Three months ago, the Supreme Court ruled (in Whole Woman’s Health v. Jackson) that a challenge brought by abortion providers against various defendants over enforcement of the Texas Heartbeat Act (aka S.B. 8) could proceed against state licensing officials. Justice Gorsuch’s plurality opinion on this point tentatively concluded that “at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S.B. 8.” At the same time, he acknowledged the elementary point that Texas courts are the “final arbiters” of the meaning of Texas law.
On remand, the Fifth Circuit sensibly certified to the Texas Supreme Court the question whether state licensing officials actually have authority to enforce the Heartbeat Act. In a unanimous ruling today, the Texas Supreme Court explained that the licensing officials have no such authority, direct or indirect.
The Texas Supreme Court’s ruling should lead to the dismissal of the abortion providers’ lawsuit.
The Texas Supreme Court’s ruling provides clarity on who can, and who cannot, enforce the Heartbeat Act. But, as I have explained, it is unlikely to have any real-world consequences. Texas abortion providers have been deterred from violating the Heartbeat Act by the massive monetary liability they face, especially if Roe and Casey are overturned. Relief against the licensing officials would have done nothing to alter that exposure.