Whole Woman's Health et al v. Jackson et al

Filing 19

MOTION for Summary Judgment and Memorandum of Law in Support by Alamo Women's Reproductive Services, Alamo City Surgery Center PLLC, Brookside Women's Medical Center PA, Erika Forbes, Frontera Fund, Fund Texas Choice, Allison Gilbert, Houston Women's Clinic, Houston Women's Reproductive Services, Jane's Due Process, Daniel Kanter, Bhavik Kumar, Lilith Fund, Inc., North Texas Equal Access Fund, Planned Parenthood Center for Choice, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Surgical Health Services, Marva Sadler, Southwestern Women's Surgery Center, The Afiya Center, Whole Woman's Health, Whole Women's Health Alliance. (Attachments: #1 Exhibit A. Gilbert Declaration, #2 Exhibit B. Kumar Declaration, #3 Exhibit C. Ferrigno Declaration, #4 Exhibit D. Klier Declaration, #5 Exhibit E. Lambrecht Declaration, #6 Exhibit F. Linton Declaration, #7 Exhibit G. Hagstrom Miller Declaration, #8 Exhibit H. Braid Declaration, #9 Exhibit I. Rosenfeld Declaration, #10 Exhibit J. Barraza Declaration, #11 Exhibit K. Sadler Declarationb, #12 Exhibit L. Zamora Declaration, #13 Exhibit M. Jones Declaration, #14 Exhibit N. Rupani Declaration, #15 Exhibit O. Connor Declaration, #16 Exhibit P. Williams Declaration, #17 Exhibit Q. Kanter Declaration, #18 Exhibit R. Forbes Declaration, #19 Exhibit S. Mariappuram Declaration)(Hebert, Christen)

Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 1 of 65

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WHOLE WOMAN’S HEALTH, et al.,
Plaintiffs,
v.
AUSTIN REEVE JACKSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CIVIL ACTION
CASE NO. 21-cv-00616-RP

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM OF LAW IN SUPPORT

Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 2 of 65

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1 
BACKGROUND .............................................................................................................................5 
A.

Plaintiffs Are Committed to Ensuring Patients Can Access Abortion Amid
a Hostile Climate......................................................................................................5 

B.

Section 3 of S.B. 8 Is a Flagrantly Unconstitutional Six-Week Abortion
Ban with a Rigged Civil Enforcement Scheme .......................................................7 
1.

S.B. 8 prohibits abortions beginning at approximately six weeks of
pregnancy, roughly four months before viability ........................................7 

2.

The six-week ban is enforced through civil actions brought by the
general public against abortion providers and those who support
abortion patients ...........................................................................................9 

3.

S.B. 8 creates huge incentives for enforcement actions to be
brought, subjecting abortion providers and supporters to expensive,
abusive litigation ..........................................................................................9 

4.

S.B. 8’s enforcement actions are gamed against abortion providers
and those supporting abortion patients ......................................................10 

5.

S.B. 8’s enforcement actions are calculated to result in courts
issuing injunctions to halt abortions after six weeks .................................13 

6.

If enforced, S.B. 8 will bar most patients from accessing an
abortion ......................................................................................................14 

C.

Section 4 of S.B. 8 Also Creates New Attorney’s-Fee Liability in Cases
Challenging Abortion Restrictions ........................................................................17 

D.

Defendants Have Authority to Directly or Indirectly Enforce the Six-Week
Ban and Are Authorized to Seek Fees Under the Fee-Shifting Provision .............18 
1.

Defendant classes of Texas state-court judges and clerks .........................18 

2.

Defendant Mark Lee Dickson ....................................................................19 

3.

Defendant state officials ............................................................................20 

4.

Potential liability to Defendants under the Section 4 fee-shifting
provision ....................................................................................................21 

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Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 3 of 65
TABLE OF CONTENTS
(continued)
Page
ARGUMENT .................................................................................................................................22 
I.

THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR PLAINTIFFS
ON THEIR CLAIMS RELATING TO SECTION 3 OF S.B. 8, THE SIX-WEEK
ABORTION BAN AND ENFORCEMENT PROVISIONS.............................................22 
A.

The Six-Week Ban Violates Plaintiffs’ Patients’ Substantive-Due-Process
Right to Pre-Viability Abortion .............................................................................22 

B.

S.B. 8’s Enforcement Provisions Are Independently Unconstitutional.................26 
1.

The enforcement provisions are preempted by federal law .......................26 

2.

The enforcement provisions violate the constitutional guarantee of
equal protection ..........................................................................................28 
a.
b.

The enforcement provisions violate equal protection, no
matter the level of scrutiny ............................................................31 

c.

The enforcement provisions are unconstitutionally vague ............32 

d.

The enforcement provisions fail to provide adequate notice .........32 

e.
3.

The enforcement provisions single out abortion providers
and supporters for discriminatory treatment ..................................29 

The enforcement provisions invite arbitrary enforcement .............34 

The enforcement provisions’ creation of aiding-and-abetting
liability impermissibly interferes with Plaintiffs’ First Amendment
rights ..........................................................................................................35 
a.

The aiding-and-abetting and provision is an improper
content-based and viewpoint-based speech restriction ..................36 

b.

The aiding-and-abetting provision violates the right to
petition the courts ...........................................................................38 

c.

The aiding-and-abetting provision implicates Plaintiffs’
protected advocacy activities .........................................................39 

d.

S.B. 8’s savings clause provides insufficient protection................41 

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Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 4 of 65
TABLE OF CONTENTS
(continued)
Page
II.

THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR PLAINTIFFS
ON THEIR CLAIMS RELATING TO SECTION 4 OF S.B. 8, THE FEESHIFTING PROVISION FOR CHALLENGES TO TEXAS ABORTION
RESTRICTIONS ...............................................................................................................42 
A.

Section 4 Violates the First Amendment ...............................................................42 
1.
2.

B.
III.

Section 4 violates the First Amendment right to petition the courts..........42 
Section 4 violates the First Amendment right to freedom of speech .........45 

As Applied to Federal Civil-Rights Claims, Section 4 Is Preempted by
Federal Law ...........................................................................................................46 

THE COURT SHOULD AWARD DECLARATORY AND INJUNCTIVE
RELIEF ..............................................................................................................................49 

CONCLUSION ..............................................................................................................................50 

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TABLE OF AUTHORITIES
Page(s)
Cases
In re Abbott,
956 F.3d 696 (5th Cir. 2020), vacated by Planned Parenthood Ctr. for Choice
v. Abbott, 141 S. Ct. 1261 (2021) ..............................................................................................5
Abraham v. Alpha Chi Omega, 708 F.3d 614 (5th Cir. 2013) .......................................................49
Air Evac EMS, Inc. v. Texas, 851 F.3d 507 (5th Cir. 2017) ..........................................................21
Baggett v. Bullitt, 377 U.S. 360 (1964)..........................................................................................34
Barr v. Am. Ass’n of Pol. Consultants, Inc, 140 S. Ct. 2335 (2020) .............................................45
Battle v. City of Seattle, 89 F. Supp. 3d 1092 (W.D. Wash. 2015) ................................................41
Bellotti v. Baird, 443 U.S. 622 (1979) ...........................................................................................39
Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983) .............................................................32
Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011) .................................................................42
Bryant v. Woodall, 363 F. Supp. 3d 611 (M.D.N.C. 2019), aff’d, No. 19-1685,
2021 WL 2446942 (4th Cir. June 23, 2021) ............................................................................24
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res.,
532 U.S. 598 (2001) .................................................................................................................47
Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n,
434 U.S. 412 (1978) .................................................................................................................47
CISPES (Comm. in Solidarity with the People of El Sal.) v. F.B.I.,
770 F.2d 468 (5th Cir. 1985) ...................................................................................................41
City of Chicago v. Morales, 527 U.S. 41 (1999) ...........................................................................35
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ....................................................28
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003) .............................42
Cooper v. Aaron, 358 U.S. 1 (1958) ........................................................................................26, 28
Doe I v. Landry, 909 F.3d 99 (5th Cir. 2018) ................................................................................38
Dombrowski v. Pfister, 380 U.S. 479 (1965) .................................................................................49
Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) ...........................................................................24

iv

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TABLE OF AUTHORITIES
Page(s)
Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................49
EMW Women’s Surgical Ctr., P.S.C. v. Beshear,
No. 3:19-CV-178-DJH, 2019 WL 1233575 (W.D. Ky. Mar. 15, 2019)..................................24
Felder v. Casey, 487 U.S. 131 (1988)............................................................................................47
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ..........................................................49
Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493 (5th Cir. 2001) .......................................32
Fox v. Vice, 563 U.S. 826 (2011) ...................................................................................................47
Gallegos–Hernandez v. United States, 688 F.3d 190 (5th Cir. 2012) ...........................................28
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ..............................................................................35
Grayned v. City of Rockford, 408 U.S. 104 (1972) ...........................................................33, 34, 35
Grisham v. City of Fort Worth, 837 F.3d 564 (5th Cir. 2016) .......................................................46
Grutter v. Bollinger, 539 U.S. 306 (2003) .....................................................................................31
Guam Soc’y of Obstetricians & Gynecologists v. Ada,
962 F.2d 1366 (9th Cir. 1992) .................................................................................................24
Haywood v. Drown, 556 U.S. 729 (2009)......................................................................................47
Hensley v. Eckerhart, 461 U.S. 424 (1983) ...................................................................................46
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .............................................................40
Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009) ..............................................................48
Hughes v. Rowe, 449 U.S. 5 (1980) ...............................................................................................46
Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) ........................................................................24
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) ...............................27, 50
Jackson Women’s Health Org. v. Dobbs,
379 F. Supp. 3d 549 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020) ..........................49
Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert.
granted, No. 19-1392, 2021 WL 1951792 (U.S. May 17, 2021).................................11, 22, 23
Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246 (5th Cir. 2020) ...........................11, 23, 24

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TABLE OF AUTHORITIES
Page(s)
Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996)...................................................................24
Johnson v. United States, 576 U.S. 591 (2015) .............................................................................35
June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) ......................................................23, 27
KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n,
478 S.W.3d 111 (Tex. App. 2015) ...........................................................................................29
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .......................................................................33
Lefemine v. Wideman, 568 U.S. 1 (2012) ......................................................................................46
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) .......................................................... passim
Little Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682 (8th Cir. 2021), pet. for
cert. filed, No. 20-1434 (U.S. Apr. 13, 2021) ..........................................................................24
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).......................................................................20
McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) .................................................................24
McCullen v. Coakley, 573 U.S. 464 (2014) ...................................................................................38
McDonald v. Smith, 472 U.S. 479 (1985) ......................................................................................38
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ...........................................................41
Memphis Ctr. for Reprod. Health v. Slatery,
No. 3:20-CV-00501, 2020 WL 4274198 (M.D. Tenn. July 24, 2020), appeal
filed, No. 20-5969 (6th Cir. Aug. 24, 2020) ............................................................................24
MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015) ....................................................24
NAACP v. Button, 371 U.S. 415 (1963)................................................................................. passim
Nettles v. GTECH Corp., 606 S.W.3d 726 (Tex. 2020) ................................................................25
New York v. Ferber, 458 U.S. 747 (1982) .....................................................................................34
Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .......................................................................................35
Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17 (2012) ........................................................26, 28
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) .........................................................................21
Planned Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021) .......................................43

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TABLE OF AUTHORITIES
Page(s)
Planned Parenthood S. Atl. v. Wilson,
No. 3:21-00508-MGL, 2021 WL 672406 (D.S.C. Feb. 29, 2021), appeal filed,
No. 21-1369 (4th Cir. Apr. 5, 2021) ..................................................................................23, 25
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ............................................. passim
PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ...............................................................................46
Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) ...............................................................36
PPGTSHS v. City of Lubbock,
No. 5:21-CV-114-H, 2021 WL 2385110 (N.D. Tex. June 1, 2021), mot. for
reconsideration filed (N.D. Tex. June 29, 2021), ECF No. 51 ................................................19
Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S.D. Ohio 2019) ..............................................24
In re Primus, 436 U.S. 412 (1978).................................................................................................38
Pulliam v. Allen, 466 U.S. 522 (1984) .....................................................................................18, 49
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .............................................................................37
Reed v. Town of Gilbert, 576 U.S. 155 (2015) ..................................................................36, 37, 45
Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson,
No. 19-2882, 2021 WL 2345256 (8th Cir. June 9, 2021), pet. for cert. filed,
No. 21-3 (U.S. June 30, 2021), vacated & reh'g en banc granted (8th Cir. July
13, 2021) (en banc) ..................................................................................................................24
Reprod. Health Servs. v. Strange,
No. 17-13561, 2021 WL 2678574 (11th Cir. June 30, 2021) ....................................................5
Richard v. Hinson, 70 F.3d 415 (5th Cir. 1995) ................................................................28, 29, 31
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) .................................................................26
Robinson v. Marshall, 415 F. Supp. 3d 1053 (M.D. Ala. 2019) ....................................................24
Roe v. Wade, 410 U.S. 113 (1973) ......................................................................................... passim
Romaguera v. Gegenheimer, 162 F.3d 893 (5th Cir. 1998), decision clarified on
denial of reh’g, 169 F.3d 223 (5th Cir. 1999) ..........................................................................48
Romer v. Evans, 517 U.S. 620 (1996)......................................................................................31, 32
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459 (5th Cir. 2003) .......................................20

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Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 9 of 65
TABLE OF AUTHORITIES
Page(s)
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) .......................................45
S. Christian Leadership Conf. v. Sup. Ct. of La., 252 F.3d 781 (5th Cir. 2001)......................42, 43
Scheideman v. City of Fort Worth,
No. 017-316515-20 (Tarrant Cnty. Dist. Ct. filed Apr. 17, 2020) ...........................................45
Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) ................................................27
SisterSong Women of Color Reprod. Justice Collective v. Kemp,
472 F. Supp. 3d 1297 (N.D. Ga. 2020), appeal filed, No. 20-13024 (11th Cir.
Aug. 11, 2020) ...................................................................................................................24, 25
Smith v. Allwright, 321 U.S. 649 (1944) ........................................................................................20
Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992) ..................................................................24
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...........................................................................36
State v. Golden’s Concrete Co., 962 P.2d 919 (Colo. 1998) .........................................................48
Steffel v. Thompson, 415 U.S. 452 (1974) .....................................................................................19
Terry v. Adams, 345 U.S. 461 (1953) ............................................................................................28
Tex. Health & Hum. Servs. Comm’n v. Planned Parenthood of Greater Tex. Fam.
Planning & Preventative Health Servs., Inc.,
No. 03–12–00745–CV, 2014 WL 1432566 (Tex. Ct. App. Apr. 9, 2014) ..............................43
TransUnion LLC v. Ramirez,
No. 20-297, 2021 WL 2599472 (U.S. June 25, 2021) .............................................................34
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) .............................................................32, 45
United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762 (5th Cir. 1996) .......................................48
United States v. Alvarez, 567 U.S. 709 (2012) ..............................................................................37
United States v. Brock, 863 F. Supp. 851 (E.D. Wis. 1994) ..........................................................41
United States v. Escalante, 239 F.3d 678 (5th Cir. 2001) .............................................................32
United States v. Locke, 529 U.S. 89 (2000) ...................................................................................46
United States v. O’Brien, 391 U.S. 367 (1968) .............................................................................38
United States v. Peters, 5 Cranch 115 (1803) ................................................................................26

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TABLE OF AUTHORITIES
Page(s)
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (2000) .....................................................45
United States v. Ross,
948 F.3d 243 (5th Cir. 2020), cert. denied, 141 S. Ct. 305 (2020) ..........................................35
United States v. Zadeh, 820 F.3d 746 (5th Cir. 2016) ...................................................................46
United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971) ...............................................44
Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., 455 U.S. 489 (1982)........................................32
W. Fork Advisors, LLC v. SunGard Consulting Servs., LLC,
437 S.W.3d 917 (Tex. App. 2014) ...........................................................................................25
Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d 460 (Tex. 2016) .......................................................29
Whole Woman’s Health All. v. Paxton,
No. 1:18-CV-00500-LY (W.D. Tex. June 14, 2018), ECF No. 1................................17, 21, 45
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ..........................................5, 25, 27
Whole Woman’s Health v. Hellerstedt,
No. 1:14-cv-284-LY (W.D. Tex. Aug. 9, 2019), ECF No. 297 ...............................................43
Whole Woman’s Health v. Paxton, 978 F.3d 896 (5th Cir. 2020) .................................................21
Whole Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018) ...................................................21
Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323 (2011) ....................................................46
Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411 (5th Cir. 2001) .............................32, 33
Ex Parte Young, 209 U.S. 123 (1908) ...........................................................................................21
Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................31
Constitution, Statutes, & Regulations
U.S. Const. amend. I .............................................................................................................. passim
U.S. Const. amend. XV .......................................................................................................... passim
U.S. Const. art. VI, cl. 2 .................................................................................................................26
42 U.S.C. § 1983 .................................................................................................................... passim
42 U.S.C. § 1988 ..........................................................................................................17, 46, 47, 48

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TABLE OF AUTHORITIES
Page(s)
1 Tex. Admin. Code § 354.1167 ....................................................................................................15
Tex. Civ. Prac. & Rem. Code §§ 10.001–.002 ..............................................................................31
Tex. Civ. Prac. & Rem. Code § 15.002 .........................................................................................12
Tex. Civ. Prac. & Rem. Code § 30.022 .................................................................17, 42, 45, 47, 48
Tex. Fam. Code §§ 33.001–.014 ....................................................................................................15
Tex. Health & Safety Code § 171.002 .............................................................................................8
Tex. Health & Safety Code § 171.008 .............................................................................................8
Tex. Health & Safety Code §§ 171.011-.016...................................................................................6
Tex. Health & Safety Code § 171.201 .............................................................................................8
Tex. Health & Safety Code § 171.203 .............................................................................................8
Tex. Health & Safety Code §171.204 ..............................................................................................8
Tex. Health & Safety Code § 171.205 .............................................................................................8
Tex. Health & Safety Code § 171.207 .....................................................................................18, 20
Tex. Health & Safety Code § 171.208 ................................................................................... passim
Tex. Health & Safety Code § 171.209 .........................................................................11, 12, 28, 30
Tex. Health & Safety Code § 171.210 .....................................................................................12, 30
Tex. Health & Safety Code § 171.212 ...........................................................................................26
Tex. Health & Safety Code § 245.011 .........................................................................................8, 9
Tex. Ins. Code § 1696.002 .............................................................................................................15
Tex. Ins. Code §§ 11218.001–.006 ................................................................................................15
Tex. Occ. Code § 164.052 .............................................................................................................20
Tex. Occ. Code § 164.053 .............................................................................................................20
Other Authorities
Fed. R. Civ. P. 56 .......................................................................................................................4, 22

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TABLE OF AUTHORITIES
Page(s)
Kari White et al., Letter: Changes in Abortion in Texas Following an Executive
Order Ban During the Coronavirus Pandemic, 325 JAMA 691, 691 (2021) ...........................6
Kari White, et al., Research Brief: Texas Senate Bill 8: Medical and Legal
Implications, Tex. Policy Evaluation Project (July 2021) ......................................................14
Letter from Hon. Steve Adler et al., to Tex. House of Representatives, Open letter
in opposition to HB 1515 and SB 8 from the Texas legal community 2 (Apr.
28, 2021) ...................................................................................................................................2
Nelson S. Ebaugh, The Liability: Why You Should Understand the Five Tests of
Civil Aiding and Abetting in Texas, 78 Tex. B.J. 362 (2015) ..................................................33
Vinita Goyal et al., Factors Associated with Abortion at 12 or More Weeks
Gestation After Implementation of a Restrictive Texas Law, 102 Contraception
314, 314–17 (2020) ..................................................................................................................15

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INTRODUCTION
Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021) (“S.B. 8”) bans abortion in Texas starting
at approximately six weeks of pregnancy—a point when many people do not even know they are
pregnant. Under nearly fifty years of unbroken precedent, “a State may not prohibit any woman
from making the ultimate decision to terminate her pregnancy before viability.”

Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992). Before that point in pregnancy, it is
for the patient—not the State—to make that decision. Id. at 872. In flagrant defiance of that
precedent, S.B. 8 bans abortion roughly four months before viability. S.B. 8 is thus a blatant
violation of Plaintiffs’ patients’ substantive-due-process rights.
In that respect, S.B. 8 is like other unconstitutional laws that states have enacted in recent
years to ban abortions at gestational ages before viability—all of which have been blocked by
federal courts when challenged. But S.B. 8 differs from those other bans in that it bars government
officials—such as the attorney general, local prosecutors, or the health department—from
enforcing it directly. Instead, S.B. 8 is enforceable through private civil actions that can be brought
against anyone alleged to have (1) provided an abortion that violates the ban, (2) engaged in
conduct that “aids or abets” an abortion that violates the ban, or (3) merely intended to do any of
those things. S.B. 8 purports to allow “any person” to bring enforcement actions, regardless of
whether they were injured or connected to the abortion in any way.
If a violation is found, S.B. 8 directs state courts to issue an injunction to prevent any
further abortions from being performed or aided in violation of the ban. And S.B. 8 offers up a
huge bounty to incentivize vigilantes to initiate enforcement actions: if an action is successful, the
person who initiated it gets a minimum reward (there is no express maximum) of $10,000 per
abortion, payable by the person found to have violated the ban. S.B. 8 thus encourages suits from
anyone, whether motivated by opposition to abortion or just by the prospect of a financial windfall.
1

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What is more, the rules in these enforcement actions are heavily skewed against abortion
providers and others who are sued; the actions are designed to result in injunctions and liability.
S.B. 8 “weaponizes the judicial system by exempting the newly created cause of action from the
normal guardrails that protect Texans from abusive lawsuits and provide all litigants a fair and
efficient process in our state courts.”1 S.B. 8 purports to limit a person’s ability to argue that this
pre-viability ban violates the federal constitutional right to abortion. It prohibits anyone who is
sued from arguing that their conduct was legal at the time they engaged in it if the law on which
they relied is later changed. It breaks from normal venue rules, allowing anti-abortion activists to
force abortion providers and others to defend themselves in any of Texas’s 254 counties—in fact,
in multiple venues simultaneously. And, again departing from the normal rules, it has a one-way
fee-shifting provision that allows successful vigilantes to recover their costs and attorney’s fees,
but forbids abortion providers and others sued under S.B. 8 from recovering their fees and costs in
defending against this patently unconstitutional restriction. S.B. 8’s discriminatory enforcement
scheme invites harassing, costly lawsuits as a penalty for providing or supporting abortions, in
violation of Plaintiffs’ rights under the Due Process Clause, the Equal Protection Clause, and the
First Amendment. And its attempts to override federal law are plainly preempted.
If S.B. 8 is not blocked before it takes effect, the result will be disastrous. Abortion
providers will be forced to either stop providing abortions beginning at about six weeks of
pregnancy or defend themselves in expensive, prolonged state-court proceedings in which the deck
is stacked against them and in which they face injunctions and ruinous monetary penalties.

1

Letter from Hon. Steve Adler et al., to Tex. House of Representatives, Open letter in
opposition to HB 1515 and SB 8 from the Texas legal community 2 (Apr. 28, 2021), https://
documentcloud.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3A38eff803-3fd3498b-a6b4-658305bf6beb.
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Nonprofit abortion funds that help low-income patients pay for an abortion will also be forced into
the untenable choice between ceasing their critical services and facing devastating liability.
Groups that provide patients with logistical support, clergy members who provide parishioners
with emotional and spiritual support, and domestic-violence, rape, and genetics counselors who
refer and assist with abortion services may also face abusive lawsuits.

Although patients

themselves cannot be sued under S.B. 8, their family members who assist them could be sued by
complete strangers accusing them of being aiders and abettors. An abusive partner, family
member, or hostile stranger who learns of a patient’s abortion appointment could rush into court
seeking to stop the abortion by accusing the provider of intending to violate the ban.
The threat of lawsuits and liability will inevitably chill the exercise of constitutional rights
and decimate abortion access in Texas.

Many patients will be forced to carry unwanted

pregnancies to term or try to travel out of state to access care, just as they were forced to do during
Texas’s month-long abortion ban last year during the early days of the pandemic. Low-income
Texans, communities of color, and young people in Texas, who already face inequities in access
to medical care, will be hit hardest, and many will be unable to overcome the financial and
logistical hurdles to accessing out-of-state care. S.B. 8 will also add to the anguish of survivors of
sexual assault, as well as patients and their families who receive a fetal diagnosis incompatible
with life but who nonetheless would be forced to continue carrying the pregnancy.
In addition to the six-week ban and enforcement scheme described above, S.B. 8 also
contains an extraordinary fee-shifting provision designed to deter anyone from challenging any
Texas abortion restriction—not just S.B. 8. Under this provision, if a person challenges a Texas
abortion restriction in state or federal court and does not prevail on every claim they raise, they
and their lawyers become liable for their opponents’ attorney’s fees—even if they successfully got

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the restriction blocked. This extreme fee-shifting provision violates Plaintiffs’ First Amendment
rights and is in direct conflict with rights provided to them under federal civil-rights law.
Plaintiffs urgently need this Court to intervene. The constitutional rights of Plaintiffs and
their patients can be vindicated through declaratory relief against the Texas state judges who would
be conscripted into enforcing S.B. 8, as well as declaratory and injunctive relief against the court
clerks who would be roped into participating in the enforcement. All of them have been named
here in putative defendant classes. Declaratory and injunctive relief are also warranted against
Defendant Mark Lee Dickson, an individual deputized by S.B. 8 to bring enforcement actions,
who is highly likely to do so based on his public actions and statements. If S.B. 8 is not blocked,
Mr. Dickson may be the first, but certainly will not be the last, to seek its enforcement against
Plaintiffs. Plaintiffs also seek declaratory and injunctive relief against state licensing officials and
the Attorney General, who—although they cannot enforce S.B. 8 directly—remain able to take
enforcement actions against Plaintiffs under other laws if S.B. 8 is violated, and to seek costs and
fees under S.B. 8’s fee-shifting provision.
Because only declaratory relief is available at this time against the defendant class of judges
(see 42 U.S.C. § 1983), and such relief is urgently needed to prevent S.B. 8’s devastating
consequences on September 1, 2021, Plaintiffs seek entry of summary judgment in their favor on
all their claims at the commencement of this case. See Fed. R. Civ. P. 56(b). There are no genuine
issues of material fact, and Plaintiffs are entitled to judgment as a matter of law because S.B. 8 is
blatantly unconstitutional.

The Court should thus grant summary judgment and award a

declaratory judgment that S.B. 8 is unconstitutional and unenforceable, as well as appropriate
injunctive relief against the non-judge Defendants.

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BACKGROUND
A.

Plaintiffs Are Committed to Ensuring Patients Can Access Abortion Amid a
Hostile Climate

Legal abortion is one of the safest medical procedures in the United States. It is also very
common: approximately one in four women in the United States has an abortion by age forty-five.2
Declaration of Allison Gilbert, M.D. (“Gilbert Decl.”) (attached hereto as Pls.’ Ex. A) ¶¶ 28–29;
Declaration of Bhavik Kumar, M.D., M.P.H. (“Kumar Decl.”) (attached hereto as Pls.’ Ex. B) ¶ 7.
Nevertheless, abortion access has been under threat from the Texas Legislature and other
Texas officials for years. Barriers imposed by Texas law have dramatically reduced access to
abortion in Texas, causing permanent harm even when the barriers were in place for just days or
weeks. For example, in 2013, Texas imposed burdensome, medically unnecessary requirements
that abortion providers have hospital admitting privileges and that abortions be performed in
surgical centers. These barriers “led to the closure of half of Texas’ clinics,” which “meant fewer
doctors, longer waiting times, and increased crowding.” Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292, 2313 (2016). Many of those clinics were unable to reopen after the laws were
blocked as unconstitutional. Declaration of Andrea Ferrigno (“Ferrigno Decl.”) (attached hereto
as Pls.’ Ex. C) ¶ 18; Declaration of Jessica Klier (“Klier Decl.”) (attached hereto as Pls.’ Ex. D) ¶
14. Then, in the midst of the Covid-19 pandemic, Governor Abbott issued an executive order
banning nearly all abortions in Texas for a month. See In re Abbott, 956 F.3d 696, 704–06 (5th
Cir. 2020), vacated by Planned Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021).

2

References to “woman” or “women” in this brief are meant as shorthand for people who
are or may become pregnant. People with other gender identities, including transgender men and
gender-diverse individuals, may also become pregnant and seek abortion services. Accord Reprod.
Health Servs. v. Strange, No. 17-13561, 2021 WL 2678574, at *1 n.2 (11th Cir. June 30, 2021)
(“Although this opinion uses gendered terms, we recognize that not all persons who may become
pregnant identify as female.”).
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Some patients were forced to delay care so long that their pregnancies were too far along to obtain
an abortion in Texas after the order expired. Kumar Decl. ¶ 31. Others had to travel as far as
Colorado or Georgia, during a crisis point of the pandemic, to obtain abortions. Declaration of
Ken Lambrecht (“Lambrecht Decl.”) (attached hereto as Pls.’ Ex. E) ¶ 25; Declaration of Melaney
A. Linton (“Linton Decl.”) (attached hereto as Pls.’ Ex. F) ¶ 23; see also Kari White et al., Letter:
Changes in Abortion in Texas Following an Executive Order Ban During the Coronavirus
Pandemic, 325 JAMA 691, 691 (2021).
Texas also has numerous medically unnecessary, abortion-specific mandates that hamper
access to care. For example, Texas law requires patients living less than 100 miles from an
abortion clinic to make an additional, unnecessary visit to receive state-mandated counseling and
an ultrasound in person, and then delay at least 24 hours before making another trip to obtain the
abortion. Tex. Health & Safety Code §§ 171.011-.016.
Despite this hostile climate, Plaintiffs are committed to ensuring that patients can access
safe, common, and constitutionally protected health care. Plaintiffs include health centers and
physicians who provide high-quality health care, including abortions, to their patients, as well as
a clinic staff member who oversees clinical operations at four Texas abortion clinics and is
personally involved in patient care. Gilbert Decl. ¶ 8; Kumar Decl. ¶ 4; Ferrigno Decl. ¶ 6; Klier
Decl. ¶ 2; Lambrecht Decl. ¶¶ 6–7; Linton Decl. ¶ 6; Declaration of Amy Hagstrom Miller
(“Hagstrom Miller Decl.”) (attached hereto as Pls.’ Ex. G) ¶¶ 8–9; Declaration of Alan Braid, M.D.
(“Braid Decl.”) (attached hereto as Pls.’ Ex. H) ¶¶ 5–6; Declaration of Bernard Rosenfeld, M.D.,
Ph.D. (“Rosenfeld Decl.”) (attached hereto as Pls.’ Ex. I) ¶ 2; Declaration of Polin C. Barraza
(“Barraza Decl.”) (attached hereto as Pls.’ Ex. J) ¶ 6; Declaration of Marva Sadler (“Sadler Decl.”)
(attached hereto as Pls.’ Ex. K) ¶¶ 7, 16.

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Plaintiffs also include organizations and individuals who support vulnerable patients by
offering funding to defray the cost of abortion; assisting with transportation and other logistical
support; providing spiritual and emotional counseling, as well as information about how to access
abortion; and securing free legal representation for minor patients who need a court order to obtain
care. Declaration of Zaena Zamora (“Zamora Decl.”) (attached hereto as Pls.’ Ex. L) ¶¶ 1, 6–10;
Declaration of Marsha Jones (“Jones Decl.”) (attached hereto as Pls.’ Ex. M) ¶¶ 8–11; Declaration
of Anna Rupani (“Rupani Decl.”) (attached hereto as Pls.’ Ex. N) ¶¶ 1, 6–7; Declaration of
Kamyon Conner (“Conner Decl.”) (attached hereto as Pls.’ Ex. O) ¶¶ 1, 6–9; Declaration of
Amanda Beatriz Williams (“Williams Decl.”) (attached hereto as Pls.’ Ex. P) ¶¶ 1, 5–6;
Declaration of Reverend Daniel Kanter (“Kanter Decl.”) (attached hereto as Pls.’ Ex. Q) ¶¶ 11,
17–19; Declaration of Reverend Erika Forbes (“Forbes Decl.”) (attached hereto as Pls.’ Ex. R) ¶¶
5, 12; Declaration of Rosann Mariappuram (“Mariappuram Decl.”) (attached hereto as Pls.’ Ex.
S) ¶¶ 1, 6–10.
B.

Section 3 of S.B. 8 Is a Flagrantly Unconstitutional Six-Week Abortion Ban
with a Rigged Civil Enforcement Scheme
1.

S.B. 8 prohibits abortions beginning at approximately six weeks of
pregnancy, roughly four months before viability

The Supreme Court has reiterated for nearly fifty years that “[b]efore viability, the State’s
interests are not strong enough to support a prohibition of abortion.” Casey, 505 U.S. at 846.
Viability is generally understood as the point when a fetus, if born at that point in pregnancy, has
a reasonable likelihood of sustained life after birth, with or without artificial support. Roe v. Wade,
410 U.S. 113, 160 (1973); see Gilbert Decl. ¶ 20; Braid Decl. ¶ 8. A full-term pregnancy is
approximately 40 weeks, as measured from the first day of the patient’s last menstrual period
(“LMP”). Gilbert Decl. ¶ 17. Viability is an individual medical determination, but it generally

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does not occur until approximately 24 weeks LMP. Gilbert Decl. ¶ 20; Braid Decl. ¶ 8; Rosenfeld
Decl. ¶ 4.
Yet Section 3 of S.B. 8 prohibits abortion in Texas beginning at approximately six weeks
LMP—roughly four months before viability. Specifically, it requires physicians to perform an
ultrasound before providing an abortion, and it prohibits the abortion if a “fetal heartbeat” is
detected. S.B. 8 § 3 (to be codified at Tex. Health & Safety Code §§ 171.203(b), 171.204(a))
(hereinafter S.B. 8 § 3 citations are to the newly created sections of Tex. Health & Safety Code
only). “Fetal heartbeat” is defined as “cardiac activity . . . within the gestational sac,” S.B. 8
§ 171.201(1), including in an embryo, id. § 171.201(7). Cardiac activity is not a “heartbeat” in the
lay sense; it includes early electrical impulses in embryonic cells well before the full development
of the heart and cardiovascular system. Gilbert Decl. ¶¶ 18–19. Such activity is generally
detectible in an embryo via ultrasound beginning at approximately six weeks LMP. Gilbert Decl.
¶ 18; Rosenfeld Decl. ¶ 4; Braid Decl. ¶ 7; Kumar Decl. ¶ 9.
S.B. 8 has no exception if the pregnancy results from rape or incest, nor is there an
exception for a fetal health condition that is incompatible with sustained life after birth. There is
only a narrow exception for a “medical emergency,” S.B. 8 § 171.205(a), which requires “a lifethreatening physical condition,” Tex. Health & Safety Code § 171.002(3). Sections 7 and 9 of
S.B. 8, which are integrated with Section 3, impose additional reporting requirements on abortions
exempt from the ban because of a medical emergency. S.B. 8 § 7 (to be codified at Tex. Health &
Safety Code § 171.008); S.B. 8 § 9 (to be codified at Tex. Health & Safety Code § 245.011(c)).

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2.

The six-week ban is enforced through civil actions brought by the general
public against abortion providers and those who support abortion patients

S.B. 8 enforcement actions can be brought by “[a]ny person” other than a state or local
government official. S.B. 8 § 171.208(a); see also id. § 171.208(j). The person bringing the action
need not have been harmed and need not have any connection whatsoever to the abortion.
Individuals can be sued under S.B. 8 for


“perform[ing] or induc[ing] an abortion” that violates the six-week ban;



“knowingly engag[ing] in conduct that aids or abets the performance or
inducement of an abortion” that violates the six-week ban, “regardless of
whether the person knew or should have known that the abortion would be
performed or induced in violation” of the ban; or



“intend[ing]” to provide or aid and abet an abortion that violates the ban.

Id. § 171.208(a).
“[A]ids or abets” is undefined except that it expressly includes “paying for or reimbursing
the costs of an abortion through insurance or otherwise.” Id. This provision is designed to prevent
abortion patients from obtaining the emotional, financial, and logistical support they need to access
care. Abortion patients will run the risk that family, friends, or partners who support them in
making and effectuating their decision could be brought into court to defend themselves against
accusations by total strangers for “aid[ing] or abet[ting]” a prohibited abortion.
3.

S.B. 8 creates huge incentives for enforcement actions to be brought,
subjecting abortion providers and supporters to expensive, abusive
litigation

S.B. 8 creates enormous incentives for abortion opponents or windfall seekers to bring
S.B. 8 enforcement actions. If an action is successful, “the court shall award” not only injunctive
relief, id. § 171.208(b)(1), but also massive monetary penalties described as “statutory damages in

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an amount of not less than $10,000 for each abortion” performed, aided, or intended to be
performed or aided in violation of the six-week ban, id. § 171.208(b)(2).
Prevailing claimants are also entitled to “costs and attorney’s fees.” Id. § 171.208(b)(3).
By contrast, abortion providers and others sued under S.B. 8 are barred from recovering their costs
and attorney’s fees, id. § 171.208(i)—even though the action against them is to enforce a blatantly
unconstitutional abortion ban, supra at 7–8.
S.B. 8 thus presents on its face a risk-free way for anti-abortion activists or other members
of the public to intimidate and impose massive costs on abortion providers, their staff, and those
who help vulnerable Texans access abortion care, regardless of the outcome of the suit. And if the
S.B. 8 claimants are successful before any state-court judge, S.B. 8 promises them an enormous
windfall and injunctive relief blocking the provision of constitutionally protected medical care.
4.

S.B. 8’s enforcement actions are gamed against abortion providers and
those supporting abortion patients

S.B. 8 also stacks the deck against abortion providers and people supporting abortion
patients so that they cannot predict what conduct will subject them to suit and cannot adequately
defend themselves once enforcement proceedings have begun. S.B. 8 does so by creating special
rules that, at every turn, are designed to chill the exercise of constitutional rights, to impose ruinous
costs and uncertainty on people defending against S.B. 8 enforcement actions, and to eviscerate
those individuals’ otherwise meritorious federal constitutional defenses.
a.

S.B. 8 provides that people accused of violating the six-week ban or aiding and

abetting a violation can be held liable retroactively for conduct that was perfectly legal at the time
it was engaged in. It is “not a defense” that the person who is sued had relied on a court decision
that was subsequently “overruled on appeal or by a subsequent court, even if that court decision

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had not been overruled when the defendant engaged in the conduct.” S.B. 8 § 171.208(e)(3). It
also is “not a defense” that the abortion patient consented to the abortion. Id. § 171.208(e)(6).
b.

S.B. 8 purports to limit the federal constitutional protections recognized by the

Supreme Court. Id. § 171.209 (titled “Civil Liability: Undue Burden Defense Limitations”
(emphasis added)). Under an “unbroken line” of Supreme Court cases stretching nearly fifty years,
“[s]tates may regulate abortion procedures prior to viability so long as they do not impose an undue
burden on the woman’s right, but they may not ban abortions.” Jackson Women’s Health Org. v.
Dobbs (“Jackson Women’s I”), 945 F.3d 265, 269 (5th Cir. 2019), cert. granted, No. 19-1392,
2021 WL 1951792 (U.S. May 17, 2021). Where, as here, the challenged law is a pre-viability ban,
“the State’s interests cannot outweigh the woman’s right to choose an abortion” because the
Supreme Court “has already balanced the State’s asserted interests and found them wanting.” Id.
at 273–74; see also Jackson Women’s Health Org. v. Dobbs (“Jackson Women’s II”), 951 F.3d
246, 248 (5th Cir. 2020) (per curiam) (holding Mississippi’s six-week ban unconstitutional).
S.B. 8 attempts to eviscerate this rule and impose a distorted version of the “undue burden”
test. S.B. 8 forces people who are sued to demonstrate that the imposition of an injunction and
monetary penalties against them will impose a substantial obstacle on patient access to care, and
to do so without relying on the effect of “an award of relief against other defendants or other
potential defendants.” S.B. 8 § 171.209(d)(2). Courts are apparently supposed to pretend that
S.B. 8’s statewide six-week ban will not affect access at any other health centers. Under this
mangled undue-burden test, an abortion provider who is sued would seemingly have to prove that
traveling to another provider would constitute a substantial obstacle for their patients—all while
ignoring the effect of any enforcement lawsuit against the other provider. S.B. 8 applies this

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standard even though decades of settled precedent have already determined that the State may not
ban abortion at a point in pregnancy before viability.
Even this distorted undue-burden affirmative defense can be retroactively taken away: it
is “not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973)
or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct . . .
occurred before the Supreme Court overruled either of those decisions.” Id. § 171.209(e).
c.

S.B. 8 also creates new venue rules to maximize the burdens on people sued. Under

Texas’s normal venue rules, venue is generally limited to where the events giving rise to the claim
took place or where the defendant resides, and the defendant can move to transfer the case to a
more convenient venue. See Tex. Civ. Prac. & Rem. Code § 15.002(a). In contrast, under S.B. 8,
any Texan can bring an enforcement action in their home county—even if the patient was not from
there and the abortion provider has never been there—and can unilaterally veto the transfer of the
case to a different venue. S.B. 8 § 171.210(a)(4), (b). This effectively means that anti-abortion
activists can force an abortion provider in Houston to defend themselves in El Paso, or force
someone from McAllen who aids an abortion to travel to Amarillo to mount a defense. Just one
abortion could spawn multiple, simultaneous enforcement actions in venues throughout the state,
brought by complete strangers who happen to live in different counties.
The burden of defending suits across the state is exacerbated by an additional provision in
S.B. 8 stating that a person accused in an enforcement action cannot present a defense of “reliance
on any state or federal court decision that is not binding on the court in which the action has been
brought.” Id. § 171.208(e)(4). Because a state appellate decision in Houston is not binding in El
Paso, for example, a Houston abortion provider could have an appellate decision in their favor at

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home but still be dragged into a court potentially governed by conflicting rulings, the most
restrictive of which will necessarily govern their conduct. See id. § 171.208(b)(1).
d.

Finally, as discussed supra at 3–4, S.B. 8 creates a one-way fee-shifting provision

that benefits only the vigilantes who bring these enforcement actions. Id. § 171.208(b)(3).
Abortion providers and others sued under S.B. 8 cannot be awarded fees or costs, id. § 171.208(i),
even though they will have been forced to defend against a blatantly unconstitutional law.
5.

S.B. 8’s enforcement actions are calculated to result in courts issuing
injunctions to halt abortions after six weeks

S.B. 8’s enormous monetary incentives and skewed rules are ends in themselves,
guaranteeing that enforcement actions will be brought and that abortion clinics, physicians, staff,
and other supporters of abortion patients will be forced to expend time and resources defending
against burdensome, bad-faith lawsuits.

These effects alone will chill the exercise of the

constitutional right to abortion.
But the financial incentives and skewed rules are also a means to achieve another end:
having state courts enjoin all abortions after six weeks across the state. If an enforcement action
is brought (as guaranteed by the monetary incentives) and successful (as intended by the skewed
rules), the court “shall award” “injunctive relief sufficient to prevent” further violations. Id.
§ 171.208(b)(1). Thus, once any enforcement action against an abortion provider is successful,
the court will seemingly be required to issue an injunction, enforceable through contempt,
prohibiting the provider from providing abortions after six weeks.
This injunction provision poses an even more immediate threat to patients: that their
decision to have an abortion could be effectively vetoed by anyone who knows about their plan.
Such a person—be it a violent partner or a disapproving parent—could try to seek immediate
injunctive relief to stop the abortion provider who “intends” to perform the abortion.

13

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§ 171.208(a). Indeed, while S.B. 8 does not permit a patient’s abuser to prevent the abortion of a
pregnancy caused by rape or incest, id. § 171.208(j), anyone else could do so, including the
abuser’s family members or complete strangers.
6.

If enforced, S.B. 8 will bar most patients from accessing an abortion

If allowed to take effect, S.B. 8 will prohibit nearly all abortions in the State of Texas. Its
plain language prohibits abortion care at the earliest moments that a pregnancy can be detected
and often before a patient has any reason to suspect that they may be pregnant. Gilbert Decl.
¶¶ 21–25; Braid Decl. ¶ 13. Although patients generally obtain an abortion as soon as they are
able, approximately 85%-90% of patients who obtain abortions in Texas are unable to do so until
at least six weeks LMP. Barraza Decl. ¶ 8; Kumar Decl. ¶ 12; Linton Decl. ¶ 8; Lambrecht Decl.
¶ 9; Klier Decl. ¶ 12; Hagstrom Miller Decl. ¶ 10; Ferrigno Decl. ¶ 14; Gilbert Decl. ¶ 14; see also
Kari White, et al., Research Brief: Texas Senate Bill 8: Medical and Legal Implications, Tex.
Policy Evaluation Project (July 2021), available at http://sites.utexas.edu/txpep/files/2021/07/
TxPEP-research-brief-SB8.pdf.
There are a variety of reasons for this. Many patients—such as those with irregular
menstrual cycles—do not realize they are pregnant until after six weeks LMP. Braid Decl. ¶ 13;
Gilbert Decl. ¶¶ 21–25; Hagstrom Miller Decl. ¶ 17. Patients who do realize they may be pregnant
before six weeks LMP usually do not suspect it until at least four weeks LMP, which is when a
patient with a highly regular menstrual cycle would miss their period—generally the first clear
indication of a possible pregnancy. Braid Decl. ¶ 14; Gilbert Decl. ¶ 22; Hagstrom Miller Decl. ¶
17. At-home pregnancy tests are not generally effective until at least four weeks LMP. Gilbert
Decl. ¶ 23. Thus, if the six-week ban were to take effect, the subset of patients who realize they
are pregnant before six weeks LMP would have only a short window of time in which to decide

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whether to keep or terminate the pregnancy, then seek and obtain an abortion before the six-week
cutoff. Gilbert Decl. ¶ 26; Braid Decl. ¶ 15; Ferrigno Decl. ¶ 14; Hagstrom Miller Decl. ¶ 17.
Texas’s existing legal barriers to abortion push most patients past six weeks LMP. As
discussed, many clinics closed permanently due to unconstitutional regulations enacted in 2013
and never reopened, reducing both the number and geographic distribution of providers. See supra
at 5. Texas’s mandatory 24-hour-delay and two-trip requirement easily pushes many patients past
the point when cardiac activity can be detected. Kumar Decl. ¶ 18; Hagstrom Miller Decl. ¶ 17;
Ferrigno Decl. ¶ 14. Moreover, Texas generally requires patients under eighteen to obtain written
parental authorization for an abortion or get a court order to obtain care—a process that typically
delays abortion care by ten days. Tex. Fam. Code §§ 33.001–.014; Mariappuram Decl. ¶ 15;
Kumar Decl. ¶ 19; Ferrigno Decl. ¶ 25.
Financial and logistical difficulties also prevent patients from obtaining an abortion before
six weeks LMP. Three out of four abortion patients are low-income or live in poverty. Kumar
Decl. ¶ 26. The majority of Texas abortion patients identify as Black or Latina/Hispanic—
communities that already face inequities in access to medical care. Kumar Decl. ¶ 26; Jones Decl.
¶ 19; Conner Decl. ¶ 5; Mariappuram Decl. ¶ 14; see also Vinita Goyal et al., Factors Associated
with Abortion at 12 or More Weeks Gestation After Implementation of a Restrictive Texas Law,
102 Contraception 314, 314–17 (2020). And with very narrow exceptions, Texas bars coverage
of abortion under its Medicaid program, 1 Tex. Admin. Code § 354.1167, health plans offered in
the state health-insurance exchange, Tex. Ins. Code § 1696.002, and private insurance plans, id.
§§ 1218.001–.006. Patients often make difficult tradeoffs among other basic needs like food or
rent to pay for their abortions. Kumar Decl. ¶ 17; Zamora Decl. ¶ 19. Many must seek financial
assistance from extended family and friends or from local abortion funds to pay for care. Kumar

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Decl. ¶ 17; Ferrigno Decl. ¶ 22; Zamora Decl. ¶ 7; Jones Decl. ¶ 14; Rupani Decl. ¶ 10; Conner
Decl. ¶ 7; Williams Decl. ¶ 6. Moreover, many patients must navigate other logistics, such as
inflexible or unpredictable work schedules, childcare, the need for safe accommodations, and
transportation hurdles—each of which can require patients to gather additional resources and may
delay them in obtaining an abortion. Ferrigno Decl. ¶ 24; Hagstrom Miller Decl. ¶ 17; Kumar
Decl. ¶ 17; Rupani Decl. ¶¶ 12–13.
Patients whose pregnancies are the result of sexual assault or who are experiencing
interpersonal violence may need additional time to access abortion due to ongoing physical or
emotional trauma or because of added challenges accessing abortion care without the knowledge
of their abuser. For such patients, obtaining an abortion before six weeks LMP is exceedingly
difficult, if not impossible. Kumar Decl. ¶ 21; Ferrigno Decl. ¶ 26; Rupani Decl. ¶ 13.
If abortion becomes largely inaccessible in Texas, patients who can scrape together the
resources to do so will be forced to travel out of state for medical care. Many of these patients
will be delayed in ending their pregnancies, bearing the pains and risks of pregnancy for longer
and the increased medical risks and costs of abortion at later gestational ages. Kumar Decl. ¶¶ 24–
25; Klier Decl. ¶ 13; Hagstrom Miller Decl. ¶¶ 28–30; Lambrecht Decl. ¶ 23; Ferrigno Decl. ¶ 27;
Braid Decl. ¶¶ 16–17; Barraza Decl. ¶ 20; Zamora Decl. ¶ 15; Rupani Decl. ¶ 15; Conner Decl. ¶
12; Williams Decl. ¶ 12; Linton Decl. ¶ 21. Some who are unable to travel out of state will seek
ways to end their pregnancies without access to accurate medical information. Linton Decl. ¶¶ 5,
24; Lambrecht Decl. ¶ 5; Kumar Decl. ¶ 25; Barraza Decl. ¶ 5; Braid Decl. ¶ 18; Ferrigno Decl. ¶
29; Zamora Decl. ¶ 17; Rupani Decl. ¶ 15.
S.B. 8 will force many Texans to carry pregnancies to term and undergo childbirth against
their will. Jones Decl. ¶ 26; Williams Decl. ¶¶ 12–13; Linton Decl. ¶¶ 5, 23; Lambrecht Decl. ¶¶

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5, 25; Kumar Decl. ¶¶ 24, 31; Barraza Decl. ¶¶ 5, 20, 22; Zamora Decl. ¶ 17; Rupani Decl. ¶ 15;
Conner Decl. ¶¶ 12–13; Mariappuram Decl. ¶¶ 17–18; Klier Decl. ¶ 13; Hagstrom Miller Decl. ¶
30; Ferrigno Decl. ¶ 29; Sadler Decl. ¶ 14; Braid Decl. ¶ 19. They will face increased mortality
risk associated with full-term pregnancy and childbirth—14 times greater than that of abortion.
Gilbert Decl. ¶¶ 30–31; Braid Decl. ¶ 17. Patients and their families who receive fetal diagnoses
that are incompatible with sustained life after birth will suffer the added anguish of being forced
to continue a doomed pregnancy. Kumar Decl. ¶ 28. Patients with preexisting conditions will be
forced to incur the heightened medical and mental health risks associated with continuing
pregnancy unless their condition deteriorates so profoundly that they can satisfy S.B. 8’s narrow
“medical emergency” exception. Id. ¶ 29; Gilbert Decl. ¶ 31; Braid Decl. ¶ 17.
C.

Section 4 of S.B. 8 Also Creates New Attorney’s-Fee Liability in Cases
Challenging Abortion Restrictions

Separate from the fee-shifting provision in Section 3 of S.B. 8 (which governs the six-week
ban enforcement actions), Section 4 of S.B. 8 creates another one-way fee-shifting provision
designed to penalize and deter all state and federal challenges to all Texas abortion restrictions,
not just challenges to S.B. 8 itself. S.B. 8 § 4 (to be codified at Tex. Civ. Prac. & Rem. Code
§ 30.022) (applying to “any statute, ordinance, rule, regulation, or any other type of law that
regulates or restricts abortion or that limits taxpayer funding” for abortion) (hereinafter S.B. 8 § 4
citations are to newly created sections of Tex. Civ. Prac. & Rem. Code). It makes no exception
for federal civil-rights claims, including Section 1983 claims, that are already subject to a
comprehensive fee-shifting regime under 42 U.S.C. § 1988.
Specifically, Section 4 purports to impose liability for an opponent’s attorney’s fees and
costs whenever challengers to abortion restrictions obtain anything less than complete victory on
all claims. See id. S.B. 8 would, for example, require challengers to pay fees if any of their claims

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is dismissed as moot or if they plead claims in the alternative, even if they ultimately succeed in
obtaining full relief against the challenged restriction. And unlike any other statute of which
Plaintiffs are aware, S.B. 8’s fee-shifting provision extends liability to the challengers’ attorneys
as well, even if the dismissed claims were non-frivolous and brought in good faith.
D.

Defendants Have Authority to Directly or Indirectly Enforce the Six-Week
Ban and Are Authorized to Seek Fees Under the Fee-Shifting Provision
1.

Defendant classes of Texas state-court judges and clerks

The Texas Legislature chose to have S.B. 8’s six-week ban directly enforced not by
executive branch officials or prosecutors but rather through civil enforcement actions in Texas
state courts. Id. §§ 171.207(a), 171.208(a). Because S.B. 8 conscripts Texas state-court judges
and clerks into enforcing the six-week ban, Plaintiffs seek declaratory relief against all non-federal
judges and clerks in Texas courts that will have jurisdiction over S.B. 8 lawsuits and the authority
to impose injunctive relief, monetary penalties, and fees and costs. Plaintiffs intend to move to
certify a defendant class of judges and a defendant class of clerks. The proposed defendant class
representatives are Judge Austin Reeve Jackson of the 114th District Court and Penny Clarkston,
District Clerk for Smith County.
As the Supreme Court has recognized, prospective equitable relief against judges sued in
their official capacity may be “constitutionally required and necessary to prevent irreparable
harm.” Pulliam v. Allen, 466 U.S. 522, 539 (1984); see id. at 540 (Congress intended Section 1983
“to reach unconstitutional actions by all state actors, including judges”). Declaratory relief is
expressly an appropriate remedy against judicial officers, and injunctive relief against judicial
officers is available if “a declaratory decree was violated or declaratory relief was unavailable.”
42 U.S.C. § 1983. Because it ordinarily can be assumed that “issuance of declaratory judgments

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of unconstitutionality . . . would be given effect by state authorities,” Steffel v. Thompson, 415 U.S.
452, 469 (1974), Plaintiffs seek such relief before S.B. 8’s effective date of September 1, 2021.
2.

Defendant Mark Lee Dickson

Defendant Mark Lee Dickson is one of the unlimited number of private individuals
deputized to enforce S.B. 8 against Plaintiffs for providing prohibited abortions, aiding and
abetting such abortions, or intending to do those things. Dickson is the Director of Right to Life
East Texas and has pushed for the adoption of state and local laws that impose liability on abortion
providers and individuals who assist in the provision or obtainment of constitutionally protected
abortion. Conner Decl. ¶ 14; Williams Decl. ¶ 14. Mr. Dickson has expressly threatened to sue
Planned Parenthood Greater Texas Surgical Health Services (PPGTSHS) under a Lubbock
ordinance that is functionally identical to S.B. 8, and he has taken deceptive steps to test
PPGTSHS’s compliance with that ordinance. Lambrecht Decl. ¶ 14. Due to these threats and
others, PPGTSHS has been forced to stop providing abortions in Lubbock while it challenges the
Lubbock ordinance in another federal lawsuit. Id. ¶ 15; PPGTSHS v. City of Lubbock, No. 5:21CV-114-H, 2021 WL 2385110 (N.D. Tex. June 1, 2021) (dismissing case for lack of jurisdiction),
mot. for reconsideration filed (N.D. Tex. June 29, 2021), ECF No. 51.
Additionally, Dickson has drafted local ordinances branding Plaintiffs The Afiya Center,
Lilith Fund, and North Texas Equal Access Fund (“TEA Fund”) as “criminal organizations” and
seeking to bar them from operating in the towns that adopted the ordinances. Conner Decl. ¶ 14;
Jones Decl. ¶ 25; Williams Decl. ¶ 14. Dickson has publicly stated that “Lilith Fund and other
abortion-aiding organizations all take part in the murder of innocent unborn human beings,”
indicating that he views them as aiders and abettors under S.B. 8. Conner Decl. ¶ 14, Williams
Decl. ¶ 14.

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Mr. Dickson has also openly called for people to sue their local abortion providers under
S.B. 8 and has offered to connect interested claimants with attorneys.3 Plaintiffs face a credible
threat that he will sue them under S.B. 8 if they perform or assist in the performance of abortions
prohibited by the Act, or if they intend to do so. Mr. Dickson is properly sued under Section 1983
as acting under color of state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982);
Smith v. Allwright, 321 U.S. 649, 662–65 (1944); Rosborough v. Mgmt. & Training Corp., 350
F.3d 459, 460 (5th Cir. 2003) (per curiam).
3.

Defendant state officials

Plaintiffs have also sued state licensing officials and the Attorney General of Texas in their
official capacities. These defendants cannot enforce the six-week ban directly because state and
local officials are prohibited from taking or threatening any “enforcement of th[e] subchapter” in
which S.B. 8 will be codified. S.B. 8 § 171.207(a). But S.B. 8 contemplates their enforcement of
other laws “in response to violations of this subchapter.” Id. While S.B. 8 rules out such indirect
enforcement under two specific chapters of the penal code dealing with murder and assault, S.B. 8
contains no limitation on public officials’ power to collaterally enforce other laws “in response to
violations of this subchapter.” Id. For example, under the Medical Practice Act, the Texas Medical
Board may discipline a physician who violates any state law “connected with the physician’s
practice of medicine” because such violation constitutes “unprofessional or dishonorable
conduct.” Tex. Occ. Code § 164.053(a)(1); id. § 164.052(a)(5); see also Compl. at ¶¶ 51–55
(describing the basis on which each state and local official retains authority to enforce other laws

3

See, e.g., Mark Lee Dickson, Facebook (Mar. 29, 2021, 11:15 PM), https://www.
facebook.com/markleedickson/posts/10159115346774866 (“[B]ecause of [SB 8] you will be able
to bring many lawsuits later this year against any abortionists who are in violation of this bill. Let
me know if you are looking for an attorney to represent you if you choose to do so. Will be glad
to recommend some.”).
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in response to violations of S.B. 8). Plaintiffs therefore seek summary judgment and declaratory
and injunctive relief against officials with residual authority to enforce other laws against certain
Plaintiffs based on violations of S.B. 8. See Air Evac EMS, Inc. v. Texas, 851 F.3d 507 (5th Cir.
2017) (“direct enforcement” of a statute “is not required” to sue a state official for injunctive
relief).4
4.

Potential liability to Defendants under the Section 4 fee-shifting provision

Section 4 of S.B. 8 purports to make Plaintiffs liable for attorney’s fees and costs to
Defendants, recoverable in a separate action filed in state court, if Plaintiffs do not prevail on each
of their claims for relief in this case. See supra at 3–4. Additionally, all but one of the state official
defendants are frequent litigants in challenges to abortion restrictions, including in currently
pending cases involving some Plaintiffs. See Whole Woman’s Health v. Paxton, 978 F.3d 896 (5th
Cir. 2020) (suit involving Whole Woman’s Health, PP Houston, PPGTSHS, PPST Surgical Center,
Alamo, Southwestern and Dr. Kumar against Texas attorney general); Whole Woman’s Health v.
Smith, 896 F.3d 362 (5th Cir. 2018) (suit involving Whole Woman’s Health, Austin Women’s,
Alamo, Whole Woman’s Health Alliance, and Dr. Kumar against the Texas Health and Human
Services Commissioner); Compl., Whole Woman’s Health All. v. Paxton, No. 1:18-CV-00500-LY
(W.D. Tex. June 14, 2018), ECF No. 1 (suit involving Whole Woman’s Health Alliance, Fund
Texas Choice, Lilith Fund, The Afiya Center, and Dr. Kumar against the Texas attorney general,

4

Defendant Paxton is a proper defendant under Section 1983 and Ex Parte Young, 209 U.S. 123
(1908), based on his authority to enforce collateral statutes in response to S.B. 8 violations and to
seek costs and fees under S.B. 8 Section 4. Plaintiffs further assert that they would have standing
to sue Defendant Paxton and that he would be a proper defendant even in the absence of that
collateral enforcement authority and Section 4’s fee-shifting provision. This standing theory is
currently foreclosed by the Fifth Circuit’s decision in Okpalobi v. Foster, 244 F.3d 405 (5th Cir.
2001) (en banc), but Plaintiffs assert it here to preserve it for any appeal.
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the Texas HSS Commissioner, and the interim executive director of the Texas Medical Board in
their official capacities); see generally Lambrecht Decl. ¶ 28 (identifying additional cases).
Plaintiffs therefore seek declaratory relief against all Defendants that they are not entitled
to seek or obtain costs and attorney’s fees under Section 4 of S.B. 8 in this or any other case. They
also seek injunctive relief against Defendant Dickson and the State Official Defendants preventing
them from doing so in this or any other case.
ARGUMENT
I.

THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR PLAINTIFFS ON
THEIR CLAIMS RELATING TO SECTION 3 OF S.B. 8, THE SIX-WEEK
ABORTION BAN AND ENFORCEMENT PROVISIONS
Section 3 of S.B. 8, which creates the six-week ban and the scheme for enforcing it,

unconstitutionally infringes the right to abortion, violates Plaintiffs’ equal-protection, due-process,
and First Amendment rights, and impinges on federal rights conferred to Plaintiffs under federal
law. There is no “genuine dispute as to any material fact,” and under clear precedent, Plaintiffs
are “entitled to judgment as a matter of law” on all their claims. Fed. R. Civ. P. 56(a); see Fed. R.
Civ. P. 56(b) (“[A] party may file a motion for summary judgment at any time until 30 days after
the close of all discovery.”); see also Fed. R. Civ. P. 56 advisory committee’s note to 2010
amendment (Rule 56 “allows a motion for summary judgment to be filed at the commencement of
an action”).
A.

The Six-Week Ban Violates Plaintiffs’ Patients’ Substantive-Due-Process
Right to Pre-Viability Abortion

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have
established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before
viability.” Jackson Women’s I, 945 F.3d at 269. In Roe, the Supreme Court held that a Texas
abortion ban was unconstitutional, concluding that the Fourteenth Amendment right to substantive

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due process is “broad enough to encompass a woman’s decision whether or not to terminate her
pregnancy.” 410 U.S. at 153. Twenty years later, in Casey, the Court reaffirmed Roe’s “essential
holding” that, “[b]efore viability, the State’s interests are not strong enough to support a
prohibition of abortion.” 505 U.S. at 846. The Supreme Court again reaffirmed this core principle
as recently as last year. See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020)
(Roberts, C.J., concurring); id. at 2120 (plurality opinion).
Applying that precedent, the Fifth Circuit held in Jackson Women’s I that a Mississippi law
prohibiting abortions after 15 weeks LMP was an unconstitutional ban on pre-viability abortions.
945 F.3d at 272–74. The court explained that “[p]rohibitions on pre-viability abortions . . . are
unconstitutional regardless of the State’s interests.” Id. at 273. “Until viability, it is for the woman,
not the state, to weigh any risks to maternal health and to consider personal values and beliefs in
deciding whether to have an abortion.” Id. at 274. Simply put, if a law “is a ban on certain previability abortions, . . . Casey does not tolerate” it. Id.
The Fifth Circuit later struck down a Mississippi six-week abortion ban for the same
reason. Jackson Women’s II, 951 F.3d at 248. Like S.B. 8, the second Mississippi law prohibited
abortion after a “fetal heartbeat has been detected,” and it defined “fetal heartbeat” as “cardiac
activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational
sac.” Id. The court explained that “cardiac activity can be detected well before the fetus is viable.”
Id. That alone “dooms the law.” Id.
Like the Fifth Circuit, other “courts have ‘universally’ invalidated laws that ban abortions
beginning at a gestational age prior to viability.” Planned Parenthood S. Atl. v. Wilson, No. 3:21-

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00508-MGL, 2021 WL 672406, at *2 (D.S.C. Feb. 29, 2021) (preliminary injunction of South
Carolina six-week ban), appeal filed, No. 21-1369 (4th Cir. Apr. 5, 2021).5
S.B. 8 directly contravenes this binding precedent. The only question material to the
constitutional analysis is whether a prohibition on abortion after detection of a “fetal heartbeat,”
as defined in S.B. 8, is a pre-viability ban, and there can be no genuine dispute that the answer is
yes. See supra at 7–8; see also MKB Mgm’t Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015)
(affirming grant of summary judgment because “there is no genuine dispute that [a six-week ban]
generally prohibits abortions before viability”). S.B. 8 is an unconstitutional “ban” on abortion
“well before the fetus is viable,” and no assertion of state interests or purported factual disputes
can alter that. Jackson Women’s II, 951 F.3d at 248.

5

See Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, No.
19-2882, 2021 WL 2345256, at *3 (8th Cir. June 9, 2021) (Missouri eight-week ban), pet. for cert.
filed, No. 21-3 (U.S. June 30, 2021), vacated & reh'g en banc granted (8th Cir. July 13, 2021) (en
banc); Little Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682, 687 (8th Cir. 2021) (Arkansas 18week ban), pet. for cert. filed, No. 20-1434 (U.S. Apr. 13, 2021); McCormack v. Herzog, 788 F.3d
1017, 1029 (9th Cir. 2015) (Idaho equivalent of 22-week ban); MKB Mgmt. Corp. v. Stenehjem,
795 F.3d 768, 776 (8th Cir. 2015) (North Dakota six-week ban); Edwards v. Beck, 786 F.3d 1113,
1115 (8th Cir. 2015) (Arkansas 12-week ban); Isaacson v. Horne, 716 F.3d 1213, 1217, 1231 (9th
Cir. 2013) (Arizona 20-week ban); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996)
(Utah equivalent of 22-week ban); Sojourner T. v. Edwards, 974 F.2d 27, 29, 31 (5th Cir. 1992)
(Louisiana ban at all gestational ages); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962
F.2d 1366, 1368–69 (9th Cir. 1992) (Guam ban at all gestational ages); SisterSong Women of Color
Reprod. Justice Collective v. Kemp, 472 F. Supp. 3d 1297, 1312 (N.D. Ga. 2020) (Georgia sixweek ban), appeal filed, No. 20-13024 (11th Cir. Aug. 11, 2020); Memphis Ctr. for Reprod. Health
v. Slatery, No. 3:20-CV-00501, 2020 WL 4274198, at *2 (M.D. Tenn. July 24, 2020) (preliminary
injunction of Tennessee six-week ban), appeal filed, No. 20-5969 (6th Cir. Aug. 24, 2020);
Robinson v. Marshall, 415 F. Supp. 3d 1053, 1059 (M.D. Ala. 2019) (preliminary injunction of
Alabama ban at all gestational ages); Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 804 (S.D.
Ohio 2019) (preliminary injunction of Ohio six-week ban); EMW Women’s Surgical Ctr., P.S.C.
v. Beshear, No. 3:19-CV-178-DJH, 2019 WL 1233575, at *2 (W.D. Ky. Mar. 15, 2019)
(temporary restraining order of Kentucky six-week ban); Bryant v. Woodall, 363 F. Supp. 3d 611,
630 (M.D.N.C. 2019) (North Carolina 20-week ban), aff’d, No. 19-1685, 2021 WL 2446942 (4th
Cir. June 23, 2021).
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Once this Court concludes that the ban on providing abortions beyond six weeks of
pregnancy is unconstitutional, the remainder of Section 3 and the related mandates in Sections 7
and 9 and the conforming amendment in Section 6 are also invalid—including the provisions
requiring a test to detect a “fetal heartbeat,” creating aiding-and-abetting liability, establishing the
private enforcement cause of action, and imposing reporting obligations to facilitate the six-week
ban. The Court need not examine S.B. 8 “in piecemeal fashion” when it finds “the statutory
provisions at issue facially unconstitutional.” Whole Woman’s Health, 136 S. Ct. at 2318–20
(holding that the entirety of a Texas act regulating abortion was facially invalid). Regardless, the
“heartbeat” test serves no purpose beyond facilitating this unconstitutional ban. See, e.g., Planned
Parenthood S. Atl., 2021 WL 672406, at *1 (enjoining ultrasound requirement that served only to
facilitate a six-week ban); SisterSong, 472 F. Supp. 3d at 1324–26. And without a prohibited
abortion, there is nothing wrongful under S.B. 8 that can be aided or abetted. See S.B. 8
§ 171.208(a)(2) (limiting liability to those who aid or abet an abortion “performed or induced in
violation of” S.B. 8); see also Nettles v. GTECH Corp., 606 S.W.3d 726, 738 (Tex. 2020) (“Aiding
and abetting and conspiracy are theories of derivative or vicarious liability” that “depend upon
liability for an underlying tort, and they survive or fail alongside that tort.”); W. Fork Advisors,
LLC v. SunGard Consulting Servs., LLC, 437 S.W.3d 917, 921 (Tex. App. 2014) (“[W]hen an
underlying tort fails,” there can be no “aiding and abetting claim related to that failed tort.”).
Because there is no remaining prohibited conduct, Section 3’s creation of an enforcement scheme
is entirely superfluous. And, similarly, the reporting requirements in Sections 7 and 9 are
inextricably linked to the six-week ban and serve no purpose once it falls. See, e.g., Planned
Parenthood S. Atl., 2021 WL 672406, at *1 (enjoining reporting requirements facilitating six-week

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ban enforcement). Sections 3, 6, 7, and 9 should be declared invalid in their entirety, and their
enforcement should be enjoined.
B.

S.B. 8’s Enforcement Provisions Are Independently Unconstitutional

Section 3’s six-week ban and private enforcement scheme fall together. But even if the
enforcement provisions are examined separately, they are independently unconstitutional in
multiple ways.
1.

The enforcement provisions are preempted by federal law

The Supremacy Clause establishes that federal law is “the supreme Law of the Land,” U.S.
Const. art. VI, cl. 2, and it is the Supreme Court’s “responsibility to say what” a federal statute or
constitutional provision “means.” Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 21 (2012) (per
curiam) (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994)). Federal rights
declared by the Supreme Court “can neither be nullified openly and directly by state legislators or
state executive or judicial officers, nor nullified indirectly by them through evasive schemes.”
Cooper v. Aaron, 358 U.S. 1, 17 (1958). And for good reason: as Chief Justice Marshall explained,
“If the legislatures of the several states may, at will, annul the judgments of the courts of the United
States, and destroy the rights acquired under those judgments, the constitution itself becomes a
solemn mockery . . . .’” Id. at 18 (quoting United States v. Peters, 5 Cranch 115, 136 (1803)).
In violation of these bedrock principles, S.B. 8 imposes rules for enforcement actions that
defy federal law and its clear protections for Plaintiffs. First, S.B. 8 effectively directs judges in
enforcement actions to ignore declaratory judgments and injunctions issued by federal courts. See
S.B. 8 § 171.212(e) (directing that a “judicial injunction or declaration of unconstitutionality . . .
is nothing more than an edict” that can be vacated by a court that “has a different understanding of
the requirements of the . . . United States Constitution”); see also id. § 171.208(e)(4), (5)
(prohibiting reliance on non-mutual issue or claim preclusion, or reliance as a defense on any other
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“state or federal court decision that is not binding on the court in which the action” was brought).
The clear import of these provisions is to cast a pall on constitutionally protected activity, force
abortion providers and those who assist them to defend themselves repeatedly, and hamstring their
defense.

But states cannot simply give federal-court judgments in federal-question cases

“whatever effect they would give their own judgments”; instead, states “must accord them the
effect” that federal law provides. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507
(2001) (U.S. Supreme Court “has the last word on the claim-preclusive effect of all federal
judgments”).
Second, S.B. 8 purports to override the binding federal law that would apply in the state
enforcement proceedings by severely impeding one’s ability to demonstrate an undue burden.
S.B. 8 states that an undue burden cannot be shown by “arguing or attempting to demonstrate that
an award of relief against other defendants or other potential defendants will impose an undue
burden on women seeking an abortion.” S.B. 8 § 171.208(d)(2). This means that judges are
supposed to close their eyes to the statewide impact of the law and instead look only to the burden
created by an award of relief against the particular person sued in that particular case. But far from
imposing such blinders, the Supreme Court’s decisions mandate consideration of the real-world
effect of statewide abortion restrictions, including on entities in the state not before the court in a
given case. See Whole Woman’s Health, 136 S. Ct. at 2313 (applying undue-burden test to facially
invalidate statewide abortion regulation that “led to the closure of half of Texas’ clinics”); see also
June Med. Servs., 140 S. Ct. at 2140 (Roberts, C.J., concurring) (citing with approval this aspect
of Whole Woman’s Health’s analysis and noting that Louisiana law would similarly cause “a
drastic reduction in the number and geographic distribution of abortion providers” (citation
omitted)); Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 (5th Cir. 2014) (courts are

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bound to accept the “factual context in which the law operates”). It is the Supreme Court’s
responsibility to say what the federal Constitution means, and the Texas legislature is powerless
to interpose these “limitations,” S.B. 8 § 171.209, on federal constitutional protections. Nitro-Lift
Techs., 568 U.S. at 21; Cooper, 358 U.S. at 17.
Indeed, S.B. 8’s entire scheme of pairing a patently unconstitutional prohibition with
private, civil enforcement is designed to evade federal-court review and defy federal law. Texas
has adopted a law that sets about to “do precisely that which the [Constitution] forbids.” Terry v.
Adams, 345 U.S. 461, 469–70 (1953). If successful, S.B. 8 would set a dangerous precedent that
states and municipalities hostile to federal constitutional rights would be sure to follow. Today, it
is abortion providers and those who assist them. Tomorrow, it might be gun buyers who face
private, civil liability for every firearm purchase. Churches and religious leaders could be hauled
into far-flung courts to defend their religious practices because someone somewhere disagrees with
them. Same-sex couples could be sued by neighbors because they obtained a marriage license.
This is a recipe for destroying individual constitutional rights and turning the Constitution into “a
solemn mockery.” Cooper, 358 U.S. at 18.
2.

The enforcement provisions violate the constitutional guarantee of equal
protection

The Equal Protection Clause of the Fourteenth Amendment directs “that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985).

Under the equal-protection analysis, if similarly situated persons are treated

differently, then the court determines the appropriate level of scrutiny. Gallegos–Hernandez v.
United States, 688 F.3d 190, 195 (5th Cir. 2012). “Strict scrutiny is required if the legislative
classification operates to the disadvantage of some suspect class or impinges upon a fundamental
right explicitly or implicitly protected by the Constitution.” Richard v. Hinson, 70 F.3d 415, 417

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(5th Cir. 1995). If neither a suspect class nor a fundamental right is implicated, the classification
must bear a rational relation to a legitimate governmental purpose. Id.
S.B. 8’s enforcement provisions violate the Equal Protection Clause by singling out those
who provide or assist with abortions and subjecting them to lawsuits in which the deck is stacked
heavily against them. These suits are fueled by the promise of massive bounties for claimants who
need have no connection to the alleged violation, while abortion providers and those who assist
them are deprived of the ability to mount a fair defense. No other civil litigant in Texas is subject
to such a hostile legal framework full of unique rules designed to harass litigants and doom
defenses.
a.

The enforcement provisions single out abortion providers and
supporters for discriminatory treatment

S.B. 8’s enforcement provisions single out and discriminate against people who provide
abortions or assist patients in accessing abortion.
As an initial matter, S.B. 8 provides that abortion providers and those who assist abortions
be forced to pay a minimum of $10,000 per abortion to “[a]ny person” who sues, even if that person
is not connected to the abortion and has not been harmed in any way. S.B. 8 § 171.208(a).
Plaintiffs are aware of no other statute in Texas that purports to allow complete strangers to obtain
seemingly unlimited damages without any connection to the alleged violation. Indeed, Texas
courts examining statutes that imposed a civil penalty or statutory damages designed to penalize
conduct have held that those penalties were actually punitive damages, which cannot be awarded
to a private claimant unless the claimant recovers other damages. Wal-Mart Stores, Inc. v. Forte,
497 S.W.3d 460, 464–67 (Tex. 2016); KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n, 478
S.W.3d 111, 116–23 (Tex. App. 2015).

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But that is just the start. S.B. 8 then departs dramatically from generally applicable rules
to maximize the burden on abortion providers and supporters. Any Texan who sues can do so in
their home county and can unilaterally veto a transfer of venue to a more appropriate and
convenient forum. S.B. 8 § 171.210(a)(4), (b). Because “any person” can sue, this allows abortion
providers to be sued multiple times for the same abortion by people in counties across the state.
S.B. 8 also purports to require courts to retry identical cases against abortion providers and those
who assist them, so long as a different stranger files suit each time. See id. § 171.208(e)(5)
(precluding defense of “non-mutual issue preclusion or non-mutual claim preclusion”). And
people sued under S.B. 8 cannot rely “on any state or federal court decision that is not binding on
the court in which the action has been brought.” Id. § 171.208(e)(4). These provisions conspire
to create a grave risk of inconsistent results, imposing injunctions and monetary penalties onto
abortion providers and supporters once a single court rules against them—even if they have
overcome the Texas Legislature’s scheme and prevailed in other suits about the same abortion.
No one else in Texas must run this legal gauntlet.
Next, S.B. 8 purports to limit the substantive defenses available in enforcement actions.
As discussed above, it tries to disallow those sued from relying on the clear unconstitutionality of
pre-viability abortion bans, and it mangles the undue-burden test by requiring courts to blind
themselves to the ban’s statewide impact. See supra at 10–12; S.B. 8 § 171.209(c), (d). S.B. 8
also tries to make abortion providers and supporters retroactively liable for conduct that was
plainly lawful and constitutionally protected at the time of the conduct, barring reliance “on any
court decision that has been overruled on appeal or by a subsequent court, even if that court
decision had not been overruled when the defendant engaged in” the conduct.
§ 171.208(e)(3).

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Finally, S.B. 8 awards costs and fees to prevailing claimants, even though every case they
bring would seek enforcement of a patently unconstitutional law, but it prohibits abortion providers
and supporters from recouping the same if they successfully counter these abusive vigilante claims.
Id. § 171.208(b)(3), (i). This sharply departs from the generally applicable Texas rule allowing a
prevailing defendant in a frivolous lawsuit, or a lawsuit brought to harass, to recover fees and costs
incurred in opposing the litigation. See Tex. Civ. Prac. & Rem. Code §§ 10.001–.002.
b.

The enforcement provisions violate equal protection, no matter the
level of scrutiny

A challenged classification is subject to strict scrutiny if it burdens a fundamental right,
meaning “one that is explicitly or implicitly protected by the Constitution.” Richard, 70 F.3d at
417; see Zablocki v. Redhail, 434 U.S. 374, 388 (1978). S.B. 8’s enforcement provisions burden
fundamental First Amendment rights, infra at 35–42, and the fundamental right to abortion, supra
at 22–24. Thus, strict scrutiny applies, and the state must have a compelling interest and
demonstrate that the statutory classification “fit[s] the compelling goal so closely that there is little
or no possibility that the motive for the classification was illegitimate.” Grutter v. Bollinger, 539
U.S. 306, 333 (2003) (internal quotation marks omitted). Even under rational-basis review, a law
that is plainly “drawn for the purpose of disadvantaging” a disfavored class is unconstitutional.
Romer v. Evans, 517 U.S. 620, 633 (1996).
S.B. 8’s enforcement scheme cannot survive any level of review because its transparent
purpose is to suppress the exercise of protected constitutional rights. The State cannot possibly
explain why subjecting abortion providers and those who assist abortions to uniquely burdensome
lawsuits governed by gamed rules is necessary to achieve a legitimate, much less compelling,
interest. “[I]f the constitutional conception of equal protection of the laws means anything, it must
at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot

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constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534
(1973); see also Romer, 517 U.S. at 632 (striking down constitutional amendment because “its
sheer breadth [wa]s so discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to
legitimate state interests”); Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743–44 (1983)
(holding in right-to-petition challenge that states “have only a negligible interest, if any, in having
insubstantial claims adjudicated by their courts, particularly in the face of the strong federal interest
in vindicating” rights protected by federal law).
c.

The enforcement provisions are unconstitutionally vague

Under the Fourteenth Amendment’s guarantee of due process, a law may be void for
vagueness “for either of two independent reasons. First, it may fail to provide the kind of notice
that will enable ordinary people to understand what conduct it prohibits; second, it may authorize
and even encourage arbitrary and discriminatory enforcement.” United States v. Escalante, 239
F.3d 678, 680 (5th Cir. 2001) (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999)
(plurality)). This standard applies to “[c]ivil statutes . . . that contain quasi-criminal penalties,” as
S.B. 8 does. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 508 (5th Cir. 2001); see
Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 422 (5th Cir. 2001) (abortion regulations
with “potentially significant civil and administrative penalties” were quasi-criminal and void for
vagueness). And it is applied “stringent[ly]” where, as here, a challenged law “threatens to inhibit
the exercise of constitutionally protected rights.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests.,
455 U.S. 489, 499 (1982). S.B. 8’s enforcement provisions fail both vagueness prongs.
d.

The enforcement provisions fail to provide adequate notice

With respect to abortion providers, S.B. 8 affirmatively deprives them of the notice
necessary to determine when they are violating the law and may be liable for providing an abortion.
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They cannot rely on binding Supreme Court precedent or any other court decision in place at the
time of their conduct if that decision is later overruled. S.B. 8 § 171.208(e)(3). “Elementary
considerations of fairness dictate that individuals should have an opportunity to know what the
law is and to conform their conduct accordingly . . . .” Landgraf v. USI Film Prods., 511 U.S. 244,
265 (1994). Yet S.B. 8 forces abortion providers to try to guess the future. And if they guess
incorrectly, their “belief that [S.B. 8’s requirements] are unconstitutional or were unconstitutional”
is also not a defense. S.B. 8 § 171.208(e)(2). This forced guessing game will unquestionably
inhibit the exercise of constitutionally protected rights. It is the opposite of “fair warning” with
“explicit standards.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
As to those who assist with abortions, S.B. 8 fails to adequately inform them of when they
may be liable for aiding and abetting. As an initial matter, not only does the aiding-and-abetting
provision suffer from the same retroactivity concern just discussed, “aids and abets” is undefined
in the statute and has no uniform definition under Texas law. See Nelson S. Ebaugh, The Liability:
Why You Should Understand the Five Tests of Civil Aiding and Abetting in Texas, 78 Tex. B.J.
362 (2015). Moreover, unlike any other aiding-and-abetting liability of which Plaintiffs are aware,
S.B. 8 purports to impose such liability regardless of whether a person knew that a critical element
of the offense was present. Specifically, whether conduct “aids and abets” a prohibited abortion
turns on whether the physician detects a “fetal heartbeat” before performing the abortion. Such
detection often would happen later, after the alleged aiding-and-abetting conduct occurred, and
thus may not be knowable to a person at risk of being sued. Yet S.B. 8 imposes liability “regardless
of whether the person knew or should have known that the abortion would be performed or induced
in violation” of the ban. S.B. 8 § 171.208(a)(2); see Women’s Med. Ctr., 248 F.3d at 422 (abortion

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regulation “is unconstitutionally vague on its face because it impermissibly subjects physicians to
sanctions based not on their own objective behavior, but on the subjective viewpoints of others”).
S.B. 8 therefore creates the “hazard of being prosecuted for knowing but guiltless
behavior.” Baggett v. Bullitt, 377 U.S. 360, 373 (1964). The only way to ensure no penalty for
aiding and abetting an abortion is to avoid assisting any abortion, even ones that are not prohibited.
Due process does not permit such uncertainty, particularly where, as here, it will “lead citizens to
steer far wider of the unlawful zone” to avoid S.B. 8’s draconian penalties. Grayned, 408 U.S. at
109 (citations and internal quotation marks omitted); see New York v. Ferber, 458 U.S. 747, 768
(1982) (“[P]ersons whose expression is constitutionally protected may well refrain from exercising
their rights for fear of criminal sanctions by a statute susceptible of application to protected
expression[.]” (citations omitted)).
e.

The enforcement provisions invite arbitrary enforcement

Additionally, S.B. 8’s enforcement provisions empower precisely the kind of “arbitrary
and discriminatory enforcement” that the vagueness doctrine guards against. Grayned, 408 U.S.
at 108. By “freely authoriz[ing] unharmed plaintiffs to” bring enforcement actions, S.B. 8 takes
discretionary decisions such as “how to prioritize and how aggressively to pursue legal actions
against defendants who violate the law” away from public officials and hands that discretion to
ideologically motivated plaintiffs who “are not accountable to the people and are not charged with
pursuing the public interest.” TransUnion LLC v. Ramirez, No. 20-297, 2021 WL 2599472, at *9
(U.S. June 25, 2021). Under S.B. 8, any anti-abortion activist can drag an abortion provider or
supporter into a costly enforcement action by accusing them of doing nothing more than
“inten[ding]” to violate the law. S.B. 8 § 171.208(a)(3). S.B. 8 thus permits and encourages
activists to arbitrarily police their political and ideological opponents, and it allows them to “do so
unencumbered by the legal and practical checks that tend to keep the energies of public
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enforcement agencies focused upon more” concrete harms. Nike, Inc. v. Kasky, 539 U.S. 654,
679–80 (2003) (Breyer, J., dissenting from dismissal of cert. as improvidently granted) (discussing
the dangers of the “delegation of state authority” to “a purely ideological plaintiff”).
S.B. 8 also fails to “provide standards to govern” the amount of liability. United States v.
Ross, 948 F.3d 243, 247 (5th Cir. 2020), cert. denied, 141 S. Ct. 305 (2020). S.B. 8 purports to
make abortion providers and those who assist with prohibited abortions liable for seemingly
limitless penalties to individuals to whom they have no connection, have never owed a duty, and
have never caused any harm—making both the amount of the penalty and the person to whom it
would have to be paid completely unforeseeable and standardless. Cf. Grayned, 408 U.S. at 113–
14 (statute’s harm requirement, “demonstrated causality,” and requirement that acts be “‘willfully’
done” inform the due-process inquiry). This standardless penalty provision unconstitutionally
invites arbitrary and discriminatory enforcement in determining the amount of the penalty. See
Johnson v. United States, 576 U.S. 591, 597 (2015) (statute’s indeterminacy held to “invite[]
arbitrary enforcement by judges” when determining a defendant’s sentence); City of Chicago v.
Morales, 527 U.S. 41, 61 (1999) (plurality opinion) (loitering statute vague where it provides
absolute discretion to police officers to decide what loitering is); Giaccio v. Pennsylvania, 382
U.S. 399, 403 (1966) (statute void for vagueness where it did not “place any conditions of any
kind upon the jury’s power to impose costs”); Ross, 948 F.3d at 247 (arbitrariness test requires
standards for statutes fixing penalties).
3.

The enforcement provisions’ creation of aiding-and-abetting liability
impermissibly interferes with Plaintiffs’ First Amendment rights

S.B. 8’s imposition of liability for “conduct that aids or abets” a prohibited abortion, S.B. 8
§ 171.208(a)(2)-(3), violates Plaintiffs’ First Amendment rights. The Court should declare that
Plaintiffs’ protected speech and conduct cannot subject them to liability because (1) they fall

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within the scope of S.B. 8’s savings clause, S.B. 8 § 171.208(g), or (2) the broad imposition of
liability on those activities is unconstitutional.
a.

The aiding-and-abetting and provision is an improper content-based
and viewpoint-based speech restriction

“[A]bove all else,” the First Amendment forbids “restrict[ing] expression because of its
message, its ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S.
92, 95 (1972); see Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011). The Supreme Court has
emphasized that laws that force speakers to alter the content of their speech are inherently
dangerous and “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015).
S.B. 8’s aiding-and-abetting provision restricts or at least chills Plaintiffs’ speech. It
infringes on the counseling and spiritual guidance provided to abortion patients by Rev. Daniel
Kantor and Rev. Erika Forbes (collectively, the “Clergy Plaintiffs”). Both of these ordained
ministers provide counseling to pregnant individuals considering abortion as well as pastoral care
to those who have decided to have an abortion. Forbes Decl. ¶¶ 5, 12; Kanter Decl. ¶¶ 11, 18–19.
In addition, Rev. Kantor serves as an abortion clinic chaplain, providing both counseling and
spiritual guidance to abortion patients during their clinic visits. Kanter. Decl. ¶¶ 18–19. Similarly,
the aiding-and-abetting provision impinges on the speech of the other Advocate Plaintiffs, the
Provider Plaintiffs, and any number of other religious, spiritual, domestic violence, rape, and
genetics counselors who refer and provide information about abortion services and patient-support
services.6 Zamora Decl. ¶ 10; Jones Decl. ¶¶ 7, 11; Rupani Decl. ¶¶ 6–7, Williams Decl. ¶ 9;
6

The Advocate Plaintiffs are The Afiya Center, Frontera Fund, Fund Texas Choice, Jane’s
Due Process, Lilith Fund, TEA Fund, Marva Sadler, Rev. Daniel Kanter, and Rev. Erika Forbes.
The Provider Plaintiffs are Whole Woman’s Health; Alamo Women’s Reproductive Services;
Austin Women’s Health Center; Houston Women’s Clinic; Houston Women’s Reproductive

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Conner Decl. ¶¶ 8–9; Mariappuram Decl. ¶¶ 9–10; Linton Decl. ¶ 24; Lambrecht Decl. ¶ 25;
Barraza Decl. ¶ 22.
S.B. 8’s aiding-and-abetting provision targets this speech because of its content and
viewpoint. For example, the Clergy Plaintiffs may counsel worshippers about any topic other than
abortion, and they may counsel worshippers against having an abortion, but they may not provide
information or guidance that aids or abets the performance of a prohibited abortion. S.B. 8
§ 171.208(a)(2)–(3); cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (“In its practical
operation, . . . the ordinance goes even beyond mere content discrimination to actual viewpoint
discrimination.”).
Accordingly, the aiding-and-abetting provision is presumptively invalid as applied to
Plaintiffs’ speech and “may be justified only if the government proves” that the restriction is
“narrowly tailored” and necessary “to serve compelling state interests.” Reed, 576 U.S. at 163;
see also United States v. Alvarez, 567 U.S. 709, 715–17 (2012); R.A.V., 505 U.S. at 382 (“The
First Amendment generally prevents government from proscribing speech, or even expressive
conduct, because of disapproval of the ideas expressed.” (citations omitted)). The Act fails strict
scrutiny because the State lacks a compelling interest in suppressing speech that promotes abortion
access. Although Texas may have a valid interest in promoting potential life, that interest does
not extend to prohibiting Plaintiffs from facilitating access to constitutionally protected abortion
care. See Casey, 505 U.S. at 877. The Supreme Court has expressly held that “the means chosen
by the State to further the interest in potential life must be calculated to inform the woman’s free

Services; Planned Parenthood of Greater Texas Surgical Health Services; Planned Parenthood
South Texas Surgical Center; Planned Parenthood Center for Choice; Southwestern Women’s
Surgery Center; Whole Woman’s Health Alliance; Dr. Allison Gilbert; and Dr. Bhavik Kumar.

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choice, not hinder it.” Id. The imposition of civil liability on people who assist abortion patients
in accessing care falls on the wrong side of that divide.7
b.

The aiding-and-abetting provision violates the right to petition the
courts

The First Amendment guarantees the right “to petition the Government for a redress of
grievances.” U.S. Const. amend. I. This “right to petition is cut from the same cloth as the other
guarantees of that Amendment, and is an assurance of a particular freedom of expression” that
includes good-faith court litigation. McDonald v. Smith, 472 U.S. 479, 482 (1985); see also In re
Primus, 436 U.S. 412, 426, 432 (1978). Indeed, it is well-settled that public-interest litigation is a
form of protected First Amendment activity. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
548 (2001); In re Primus, 436 U.S. at 428; NAACP v. Button, 371 U.S. 415, 430 (1963); see also
McDonald, 472 U.S. at 484 (“[F]iling a complaint in court is a form of petitioning activity.”).
S.B. 8’s aiding-and-abetting provision implicates the legal assistance that Plaintiff Jane’s
Due Process provides to Texas minors who seek a judicial bypass of Texas’s parental-consent
requirement so they can access abortion. Mariappuram Decl. ¶ 6. Jane’s Due Process recruits and
trains qualified attorneys to represent minors pro bono in bypass cases and connects them to minors
who need counsel. Id. Jane’s Due Process risks being sued for aiding-and-abetting liability for
filing judicial bypass petitions, thus impinging on Jane’s Due Process’s right to access the courts
to vindicate the fundamental right to a pre-viability abortion for Texas minors. See id. ¶¶ 19–21;
7

Even if the aiding-and-abetting provision were treated as a regulation of conduct that only
incidentally burdens speech, it would still fail First Amendment scrutiny under United States v.
O’Brien, 391 U.S. 367, 377 (1968). See Doe I v. Landry, 909 F.3d 99, 108 (5th Cir. 2018). S.B. 8
is not within the constitutional power of the State to adopt, see Casey, 505 U.S. at 851–53, it does
not further any government interest that might be deemed important, and its broad imposition of
potential liability on those who aid and abet an abortion or intend to do so is far from narrowly
tailored because the State “has available to it a variety of approaches that appear capable of serving
its interests” short of effectively prohibiting speech and expressive conduct that facilitates abortion
access, McCullen v. Coakley, 573 U.S. 464, 494 (2014).
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Bellotti v. Baird, 443 U.S. 622, 643 (1979) (clarifying that minors have a fundamental right to previability abortion); Button, 371 U.S. at 442 (noting that the litigation at issue “employ[ed]
constitutionally privileged means of expression to secure constitutionally guaranteed civil rights”).
This burden is unjustified because Texas lacks a valid interest in excluding its residents from
avenues for legal advocacy intended to ensure safe abortion access, particularly for minors subject
to parental-consent requirements. See Bellotti, 443 U.S. at 643 (“If the State decides to require a
pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an
alternative procedure whereby authorization for the abortion can be obtained.”).
c.

The aiding-and-abetting provision implicates Plaintiffs’ protected
advocacy activities

S.B. 8’s aiding-and-abetting provision similarly implicates Plaintiffs’ protected advocacy
activities. In Button, the Supreme Court held that certain Virginia laws regulating the conduct of
attorneys were unconstitutional as applied to the NAACP because the activities of that
organization, taken as a whole, constituted “modes of expression and association protected by the
First and Fourteenth Amendments.”

371 U.S. at 428–29.

The Court explained that First

Amendment protections do not extend only to “abstract discussion”; to the contrary, “the First
Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental
intrusion.” Id. at 429. Because the NAACP’s activities were in service of its core mission to
promote equality for African Americans, the Court held that they were collectively “a form of
political expression” subject to the highest level of First Amendment protection. Id. at 429–30
(“We need not, in order to find constitutional protection for the kind of cooperative, organizational
activity disclosed by this record . . . subsume such activity under a narrow, literal conception of
freedom of speech, petition or assembly. For there is no longer any doubt that the First and
Fourteenth Amendments protect certain forms of orderly group activity.”).

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Here, Plaintiffs Lilith Fund, TEA Fund, Frontera Fund, Fund Texas Choice, Jane’s Due
Process, and The Afiya Center are nonprofit organizations with missions to ensure that all Texas
residents have access to safe abortion care regardless of their financial means or other
sociodemographic characteristics (a mission also shared by other Plaintiffs). To serve this end,
they engage in public education, organizing, and lobbying activities. Zamora Decl. ¶ 10; Jones
Decl. ¶ 7; Rupani Decl. ¶ 9; Williams Decl. ¶ 9; Conner Decl. ¶ 9; Mariappuram Decl. ¶ 10. The
Provider Plaintiffs may likewise provide information about where and how to access abortion, as
well as financial and other resources. Williams Decl. ¶ 5; Conner Decl. ¶ 5; Linton Decl. ¶ 24;
Lambrecht Decl. ¶ 25; Barraza Decl. ¶ 22. The patients served typically face multiple, intersecting
barriers to accessing abortion care, including limited financial resources, systemic racism,
dependent children who require their care, and domestic abuse. Zamora Decl. ¶¶ 12–13; Jones
Decl. ¶¶ 7, 17–19; Rupani Decl. ¶¶ 12–13; Williams Decl. ¶ 7; Conner Decl. ¶¶ 5, 8; Mariappuram
Decl. ¶¶ 13–15. Because this speech and advocacy serve Plaintiffs’ core mission to ensure Texans’
access to safe abortion care regardless of their circumstances, Zamora Decl. ¶ 2; Jones Decl. ¶ 13;
Rupani Decl. ¶ 2; Williams Decl. ¶ 10; Conner Decl. ¶¶ 1, 10; Mariappuram Decl. ¶¶ 2, 11, they
constitute political expression subject to the highest level of First Amendment protection, see
Button, 371 U.S. at 429; see also Holder v. Humanitarian Law Project, 561 U.S. 1, 27–28 (2010)
(explaining that although the material-support statute “generally functions as a regulation of
conduct . . . the conduct triggering coverage under the statute consists of communicating a
message” and the Court [must] apply a more demanding standard than [intermediate scrutiny].”
(quotation marks omitted)). As explained above, the Act’s aiding-and-abetting provision cannot
survive strict scrutiny.

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d.

S.B. 8’s savings clause provides insufficient protection

Although S.B. 8 contains a provision stating that it “may not be construed to impose
liability on any speech or conduct protected by the First Amendment,” S.B. 8 § 171.208(g), “such
a provision cannot substantively operate to save an otherwise invalid statute, since it is a mere
restatement of well-settled constitutional restrictions on the construction of statutory enactments,”
CISPES (Comm. in Solidarity with the People of El Sal.) v. F.B.I., 770 F.2d 468, 474 (5th Cir.
1985); see also Battle v. City of Seattle, 89 F. Supp. 3d 1092, 1105 (W.D. Wash. 2015) (holding
that a First Amendment savings clause “contains an illusory mandate that does not generally (if
ever) displace [the defendant’s] undue discretion to deny permit applications for expressive
conduct”); United States v. Brock, 863 F. Supp. 851, 859 n.13 (E.D. Wis. 1994) (“Although [First
Amendment savings] clauses may be helpful in determining legislative intent, using them to decide
whether any particular activity is entitled to First Amendment protections would appear to be a
rather circular approach.”). Indeed, while this provision purports to carve out protected speech
and conduct, other provisions deprive Plaintiffs of any assurance that speech and conduct
recognized by courts as protected would fall outside the scope of aiding-and-abetting liability. See
S.B. 8 § 171.208(e)(3)–(5) (precluding reliance on any non-binding court decisions or on “nonmutual issue or non-mutual claim preclusion,” and permitting retroactive liability where a court
decision is subsequently overruled).
Absent a declaration from this Court, the only way for Plaintiffs to get a definitive ruling
on the scope of their potential liability under the Act would be to engage in speech or expressive
conduct that potentially constitutes aiding or abetting, then await institution of civil enforcement
proceedings. Yet it is well-established that a plaintiff need not “expose himself to liability before
bringing suit to challenge . . . the constitutionality of a law threatened to be enforced.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007). Plaintiffs are therefore entitled
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to a declaratory judgment that their activities discussed above do not fall within the scope of
S.B. 8’s aiding-and-abetting provision or, in the alternative, that the provision is an
unconstitutional violation of the First Amendment.
II.

THE COURT SHOULD GRANT SUMMARY JUDGMENT FOR PLAINTIFFS ON
THEIR CLAIMS RELATING TO SECTION 4 OF S.B. 8, THE FEE-SHIFTING
PROVISION FOR CHALLENGES TO TEXAS ABORTION RESTRICTIONS
Section 4 of S.B. 8 creates a standalone, one-way fee-shifting provision that is designed to

deter and penalize anyone who challenges any Texas abortion restriction in state or federal court.
S.B. 8 § 30.022. This deterrence scheme violates Plaintiffs’ First Amendment rights to freedom
of speech and to petition the courts, and it conflicts with and is preempted by federal law that
confers rights on Plaintiffs. Plaintiffs request declaratory and injunctive relief blocking Section 4.
A.

Section 4 Violates the First Amendment
1.

Section 4 violates the First Amendment right to petition the courts

As discussed supra at 38–39, the First Amendment guarantees the right to petition the
courts for redress of grievances. “Petitions to the government assume an added dimension when
they seek to advance political, social, or other ideas of interest to the community as a whole.”
Borough of Duryea v. Guarnieri, 564 U.S. 379, 395 (2011). Accordingly, a state may not restrict
the right to petition based on the content or viewpoint of a petitioner, see City of Cuyahoga Falls
v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196 (2003); S. Christian Leadership Conf. v. Sup.
Ct. of La., 252 F.3d 781, 792 (5th Cir. 2001), or to insulate an unconstitutional act from review,
Velazquez, 531 U.S. at 548.
For example, in Velazquez, the Supreme Court invalidated a law that restricted the types of
advice and argumentation available to attorneys who represented indigent clients under a
government-funded legal-services program. 531 U.S. at 548. The funding limitation prohibited
attorneys and their clients from raising challenges to existing welfare law. Id. at 538–39. The
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Court concluded that such legal services were “constitutionally protected expression,” id. at 548,
and it held that the government cannot impose “rules and conditions which in effect insulate its
own laws from legitimate judicial challenge,” id. (concluding that the Constitution “does not
permit the Government to confine litigants and their attorneys” by “exclud[ing] certain vital
theories and ideas” available to them); accord S. Christian Leadership Conf., 252 F.3d at 791; cf.
Button, 371 U.S. at 429, 434 (recognizing that public-interest litigation “is a means for achieving
. . . lawful objective[s]” that serves as “a form of political expression” and may not be curtailed to
“smother[] all discussion looking to the eventual institution of litigation on behalf of the rights of
members of an unpopular minority”).
Here, Section 4 of S.B. 8 is designed to insulate all Texas abortion restrictions from judicial
challenge by deterring even meritorious lawsuits. Under Section 4, if someone challenges a Texas
abortion restriction and does not prevail on any one of their claims, their opponent is deemed the
“prevailing” party entitled to have their attorney’s fees paid.

This means that successful

challengers could still be forced to pay fees even when they obtain full relief against an
unconstitutional restriction, simply because one claim was dismissed. That occurs frequently, such
as when claims become moot due to circumstance. Cf. Planned Parenthood Ctr. for Choice v.
Abbott, 141 S. Ct. 1261 (2021) (mem.) (vacating decisions regarding Covid-related abortion ban
after challenged executive order expired); Tex. Health & Hum. Servs. Comm’n v. Planned
Parenthood of Greater Tex. Fam. Planning & Preventative Health Servs., Inc., No. 03–12–00745–
CV, 2014 WL 1432566 (Tex. Ct. App. Apr. 9, 2014) (dismissing as moot a challenge to Planned
Parenthood affiliates’ exclusion from state Women’s Health Program once the program expired).
Abortion-rights litigation in Texas is hard fought, can involve thousands of hours in
attorney time, and often extends for years. See, e.g., Order on Mots. for Att’ys Fees, Whole

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Woman’s Health v. Hellerstedt, No. 1:14-cv-284-LY (W.D. Tex. Aug. 9, 2019), ECF No. 297
(granting Whole Woman’s Health nearly $2.3 million from the State in attorney’s fees in litigation
that spanned several years and included a Supreme Court decision). As a result, if Section 4 is not
blocked, Plaintiffs and their lawyers would “understandably hesitate” to engage even in goodfaith, well-founded litigation—precisely the improper but intended effect. Button, 371 U.S. at 434.
Section 4 would chill health clinics; individual doctors, staff, and patients; non-profit community
organizations; and pro bono law firms and local counsel in their efforts to effectively vindicate
constitutional rights. Barraza Decl. ¶¶ 24–25; Braid Decl. ¶ 21; Ferrigno Decl. ¶ 33; Gilbert Decl.
¶ 38; Hagstrom Miller Decl. ¶ 34; Klier Decl. ¶ 18; Lambrecht Decl. ¶¶ 29–31; Linton Decl. ¶¶
28–29; Rosenfeld Decl. ¶¶ 10–11; Sadler Decl. ¶ 18; see also United Transp. Union v. State Bar
of Mich., 401 U.S. 576, 585–86 (1971) (holding “that collective activity undertaken to obtain
meaningful access to the courts is a fundamental right within the protection of the First
Amendment” and this right “would be a hollow promise if courts could deny associations of
[people] the means of enabling their members to meet the costs of legal representation”).
Section 4 would also impermissibly chill civil-rights plaintiffs with respect to the
arguments that they make in abortion-rights cases. See Barraza Decl. ¶¶ 24–25; Braid Decl. ¶ 21;
Ferrigno Decl. ¶ 33; Gilbert Decl. ¶ 38; Hagstrom Miller Decl. ¶ 34; Klier Decl. ¶ 18; Lambrecht
Decl. ¶¶ 29–31; Linton Decl. ¶¶ 28–29; Rosenfeld Decl. ¶¶ 10–11; Sadler Decl. ¶ 18. For example,
because a failure to prevail on any one claim makes the defendant the “prevailing” party entitled
to fees, Section 4 would effectively guarantee that if claims are pleaded in the alternative, the civilrights plaintiff would be forced to pay their opponents’ fees. The Constitution does not permit the
State’s attempt to constrain non-frivolous legal theories and claims available to civil-rights
litigants. Velazquez, 531 U.S. at 548.

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2.

Section 4 violates the First Amendment right to freedom of speech

Section 4 also violates the First Amendment’s Free Speech Clause and is subject to strict
scrutiny because it is about as viewpoint- and “content-based as it gets.” Barr v. Am. Ass’n of Pol.
Consultants, Inc, 140 S. Ct. 2335, 2346 (2020); see also Reed, 576 U.S. at 164; Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995). S.B. 8 punishes litigants motivated
to block the enforcement of laws that “regulate[] or restrict[] abortion” or laws that provide funding
to entities who “perform or promote” abortion because of the content of their advocacy. S.B. 8
§ 30.022. In contrast, S.B. 8 does not impose a penalty on litigants whose goal is to uphold such
laws or to restrict access to abortion. Cf. Compl., Davenport v. City of Fort Worth, No. 4:20-cv00379 (N.D. Tex. Apr. 23, 2020), ECF No. 1 (seeking declaratory and injunctive relief against
abortion providers and the municipality to prevent abortion during the Covid-19 pandemic);
Scheideman v. City of Fort Worth, No. 017-316515-20 (Tarrant Cnty. Dist. Ct. filed Apr. 17, 2020)
(same). Ultimately, S.B. 8 seeks to suppress views that the Texas Legislature deems unpopular
and to prevent scrutiny of the state’s attempt to eviscerate abortion rights.
As discussed supra at 36–37, strict scrutiny applies, and Section 4 necessarily fails that
review. Texas has no valid interest in insulating its unconstitutional laws from judicial review.
Velazquez, 531 U.S. at 545. Nor does the State have a legitimate, much less compelling, interest
in punishing advocates with whom it disagrees. Moreno, 413 U.S. at 534. Additionally, the feeshifting provision’s broad sweep—purporting to apply in state and federal court, and forcing even
litigants who obtain their requested relief to pay their opponents’ fees—is antithetical to narrow
tailoring. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000) (where a “less
restrictive alternative would serve the Government’s purpose” in adopting a content-based
restriction on speech, “the legislature must use that alternative”).

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B.

As Applied to Federal Civil-Rights Claims, Section 4 Is Preempted by Federal
Law

Under the Supremacy Clause, when “state and federal law directly conflict, state law must
give way.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617–18 (2011) (citation and internal quotation
marks omitted). Such conflict occurs “when compliance with both state and federal law is
impossible, or when the state law ‘stands as an obstacle to the accomplishment and execution of
the full purposes and objective of Congress.’” United States v. Locke, 529 U.S. 89, 109 (2000);
Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330 (2011); see also United States v.
Zadeh, 820 F.3d 746, 751 (5th Cir. 2016).
In 42 U.S.C. § 1988, Congress carefully determined how attorney’s fees are to be allocated
in federal civil-rights actions, regardless of whether those claims are raised in state or federal court.
Section 1988 provides that in “any action” to enforce Section 1983 and other covered civil rights
statutes, the court “may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). As the Supreme Court has held, this
provision grants a right to a prevailing plaintiff to “ordinarily recover an attorney’s fee unless
special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424,
429 (1983); see also Lefemine v. Wideman, 568 U.S. 1, 5 (2012) (per curiam); Grisham v. City of
Fort Worth, 837 F.3d 564, 568 (5th Cir. 2016). But a prevailing defendant in a Section 1983 case
may recover attorney’s fees from the plaintiff “only if the district court finds that the plaintiff’s
action was frivolous, unreasonable, or without foundation.” Hughes v. Rowe, 449 U.S. 5, 14
(1980) (per curiam). In all other circumstances, a non-prevailing plaintiff has a right to bring their
civil-rights claims without fear of incurring the other side’s fees and costs.
Section 4 of S.B. 8 directly conflicts with, and must give way to, Section 1988. Section 4
allows a defendant who loses an abortion-related Section 1983 case and is permanently enjoined

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from enforcing a challenged statute to still recover fees from a civil-rights plaintiff. See S.B. 8
§ 30.022(b). That cannot be reconciled with Section 1988, which permits a defendant in a covered
civil-rights case to “recover reasonable attorney’s fees” only where the defendant truly prevails,
and where such fees are “incurred because of,” and “only because of, a frivolous claim” by the
civil-rights plaintiff. Fox v. Vice, 563 U.S. 826, 836 (2011). Section 4’s definition of “prevailing
party,” S.B. 8 § 30.022(b), also directly conflicts with federal law. Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 603–05 (2001) (“prevailing party” is a
“term of art” and requires at least some “alteration in the legal relationship of the parties”).
S.B. 8 Section 4 would also stand as a substantial obstacle to Congress’s goals in adopting
Section 1988. It would create massive disincentives for the vindication of constitutional rights and
allow even defendants found to have violated federal law to recover fees, contrary to Congress’s
objectives. Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 418
(1978). Section 4 would also vastly expand the circumstances under which defendants in civilrights cases may recover fees and costs, and it would do so “for a reason manifestly inconsistent
with the purposes” of Section 1988. Felder v. Casey, 487 U.S. 131, 141–42 (1988) (holding that
a state notice-of-claim requirement was preempted as applied to Section 1983 claims because it
aimed “to minimize governmental liability,” thus undermining Section 1983’s “uniquely federal
remedy”); see also Haywood v. Drown, 556 U.S. 729, 733–34 (2009) (holding that a state
correctional law was preempted where the state “strip[ped] its courts of jurisdiction” over Section
1983 damages claims and instead forced plaintiffs to sue the state directly in a court of claims
without access to “the same relief, or the same procedural protections,” as would otherwise apply
in a Section 1983 case).

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Other aspects of Section 4 likewise conflict with Section 1988’s fee regime. Section 1988
instructs that a request for attorney’s fees must be made in the “action or proceeding to enforce” a
federal civil rights statute, including Section 1983, and that the fees, where assessed, are allowed
only “as part of the costs.” 42 U.S.C. § 1988(b). A motion for fees and costs must be filed within
14 days of the judgment, or it is waived. Romaguera v. Gegenheimer, 162 F.3d 893, 895 (5th Cir.
1998), decision clarified on denial of reh’g, 169 F.3d 223 (5th Cir. 1999); United Indus., Inc. v.
Simon-Hartley, Ltd., 91 F.3d 762, 766 (5th Cir. 1996). In contrast, S.B. 8’s cause of action for
fees and costs may be brought in an entirely new proceeding before a different judge within three
years of any substantive claim resolution. S.B. 8 § 30.022(c). In that collateral lawsuit, it would
“not [be] a defense” that the party filing the lawsuit did not “seek recovery of costs or attorney’s
fees in the underlying action” giving rise to the fee liability, or that the court in the underlying
action held Section 4 “invalid, unconstitutional, or preempted by federal law, notwithstanding the
doctrines of issue or claim preclusion.” Id. § 30.022(d).
Courts considering other state laws that govern the imposition of attorney’s fees and costs
in favor of prevailing defendants have likewise held those laws preempted by Section 1988 or
analogous federal fee-shifting provisions. See, e.g., State v. Golden’s Concrete Co., 962 P.2d 919,
926 (Colo. 1998) (en banc) (involving the interplay between a Section 1983 claim and a state rule
that permitted a prevailing defendant to recoup fees in circumstances other than where the
plaintiff’s action was “frivolous, unreasonable or without foundation” (citation omitted));
Hubbard v. SoBreck, LLC, 554 F.3d 742, 746–47 (9th Cir. 2009) (holding that a mandatory award
of fees to prevailing defendants under the California Disabled Persons Act was inconsistent with,
and therefore preempted by, the fee-shifting standard applicable to the Americans with Disabilities
Act). The Court should do the same here.

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III.

THE COURT SHOULD AWARD DECLARATORY AND INJUNCTIVE RELIEF
Declaratory relief is appropriate against the class of judicial defendants. See Pulliam, 466

U.S. at 539–40; 42 U.S.C. § 1983. Plaintiffs’ injuries may be remedied by a declaratory judgment
that S.B. 8 is unconstitutional and invalid; that the judicial defendants must not accept or entertain
any enforcement action brought under Section 3 of S.B. 8; and, should Plaintiffs not prevail on
any claim in this case against the judicial defendant class, that the class has no claim against
Plaintiffs for costs and attorney’s fees under Section 4 of S.B. 8.
Both declaratory and injunctive relief are warranted against the class of clerk defendants,
Defendant Dickson and the State Official Defendants. A permanent injunction is appropriate
where a plaintiff has demonstrated “(1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent injunction.’”
Abraham v. Alpha Chi Omega, 708 F.3d 614, 627 (5th Cir. 2013) (quoting eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006)). Here, first, constitutional injuries alone suffice
to establish irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976). Second, the burdens to
Plaintiffs’ patients’ constitutional rights, along with the costs and burdens of defending against
S.B. 8 lawsuits, cannot be remedied through money damages. See S.B. 8 § 171.208(i); see also
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 785 n.21 (1978) (“In addition, the burden and
expense of litigating the issue . . . would unduly impinge on the exercise of the constitutional
right.”); Dombrowski v. Pfister, 380 U.S. 479, 490 (1965) (possibility of successfully defending in
state-court action does not “alter the impropriety of . . . invoking the statute in bad faith” to initiate
proceedings in the first place). Third, these injuries outweigh any interest the State might have in
enforcing an unconstitutional law. Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549,
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553 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020). And fourth, the public interest is served
by an injunction preventing constitutional deprivations. Jackson Women’s Health Org., 760 F.3d
at 458 n.9.
Accordingly, Plaintiffs request an injunction that (1) restrains the class of clerk defendants,
their officers, agents, servants, employees, attorneys, and any persons in active concert or
participation with them from participating in the enforcement of S.B. 8 in any way, including by
accepting for filing or taking any other action in the initiation of a lawsuit brought under S.B. 8;
(2) restrains Defendant Dickson, his agents, servants, employees, attorneys, and any persons in
active concert or participation with him from enforcing S.B. 8 in any way; and (3) restrains the
State Official Defendants, their officers, agents, servants, employees, attorneys, and any persons
in active concert or participation with them, from enforcing S.B. 8 in any way, including by
applying S.B. 8 as a basis for enforcement of other laws or regulations that are in their charge.
CONCLUSION
For the foregoing reasons, summary judgment should be entered for Plaintiffs. The Court
should award declaratory relief that S.B. 8 is unconstitutional and cannot lawfully be enforced,
and it should permanently enjoin the class of clerk defendants, Defendant Dickson, and the State
Official Defendants from seeking to enforce or participating in the enforcement of S.B. 8 directly
or indirectly and from seeking costs and attorney’s fees under Section 4 of S.B. 8 with respect to
any covered claim brought by Plaintiffs in this or other litigation.

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Dated: July 13, 2021
Respectfully submitted,
/s/ Christen Mason Hebert
Christen Mason Hebert
(Texas Bar No. 24099898)
Johns & Hebert PLLC
2028 East Ben White Blvd
Suite 240-1000
Austin, TX 78741
[phone]
[e-mail]

Julie Murray*
Richard Muniz*
Planned Parenthood Federation of America
1110 Vermont Ave., NW Ste. 300
Washington, DC 20005
[phone]
[e-mail]
[e-mail]
Attorneys for Planned Parenthood of
Greater Texas Surgical Health Services,
Planned Parenthood South Texas Surgical
Center, Planned Parenthood Center for
Choice, and Dr. Bhavik Kumar

Attorney for all Plaintiffs
Marc Hearron (Texas Bar No. 24050739)*
Center for Reproductive Rights
1634 Eye St., NW, Suite 600
Washington, DC 20006
[phone]
[e-mail]

Julia Kaye*
Brigitte Amiri*
Chelsea Tejada*
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]
[e-mail]

Molly Duane*
Kirby Tyrrell*
Melanie Fontes*
Center for Reproductive Rights
199 Water Street, 22nd Floor
New York, NY 10038
[phone]
[e-mail]
[e-mail]
[e-mail]

Lorie Chaiten*
American Civil Liberties Union Foundation
1640 North Sedgwick Street
Chicago, IL 60614
[phone]
[e-mail]

Jamie A. Levitt*
J. Alexander Lawrence*
Morrison & Foerster LLP
250 W. 55th Street
New York, NY 10019
[phone]
[e-mail]
[e-mail]
Attorneys for Whole Woman’s Health, Whole
Woman’s Health Alliance, Marva Sadler,
Southwestern Women’s Surgery Center, Allison
Gilbert, M.D., Brookside Women’s Medical
51

Adriana Pinon (Texas Bar No. 24089768)
David Donatti (Texas Bar No. 24097612)
Andre Segura (Texas Bar No. 24107112)
ACLU Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, TX 77007
Tel. [phone]
Fax: [phone]
[e-mail]

Case 1:21-cv-00616-RP Document 19 Filed 07/13/21 Page 64 of 65

Center PA d/b/a Brookside Women’s Health
Center and Austin Women’s Health Center,
Alamo City Surgery Center PLLC d/b/a Alamo
Women’s Reproductive Services, Houston
Women’s Reproductive Services, Reverend
Daniel Kanter, and Reverend Erika Forbes.
*Pro hac vice applications forthcoming

[e-mail]
[e-mail]
Attorneys for Houston Women’s Clinic
Stephanie Toti
LAWYERING PROJECT
41 Schermerhorn Street #1056
Brooklyn, NY 11201
[phone]
[e-mail]
Rupali Sharma*
LAWYERING PROJECT
197 Pine Street, Apt. 23
Portland, ME 04102
[phone]
[e-mail]
Attorneys for The Afiya Center, Frontera
Fund, Fund Texas Choice, Jane’s Due
Process, Lilith Fund for Reproductive
Equity, North Texas Equal Access Fund

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CERTIFICATE OF SERVICE
I certify that, on the 13th day of July, 2021, I electronically filed a copy of the above document
with the Clerk of the Court using the CM/ECF system, and personally served all Defendants.

_/s/ Christen Mason Hebert ___________
Christen Mason Hebert

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