Case: Whole Woman's Health v. Paxton

2022-38397 | Texas state trial court

Filed Date: June 27, 2022

Case Ongoing

Clearinghouse coding complete

Case Summary

This case is about Texas’ effort to criminalize abortions prior to the six-week mark of pregnancy through enforcement of a state law from 1925. Prior to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and ending the federal constitutional right to abortion after 50 years of precedent, Texas had already effectively banned abortions after six weeks through SB 8. 142 S.Ct. 2228. A limited number of providers continued to perform abortion care up t…

This case is about Texas’ effort to criminalize abortions prior to the six-week mark of pregnancy through enforcement of a state law from 1925. Prior to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and ending the federal constitutional right to abortion after 50 years of precedent, Texas had already effectively banned abortions after six weeks through SB 8. 142 S.Ct. 2228. A limited number of providers continued to perform abortion care up to six weeks of pregnancy. However, when the Dobbs decision was officially released on June 24, 2022, abortion provision in Texas stopped over confusion as to whether 1925 Texas Penal Code articles 1191-1194, 1196 (the “Pre-Roe Ban”) could be enforced. Shortly after the Dobbs decision, Texas Attorney General Ken Paxton (the “State Attorney General”) put out an advisory that House Bill 1280, 87th Leg. Reg. Sess. (Tex 2021) (Texas’ “trigger ban”), prohibiting virtually all abortions would not take effect for approximately two months. The trigger ban is scheduled to take effect 30 days after a Supreme Court judgment overturning Roe. Though the Dobbs decision came out on June 24, 2022, the Court’s judgment was not issued until July 26, 2022, creating a period of weeks where abortion care up to the six-week mark could theoretically continue. In the same advisory, the State Attorney General announced that abortion providers could now be held criminally liable for providing abortions based on the Pre-Roe Ban.

On June 27, 2022 abortion providers in Texas represented by the ACLU and Center for Reproductive Rights filed suit in the District Court of Harris County, a state trial court, against State Attorney General, local county prosecutors, and state medical boards in their official capacity. Plaintiffs sought a temporary restraining order (“TRO”) and temporary injunction against enforcement of the Pre-Roe Ban to enable them to continue providing safe abortion care for as long as possible in the state. The case was assigned to Harris County Judge Christine Weems.

Plaintiffs argued that the Pre-Roe Ban was unenforceable because: (1) no reference to the Pre-Roe Ban was made in the Texas Civil Statutes between 1984 and 2022, effectively repealing the law; (2) the Fifth Circuit held that the Pre-Roe Ban was repealed by implication in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004) because of irreconcilable differences between Texas’ regulation of abortion and the ban; and (3) the trigger ban and Pre-Roe Ban were incompatible because they regulate the same conduct but prescribe different penalties. In addition, Plaintiffs argued that the declaratory judgment in Roe against the Pre-Roe Ban at the district court level in 1970 remained in effect unless reopened and vacated by the issuing court, the Northern District of Texas. Plaintiffs also claimed that enforcement of the Pre-Roe Ban would unlawfully empower arbitrary and discriminatory enforcement, creating legal uncertainty not permitted under the Texas Constitution’s Due Process clause.  

On June 28, 2022, Judge Weems issued a TRO, holding that the Pre-Roe Ban was repealed for the reasons argued by plaintiffs and could not be enforced without violating the due process guaranteed by the Texas Constitution. A hearing for the temporary injunction was set for July 12, 2022, when the TRO was also set to expire.

On June 29, 2022, some of the defendants, in an effort to get the TRO struck down or stayed, filed a petition for writ of mandamus (an order from a court to an inferior government official ordering the government official to properly fulfill their duties or correct an abuse of discretion) and an emergency motion for temporary relief simultaneously in the Court of Appeals for the First Judicial District. The defendants who filed the petition included the State Attorney General and other state officials named in the complaint ("relators"), though they sought relief of behalf of "defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them," including local county prosecutors Relators sought mandamus relief because the TRO was not appealable. Arguing that the district court lacked jurisdiction, the Pre-Roe Ban was never appealed, and that there was no violation of due process, defendants submitted that plaintiffs lacked standing and that their argument failed on the merits. The First Court of Appeals panel consisted of Justices Kelly, Countiss, and Rivas-Molloy. Instead of providing the immediate relief requested by relators, the First Court of Appeals gave plaintiffs until July 5, 2022 to respond to the emergency motion and until July 11, 2022 to respond to the petition for writ of mandamus. The deadlines effectively prevented relators from receiving the relief requested, prompting them to file the same petition and emergency motion in the Texas Supreme Court on the same day.  

The Texas Supreme Court granted relators’ motion to stay the TRO, in part, on July 1, 2022. The Texas Supreme Court stayed the TRO only as it applied to relators, not the local county prosecutors. The partial relief granted by the Texas Supreme Court refused to permit local county prosecutors from starting to prosecute people under the Pre-Roe ban. 2022 WL 2425619. Plaintiffs filed their response to relators’ petition for writ of mandamus with the Texas Supreme Court on July 11, 2022. 

The relators' original filings in the First Court of Appeals sought relief by July 5, 2022. On July 6, 2022, Judge Kelly of the First Court of Appeals denied relators’ motion for temporary relief regarding the TRO’s application to local county prosecutors, consistent with the partial relief granted by the Texas Supreme Court to relators. On July 12, 2022, the First Court of Appeals panel denied the petition for writ of mandamus, perhaps because the window of time for which relators had sought relief had passed. It then dismissed relators’ emergency motion as moot.

The trial court, now presided over by Judge Cory Sepolio, extended the TRO as to the county prosecutors and set a new date for a hearing on the temporary injunction on July 11, 2022. The Clearinghouse was unable to confirm the TRO’s new date of expiration. 

Amidst the confusion regarding the state of the law in Texas, abortion providers have stopped providing abortion care and individuals seeking abortion care to treat miscarriages and ectopic pregnancies have reported having difficulty receiving care from hospitals. This case is still ongoing, however, the trigger ban is set to take effect on August 25, 2022.   

Summary Authors

Hannah Juge (8/7/2022)

People


Judge(s)

Blacklock, Jimmy (Texas)

Bland, Jane (Texas)

Boyd, Jeff (Texas)

Busby, Brett (Texas)

Devine, John Phillip (Texas)

Hecht, Nathan L (Texas)

Huddle, Rebeca Aizpuru (Texas)

Lehrmann, Debra (Texas)

Young, Evan A (Texas)

Attorneys(s) for Plaintiff

Melissa, Hayward (Texas)

Judge(s)

Blacklock, Jimmy (Texas)

Bland, Jane (Texas)

Boyd, Jeff (Texas)

Busby, Brett (Texas)

Devine, John Phillip (Texas)

Hecht, Nathan L (Texas)

Huddle, Rebeca Aizpuru (Texas)

Lehrmann, Debra (Texas)

Young, Evan A (Texas)

Attorneys(s) for Plaintiff

Melissa, Hayward (Texas)

Attorneys(s) for Defendant

Hilton, Amy Snow (Texas)

Documents in the Clearinghouse

Document

2022-38397

Trial Court Docket

July 25, 2022

July 25, 2022

Docket

01-22-00480-CV

First Court of Appeals Docket

In re Ken Paxton, in his official capacity as Attorney General of Texas

Texas state appellate court

July 27, 2022

July 27, 2022

Docket

22-0527

State Supreme Court Docket

In re Ken Paxton

Texas state supreme court

July 29, 2022

July 29, 2022

Docket

2022-38397

Temporary Restraining Order and Order Setting Hearing on Motion for Temporary Injunction

June 27, 2022

June 27, 2022

Order/Opinion

2022-38397

Petition for Declaratory Judgment And Application for Temporary Restraining Order And Temporary Injunction

June 27, 2022

June 27, 2022

Complaint

22-0527

Petition for Writ of Mandamus

In re Ken Paxton

Texas state supreme court

June 29, 2022

June 29, 2022

Pleading / Motion / Brief

01-22-00480-CV

Relators' Emergency Motion for Temporary Relief

In re Ken Paxton

Texas state appellate court

June 29, 2022

June 29, 2022

Pleading / Motion / Brief

22-0527

Response to Relators' Emergency Motion for Temporary Relief

In re Ken Paxton

Texas state supreme court

June 30, 2022

June 30, 2022

Pleading / Motion / Brief

22-0527

Order Partially Granting Motion to Stay TRO

In re Ken Paxton

Texas state supreme court

2022 WL 2425619

July 1, 2022

July 1, 2022

Order/Opinion

01-22-00480-CV

Order Denying Defendants' Motion for County Prosecutors

In re Ken Paxton

Texas state appellate court

July 6, 2022

July 6, 2022

Order/Opinion

Docket

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: Texas

Case Type(s):

Reproductive Issues

Key Dates

Filing Date: June 27, 2022

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Whole Woman's Health and other abortion care providers.

Plaintiff Type(s):

Closely-held (for profit) corporation

Non-profit NON-religious organization

Attorney Organizations:

ACLU National (all projects)

ACLU Affiliates (any)

Center for Reproductive Rights

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Texas Attorney General, State

Texas Medical Board, State

Texas Board of Nursing, State

Texas Board of Pharmacy, State

Texas Health and Human Services Commission, State

Hidalgo County District Attorney (Hidalgo), County

District Attorney (Travis), County

District Attorney (Bexar), County

District Attorney (Harris), County

District Attorney (Dallas), County

District Attorney (Tarrant), County

District Attorney (Collin), County

Defendant Type(s):

Jurisdiction-wide

Law-enforcement

Case Details

Causes of Action:

State law

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Preliminary injunction / Temp. restraining order

Source of Relief:

Litigation

Order Duration: 2022 - None

Content of Injunction:

Preliminary relief granted

Issues

Reproductive rights:

Complete abortion ban

General:

Abortion

Type of Facility:

Non-government for-profit

Non-government non-profit