Lawsuit Filed to Stop Texas’ Radical New Abortion Ban

EL PASO, Texas — Today, Texas abortion providers — led by Whole Woman’s Health — along with several abortion funds, practical support networks, doctors, health center staff, and clergy members filed a lawsuit to block a radical new Texas law (SB 8) set to take effect Sept. 1. The law bans abortion as early as six weeks of pregnancy and 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.

The broad range of plaintiffs — represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, and Morrison & Foerster LLP — are asking the court to block the law before it is scheduled to take effect. Defendants in the lawsuit include every state court trial judge and county clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general, and the director of Right to Life East Texas, who has already openly called for people to sue their local abortion providers under SB 8.

Among other claims, today’s lawsuit states that SB 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.

If the law takes 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, ultimately forcing them to shut down. The law will also incentivize anyone who disapproves of a patient’s abortion – a relative, an abusive partner, or even a stranger – to sue the provider and obtain a court order stopping the abortion.

Under Texas’ new ban, anyone who successfully sues another person or provider will be entitled to at least $10,000. Lawsuits could be filed against a broad range of people, including: a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; or even a member of the clergy who counsels or assists an abortion patient.

Many people do not realize they are pregnant until after six weeks. Approximately 85-90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning this law would prohibit nearly all abortions in the state. Abortion is already extremely difficult to access in Texas, where patients face countless hurdles, including a law that forces them to receive in-person, biased counseling and then wait at least 24 hours before obtaining an abortion, and a ban on telemedicine for abortion.

SB 8 effectively makes abortion care only available to people who can afford to travel out of state. That means people living on a low income and people of color will be harmed the most by this ban. In Texas, the poverty rate for Black and Latinx women is disproportionately high — 19 percent of Black women and 20 percent of Latinx women live in poverty.

While six-week bans have been blocked in eight other states, SB 8 is specifically designed to be difficult to block before it takes effect. Similar bans in other states are all explicitly enforced by government officials, allowing plaintiffs to directly sue the state officials responsible for enforcing the law. Texas has instead created an enforcement scheme of private lawsuits brought by the general public in an attempt to evade all legal accountability and prevent the federal courts from blocking this unconstitutional ban before it takes effect.

This case was filed in the U.S. District Court for the Western District of Texas on behalf of the following plaintiffs:

• Abortion Providers: Whole Woman’s Health (which operates four clinics in Texas); Whole Woman’s Health Alliance; 11 Planned Parenthood health centers throughout the state; Southwestern Women’s Surgical Center; Austin Women’s Health Center; Alamo Women’s Reproductive Services; and Houston Women’s Reproductive Services.
• Doctors: Dr. Allison Gilbert and Dr. Bhavik Kumar, who provide abortion services.
• Clergy: Reverend Erika Forbes and Reverend Daniel Kanter, who provide emotional and spiritual counseling and support to patients considering abortion.
• Abortion Funds and practical support networks: the Afiya Center; Frontera Fund; Fund Texas Choice (FTC); Jane’s Due Process; Lilith Fund; and the TEA Fund.
• Clinic staff: Marva Sadler, senior director of clinical services at Whole Woman’s Health.

Quotes from plaintiffs and litigators:

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance:

“When it comes to abortion access, we are living in two different Americas,” said Amy Hagstrom Miller, President & CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “With every barrier that has been enacted over the last 30 years in Texas, it’s nearly impossible for pregnant people to access the quality abortion care they need. The right to abortion is affirmed on paper, but that right does not exist for those who cannot afford to navigate barriers like forced 24-hour waiting periods, no Medicaid coverage, and hours of travel to a clinic. SB 8 will be the biggest barrier yet.”

Nancy Northup, president and CEO of the Center for Reproductive Rights:

If this oppressive law takes effect, it will decimate abortion access in Texas--and that’s exactly what it is designed to do. The state has put a bounty on the head of any person or entity who so much as gives a patient money for an abortion after six weeks of pregnancy, before most people know they are pregnant. Worse, it will intimidate loved ones from providing support for fear of being sued. And this is happening to Texans as we are fighting another direct challenge to Roe v. Wade in the Supreme Court, out of Mississippi. We will pursue every legal avenue we can to block this and other pernicious laws.

Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas

“Texas has long led the country in passing extremist laws intended to chip away at Texans’ right to safe, accessible abortion care—from imposing long waiting periods, to forcing people to undergo an unnecessary ultrasound, to requiring people to listen to false information about abortions under the guise of ‘health consultations.’ Now the state is trying to prevent people from getting abortions, full stop. And it allows anti-abortion zealots to threaten people with lawsuits for simply trying to help a friend or relative who needs abortion care. We won’t accept these unlawful and extremist tactics, and will continue fighting for Texans’ fundamental right to make decisions about their bodies and their lives.”

Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America:

“Texas legislators have tried for years to completely — and unconstitutionally — ban abortion. Now they’re trying a new tactic: giving complete strangers the power to sue anyone who provides or helps someone get an abortion. This new law would open the floodgates to frivolous lawsuits designed to bankrupt health centers, harass providers, and isolate patients from anyone who would treat them with compassion as they seek out health care. The cruelty is the point -– and we will not let it stand. Planned Parenthood will do everything in our power to fight S.B. 8 in court and ensure that every Texan is able to make their own decisions about their health and their future.

Rupali Sharma, senior counsel and director at the Lawyering Project:

“This cruel abortion ban isolates pregnant Texans from their communities and networks, robbing them of critical support and access to abortion care. It was specifically designed to dodge constitutional review and encourages frivolous — yet damaging — lawsuits against anyone who assists Texans in accessing constitutionally protected abortions after 6 weeks of pregnancy. We are proud to represent half a dozen abortion funds as they stand up for the clients they serve, demanding Texans be treated with the dignity and respect they deserve.”

Marsha Jones, executive director at the Afiya Center:

"Texas’ insistence on policing folx reproductive choices questions one's ability to be trusted to make decisions for ourselves and posits that we do not deserve the same bodily autonomy as others. Lawmakers have twisted the political system so far that they have taken away a right before we have time to identify the need. Abortion bans of this kind have a long-term impact on health outcomes. This is a direct threat to organizations like The Afiya Center, which serves as a safety net for Black womxn and girls seeking help with their reproductive healthcare needs, including abortion. It is also important to note, states with sweeping abortion bans also have poor maternal health outcomes, putting to bed the lie that these bans are intended to do anything, but harm the most vulnerable.”

You can read the full complaint here: https://www.aclu.org/legal-document/whole-womans-health-v-jackson-complaint

More information about this case is here: https://www.aclu.org/cases/whole-womans-health-v-jackson