Whole Women's Health v. Jackson

• Decision Date: 25 August 2021
• Docket Number: 1:21-CV-616-RP
• Parties: WHOLE WOMEN'S HEALTH, et al., Plaintiffs, v. Judge Austin Reeve JACKSON, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

556 F.Supp.3d 595

WHOLE WOMEN'S HEALTH, et al., Plaintiffs,

v.Judge Austin Reeve JACKSON, et al., Defendants.

1:21-CV-616-RP

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

Signed August 25, 2021

J. Alexander Lawrence, Pro Hac Vice, Jamie A. Levitt, Pro Hac Vice, Morrison & Foerster LLP, Kirby Tyrrell, Pro Hac Vice, Melanie Fontes, Pro Hac Vice, Molly Rose Duane, Pro Hac Vice, Nicolas Kabat, Center for Reproductive Rights, New York, NY, Marc Hearron, Pro Hac Vice, Center for Reproductive Rights, Washington, DC, Christen Mason Hebert, Johns & Hebert PLLC, Austin, TX, for Plaintiffs Whole Woman's Health, Alamo City Surgery Center PLLC, Brookside Women's Medical Center PA, Houston Women's Reproductive Services, Southwestern Women's Surgery Center, Whole Women's Health Alliance, Allison Gilbert, M.D, Reverend Erika Forbes, Reverend Daniel Kanter, Marva Sadler.

Andre I. Segura, Andre Ivan Segura Law Office, Adriana Cecilia Pinon, ACLU Foundation of Texas, David A. Donatti, ACLU of Texas, Houston, TX, Brigitte Andrienne Amiri, Pro Hac Vice, Chelsea G. Tejada, Pro Hac Vice, Julia Kaye, Pro Hac Vice, American Civil Liberties Union Foundation, J. Alexander Lawrence, Morrison & Foerster LLP, New York, NY, Lorie Chaiten, Pro Hac Vice, American Civil Liberties Union Foundation, Chicago, IL, Marc Hearron, Center for Reproductive Rights, Washington, DC, Christen Mason Hebert, Johns & Hebert PLLC, Austin, TX, for Plaintiff Houston Women's Clinic.

Julie Murray, Pro Hac Vice, Richard Muniz, Pro Hac Vice, Planned Parenthood Federation of America, Marc Hearron, Center for Reproductive Rights, Washington, DC, Christen Mason Hebert, Johns & Hebert PLLC, Austin, TX, J. Alexander Lawrence, Morrison & Foerster LLP, New York, NY, for Plaintiffs Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Bhavik Kumar, M.D.

Marc Hearron, Center for Reproductive Rights, Washington, DC, Rupali Sharma, Lawyering Project, Portland, ME, Stephanie Toti, Lawyering Project, Brooklyn, NY, Christen Mason Hebert, Johns & Hebert PLLC, Austin, TX, J. Alexander Lawrence, Morrison & Foerster LLP, New York, NY, for Plaintiffs The Afiya Center, Frontera Fund, Fund Texas Choice, Jane's Due Process, Lilith Fund, Inc., North Texas Equal Access Fund.

Benjamin S. Walton, Beth Klusmann, Christopher D. Hilton, Halie Daniels, Natalie Deyo Thompson, Office of the Attorney General Office of the Solicitor General, Austin, TX, M. Shane McGuire, McGuire Firm, PC, Tyler, TX, for Defendant Judge Austin Reeve Jackson.

Andrew Bowman Stephens, Heather Gebelin Hacker, Hacker Stephens LLP, Austin, TX, for Defendant Penny Clarkston.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, TX, for Defendant Mark Lee Dickson.

Benjamin S. Walton, Beth Klusmann, Christopher D. Hilton, Halie Daniels, Natalie Deyo Thompson, Office of the Attorney General Office of the Solicitor General, Austin, TX, for Defendants Stephen Brint Carlton, Katherine A. Thomas, Cecile Erwin Young, Allison Vordenbaumen Benz, Ken Paxton.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before this Court are Defendants Allison Vordenbaumen Benz, Stephen Brint Carlton, Ken Paxton, Katherine A. Thomas, Cecile Erwin Young, Austin Reeve Jackson, Penny Clarkston, and Mark Lee Dickson's (together, "Defendants") motions to dismiss, (Dkts. 48, 49, 50, 51), Plaintiffs’ responses, (Dkts. 56, 57, 62), and Defendants’ replies. (Dkts. 64, 66, 67). related briefing. Having considered the parties’ briefing, the record, and the relevant law, the Court will deny the motions.

I. BACKGROUND

A. Procedural Background

Plaintiffs¹ filed the instant action on July 13, 2021, requesting declaratory and injunctive relief to prevent Senate Bill 8 ("S.B. 8"), an abortion restriction bill signed into law by Governor Greg Abbott ("Abbott") (collectively ("Texas" or the "State"), from taking effect on September 1, 2021. (Compl., Dkt. 1, at 2); S. B. 8, 87th Leg., Reg. Sess. (Tex. 2021). That same day, Plaintiffs filed a motion for summary judgment on all their claims. (Mot. Summ. J., Dkt. 19). On July 16, 2021, Plaintiffs filed a motion to certify two defendant classes of non-federal judges and clerks in Texas with jurisdiction to enforce S.B. 8.

(Mot. Certify Class, Dkt. 32). Defendants then moved to stay consideration of Plaintiffs’ pending motion for summary judgment and motion to certify class until the Court's resolution of jurisdictional challenges Defendants planned to bring in motions to dismiss, (Dkt. 39), which the Court denied in setting a briefing schedule for the pending motions after holding a conference with the parties. (Dkts. 40, 47).

After being served, Defendants filed the instant motions to dismiss Plaintiffs’ claims under the terms of the scheduling order issued by the Court. (Dkts. 48, 49, 50, 51). On August 7, 2021, Defendants Clarkston and Dickson filed a petition for writ of mandamus and emergency motion to stay with the Fifth Circuit, arguing that they should not have to respond to the merits of Plaintiffs’ claims until the jurisdictional motions to dismiss were resolved by this Court. See In re Clarkston , No. 21-50708 (5th Cir. filed Aug. 7, 2021). After entering a temporary administrative stay of this action, the Fifth Circuit denied Defendants Clarkston and Dickson's petition for mandamus on August 13, 2021. See id. In the interim, Plaintiffs filed a motion for a preliminary injunction, which is set for a hearing on August 30, 2021. (Mot. Prelim. Inj., Dkt. 53; Order, Dkt. 61). The Court then issued an amended briefing schedule to clarify that jurisdictional challenges to Plaintiffs’ suit would be reached before the merits of the claims. (Order, Dkt. 60).

B. Senate Bill 8

S.B. 8 purports to ban all abortions performed on any pregnant person² where cardiac activity has been detected in the embryo, with no exceptions for pregnancies that result from rape, sexual abuse, incest, or a fetal defect incompatible with life after birth. S.B. 8 § 3 (to be codified at Tex. Health & Safety Code § 171.204(a) ). As explained below, S.B. 8 is enforced through a dual private and public enforcement scheme, whereby private citizens are empowered to bring civil lawsuits in state courts against anyone who performs, aids and abets, or intends to participate in a prohibited abortion, see id. §§ 171.208, 210, and the State may take punitive action against the Provider Plaintiffs through existing laws and regulations triggered by a violation of S.B. 8—such as professionally disciplining a physician who performs an abortion banned under S.B. 8. See, e.g. , Tex. Occ. Code §§ 164.053(a)(1), 165.101 ; 243.011–.015, 245.012–.017; 301.10, 553.003, 565.001(a), 565.002.

1. 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"³ is present before performing an abortion. S.B. 8 § 3 (to be codified at Tex. Health & Safety Code §§ 171.203(b), 171.204(a) ). S.B. 8 further bans any abortions performed once a "fetal heartbeat" has been detected or if the physician fails to perform a test for cardiac activity within an embryo ("the six-week ban"⁴ ). Id. The six-week ban 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 an exception for "a medical emergency ... that prevents compliance." S.B. 8 § 3 (to be codified at Tex. Health & Safety Code § 171.205(a) ).

S.B. 8 holds liable anyone who performs an abortion in violation of the six-week ban, and anyone who "knowingly" aids or abets the performance of an abortion performed six weeks after LMP. Id. § 171.208(a)(1)–(2). Although S.B. 8 does not define what constitutes aiding or abetting under the statute, it specifies that paying for or reimbursing the costs of the abortion falls under the six-week ban, which applies "regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of" S.B. 8. Id. In addition, a person need not even actually take steps to "aid and abet" a prohibited abortion to be held liable under the law if that person intended to help another person obtain an abortion six weeks from the patient's LMP. Id. § 171.208(a)(3).

2. Enforcement of the Six-Week Ban

S.B. 8 is enforced against those who provide abortions or help patients obtain abortions through a dual private and public enforcement scheme. S.B. 8's centerpiece is its private enforcement scheme, which empowers private citizens to bring civil actions against anyone who allegedly performs, or aids and abets in the performance of, a banned abortion. Id. § 171.207(a).⁵ Under S.B. 8's public enforcement mechanism, state agencies and authorities are tasked with enforcing state licensing and professional codes for healthcare provides, whose provisions are triggered by violations of S.B. 8. Tex. Occ. Code §§ 164.053(a)(1), 301.101, 553.003.

Under S.B. 8's private enforcement scheme, any private citizen who is a "natural person residing in" Texas may bring suit under S.B. 8 in their county of residence and block transfer to a more appropriate venue if not consented to by all parties. See id. § 171.210(a)(4) (permitting suit in the claimant's county of residence if "the claimant is a natural person residing in" Texas); id. § 171.210(b) (providing that S.B. 8 "action may not be transferred to a different venue without the written consent of all parties.").⁶ Private citizens who prevail in civil suits brought under S.B. 8 may be awarded (1) "injunctive relief sufficient to prevent" future violations or conduct that aids or abets violations; (2) "statutory damages" to the claimant "in an amount of not less than $10,000 for each abortion" that was provided or aided and abetted; and (3) the claimant's "costs and attorney's fees." Id. § 171.208(b). A private citizen may...