Texas Court Strikes Down Unconstitutional Texas Reproductive Health Restriction in Challenge Brought by Whole Woman’s Health and Texas Abortion Providers

(PRESS RELEASE) Today, a federal district court judge struck down a Texas measure requiring health care providers to bury or cremate all embryonic and fetal tissue from abortions, miscarriages, and ectopic pregnancy surgeries—regardless of their patients’ personal wishes or beliefs.

United States Senior District Court Judge David Ezra issued a permanent injunction halting enforcement of the law, writing: “At best, enshrining the State’s view of pregnancy increases the grief, stigma, shame, and distress of women experiencing an abortion, whether induced or spontaneous. . . . At worst, the challenged laws intrude into the realm of constitutional protection afforded to ‘personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.’”

The decision comes in a challenge to provisions of SB8 brought by lead plaintiff Whole Woman’s Health and other Texas abortion providers, represented by the Center for Reproductive Rights, the Lawyering Project, Morrison & Foerster LLP, and Austin attorney Patrick O’Connell.

“Today’s ruling is a victory for all Texan women and their right to access safe, legal abortion with dignity,” said Amy Hagstrom Miller founder and president of Whole Woman’s Health and Whole Woman’s Health Alliance. “Make no mistake, these restrictions were designed to shame and stigmatize patients and health care providers. This decision reaffirms that Texan women are fully capable of making their own personal medical decisions about their families, futures, and reproductive health care.”

“While Texas lawmakers have shown they will stop at nothing to rob women of their constitutional right to safe and legal abortion, the courts once again recognized these sham laws for what they are,” said Nancy Northup, President and CEO of the Center for Reproductive Rights. “We have repeatedly taken Texas to court, and we will continue to challenge each of the state’s unconstitutional attempts to shame women, tie the hands of healthcare providers, and restrict access to safe and legal abortion.”

The Texas restriction is part of SB8, a sweeping anti-abortion bill enacted last summer. SB8 is part of a coordinated national strategy by anti-abortion politicians, who’ve passed over 400 restrictions on abortion at the state level, and 22 in Texas alone, since 2010. Whole Woman’s Health and other reproductive health providers already challenged a separate measure in SB8 banning the safest and most common method of ending a pregnancy after approximately 15 weeks in Texas. A federal court permanently blocked that measure in November of 2017, and Texas has appealed the decision.

This lawsuit was filed by Molly Duane, Autumn Katz, and Caroline Sacerdote of the Center for Reproductive Rights, David Brown, Stephanie Toti, Juanluis Rodriguez, and Dipti Singh of the Lawyering Project, Austin attorney Patrick O’Connell, and J. Alexander Lawrence of the law firm Morrison & Foerster in the U.S. District Court for the Western District of Texas on behalf of Whole Woman’s Health, Whole Woman’s Health Alliance, Brookside Women’s Health Center and Austin Women’s Health Center, Alamo Women’s Reproductive Services, and several individual physicians.

The lawsuit is the latest in a series of challenges brought by the Center for Reproductive Rights and the Lawyering Project on behalf of Whole Woman’s Health and Whole Woman’s Health Alliance against the state.

This case began just four days after the U.S. Supreme Court’s historic Whole Woman’s Health v. Hellerstedt decision, when the Texas Department of State Health Services (DSHS) finalized regulations which mandated burial or cremation of embryonic and fetal tissue for all women who have a miscarriage management procedure, ectopic pregnancy surgery, or an abortion—regardless of her personal wishes or beliefs.

The Center for Reproductive Rights filed a challenge to the regulations in December 2016 and a district court blocked them from taking effect in January of 2017. Despite the decision, the Texas legislature doubled down on the regulations, and Governor Greg Abbott signed SB8 into law in June 2017, just six months later. A federal court subsequently blocked the measure from going into effect in January of this year while this litigation progressed, and today’s decision blocks the law permanently.

Most recently, in June 2018, a coalition of Texas health care providers and grassroots organizations – led by the Whole Woman’s Health Alliance – challenged dozens of medically unnecessary abortion restrictions currently enforced by the state, including a telemedicine abortion ban, a 24-hour mandatory delay, a forced ultrasound law, and a parental consent requirement.