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 I

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 BERNARD ROSENFELD, M.D., Ph.D., IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I, Bernard Rosenfeld, M.D., Ph.D., 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 the owner and sole physician at Houston Women’s Clinic (“HWC”), which provides
medication abortion and aspiration abortion (sometimes referred to as “procedural” or
“surgical” abortion), as well as contraceptive care. I have been providing abortion and
contraceptive services at HWC since 1980. I received my medical degree at Tufts
University; did my residency at Johns Hopkins University, the University of Southern
California, and Wayne State University; and received a Ph.D. in Psychology at the
University of Texas at Austin. I am on staff at Texas Women’s and St. Luke’s Hospitals in
the Texas Medical Center, as well as at First Street Hospital. I also have a routine OB-GYN

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practice with a surgical specialty in microsurgical tubal ligation reversals. I previously
served as an assistant professor at Baylor College of Medicine.
3. I submit this declaration in support of Plaintiffs’ Motion for Summary Judgment seeking a
declaratory judgment and to enjoin Texas Senate Bill 8 (“SB 8” or the “Act”). For more
than four decades, HWC has persisted in providing high-quality, compassionate abortion
care to Texans despite relentless attacks by our state legislature and anti-abortion activists.
But if SB 8 is allowed to take effect, we will no longer be able to serve the vast majority
of patients who come to us seeking abortion care and will soon be forced to permanently
close our doors. I implore the Court to block this catastrophic law from taking effect.
Impact of SB 8’s Six-Week Ban
4. Cardiac activity is first detectable in an embryo at approximately six weeks of pregnancy,
as measured from the first day of a patient’s last menstrual period (“LMP”). Thus, SB 8
bans abortion at or before six weeks LMP, a mere two weeks after a patient’s first missed
period (assuming regular menstrual cycles) and four months before viability
(approximately 24 weeks LMP).
5. The vast majority of abortions that we perform at HWC are past SB 8’s six-week cut-off.
Many patients do not even realize they are pregnant before that point, and those patients
who do generally still need time to make the decision whether to keep or end the
pregnancy and then access care consistent with Texas’s preexisting regulatory scheme.
6. It will be impossible for HWC to sustain our practice under SB 8’s enforcement scheme.
On the one hand, if we continue to perform abortions prohibited by SB 8, the clinic and I,
as well as all of the nurses, medical assistants, receptionists, and other staff that assist

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with providing, scheduling, billing, and/or counseling for abortion care, could each be
sued under SB 8 and potentially held liable for at least $10,000 in statutory damages per
violation, quickly accruing enormous financial liability. On top of that, I understand that
my staff and I would risk ruinous licensure consequences, because a violation of SB 8
could also trigger disciplinary action by the Texas Medical and Nursing Board, and that
the clinic could likewise potentially lose its license. And, after a single ruling against us,
we would be enjoined from performing any further abortions in violation of SB 8. Even
if, hypothetically, we were guaranteed to win every one of the lawsuits sure to be brought
against us—by anyone, anywhere, who opposes our mission and wants to win themselves
tens or hundreds of thousands of dollars to boot—we would still face endless costs and
burdens, because we would be forced to defend ourselves in venues across Texas with no
opportunity to recover costs or attorney’s fees.
7. On the other hand, if we stop providing abortions after six weeks as SB 8 requires, we
will soon have to lay off our staff and shutter our clinic permanently. SB 8 bans the
majority of care we provide at HWC—the same care, in the same location, that we have
been providing to Texans for decades—without which we simply cannot afford to keep
our doors open.
8. In either scenario, we will be forced to turn away patients in need, to devastating effect.
Impact of SB 8’s Fee-Shifting Provision
9. I also understand that SB 8 makes parties and their attorneys liable to pay defendants’ costs
and attorney’s fees in cases challenging Texas laws that restrict or regulate abortion if we
lose on any one legal claim, even if the litigation was successful.
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10. In order to fulfill our mission and provide our patients with the constitutionally protected
abortion care they seek, HWC has repeatedly been forced to bring judicial challenges to
restrictions targeting abortion providers in Texas.
11. SB 8’s fee-shifting provision will undermine our ability to vindicate our patients’
constitutional rights, potentially preventing us from bringing well-founded cases and/or
claims for fear that we and our attorneys might have to absorb massive fees and costs if we
are anything less than 100% successful.

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