the provisions of the law make civil action the exclusive means of its enforcement and prohibit indirect enforcement, they cannot be named in litigation challenging the 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,” wrote Justice Jeffrey Boyd in the court’s opinion on Friday. “We answer the Fifth Circuit’s certified question ‘No.’”

Reece can be reached at reece@thewellnews.com