United States v. Texas, 1:21-CV-796-RP

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Decision Date06 October 2021
Docket Number1:21-CV-796-RP



No. 1:21-CV-796-RP

United States District Court, W.D. Texas, Austin Division

October 6, 2021



Before the Court are the United States' Emergency Motion for a Temporary Restraining Order or Preliminary Injunction (the “Motion”), (Dkt. 8), the State of Texas's (the “State” or “Texas”) Motion to Dismiss, (Dkt. 54), the Amici States'[1] Unopposed Motion for Leave to File Brief as Amici Curiae, (Dkt. 9), the United States' Opposed Motion for Protective Order of Audiovisual Recordings, (Dkt. 36), the State's Objections to the United States' Declarations, (Dkt. 55), and Erick Graham, Jeff Tuley, and Mistie Sharp's (the “Texas Intervenors”) motion to strike lodged at the hearing, (Hr'g Tr., Dkt. 65, at 96). On October 1, 2021, the Court held a hearing at which it heard evidence and considered arguments on the United States' request for a preliminary injunction and the State's motion to dismiss. (Dkt. 61; Hr'g Tr., Dkt. 65). Having considered the parties' arguments, the evidence presented, and the relevant law, the Court issues the following order.


A person's right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action


would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that. The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state's judicial system, judges, and court officials to interfere with the right to an abortion. Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.


A. Factual Background

This case concerns State legislature's passage of Senate Bill 8 (“S.B. 8”), a sweeping anti-abortion law. See Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021). S.B. 8 purports to ban all abortions performed on any pregnant person[2] where cardiac activity has been detected in the embryo, with no exceptions for pregnancies that result from rape, sexual abuse, incest, or fetal defect incompatible with life after birth. Tex. Health & Safety Code § 171.204(a). As explained further below, S.B. 8 can be enforced through civil lawsuits by private citizens against anyone who performs, aids and abets or intends to participate in a prohibited abortion. See Id. §§ 171.208, 171.210.

1. Abortion

The Court finds that the declarations of providers Gilbert, Dkt. 8-2, Hagstrom Miller, Dkt. 8-4, and Linton, Dkt. 8-5, credibly describe the details of embryonic development.[3] Fertilization of an egg usually happens at two weeks from the first day of a patient's last menstrual period (“LMP”). At three weeks LMP, the egg implants in the uterus and pregnancy begins. An ultrasound is first able


to detect a pregnancy around four to five weeks LMP; the gestational sac is too small to detect before this time. (Gilbert Decl., Dkt. 8-2, at 8). An embryo then develops until nine weeks LMP. The embryo begins to form cells that in later stages of pregnancy will become the heart. An ultrasound during this phase will reveal a sac of fluid, sometimes with a dot inside that represents the embryo. At this early stage, certain cells produce cardiac activity, which appears on an ultrasound as “an electrical impulse that appears as a visual flicker within [the] dot.” (Id. at 6). This electrical impulse can occur “very early in pregnancy, ” as soon as six weeks LMP or sometimes sooner; the embryo does not have a fully developed heart at this time. (Id.). At approximately ten weeks LMP, the embryo develops into a fetus. The fetus does not reach viability until approximately 24 weeks, although viability is an individual medical determination. (Id. at 6). “Viability is medically understood as the point when a fetus has a reasonable likelihood of sustained survival after birth, with or without artificial support[, ]” and is “medically impossible at 6 weeks LMP . . . .” (Id. at 6-7).

The Court finds that abortion is a safe[4] and common medical procedure, based on the credible declarations of abortion providers founded on their education and experience. Most providers in Texas perform both medication and procedural abortions. A medication abortion consists of taking two medications, mifepristone and misoprostol, which initiate a process similar to a miscarriage. (Id. at 4). A procedural abortion requires a provider to conduct an abortion procedure in person on the patient. Approximately one quarter of women in the United States will have an abortion by the age of forty-five. (Id. at 8). In Texas alone, providers performed more than 50, 000


abortions last year. (Id. at 8-9).[5] The declarants credibly describe a host of reasons why people might obtain an abortion-commonly arising out of medical, [6] financial, [7] and family planning[8] concerns. In some cases, “patients choose to have an abortion because their pregnancies are the result of rape,


incest, or other intimate partner violence.” (Id. at 11).[9] Still others seek abortions after fetal anomalies are diagnosed, when such diagnoses may result in severe disabilities or death. Fetal anomalies of this nature cannot be diagnosed until significantly later than six weeks LMP, and some cannot be diagnosed until 18 or 20 weeks LMP. (See Gilbert Decl., Dkt. 8-2, at 11). Many people do not realize they are pregnant at six weeks LMP because the markers of pregnancy vary greatly across the population.[10] As a result, they cannot seek abortion care until after embryonic cardiac activity is


detectable.[11] Even so, the Court finds that “the vast majority of abortions in the United States and in Texas take place in the first 12 weeks of pregnancy”-but “most patients are at least 6 weeks LMP into their pregnancy when they make an abortion appointment.” (Gilbert Decl., Dkt 8-2, at 8).

2. Abortion Regulation in Texas

Texas law contains a number of regulations for abortion procedures antecedent to the developments in S.B. 8 at issue here. Those regulations remain in force irrespective of the constitutionality of S.B. 8. State law requires physicians to perform an ultrasound before performing an abortion on a patient. An ultrasound typically cannot detect a pregnancy before four weeks LMP, when the gestational sac becomes visible. (Id. at 4). State law also requires a series of counseling requirements to be completed, as well as imposing a 24-hour waiting period. Unless a person certifies that they live more than 100 miles from an abortion facility, they must make two trips to a clinic to complete these requirements because of the waiting period. See Tex. Health & Safety Code §§ 171.011-016. Appointments for counseling and for medication abortion must be done in person. Id.; id. § 171.063. Written parental consent or a court order are required for patients eighteen years old or younger. Id. §§ 33.001-014. The State also prohibits Medicaid coverage of abortion; most private insurers similarly refuse to cover the procedure. (See Hagstrom Miller Decl. I, Dkt. 8-4, at 4). Credible evidence establishes that these requirements create burdens for people seeking abortions. (See Gilbert Decl., Dkt. 8-2, at 12) (“Patients must coordinate transportation to the clinic, childcare for their family, lodging if they live far from a clinic, and time off from work (which may not be paid).”)).


In addition, the Texas legislature passed H.B. 2 in 2013, imposing further restrictions on abortion facilities and providers. House Bill 2, 83rd Leg., 2nd Called Sess. (Tex. 2013). That law was enjoined and ultimately overturned by the Supreme Court. See Whole Women's Health v. Hellerstedt, 136 S.Ct. 2292 (2016). But during the period of its operation, it forced many clinics to close, almost all of which have not reopened.[12] The result is that, whereas before H.B. 2 there were 44 clinics, now only 20 clinics serve the entire state. (See Hagstrom Miller Decl. I, Dkt. 8-4, at 5).[13] Similar closures arose from Governor Abbott's Executive Order shuttering clinics due to COVID-19.[14] For low-income patients, often from marginalized communities, and often facing language barriers, “significant logistical and financial burdens” on accessing abortion services existed even prior to the enactment of S.B. 8.[15]

3. Senate Bill 8

S.B. 8 imposes an almost outright ban on abortions performed after six weeks of pregnancy, as well as other anti-abortion measures meant to empower anti-abortion vigilantes and target those who support abortion care in Texas.


a. The Six-week Ban on Abortions

The cornerstone of S.B. 8 is its requirement that physicians performing abortions in Texas determine whether a “detectable fetal heartbeat” is present and bans any abortions performed if a “fetal heartbeat”[16] is detected or if the physician fails to perform a test for one. Tex. Health & Safety Code §§ 171.201(1), 171.203(b), 171.204(a). S.B. 8 empowers licensing authorities to discipline any licensed healthcare provider who perform abortions in violation of S.B. 8. Tex. Occ. Code §§ 164.053(a)(1)), 301.101, 553.003. S.B. 8 contains no exception for pregnancies that result from rape or incest, or for fetal health conditions that are incompatible with life after birth-though it does contain a narrow exception for “a medical emergency . . . that prevents compliance.” Tex. Health & Safety Code § 171.205(a).

S.B. 8 creates liability for anyone who performs an abortion in violation of the six-week ban...

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