Case: Whole Woman's Health v. Paxton

Legislative Background

This case is about Texas’ effort to criminalize pre-6-week abortions by enforcing 1925 state law, even prior to the effectuation of Texas' abortion trigger ban. On June 24, 2022, the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and ended the federal constitutional right to abortion. Prior to Dobbs, Texas had already effectively banned abortions after six weeks through Senate Bill (SB) 8. 142 S.Ct. 2228. A few providers continued to perform abortion care up to six weeks of pregnancy. However, upon Dobbs, providers halted abortions because they were confused about whether Texas Penal Code articles 1191-1194 and 1196 (the "TPC sections" and "pre-Roe ban"), enforced from their enactment in 1925 up until Roe, would now be enforced again. These sections of the TPC criminalized providing, aiding in providing, or attempting to provide or aid abortion at any stage of pregnancy, except to save the life of a mother; the sections' punishment was 2-5 years of imprisonment.

In June 2021, the Texas governor also signed House Bill (HB) 1280, 87th Leg. Reg. Sess. (Tex 2021) (the "Texas trigger ban”) into law. Like the 1925 pre-Roe ban, HB 1280 prohibited virtually all post-fertilization abortions, except to save a mother's life or spare her a limited set of extreme health complications. However, HB 1280's penalties were both criminal and civil, and include charges of first-degree felony with 5 years to life in prison, a fine of a minimum of $100,000 plus the prosecutors/plaintiff's legal fees, and medical license forfeiture. Shortly after Dobbs, Texas Attorney General Ken Paxton advised that the trigger ban would take effect 30 days after the Supreme Court issued an official Dobbs judgment. Although Dobbs was decided on June 24, 2022, the Court did not issue judgment until July 26, 2022, creating a gap of weeks where abortion care up to the six-week mark could theoretically continue. In the same advisory, however, the State Attorney General attempted to close that gap by announcing that he and other prosecutors would immediately enforce the 1925 pre-Roe ban.

Instant Case

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 the State Attorney General, local county prosecutors, and state medical boards in their official capacity. The plaintiff-providers sought a temporary restraining order (“TRO”) and temporary injunction against enforcement of the Texas Penal Code sections, so that they might continue providing safe abortion care up until 30 days post-Dobbs-judgment.

Plaintiffs argued that the pre-Roe ban was unenforceable because: (1) 1984-2022 Texas civil statutes did not reference these TPC sections, and the lack of reference effectively repealed the law; (2) the Fifth Circuit had already held that McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004) implicitly repealed the sections; (3) the trigger ban and pre-Roe ban were incompatible because they regulated the same conduct but prescribed different penalties; (4) the 1970 Northern District of Texas declaratory judgment against the TPC sections, issued in response to Roe, remained in effect unless that same court reopened and vacated its earlier judgment; and (5) prosecutor enforcement of the pre-Roe ban would empower arbitrary and discriminatory enforcement, in violation of the Texas Constitution’s Due Process Clause.  

On June 28, 2022, Harris County Judge Christine Weems issued a TRO against the TPC sections, 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. The trial court scheduled a hearing for the temporary injunction for July 12, 2022, when the TRO was also set to expire. 2022 WL 2314499 (Tex. Dist.).

On June 29, 2022, some of the defendants, including the State Attorney General and other state officials named in the complaint (together, the "Relators"), attempted on behalf of all of the Defendants to have the Court strike down or stay the TRO. The Relators attempted this by filing 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). Simultaneously, these Relators filed an emergency motion for temporary relief in the Court of Appeals for the First Judicial District.

The Relators argued that the Plaintiffs lacked standing because they lacked actual injury; therefore, the Relators also argued that Texas courts lacked jurisdiction. On the merits, the Relators said that (1) the Texas legislature had never repealed the pre-Roe ban and in fact had expressly incorporated it in 1973, and that HB 1280 and SB 8 had recently confirmed the pre-Roe ban and (2) enforcing the pre-Roe ban did not violate due process. Justices Peter Kelly, Julie Countiss, and Veronica Rivas-Molloy formed the Court of Appeals panel. Instead of providing the immediate relief the Relators requested, on June 29, 2022, the Panel 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 the Relators from receiving the expedited relief requested, prompting them to file the same petition and emergency motion in the Texas Supreme Court on the same day as the Panel’s briefing order.

On July 1, 2022, the Texas Supreme Court granted the Relators’ motion to stay the TRO only as it applied to the Relators. The Court did not extend the stay to local county prosecutors. This meant that the Relators could begin prosecuting under the pre-Roe ban, but that local prosecutors could not do the same. 2022 WL 2425619. The Plaintiffs filed their response to the Relators’ petition for writ of mandamus with the Texas Supreme Court afterward on July 11, 2022. 

Back in the First Court of Appeals, on July 6, 2022, Judge Kelly of the First Court of Appeals denied the 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. On July 12, 2022, the 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 for relief because it was moot. 2022 WL 2707898. This was the last action on the Texas Court of Appeals docket.

The trial court, now presided over by Judge Cory Sepolio, extended the TRO against county prosecutors and set July 11, 2022 as the new date for a hearing on the temporary injunction. The Plaintiffs also obtained a TRO specifically as applied to one government defendant, the Dallas County District Attorney (DA). The Clearinghouse was unable to confirm the TRO’s new date of expiration. 

Simultaneously, the Realtors continued pursuing their writ of mandamus at the Texas Supreme Court because of the TRO extension against the Dallas DA. The case was designated trial-ready on September 22, 2022. However, in the meantime, Texas' trigger ban had gone into effect on August 25, 2022. Citing the trigger ban's start, the Plaintiffs voluntarily nonsuited their case on October 5, 2022, requesting the Court withhold prejudice. A nonsuit can be voluntary or involuntary and is a dismissal of a case/judgment against the plaintiff, but in Texas, usually allows a plaintiff to refile their complaint later. The trial court nonsuited the case on October 10, 2022, and on October 14, 2022, the Texas Supreme Court declared the remaining issues before it as moot and lifted all stay orders.

The Plaintiff, Whole Women's Health, is no longer operating in Texas. Organizations that would seek to help Texans travel out of state for abortion care or even to provide abortion information are unsure whether they count as "aiding and abetting" criminally under the pre-Roe ban. Individuals seeking abortion care to treat miscarriages and ectopic pregnancies have reported having difficulty receiving care from hospitals.