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 H

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 ALAN BRAID, M.D., IN SUPPORT OF
PLAINTIFFS’ MOTION SUMMARY JUDGMENT
ALAN BRAID, M.D., declares under penalty of perjury that the following statements are
true and correct:
1.

I am a board-certified obstetrician/gynecologist licensed to practice in Texas. I am

the part owner of Alamo City Surgery Center PLLC d/b/a Alamo Women’s Reproductive
Services (“Alamo”) in San Antonio and Houston Women’s Reproductive Services (“HWRS”) in
Houston. I also provide abortion services at Alamo.
2.

I graduated from the University of Texas Health Science Center at San Antonio

with an M.D. in 1972. I completed my internship in obstetrics and gynecology in 1973 at Bexar
County Hospital District and my residency in obstetrics and gynecology in 1976. I have
extensive experience and training in those fields and have provided reproductive health care,
including abortions and obstetrical care, in San Antonio as a private practitioner since 1978.
3.

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

4.

The facts I state here are based on my experience, my review of Alamo’s and

HWRS’s business records, information obtained in the course of my duties at Alamo and HWRS,

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and personal knowledge that I have acquired through my work at and management of Alamo and
HWRS.
Alamo Women’s Reproductive Services and Houston Women’s Reproductive Services
5.

Alamo operates a licensed ambulatory surgical center in San Antonio, Texas,

open since June of 2015. Alamo provides medication abortion through 10 weeks of pregnancy as
measured from the first day of the patient’s last menstrual period (“LMP”). Alamo provides
procedural abortion services through 21.6 weeks LMP. In rare instances in which a procedure
comes under permitted exceptions in Texas’s gestational limit, Alamo provides abortion services
through 23.6 weeks LMP.
6.

HWRS operates a licensed abortion facility in Houston, Texas. HWRS started

seeing patients in May of 2019. HWRS provides medication abortion services through 10 weeks
of pregnancy LMP.
Senate Bill 8
7.

I understand that Senate Bill 8 (“S.B. 8”) prohibits me or any other physician in

Texas from providing an abortion if there is a “fetal heartbeat” detected or we do not test for a
“fetal heartbeat.” The term “fetal heartbeat” is not medically accurate. In a typically developing
embryo, cells that eventually form the basis for development of the heart later in pregnancy
produce cardiac activity that is generally detectible via ultrasound beginning at approximately six
weeks LMP, though I have seen cardiac activity several days before 6 weeks LMP. Therefore,
S.B. 8 bans abortion in Texas after approximately six weeks LMP.
8.

An embryo is not viable at 6 weeks LMP. Viability is generally understood in

medical science as the point in gestation when a fetus has a reasonable likelihood of survival

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outside of the pregnant woman. The medical consensus in the United States is that viability is not
possible until approximately 24 weeks LMP.
9.

I understand that if any of the physicians at Alamo or HWRS continues to provide

abortions after 6 weeks LMP, any person may sue us and if they are successful in their suit, the
court must order us to cease providing abortions after six weeks LMP, and to pay a minimum of
$10,000 per prohibited abortion plus their costs and attorney’s fees.
10.

I understand that the same penalties can be leveled against a person who “aids or

abets” in the performance of an abortion. Due to this provision, I am concerned not only about
liability for myself and the other physicians, but also Alamo and HWRS and the staff at these
clinics. I also understand that the Texas Medical Board and Texas Nursing Board may be able to
take disciplinary action against us for violations of S.B. 8.
11.

Because there are not many abortion clinics in San Antonio and Houston, and we

are well known in the state, I believe it is very likely that the clinics, myself, or other members of
my team at Alamo or HWRS will be sued.
12.

I am very concerned about opening the clinics, myself, and other staff members

up to legal liability, but I also know that it will be devastating for patients if they cannot obtain
abortions in Texas after 6 weeks LMP.
Burdens on Patients
13.

Some patients do not realize they are pregnant until after six weeks LMP. This

includes patients who have irregular menstrual cycles, have certain medical conditions, have
been using contraceptives, are breastfeeding, or experience bleeding during early pregnancy, a
common occurrence that is frequently and easily mistaken for a period. Other patients may not
develop or recognize symptoms of early pregnancy.

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14.

Even for the patients who do realize they are pregnant before six weeks LMP,

they would have a very small window to obtain an abortion. For a patient with regular monthly
periods, fertilization typically occurs at two weeks LMP (two weeks after the first day of their
last menstrual period). Thus, even a woman with a highly regular, four-week menstrual cycle
would already be four weeks LMP when she misses her next period, generally the first clear
indication of a possible pregnancy.
15.

If patients are prohibited from obtaining an abortion after 6 weeks LMP, this

gives them one to two weeks at most to decide they want an abortion, arrange all of the
necessary logistics, gather the money, and schedule the two appointments at least 24 hours apart,
as required by Texas law.
16.

The majority of our patients will not be able to obtain an abortion before six

weeks LMP. The patients who can afford to do so will attempt to travel out of state. Those
traveling out of state will need to pay additional travel and lodging costs and will likely face
increased costs for the procedure. At later gestational points, abortion is more expensive and may
require a two-day surgical procedure, instead of one. These patients would also experience
increased risks to their health by the delay in access to abortion care.
17.

For many patients, pregnancy creates serious symptoms and health risks. Even for

people without comorbidities, common symptoms of pregnancy can include debilitating nausea,
migraines, and dizziness. For people with comorbidities like asthma, hypertension, or diabetes,
pregnancy exacerbates the symptoms and risk of an emergency. There is also a significant
percentage of people who suffer perinatal depression or anxiety.
18.

Many of our patients will not be able to travel out of state. A significant

percentage of the patients we see at Alamo and HWRS struggle to afford an abortion and receive

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some form of financial assistance. These patients may try to travel to Mexico for care or attempt
to order pills through the mail to self-manage their abortions. We regularly see patients who have
attempted abortions themselves and failed, and the number of patients in this situation will only
increase if S.B. 8 takes effect.
19.

The reality is that many of our patients will be forced to carry their pregnancies to

term, having been denied their constitutional right to make decisions about their own bodies.
S.B. 8’s Fee Shifting Provision
20.

I understand that under S.B. 8, if parties challenge Texas laws that regulate or

restrict abortion and do not succeed on every claim they bring, the parties and their attorneys are
responsible for the defendants’ costs and attorney’s fees.
21.

Alamo, HWRS, or me personally have been a litigant in many cases challenging

Texas laws regulating or restricting abortion, including: 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); Whole Woman’s Health v.
Paxton, 978 F.3d 896 (5th Cir. 2020), reh’rg en banc granted, vacated, and argued, 978 F.3d
974 (5th Cir. 2020) (ban on common method of abortion); Whole Woman’s Health v. Smith, 338
F. Supp. 3d 606 (W.D. Tex. 2018), appeal docketed and argued, No. 18-50730 (5th Cir.)
(requirement for interment or cremation of embryonic and fetal tissue); Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014), reh’rg en banc
denied, 769 F.3d 330 (5th Cir. 2014) (decision on admitting-privileges, medication-abortion
regulations); and Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th
Cir. 2012) (mandatory ultrasound law).

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22.

Litigation is essential to keeping the doors of Alamo and HWRS open. If we are

responsible for defendants’ costs and attorney’s fees, this will hinder our ability to bring cases
and certain claims that are necessary to protect our rights and the rights of our patients.

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Dated: July 11, 2021

____________________________
DR. ALAN BRAID

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