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 G

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.

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CIVIL ACTION
CASE NO. _______________

DECLARATION OF AMY HAGSTROM MILLER IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AMY HAGSTROM MILLER hereby declares under penalty of perjury that the
following statements are true and correct:
1. I am the President and Chief Executive Officer (“CEO”) of Whole Woman’s Health
Alliance (“WWHA”), a plaintiff in this case.
2. WWHA is a nonprofit organization incorporated under Texas law. Its mission is to
provide abortion care in underserved communities and shift the stigma around abortion in our
culture.
3. WWHA currently operates an abortion clinic in Austin, Texas (the “Austin clinic”), as well
as abortion clinics in Indiana and Virginia. The Austin clinic opened in 2017 and is a licensed
abortion facility.
4. As President and CEO of WWHA, I oversee all aspects of the organization’s work.
5. I have been working in the abortion care field since 1989. Prior to my work at
WWHA, I founded a consortium of limited liability companies involved in the provision of
abortion care throughout the United States. These companies do business under the name

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“Whole Woman’s Health” (“WWH”). I continue to serve as President and CEO of WWH,
which opened its first abortion clinic in 2003.
6. I am thoroughly familiar with all aspects of abortion clinic operations and patient care.
7. I provide the following testimony based on my personal knowledge and review of
WWHA’s business records.
Provision of Abortion Care at the Austin Clinic
8. The Austin clinic provides procedural abortions up to 17.6 weeks of pregnancy as
measured from the first day of a patient’s last menstrual period (“LMP”). Under Texas law, licensed
abortion facilities are not permitted to provide procedural abortions beyond this gestational age.
See Tex. Health & Safety Code § 171.004.
9. The Austin clinic provides medication abortions up to 70 days LMP. Under Texas law,
medication abortions are prohibited after this gestational age.

See Tex. Health & Safety Code §

171.063(a)(2).
10. In a typical week, the Austin clinic provides abortions to approximately 60 patients. Only
around 10% of patients who seek care at the Austin clinic are under six weeks LMP.
11. Texas law requires abortion patients who reside within 100 miles of a licensed
abortion clinic to make two separate visits to the clinic to obtain care, at least 24 hours apart. See
Tex. Health & Safety Code § 171.012(a)(4), (b). During the first visit, we must provide the
patient with certain state-mandated information and perform an ultrasound examination. See id.
During the second visit, we provide abortion care. Most of our patients reside within 100 miles
of the Austin clinic.
12. The Austin Clinic originally opened as a WWH clinic in 2003. It was shuttered by House
Bill 2 of 2013 and was only able to reopen as a WWHA clinic in 2017 due to years of hard2

fought litigation, culminating in a victory at the U.S. Supreme Court in Whole Woman's Health
v. Hellerstedt. Less than two years after reopening, we were forced to close again because an
anti-abortion pregnancy crisis center, Austin LifeCare, bought out the lease for our existing
building. The Austin Clinic had to find a new location and relocate our operations, reopening
again in February 2019.
Senate Bill 8
13. I understand that Texas Senate Bill 8 (‘S.B. 8”) requires physicians to determine if a “fetal
heartbeat” is present before performing an abortion. See Tex. Health & Safety Code § 171.203(b).
If the physician detects a “fetal heartbeat” or fails to test for it, they are prohibited from performing
the abortion. See Tex. Health & Safety Code § 171.204(a).
14. Fetal or embryonic cardiac activity can be detected as early as six weeks LMP. By banning
abortions at or after six weeks LMP, S.B. 8 bans approximately 90% of the abortions we perform
at the Austin clinic.
15. I further understand that a private right of civil action can be brought by any person against
a) someone who performs an abortion in violation of S.B. 8; b) someone who aids or abets the
performance of an abortion in violation of S.B. 8; or c) someone who intends to engage in a) or b).
See Tex. Health & Safety Code § 171.208(a). If the person suing is a Texas resident, they can file
the case in a court in their home county. See Tex. Health & Safety Code § 171.210(a)(4).
16. I understand that if that individual wins their lawsuit under S.B. 8, they will be granted
“injunctive relief sufficient to prevent the defendant” from violating S.B. 8; a monetary award of
at least $10,000 per abortion; and costs and attorney’s fees. See Tex. Health & Safety Code §
171.208(b).

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Impact of S.B. 8
17. It is very difficult for patients to obtain an abortion before six weeks LMP. Patients are
already four weeks LMP when they miss their period, which is generally the first indication that
the patient might be pregnant. Many patients do not confirm pregnancy until many weeks later,
particularly if they have irregular periods. Under Texas law, our patients must come to the clinic
for a mandatory ultrasound, wait 24 hours if they live less than 100 miles from the nearest abortion
provider, and then come back to have an abortion from the same physician. See Tex. Health &
Safety Code § 171.012(a)(4). Our patients have to rearrange their work or school schedules,
arrange for childcare, and raise the money necessary to have an abortion, as insurance generally
does not cover abortion in Texas. It is extremely challenging for our patients to do all of this in a
matter of days or weeks.
18. I further understand that under S.B. 8, any person can sue both our physicians for
performing an abortion, as well as any person who “aids or abets” in the performance of an
abortion, which could potentially include the Austin Clinic and our staff.
19. I have no doubt that WWHA, our physicians, and possibly our staff will be targeted by
individuals opposed to abortion who will file lawsuits under S.B. 8, including the protesters who
frequently picket the Austin Clinic. Indeed, the threat of lawsuits has already begun.
20. In late May, an individual sneaked into the Austin Clinic by following a patient through
the front door to evade our security. Once inside, the individual distributed a letter about S.B. 8
to our Austin Clinic staff and those present in the reception area. This letter is attached as Exhibit
1 to my declaration. The individual was asked to leave, but once outside, the individual was joined
by another person and both individuals continued to distribute the letter to staff outside, still on
the clinic’s private property. This letter informs staff that they can be sued for providing or
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facilitating abortions after the detection of a “fetal heartbeat” and encourages them to report their
colleagues to the letter’s authors—“K+W Partnership.” The letter gives a phone number and email
address for individuals to use to report violations of S.B. 8 and states: “please call or send us a text
at any time.” If anti-abortion individuals would go to this length to encourage lawsuits several
months before S.B. 8 is scheduled to take effect, I have no doubt that they will bring suits against
us in September.
21. Even if there is no basis for these suits, our physicians and staff will be forced to travel to
the claimant’s home county, hire a lawyer, and spend months, if not years, defending themselves.
If the claimant is successful, our physicians and staff will be banned from providing abortions
prohibited by S.B. 8 and subject to very serious financial penalties. I also understand that they
may be subject to disciplinary action by the Texas Medical and Nursing Boards.
22. This will be extremely burdensome to our physicians and staff—emotionally, logistically,
and financially—and it will also have very serious impacts on the Austin Clinic. Our physicians
and staff will have to choose between subjecting themselves to these lawsuits or turning away the
majority of our patients, putting us in an impossible situation.
23. S.B. 8 is designed to shut us down and stop us from providing needed care to Texans.
Indeed, afraid for job security given the impending effective date of S.B. 8, some staff at the Austin
Clinic have started looking for other work, and some have already quit. If S.B. 8 is not blocked
from taking effect, the Austin Clinic will inevitably close.
24. Our patients will suffer if they cannot obtain abortion care in Texas after six weeks LMP.
S.B. 8 will also exacerbate the shame, stigma, and confusion surrounding abortion access in Texas,
as patients are already regularly calling us to ask if abortion is still legal in the state.

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25. Many of the patients who seek care at the Austin clinic have low incomes, and many are
parents of dependent children. The majority are uninsured.
26. Our patients seek abortion care for a variety of reasons. Many do not have the resources
to add an additional child to their family. Some are students who want to complete their education
before having children. Some do not want to be tied financially or emotionally to the putative
father, or fear abuse if their pregnancy is discovered.
27. Many of our patients will not be able to travel out of state to obtain an abortion due to their
work, school, family, or childcare responsibilities and the high costs.
28. Some of our patients may be able to travel out of state but they will be delayed in obtaining
care.
29. Being forced to delay a wanted abortion is nerve-wracking. Patients who are delayed from
accessing abortion must continue to cope with the physical symptoms of pregnancy, which for
many include debilitating nausea and vomiting. The longer a patient remains pregnant, the more
likely it is that others will discover the pregnancy, including abusive partners or family members.
The cost of abortion care (as well as the medical risks of pregnancy and abortion) increase
significantly with gestational age.
30. Patients who are delayed from accessing abortion must also cope with the fear of not being
able to obtain abortion care in time—and of the life-altering consequences of having to carry an
unwanted pregnancy to term and go through childbirth against their will.
31. Inevitably, if S.B. 8 is not blocked, many Texans will be forced to carry pregnancies to
term against their will.

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S.B. 8’s Fee Shifting Provision
32.

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

costs and attorney’s fees in cases challenging Texas laws that restrict abortion.
33.

WWHA has been involved in several cases challenging abortion restrictions in

Texas, including: Whole Woman’s Health Alliance v. Paxton, No. 1:18-CV-00500 (W.D. Tex.)
(various laws regulating abortion); and In re Abbot, 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.) (COVID abortion ban).
34.

Litigation is critical to our mission to provision abortion access to patients in Texas

and reduce the shame and stigma associated with abortion. I am concerned that the fee-shifting
provision of S.B. 8 is intended to intimidate us and discourage us from using litigation to vindicate
the constitutional rights of our patients and keep the doors of our clinic open.

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Exhibit 1