Page:Whole Woman's Health v. Jackson.pdf/27

4 Later on, S. B. 8 reiterates: “Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action.” §171.208(a) (emphasis added). In short, the Act repeatedly confirms that respondent licensing officials, like any other governmental officials, “hav[e] no duty at all with regard to the act,” and therefore cannot “be properly made parties to the suit.” Ex parte Young, 209 U. S., at 158.

The principal opinion does not dispute the meaning of these provisions. Instead, it finds residual enforcement authority for the licensing officials elsewhere in S. B. 8. In its saving clause, the Act provides that no court may construe S. B. 8 as “limit[ing] the enforceability of any other laws that regulate or prohibit abortion.” §171.207(b)(3). If one of these “other laws” permits a governmental official to enforce S. B. 8, the principal opinion reasons, the saving clause preserves that enforcement authority. The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through … private civil actions,” “[n]otwithstanding … any other law.” Tex. Health & Safety Code Ann. §171.207(a) (emphasis added).

Rather than introduce competing instructions in S. B. 8, I would read the Act as a “ ‘harmonious whole.’ ” Roberts v. Sea-Land Services, Inc., 566 U. S. 93, 100 (2012). By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” §171.207(b)(3) (emphasis added). Such laws include, for example, restrictions on late-term or partial-birth abortions. See §§171.044, 174.102. Section 164.055 of the Texas Occupations Code, by contrast, does not “regulate or prohibit abortion.” As the principal opinion explains, that provision