Whole Woman's Health v. Paxton


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(REVISED 10.13.2020) The Center for Reproductive Rights and Planned Parenthood filed a new lawsuit in federal district court today challenging a Texas measure that bans the safest and most common method of ending a pregnancy in the second trimester. This law is part of a coordinated national strategy by anti-abortion politicians, who’ve passed more than 330 restrictions on abortion at the state level since 2010. Today’s filing comes a little over a year since the U.S. Supreme Court struck down Texas’s clinic shutdown law in Whole Woman’s Health v. Hellerstedt in a challenge brought by the Center for Reproductive Rights. The state of Texas is currently facing a $4.8 million dollar fee request from the Center for its court battle in Whole Woman’s Health.

The ban is part of SB8—the most sweeping anti-abortion bill to pass in the nation this year.  The measure—which was signed by Governor Gregg Abbott in June 2017--also doubles down on regulations finalized by the Texas Department of State Health Services (DSHS) in 2016, forcing the burial or cremation of embryonic and fetal tissue when a woman has a miscarriage management procedure, ectopic pregnancy surgery, or an abortion—regardless of her personal wishes, religious beliefs, or values.  The Center for Reproductive Rights filed a challenge to the regulations in December 2016 and a district court blocked the regulations from taking effect in late January.  The Center has requested that the same federal district court allow the plaintiffs to add a challenge to the burial or cremation requirements included in SB8 as part the ongoing litigation.

Since 2015, seven other states in addition to Texas have passed similar bans.  Laws in Louisiana, Kansas and Oklahoma have not taken effect due to challenges brought by the Center for Reproductive Rights.  The ACLU has also successfully blocked a similar ban in Alabama and the ACLU and the Center are also challenging a nearly identical ban in Arkansas.

Major mainstream medical experts like the American Congress of Obstetricians and Gynecologists oppose this type of ban, noting “these restrictions represent legislative interference at its worst: doctors will be forced, by ill-advised, unscientifically motivated policy, to provide lesser care to patients. This is unacceptable.”

Plaintiff(s): Whole Woman’s Health, Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Alamo Women’s Reproductive Services, Southwestern Women’s Surgery Center, Reproductive Services, and several individual physicians.

Attorney(s): Molly Duane, T.J. Tu, Rabia Muqaddam, Alice Wang

Co-Counsel/Cooperating Attorneys: Melissa Cohen of Planned Parenthood Federation of America, Austin attorney Patrick O’Connell and J. Alexander Lawrence of the law firm Morrison &, Foerster

Summary: We filed a lawsuit in federal district court on July 20, 2017 challenging a Texas measure banning one of the safest and most common methods of ending a pregnancy in the second trimester.  The district court entered a temporary restraining order on August 31, one day before the law was scheduled to take effect. Following a full trial on the merits of the law, the district court then issued a permanent injunction on November 22, permanently striking the law down as unconstitutional.

The State immediately appealed to the U.S. Court of Appeals for the Fifth Circuit and oral argument took place on November 5, 2018. On March 13, 2019, the Fifth Circuit issued an order stating that it was putting the appeal on hold pending the U.S. Supreme Court’s disposition of June Medical Services v. Russo, our challenge to Louisiana’s admitting privilege requirement, which was decided in June 2020.  The appellate court then requested additional briefing addressing the Supreme Court’s ruling in June Medical and the State filed a motion asking the appellate court to stay the injunction of the law pending a final decision, which we opposed.  On August 21, the appellate court denied the State's request to stay the injunction while the appeal is pending. On October 13, a three-judge panel at the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's ruling that the law is unconstitutional.