2nd part
Everyone has read the horror stories of women who are being affected by the draconian and cruel law passed by Texas to prevent women from getting abortions past a certain date (not to mention how awful it was to take away someone's rights to their own health care and treat them like non-citizens who need to be guided by ignorant politicians rather than qualified doctors. What happens if a women needs emergency care because the fetus dies or otherwise has an issue? The law in Texas is written in such a way that it is not only not specific about what should happen but puts doctors in fear they will go to jail if they help in any way, which healthcare could include an abortion. Side note that this is no way addressed the very real issues of what to do if you're female and you are raped or get pregnant through incents. That's the basis for this lawsuit which I am going to, after putting the link to it, copy and paste in full
Lawsuit
CAUSE NO. D-1-GN-23-000968
AMANDA ZURAWSKI; LAUREN MILLER;
LAUREN HALL; ANNA ZARGARIAN;
ASHLEY BRANDT; KYLIE BEATON;
JESSICA BERNARDO; SAMANTHA
CASIANO; AUSTIN DENNARD, D.O.;
TAYLOR EDWARDS; KIERSTEN HOGAN;
LAUREN VAN VLEET; ELIZABETH
WELLER; DAMLA KARSAN, M.D., on behalf
of herself and her patients; and JUDY
LEVISON, M.D., M.P.H., on behalf of herself
and her patients,
Plaintiffs,
v.
STATE OF TEXAS; ATTORNEY GENERAL
OF TEXAS; KEN PAXTON, in his official
capacity as Attorney General of Texas; TEXAS
MEDICAL BOARD; and STEPHEN BRINT
CARLTON, in his official capacity as Executive
Director of the Texas Medical Board,
Defendants.
IN THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
353RD JUDICIAL DISTRICT
PLAINTIFFS’ FIRST AMENDED VERIFIED PETITION FOR DECLARATORY
JUDGMENT AND APPLICATION FOR TEMPORARY AND PERMANENT
INJUNCTION
As a direct result of Texas’s abortion bans, Texas is in the midst of a health care crisis. Amanda Zurawski, Lauren Miller, Lauren Hall, Anna Zargarian, Ashley Brandt, Kylie Beaton,
Jessica Bernardo, Samantha Casiano, Austin Dennard, D.O., Taylor Edwards, Kiersten Hogan, Lauren Van Vleet, and Elizabeth Weller, and countless other pregnant people have been denied
necessary and potentially life-saving obstetrical care because medical professionals throughout the state fear liability under Texas’s abortion bans. Amanda was forced to wait until she was septic to receive abortion care, causing one of her fallopian tubes to become permanently closed. When Lauren M. learned one of her twins was not viable, she was forced to travel out of state for the abortion she needed to save her and her other baby’s life. Her baby was born several weeks after this case was filed. Lauren H. received a devastating fetal diagnosis two weeks after Roe was overturned, and in the chaos that followed, she was forced to travel to Seattle for an abortion. Pregnant again now, Lauren H. fears that Texas is not safe for her or her family. Anna was forced to fly across multiple states after her water broke, risking that she would go into labor or septic shock on the journey. Ashley had to travel out of state for an abortion to save the life of one of her twins, and afterwards, fearful of documenting Ashley’s abortion, her Texas physician instead described her condition as “vanishing twin syndrome.”
Yet with the threat of losing their medical licenses, fines of hundreds of thousands of dollars, and up to 99 years in prison lingering over their heads, it is no wonder that doctors and
hospitals are turning patients away—even patients in medical emergencies like Amanda, Lauren M., Lauren H., Anna, Ashley, Kylie, Jessica, Samantha, Dr. Dennard, Taylor, Kiersten, Lauren V., and Elizabeth. Plaintiffs file this First Amended Verified Petition for Declaratory Judgment and Application for a Temporary and Permanent Injunction because uncertainty surrounding the
meaning of the exception to Texas’s abortion bans, codified at Tex. Health & Safety Code §§ 170A.001-002 (the exception to the Trigger Ban) and Tex. Health & Safety Code
§§ 171.002(3), 171.203-205 (the “medical emergency” exception to Senate Bill 8 of 2021) (collectively, the “Emergent Medical Condition Exception”), has caused and threatens to cause
irreparable injury to Plaintiffs and the Physician Plaintiffs’ patients Since the filing of Plaintiffs’ Original Petition on March 6, 2023, many women have
reached out to Plaintiffs and/or Plaintiffs’ counsel to say, in the words of one, “your story is my story.” Plaintiffs’ bravery has encouraged many of these women to publicly tell their own stories
of being denied abortion care. In fact, Lauren Miller’s obstetrician, Dr. Austin Dennard, was inspired to share her own story about having to travel out of state for a medically indicated abortion
only after her patient joined this lawsuit.
Because Texas’s abortion bans continue to harm pregnant people every day, Plaintiffs amend their petition to add 8 additional plaintiffs and to urgently request temporary injunctive
relief. The new plaintiffs represent a cross section of the pregnant people who need abortion care in Texas: they include women of color, women with disabilities, survivors of intimate partner
violence, and women who struggle to make ends meet.
Specifically: Dr. Dennard, Jessica, Taylor, and Lauren V. received devastating fetal diagnoses and were forced to travel out of state for abortion care, even while the risks to their own
health increased. Dr. Dennard is pregnant again now and continues to fear for her safety being a pregnant woman in Texas. Kiersten and Elizabeth’s water broke prematurely, and they were both told to wait until they were sick enough to be eligible for abortion care. In Kiersten’s case, she was told that if she tried to leave the hospital to seek care elsewhere, she could be arrested for trying to kill her baby. Samantha and Kylie were forced to carry non-viable pregnancies to term. Samantha’s daughter passed four hours after birth, and Samantha was only able to afford a gravestone after NPR wrote a story about her and members of the public contributed to her GoFundMe. Kylie was forced to undergo a Cesarean surgery because, due to the delays in her care caused by Texas’s abortion bans, she was no longer eligible for abortion care even out of state. Kylie’s son passed the same day they were discharged from the hospital. The harms to pregnant Texans from the state’s abortion bans grow every day and should not continue. In support of their petition, Plaintiffs respectfully show the following:
INTRODUCTION
1. Abortion bans harm the health of women and pregnant people. In September 2021, Senate Bill 8 (“S.B. 8”) effectively imposed a statewide ban on abortion after approximately 6 weeks of pregnancy.1 After the U.S. Supreme Court overturned Roe v. Wade in June 2022, Texas’s near-total abortion ban took effect. Texans have suffered catastrophic harms because of those bans.
Pregnant people in Texas and throughout the country have suffered unnecessary physical and emotional pain and harm, including loss of their fertility. These pregnant people are not
hypothetical. They are not unknown. They are real people with families, many with children already, and some of them are plaintiffs in this action.
2. Local newspapers and social media abound with stories of abortion bans harming pregnant people and their families, a large number of whom live in Texas. In every person’s story,
the same themes emerge: First, abortion is necessary health care that is being denied under Texas’s civil and criminal abortion bans. Second, abortion bans are preventing pregnant people from receiving the standard of care from their medical professionals in times of crisis. And third, pervasive fear and uncertainty throughout the medical community regarding the scope of the life
and health exceptions have put patients’ lives and physicians’ liberty at grave risk.
3. Abortion bans are hindering or delaying necessary obstetrical care. And, contrary to their stated purpose of furthering life, the bans are exposing pregnant people to risks of death,
injury, and illness, including loss of fertility—making it less likely that every family who wants to bring children into the world will be able to do so and survive the experience. Medical
professionals are now telling their patients that if they want to become pregnant, they should leave Texas.
4. Plaintiffs represent only the tip of the iceberg. Since September 2021, millions of people of reproductive capacity in Texas and beyond have been denied dignified treatment as equal
1 Consistent with standard medical practice, gestational ages as used in this petition are dated from the first day of the patient’s last menstrual period (“LMP”), which is typically approximately two weeks before the estimated date of fertilization of a pregnancy.
human beings. This Court need not guess at the impact that abortion bans have. Each day, in states across the country, pregnant people like Amanda, Lauren M., Lauren H., Anna, Ashley, Kylie, Jessica, Samantha, Dr. Dennard, Taylor, Kiersten, Lauren V., and Elizabeth are being denied their ability to control their reproductive lives and to build their families according to their own values and beliefs. Medical professionals are being forced to forgo practicing their profession and fulfilling their ethical duties to patients in the face of catastrophic risks to their liberty and
livelihood. Plaintiffs’ experiences illustrate that while the stated purpose of Texas’s abortion bans may have been to promote healthy babies and families, the bans have done the opposite.
5. Plaintiffs respectfully ask this Court for a declaratory judgment clarifying the scope of Texas’s Emergent Medical Condition Exception to its abortion bans, and any and all declaratory
or injunctive relief necessary to protect the health and lives of pregnant Texans with emergent medical conditions.
DISCOVERY CONTROL PLAN
6. Plaintiffs request that this case be conducted as a Level 3 case for the purposes of discovery in accordance with Texas Rule of Civil Procedure 190.4. In addition, pursuant to Texas
Rule of Civil Procedure 47(c)(5), Plaintiffs state that they seek non-monetary relief only.
PARTIES
I. PLAINTIFFS
A. Amanda Zurawski
7. Amanda Zurawski is 36 years old and lives in Austin, Texas.
8. Amanda and her husband have known each other since preschool and were married in 2019. They have long wanted to have children. When they started trying for a baby, however,
Amanda learned she was not ovulating. After a year and a half of fertility treatments—which included exploratory procedures, use of multiple medications, one misdiagnosis, and treatment
with intrauterine insemination or IUI—Amanda finally got pregnant for the first time.
9. Amanda’s pregnancy proceeded without incident until, at 17 weeks, 6 days, she was diagnosed with an “incompetent cervix”—weakening of the cervical tissue that causes
premature dilation of the cervix. Because her pregnancy was still so many weeks before viability, she was told that her baby2 would not survive.
10. Amanda and her husband were devastated and kept asking if there was something, anything, her doctors could do. Amanda specifically asked if she was a candidate for cerclage, a
procedure where a patient’s cervix is stitched closed to prevent preterm birth. Her doctors told her that unfortunately, her membranes were already prolapsing, meaning that a cerclage procedure would be too risky and, in any event, would not be successful.
11. Amanda was sent home, and that night, her water broke. It was Tuesday, August 23, 2022.
12. Amanda returned to the emergency room that night and was diagnosed with preterm prelabor rupture of membranes (also known as preterm premature rupture of membranes, or
“PPROM”). Because all of Amanda’s amniotic fluid drained when her water broke, the emergency room kept her overnight in hopes that she would go into labor on her own. In the morning,
however, she had not gone into labor, her baby still had cardiac activity, and her vitals were still “stable,” meaning she was not yet showing signs of acute infection.
13. Amanda was told that under Texas’s abortion ban, there was no other medical care the hospital could provide. At this point, absent Texas’s abortion bans, a patient in Amanda’s
2 This petition describes pregnancy using medical terminology, unless describing a particular patient’s pregnancy, in which case, consistent with principles of medical ethics, it adopts the terminology preferred by the individual patient.situation would have been offered an abortion or transferred to a facility that could offer the
procedure. But Amanda was offered neither because the hospital was concerned that providing an abortion without signs of acute infection may not fall within the Emergent Medical Condition
Exception in Texas’s abortion bans.
14. Amanda was told that delivery could take hours, days, or weeks. Once Amanda heard it could take hours, she decided there was no time to travel to another state for an abortion.
She looked it up, and the drive to the closest abortion provider, in Albuquerque, New Mexico, would be 11 hours. The specialist at the hospital also urged Amanda to stay within a 15-minute
drive of the hospital, in case her health deteriorated quickly.
15. On Wednesday morning, Amanda was sent home with instructions to monitor herself for signs of infection.
16. Amanda spent Wednesday and Thursday at home, grieving her inevitable loss and worrying about her own health.
17. On Thursday morning, Texas’s Trigger Ban went into effect.
18. On Friday morning, Amanda went for a check-up at her obstetrician’s office. At her appointment, her vitals were still “stable.”
19. On the drive home from her obstetrician’s office, however, Amanda developed chills and started shivering, and by the time she got home, she had a temperature of 101 degrees
and was not responding to her husband’s questions—all signs of sepsis.
20. Amanda’s husband called their obstetrician’s office and while he was waiting for a call-back, decided he could wait no longer and needed to take her to the emergency room
immediately
21. By the time Amanda was admitted to the labor and delivery unit, her temperature was 102 degrees and peaked at 103.2 degrees. Her medical team confirmed she was indeed septic
and put her on antibiotics. The hospital finally agreed she was sick enough that inducing labor would clearly not violate Texas’s abortion bans.
22. Amanda delivered, and her baby, Willow, did not survive.
23. That night, Friday, Amanda’s fever subsided but her blood pressure and platelet levels remained abnormally low. Amanda was told that while the first infection had cleared, she
had developed a secondary infection, chorioamnionitis, and septic shock. The subsequent bout of sepsis landed her in the intensive care unit (“ICU”).
24. Amanda spent three days in the ICU while her infection was treated. Amanda’s family flew to Austin from across the country because they worried it would be the last time they
would see her.
25. Amanda was eventually discharged and returned home, but her suffering was far from over. The infections had caused such severe scar tissue to develop in her uterus and on her
fallopian tubes that it obscured x-ray imaging of her reproductive organs. She had a procedure to attempt to remove the scar tissue, and while her physicians were able to clear her uterus and one of her fallopian tubes, the other fallopian tube remains permanently closed.
26. Amanda has been advised by her reproductive specialist that to get pregnant again, she should start in vitro fertilization (“IVF”), which involves its own invasive procedures and
uncertain success.
27. Amanda has already begun IVF treatments.
28. Once a pregnant person has been diagnosed with an incompetent cervix in one pregnancy, the risk is high that they will develop the same condition in future pregnancies.
29. Amanda and her husband have been trying to have children for years, and she not only lost her first pregnancy, but because of Texas’s abortion bans, she nearly lost her own life
and spent days in the ICU for septic infections whose lasting impacts threaten her fertility and, at a minimum, make it more difficult, if not impossible, to get pregnant again in the future.
30. Amanda’s claims are capable of repetition but evading review. Amanda sues on her own behalf.
B. Lauren Miller
31. Lauren Miller is 35 years old and lives in Dallas, Texas.
32. Lauren M. first learned she was pregnant from a pharmacy urine test in July 2022, and quickly realized that the first day of her last menstrual period, the date from which her
pregnancy would be dated, was June 24, 2022, the same day Roe v. Wade was overturned.
33. Lauren M. already had, at the time, a one-year-old son, and she and her husband were excited to have another child join their family. She started keeping a pregnancy journal to
document the details of her pregnancy and her emotions about her pregnancy. Lauren M. scheduled her first prenatal visit for approximately 8 weeks.
34. Before her first prenatal visit, however, Lauren M.’s health took a turn for the worse. She experienced horrible nausea and vomiting and could not keep food or even water down.
After 36 hours of continuous vomiting, Lauren M. went to the emergency room for treatment for dehydration. At the emergency room, Lauren M. had her first ultrasound and learned she was
pregnant with twins. She and her husband were shocked but thrilled.
35. At the emergency room, Lauren M. was also diagnosed with hyperemesis gravidarum, a severe form of persistent nausea that can last throughout pregnancy and cause
significant risks for pregnant people and their babies.
36. Lauren M. began treatment for hyperemesis gravidarum but did not respond to medications and continued to struggle with nausea and vomiting as her pregnancy progressed.
37. At Lauren M.’s 12-week ultrasound appointment, she learned that one of her twins—who her doctors referred to as Baby B because it was farther away from her cervix—was
not growing as fast as the other twin—who her doctors referred to as Baby A because it was closer to her cervix. While that was a cause for potential concern, obtaining a diagnosis would require additional monitoring and testing. Lauren M. provided a blood sample for noninvasive prenatal blood testing (“NIPT”), which can be done between 10 and 13 weeks to screen for some fetal conditions. While Lauren M. was still waiting for the NIPT results, she returned a week later for another ultrasound and learned that Baby B had developed two cystic hygromas, fluid filled sacs near the brain. While worrisome, Lauren M.’s physicians still could not yet diagnose Baby B’s medical condition and recommended additional testing, specifically chorionic villus sampling
(“CVS”) or amniocentesis, which involves a needle procedure into the placenta or amniotic fluid.
38. Several days later, Lauren M. received the results from her NIPT test, which indicated that Baby B likely had trisomy 18, a condition with a very high likelihood of miscarriage
or stillbirth and low survival rates beyond the first year of life.
39. Lauren M. met with a genetic counselor who struggled to give clear information regarding what this result meant for her pregnancy under Texas’s new abortion bans. After
receiving a referral to a maternal-fetal medicine (“MFM”) specialist who could perform CVS testing, Lauren M. scheduled the first available appointment, which was for the following day.
40. The following day, Lauren M. visited an MFM specialist who performed a high- resolution ultrasound and attempted CVS testing. The MFM confirmed via ultrasound that Baby
B had multiple fetal structural abnormalities—cystic hygromas where much of the brain should have been developing, a single artery umbilical cord, incomplete abdominal wall, abnormal heart,
abnormal nuchal translucency—and told Lauren M. and her husband that Baby B would likely not survive to birth. Because the ultrasound alone was so conclusive, and because Lauren M.’s uterus was contracting and preventing the needle from reaching the placenta of Baby B, the MFM did not ultimately complete the CVS test.
41. The MFM told Lauren M. and her husband that, before S.B. 8, he would have been able to offer Lauren M. a single fetal reduction (an abortion of Baby B) to give Baby A and Lauren
M. the best chance to avert a health crisis. Now, all he could do was suggest that she travel out of state.
42. In every interaction with their medical team in Texas, Lauren M. and her husband felt confused and frustrated and could not get direct answers. It was apparent that their doctors,
nurses, and counselors were all fearful of speaking directly and openly about abortion for fear of liability under Texas’s abortion bans.
43. A few days after Lauren M.’s visit with the MFM, she was hospitalized again with complications from hyperemesis gravidarum. Lauren M. was vomiting so violently that she was
unable to drive herself to the emergency room and had debilitating chills and severe dehydration requiring hospitalization. If not for Texas’s abortion bans, Lauren M. would have had the single
fetal reduction before her subsequent emergency room visit.
44. Lauren M. and her husband remained deeply concerned about her health as well as that of Baby A. They ultimately decided to travel out of state to receive a selective fetal reduction
abortion procedure. They named their son, Baby B, “Thomas” and started to say goodbye.
45. At 15 weeks at a clinic in Colorado, Lauren M. underwent the selective reduction abortion procedure. It was quick, taking approximately 15 minutes, and uncomplicated. Yet the
procedure, plus the associated travel, cost thousands of dollars and required Lauren M. and her husband to be away from their toddler for two days.
46. After the procedure, Lauren M.’s hyperemesis gravidarum symptoms immediately subsided, and her pregnancy with Baby A has since progressed without complications. Lauren M.
lost so much weight from hyperemesis gravidarum that she did not return to her pre-pregnancy weight until 29 weeks gestation.
47. After the procedure, Lauren M.’s pregnancy with Baby A progressed without complications.
48. Lauren M. gave birth in late March 2023 to a healthy baby boy who she and her husband named Henry.
49. Lauren M. is thankful that she had the funds and support from family, friends, and employers to allow her and her husband to travel for the health care she needed. She has friends in
the medical field who helped her connect with doctors out of state. She knows that many other pregnant people have not been so fortunate.
50. Lauren M. was overjoyed to discover she was pregnant with twins, but after suffering from extreme hyperemesis gravidarum and a devastating fetal diagnosis for Thomas, she
believes that Texas’s abortion laws made it less likely that both she and Henry would survive her pregnancy.
51. At the time this lawsuit was filed, Lauren M. was still pregnant with Henry and continued to fear for her safety as a pregnant woman in Texas. She continues to fear for her safety
should she get pregnant in the future.52. Lauren M.’s claims relate both to her pregnancy at the time of filing this suit and to
any future pregnancies and are capable of repetition but evading review. Lauren M. sues on her own behalf.
C. Dr. Austin Dennard
53. Dr. Austin Dennard is 38 years old and lives in Dallas, Texas.
54. Dr. Dennard is a doctor of osteopathic medicine (“D.O.”) and works in general obstetrics and gynecology. She specializes in obstetrics, robotic gynecology surgery, and pelvic
floor dysfunction. Dr. Dennard is also trained to provide miscarriage care in the first trimester.
55. Lauren M. is one of Dr. Dennard’s obstetrical patients.
56. Dr. Dennard and her husband, who is also an OB/GYN, have two children, but they had always wanted a third. In July of 2022, Dr. Dennard was excited to be pregnant, particularly
because before this pregnancy, she had had a miscarriage.
57. At Dr. Dennard’s 11-week ultrasound visit, however, her baby was diagnosed with anencephaly. Dr. Dennard knew immediately the prognosis for both her and her baby. Her doctor
confirmed that the condition was not compatible with survival and that in Texas, all they could offer her was additional ultrasound scans. Dr. Dennard decided she wanted an abortion.
58. Dr. Dennard had been through this before. In her first pregnancy, Dr. Dennard’s baby was diagnosed at 18 weeks with a rare genetic condition associated with heart disorders and
other medical comorbidities—and she and her husband made the difficult choice to end the pregnancy. At the time, abortion was legal in the state of Texas, and Dr. Dennard was able to get
the abortion at a clinic in her home community.
59. This time, however, Dr. Dennard knew that due to Texas’s abortion bans, she would need to travel out of state. Dr. Dennard immediately started researching her options and calling
friends and colleagues for advice. She decided to travel to the east coast for her care
60. As soon as she got the diagnosis, Dr Dennard immediately felt silenced and marginalized. She felt like she was in an alternate universe, as a 6th generation Texan, fleeing her
own state for basic medical care. She paid out of pocket for her abortion procedure, as well as her travel expenses. Family stayed at home with her children. Colleagues covered her shifts at the hospital. While traveling out of state was traumatic, she was relieved she had the resources to access the care she needed.
61. Dr. Dennard initially considered sharing her story publicly but was nervous to do so. Colleagues in family planning warned Dr. Dennard that there were political consequences
associated with being outspoken on abortion.
62. But Dr. Dennard’s personal and professional lives collided when months later, one of her patients, Lauren M., faced a similar devastating diagnosis. Dr. Dennard watched Lauren M.
go through exactly the same experience—researching abortion providers out of state on her own, traveling to get care, finding childcare, and more. Just like Dr. Dennard, Lauren M. was trying to grieve while being plagued by medical trauma, fear, and confusion.
63. When this lawsuit was filed and Dr. Dennard saw that Lauren M. was one of the plaintiffs, Dr. Dennard knew this was the moment for her to tell her story as well, and she reached
out to Plaintiffs’ counsel.
64. Dr. Dennard is pregnant again now with her long-awaited third child. She is due in the fall.
65. Dr. Dennard’s claims are capable of repetition but evading review. Dr. Dennard sues on her own behalf.
D. Lauren Hall
66. Lauren Hall is 28 years old and lives outside of Dallas, Texas
67. Lauren H. and her husband were thrilled when they found out she was pregnant. At her first ultrasound at around 8 weeks, everything looked great. Because her pregnancy was
uncomplicated, Lauren H. would not have another ultrasound until her anatomy scan, which is usually scheduled later than 16 weeks. In the meantime, Lauren H. started planning, telling friends and family the news, buying baby clothes and furniture, and even selected a name—Amelia.
68. Lauren H. knew that her OB/GYN was opposed to abortion. But at the time, it did not seem like a big deal.
69. Two weeks after Roe v. Wade was overturned, however, Lauren H. went to an appointment with an MFM specialist for her 18-week anatomy scan. Lauren H. is a nurse, and as
the ultrasound began, she knew immediately that something was wrong.
70. Lauren H. was told that her baby had anencephaly, a condition where the baby does not develop a skull and has a severely underdeveloped brain. Lauren H. knew that with such a
diagnosis, the baby had no chance of survival. Her MFM specialist told her that anencephaly is incompatible with life.
71. Lauren H. was told that there were many physical and mental risks to her if she continued the pregnancy, including hemorrhage and preterm birth. Lauren H. remembers thinking
that she did not want to end up bleeding to death on the bathroom floor. She was scared that when something inevitably went wrong, she would not get proper care for this pregnancy in Texas. She decided that she wanted an abortion.
72. Lauren H.’s MFM specialist said she couldn’t help her and was even fearful to give her information about her options. Roe had just been overturned and everyone Lauren H.
encountered was terrified. Her MFM urged her to go out of state and tell no one—not her family, not anyone at the airport—where she was going or what she was doing. Lauren H.’s MFM said
she could not provide a referral or even transfer her medical records to an abortion provider. No one knew how far the politicians in Texas would go to prosecute people involved in abortion care.
73. Lauren H. and her husband were grieving, were desperate for help, and they were made to feel like everything they needed was illegal.
74. Lauren H. tried to get an appointment with her OB/GYN, but he was out of town, and no one from the office was responding. Lauren H. even drove to her OB/GYN’s office to ask
for help in person, but no one would see her. Eventually, someone from the office called back but only offered her information about support groups for patients who give birth to babies with
anencephaly. Lauren H. realized she was on her own to figure out what to do.
75. Lauren H. called clinics in Colorado and New Mexico. Because Roe had just been overturned and abortion bans were taking effect in states throughout the South, the Colorado and
New Mexico clinics were inundated with patients. They didn’t have appointments.
76. Lauren H. has struggled with depression, and the stress of searching for care took a huge toll. Her mental health spiraled to the point that she considered checking herself into the
hospital. But she was afraid to tell anyone what was going on because she worried what would happen to her if people knew she wanted an abortion.
77. Because she was already 18 weeks pregnant, Lauren H. worried that she was too far along to be seen by most clinics. Eventually, Lauren H. got an appointment at a clinic in Seattle
that specializes in cases like hers. Lauren H. and her husband’s family sent them money to help pay for the extremely expensive last-minute trip. On her way into the clinic for her appointment,
protesters shouted at her that she was a baby killer.
78. Lauren H. and her family grieved their loss but are still processing the trauma of what happened to her and needing to travel so far from home during such a time of chaos and
confusion, just to receive necessary health care.
79. Lauren H. is now pregnant again and due in September. She is both excited and scared because she fears that it is not safe for her or for anyone to be pregnant in Texas.
80. Lauren H.’s claims relate both to her current pregnancy and any future pregnancies and are capable of repetition but evading review. Lauren H. sues on her own behalf.
E. Anna Zargarian
81. Anna Zargarian is 33 years old and lives in Austin, Texas.
82. In September 2021, just a few weeks after S.B. 8 took effect, Anna realized that her period was two weeks late.
83. Anna and her now-husband were surprised to learn she was pregnant, but they were excited about having a baby. Anna remembers thinking that it was a good thing she did not want
an abortion, as she may have already been past the cutoff for abortion care under S.B. 8.
84. Anna’s pregnancy proceeded without incident until, at 19 and a half weeks, she felt a sensation like something was starting to come out of her body. Anna had some cramping but
tried to put it out of her mind. Hours later, Anna felt a gush of liquid leave her body, then a second gush left a puddle on the floor. Anna knew something was wrong.
85. Anna and her husband went to the emergency room that night and learned that her water had broken prematurely, and her cervix had started dilating. She was diagnosed with
PPROM. Anna was told that because all of the amniotic fluid had drained when her water broke, her baby would not survive to birth.
86. Doctors in the emergency room told Anna that for patients in her situation, they would usually recommend termination of the pregnancy. If she continued the pregnancy, she was at high risk of developing a septic infection or hemorrhaging. Anna works in health care, and as soon as she heard that she was at risk of sepsis, she panicked.
87. The doctors told her that the safest treatment for her was a D&E. But because of S.B. 8, as long as her baby had detectible cardiac activity, Texas law barred them from performing
an abortion, unless and until her life was in imminent danger.
88. Anna tried to reason with the doctors in the emergency room. She asked if, instead of a D&E, they could induce her. But the doctors explained that an induction at this stage was also
an abortion prohibited by law. When Anna asked for guidance, the medical staff at the hospital were scared to give Anna any information about where to seek abortion care. Instead, one of the
doctors typed a generic abortion finder resource into her cell phone and showed the webpage to Anna.
89. Anna was told that she could be admitted to the hospital for “expectant management”—where she would wait either to go into labor naturally, or for her health to deteriorate sufficiently for the hospital to be able to intervene. She was also told that she could wait until the morning to speak to an MFM specialist, but that the MFM would not be able to offer any different treatment.
90. Anna and her husband decided to go home so they could begin researching abortion options on their own. They debated what seemed less risky—an 11 hour drive to New Mexico, or
a 2 hour flight to Colorado? Anna wanted to make sure the state she chose did not have a mandatory waiting period that would delay her care further. That night, Anna continued to leak amniotic fluid and experience cramping.
91. The next morning, Anna spoke to her longtime OB/GYN. Anna was concerned that if she went into labor while driving through rural Texas, there would be no hospital where she
could access care. While she might go into labor or septic shock on the plane as well, at least the trip would be shorter and she could get to a doctor more quickly. Anna and her OB/GYN agreed: the best option given the circumstances was for Anna was to leave Texas for an abortion, and that a short flight was less risky than a long drive.
92. Anna called clinics in Colorado, but they were still being inundated by the influx of patients from Texas. A clinic in Denver was able to squeeze her in once she explained why she
would not be able to wait weeks for an appointment. Anna bought a plane ticket and paid extra for a seat at the front of the plane near the bathroom. Thankfully, Anna arrived safely.
93. The morning of her procedure, Anna had a fever of 101, but she received an abortion and recovered well.
94. Since this experience, Anna has suffered from stress and anxiety, specifically related to the fear for her life she felt during the trip to Denver. She grieves the loss of a wanted
pregnancy and still relives the trauma of being forced to leave Texas in the middle of a medical emergency.
95. Anna still wants to have children, but she is afraid of being pregnant again in Texas. Her doctors have told her that she will be at high risk for developing conditions associated with
PPROM in future pregnancies.
96. Anna’s claims are capable of repetition but evading review. Anna sues on her own behalf.
F. Ashley Brandt
97. Ashley Brandt is 31 years old and recently moved from Houston to Dallas, Texas.
98. Ashley and her husband got married in 2018 and already have a 3-year-old child. Ashley always wanted to have three children, so when she learned in May of 2022 that she was
pregnant with twins, Ashley and her husband were thrilled.
99. During early prenatal visits, Ashley was told she was having identical twin girls, and that each had their own placenta and amniotic sac. Ashley and her husband love being parents
and were excited about having twins. They began to tell their friends and family.
100. At her 12-week ultrasound, however, Ashley was told that Twin A’s skull was much smaller than Twin B’s, and Twin A did not appear to be developing normally. Ashley’s
OB/GYN explained that Twin A likely had acrania, a condition where the fetus does not develop a skull, and referred her to an MFM specialist for further testing.
101. For over a week, Ashley waited for her insurance to approve a visit with the MFM. She spent much of that week crying in bed. Still reeling from the news, and without guidance from
her Texas physicians, Ashley started researching her options online and calling doctors in other states. A doctor in Colorado explained selective fetal reduction, and Ashley realized that an
abortion of Twin A could help her save Twin B and herself.
102. Finally at the appointment, Ashley’s Texas MFM confirmed that Twin A’s skull was not properly developing and that the acrania had progressed to exencephaly, a precursor to
anencephaly. The MFM warned Ashley that as long as Twin A continued growing, her chances of miscarriage or premature labor were high. Twin A’s amniotic fluid would continue to break down brain tissue until she went into labor, at which point, she could lose both babies. Twin B might survive if born prematurely, but would require intensive neonatal care for months or longer.
Further, if Twin A continued growing, there was also a risk of polyhydramnios, or excessive accumulation of amniotic fluid, which put Twin B at risk for fetal growth restriction.
103. Ashley did not want one stillborn, but she definitely did not want two.
104. There were significant risks for Ashley as well, particularly because she had a cesarean delivery with her first pregnancy. Ashley learned that polyhydramnios can lead toPPROM and/or placental abruption, meaning that Ashley was at risk of infection, bleeding, and hemorrhage. These risks were especially high because Twin A was the twin closest to her cervix.
105. Ashley asked her MFM about selective fetal reduction. Her MFM said that in another world, it would be simple, but this was Texas. And in Texas, abortion is illegal even if it
means saving the life of a healthy baby. If Ashley wanted to go out of state for an abortion, that was her right and her MFM would send her medical records. But in Texas, all her physicians could do was monitor her at weekly appointments. Ashley was on her own.
106. Ashley made an appointment with the doctor in Colorado.
107. Ashley and her husband arranged for childcare, took time off work, and made the journey to Colorado. Her abortion procedure went smoothly, and Ashley and her husband flew
home.
108. The day she returned home, however, Twin A’s amniotic sac ruptured in the middle of the night and the bleeding and leaking fluid sent her to the emergency room. She was terrified
that she would lose both babies and that she would somehow be in trouble for going out of state for the fetal reduction procedure. Thankfully, Twin B had a separate amniotic sac which was still
intact.
109. In the emergency room, Ashley felt a distinct uneasiness and confusion. It appeared that the medical staff thought they were not supposed to know about Ashley’s abortion or discuss
it with her. To Ashley, everything felt secretive and icky.
110. The remainder of Ashley’s pregnancy was plagued by fear and stress. Ashley’s physicians recommended pelvic rest until her third trimester, as well as weekly ultrasounds that
she had to pay for out of pocket. Ashley and her husband kept extra money in savings in case they had to leave the state again for medical care.
111. When Ashley reviewed her medical records, she saw a noticeable absence of documentation of her abortion. Her MFM’s records contained no reference to their conversations
about fetal reduction and at her appointment after the abortion, stated simply “SAB of Twin A,” meaning “spontaneous abortion.” At every one of her regular appointments with her OB/GYN
following the abortion, her OB/GYN’s records listed her diagnosis as “vanishing twin syndrome.”3 It was not until she was a few weeks from her due date that her OB/GYN added the following note to her chart: “one twin with acrania and was electively terminated.”
112. At 38 weeks, Ashley gave birth to a healthy baby.
113. Ashley feels fortunate that she could leave Texas for an abortion and thankful for the support of family and friends. While she had always planned to have more children, Texas’s
abortion bans make it hard for her to imagine getting pregnant again.
114. Ashley’s claims are capable of repetition but evading review. Ashley sues on her own behalf.
G. Kylie Beaton
115. Kylie Beaton is 33 years old and lives near Fort Worth, Texas.
116. Kylie and her husband have a 4-and-a-half-year-old and have wanted to have more children for years. But it has not been easy. Kylie has a history of polycystic ovary syndrome
(“PCOS”), a condition that interferes with ovulation. Also, Kylie’s husband was hospitalized for 4 months in 2021 with COVID pneumonia. When he recovered, the couple immediately started
trying to get pregnant again but faced challenges. After trying several different fertility medications, Kylie was thrilled to learn she was pregnant.
3 “Vanishing twin syndrome” is a type of miscarriage where one fetus in a multi-fetal pregnancy stops growing spontaneously and is absorbed into either the body of the pregnant person or (one of) the other fetus(es). See Vanishing Twin Syndrome, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/23023-vanishing-twin-
syndrome.
117. At Kylie’s 20-week anatomy scan in early January of 2023, however, Kylie’s obstetrician told her that something did not look right with the baby’s head. Her obstetrician
diagnosed the baby with alobar holoprosencephaly, a condition in which the brain does not develop into two hemispheres as it normally would, and the major structures of the brain remain fused in the middle. He referred Kylie to a specialist.
118. The next week, an MFM specialist confirmed the diagnosis and explained that the baby would likely only survive for several days or weeks past birth, if at all. In the meantime, the
baby’s head would continue to be abnormally large for its gestational age. The specialist told Kylie that due to Texas’s abortion laws, there was nothing he could do unless Kylie became severely ill or the baby’s heart stopped, and that Kylie would either have to carry to term or she could look for care outside of Texas. Before the law changed, her doctors would have been able to perform a D&E or an induction abortion before the baby’s head got too big, but that was no longer legally possible.
119. Unsure what to do or where to go, Kylie and her husband began researching their options. They called a couple of abortion clinics and made an appointment at a clinic in New
Mexico for the beginning of February. The procedure would cost $3,500. In advance of traveling to New Mexico, however, an ultrasound revealed that the baby’s head was already measuring at close to 24 weeks, abnormally large, meaning its size was past the gestational cutoff for the New Mexico clinic. Kylie and her husband were devastated.
120. They quickly learned that very few clinics in the country provide abortions past this cutoff. Kylie called a few of those clinics, but the procedure would cost between $10,000 and
$15,000, which was far beyond their means. Kylie realized that she would have no choice but to continue the pregnancy.
121. At an ultrasound appointment in early March, the baby’s head was measuring at 39 weeks even though Kylie was only 28 weeks. Kylie was told this would be the last point at
which she would be able to deliver vaginally. She begged the doctors to induce her. Her doctor told her that if not for Texas’s abortion bans, he would induce her for a vaginal delivery that day.
But because of the law, she was told that no doctor could induce her until 37 weeks.
122. Kylie preferred to deliver vaginally, so her specialist called other doctors to make sure there was nothing more they could do. But her specialist was told that her baby’s large head
size alone was not enough of a reason to justify an induction abortion under Texas law.
123. Kylie was scheduled for a Cesarean in early May, when she would be 37 weeks.
124. When Kylie was 35 weeks pregnant, however, she started having horrible pain in the right side of her abdomen. It did not feel like labor contractions to Kylie, but she knew
something was wrong. After talking with her OB/GYN, she decided to go to the hospital to get checked out. Kylie and her family live an hour from the hospital, and her husband was at work,
but another family member was able to drive her. She was in excruciating pain for the entire drive.
125. At the hospital, the medical staff could not determine if she was experiencing unusual labor pains due to the size of her baby’s head or if the pain was originating from her
gallbladder, appendix, or some other internal organ. Kylie was told that before they could induce her, they would need to rule out her gallbladder and appendix as the source of her pain.
126. By this point, her baby’s head circumference was measuring at 49 cm. The average head circumference for a newborn is 35 cm.
127. Tests of her gallbladder and appendix came back normal. Kylie was only a couple centimeters dilated, and due to the size of her baby’s head, the staff did not believe she would
dilate further. Finally, the hospital agreed to send her for an emergency cesarean.
128. Kylie’s OB/GYN performed the cesarean surgery, making a larger incision than normal to accommodate the baby’s head. The baby was born at the end of April.
129. Kylie and her husband wanted to donate their baby’s heart valves. They named their son Grant, hoping that he could grant other children life.
130. The first day in the hospital, Grant ate relatively well and at times, almost seemed normal. But over the next three days, his condition deteriorated. He cried constantly. He stopped
eating. His core temperature gradually decreased. He could not be held upright or it would put too much pressure on his head. The medical staff was unsure if he was experiencing pain, but gave him morphine. Kylie understood he was slowly dying, day by day.
131. On day 4, Kylie’s insurance required her to be discharged from the hospital. She and her husband set up hospice care to meet them at home.
132. They were discharged in the early afternoon. The medical staff told Kylie that Grant could not sit in a car seat because it would put too much pressure on his head. So Kylie held Grant
in her arms for the hour long car ride home.
133. Kylie’s daughter wanted to have a movie night with her brother, so the family watched movies together for a few hours. After her daughter went to bed, however, Grant’s
breathing became more labored. A hospice nurse came to establish care. For hours, Kylie and her husband watched as their son grew cold in their arms. Late that night, Grant passed.
134. Kylie and her family are still waiting for Grant’s cremated ashes to be returned to them. They plan to plant a tree outside their house along with the ashes.
135. Many challenges remain for Kylie and her family. Kylie’s milk came in while she was at the hospital and it took weeks to dry up, long after Grant was gone. She is still recovering
from the cesarean surgery and struggles to resume normal physical activity. The hardest part, however, is explaining to their daughter what happened and why. She still says she misses her
brother and draws him pictures. Each time, it brings Kylie and her husband a new wave of grief.
136. Kylie will need to wait many months before trying to get pregnant again. Doctors recommend waiting at least 12-18 months after a cesarean to get pregnant again to give the uterus
time to heal. Kylie does not want to have another cesarean delivery, but doctors have told her it will be challenging to deliver vaginally in the future, and the risk of another cesarean is higher the sooner she gets pregnant again.
137. When Kylie read about this lawsuit in the news in March of 2023, she decided she wanted to tell her story too, so she contacted a reporter and connected with Plaintiffs’ counsel.
138. Kylie believes that the government should not dictate the choices families like hers have to make. Having to go through the birth and death of Grant made losing him so much harder.
Kylie wants to fight for other women, so they do not have to experience the same grief and pain.
139. Kylie continues to fear for her health and safety and her ability to get pregnant again in the future. She also fears for her safety as a pregnant woman in Texas if she gets pregnant again.
140. Kylie’s claims are capable of repetition but evading review. Kylie sues on her own behalf.
H. Jessica Bernardo
141. Jessica Bernardo is 38 years old and lives near Frisco, Texas.
142. Jessica met her now husband in 2011 and they married in 2018. In 2020, they started trying to get pregnant but ran into challenges, so she started seeing a reproductive specialist. Jessica went through extensive testing and even a medical procedure to improve their chances of conceiving.
143. Jessica finally got pregnant in July of 2022. Jessica and her husband were ecstatic about their pregnancy and they shared the news with family around the world.
144. At around 14 weeks, Jessica received the results from her NIPT genetic testing and learned that there was a high likelihood that their baby had trisomy 21, or Down syndrome. Jessica
and her husband were in disbelief, but they both agreed that they would love the baby no matter what. Jessica began researching how to support a baby with a disability, including special schools. She also started reading about and supporting small businesses started by adults with Down syndrome.
145. Jessica and her husband learned the baby was a girl and decided to name her Emma, meaning “whole.” They believed that she would be whole, with or without Down syndrome. They
also started telling their friends and family the exciting news.
146. Because of the NIPT screening results, Jessica’s OB/GYN referred her to an MFM specialist and advised her to make an appointment as soon as possible. When making the
appointment, she believes she was told about the option of having an amniocentesis. She researched amniocentesis and determined that she would not elect to have the testing performed
because of the small risk of miscarriage. She knew she would keep the baby no matter what.
147. At the visit with the MFM in October 2022, they received devastating news. The scan revealed that the baby had fetal anasarca, which is the end stages of hydrops fetalis otherwise
known as extreme full-body edema signifying end of life; other structural abnormalities; and was already showing signs of significant heart failure. Her MFM specialist told her that the baby would not survive to birth. The MFM instructed Jessica to monitor herself for complications like coughing, swelling, and high blood pressure, which could be signs of Mirror syndrome. She had
already developed a cough starting at week seven of her pregnancy and her blood pressure had also increased. The MFM did not mention abortion.
148. Afterwards, Jessica did her own research to understand what Mirror syndromemeant and how serious it was. She came to understand that Mirror syndrome is a severe condition in which the pregnant person and fetus both experience severe fluid retention that can lead to both fetal and maternal demise, and that she was at a high risk for developing it. She realized just how risky it would be for her to continue her pregnancy.
149. That same day, Jessica’s OB/GYN called her to follow up. Jessica told her doctor she did not want to be left waiting for her baby’s heart to stop on its own, that it was cruel and
would be detrimental to Jessica’s mental health, and that she was also scared of her health deteriorating. She wanted to be able to grieve, start healing, and ultimately, try to get pregnant
again. Her OB/GYN told her that before Texas’s new laws, she would have been able to provide a “therapeutic birthing” to induce Jessica in the hospital but could no longer do so. Her doctor contacted the ethics committee at her hospital for an exclusion but was not granted one.
150. Jessica felt like her doctor was hesitant to tell Jessica what her options were, other than talk in code. She told her doctor that they had a residence in Colorado and asked her doctor
if they should go there. Her doctor responded that yes, Jessica should go to Colorado. Her doctor never mentioned the word abortion.
151. Unfortunately, the clinics in Colorado were all booked—the soonest appointment was two months away. Jessica started looking for other options. She used private browser mode
for fear that she would be prosecuted for looking for abortion services out of state. Jessica was eventually able to get an appointment for an abortion in Seattle, and she booked expensive, last-
minute flights and a hotel room.
152. At the clinic in Seattle, Jessica was told she was the third patient from Texas that week alone. One of Jessica’s doctors told Jessica that she had moved away from Texas due to its
restrictive laws. At 16 weeks and 6 days, and on the same day her nursery furniture was supposed to be delivered, Jessica received her abortion. Jessica wished that she could have been at home while she was going through the worst trauma of her life.
153. After this lawsuit was filed, Jessica reached out to Plaintiffs’ counsel. She wanted to tell her story and be part of changing the law. She wants people to know that abortion is
healthcare and that these laws are not protecting women.
154. Jessica continues to grieve, but she is terrified to get pregnant naturally again in Texas. Because she and her husband still really want a child, she has started IVF.
155. Jessica’s claims are capable of repetition but evading review. Jessica sues on her own behalf.
I. Samantha Casiano
156. Samantha Casiano is 29 years old and lives in East Texas.
157. Samantha and her partner live in a mobile home with their four children and their goddaughter. Samantha is a busy working mom with a large extended family.
158. Samantha’s youngest child was only around 3 months old when she found out she was pregnant again. Samantha was initially excited, but at her 20-week anatomy scan in December
of 2022, everything changed. After a long pause during her ultrasound, the doctor entered the room. Without providing Samantha with much explanation of the condition, Samantha’s doctor
told her that her baby had anencephaly and that the condition was incompatible with life. Samantha was devastated.
159. Samantha immediately asked what her options were. But her doctor’s response was, “You have no options. You will have to go through with your pregnancy.” Her doctor gave her a
prescription for an anti-depressant.
160. Samantha’s doctor did not mention the option of leaving the state for abortion care. She assumed her doctor was legally prohibited from doing so. Samantha and her partner
investigated their options and called clinics in New Mexico and Arizona but quickly realized it would be financially impossible to make the trip. She would need somewhere to stay, a car, and a
way to pay for the procedure, none of which she had. Her family only has one car, which her partner uses to drive an hour and a half to work every day. She also could not miss work or find
childcare for her five children.
161. Samantha realized she would have to carry the pregnancy to term.
162. In January, Samantha’s doctor wrote her employer a letter, saying that Samantha would need to work from home until she delivered. The doctor’s letter said that Samantha’s baby
had been diagnosed with anencephaly, which is incompatible with life, and that her pregnancy was high risk. Samantha was relieved, as it was excruciating to have people congratulating her, rubbing her belly, and asking questions about her plans for the new baby. Repeatedly having to tell people her baby would not survive made everything worse.
163. As the months wore on, Samantha tried to focus on something positive. She wanted to donate her baby’s organs because then there might be a purpose to this pregnancy. But she
learned that babies with anencephaly are not eligible for donation.
164. Eventually, all she could think about was that she and her partner needed to bury their daughter and she did not know how they would be able to afford a funeral. She reached out
to a Christian pro-life non-profit that paid for professional maternity photos and said they would help her raise the money. They generated almost no donations. She also started a GoFundMe to
pay for the funeral, but that too did not yield much money. Samantha started her own fundraising campaign, including selling menudo, a spicy Mexican soup, by the bowl.
165. Samantha grew weary of hearing the phrase “I’m sorry.”
166. Samantha read about this lawsuit after it was filed, and she reached out to both a reporter and Plaintiffs’ counsel. She wanted people to know her story.
167. At the end of April, Samantha went into labor several weeks early. She panicked. She had not had enough time to raise the money she needed for the funeral.
168. At the hospital, Samantha learned her baby was breech, meaning the fetus was positioned backwards for delivery. Because vaginal delivery can be complicated and dangerous
and risk injuring the baby, Cesarean section is recommended for a breech baby. But there was no talk of a Cesarean here. Samantha noted the hypocrisy of treating her daughter like a healthy baby only while she was in utero.
169. Samantha gave birth to her daughter and named her Halo. Halo only lived for 4 hours. During those hours, as Samantha watched her daughter gasp for air, she knew for sure she
wanted to tell her story publicly.
170. After Halo passed, Samantha’s milk came in.
171. Samantha received multiple calls from Texas Women, Infants, and Children (“WIC”) to congratulate her on the birth of her baby and update her Medicaid. Each time, Samantha had to tell them that Halo had passed.
172. When it came time to plan Halo’s funeral, Samantha and her partner got multiple quotes for thousands of dollars. They found a simple graveside service they could afford and
scheduled it for a Friday morning. When the funeral home tried to charge them an additional $1,100 because it was Good Friday, Samantha cried until they agreed to waive the extra fee.
173. Samantha also connected with an NPR reporter, and after they published a story about her, people donated to her GoFundMe. By then, the simple funeral was already over. But
Samantha is thankful she will now be able to buy a headstone.
174. Samantha believes that she should have had the choice and the right over her body and her daughter Halo’s body. She wanted to be able to put her daughter to rest earlier, since she
was going to have to rest either way. Samantha hopes that the law will change and no one, including her children, will have to go through this again.
175. Samantha’s claims are capable of repetition but evading review. Samantha sues on her own behalf.
J. Taylor Edwards
176. Taylor Edwards is 30 years old and lives in Austin, Texas.
177. Taylor and her husband have always wanted to have kids but struggled to get pregnant. Taylor has PCOS, which interferes with ovulation, so they began fertility treatments and
IVF. After two years of treatments, Taylor finally got pregnant in November 2022.
178. At first, everything was fine. Taylor had some bleeding at 12 weeks, but ultrasounds showed that the pregnancy was developing normally. Taylor did NIPT genetic testing that came
back normal. Taylor and her husband learned they were having a girl and named her Phoebe.
179. Because Taylor had conceived with IVF, her doctor recommended that she do her anatomy scan early, at 17 weeks. That is when everything changed. In February 2023, her MFM
specialist told her the baby was measuring unusually small and diagnosed the baby with encephalocele, a bubble-like protrusion on the base of the skull that causes the brain matter to
herniate out of the skull. Taylor’s MFM told her that no fetal surgery could correct the issue and that her baby would die at birth and may not even survive the pregnancy. The MFM gave her the
name of an abortion clinic in New Mexico but could not advise her further.
180. Taylor sought a second opinion from another MFM who confirmed the diagnosis. Taylor also spoke to her OB/GYN, who said the baby would never be able to breathe on her own.
181. Her doctors counseled her that there was a high risk her baby would not survive to birth and that continuing the pregnancy carried risks for her. Taylor decided she needed an
abortion. Her doctors told her that if this had happened a year and a half ago, they could have offered her the care she needed in Texas, but not anymore.
182. The logistics were daunting. Taylor could not use her medical insurance to pay for the abortion. They had to sort out flights, hotels, and transfer of medical records. She and her
husband felt like they were completely on their own.
183. Taylor made an appointment at a clinic in New Mexico recommended by her doctor, and she and her husband booked plane tickets. But three hours before their flight was
scheduled to leave, the clinic called to say that due to a shortage of medication needed for the procedure, they had to cancel her appointment. Taylor was shocked. She tried to get an
appointment at another clinic in New Mexico, but none were available.
184. Taylor started to panic. She worried that by the time she got an appointment, she would be too far along to get an abortion. She started vomiting every day and struggled with the
physical and emotional weight of her situation. She also felt like a fraud, walking around pregnant with a baby that would never live.
185. She searched for help online and eventually found a clinic in Colorado with appointments. She traveled to Colorado to receive her abortion.
186. When Taylor returned from Colorado, she saw news about this lawsuit. She was connected to a reporter and Plaintiffs’ counsel and decided she needed to tell her story too.
187. Now, Taylor is back at square one with IVF. She and her husband still want a child, but trying again is complex, especially in Texas, where she fears being pregnant again.
188. Taylor’s claims are capable of repetition but evading review. Taylor sues on her own behalf.
K. Kiersten Hogan
189. Kiersten Hogan is 30 years old and lives in the Dallas-Fort Worth area of Texas.
190. Kiersten was living in Oklahoma in June 2021 when she found out she was pregnant. She had long-ago been diagnosed with PCOS, had a history of miscarriages, and had
been told when she was a teenager that she could not have children. So, after she missed her period and got a positive pregnancy test, she was surprised but excited.
191. Soon after learning she was pregnant, however, Kiersten started bleeding. She went to the emergency room at a hospital near her home in Oklahoma. After an ultrasound, Kiersten
was told that everything looked normal, and that she should rest and abstain from sexual activity. She was relieved.
192. Kiersten lived with her boyfriend, who was physically and emotionally abusive. When he found out she was pregnant, he became violent with her and told her they would have to
leave the state for her to get an abortion. Kiersten did not want an abortion. She wanted the baby. So she decided to wait until her boyfriend was traveling for work, then packed up her things and left.
193. After staying with family briefly, Kiersten came to Waco, Texas, to stay with a friend. She immediately started looking for a job and a place to live. Things were looking up.
194. In August 2021, when she was around 13 weeks pregnant, she started bleeding again, this time passing large clots. She rushed to the emergency room and explained that she had
a history of miscarriages and bleeding during this pregnancy. Once again, she was told that everything looked normal, and that she should go home, rest, and abstain from sexual activity.
195. Over the next several weeks, Kiersten tried to take it easy, though she continued to experience bleeding and cramping. She found a new job and a place to live and moved all of her
possessions. Shortly after, she started her new job.
196. On September 30, 2021, just weeks after S.B. 8 had taken effect, and days after Kiersten had settled into her new life, she thought her water broke. She was only around 19 weeks
pregnant and panicked.
197. Kiersten was rushed to the hospital and admitted where she learned that her amniotic sac was protruding out of her cervix. The diagnosis was cervical insufficiency, and she
was told that if it had been diagnosed earlier, she could have had a cerclage procedure to prevent her cervix from dilating prematurely. Now it was too late. While she would likely lose the
pregnancy, there was a small chance the sac would recede. In the meantime, they would keep her
in the hospital for monitoring.
198. But her water broke a few hours after arriving at the hospital. Kiersten asked what her options were and was told that because of the new Texas law, as long as her baby had a
heartbeat, she did not have any options. She would need to stay in the hospital on bedrest until she either went into labor or got sick enough for the hospital to give her an abortion. She was told that if she tried to leave the hospital, it would be used as evidence that she was trying to kill her baby; that if she tried to do anything to end her pregnancy, criminal charges could be brought against her.
199. On multiple occasions, religious counselors came to visit her, even though she had declined pastoral care. One nurse told her that because of the hospital’s religious affiliation, they
cared more about fetuses than pregnant women.
200. Kiersten was terrified and felt trapped inside the hospital walls. She was afraid to even go to the bathroom for fear that she would cause herself to go into labor and be arrested. Four
days later, on the afternoon of October 4, Kiersten went into labor in the hospital bathroom and delivered her son stillborn.
201. On the morning of October 5, Kiersten was discharged.
202. Texas law caused Kiersten to be detained against her will for four days and made to feel like a criminal, all during the biggest medical emergency of her life.
203. When Kiersten saw news reporting about this lawsuit, she reached out to Plaintiffs’ counsel because she wanted to tell her story too.
204. Kiersten’s claims are capable of repetition but evading review. Kiersten sues on her own behalf.
L. Lauren Van Vleet
205. Lauren Van Vleet is 27 years old and lives in Jarrell, Texas.
206. Lauren V. and her husband have always wanted children, so they were excited when she got pregnant in October 2022. Her initial bloodwork and ultrasounds were all normal. They
learned the baby was a boy and named him Rowan.
207. Lauren V. was scheduled to have her anatomy scan at 20 weeks. However, there was a terrible snow and ice storm that caused widespread power outages and several deaths
throughout Texas. Lauren V.’s anatomy scan was rescheduled for two weeks later.
208. At her anatomy scan in February 2023, Lauren V. learned that her baby’s skull was not developing properly. Her OB/GYN said it was anencephaly.
209. Lauren V. had an appointment with a high-risk specialist the next day who confirmed the diagnosis and told her that her baby would not survive. Lauren V. was advised that
she could either continue the pregnancy or she could go to Colorado or New Mexico for an abortion. Her doctor told her that due to Texas’s laws, there was nothing they could do but wait
for the baby’s heart to stop beating or for her to carry the pregnancy to term.
210. Lauren V. was devastated and had a sudden and suffocating feeling of guilt. She feared that she had done something wrong. Nonetheless, Lauren V. knew that she wanted an
abortion.
211. Due to the delay in getting her anatomy scan, Lauren V. was already 23 weeks pregnant and concerned that she would have trouble finding a clinic, even one out of state, with
appointments and the ability to provide her with abortion care.
212. Lauren V.’s aunt lives in Maryland, so Lauren V. looked for a provider there. Her family helped her with the logistics, and she got financial support for the procedure. All the while,
Lauren V. was terrified about legal liability and avoided texting anyone about her plans.
213. By the time Lauren V. arrived at the clinic for her abortion, she was 24 weeks pregnant. She received the abortion and has spent the last several months trying to heal.
214. When this lawsuit was filed, Lauren V. read about the case with keen interest, particularly because Lauren H.’s story was so similar to her own.
215. Lauren V. wrote a letter to Lauren H., sent it to Plaintiffs’ counsel, and asked them to pass it on to her. The letter read, in part: “[I]t wasn’t until I read your story on the news and then
again in the lawsuit that I actually felt like I had made the right choice. I am so sorry for your loss but I am also very happy to see you fighting for our rights as mothers to make informed decisions as well.about our own bodies and health without feeling like we are committing a terrible crime. Know that you have so many people in your corner and I will be cheering you on as loudly as I can.”
216. Lauren V. decided to join this lawsuit because she still wants to have children but is scared to be pregnant again in Texas.
217. Lauren V.’s claims are capable of repetition but evading review. Lauren V. sues on her own behalf.
M. Elizabeth Weller
218. Elizabeth is 27 years old and lives in Kingwood, Texas.
219. Elizabeth and her husband learned she was pregnant at the beginning of 2022. They had just started trying for a baby, so they were both taken aback and excited. They immediately
started planning everything, from their pregnancy announcement to designing the nursery.
220. Elizabeth and her husband opted not to do any genetic testing during her pregnancy because she knew she would want to continue the pregnancy even if her baby had a disability.
Elizabeth herself was born with a physical disability, brachial plexus Erb’s palsy, which causes partial paralysis of her right arm.
221. Elizabeth was diagnosed with gestational diabetes and began taking medication to control her blood sugar. Otherwise, her pregnancy progressed relatively smoothly. Her anatomy
scan revealed no issues. They learned the baby was a girl.
222. But on May 10, 2022, Elizabeth was 19 weeks pregnant when her water broke. Immediately, she knew what it meant. Shocked and terrified, Elizabeth rushed to the emergency
room. Once at the hospital, she was told that while her cervix was still closed, she had lost a lot of amniotic fluid.
223. Elizabeth was admitted to the hospital but felt extremely uneasy. Hospital staff told her: “At this point, we just have to hope and pray that it all comes together.” They told her to pray as well. Elizabeth felt like she was not getting information about the true severity of her situation and that some staff might even be lying to her.
224. Elizabeth called her OB/GYN who explained that at 19 weeks, the baby was not developed enough to survive and that if she chose to remain pregnant, the baby’s chances of
survival were almost zero. Her OB/GYN also told her that if she did not terminate the pregnancy, she could get an infection that could cause her to lose her uterus or even her life.
225. That night, Elizabeth and her husband talked at length and decided they wanted to terminate the pregnancy. There was no reason to prolong their suffering and risk Elizabeth’s health
when their baby would never survive.
226. In the morning, Elizabeth’s OB/GYN visited her in the hospital and Elizabeth confirmed that she wanted to terminate the pregnancy. Her OB/GYN said that she needed to clear
the procedure with the hospital administration. At this point, Elizabeth was already passing blood clots and began taking a course of prophylactic antibiotics prescribed by the doctor.
227. But hours later, her OB/GYN returned and gave her the bad news: Elizabeth wasn’t sick enough to get an abortion. Specifically, because Elizabeth had started antibiotics that were
already fending off any infection, she had put herself in a legal grey area. Elizabeth was told that she could either discontinue antibiotics and stay in the hospital to wait to develop an infection and get sicker, or she could go home and look out for signs of infection. Elizabeth chose to go home.
228. For the next three days, Elizabeth’s physical, mental, and emotional health deteriorated. She was vomiting constantly and in abdominal pain. Amniotic fluid would not stop
leaking out of her body. She checked her temperature every hour and obsessively monitored the color and smell of her vaginal discharge. She was in a terrible mental state, grappling with the fact that her daughter was dying inside of her
229. On May 13, Elizabeth went to her OB/GYN’s office for an ultrasound to determine if the baby still had a heartbeat. The baby did. Elizabeth asked if she should leave the state to seek
care, and her doctor said she could leave if she felt comfortable doing so, but that she might bleed out and risk death on the way. Dejected, Elizabeth was leaving her doctor’s office when she felt another gush of liquid. This time, her discharge was finally yellow and foul smelling. Elizabeth collected a sample to bring to the hospital as proof.
230. That night, Elizabeth was admitted again and diagnosed with chorioamnionitis. A medical board reviewed her case and finally approved her abortion. Elizabeth was given the
medication to induce labor. Her daughter did not survive.
231. While Elizabeth recovered physically, she was outraged about what happened to her. She reached out to lawyers, reporters, and even the Texas Medical Board for help. The Texas
Medical Board told her that she could submit a formal complaint against her doctor. But Elizabeth did not blame her doctor—to the contrary, Elizabeth felt her doctor was her only advocate
throughout the traumatic incident. Ultimately, the complaint went nowhere.
232. Elizabeth’s experience made her feel like she was deserving of punishment and specifically, that the state of Texas wanted her to suffer. She felt emotionally traumatized,
depressed, and inadequate. It was as though because she had failed to carry a wanted pregnancy to term, she deserved to be slowly tortured. This feeling of punishment only made the process of healing worse. It felt like a cruel and unusual reminder by the state that she was inadequate, and therefore deserved this punishment.
233. Elizabeth thought: if I don’t speak out, who will? But after telling her story to a reporter at NPR, Elizabeth was inundated with other media requests, and decided it was all too
much. At the time, she was finishing graduate school and had to focus on healing and her graduate studies.
234. When Elizabeth saw news reports about this lawsuit, however, she knew she wanted to do something more and reached out to Plaintiffs’ counsel.
235. Elizabeth and her husband still want children, but they struggle to grapple with the idea as well as the serious risks associated with being pregnant again in Texas.
236. Elizabeth’s claims are capable of repetition but evading review. Elizabeth sues on her own behalf.
N. Dr. Damla Karsan
237. Plaintiff Damla Karsan, M.D, is a board-certified OB/GYN in private practice at Comprehensive Women’s Healthcare in Houston, Texas who is licensed to practice medicine in
the state of Texas.
238. Dr. Karsan has practiced obstetrics and gynecology in Houston since 2001. As part of her practice, Dr. Karsan provides gynecological care, prenatal care, and obstetric care to her
patients and to her colleagues’ patients when she is on-call at the hospital where she has admitting privileges.
239. She is also trained to provide abortion care, and before S.B. 8, she routinely provided abortions to her patients as part of their comprehensive reproductive health care needs.4
240. Over her career, Dr. Karsan has personally treated pregnant patients with a wide variety of obstetrical and other health complications that develop during pregnancy, including but
not limited to: miscarriage; ectopic pregnancy; management of fetal demise; complications of 4 Before S.B. 8, Texas law generally permitted physicians to provide a limited number of abortions per year up to 18 weeks LMP in their private practices, or up to 22 weeks LMP in a hospital or ambulatory surgical center. See Tex. Health & Safety Code §§ 171.004, 171.045, 245.004.
pregnancy, including cervical insufficiency, PPROM, bleeding, preeclampsia, hyperemesis gravidarum; maternal comorbidities such as hypertension, diabetes, heart disease, kidney disease,
cancer, rheumatologic disorders, psychiatric conditions, including those that may lead to suicide; complicated twin pregnancies; lethal fetal anomalies; various genetic diagnoses, including trisomy
13, 18, and 21; structural fetal abnormalities; and molar pregnancy. Dr. Karsan consults with specialists in the care of such patients—including but not limited to emergency medicine
hospitalists, cardiologists, oncologists, anesthesiologists, and maternal fetal medicine doctors— and actively participates in the care of her patients who are treated for emergent health conditions during their pregnancies. Dr. Karsan intends to continue providing the full scope of care to her pregnant patients in the future.
241. Since S.B. 8 took effect, Dr. Karsan has seen the devastating impact of Texas’s abortion bans on her practice and on that of her colleagues. In Dr. Karsan’s experience, widespread
fear and confusion regarding the scope of Texas’s abortion bans have chilled the provision of necessary obstetric care, including abortion care. Dr. Karsan and her colleagues fear that
prosecutors and politicians will target them personally and threaten the state funding of the hospitals where they work if they provide abortion care to pregnant people with emergent medical
conditions.
242. Dr. Karsan has seen that physicians in Texas are even afraid to speak out publicly about this issue for fear of retaliation. Dr. Karsan feels she is only able to speak out publicly
because she is in private practice and not directly employed by a state-funded hospital.
243. Dr. Karsan has also personally treated pregnant patients with emergent medical conditions since S.B. 8 took effect and consulted with colleagues about the care of such patients.
In Dr. Karsan’s experience, an emergent condition or emergency situation cannot be formulaically defined and will always depend on the patient’s unique situation.
244. Since Roe v. Wade was overturned, Dr. Karsan has treated patients with emergent medical conditions, including patients carrying pregnancies with lethal fetal conditions who
needed treatment for complications like kidney stones, bipolar disorder, and hemorrhage. Before S.B. 8, Dr. Karsan would have offered abortion care to these patients. Now, Dr. Karsan instead
has had to give them information about where to seek abortion care out of state.
245. Dr. Karsan sues on her own behalf and on behalf of her patients.
O. Dr. Judy Levison
246. Plaintiff Judy Levison, M.D., M.P.H., is a board-certified OB/GYN licensed to practice medicine in the state of Texas. Dr. Levison is also a professor in the Department of
Obstetrics and Gynecology at Baylor College of Medicine in Houston, Texas.
247. During her career, Dr. Levison has worked in private practice and in educational settings in Washington, California, and Texas providing obstetrical and gynecological care,
including abortion, as well as teaching medical students, residents, and fellows. For the last 23 years, Dr. Levison has practiced obstetrics and gynecology in Houston and taught at Baylor
College of Medicine, developing internationally recognized expertise in the treatment of pregnant people with HIV. Over her career, Dr. Levison has personally treated pregnant patients and
consulted with relevant specialists regarding many different emergent conditions that arise during pregnancy, including, but not limited to: miscarriage; management of fetal demise; ectopic
pregnancy; infections during pregnancy, including as a result of PPROM; bleeding and hemorrhage; comorbidities such as hypertension and diabetes; preeclampsia; hyperemesis
gravidarum; heart conditions, including pulmonary hypertension and valve replacement; kidneydisease; cancer, including cervical and breast cancer; rheumatological problems like lupus or
Sjogren’s syndrome; psychological conditions, including those that may lead to suicide; and various fetal diagnoses including trisomy 13, 18, and 21, neural tube defects like anencephaly,
gastric and cardiac defects, Potter syndrome (where the baby does not properly develop kidneys), and molar pregnancy.
248. Since S.B. 8 took effect, Dr. Levison has seen the devastating impact of Texas’s abortion bans on her practice and on that of her colleagues. In Dr. Levison’s experience,
widespread fear and confusion regarding the scope of Texas’s abortion bans has chilled the provision of the standard of practice of obstetric care, including counseling patients about the
options for genetic screening for chromosomal diagnoses or neural tube defects and the options for abortion if a lethal fetal diagnosis was found. Dr. Levison and her colleagues fear that
prosecutors and politicians will target them personally and threaten the state funding of their hospitals if they provide abortion care to pregnant people with emergent medical conditions.
249. Dr. Levison partially retired from the practice of medicine in July 2022 in part because, after the Supreme Court overturned Roe v. Wade and abortion became nearly completely
banned in Texas, she felt she could no longer practice medicine the way she was trained and consistent with her ethical obligations as a physician. Texas’s abortion bans have made it
impossible for her to provide comprehensive, high-quality reproductive care to her patients.
250. While she is partially retired, Dr. Levison can still see patients and regularly consults with colleagues regarding a wide array of pregnancy complications necessitating abortion care, including various specialists. She regularly consults with OB/GYN and MFM colleagues regarding the care of pregnant patients under Texas’s abortion bans. Specifically, since S.B. 8 went
into effect, Dr. Levison has consulted with and assisted colleagues regarding patient cases that arguably fall under the Emergent Medical Condition Exception, including patients with PPROM,
cancer, diabetes, hypertension, suicidal ideation, and who need fetal reduction procedures. Dr. Levison plans to continue to consult with her colleagues on these cases in the future.
251. Dr. Levison has seen that physicians in Texas are afraid to speak out publicly about Texas’s abortion bans for fear of retaliation. Dr. Levison feels she is only able to speak out publicly
because she is in the process of retiring.
252. Dr. Levison sues on her own behalf and on behalf of her patients.
253. Plaintiffs Dr. Karsan and Dr. Levison are collectively referred to throughout this Complaint as the “Physician Plaintiffs.”
II. DEFENDANTS
254. Defendant State of Texas is responsible for the enforcement of Texas laws, including its abortion bans and the Emergent Medical Condition Exception. The State of Texas
includes private citizens that could potentially enforce S.B. 8.
255. Defendant Ken Paxton is the Attorney General of Texas. As Attorney General, he is empowered to institute an action for a civil penalty against physicians licensed in Texas who
violate or threaten to violate any provision of the Texas Medical Practice Act, including provisions triggered by a violation of the Trigger Ban. Tex. Occ. Code § 165.101; id. § 164.053. The Attorney General is additionally empowered to file a civil action against any person who violates the Trigger Ban, seeking a civil penalty of at least $100,000, plus attorney’s fees and costs. Tex. Health & Safety Code § 170A.005. Defendant Paxton has threatened that he will “strictly enforce” the Trigger Ban.5 Defendant Paxton is sued in his official capacity and may be served with process at 300 West 15th Street, Austin, Texas 78701.
5 Ken Paxton, Tex. Att’y Gen., Advisory on Texas Law Upon Reversal of Roe v. Wade (June 24, 2022), https://www.texasattorneygeneral.gov/sites/default/files/images/executive-management/Post-Roe%20Advisory.pdf.
256. Defendant Texas Medical Board (“TMB”) is the state agency mandated to regulate the practice of medicine by licensed doctors in Texas. TMB must initiate disciplinary action
against licensees who violate any provision of the Texas Medical Practice Act or Chapter 171 of the Texas Health and Safety Code. Tex. Occ. Code § 165.001; id. § 164.055. TMB may impose
discipline on a doctor who violates any state law “connected with the physician’s practice of medicine” because such violation constitutes per se “unprofessional or dishonorable conduct.”
Tex. Occ. Code § 164.053(a)(1); id. § 164.052(a)(5); see also id. § 164.053(b) (making clear that “[p]roof of the commission of the act while in the practice of medicine . . . is sufficient” for
discipline). TMB “shall” also “revoke the license, permit, registration, certificate, or other authority” of a physician who violates the Trigger Ban. Tex. Health & Safety Code § 170A.007.
TMB may be served with process at 1801 Congress Avenue, Suite 9.200, Austin, Texas 78701.
257. Defendant Stephen Brint Carlton is the Executive Director of TMB and in that capacity serves as the chief executive and administrative officer of TMB. Tex. Occ. Code
§ 152.051. Mr. Carlton is sued in his official capacity and may be served with process at 1801 Congress Avenue, Suite 9.200, Austin, Texas 78701.
JURISDICTION AND VENUE
258. This action is brought pursuant to Texas Rules of Civil Procedure 680 to 693, Texas Civil Practice and Remedies Code Chapter 65, and the common law of Texas to obtain declaratory
and injunctive relief against Defendants.
259. This Court has jurisdiction over this matter, pursuant to the Texas Uniform Declaratory Judgments Act, Texas Civil Practice and Remedies Code § 37.001, et seq. (“UDJA”),
Sections 24.007 and 24.008 of the Texas Government Code, and Texas Constitution, Article V,
260. Further, this Court has jurisdiction over Plaintiffs’ request for declaratory and injunctive relief against Defendants because the UDJA waives sovereign and governmental
immunity for challenges to the validity of statutes.
261. The Court also has jurisdiction over the Defendants sued in their official capacity because the Ultra Vires Doctrine permits claims brought against state officials for nondiscretionary
acts unauthorized by law. See Tex. Civ. Prac. & Rem. Code §§ 37.003, 37.004, 37.006; Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 634-635 (Tex. 2010); Tex. Dep’t
of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011).
262. Finally, Texas’s abortion bans are enforced through civil means, including steep civil penalties and disciplinary sanctions. See, e.g., Tex. Occ. Code §§ 165.001, 164.052(a)(5),
164.053(a), 164.055; Tex. Health & Safety Code §§ 170A.005, 170A.007. This Court has jurisdiction to render a declaratory judgment regarding a civil enforcement scheme.
263. Although there are also potential criminal penalties for providing a prohibited abortion in Texas, this Court has jurisdiction to enter declaratory and injunctive relief because of
the bans’ civil penalties. Additionally, the Court has jurisdiction to enter declaratory and injunctive relief because criminal enforcement threatens irreparable injury to physicians’ vested property
interests in their medical licenses and liberty interests in pursuit of their chosen profession. See Tex. Propane Gas Ass’n v. City of Houston, 622 S.W.3d 791, 798–99 (Tex. 2021) (holding that
district court had jurisdiction to render declaratory judgment regarding municipal criminal ordinances because the ordinances threatened irreparable injury to the plaintiff’s property rights);
TitleMax of Tex., Inc. v. City of Austin, 639 S.W.3d 240, 248 (Tex. Ct. App. 2021) (same). This Court also has jurisdiction because application of the abortion bans is causing pregnant people to
face death, sustain physical injury, and endure extreme mental anguish, which is unconstitutional and threatens irreparable injury to Physician Plaintiffs’ and their patients’ rights. State v. Morales, 869 S.W.2d 941, 942 (Tex. 1994).
264. Venue is proper in Travis County because Defendants State of Texas, Paxton, TMB, and Carlton reside or have their principal office in Travis County. Tex. Civ. Prac. & Rem.
Code § 15.002(a).
265. Plaintiffs’ request for prospective relief is specifically authorized as a request for a declaratory judgment under the UDJA. An action for a declaratory judgment is neither legal nor
equitable but is sui generis—that is, of its own kind. Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970). Without such declaratory judgment, Plaintiffs have
no meaningful remedy for their state law claims in accordance with Texas Constitution
Article I, § 13.
FACTUAL ALLEGATIONS
I. BACKGROUND
A. Abortion is Health Care
266. Every major mainstream medical organization, including the American Medical Association (“AMA”), the American College of Obstetricians and Gynecologists (“ACOG”), the
American College of Emergency Physicians (“ACEP”), and the Society for Maternal-Fetal Medicine (“SMFM”), recognizes that abortion is necessary health care. These organizations are
all opposed to governmental interference into patient-physician relationships. Such interference is contrary to the appropriate exercise of professional judgment that medical professionals need to exercise to protect patients’ well-being. As the experiences of Amanda, Lauren M., Lauren H., Anna, Ashley, Kylie, Jessica, Samantha, Dr. Dennard, Taylor, Kiersten, Lauren V., and Elizabeth demonstrate, abortion bans are a paradigmatic example of such governmental interference.
270. While the medical treatment is generally the same, medical professionals may draw a distinction from the patient’s perspective between a “spontaneous abortion” or “miscarriage”—
where the embryo or fetus has no discernable cardiac activity—and an “induced abortion”— where the embryo or fetus has cardiac activity. The pregnant person’s desire to have a baby or not,
however, has no bearing on whether or not an abortion is considered spontaneous or induced.10
271. The majority of abortions in the United States are accomplished either through use of medications (medication abortion) or via an outpatient procedure (procedural abortion).
Medication abortions are typically indicated up to 10.0 weeks and involve the ingestion of two medications to terminate the pregnancy, expelling the pregnancy via vaginal bleeding, akin to a
heavy period or spontaneous miscarriage. Procedural abortions are possible throughout pregnancy and involve a two-step process where the medical provider first partially dilates the patient’s cervix (using medications and/or mechanical or osmotic dilators), then evacuates the uterus using suction aspiration, instruments, or some combination. Dilation is done either the same day or the day before, and the evacuation phase of a procedural abortion typically takes around 5 minutes in the first trimester of pregnancy and 10-20 minutes in the second trimester, depending on the patient’s response to the procedure and the complexity of the case.11
272. The only other medically proven abortion method is induction abortion, where a physician uses medication to induce labor and delivery of a non-viable fetus. Induction of labor
accounts for only about 2% of second-trimester abortions nationally. Induction abortions must be performed in a hospital or similar facility that has the capacity to monitor a patient overnight and 10 See Practice Bulletin 200: Early Pregnancy Loss, ACOG (Nov. 2018)
https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2018/11/early-pregnancy-loss; Andrew
Moscrop, Miscarriage or Abortion? Understanding the Medical Language of Pregnancy Loss in Britain; A Historical Perspective, 39 Med. Humanities 98 (2013), https://mh.bmj.com/content/39/2/98.
11 See The Safety and Quality of Abortion Care in the United States, Nat’l Acads. of Sci., Eng’g, & Med. (2018) at 51-65.
provide pain management (e.g., epidural). Induction abortions can last anywhere from five hours to three days; are extremely expensive; entail more pain, discomfort, and recovery time for the
patient—similar to giving birth—than procedural abortion; and are medically contraindicated for some patients.12
273. While some people attempt to stigmatize abortion care by misusing or conflating pregnancy terminology—e.g., villainizing particular methods of abortion or attempting to
distinguish “elective abortion” from “miscarriage”—mainstream medical professionals understand that patients in any number of circumstances need abortions and that pregnant people,
in consultation with their medical providers, should be able to choose the method of abortion appropriate for their circumstances.
B. Some Pregnancies Pose Emergent Medical Risks to Pregnant People’s Lives and Health
274. All pregnancy care, including abortion, is time sensitive. Medically unnecessary delays in access to abortion care always harm pregnant people. Yet pregnancy can lead to any
number of urgent or emergent conditions, if not outright medical emergencies, where especially prompt termination of pregnancy is necessary to preserve the life, health, and/or future fertility of
the pregnant person. The American Board of Emergency Medicine (“ABEM”) defines “emergent” conditions as cases where the “[p]atient presents with symptoms of an illness or injury that may
progress in severity or result in complications with a high probability for morbidity if treatment is not begun quickly.”13
12 See id. at 5-8, 66-68.
13 Michael S. Beeson et al., The 2019 Model of the Clinical Practice of Emergency Medicine, 59 J. of Emergency Med. 96 (2020), https://www.jem-journal.com/article/S0736-4679(20)30154-2/fulltext.
275. ACOG has emphasized that “it is impossible to create an inclusive list of conditions that qualify” as emergent or emergencies and thus fall under an exception to a state’s abortion ban.
Moreover, “it is dangerous to attempt to create a finite list of conditions to guide the practice of clinicians attempting to navigate their state’s abortion restrictions.” This is true for many reasons,
including: “The practice of medicine is complex and requires individualization—it cannot be distilled down to a one-page document or list that is generalizable for every situation; No single
patient’s condition progresses at the same pace; A patient may experience a combination of medical conditions or symptoms that, together, become life-threatening; Pregnancy often
exacerbates conditions or symptoms that are stable in nonpregnant individuals; There is no uniform set of signs or symptoms that constitute an ‘emergency’; Patients may be lucid and appear to be in stable condition but demonstrate deteriorating health.”14 Nonetheless, medical organizations have described broad categories of types of conditions in pregnancy that are emergent.
276. ABEM’s Model of Clinical Practice of Emergency Medicine, the definitive source and guide to the core content found on emergency physicians’ board examinations, contains
sections on “Complications of Pregnancy,” “Complications of Labor,” and “Complications of Delivery.” The conditions include: (1) ectopic pregnancy; (2) conditions that can lead to dangerous
bleeding or hemorrhage, including placental issues; (3) severe forms of hypertension; (4) conditions that can lead to dangerous infection, including premature rupture of membranes;
and (5) extreme hyperemesis gravidarum (dangerous nausea and vomiting leading to hospitalization).15
14 Understanding and Navigating Medical Emergency Exceptions in Abortion Bans and Restrictions, ACOG
(Aug. 15, 2022), https://www.acog.org/news/news-articles/2022/08/understanding-medical-emergency-exceptions-in-abortion-bans-restrictions.
15 See Beeson et al., supra note 13.
277. An ectopic pregnancy is a pregnancy where a fertilized egg implants and grows outside the uterine cavity, usually in the fallopian tube. Ectopic pregnancies cannot result in live
births and are life-threatening to the pregnant person because the pregnancy can rupture and cause massive internal bleeding. Ectopic pregnancies must be terminated with medication or surgery as soon as possible after diagnosis.16
278. Cesarean-scar ectopic pregnancy, where a pregnancy implants in the scar from a previous cesarean delivery, is considered an emergent condition where, like any other ectopic
pregnancy, the recommended treatment is termination of pregnancy.17
279. Hemorrhaging during pregnancy is particularly dangerous for patients, as it can lead to organ damage, organ failure, or even death. A variety of preexisting chronic health
conditions and health conditions that develop during pregnancy can become emergent due to the risk of hemorrhage during pregnancy. These conditions include, but are not limited to: placenta previa (when the placenta covers the cervix); placental abruption (when the placenta prematurely detaches from the uterine lining); placenta accreta (when the placenta grows into the uterine wall); uterine fibroids (that inhibit the uterus from contracting effectively and stopping bleeding from the
placental implantation site); and other forms of first or second trimester bleeding.18
280. Severe forms of hypertension in pregnancy can also lead to life-threatening conditions. For example, preeclampsia is a complication of pregnancy which, when severe, can
16 See Practice Bulletin 193: Tubal Ectopic Pregnancy, ACOG (Mar. 2018), https://www.fertilehealthexpert.com/wp-content/uploads/2021/11/Ectopic-Pregnancy-ACOG.pdf.
17 SMFM Consult Series #63: Cesarean Scar Ectopic Pregnancy, Soc’y for Maternal Fetal Med. (Sept. 2022),
https://www.smfm.org/publications/448-smfm-consult-series-63-cesarean-scar-ectopic-pregnancy#:~:text=Cesarean
%20scar%20ectopic%20pregnancy%20is,in%20securing%20a%20prompt%20diagnosis.
18 See Practice Bulletin 222: Gestational Hypertension and Preeclampsia, ACOG (June 2020), https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2020/06/gestational-hypertension-and-preeclampsia; Practice Bulletin 203: Chronic Hypertension in Pregnancy, ACOG (Jan. 2019),
https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2019/01/chronic-hypertension-in-pregnancy
cause seizures, injury to the pregnant person’s liver and kidneys, stroke, and death. HELLP (Hemolysis, Elevated Liver Enzymes and Low Platelets) syndrome is a particularly dangerous
variant of preeclampsia. For some patients, other forms of hypertension (sometimes in conjunction
with other chronic conditions like obesity and diabetes) can increase in severity and cause the same
complications seen with severe preeclampsia.
281. Infection of the reproductive organs, which can lead to chorioamnionitis (infection of the placenta or amniotic fluid) or sepsis (where the body’s response to infection damages its
own tissue), is another risk that can cause a pregnant person’s medical condition to become emergent. Premature dilation of the cervix, for example, dramatically increases a pregnant person’s
risk of infection and can be caused by conditions like an incompetent cervix (weak cervical tissue) and/or PPROM before the onset of labor. PPROM has a relatively high incidence, occurring in
approximately 2% to 3% of pregnancies in the United States, and is an emergent condition itself due to the high risk of infection it entails.19
282. Other medical conditions can become emergent during pregnancy, either because being pregnant causes or exacerbates a chronic condition or increases other health risks, or because
treatment for the chronic condition is unsafe while pregnant. For example: certain cancers requiring radiation, chemotherapy, or major surgery; certain cardiac, autoimmune, respiratory, or
endocrine diseases; certain cases of hyperemesis gravidarum; and certain psychiatric conditions like bipolar disorder, major depressive disorder, anxiety disorders, and psychotic disorders can all be emergent, depending on the circumstances. Intentional acts of violence or accidents, e.g., motor vehicle crashes, firearm violence, intimate partner violence, etc., and substance use disorder can
19 See Practice Bulletin 217: Prelabor Rupture of Membranes, ACOG (Mar. 2020), https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2020/03/prelabor-rupture-of-membranes.also lead to emergent conditions. Because each patient’s circumstances are unique, it is within the purview of the patient’s medical provider to determine whether the patient’s comorbidities and/or other circumstances make abortion part of the patient’s recommended course of treatment.20
283. Finally, certain fetal conditions or diagnoses can increase the risks to a pregnant person’s health such that, when combined with the patient’s other comorbidities, her medical
provider may determine that an abortion is necessary or recommended to prevent serious jeopardy to the pregnant person’s health.
284. For example, neural tube defects (including anencephaly); certain trisomies like trisomy 13 and 18 (the presence of an extra chromosome); triploidy (the presence of an extra set
of chromosomes); certain gastric and cardiac defects in the fetus; and Potter syndrome (where the fetus does not properly develop kidneys), are examples of conditions where the fetus either will not survive delivery or likely will not survive more than a few hours or days after birth. As in Lauren M.’s case, cystic hygromas may indicate the presence of one or more of these fetal
conditions. Abortion is generally indicated for patients with such pregnancies, as abortion is typically medically safer for the pregnant person than carrying the pregnancy to term and
delivering a baby with no meaningful chance of survival.
285. Some fetal conditions present particularly acute risks to the pregnant person. For example, partial molar pregnancy is a condition where the placenta transforms into an invasive
cancer, thus creating an emergency for the pregnant person. Mirror syndrome is an emergent 20 See High-Risk Pregnancy, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/22190-high-risk-pregnancy (last updated Dec. 14, 2021) (describing how certain preexisting conditions exacerbate the risks of the pregnancy); Practice Bulletin 189: Nausea and Vomiting of Pregnancy, ACOG (Jan. 2018),
https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2018/01/nausea-and-vomiting-of-pregnancy; Nicole T. Christian & Virginia F. Borges, What Dobbs Means for Patients with Breast Cancer, 387 N.
Engl. J. Med. 765-67 (Sept. 1, 2022)
complication of pregnancy where the pregnant person and fetus both experience severe fluid retention that can lead to both fetal and maternal demise.
286. In the case of multiple pregnancies (twins, triplets, etc.), a fetal condition in one or more of the fetuses, combined with the pregnant person’s other comorbidities, can lead to an
emergent condition where selective abortion (sometimes called selective “fetal reduction” or “fetal termination”) of one (or more) fetus is necessary to give the pregnant person and the remaining fetus(es) the best chance of survival.21
287. The discussion above highlights some of the emergent medical conditions necessitating prompt abortion care, but the list is by no means exhaustive, nor could it be.
Mainstream medical associations emphasize that physician discretion to diagnose and treat emergent conditions is paramount to patient health.
288. Thus, where state law seeks to create a statutory exception to its abortion ban to allow abortion care for the purpose of preserving the life or health (including fertility) of the
pregnant person, it must recognize that it is within the purview of the medical provider to determine the appropriate course of treatment for the patient. When a physician determines that such
treatment includes abortion, the physician must be able to provide that treatment without concern that a prosecutor, jury, or disciplinary board second guessing their medical judgment will send
them to prison and/or revoke their medical license.
289. The nature of abortion as critical health care is all the more acute in Texas, where maternal mortality and morbidity rates are rising. Texas’s Maternal Mortality and Morbidity
21 Practice Bulletin 231: Multifetal Gestations Twin Triplet and Higher-Order Multifetal Pregnancies, ACOG (June 2021), https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2021/06/multifetal-gestations-twin-triplet-and-higher-order-multifetal-pregnancies.
Review Committee and the Department of State Health Services recently released their joint biennial report, and the results are shocking and alarming:
290. Among the documented pregnancy-related deaths in Texas, a staggering 90% were preventable.22
291. According to the report, the maternal mortality ratio for Texas is higher than the national average—20.2 maternal deaths per 100,000 live births (in 2017, the latest year for which
data is available), compared to the national average of 17.4 deaths per 100,000 live births (in 2018, the latest year for which data is available).23
292. The report finds that the leading cause of pregnancy-related deaths in Texas was obstetric hemorrhage, and the leading underlying causes of hemorrhage were ruptured ectopic
pregnancy, uterine rupture, placental abruption, and placenta accreta—all conditions that are considered emergent. In 2019, at least 13 women in Texas died from a ruptured ectopic
pregnancy.24
293. The report shows that Severe Maternal Morbidity (“SMM”)—defined as “unexpected outcomes of labor and delivery that result in significant short- or long-term consequences to a woman’s health” that “if left untreated, could result in death”—increased significantly between 2018 to 2020, surging from 58.2 to 72.7 cases per 10,000 delivery hospitalizations. The total rate of pregnancy-related illnesses and injuries is likely much higher, as
22 Texas Maternal Mortality and Morbidity Review Committee and Department of State Health Services Joint Biennial Report 2022 (“Texas MMRC 2022 Report”) at 8, https://www.dshs.texas.gov/sites/default/files/legislative/2022-Reports/Joint-Biennial-MMMRC-Report-2022.pdf.
23 Id. at 10; Maternal Mortality Rates in the United States, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/nchs/data/hestat/maternal-mortality-2021/maternal-mortality-2021.htm.
24 Texas MMRC 2022 Report at 8
297. The Texas Maternal Mortality Report further notes that “delay in referring or access to treatment,” “lack of standardized policies/procedures,” “failure to screen/inadequate assessment
of risk,” “lack of continuity of care,” and “lack of access/financial resources” are all contributing factors in maternal deaths in Texas.30
298. Barriers such as these disproportionately impact Black patients. Black patients face significant barriers to quality, equitable health care, including delays in care, systemic
discrimination, and implicit biases in their interactions with health care providers.31 Black women in Texas also face disproportionate poverty: 19.5% of Black Texans live in poverty compared to
10.5% of white Texans. And 15.5% of Texan women live in poverty compared to 13% of Texan men.32 This, coupled with Texas’s restrictive Medicaid and insurance coverage policies, renders
health care unaffordable for many.33ss7005a1.htm?s_cid=ss7005a1_w; The Facts, Stats, and Impacts of Diabetes, Ctrs. for Disease Control & Prevention
(Jun. 20, 2022), https://www.cdc.gov/diabetes/library/spotlights/diabetes-facts-stats.html; Data & Statistics on Sickle
Cell Disease, Ctrs. for Disease Control & Prevention (May 2, 2022), https://www.cdc.gov/ncbddd/sicklecell/
data.html; Maria Dall’Era, Systemic Lupus Erythematosus, in John B. Imboden et al., (eds.), Current Rheumatology Diagnosis and Treatment 3rd ed, New York, NY: McGraw-Hill (2013).
30 Texas MMRC 2022 Report at D-2, D-3. In fact, a report by March of Dimes found that 49.2% of Texas counties are “maternity care deserts” where maternity health services are entirely absent. It also found that an additional 22.8% of Texas counties have only low or moderate access where there are few hospitals or birth centers, few obstetric care providers, or a high proportion of women without insurance coverage. Maternity Care Desert: Texas, 2020, March of Dimes (last visited Mar. 2, 2023), https://www.marchofdimes.org/peristats/data?reg=99&top=
23&stop=641&lev=1&slev=4&obj=9&sreg=48.
31 Michael T. Halpern & Debra J. Holden, Disparities in Timeliness of Care for U.S. Medicare Patients
Diagnosed with Cancer, 19(6) Current Oncology e404-13 (2012); Jasmine M. Miller-Kleinhenz et al., Racial
Disparities in Diagnostic Delay Among Women with Breast Cancer, 18(10) J. Am. Coll. Radiol. 1384 (2021); Joe
Feagin & Zinobia Bennfield, Systemic Racism and U.S. Health Care, 103 Soc. Sci. & Med. 7 (2013); Bani Saluja &
Zenobia Bryant, How Implicit Bias Contributes to Racial Disparities in Maternal Morbidity and Mortality in the
United States, 30(2) J. Women’s Health 270-273 (2021); Brenda Pereda & Margret Montoya, Addressing Implicit
Bias to Improve Cross-Cultural Care, 61 Clinical Obstetrics & Gynecology 2, 3-5 (2018).
32 American Community Survey S107: Poverty Status in the Past 12 Months, United States Census Bureau
(last visited Mar. 1, 2023), https://data.census.gov/table?q=gender+poverty+in+texas.
33 The State of Reproductive Health and Rights: A 50-State Report Card, Population Institute (Feb. 2021),
https://www.populationinstitute.org/resource/the-state-of-reproductive-health-and-rights-a-50-state-report-card
299. The Texas Maternal Mortality Report ends with multiple recommendations that are at odds with the demonstrated impact of Texas’s abortion bans. For example: “[p]romote patient-
centered care through shared decision-making recognizing women as experts in their values and preferences and supporting informed, collaborative approaches to making health care decisions”; “support health systems with implementing evidence-based standards, guidelines, and practices, increasing patient and family engagement, promoting health care quality improvement, and reducing maternal health disparities”; “[s]upport emergency and maternal health service coordination” as “[e]mergency health providers’ knowledge about maternal health, as well as communication and coordination with obstetric and women’s health professionals, are critical factors in preventing pregnancy-related deaths.”34
C. Texas’s Abortion Bans
300. Texas has several abortion bans relevant to Amanda, Lauren M., Lauren H., Anna, Ashley, Kylie, Jessica, Samantha, Dr. Dennard, Taylor, Kiersten, Lauren V., Elizabeth, and the
Physician Plaintiffs and their patients.
1. Texas’s Definition of Abortion
301. Texas law does not define “abortion” using the medical definition. Rather, Texas law states: “‘Abortion’ means the act of using or prescribing an instrument, a drug, a medicine, or
any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral
contraceptives. An act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused
34 Texas MMRC 2022 Report at 16, 17, 20
by spontaneous abortion; or (C) remove an ectopic pregnancy.” Tex. Health & Safety Code § 245.002(1).
302. Texas law defines “ectopic pregnancy” as “the implantation of a fertilized egg or embryo outside of the uterus.” Tex. Health & Safety Code § 245.002(4-a).
303. While there is no express definition, it is generally understood that in the context of Texas’s definition of abortion, “dead” means that there is no cardiac activity present in the
embryo or fetus. See, e.g., Tex. Health & Safety Code §§ 171.201-203 (emphasizing importance of a “fetal heartbeat” or “cardiac activity” to “unborn life”).
304. Abortions done to “save the life or preserve the health of an unborn child” are not considered abortions under Texas law. Tex. Health & Safety Code § 245.002(1)(A) (emphasis
added); see also Tex. Health & Safety Code § 170A.002(b) (applying exception to abortion ban where “the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create . . . a serious risk of substantial impairment of a major bodily function of the pregnant female.”).
305. Texas’s abortion bans cite back to Texas’s definition of abortion, meaning that neither medical care involving removal of an ectopic pregnancy, nor removal of pregnancy tissue
where no cardiac activity is present, is an abortion under Texas law.
2. Trigger Ban
306. Texas’s criminal ban on abortion is often referred to as the Trigger Ban because, while signed into law in 2021, it specified a contingent effective date and did not take effect until
August 25, 2022, 30 days after the Supreme Court issued its judgment overturning Roe v. Wade.35
35 Defendant Paxton published an “Advisory on Texas Law” after the U.S. Supreme Court issued its opinion
307. The Trigger Ban states that “[a] person may not knowingly perform, induce, or attempt an abortion,” citing to Texas’s longstanding definition of abortion. Tex. Health & Safety
Code §§ 170A.001(a), 170A.002(a).
308. There are both criminal and civil penalties for violations of the Trigger Ban.
309. A person can be charged with either a first- or second-degree felony for violating the Trigger Ban. Tex. Health & Safety Code § 170A.004. First-degree felonies are subject to
imprisonment for life, or a term of between 5 and 99 years. Tex. Penal Code § 12.32. Second- degree felonies are punishable by imprisonment for a term of between 2 and 20 years. Tex. Penal
Code § 12.33.
310. Further, the Trigger Ban states that the relevant licensing authority, the Texas Medical Board, “shall revoke the license, permit, registration, certificate, or other authority of a
physician or other health care professional who performs, induces, or attempts an abortion in violation” of the Trigger Ban. Tex. Health & Safety Code § 170A.007.
311. Finally, any person who violates the Trigger Ban “is subject to a civil penalty of not less than $100,000 for each violation,” and “[t]he attorney general shall file an action to recover
a civil penalty assessed under this section and may recover attorney’s fees and costs incurred in bringing the action.” Tex. Health & Safety Code § 170A.005.
312. The only exception to the Trigger Ban is an abortion performed by a physician on a patient with an emergent medical condition (see infra ¶ 324). in Dobbs v. Jackson Women’s Health Org., Case No. 19-1392, on June 24, 2022, that correctly noted the effective date of the Trigger Ban as 30 days after issuance of the “judgment” in Dobbs. Ken Paxton, Tex. Att’y Gen., Advisory
on Texas Law Upon Reversal of Roe v. Wade (June 24, 2022), https://www.texasattorneygeneral.gov/ sites/default/files/images/executive-management/Post-Roe%20Advisory.pdf. Defendant Paxton later published an “Updated Advisory on Texas Law” upon issuance of the Dobbs judgment that confirmed that the Trigger Ban would take effect August 25, 2022. Ken Paxton, Tex. Att’y Gen., Updated Advisory on Texas Law Upon Reversal of Roe v. Wade (July 27, 2022), https://texasattorneygeneral.gov/sites/default/files/images/executive-management/
Updated%20Post-Roe%20Advisory%20Upon%20Issuance%20of%20Dobbs%20Judgment%20(07.27.2022).pdf
3. Senate Bill 8
313. Senate Bill 8 of 2021 prohibits physicians from providing an abortion in Texas if the embryo or fetus has detectible cardiac activity. Tex. Health & Safety Code §§ 171.201-204.
S.B. 8 took effect in September of 2021 and creates additional civil penalties for physicians who perform abortions prohibited by S.B. 8.
314. Violations of S.B. 8 are subject to a bounty-hunting civil enforcement scheme allowing any individual to seek “statutory damages in an amount of not less than $10,000 for each
abortion that the defendant performed” and “injunctive relief sufficient to prevent the defendant from violating” S.B. 8 in the future. Tex. Health & Safety Code §§ 171.207-211.
315. Like the Trigger Ban, the only exception to S.B. 8’s ban on abortion in pregnancies with detectible cardiac activity is an abortion performed by a physician on a patient with an
emergent medical condition (discussed in detail below).
316. S.B. 8 also created new state documentation and reporting requirements that apply to all abortions performed under the Emergent Medical Condition Exception. As of September 1,
2021, all abortions performed under the Emergent Medical Condition Exception must be documented in detail by the treating physician. Specifically, the physician must “execute a written
document”: (1) that “certifies the abortion is necessary due to a medical emergency;” (2) that “specifies the medical condition the abortion is asserted to address;” (3) that “provides the medical
rationale for the physician’s conclusion that the abortion is necessary to address the medical condition;” (4) “place the document . . . in the pregnant woman’s medical record” (5) and
“maintain a copy of the document . . . in the physician’s practice records.” Tex. Health & Safety Code §§ 171.008, 171.205.
317. S.B. 8 also requires physicians who perform abortions at abortion facilities to report all abortions performed under the Emergent Medical Condition Exception to the state. Tex. Health
& Safety Code § 245.011(c)(10), (11) (requiring reporting to include “whether the abortion was performed or induced because of a medical emergency and any medical condition of the pregnant woman that required the abortion”).
4. Pre-Roe Ban
318. The Texas abortion ban at issue in Roe v. Wade (the “pre-Roe Ban”)36 also contained an exception for the life of the pregnant person.37 After the pre-Roe Ban was held
unconstitutional in 1973, it was removed from the Texas Penal Code and Texas Civil Code. The Texas Legislature then enacted a comprehensive statutory scheme permitting and regulating
abortion. In light of those later enactments, the Fifth Circuit held that the pre-Roe Ban was impliedly repealed. McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004).38
319. On June 24, 2022, for the first time, the text of the pre-Roe Ban was placed on the Texas Legislature’s website, with the note that the relevant statutes were “held to have been
impliedly repealed in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004).”39 Despite that holding and subsequent litigation regarding the pre-Roe Ban, Defendant Paxton took the position that the pre- Roe Ban was immediately enforceable after Roe v. Wade was overturned. Courts addressing this
36 “If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.” 1925 Tex. Crim. Stat. 1191.
37 “By medical advice. Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” 1925 Tex. Crim. Stat. 1196.
38 See also Whole Woman’s Health v. Paxton, Civil Cause No. 2022-38397, 2022 WL 2314499 (Harris Cnty. Dist. Ct. June 27, 2022), injunction lifted by In re Paxton, No. 22-0527, 2022 WL 2425619 (Tex. July 1, 2022), case dismissed (Harris Cnty. Dist. Ct. Oct. 5, 2022); Texas v. Becerra, No. 5:22-cv-185-H, 2022 WL 3639525 (N.D. Tex.
Aug. 23, 2022), appeal docketed, No. 22-11037 (5th Cir. Oct. 25, 2022); Order, Fund Tex. Choice v. Paxton, No. 1:22-cv-00859 (W.D. Tex. Feb. 24, 2023), ECF No. 120.
39 Vernon’s Tex. Civ. Stats. ch. 6-1/2 (last updated Dec. 14, 2022), https://statutes.capitol.texas.gov/
Docs/SDocs/VERNON'SCIVILSTATUTES.pdf.
issue after Roe was overturned, however, largely disagree. See Order at 1, Fund Tex. Choice v. Paxton, No. 1:22-CV-859-RP (W.D. Tex. Feb. 24, 2023), ECF No. 120 (“[T]he Court finds that
the pre-Roe laws have been repealed by implication . . . .”); Texas v. Becerra, No. 5:22-CV-185- H, 2022 WL 3639525, at *2 (N.D. Tex. Aug. 23, 2022) (treating the pre-Roe Ban as enforceable
but noting that the Trigger Ban “reflects a more recent, more specific regulation of abortion and, normally, a more recent enactment governing the same subject supersedes prior enactments”).
D. Exception to Texas’s Abortion Bans for Emergent Medical Conditions
320. Texas’s abortion laws have long recognized that providing abortion care to pregnant people with emergent medical conditions is exempted from the state’s various restrictions
on the provision of abortion. Yet inconsistencies in the language of these provisions, the use of non-medical terminology, and sloppy legislative drafting have resulted in understandable
confusion throughout the medical profession regarding the scope of the exception.
1. History of the Emergent Medical Condition Exception
321. Texas’s Emergent Medical Condition Exception first appeared in the Texas Code in 2011, when Texas updated its informed consent requirements for abortion and created certain
exceptions for cases of so-called “medical emergency.” It defined “medical emergency” as “a life- threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as
certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Tex. Health & Safety
Code § 171.002(3) (hereinafter the “Definition Provision”).
322. Over the last ten years, Texas has added numerous requirements to its abortion code that, utilizing this definition, have exceptions for “medical emergencies.”40 For example, in 2017
Texas passed a ban on “dismemberment abortion”—essentially a ban on dilation and evacuation (“D&E”) abortions—that has an exception for “medical emergencies.” Tex. Health & Safety Code § 171.152(a).
323. S.B. 8 is another example. The only exception to S.B. 8’s abortion ban and its associated civil penalties is for patients where “a physician believes a medical emergency exists.”
Tex. Health & Safety Code § 171.205.
324. The same language in the Definition Provision appears as the sole exception to the Trigger Ban. Specifically, Texas’s criminal ban on abortion “does not apply if: (1) the person
performing, inducing, or attempting the abortion is a licensed physician; (2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced,
or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and (3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create: (A) a greater risk of the pregnant female’s death; or (B) a serious risk of substantial impairment of a major bodily function of the pregnant female.”Tex. Health & Safety Code § 170A.002(b).
40 See Tex. Health & Safety Code § 171.0124 (informed consent); Tex. Fam. Code §§ 33.002, 33.0022
(informed consent for minors); Tex. Ins. Code §§ 1218.001, 1696.001 (insurance coverage); Tex. Gov’t Code
§ 2273.002 (facility licensing); Tex. Health & Safety Code § 171.152(a) (ban on “dismemberment abortions”); Tex.Occ. Code § 164.052 (physician licensing)
328. Yet the Trigger Ban also prohibits a physician from “knowingly” providing a prohibited abortion. Thus, a physician does not violate the Trigger Ban by providing an abortion
in reliance on the exception unless the physician subjectively knows that in the exercise of reasonable medical judgment, the patient does not have a condition qualifying for the exception.
When a physician relies on the exception in good faith, the physician does not know that the exception does not apply. Stated differently, a physician cannot knowingly violate the ban if she
acts in good faith reliance on the exception.
329. Meanwhile, the Definition Provision’s language, which applies to S.B. 8, does not explicitly mention intent. Instead, the language “as certified by a physician” modifies the exception
language, suggesting that the treating physician’s good faith certification, buttressed by the documentation and reporting requirements for medical emergencies added to the code by S.B. 8,
governs the assessment of a patient’s circumstances.
330. Physicians confronted with the question of whether or not a patient qualifies for the Emergent Medical Condition Exception must consider not only their ethical responsibilities as
physicians and potential medical malpractice liability if they do not follow the standard of care, but the risk of loss of liberty and prison sentence they will face, Tex. Health & Safety Code
§ 170A.004, Tex. Penal Code §§ 12.32-12.33, and the potential loss of their license to practice medicine and pursue their chosen profession if they are found guilty of violating an abortion ban,
Tex. Occ. Code §§ 165.001, 164.052(a)(5), 164.053(a), 164.055; Tex. Health & Safety Code
§ 170A.007.
331. Understandable confusion regarding physicians’ level of discretion under Texas’s abortion bans and fear for the legal consequences if they are wrong, is leading to physicians
denying care to patients—including patients presenting with emergent conditions—even when such care likely would fall within the exception. As Plaintiffs’ experiences show, because of the
laws’ uncertainty, physicians are over-complying with the laws to the detriment of their patients’ lives and health.
332. Texas has failed to provide clarification or guidance on the meaning of the exception, despite being asked repeatedly. See infra ¶¶ 352-64.
333. Texas’s abortion bans can and should be read to ensure that physicians have wide discretion to determine the appropriate course of treatment, including abortion care, for their
patients who present with emergent medical conditions—without being second guessed by the Attorney General, the Texas Medical Board, a prosecutor, or a jury.
3. Conditions Included in the Emergent Medical Condition Exception 334. In addition to the conflicting language regarding physician intent, Texas law provides scant guidance for what the rest of the language in the Emergent Medical Condition Exception means. Nowhere in the code does Texas law define any of the following distinctions: “risk” versus “serious risk”; “insubstantial impairment” versus “substantial impairment”; or “minor bodily function” versus “major bodily function.” Nor does Texas law define what it means to have “a serious risk of a substantial impairment” or “a substantial impairment of a major bodily function.”
335. None of this terminology has standardized meaning in the medical profession, leaving physicians to guess at how to translate it into clinical practice. The lack of clarity is
preventing medical professionals from providing the care that their patients need.
336. The best reading of Texas law’s plain text in the context of supporting patient and physician autonomy requires, at a minimum, that: (1) measurement of risk is left to physician
judgment; (2) impairment of a “major bodily function” includes harm to reproductive functions and fertility (3) acute risk need not be already present or imminent; and (4) the patient’s condition
need not be presently “life-threatening.”
337. A condition placing the pregnant person at “risk” or “serious risk” includes any condition that, in the physician’s judgment, merits intervention to prevent “death” or “substantial
impairment of a major bodily function,” given the patient’s symptoms, medical history, and the physician’s experience and training.
338. While “major bodily function” is not defined in the Texas Health and Safety Code, the Texas Labor Code defines the term to include “reproductive functions.” Tex. Labor Code
§ 21.002(11-a) (“[M]ajor bodily function, includ[es], but [is] not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.”).
339. Accordingly, any physical condition that presents a serious risk of substantially impairing the patient’s future fertility falls within the exception. This includes any condition that
poses a serious risk of substantial impairment or loss of the patient’s uterus, ovaries, or other reproductive organs.
340. The exception does not require that any of the risks to the pregnant person be imminent. To the contrary, the exception only requires that a physician certify that the patient is
“in danger of death” or has a condition that creates “a serious risk of substantial impairment of a major bodily function.”
341. Nor does the best reading of the exception require that the pregnant person have a condition that is imminently and/or definitively “life-threatening.” While the exception references
a “life-threatening physical condition,” this phrase must be read together with the full language of the exception, which permits physicians to provide an abortion if the patient’s condition would
pose a serious risk to her health (specifically, a “serious risk of substantial impairment of a major bodily function”) if left untreated.
342. The Trigger Ban states that the Emergent Medical Condition Exception does not apply to abortions performed to prevent a pregnant person from harming themself: “A physician
may not” provide an abortion “if, at the time the abortion was performed, induced, or attempted, the person knew the risk of death or a substantial impairment of a major bodily function described by [the Emergent Medical Condition Exception] arose from a claim or diagnosis that the female would engage in conduct that might result in the female’s death or in substantial impairment of a major bodily function.” Tex. Health & Safety Code § 170A.002(c). The Definition Provision (and thus S.B. 😎 does not contain the same carve out.
343. Notwithstanding the Definition Provision’s use of the term “medical emergency,” the language of the exception—which also appears in the Trigger Ban without the use of the term
“medical emergency”—is broader than the type of medical conditions that physicians would consider “emergencies” under, for example, the Emergency Medical Treatment & Labor Act
(“EMTALA”).41
344. An analysis of Texas’s Emergent Medical Condition Exception and similar exceptions in other states’ abortion bans shows that Texas’s language is comparatively broad. Some states do not contain “emergency” exceptions at all, but only provide affirmative defenses to be used in prosecutions.42 Some states do not explicitly exclude ectopic pregnancies and/or
treatment for miscarriage from their definitions of abortion.43 Some states mention “impairment 41 See 42 U.S.C. § 1395dd(e)(1) (defining medical emergency to involve, among other things, “acute symptoms of sufficient severity (including severe pain)” that create a need for “immediate medical attention”).
42 See, e.g., Idaho Code § 18-622(3); N.D. Cent. Code § 12.1-31-12; Tenn. Code § 39-15-213(c).
43 See, e.g., Mo. Rev. Stat. § 188.015(1); Miss. Code § 41-41-45(1); Tenn. Code § 39-15-213(a)(1).
of a major bodily function” but require such impairment to be “irreversible” in addition to “substantial,” while other states limit their exception to life-threatening conditions.44 And some
states require a second physician to confirm that an exception applies.45
345. Reading the provisions of the Emergent Medical Condition Exception together, they permit physicians to provide an abortion to a patient where, in the physician’s good faith
judgment, the patient has a physical condition posing a risk of death or a serious risk to the patient’s health. Such conditions include, but are not limited to, the following: conditions that can lead to dangerous bleeding or hemorrhage, including placental conditions; dangerous forms of hypertension; conditions that can lead to dangerous infection, including premature rupture of
membranes; other medical conditions that can become emergent during pregnancy, either because being pregnant causes or exacerbates a chronic condition or increases other health risks, or because
44 See, e.g., Ark. Code § 5-61-303(3) (“‘Medical emergency’ means a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”); Ky. Rev. Stat. § 311.772(4)(a) (An abortion may be performed “to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant
woman.”); Okla. Stat. tit. 63, § 1-731.4(A)(2) (“‘Medical emergency’ means a condition which cannot be remedied by delivery of the child in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury including a life-endangering physical condition caused by or arising from the pregnancy itself.”); La. Stat. § 40:1061(F) (Abortion may be performed where “necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition,
or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”); Miss. Code § 41- 41-45(2) (“No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life.”); Mo. Rev. Stat. § 188.015(7) (“‘Medical emergency,’ a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”); S.D. Codified Laws § 22-17-5.1 (Abortion prohibited “unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female.”); Tenn. Code § 39-15-213(c)(2) (An abortion may be performed where “the abortion was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”); Utah Code § 76-7a-201(1)(a) (An abortion may be performed where “necessary to avert: (i) the death of the woman on whom the abortion is performed; or (ii) a serious risk of substantial and irreversible impairment of a major bodily function of the woman on whom the abortion is performed.”); H.B. 481 sec. 4(2), 2019 Leg., Reg. Sess. (Ga. 2019) (“‘Medical emergency’ means a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”).
45 See, e.g., Ala. Code § 26-23H-4; Utah Code § 76-7a-201(1)(b).
treatment for the chronic condition is unsafe while pregnant (with the exception of conditions whose emergent nature stems from the risk of self-harm, which are statutorily excluded); and
certain fetal conditions or diagnoses that can increase the risks to a pregnant person’s health such that, when combined with the patient’s other comorbidities, a patient’s medical provider may
determine that the patient has an emergent condition necessitating abortion.46 4. Legislative Intent Regarding the Scope of the Emergent Medical Condition Exception
346. In interpreting the Emergent Medical Condition Exception language, the intent of the legislature and lawmakers who make and enforce Texas’s abortion bans, while sparce, is
instructive.
347. In 2021, Senator Angela Paxton was the primary sponsor of the Trigger Ban in the Senate. During a debate on the Senate floor regarding the bill, Senator Paxton explained to her
Senate colleagues that it “would be the determination of the physician and the woman” whether or not the woman has “a physical condition” that meets the requirements of the Emergent Medical Condition Exception.47
348. In 2013, then-Representative Jodie Laubenberg was one of the primary sponsors on a bill banning abortion after 20 weeks of pregnancy that also contained the Emergent Medical
Condition Exception. The 20-week ban was ultimately passed into law as part of omnibus anti- abortion legislation, House Bill 2. During a debate on the House floor regarding House Bill 2,
Representative Laubenberg explained to her House colleagues that the Bill “gives the physician full authority to know what condition his patient is in and to have that authority to make that
46 Other emergent conditions, like ectopic pregnancy, are not included here because the necessary abortion care they require is explicitly excluded from Texas’s definition of abortion. See supra ¶¶ 301-02. 47 Senate Session, 87th Leg., Reg. Sess. (Tex. Mar. 29, 2021) (floor debate on Senate Bill 9, the companion
bill to House Bill 1280, the Trigger Ban), https://tlcsenate.granicus.com/MediaPlayer.php?view_id=49&clip_
id=15566 (beginning at 4:47:18).
determination.”48 She then repeated this understanding of what she described as a “very broad” exception eight more times during the floor debate.49
349. Representative Laubenberg also stated that she “would disagree” with a reading of the bill that blocked physicians from performing an abortion until “an infection has become so
severe [that it poses an immediate risk of death].” Consistent with this position, she agreed that “toxemia” and “ruptured membranes” (PPROM) “would be covered under [the] exception.”50
350. Yet the legislators who supported these bills and other politicians in Texas who championed them have largely remained silent since S.B. 8 took effect and Roe was overturned.
351. Meanwhile, confusion among the medical profession over the last year and a half regarding the scope and meaning of the exception has been widely reported, showing that
Plaintiffs’ experiences are the norm, not the exception.
352. Shortly after Roe v. Wade was overturned, the Texas Medical Association (“TMA”) asked state regulators to provide guidance to the state’s physicians on the scope of the exception.
Public reporting indicates that in July 2022, TMA sent a letter to the Texas Medical Board (“TMB”) saying it had received complaints that hospitals, administrators, and their attorneys are
prohibiting doctors from providing abortion services to patients with major pregnancy complications for fear of violating Texas’s abortion bans. The letter, which is not public, is said to
48 House Session, 83d Leg., 2d Called Sess., House Journal Suppl. S4–S6 (Tex. July 9, 2013) (floor debate on House Bill 2), https://journals.house.texas.gov/HJRNL/832/PDF/83C2DAY02SUPPLEMENTFINAL.PDF.
49 See id. (“This bill does give the physician the full autonomy and full authority to take care of his patient.”), id. (The exception language “places the physician at the center of this [determination],” so that “[i]t will be his judgment” whether the patient has met the threshold for an abortion under the exception.), id. (The bill “gives the physician full control” over determining whether the “threshold” for the emergent medical condition exception is met.), id. (“By this language, we’re allowing whatever the physician determines to be the condition that would impair
the physical life of the woman” to control.), id. (“[T]his language actually gives broad coverage by allowing the physician, the physician, to have that authority.”), id. (“Actually, it’s not [tying the physician’s hands]” because “[i]t’s very broad to give that physician the authority.”), id. (“It’s whatever the doctor believes is in the best interest for the health of the pregnant mom.”), id. (“I would not want to limit the physician’s authority.”).
have asked the TMB to “swiftly act to prevent any wrongful intrusion into the practice of medicine.”51
353. Upon information and belief, to date, the TMB has not responded to TMA.
354. Similarly, Texas Senator Bryan Hughes, the author of S.B. 8, sent a letter to the TMB on August 4, 2022, regarding reported complaints that hospitals “may be wrongfully
prohibiting or seriously delaying physicians from providing medically appropriate and possibly life saving services to patients who have various pregnancy complications. These complaints arise
from confusion or disregard of the law in Texas since [Roe was overturned] and must be corrected.” Letter from Bryan Hughes to Executive Director Brint Carlton (Aug. 4, 2022) (attached
hereto as Exhibit A).52
355. Senator Hughes’s letter mentions many of the emergent medical conditions Plaintiffs argue are included in the Emergent Medical Condition Exception, and notes that his list
is “non-exhaustive.” Senator Hughes explicitly mentions PPROM, the same condition for which Amanda would be denied care three weeks later. See Ex. A at 1 n.3 (“[P]regnancy complication[s] that a physician could determine rise to the level of a ‘medical emergency’ are ectopic pregnancies, preterm premature rupture of membranes, pre-eclampsia, hemorrhaging, strain on the mother’s heart, or peripartum cardiomyopathy. This is a non-exhaustive list.”).
356. Senator Hughes’s Letter concludes by saying, “Texas law makes it clear that a mother’s life and major bodily function should be protected.” Ex. A at 2.
51 Allie Morris, Texas Hospitals Fearing Abortion Law Delay Pregnant Women’s Care, Medical Association Says, Dallas Morning News (July 14, 2022), https://www.dallasnews.com/news/politics/2022/07/14/texas-hospitals- fearing-abortion-law-delay-pregnant-womens-care-medical-association-says/.
52 The letter was made public in a news report regarding Texas’s interpretation of EMTALA after Roe was overturned. Dan Vergano, The Federal Law Against Patient Dumping—EMTALA—Is the Latest Front in the Abortion Battle, Grid (Aug. 29, 2022), https://www.grid.news/story/science/2022/08/29/the-federal-law-against-patient-
dumping-emtala-is-the-latest-front-in-the-abortion-battle.
because neither of those two are abortions. But that said, I’ve even seen some other situations that some women are going through where they’re not getting the health care they need to protect their life. . . . [T]he point is this, our goal is to make sure we protect the lives of both the mother and the baby. And there’s been too many allegations that have been made about ways in which the livesn of the mother are not being protected. And so that must be clarified.”55
362. When Jonathan Mitchell, a former Texas Solicitor General who helped draft S.B. 8, was asked if he was concerned about the patient stories told in this case, he said the following:
“It concerns me, yeah, because the statute was never intended to restrict access to medically necessary abortions, and the statute specifically says that it’s not restricting access to medically
necessary abortions. So that shouldn't be happening. The statute was written to draw a clear distinction between abortions that are medically necessary and abortions that are purely elective.
Only the purely elective abortions are unlawful under SB 8.”56 Mitchell was sitting next to Senator Hughes in Senator Hughes’s office when he made this statement.
363. Defendant Paxton sued Secretary of Health and Human Services Xavier Becerra over legal guidance that the Biden administration’s HHS issued after Roe v. Wade was overturned.
That guidance reiterated that the federal EMTALA law obligates hospitals and physicians to provide abortion care to a patient who presents to the hospital’s emergency department if a
physician or other qualified medical provider determines that the patient has an emergency medical condition and that an abortion is needed to prevent serious jeopardy to the patient’s health. The
55 Michael McCardel, Race for Texas Governor: Full interview with Governor Greg Abbott, WFAA (Oct.
16, 2022) at 1:42-2:26, https://www.wfaa.com/article/news/politics/inside-politics/texas-politics/inside-texas-
politics-governor-greg-abbott-full-interview/287-e3aa0d2f-d204-46a9-8d4e-7dc442e5e6fa
56 Sarah McCammon, He Helped Craft the ‘Bounty Hunter’ Abortion Law in Texas. He’s Just Getting Started,
NPR (May 8, 2023), https://www.npr.org/2023/05/08/1174552727/jonathan-mitchell-abortion-texas-sb8-roe-v-wade-
dobbs
guidance states that physicians and hospitals have a legal obligation to follow EMTALA even if doing so involves providing treatment—including abortion—that is prohibited in the state where
the hospital is located. After receiving a preliminary injunction blocking part of the guidance in Texas, Paxton issued a press release lauding the decision, stating: “We’re not going to allow left-
wing bureaucrats in Washington to transform our hospitals and emergency rooms into walk-in abortion clinics” and “I will fight back to defend our pro-life laws and Texas mothers and
children.”57
364. As Plaintiffs’ experiences show, Texas law is not “pro-life” when it comes to pregnant people’s lives, and the State of Texas has failed to give physicians any meaningful
guidance on how to interpret its laws consistent with that goal.
II. IN THE ABSENCE OF STATE GUIDANCE REGARDING THE EXCEPTION, TEXAS’S ABORTION BANS ARE HARMING PREGNANT PEOPLE WITH
EMERGENT MEDICAL CONDITIONS AND THEIR PHYSICIANS
A. Impact of Texas’ Abortion Bans on Pregnant People
365. Amanda, Lauren M., Lauren H., Anna, Ashley, Kylie, Jessica, Samantha, Dr. Dennard, Taylor, Kiersten, Lauren V., and Elizabeth’s experiences are not isolated. Reports from
around Texas reveal that pregnant people with emergent conditions are being denied appropriate counseling and abortion care in Texas altogether or are being forced to wait until they are clearly hemorrhaging or showing active signs of infection before they will be offered abortions. Media reports of these incidents have continued to accumulate since Plaintiffs first filed this case. Each person’s medical circumstances are unique, but in every case, Texas’s abortion bans radically decreased the quality of their medical care during pregnancy, often with devastating results.
57 Ken Paxton, Tex. Att’y Gen., Paxton Secures Victory Against Biden Administration, Blocks HHS from Forcing Healthcare Providers to Perform Abortions in Texas (Aug. 24, 2022), https://www.texasattorneygeneral.gov/ news/releases/paxton-secures-victory-against-biden-administration-blocks-hhs-forcing-healthcare-providers-
perform.
366. While some pregnant people have only shared their stories anonymously, many have used their names:
367. Kristen Anaya, a Texas resident, was four months pregnant in January 2023 when her water broke. Kristen and her husband went through two rounds of IVF that yielded only one
healthy embryo, so she was thrilled when she finally got pregnant. When her water broke prematurely, however, Kristen rushed to the emergency room where she learned she had already
lost nearly all of her amniotic fluid. While she was being examined, she spiked a fever and began shaking uncontrollably, both signs of sepsis. Yet her care was delayed for 22 hours while her
doctors consulted with “the termination committee” and an ethics committee at the hospital. Kristen continues to experience health complications due to the delay in her abortion care.58
368. Kristina Cruickshank, a Houston resident, was 12 weeks pregnant with her first child when abdominal pain and heavy bleeding sent her to the emergency room. Kristina was told
that her fetus had a cystic hygroma of unknown cause so large that her fetus was unlikely to survive. Yet because of S.B. 8, all her obstetrician was willing to offer her was weekly check-in
appointments. Over the next three weeks, Kristina’s condition dramatically deteriorated: she was in so much abdominal pain she could not walk; she had severe nausea and vomiting; she lost 15 pounds; she developed hyperthyroidism and was put on multiple thyroid medications. It was not until another emergency room visit at 15 weeks that she finally received a diagnosis: she had a partial molar pregnancy, a rare condition in which the fetus is not viable but that can cause the pregnant person to develop cancer. The condition had also led to massive cysts on her ovaries,
explaining her pain. Yet because her fetus had cardiac activity, multiple ethics committees refused 58 Nadine El-Bawab, Woman Said She Went into Sepsis Before She Could Get Lifesaving Abortion Care in Texas, ABC News (May 15, 2023), https://abcnews.go.com/US/woman-sepsis-life-saving-abortion-care-
texas/story?id=99294313.
to provide her abortion care. Kristina lay in agony for three days until her obstetrician finally found a hospital that would accept her case and a doctor who would perform a D&E. Kristina continues to battle the physical and emotional impact of her pregnancy, including rapid heart rate, shortness of breath, anxiety, and concerns for developing cancer.59
369. Kailee DeSpain, a resident of Cleburne, was 19 weeks pregnant when she learned her baby had triploidy, or an extra set of chromosomes, leading to heart, lung, brain, and kidney
anomalies that made it highly unlikely he would survive to birth. Kailee had already had two miscarriages, a stillborn, and uterine cancer, and was desperately hoping this pregnancy would
“stick.” She was counseled that continuing the pregnancy would put her at high risk of multiple complications including blood clots, preeclampsia, placental abnormalities, and cancer, but that
her only option for abortion care was to leave the state. Kailee was docked pay at work because she had already taken too many sick days, and she and her husband struggled to find the money to travel and pay for an abortion in New Mexico. Kailee’s obstetrician has now advised her not to get pregnant again, not in Texas.60
370. A League City resident was 15 weeks pregnant with her first child when she learned her baby had fetal hydrops condition, Turner syndrome, and other genetic conditions, and likely
would not survive to birth. The woman was suffering from severe swelling, high blood pressure, severely elevated liver enzymes, and her doctors worried that she was also developing Mirror
syndrome, a life-threatening condition involving severe hypertension and swelling. Yet she was 59 Julian Gill, Texas' Abortion Laws Led to 3-Day Delay for Houston Woman's Pregnancy Loss Treatment, Doctor Says, Houston Chronicle (Sept. 7, 2022), https://www.houstonchronicle.com/news/houston-texas/health/
article/Waiting-in-vain-Texas-abortion-laws-stymie-17424262.php.
60 Elizabeth Cohen & Danielle Herman, Why a Woman’s Doctor Warned Her Not to Get Pregnant in Texas, CNN (Sept. 10, 2022), https://www.cnn.com/2022/09/09/health/abortion-restrictions-texas/index.html; Brian Scott,
‘What About Women Like Me?’: North Texas Couple's Post About Pregnancy Struggle, Abortion Goes Viral,
Spectrum News 1 (May 19, 2022), https://spectrumlocalnews.com/tx/south-texas-el-paso/news/2022/05/18/tx-
couple-shares-tough-time-under-new-abortion-law.
told that anything short of liver failure or a stroke would not be enough to warrant an abortion procedure.61
371. Other accounts of anonymous pregnant people in Texas denied care include: a woman with a twin pregnancy delivered one stillborn at 15 weeks and continued pregnancy of the
remaining baby put her at high risk of infection, but she was denied an abortion and returned two weeks later with sepsis and an acute kidney injury; a woman at a small rural hospital was 17 weeks pregnant when her water broke, and after being denied care, she was forced to travel to New Mexico for abortion care;62 a woman whose cancer was in remission before pregnancy saw it come back aggressively after she got pregnant with her second child, and she was forced to travel out of state for the abortion that would allow her to resume cancer treatments;63 a woman in San Antonio started to miscarry and was denied care until the fetus’s heartbeat stopped, but in the meantime, the woman developed a dangerous womb infection, lost multiple liters of blood, and was put on a breathing machine.64
372. These stories are not unique to Texas. Since Roe v. Wade was overturned last year, multiple state abortion bans have gone into effect, and pregnant people in these states with
emergent health conditions are facing similar barriers to care:
373. Mayron Hollis, a Tennessee resident, was 8 weeks pregnant when she was diagnosed with a cesarean scar ectopic pregnancy. It was just days before Tennessee’s trigger ban
61 Courtney Carpenter, League City Family in ‘Nightmare’ Situation Under Texas Abortion Law, ABC13 (Sept. 29, 2022), https://abc13.com/texas-abortion-laws-heartbeat-act-senate-bill-8-pregnant-woman/12277047.
62 J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle with Medical Exceptions
on Abortion, N.Y. Times (July 20, 2022), https://www.nytimes.com/2022/07/20/us/abortion-save-mothers-life.html.
63 Laura Ungar & Heather Hollingsworth, Despite Dangerous Pregnancy Complications, Abortions Denied,
AP News (Nov. 20, 2022), https://apnews.com/article/abortion-science-health-business-890e813d855b57cf8e
92ff799580e7e8.
64 Lindsey Tanner, Abortion Laws Spark Profound Changes in Other Medical Care, AP News (July 16,
2022), https://apnews.com/article/abortion-science-health-medication-lupus-e4042947e4cc0c45e38837d394199033
took effect. Mayron was told that continuing the pregnancy was extremely dangerous and could lead to hemorrhage or a life-threatening placenta disorder. Mayron’s doctors offered an abortion
before the new law took effect, but Mayron needed time to think. By the time she decided she wanted an abortion, Tennessee’s abortion ban had gone into effect and there was nothing her
doctors could do. Mayron had no choice but to continue the pregnancy. At 26 weeks, Mayron started bleeding. Doctors were able to save Mayron’s life but had to remove her uterus in the
process. Her baby survived but has been in and out of the hospital ever since with severe health problems. Mayron now struggles to balance her job, care for her older children, and the frequent hospital stays.65
374. Madison Underwood, a Tennessee resident, was nearly 17 weeks pregnant when, during a routine ultrasound, she was informed that her fetus had not formed a skull. She was
advised that continuing the pregnancy could lead to sepsis, critical illness, or even death. Madison postponed her wedding to schedule her abortion. But while undergoing a pre-abortion ultrasound, Madison was informed that her procedure had been canceled because it had been determined that the legal risks in Tennessee were too high. Madison remembered wondering: “They’re just going to let me die?” Madison was forced to travel hundreds of miles to receive care in Georgia, where, at the time, abortion was legal until 20 weeks.66 Presently a 6-week ban is in effect in Georgia.
375. Allie Phillips, a Tennessee resident, was 19 weeks pregnant when her baby was diagnosed with holoprosencephaly, a congenital defect where the brain does not develop properly,
and other structural abnormalities. Allie was told that her baby would not survive to birth, and that
65 Kavitha Surana, Doctors Warned Her Pregnancy Could Kill Her. Then Tennessee Outlawed Abortion, ProPublica (March 14, 2023), https://www.propublica.org/article/tennessee-abortion-ban-doctors-ectopic- pregnancy?utm_source=sailthru&utm_medium=email&utm_campaign=majorinvestigations&utm_content=feature. 66 Neelam Bohra, ‘They’re Just Going to Let Me Die?’ One Woman’s Abortion Odyssey, N.Y. Times (Aug.
1, 2022), https://www.nytimes.com/2022/08/01/us/abortion-journey-crossing-states.html?referringSource=
articleShare.
the problems would only get worse the longer she continued her pregnancy. Her doctor said that due to Tennessee’s law, she could not offer Allie advice on abortion, and if it was something Allie wanted to do, she would have to do her own research. To make things worse, Allie and her husband had to explain the situation to their 5-year-old daughter. Allie has been documenting her journey on Tik Tok and is planning to travel to New York for an abortion.67
376. “Sarah,” a Tennessee resident, went to the emergency room with severe abdominal pain. Even though she had an IUD, tests revealed that she had an ectopic pregnancy—a relatively
common occurrence when an IUD fails—and was bleeding internally. Instead of receiving the immediate treatment she needed, however, Sarah was forced to endure hours of pain and severe
bleeding while hospital attorneys attempted to determine whether providing her with abortion care would be prohibited under the state’s ban. Almost 10 hours later, after drafting 20 paragraphs of rationale for why an abortion was necessary, the hospital finally performed an abortion and was forced to remove part of one of her fallopian tubes to save her life.68
377. Kaitlyn Joshua, a Louisiana resident, was nearly 11 weeks pregnant when she started bleeding heavily, passing clots and tissue, and experiencing pain that she described as being
worse than childbirth. Kaitlyn learned that her fetus had stopped growing past 7 or 8 weeks and that it only had faint cardiac activity, but despite two emergency room visits at two different
67 Michael Daly, Tennessee Abortion Ban a ‘Nightmare’ for Woman With Doomed Pregnancy, Daily Beast (Feb. 28, 2023), https://www.thedailybeast.com/tennessee-abortion-ban-a-living-nightmare-for-woman-with-
doomed-pregnancy.
68 Steve Cavendish, Sarah Needed an Abortion. Her Doctors Needed Lawyers, Nashville Scene (Dec. 20, 2022), https://www.nashvillescene.com/news/citylimits/sarah-needed-an-abortion-her-doctors-needed- lawyers/article_472a621e-7fdb-11ed-bf8d-0797b6012be2.html. Unlike Texas, Tennessee’s abortion bans do not
explicitly exclude ectopic pregnancy or miscarriage care from the definition of “abortion.”
hospitals, she was repeatedly denied a D&C due to fear regarding Louisiana’s abortion bans. After this experience, she and her husband have decided not to have any more children for now.69
378. Nancy Davis, a Louisiana resident, was around 10 weeks pregnant when an ultrasound revealed that her fetus had acrania, a condition where the fetus is missing part of its
skull. Nancy was counseled that her fetus would die shortly after birth but was refused abortion care because hospital officials were unsure whether the exceptions to Louisiana’s abortion-bans
applied to her case. Nancy was eventually forced to make an arduous, 1,400-mile journey to New York to receive the care she needed.70
379. Christina Zielke was visiting Ohio when she started bleeding. A few weeks earlier, doctors in Washington D.C. told her that she was likely miscarrying because her fetus had no
cardiac activity, so when she started bleeding, she assumed that she was simply passing the pregnancy. The next day, however, she started bleeding profusely and passing large clots. In the
emergency room, an ultrasound confirmed that the fetus had no cardiac activity, and even though she was informed that an abortion is often required to stop such bleeding, she was not offered an abortion procedure. Instead, she was discharged with blood running down her shoes.71
380. Tara George, an Ohio resident, was 20 weeks pregnant with her first child when she learned that her baby had multiple conditions in its bladder, heart, and kidneys, and likely 69 Rosemary Westwood, Bleeding and in Pain, She Couldn't Get 2 Louisiana ERs to Answer: Is It a Miscarriage?, NPR (Dec. 29, 2022), https://www.npr.org/sections/health-shots/2022/12/29/1143823727/bleeding-and-in-pain-she-couldnt-get-2-louisiana-ers-to-answer-is-it-a-miscarria. There are multiple overlapping and
inconsistent abortion bans currently in effect in Louisiana, contributing to the confusion regarding the scope of the
state’s abortion exceptions. See June Med. Servs., LLC v. Landry, No. C-720988, 2022 WL 2824316 (La. Dist. Ct.July 7, 2022).
70 Ramon Antonio Vargas, Louisiana Woman Carrying Unviable Fetus Forced to Travel to New York for Abortion, The Guardian (Sept. 14, 2022), https://www.theguardian.com/us-news/2022/sep/14/louisiana-woman-skull-
less-fetus-new-york-abortion.
71 Selena Simmons-Duffin, Her Miscarriage Left Her Bleeding Profusely. An Ohio ER Sent Her Home to Wait, NPR (Nov. 15, 2022), https://www.npr.org/sections/health-shots/2022/11/15/1135882310/miscarriage-hemorrhage-abortion-law-ohio.
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