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)

Exhibit B

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

Civil Action No. __________

AUSTIN REEVE JACKSON, et al.,
Defendants.
DECLARATION OF BHAVIK KUMAR, M.D., M.P.H., IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I, Bhavik Kumar, declare as follows:
1.

I am a board-certified family medicine physician, licensed to practice in the State

of Texas. I obtained my medical degree from Texas Tech University in 2010, completed my
residency in family and social medicine in 2013, obtained my master’s degree in public health in
2015, and completed a fellowship in family planning in 2015.
2.

I am the Medical Director for Primary and Trans Care at Planned Parenthood Gulf

Coast (“PPGC”). I am also a staff physician at Planned Parenthood Center for Choice (“PPCFC”),
where I provide abortions.
3.

Before coming to PPGC and PPCFC, I was the Texas medical director of Whole

Woman’s Health, another provider of abortion in Texas.
4.

I currently provide abortion services through 21 weeks and 6 days of pregnancy as

measured from the first day of the patient’s last menstural period (“LMP”) at PPCFC’s Houston
ambulatory surgical center. In addition, I train other physicians in the provision of abortion
services.

5.

I submit this declaration in support of Plaintiffs’ Motion for Summary Judgment. I

understand that Texas Senate Bill 8 (“S.B. 8” or the “Act”) would ban the provision of abortion in
Texas after embryonic cardiac activity can be detected, which occurs at approximately 6 weeks
LMP. 1
6.

The information in this declaration is based on my education, training, practical

experience, information, and personal knowledge I have obtained as a physician and an abortion
provider; my attendance at professional conferences; review of relevant medical literature; and
conversations with other medical professionals. If called and sworn as a witness, I could and would
testify competently thereto.
Abortion in Texas
7.

Legal abortion is one of the safest procedures in contemporary medical practice. 2

Abortion is also very common: approximately one in four women in this country will have an
abortion by age 45. 3
8.

Medication abortion involves the use of mifepristone and misoprostol, two

medications taken to safely and effectively end an early pregnancy in a process similar to a
miscarriage. Procedural abortion involves the use of suction and/or the insertion of instruments
through the vagina and cervix to empty the contents of a patient’s uterus. Although sometimes
known as “surgical abortion,” abortion by procedure does not involve surgery in the traditional

1

S.B. 8’s only exception is for a “medical emergency,” which is defined in Texas law as
“a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that,
as certified by a physician, places the woman in danger of death or a serious risk of substantial
impairment of a major bodily function unless an abortion is performed.” Tex. Health & Safety
Code § 171.002(3).
2
Nat’l Acads. of Scis., Eng’g, & Med. (“Nat’l Acads.”), The Safety & Quality of Abortion
Care in the United States 77–78, 162–63 & tbl. 5-1 (2018).
3
Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime
Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904, 1907 (2017).
2

sense: it does not require an incision into the patient’s skin or a sterile field. PPCFC offers
medication abortions and procedural abortions.
9.

As I noted above, cardiac activity generally can be detected starting at

approximately 6 weeks LMP with ultrasound, but it may be detected as early as 5 weeks. Because
of the ultrasound technology, it is generally not possible to locate a pregnancy in the uterus using
ultrasound until sometime between 4 and 5 weeks LMP; before that time, the gestational sac is
simply too small for the ultrasound to detect.
10.

In my roles, I know how important abortion access is to our patients. Patients’ lives

are complicated, and their decisions to have an abortion often involve multiple considerations. The
majority of PPCFC’s patients (and abortion patients nationwide 4) already have one or more
children. Our patients with children understand the obligations of parenting and decide to have an
abortion based on what is best for them and their existing families, which may already struggle to
make ends meet. Other patients decide that they are not ready to become parents because they are
too young or want to finish school before starting a family. Some patients have health
complications during pregnancy that lead them to conclude that abortion is the right choice for
them. In some cases, patients are struggling with substance abuse and decide not to become parents
or have additional children during that time in their lives. Others have an abusive partner or a
partner with whom they do not wish to have children for other reasons. In all of these cases, our
patients seeking abortion have decided that abortion is the best option for themselves and their
families.

4

See id. at 1906 (in 2014, 59.3% of all abortions in the United States were performed for
patients who already had at least one child).
3

11.

Regardless of the reasons that bring a patient to us, PPCFC is committed to

providing high-quality, compassionate abortion services that honor each patient’s dignity and
autonomy. PPCFC trusts its patients to make the best decisions for themselves and their families,
taking into account the full complexity of their lives, something that only they can fully grasp.
12.

Most patients obtain an abortion as soon as they are able, and the vast majority of

abortions in the United States and in Texas take place in the first trimester of pregnancy. According
to data from the Texas Health and Human Services Commission from 2020, approximately 84%
of all abortions performed in Texas for Texas residents occurred at 10 weeks LMP (8 weeks postfertilization) or less, and approximately 95% occurred before 15 weeks LMP (13 weeks postfertilization). 5 However, most patients are at least 6 weeks LMP into their pregnancy by the time
they make an abortion appointment.
13.

Even after patients learn that they are pregnant and decide they want an abortion,

arranging an appointment for an abortion may take some time. For patients living in poverty or
without insurance, travel-related and financial barriers also help explain why the vast majority of
our patients do not—and realistically could not—obtain abortions before 6 weeks LMP, even
assuming they learn they are pregnant before that time. Texas has the twelfth highest rate of
poverty among women: nearly 15% of women in Texas live in poverty, exceeding the national
average of 12%, 6 and that rate rises to more than 19% among Black women and 20% among Latina

5

Tex. Health & Hum. Servs. Comm’n, 2020 ITOP Statistics (March 15, 2021), available
at https://www.hhs.texas.gov/about-hhs/records-statistics/data-statistics/itop-statistics.
6
Nat’l Women’s L. Ctr., Poverty Rates by State, 2018 (2019), available at
https://nwlc.org/wp-content/uploads/2019/10/Poverty-Rates-State-by-State-2018.pdf.
4

women in Texas. 7 Approximately 37% of female-headed households in Texas live in poverty, and
Texas has the twelfth highest rate of children living in poverty, at more than 21%. 8
14.

Some patients are delayed because they may need time to consider their options

and/or consult their partner, family, friends, clergy, and others in deciding to have an abortion.
15.

The lack of comprehensive insurance coverage also poses a barrier to patients’

ability to confirm they are pregnant and obtain abortion coverage when they need it. Notably,
Texas is one of just 12 states that have not expanded Medicaid under the Affordable Care Act, 9
and the rate of uninsured Texas women of reproductive age (24.7%) is far worse than the national
average (11.9%). 10 Unsurprisingly, more than 23% of women in Texas reported not receiving
health care in the prior 12 months due to cost.11 Even those patients who do have health insurance
rarely have access to abortion coverage. With very narrow exceptions, Texas bars coverage of
abortion in its Medicaid program, 1 Tex. Admin. Code § 354.1167, and it prohibits coverage of
abortion in private insurance plans offered on the state’s Affordable Care Act exchange, Tex. Ins.
Code § 1696.002, 12 an important source of health insurance for individuals who do not have access
to employer-sponsored health coverage, and in other private insurance plans, id. §§ 1218.001 et
seq. In any event, I understand that S.B. 8 prohibits “reimbursing the costs of an abortion through
insurance.” S.B. 8, § 3 (adding Tex. Health & Safety Code § 171.208(a)(2)).

7

Id.
Id.
9
Kaiser Fam. Found., Status of State Medicaid Expansion Decisions: Interactive Map,
https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisionsinteractive-map/ (updated July 9, 2021).
10
Nat’l Women’s L. Ctr., Texas, https://nwlc.org/state/texas/ (last accessed July 7, 2021).
11
Id.
12
Guttmacher
Inst.,
Regulating
Insurance
Coverage
of
Abortion,
https://www.guttmacher.org/state-policy/explore/regulating-insurance-coverage-abortion
(updated July 1, 2021).
8

5

16.

Texas’s lack of investment in health care is reflected in access indicators. In 2020

Texas ranked 50th in the United States for women’s access to clinical care and 49th for the quality
of women’s clinical care, 46th for cervical cancer screening, and 40th for well-woman visits. 13
17.

Patients living in poverty and without insurance must often make difficult tradeoffs

of other basic needs to pay for their abortions, even with assistance from PPCFC to those patients
in need. Many patients must seek financial assistance from extended family and friends to pay for
care, as well, which is a process that takes time. Many patients must navigate other logistics, such
as inflexible or unpredictable job hours and child care needs that may delay the time when they
are able to obtain an abortion.
18.

In addition to the medical and practical impediments I have just described to

patients’ obtaining an abortion before 6 weeks of pregnancy, Texas has also enacted numerous
medically unnecessary statutory and regulatory requirements that must be met before a patient may
obtain an abortion. Texas generally requires patients to make two visits to a health center to obtain
an ultrasound and certain state-mandated information designed to discourage them from having an
abortion at least 24 hours in advance of an abortion. Tex. Health & Safety Code § 171.012.
Practically speaking, the effect of this 24-hour delay law lasts far longer than one day, which may
push even patients who have discovered they are pregnant, decided to have an abortion, and
scheduled an appointment prior to 6 weeks LMP past that point by the time they actually arrive at
the health center for their abortion appointment.

13

Am.’s Health Rankings, Texas: 2020 Health of Women and Children, at 4 (2020),
https://www.americashealthrankings.org/api/v1/render/pdf/%2Fcharts%2Fstate-pageextended%2Freport%2F2020-health-of-women-and-children%2Fstate%2FTX/as/AHR-2020health-of-women-and-children-TX-full.pdf?params=mode%3Dfull.
6

19.

The near impossibility of obtaining an abortion within the time permitted by the

Act is all the more clear for our minor patients. Minor patients without a history of pregnancy may
be less likely to recognize early symptoms of pregnancy than older patients who have been
pregnant before. In addition, some of these patients cannot obtain written parental authorization
for an abortion as required by state law and must obtain a court order permitting them to receive
care. Tex. Fam. Code §§ 33.001–33.014. A court may take up to five business days to rule on a
patient’s petition to bypass the state’s parental-consent law for abortions, id. § 33.003, not
including any time that may be necessary for a minor patient to appeal an unfavorable decision.
That process cannot realistically happen before a patient’s pregnancy reaches 6 weeks LMP.
20.

Texas law also prohibits the use of telemedicine for the provision of medication

abortion, Tex. Health & Safety Code § 171.063, closing off a safe and effective option that would
enable some patients to obtain an abortion earlier in pregnancy.
21.

Patients whose pregnancies are the result of sexual assault or who are experiencing

interpersonal violence may need additional time to access abortion services due to ongoing
physical or emotional trauma. For these patients, too, obtaining an abortion before 6 weeks LMP
is exceedingly difficult, if not impossible.
22.

For all these reasons, the vast majority of PPCFC’s abortion patients in Texas do

not and could not obtain an abortion until after 6 weeks LMP.
The Impact of S.B. 8’s Abortion Ban
23.

I understand that S.B. 8 would require me to attempt to detect cardiac activity in a

pregnancy before performing an abortion, and it would ban the abortion if cardiac activity is
detected. S.B. 8 bans previability abortion because no embryo is viable at 6 weeks LMP, or at any
other point when cardiac activity can first be detected by ultrasound.

7

24.

By banning previability abortion, S.B. 8 seriously harms my patients by depriving

them of access to safe and legal abortions. If Texas abortion providers are forced to stop providing
abortions after approximately 6 weeks LMP, some patients will not be able to access abortion at
all because travel to another state is simply not possible for them. Even those patients who are able
to travel may have to go hundreds of miles to find an abortion provider. The need to travel such
long distances can significantly delay patients in accessing care, as they need to raise additional
funds for travel and arrange for child care and time off work. Delay also increases the costs
associated with the procedure itself, as it becomes more expensive later in pregnancy. Patients can
find themselves in a vicious cycle of delaying while gathering the necessary funds, but then finding
the procedure has gotten more expensive and needing to further delay. Some patients may be so
delayed that they are pushed too far into pregnancy and are no longer able to have an abortion.
25.

Delays in accessing abortion, or being unable to access abortion at all, also pose

risks to patients’ health. While abortion is a very safe procedure throughout pregnancy, the risks
of abortion increase with gestational age. 14 If an individual is forced to carry a pregnancy to term
against their will, it can pose a risk to their physical health, as childbirth poses far more risks than
abortion, 15 as well as their mental and emotional health and the stability and wellbeing of their
family, including existing children. Some patients who are unable to access legal abortion may
turn to methods that may potentially be unsafe.
26.

These burdens will particularly harm patients who are poor or have low incomes,

rural patients living in counties without adequate prenatal care and obstetrical providers, and Black
patients. Texas has higher rates of people living on low incomes than the United States as a

14
15

Nat’l Acads., supra note 2, at 77–78, 162–63 & tbl. 5-1.
Id. at 75 tbl. 2-4.
8

whole. 16 And nationwide, three out of four abortion patients are poor or live on low incomes (up
to 200% of the federal poverty level). 17 A majority of Texans who had an abortion in 2019
identified as Black or Latina/Hispanic 18—communities that already face inequities in access to
medical care. Black and Latinx populations with low incomes seek abortions at a higher rate than
wealthier and white populations (both in Texas and nationally) due to inadequate access to
contraceptive care, income inequity, and other facets of structural racism. These patients are the
hardest hit by the expenses and logistical difficulties of travel, including being forced to miss work
and/or child-care obligations. These patients already struggle to reach us for the care they need,
and they face even more severe barriers to accessing care elsewhere.
27.

Although patients who obtain abortions demonstrate a strong level of certainty with

respect to the decision, some patients take longer to make a decision than others. Even if there
were some way in theory for patients to have an abortion in compliance with the Act and in light
of all the other legal and logistical barriers, the Act would force patients to race to a health center
for an abortion, even if they did not yet feel confident in their decision.
28.

The Act will also add to the anguish of patients and their families who receive fetal

diagnoses later in pregnancy. There is no prenatal testing for fetal anomalies available at 6 weeks

16

In 2019, 32.6% of Texans were living under 200% of the federal poverty level, compared
to 28.9% nationwide. That same year, 13.6% of Texans were living in poverty (compared to 10.5%
nationwide). Kaiser Fam. Found., Distribution of the Total Population by Federal Poverty Level
(Above and Below 200% FPL), https://www.kff.org/other/state-indicator/population-up-to-200fpl/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22a
sc%22%7D (last accessed July 12, 2021); U.S. Census Bur., QuickFacts: Texas (2019),
https://www.census.gov/quickfacts/fact/table/TX/RHI125219; U.S. Census Bur., QuickFacts:
United States, https://www.census.gov/quickfacts/fact/table/US/PST045219 (2019).
17
Jones & Jerman, supra note 3, at 1906.
18
Tex. Health & Hum. Servs., 2019 Induced Terminations of Pregnancy for Texas
Residents 2 (Dec. 23, 2020), https://www.hhs.texas.gov/sites/default/files/documents/abouthhs/records-statistics/research-statistics/itop/2019/2019-itop-narrative-texas-residents.pdf.
9

LMP or earlier. Indeed, some anomalies cannot be identified until closer to 18 to 20 weeks LMP.
Often these pregnancies are very much wanted throughout the first trimester of pregnancy and into
the second. S.B. 8 would deny patients in these circumstances the ability to access an abortion in
Texas.
29.

Given the narrow definition of “medical emergency,” see Tex. Health & Safety

Code § 171.002(3), patients with medical conditions that do not fall within that definition under
S.B. 8 will be forced to travel out of state or wait and see if their health deteriorates to the point
that the pregnancy places them “in danger of death or a serious risk of substantial impairment of a
major bodily function” in order to obtain an abortion in Texas. Id.
30.

S.B. 8 will also have a devastating impact on survivors of sexual assault, rape, or

incest. While S.B. 8 prevents the perpetrators of these crimes from suing, it does not authorize an
abortion, forcing the patients to carry the pregnancy to term or arrange the complex logistics of
traveling out of state for their care.
31.

These fears are not theoretical. After the Texas governor temporarily banned

abortion during the COVID-19 pandemic, see Executive Order No. GA-09, PPCFC and other
providers sued. After we obtained a temporary restraining order from this Court, we began offering
services again to patients, but that victory was short lived. The Fifth Circuit stayed the order, which
meant that patients we had already counseled, and who had already obtained an ultrasound and
waited for 24 hours, had to be suddenly turned away. PPCFC’s ambulatory surgical center was
forced to cancel appointments for abortion services for 170 people. By the time the executive order
expired, some of those patients were beyond the gestational age limit to have an abortion in Texas.
Others could not use referrals to out-of-state providers because they knew they could not make
such a lengthy trip.

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32.

Turning patients away was traumatic for me and other PPCFC staff. Serving

patients, particularly those from marginalized communities who have historically been denied
access to quality health care, is my passion. I and other staff choose to work at PPCFC because we
support Planned Parenthood’s mission to ensure all individuals have the right and ability to manage
their health by providing them with comprehensive reproductive health services and advocating
for them.
33.

For these reasons, I believe S.B. 8 will deprive PPCFC’s patients of access to

critical health care and will threaten their health, safety, and lives.
34.

I also worry about the impact that S.B. 8 will have on me as a physician and on my

colleagues, including PPCFC’s nurses and other staff, without whom I could not provide abortion
services to our patients. As in other areas of medicine, these professionals provide several essential
aspects of the health care services we provide. We already face harassment because of our jobs.
Texas has now set vigilantes loose to come after us in court, all for providing critical health care
to patients who seek and expressly consent to it. I also understand that in addition to this statesponsored harassment, S.B. 8 would still subject me to the possibility of an investigation and
disciplinary proceedings by the Texas Medical Board over S.B. 8 lawsuits against me. It is simply
inconceivable that Texas would treat any other medical professionals this way, and S.B. 8’s impact
is an insult to me and my committed colleagues as we work tirelessly to serve Texans in need of
health care.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct.
Executed on July ______, 2021, in ________________________, Texas.
_______________________________
Bhavik Kumar, M.D., M.P.H.
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