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 F

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 MELANEY A. LINTON IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I, Melaney A. Linton, declare as follows:
1.

I am over the age of 18. I make this declaration based on personal knowledge of

the matters stated herein and on information known or reasonably available to my organization. If
called to do so, I am competent to testify as to the matters contained herein.
2.

I am President and CEO of Planned Parenthood Gulf Coast, Inc. (“PPGC”). PPGC

is a Texas not-for-profit corporation headquartered in Houston. We operate six health centers in
the Houston Metropolitan area that provide a range of family planning services and other
preventative care, including physical exams, contraception and contraceptive counseling,
screening for breast cancer, screening and treatment for cervical cancer, screening and treatment
for sexually transmitted infections, pregnancy testing and counseling, and certain procedures,
including biopsies and colposcopies. In addition to those centers, PPGC has a facilities and
services agreement with a separate organization, Planned Parenthood Center for Choice, Inc.
(“PPCFC”), which provides abortion services at two health centers, and of which I am also the
President and CEO. PPCFC is also a Texas not-for-profit corporation that is headquartered in
Houston. It operates a licensed ambulatory surgical center (“ASC”) in Houston and a licensed

abortion facility in Stafford. PPCFC and its predecessor organizations have provided abortion in
Houston and southeast Texas since 1973.
3.

I am responsible for the management of these organizations and therefore am

familiar with our operations and finances, including the services we provide and the communities
we serve.
4.

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 of
pregnancy, as measured from the first day of a patient’s last menstrual period (“LMP”). Without
relief from the Court, we will be legally prohibited from providing abortions after approximately
6 weeks of pregnancy at our health centers on September 1, 2021, the Act’s effective date.
5.

The Act will make it virtually impossible to access abortion in Texas by banning

abortion at a point in pregnancy before many patients even realize they are pregnant. Patients who
can pull together the resources will be forced to travel out of state for medical care, and many
others who cannot do so will be forced to carry a pregnancy to term against their will or seek ways
to end their pregnancies on their own.
PPCFC and Its Services
6.

As noted above, PPCFC provides abortion, as well as miscarriage management and

contraception to patients. PPCFC’s Houston ASC offers medication abortion through 10 weeks
LMP and procedural abortion through 21 weeks 6 days LMP; the Stafford abortion facility offers
medication abortion through 10 weeks LMP.

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7.

PPCFC’s staff who are involved in the provision of abortions include physicians

and physician assistants licensed by the Texas Medical Board, nurses licensed by the Texas
Nursing Board, and pharmacists licensed by the Texas Pharmacy Board.
8.

While most patients obtain an abortion as soon as they are able, most patients are

at least 6 weeks LMP into their pregnancy by the time they come in for an abortion. In 2019,
approximately 92% of abortions that PPCFC provided were at 6 weeks LMP or later. This means
only 8% of 2019 PPCFC patients would have likely qualified for an abortion under the Act,
although for some, there may have been embryonic cardiac activity at the time of the abortion.
9.

The vast majority of patients who do not reach us until after 6 weeks likely do not

for a variety of reasons, including that they may not have learned they are pregnant until after 6
weeks. Given that fact, and the travel-related and financial barriers that many of our patients face,
we are certain that the vast majority could not obtain abortions before 6 weeks LMP.
Effects of S.B. 8’s Abortion Ban
10.

I understand that S.B. 8 exposes PPCFC and its doctors, nurses, and other staff

members to substantial liability for providing or assisting abortion prohibited by the law and
requires courts to enjoin violations.
11.

As a result, S.B. 8 will force us to shut down abortion services after embryonic

cardiac activity is detected—at approximately 6 weeks of pregnancy. PPCFC and its physicians
and staff simply cannot risk the civil liability, damages, and certain cost of litigation that S.B. 8
will impose.
12.

We understand that even if we risked liability, a court could order us to stop

providing abortions, even while we are defending against these lawsuits.

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13.

Given the strong anti-abortion sentiments held by some Texans and others outside

of Texas, I am certain lawsuits under S.B. 8 will be filed against us if we provide abortions in
violation of S.B. 8. Indeed, opponents of abortion rights have subjected us to harassment and false
complaints even when we have complied fully with our legal obligations. We nearly always have
protestors outside our health centers, monitoring who enters and exits the building. They have
made complaints to government officials based on completely unfounded allegations. By way of
example, a few years ago, a protestor called local law enforcement falsely alleging that we had
performed an abortion after the state’s legal gestational age limit, which currently is 21 weeks and
6 days LMP (but will be around 6 weeks LMP after S.B. 8 takes effect). Authorities then opened
a criminal homicide investigation, which included grand jury proceedings. Although the
investigation was ultimately completed with no findings of any wrongdoing (because, of course,
we did not do what the protestor alleged we did), we nevertheless had to divert time and resources
to comply with the baseless investigation.
14.

As another example, after a secretly recorded video alleging that we participated in

unlawful tissue donation practices appeared online, we were investigated by multiple federal, state,
and local government officials. No government entity has found us guilty of any crime and the
allegations have been widely discredited; in fact, a Houston grand jury cleared us, and instead,
indicted the filmmakers (though those charges were dismissed on procedural grounds).
Nevertheless, the resulting investigations were very distressing for staff and costly to the
organization. We thus expect complaints and lawsuits filed against us and the staff if we provide
abortions, including permitted abortions, after September 1.
15.

The costs of defending against what could be a flood of lawsuits in every county in

Texas would be impossible for us to absorb, even if we were to win each case.

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16.

If we are forced to shut down abortion services, PPCFC and our patients will be

seriously harmed. Indeed, even the prospect of S.B. 8 taking effect has already had an effect on
staff, who are understandably very concerned about the impact of S.B. 8 on them and their
livelihoods. No one should be forced to risk overwhelming costs of litigation and crushing
penalties to provide safe and common health care. No one should be subject to state-directed
harassment for caring for patients in need.
17.

Our staff already deal with relentless harassment from abortion opponents,

including as they come into work each day. We have had to endure protestors trespassing;
conducting drone surveillance; blocking roads, driveways, and entrances; yelling at staff and
patients; using illegal sound amplification; video recording staff, staff vehicles, and license plates,
as well as surreptitiously recording inside the health center; trying to follow staff home; and more.
And after the discredited video about our tissue donation practices was released, multiple staff
received death threats. As a result of these threats, and the increasing volume of threats and
harassment to abortion providers more broadly—and the increasing severity of threats (including
homicide)1—we have had to expend more resources ensuring our health centers and staff and
patients remain safe.
18.

Despite the harassment, our dedicated staff return to work because they are

committed to Planned Parenthood’s mission of providing comprehensive reproductive health care
services. They have devoted their lives and careers to serving and advocating for their patients.
S.B. 8 will prevent PPCFC and our staff from fulfilling our mission.
1

See Nat’l Abortion Fed., 2019 Violence and Disruption Statistics (July 30, 2020),
available
at
https://5aa1b2xfmfh2e2mk03kk8rsx-wpengine.netdna-ssl.com/wpcontent/uploads/NAF-2019-Violence-and-Disruption-Stats-Final.pdf; Julie Turkewitz & Jack
Healy, 3 Are Dead in Colorado Springs Shootout at Planned Parenthood Center, N.Y. Times
(Nov. 27, 2015), https://www.nytimes.com/2015/11/28/us/colorado-planned-parenthoodshooting.html.
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19.

Even staff who have no direct role in abortion services are worried about being

named in harassing lawsuits.
20.

S.B. 8 is already taking a negative toll on our ability to recruit new staff. PPCFC

has already had two prospective staff members decline job offers specifically because of fear of
S.B. 8.
21.

In addition to its devastating impact on PPCFC, S.B. 8 will seriously harm our

patients. The Act will deprive them of access to safe and legal abortion, forcing those who can to
travel hundreds of miles out of state, which will delay their care and increase costs. Many others
will be prevented from accessing abortion altogether, because the travel and costs are simply too
great.
22.

These effects will fall most heavily on patients who already face barriers to

accessing health care, including our patients with low incomes.
23.

We know that these patients will face very high barriers to accessing care

elsewhere. In fact, after the Texas governor banned abortion by executive order during the early
days of the pandemic, we know some of our patients were not able to get an abortion and were
forced to carry their pregnancies to term and give birth. Some were able to go out of state to get
care, as far away as Colorado and Georgia. Executive Order No. GA-09; In re Abbott, 954 F.3d
772 (5th Cir. 2020), cert. granted, judgment vacated as moot by Planned Parenthood Ctr. for
Choice v. Abbott, 141 S. Ct. 1261 (2021) (mem.).
24.

Scrambling to get our patients care still haunts me and our staff. We had to cancel

and reschedule and cancel appointments again due to the various court orders, and telling patients
that they could not obtain an abortion was very difficult for the staff. And while our staff worked
tirelessly to try to help patients access care elsewhere, they were crushed when so many of our

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patients reported that, even with financial and logistical support, there was simply no way they
would be able to travel out of the state. We had several staff who heard from patients that if they
could not be seen by us, they would self-induce using pills from flea markets or household
chemicals, like bleach. Hearing this was extremely distressing for the staff.
25.

I believe S.B. 8 will deprive PPCFC’s patients of access to critical health care and

will threaten their health, safety, and lives.
The Impact of S.B. 8’s Fee-Shifting Provisions
26.

I understand that S.B. 8 also makes parties and their attorneys liable to pay

defendants’ costs and attorney’s fees in cases challenging Texas laws that restrict or regulate
abortion, or that provide public funding to entities that perform abortion or promote abortion
access.
27.

PPCFC is regularly forced to bring court challenges to restrictions on abortion or

laws targeting abortion providers in Texas. Litigation is critical to fulfilling our mission to protect
and expand access to comprehensive reproductive and sexual health care, including abortion, in
Texas.
28.

S.B. 8’s fee-shifting provision will make it extremely difficult for us to continue to

protect our patients’ constitutional rights because nearly every case carries the significant risk that
we and our attorneys could be held liable for attorney’s fees and costs, which in turn will make it
more difficult for us to retain legal counsel when we need it.
29.

I am also concerned that S.B. 8 will force us and our attorneys to weigh the

possibility of huge legal bills against the claims we might bring. We will be forced to risk those
penalties to defend our rights and those of our patients, even though government officials and other

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individuals trying to restrict abortion—or ban it outright—would face no similar consequence
under S.B. 8.
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.

________________________________
Melaney A. Linton

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