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Whole Woman’s Health et al. v. Jackson et al.

Filing date: 07.13.2021
This case challenges a Texas law than bans abortion after six weeks of pregnancy and incentivizes individuals to sue abortion providers and anyone who helps a person obtain an abortion.

(Updated 09.23.2021) On September 23, the Center for Reproductive Rights and its partners again appealed to the U.S. Supreme Court to stop this abortion ban, which has ended almost all abortion care in Texas since it took effect on September 1. The law, S.B. 8, prohibits abortion care after approximately six weeks of pregnancy, before many know they’re pregnant, and incentivizes individuals to seek monetary penalties by suing anyone who provides an abortion or assists someone in obtaining one after the law’s limit.

On July 13, the Center and its partners filed the lawsuit challenging the law, which also includes an unprecedented provision that asks private individuals — including anti-abortion protestors with no connection to the patient — to file lawsuits seeking “enforcement” of the ban. The law creates monetary rewards for any member of the public who successfully sues an abortion provider or those who “aid and abet” someone getting an abortion after six weeks of pregnancy.

Among other claims, the lawsuit states that S.B. 8 blatantly violates Texans’ constitutional right to privacy and liberty as established by Roe v. Wade nearly 50 years ago. The law also violates the constitutional rights of abortion providers and supporters, including their right to equal protection under the law, and their First Amendment rights to free speech and access to the courts.

The plaintiffs—which include Texas abortion providers led by Whole Woman’s Health, doctors, clinic staff, abortion funds, support networks, and clergy members—asked the U.S. District Court for the Western District of Texas to block the law before taking effect on September 1.

Defendants in the lawsuit include every state court trial judge and clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and Mark Lee Dickson, Director of Right to Life East Texas, an individual who has threatened to sue under the new law. Each of these parties will have a role in enforcement of S.B. 8. 

Under S.B. 8, anyone who successfully sues another person or provider will be entitled to at least a $10,000 monetary award, an injunction preventing future violations, as well as attorney’s fees and costs. Lawsuits could be filed against both abortion providers and a broad range of people—considered by the law to be “aiders and abettors”—including a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and a member of the clergy who counsels or assists an abortion patient. People who successfully defend themselves from such lawsuits, however, are prohibited under S.B. 8 from recovering their fees and costs. 

The law attempts to evade legal accountability in court by shifting enforcement from state officials to private individuals. If permitted to take effect, abortion providers, clinic staff, and abortion funds could be saddled with endless lawsuits that consume their time and resources and prevent them from providing health care services, potentially forcing them to ultimately shut down.

On August 30, the Center for Reproductive Rights, Planned Parenthood, the Lawyering Project, the ACLU, the ACLU of Texas, and Morrison & Foerster LLP filed an emergency request with the U.S. Supreme Court asking it to block the abortion ban before the law took effect on September 1. The filing came after the Fifth Circuit Court of Appeals denied the plaintiff’s request to block the law. The Fifth Circuit also paused district court proceedings and refused to take any action to prevent the ban from going into effect. 

On September 1, S.B. 8 went into effect, ending most abortion care in the state. Late that night, in a contentious 5-4 ruling, the U.S. Supreme Court denied the emergency request to block the ban.

On September 23, and its partners again appealed to the U.S. Supreme Court to stop this unconstitutional ban, which has ended almost all abortion care in the state since it took effect.

Timeline of the case:

  • May 19: TX Gov. Greg Abbott signed Senate Bill 8 into law.
  • July 13: Plaintiffs filed the case in federal district court.
     
  • August 4-5: The defendants filed four motions to dismiss, asking the district court to end the case.
  • August 12: The federal district court judge scheduled a preliminary injunction hearing for August 30 to determine whether to block the law before it takes effect on September 1.
  • August 25: The federal district court judge denied the defendant’s motions to dismiss the case. Defendants immediately filed a notice of appeal with the Fifth Circuit, as well as a motion to stop all proceedings in the district court, including canceling the district court’s preliminary injunction hearing.
  • August 27: The Fifth Circuit Court of Appeals issued an order stopping all proceedings in the district court, including canceling the district court’s preliminary injunction hearing. The court also denied the plaintiffs’ request to expedite the appeal of the state’s motion to dismiss. Without expediting the appeal process, the law could be in effect for months before the Fifth Circuit issues a decision.
  • August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.
  • August 30: The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it can take effect on Wednesday and allow district court proceedings to resume.
  • September 1: S.B. 8 takes effect; ending most abortion care in Texas.
  • September 1: U.S. Supreme Court denies the emergency request to block the law, allowing the law to remain in effect. The case returned to the Fifth Circuit for briefing on defendants’ appeal of the district court’s denial of their motions to dismiss.
  • September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants’ appeals to “the next available oral argument panel.”
  • September 22: The Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December.
  • September 23: Plaintiffs filed a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants’ appeal on an expedited basis. If granted, the case will bypass further proceedings in the Fifth Circuit.

Center Attorneys: Marc Hearron, Molly Duane, Kirby Tyrell, Melanie Fontes

Co-Counsel/Cooperating Attorneys: Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, and Morrison & Foerster LLP

Plaintiffs: WHOLE WOMAN’S HEALTH; ALAMO CITY SURGERY CENTER PLLC d/b/a ALAMO WOMEN’S REPRODUCTIVE SERVICES; BROOKSIDE WOMEN’S MEDICAL CENTER PA d/b/a BROOKSIDE WOMEN’S HEALTH CENTER AND AUSTIN WOMEN’S HEALTH CENTER; HOUSTON WOMEN’S CLINIC; HOUSTON WOMEN’S REPRODUCTIVE SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; SOUTHWESTERN WOMEN’S SURGERY CENTER; WHOLE WOMAN’S HEALTH ALLIANCE; ALLISON GILBERT, M.D; BHAVIK KUMAR, M.D; THE AFIYA CENTER; FRONTERA FUND; FUND TEXAS CHOICE; JANE’S DUE PROCESS; LILITH FUND; NORTH TEXAS EQUAL ACCESS FUND; REVEREND ERIKA FORBES;  REVEREND DANIEL KANTER; and MARVA SADLER

Legal documents in Whole Woman’s Health v. Jackson:

Feature Stories:

Press releases:

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