IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

PLANNED PARENTHOOD CENTER FOR 

CHOICE; PLANNED PARENTHOOD OF 

GREATER TEXAS SURGICAL HEALTH 

SERVICES; PLANNED PARENTHOOD SOUTH 

TEXAS SURGICAL CENTER; WHOLE WOMAN'S 

HEALTH; WHOLE WOMAN'S HEALTH 

ALLIANCE; SOUTHWESTERN WOMEN'S 

SURGERY CENTER; BROOKSIDE WOMEN'S 

MEDICAL CENTER PA d/b/a BROOKSIDE 

WOMEN'S HEALTH CENTER AND AUSTIN 

WOMEN'S HEALTH CENTER; ROBIN 

WALLACE, M.D.; and HOUSTON WOMEN'S 

CLINIC, 

Plaintiffs, V. GREG ABBOTT, in his official capacity as Governor 

of Texas; KEN PAXTON, in his official capacity as 

Attorney General of Texas; PHIL WILSON, in his 

official capacity as Acting Executive Commissioner 

of the Texas Health and Human Services 

Commission; STEPHEN BRINT CARLTON, in his 

official capacity as Executive Director of the Texas 

Medical Board; KATHERINE A. THOMAS, in her 

official capacity as the Executive Director of the 

Texas Board of Nursing; MARGARET MOORE, 

District Attorney for Travis County; JOE 

GONZALES, Criminal District Attorney for Bexar 

County; JOHN CREUZOT, District Attorney for 

Dallas County; JAIME ESPARZA, District Attorney 

for El Paso County; KIM OGG, Criminal District 

Attorney for Harris County; RICARDO 

RODRIGUEZ, JR., Criminal District Attorney for 

Hidalgo County; BARRY JOHNSON, Criminal 

District Attorney for McLennan County; SHAREN 

WILSON, Criminal District Attorney for Tarrant 

County; and BRIAN MIDDLETON, Criminal 

District Attorney for Fort Bend County, 

Defendants. 

2C2OpR 13 FU2: II 

No. I :20-cv-323-LY 
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 

INTRODUCTION 

1. This is a constitutional challenge under 42 U.S.C. § 1983 to an interpretation by the 

Texas Attorney General of Governor Greg Abbott's March 22, 2020, Executive Order GA 09, 

"Relating to hospital capacity during the COVID-19 disaster" ("the Executive Order"), as applied 

to abortion, and to the extent that interpretation is consistent with the Executive Order, a challenge 

to the order itself. The Texas Attorney General's interpretation is attached as Exhibit A. The 

Executive Order is attached as Exhibit B. This lawsuit also challenges the Texas Medical Board's 

emergency amendment to 22 TAC § 187.57 ("Emergency Rule"), which imposes the same 

requirements as the Executive Order. The Emergency Rule is attached as Exhibit C. 

2. Citing the ongoing COVID-19 pandemic and the need to preserve hospital capacity 

and personal protective equipment ("PPE"), the Executive Order prohibits all surgeries and 

procedures thatas determined by a patient's physicianare not immediately medically 

necessary to correct a serious medical condition of, or to preserve the life of, a patient who without 

immediate receipt of such care would be at risk for serious adverse medical consequences or death. 

It applies to all licensed health care practitioners and all licensed health care facilities in Texas. 

The Executive Order directs regulated parties to stop performing all covered services, with the 

exception of procedures that, if performed using the commonly accepted standard of clinical 

practice, would not deplete the hospital capacity or the PPE needed to cope with the COVID- 19 

disaster. 

3. The Executive Order took effect the afternoon of March 22, 2020, and will remain 

in effect until at least April 21, 2020. 
4. As the American College of Obstetricians and Gynecologists ("ACOG") has 

recognized, abortion care is essential care because it cannot be delayed without risking the health 

and safety of the patient. Accordingly, Plaintiffs believe that providing this care is entirely 

consistent with the Governor's Executive Order. 

5. However, on March 23, 2020, Texas Attorney General Ken Paxton issued a press 

release singling out abortion providers and suggesting that he believed provision of nonemergency abortions would violate the Executive Order. The release stated that "[tjhose who 

violate the governor's order will be met with the full force of the law" and threatened criminal 

penalties, including jail time. 

6. By stating that the Executive Order applies to "any type of abortion," the Attorney 

General's news release suggests it even prohibits medication abortion, which involves only taking 

medications by mouth and is not "surgery" or a "procedure" that falls within the terms of the 

Executive Order. See Id. (emphasis added). This appears to be the only oral medication targeted in 

this manner. 

7. For nearly fifty years, the U.S. Supreme Court has recognized the fundamental 

federal constitutional right to make the profoundly personal decision whether to terminate a 

pregnancy. See Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court has repeatedly recognized 

that this right is foundational to equality and to respect for the dignity, autonomy, and bodily 

integrity of all people. The "central principle" of Roe is that "[b]efore viability, the State's interests 

are not strong enough to support a prohibition on abortion," Planned Parenthood of Se. 

Pennsylvania v. Casey, 505 U.S. 833, 846, 871 (1992), regardless whether that prohibition contains 

an exception to preserve the life or health of the pregnant woman. 
8. The Texas Attorney General's enforcement threats are a blatant effort to exploit a 

public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state 

in terms of preventing or resolving shortages of PPE or hospital capacity. As a result of these 

threats, this week Plaintiffs have already been forced to turn away patients in need of time-sensitive 

care. 

9. Without injunctive relief, Plaintiffs will be forced to continue turning away patients 

seeking abortion care. At a minimum, those patients will not be able to obtain an abortion for 

weeks or even months, given that the COVID-19 pandemic is likely to last far beyond the order's 

stated expiration date. Some will not be able to access abortion at all and will be forced to carry 

pregnancies to term. Not only will these patients be deprived of their constitutional right to 

essential healthcare and self-determination, but forcing them to continue their pregnancies will in 

fact impose far greater strains on an already-taxed healthcare system, as prenatal care and delivery 

involve much greater exhaustion of hospital health care services and PPE than abortions. All will 

be delayed in getting the abortion care they are seeking, with attendant risks to their health, 

wellbeing, and economic security. This violates Plaintiffs' patients' fundamental constitutional 

right to decide whether to have an abortion prior to viability. 

JURISDICTION AND VENUE 

10. This Court has jurisdiction over this action under 28 U.S.C. § 1331 and 1343. 

11. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C. 

§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal 

and equitable powers of this Court. 

4 
12. Venue is appropriate under 28 U.s.c § 1391(b) because one or more of the 

Defendants resides in this judicial district and because a substantial part of the events or omissions 

giving rise to Plaintiffs' claims occurred in this judicial district. 

PLAINTIFFS 

13. Plaintiff Planned Parenthood Center for Choice ("PP Houston"), a Texas not-forprofit corporation headquartered in Houston, operates a licensed ambulatory surgical center in 

Houston and a licensed abortion facility in Stafford. PP Houston and its predecessor organizations 

have provided abortions in Houston and southeast Texas since 1973. PP Houston provides a range 

of reproductive health services, including medication and procedural abortions. PP Houston sues 

on behalf of itself, its staff, physicians, nurses, and patients. 

14. Plaintiff Planned Parenthood of Greater Texas Surgical Health Services ("PPGT 

Surgical Health Services") is a Texas not-for-profit corporation, headquartered in Dallas. PPGT 

Surgical Health Services and its predecessor organizations have provided high-quality 

reproductive health care in Texas for decades. PPGT Surgical Health Services operates licensed 

ambulatory surgical centers in Austin, Dallas, and Fort Worth, and licensed abortion facilities in 

Waco and Austin. PPGT Surgical Health Services provides a range of reproductive health services, 

including medication and procedural abortions. PPGT Surgical Health Services sues on behalf of 

itself, its staff, physicians, nurses, and patients. 

15. Plaintiff Planned Parenthood South Texas Surgical Center ("PPST Surgical 

Center"), a not-for-profit corporation headquartered in San Antonio, operates a licensed 

ambulatory surgical center and a licensed abortion facility in San Antonio. PPST Surgical Center 

5 
provides a range of reproductive health services, including medication and procedural abortions. 

PPST Surgical Center sues on behalf of itself, its staff, physicians, nurses, and patients. 

16. Plaintiff Whole Woman's Health operates licensed abortion facilities in Fort Worth 

and McAllen. Whole Woman's Health provides a range of reproductive health services, including 

medication and procedural abortions. Whole Woman's Health sues on behalf of itself, its staff, 

physicians, nurses, and patients. 

17. Plaintiff Whole Woman's Health Alliance is a Texas not-for-profit corporation. Its 

mission is to provide abortion care in underserved communities and shift the stigma around 

abortion in our culture. It operates a licensed abortion facility in Austin that provides both 

medication and procedural abortions. Whole Woman's Health Alliance sues on behalf of itself, its 

staff, physicians, nurses, and patients. 

18. Plaintiff Southwestern Women's Surgery Center ("Southwestern") operates a 

licensed ambulatory surgical center in Dallas. Southwestern provides a range of reproductive 

health services, including medication and procedural abortions. Southwestern sues on behalf of 

itself, its staff, physicians, nurses, and patients. 

19. Plaintiff Robin Wallace, M.D. is co-medical director at Southwestern. Dr. Wallace 

is a board-certified family medicine physician who provides abortion care. Dr. Wallace sues on 

her own behalf and on behalf of her patients. 

20. Plaintiff Brookside Women's Medical Center PA d/b/a Brookside Women's Health 

Center and Austin Women's Health Center ("Austin Women's") operates a licensed abortion 

facility in Austin. Austin Women's provides a range of reproductive health services, including 
medication and procedural abortions. Austin Women's sues on behalf of itself, its staff, physicians, 

nurses, advanced practice registered nurses, and patients. 

21. Plaintiff Houston Women's Clinic operates a licensed abortion facility in Houston. 

Houston Women's Clinic provides a range of reproductive health services, including medication 

and procedural abortions. Houston Women's Clinic sues on behalf of itself, its staff, and its 

patients. 

DEFENDANTS 

22. Defendant Greg Abbott is the Governor of Texas and the author of the Executive 

Order, which he issued pursuant to his emergency authority.' He is sued in his official capacity 

and may be served with process at 1100 San Jacinto Blvd., Austin, Texas 78701. 

23. Defendant Ken Paxton is the Attorney General of Texas. He is empowered to assist 

county and district attorneys in the prosecution of criminal offenses,2 including criminal violations 

of the Executive Order. He authored the challenged legal interpretation of the Executive Order. He 

is sued in his official capacity and may be served with process at 300 West 15th Street, Austin, 

Texas 78701. 

24. Defendant Phil Wilson is the Acting Executive Commissioner of the Texas Health 

and Human Services Commission ("HHSC"). HHSC is authorized to enforce violations of the 

Executive Order administratively.3 As Executive Commissioner, Mr. Wilson has general 

Tex. Gov't Code § 418.012. 2 Id. § 402.028. 

Tex. Health & Safety Code § 243.0115, 245.0 12(c); 25 Tex. Admin. Code § 

135.24(a)(l)(F), 139.32(b)(6); Tex. Gov't Code § 53 1.02011(2) (transferring all "regulatory 

functions. . . of the Department of State Health Services" to HHSC). 

7 
supervision and control over all matters relating to the health of the people of Texas.4 He is sued 

in his official capacity and may be served with process at 4900 N. Lamar Blvd., Austin, TX 78751. 

25. Defendant Stephen Brint Carlton is the Executive Director of the Texas Medical 

Board ("TMB"). TMB is authorized to enforce violations of the Executive Order using 

administrative action against physicians and physician assistants licensed in Texas.5 TMB has 

implemented the Executive Order through its Emergency Rule. As Executive Director, Mr. Carlton 

serves as the chief executive and administrative officer of the Board.6 He is sued in his official 

capacity and may be served with process at 333 Guadalupe, Tower 3, Suite 610, Austin, TX 78701. 

26. Defendant Katherine A. Thomas is the Executive Director of the Texas Board of 

Nursing ("TBN"). TBN is authorized to enforce violations of the Executive Order using 

administrative action against nurses licensed in Texas.7 As Executive Director, Ms. Thomas 

performs duties as required by Chapter 301 or designated by the board.8 She is sued in her official 

capacity and may be served with process at 333 Guadalupe, Suite 3-460, Austin, TX 7870 1-3944. 

27. Defendant Margaret Moore is the District Attorney for Travis County. She is 

responsible for prosecuting criminal violations of the Executive Order occurring in Travis County. 

She is sued in her official capacity and may be served with process at 509 West 11th Street, Room 

300, Austin, Texas 78701. 

28. Defendant Joe Gonzales is the Criminal District Attorney for Bexar County. He is 

responsible for prosecuting criminal violations of the Executive Order occurring in Bexar County. 

Tex. Health & Safety Code Ann. § 12.00 1(a). 

Tex. 0cc. Code § 164.05 1; 22 Tex. Admin. Code § 185.17(11). 6 Tex. 0cc. Code § 152.051. 

71d. § 301.452. 

81d § 301.101. 

8 
He is sued in his official capacity and may be served with process at 101 West Nueva Street, 4th 

Floor, San Antonio, Texas 78205. 

29. Defendant John Creuzot is the District Attorney for Dallas County. He is 

responsible for prosecuting criminal violations of the Executive Order occurring in Dallas County. 

He is sued in his official capacity and may be served with process at 133 North Riverfront 

Boulevard, LB 19, Dallas, Texas 75207. 

30. Defendant Jaime Esparza is the District Attorney for El Paso County. He is 

responsible for prosecuting criminal violations of the Executive Order occurring in El Paso 

County. He is sued in his official capacity and may be served with process at El Paso County 

Courthouse, 500 East San Antonio Avenue, Room 201, El Paso, Texas 79901. 

31. Defendant Kim Ogg is the Criminal District Attorney for Harris County. She is 

responsible for prosecuting criminal violations of the Executive Order occurring in Harris County. 

She is sued in her official capacity and may be served with process at 1201 Franklin Street, Suite 

600, Houston, Texas 77002. 

32. Defendant Ricardo Rodriguez, Jr., is the Criminal District Attorney for Hidalgo 

County. He is responsible for prosecuting criminal violations of the Executive Order occurring in 

Hidalgo County. He is sued in his official capacity and may be served with process at 100 East 

Cano, Edinburg, Texas 78539. 

33. Defendant Barry Johnson is the Criminal District Attorney for McLennan County. 

He is responsible for prosecuting criminal violations of the Executive Order occurring in 

McLennan County. He is sued in his official capacity and may be served with process at 219 North 

6th Street, Suite 200, Waco, Texas 76701. 
34. Defendant Sharen Wilson is the Criminal District Attorney for Tarrant County. She 

is responsible for prosecuting criminal violations of the Executive Order occurring in Tarrant 

County. She is sued in her official capacity and may be served with process at the Tim Curry 

Criminal Justice Center, 401 West Belknap Street, Fort Worth, Texas 76196-0201. 

35. Defendant Brian Middleton is the Criminal District Attorney for Fort Bend County. 

He is responsible for prosecuting criminal violations of the Executive Order occurring in Fort Bend 

County. He is sued in his official capacity and may be served with process at 1422 Eugene 

Heimann Circle, Suite 21004, Richmond, TX 77469. 

FACTUAL ALLEGATIONS 

A. Abortion Generally and As Provided in Texas 

36. Pregnancy is commonly measured from the first day of the pregnant person's last 

menstrual period ("LMP"). A full-term pregnancy has a duration of approximately forty weeks 

LMP. In Texas, abortion is almost entirely banned about halfway through pregnancy, at twentytwo weeks LMP. 

37. Up to ten weeks LMP, patients wishing to terminate their pregnancy can choose 

between medication abortion (where the patient takes pills to end and expel the pregnancy) and 

abortion by procedure or "procedural abortion," as it is commonly called (where a clinician uses 

gentle suction, sometimes along with instruments, to empty the patient's uterus). After ten weeks 

LMP, only procedural abortion is available in Texas. 

38. Medication abortion involves the patient ingesting a combination of two pills: 

mifepristone and misoprostol. The patient takes the first medication, mifepristone, in the health 

center and then, typically twenty-four to forty-eight hours later, takes the second medication, 

10 
misoprostol, at a location of their choosing, most often at home, after which they expel the 

pregnancy in a manner similar to a miscarriage. While medication abortion is safe and effective 

up to eleven weeks LMP, Texas law prohibits medication abortion after ten weeks LMP.9 

39. Despite sometimes being referred to as "surgical abortion," procedural abortion is 

not what is commonly understood to be "surgery," as it involves no incisions and no need for 

general anesthesia. In a procedural abortion, the clinician uses gentle suction from a thin, flexible 

tube to empty the contents of the patient's uterus. Before inserting the tube through the patient's 

cervix and into the uterus, the clinician may dilate the cervix using medication and/or small, 

expandable rods. Beginning around fifteen weeks LMP, clinicians generally must use instruments 

to complete the procedure, a technique called dilation and evacuation ("D&E"). Later in the second 

trimester, the clinician may begin cervical dilation the day before the procedure itself. 

40. Both medication abortion and procedural abortion are effective in terminating a 

pregnancy. For some patients, however, one method is medically indicated over the other. For 

example, a patient may be allergic to one of the medications used in medication abortion, or may 

have medical conditions that make procedural abortion relatively more safe.1° According to the 

latest data from the Texas Department of Health and Human Services, in 2017, more than 68 

percent of all abortions in the state were procedural abortions.11 

See Tex. Health & Safety Code § 171 .063(a)(2). 

'°Nat'! Acads. of Scis. Eng'g & Med., The Safety & Quality of Abortion Care in the United 

States 8 (2018) ("Few women are medically ineligible for abortion. There are, however, specific 

contraindications to using mifepristone for a medication abortion or induction."). 

" Tex. Health & Human Servs., 2017 Induced Terminations of Pregnancy by PostFertilization Age and Procedure (2018), https://hhs.texas.gov/about-hhs/records-statistics/ 

data-statistics/itop-statistics. The remaining 0.1% of abortions before eleven weeks LMP had a 

reported method of "other/not stated." 

11 
41. Legal abortion is one of the safest medical procedures in the United States.'2 The 

vast majority of abortions in the United States are provided in an outpatient setting. In comparison, 

more than ninety-eight percent of births in the United States take place in a hospital.13 

Complications from both medication and procedural abortion are rare, and when they occur, they 

can usually be managed in an outpatient clinic setting, either at the time of the abortion or in a 

follow-up visit. Major complicationsdefined as complications requiring hospital admission, 

surgery, or blood transfusionoccur in less than one-quarter of one percent (0.23%) of abortion 

cases: specifically, such complications arise in just 0.31% of medication abortion cases, 0.16% of 

first-trimester procedural abortion cases, and 0.4 1% of procedural cases in the second trimester or later.'4 Abortion-related emergency room visits constitute just 0.0 1% of all emergency room visits 

in the United States.'5 42. Indeed, both medication abortion and procedural abortion are substantially safer 

than continuing a pregnancy through to childbirth. The risk of death associated with childbirth is 

approximately fourteen times higher than that associated with abortion,'6 and complications such 

as hemorrhage are far more likely to occur with childbirth than following an abortion. 

43. Even with an uncomplicated pregnancy in an otherwise healthy individual, carrying 

a pregnancy to term and giving birth poses serious medical risks and can have long-term medical 

12 Nat'! Acads., supra note 10 at 77-78, 162-63. 13 Marian F. MacDorman et al., Nat'l Ctr. for Health Statistics, NCHS Data Brief No. 144: 

Trends in Out-of-Hospital Births in the United States, 1990-2012 (2014), 

https://www.cdc.gov/nchs/products/databriefs/db 1 44.htm. 

' Ushma D. Upadhyay et al., Incidence of Emergency Department Visits and 

Complications After Abortion, 125 Obstetrics & Gynecology 175 (2015). 

' Ushma D. Upadhyay et al., Abortion-related Emergency Room Visits in the United 

States: An Analysis ofaNational Emergency Room Sample, 16(1) BMC Med. 1, 1(2018). 16 Nat'l Acads., supra note 10 at 11, 74-75. 

12 
and physical consequences. For a person with a medical condition caused or exacerbated by 

pregnancy or for a person who receives a diagnosis of a severe or lethal fetal anomaly, these risks 

are increased. 

44. People decide to end a pregnancy for a variety of reasons, including familial, 

medical, financial, and personal reasons. Some people end a pregnancy because they conclude it 

is not the right time in their lives to have a child; some do so because they already have one or 

more children and decide they cannot add to their families; some do so to preserve their life, health, 

or safety; some do so because they receive a diagnosis of a fetal anomaly; some do so because they 

have become pregnant as a result of rape or incest; and some do so because they choose not to 

have biological children. Approximately one in four women in this country will have an abortion 

by age forty-five. 

45. Plaintiffs provide medication abortion, procedural abortion, or both medication and 

procedural abortion. Plaintiffs provide medication abortion up to ten weeks LMP. Plaintiffs 

provide procedural abortion to varying gestational points in pregnancy within the bounds of Texas 

law, which prohibits abortion care except in narrow circumstances at or after twenty-two weeks 

LMP.'7 

Health & Safety Code section 171.044 prohibits abortion when "the probable postfertilization age of the unborn child is 20 or more weeks." "Post-fertilization age" means "the age 

of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum," 

id. § 171.042, which occurs approximately two weeks after the first day of a patient's last 

menstrual period. Thus, twenty weeks post-fertilization is twenty-two weeks LMP. 

13 
B. The COVID-19 Pandemic 

45. Since first identified in December 2019,18 COVID-19 has grown to a worldwide 

pandemic. The disease has spread to 195 countries, infecting hundreds of thousands of people and 

killing more than 16,000.' In the United States, the virus has reached every state, including nearly 

1,000 confirmed cases and twelve deaths in Texas as of the time of filing.20 Federal and state 

officials and medical professionals expect a surge of infectionswhich may last for a year or 

eighteen months2 1to test the limits of the healthcare system.22 Healthcare workers are facing a 

shortage of certain types of PPE, particularly N95 masks.23 

46. On March 13, 2020, the White House issued a proclamation declaring that the 

COVID- 19 outbreak in the United States constitutes a national emergency. That same day, 

Governor Abbott issued a disaster declaration certifying that COVID- 19 poses an imminent threat 

of disaster for all counties in Texas. 

18 Derrick Bryson Taylor, A Tirneline of the Coronavirus Pandemic, N.Y. Times (updated 

Mar. 24, 2020), https://www.nytimes.com/article/coronavirus-timeline.html. 19 World Health Org., Coronavirus Disease (COVID-19) Pandemic, 

https://www.who.int/emergencies/diseases/novel-coronavirus-20 19 (last viewed Mar. 24, 2020). 20 Tex. Dep't of State Health Sen's., Texas Case Counts: CO VID-19 (last updated Mar. 24, 

2020), https://txdshs.maps.arcgis.comlapps/opsdashboard/index.html#/ed483ecd702b4298ab0 I 

e8b9cafc8b83. 21 Denise Grady, Not His First Epidemic: Dr. Anthony Fauci Sticks to the Facts, N.Y. 

Times (Mar. 8, 2020), https ://www.nytimes.com/2020/03/08/health/fauci-coronavirus.html. 22 Ctrs. for Disease Control & Prevention, Interim Guidance for Healthcare Facilities. 

Preparing for Community Transmission of COVID-19 in the United States, (last updated Feb. 29, 

2020), https://www.cdc.gov/coronavirus/20 1 9-ncov/healthcare-facilities/guidance-hcf.html 23 Andrew Jacobs, Matt Richtel & Mike Baker, 'At War With No Ammo': Doctors Say 

Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/ 

2020/03/1 9/healthlcoronavirus-masks-shortage.html. 

14 
47. On March 18, 2020, a group of preeminent national medical organizations issued a 

joint statement on "Abortion Access During the COVID- 19 Outbreak."24 That guidance instructs 

that "[t]o the extent that hospital systems or ambulatory surgical facilities are categorizing 

procedures that can be delayed during the COVID- 19 pandemic, abortion should not be 

categorized as such a procedure" because it "is an essential component of comprehensive health 

care" and "a time-sensitive service for which a delay of several weeks, or in some cases days, may 

increase the risks [to patients] or potentially make it completely inaccessible." 

48. On March 19, 2020, the Texas Department of State Health Services ("DSHS") 

determined that COVID- 19 constitutes a public health disaster within the meaning of Chapter 81 

of the Texas Health and Safety Code. 

49. On March 21, 2020, the Texas Medical Board ("TMB") issued guidance to its 

licenseesall physicians licensed in the state of Texasregarding the scheduling of elective 

surgeries and procedures in light of Governor Abbott's COVID-l9 disaster declaration. Consistent 

with guidance from the Centers for Disease Control and Prevention ("CDC"), TMB recommended 

that licensees "postpone all non-urgent elective surgeries and procedures in inpatient and 

outpatient settings."25 TMB explained that postponing non-urgent elective cases would preserve 

PPE, ventilator availability, ICU beds, and "significant healthcare practitioner time." 

24 The medical organizations issuing this joint guidance were ACOG, the American Board 

of Obstetrics & Gynecology, the American Association of Gynecologic Laparoscopists, the 

American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, 

the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family 

Planning, and the Society for Maternal-Fetal Medicine. 25 Tex. Med. Bd., Texas Medical Board (TMB) Guidance on the Scheduling of Non-Urgent 

Elective Surgeries and Procedures During Texas Disaster Declaration for COVID- 19 Pandemic 

(Mar. 21, 2020), available at http://www.tmb.state.tx.us/idl/05 863196- 

2EC6-BEOE-3036-91 0D363B6C25. 

15 
50. As further guidance, TMB clarified that "elective, non-urgent cases" are cases 

where "there is no anticipated short-term nor long-term negative impact because of delaying a 

procedure or surgery," such as "screening for a chronic condition or most cosmetic procedures." 

By contrast, TMB defined "urgent or elective urgent" procedures as those where "there is a risk of 

patient deterioration or disease progression likely to occur if the procedure is not undertaken or is 

significantly delayed." Significantly, TMB stressed that for these cases, "[t]he resulting decline in 

[the patient's] health could make them more vulnerable to COVID-19 and other issues." TMB 

categorized as "emergent" those cases where the patient would suffer a life-threatening condition 

if the procedure were not undertaken or cases that cannot be safely delayed for any significant 

period of time. 

51. Plaintiffs are committed to responding to the current public health crisis, including 

by preserving much-needed medical resources that are in short supply during the pandemic. Since 

the onset of the COVID- 19 outbreak Plaintiffs have taken precautions to maximize the safety of 

their patients and staff and to conserve PPE. For example, they have begun screening patients for 

COVID- 19 symptoms before each visit. They have reduced patient volume and/or increased 

appointment spacing between patients to comply with social-distancing precautions. They have 

begun requiring patients to wait in their cars rather than in the waiting room after checking in for 

an appointment. They have postponed or cancelled non-essential procedures that require health 

care staff to use PPE, such as masks. For procedural abortions and other essential medical 

procedures, they have reduced use of PPE as much as possible. 

52. Plaintiffs do not provide inpatient care and are not equipped to do so. 

16 
53. Abortion does not require extensive use of PPE. Providing patients with pills for 

medication abortion does not require the use of any PPE. 

54. While clinicians use some PPE for procedural abortionsuch as gloves, a surgical 

mask, and protective eyewearonly a small number of health care staff are physically present for 

these procedures or their preparation/recovery and therefore in need of PPE. Plaintiffs generally 

do not use N95 respirators, the PPE in shortest supply during the COVID-19 pandemic, and only 

do so to protect patients and staff from potential COVID-. 19 transmission. In Plaintiffs' 

communities there does not appear to be a shortage of the non-sterile gloves Plaintiffs use for 

procedural abortions and exams.26 

55. The COVID-19 pandemic and its fallout do not reduce patients' needs for abortion; 

if anything, they make timely access to abortion even more urgent, while raising additional 

obstacles for patients seeking that care. 

56. While much is unknown about COVID-19, including whether it can complicate 

pregnancy, some pregnant people who are delayed in accessing abortion may be exposed to 

additional health risks from the disease. ACOG has warned that "pregnant women are known to 

be at greater risk of severe morbidity and mortality from other respiratory infections such as 

26 U.S. Food & Drug Admin., Medical Glove Conservation Strategies: Letter to Health 

Care Providers (last updated Mar. 20, 2020), available at https://www.fda.gov/medicaldevices/letters-health-care-providers/medical-glove-conservation-strategies-letter-health-careproviders (referring to a potential shortage but that the FDA is monitoring for any widespread 

shortages); U.S. Food & Drug Admin., FAQs on Shortages of Medical Gloves (last updated Mar. 

20, 2020), available at https://www.fda.gov/medical-devices/personal-protective-equipmentinfection-control/faqs-shortages-medical-gloves (not noting a shortage of medical gloves at this 

time, but acknowledging demand could exceed supply, which the FDA is monitoring). 

17 
influenza and SARS-CoV. As such, pregnant women should be considered an at-risk population 

for COVID-19."27 

57. Meanwhile, Texas legal restrictions on abortion, which are some of the harshest in 

the country, impose burdens that weigh even more heavily during the current pandemic and that 

also undermine Defendants' stated goal of preserving PPE. For example, Texas law requires most 

patients to make at least two in-person appointments for an abortion, even though most patients 

could obtain care just as safely in one visit.28 Texas law also mandates medically unnecessary 

ultrasounds,29 as well as in-person follow-up visits that could safely be provided through 

telemedicine.3° Texas law unnecessarily restricts medication abortion to ten weeks when it can 

safely be provided through eleven weeks, thereby eliminating an evidence-based method to reduce 

the need for abortion by procedure.31 And minor patients, unless emancipated, must obtain either 

written consent from a parent or ajudicial order before they can receive care.32 During the COVID27 ACOG, Practice Advisory - Novel Coronavirus 2019 (COVID-19) (March 13, 2020), 

https://www.acog.org/clinical/clinical-guidance/practice-advisory/articles/2020/03/novelcoronavirus-20 19; see also Ctrs. for Disease Control & Prevention, Information for Healthcare 

Providers: COVID-19 and Pregnant Women (Mar. 16, 2020), 

https://www.cdc.gov/coronavirus/20 1 9-ncovlhcp/pregnant-women-faq.html. 28 Tex. Health & Safety Code § 171.012 (mandating that patients receive an ultrasound at 

least twenty-four hours before an abortion procedure). 30 Tex. Health & Safety Code § 171.063(e); 25 Tex. Admin Code § 139.53(b)(4). Indeed, 

to respond to the pandemic, the state has suspended restrictions on telemedicine generally, 28 Tex. 

Admin. Code § 35.1 (emergency regulation adopted Mar. 17,2020); Tex. Med. Bd., Texas Medical 

Board (TMB) Frequently Asked Questions (FAQ5) Regarding Telemedicine During Texas 

Disaster Declaration for COVID- 19 Pandemic (Mar. 19, 2020), http://www.tmb.state.tx.us/ 

idl/A2936385-466D-1 5D1-OF9E-F486D0491A27, and could suspend the existing restrictions 

barring Plaintiffs from using telemedicine to provide medication abortion and post-abortion 

follow-up care. Tex. 0cc. Code § 111.005(c); Tex. Health & Safety Code § 171.063(e); 25 Tex. 

Admin Code § 139.53(b)(4). 31 Tex. Health & Safety Code § 171 .063(a)(2) 32 Tex. Family Code § 33.003. 

18 
19 pandemic, patients must navigate these barriers against the backdrop ofjob insecurity, minimal 

public transit availability, and limited childcare assistance due to mandatory social-distancing and 

shelter-in-place orders. 

58. In addition to all other harms, the pandemic has caused layoffs and other work 

disruptions, and has shuttered schools and childcare facilities. Unemployment claims are soaring.33 

People who receive health insurance through their employers are being laid off and left without 

insurance coverage for themselves and their families. Other workers are remaining on the job 

despite symptoms and increasingly dire public health warnings, fearing the loss of work even more 

than the disease. 

59. As trusted healthcare providers, Plaintiffs understand their responsibility to be there 

when their patients need them most. 

C. The Governor's and Attorney General's Threats to Abortion Access 

60. On March 22, 2020, Governor Abbott issued Executive Order GA 09, barring "all 

surgeries and procedures that are not immediately medically necessary to correct a serious medical 

condition of, or to preserve the life of, a patient who without immediate performance of the surgery 

or procedure would be at risk for serious adverse medical consequences or death, as determined 

by the patient's physician." The Order states that it is responding to the fact that "hospital capacity 

and personal protective equipment are being depleted by surgeries and procedures that are not 

Chris Costa, Texas Workforce Commission encourages employers to use 'Shared Work' 

program instead of layoffs due to COVID-19, KHOU.com (last updated March 22, 2020), 

https://www.khou.comlarticle/newslhealth/coronavirus/texas-workforce-commissionencourages-employers-to-use-shared-work-program-instead-of-layoffs-due-to-covid- 19/285- 

cdd5 527b-7764-4806-af5d-9509f660efd ("The Texas Workforce Commission was overwhelmed 

by thousands of Texans are applying for unemployment benefits because of layoffs and reduced 

hours due to COVID-19."). 

19 
medically necessary to correct a serious medical condition or to preserve the life of a patient," and 

it exempts "any procedure that, if performed in accordance with the commonly accepted standard 

of clinical practice, would not deplete the hospital capacity or the personal protective equipment 

needed to cope with the COVID-19 disaster." See Ex. B. 

61. Although the order does not define "personal protective equipment," Plaintiffs 

understand that term to refer to, for example, surgical masks, sterile and non-sterile gloves, 

disposable protective eyewear, disposable gowns, and disposable shoe covers. Plaintiffs also 

understand that term to refer to N95 respirators. 

62. Failure to comply with the Executive Order is a criminal offense punishable by a 

fine of up to $1,000, confinement in jail for up to 180 days, or both fine and confinement. See Ex. 

B. These criminal penalties may in turn trigger administrative enforcement by the Texas Health 

and Human Services Commission, the Texas Medical Board, and the Texas Board of Nursing, 

which are authorized to pursue disciplinary action against licensees who violate criminal laws.34 

63. To implement the Executive Order, Plaintiffs promptly developed internal policies 

identifying the relevant factors physicians must consider when making a determination whether a 

procedure would be permissible under the Order. Those considerations included not only the text 

of the Order itself, but also the guidance of trusted national medical organizations, which highlight 

that abortion is a time-sensitive procedure for which delay would cause harm to the patient. 

64. On March 23, 2020, the Texas Attorney General issued a press release titled 

"Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop 

25 Tex. Admin. Code § l39.32(b)(6); 25 Tex. Admin. Code § 135.24(a)(l)(F); Tex. 0cc. 

Code § 164.05 I(a)(2)(B), (a)(6); 22 Tex. Admin. Code § 185.17(11); Tex. 0cc. Code Ann. § 

301 .452(b)(3), (B)(10). 

20 
All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight Covid-19 

Pandemic." This press release singled out abortion providers multiple times. It suggested that the 

Attorney General interprets the Executive Order, contrary to its plain language, as prohibiting the 

provision of non-emergency abortions and warned that "[t]hose who violate the governor's order 

will be met with the full force of the law." See Ex. A. 

65. Because medication abortion involves only taking medications by mouth it is not a 

"surgery" or "procedure" that falls within the terms of the Executive Order. However, by stating 

that the Executive Order applies to "any type of abortion," the Attorney General's news release 

suggests that the Attorney General interprets the Executive Order contrary to its plain language as 

prohibiting medication abortion. See Id. (emphasis added). 

66. On March 24, 2020, the TMB adopted an emergency rule to enforce the Executive 

Order. Under preexisting law, the TMB can temporarily suspend or restrict a physician's license 

if the physician's "continuation in practice would constitute a continuing threat to the public 

welfare."35 The Emergency Rule expands this basis for discipline to include "performance of a 

non-urgent elective surgery or procedure," and incorporates the terms of the Executive Order, 

requiring all licensed health care professionals to postpone all surgeries and procedures that are 

not immediately necessary.36 

67. If the Executive Order is enforced, as interpreted by the Attorney General (contrary 

to its plain language), to apply to both procedural abortion and medication abortion, it effectively 

bans abortion in Texas for the duration of the COVID- 19 public health emergency. Given the 

22 Tex. Admin. Code § 187.57(b). 

3622 Tex. Admin. Code § 187.57 (emergency regulation adopted Mar. 23, 2020), available 

at https://tinyurl .com/v4pz99u. 

21 
enforcement threat sparked by the Attorney General's press release and the criminal and other 

penalties specified in the Executive Order, Plaintiffs, their physicians, nurses, and staff have been 

and will continue to be forced to cancel scheduled appointments. They must stop providing all 

non-emergency abortion care that uses PPE or subject themselves to risk of criminal prosecution 

or other penalties. 

68. If the Executive Order is understood (consistent with its plain language) as not 

applying to medication abortion, which is provided through medications by mouth and not a 

"procedure," it will still effectively outlaw abortion after ten weeks of pregnancy. This 

interpretation of the Executive Order, allowing medication abortion but not procedural abortion, 

still operates as a ban for those patients who would otherwise obtain a procedural abortionthat 

is, all those who are ten or more weeks pregnant and those with earlier pregnancies for whom 

medication abortion is not appropriate. 

69. Under either interpretation, the Executive Order will deprive Plaintiffs' patients of 

the freedom to make a very personal decision in consultation with their medical providers, which 

is all the more weighty given the increased health risks to pregnant persons during the COVID-19 

pandemic. It will harm patients' physical, emotional, and financial wellbeing and the wellbeing of 

their families. Patients' abortions will be delayed, and in some cases, denied altogether. As a result, 

Texas patients will be forced to carry pregnancies to term, resulting in a deprivation of their 

fundamental right to determine when and whether to have a child or to add to their existing 

families. 

70. If a person is forced to continue a pregnancy against their will, particularly during 

a global pandemic, it can pose a risk to their physical, mental, and emotional health, as well as to 

22 
the stability and wellbeing of their family, including their existing children. Pregnancy, childbirth, 

and an additional child may exacerbate an already difficult situation for those who have suffered 

trauma, such as sexual assault or domestic violence. And research has found that women denied 

an abortion were four times more likely than women who received an abortion to experience 

economic hardship and insecurity lasting for years, with serious consequences for those women 

and their families. As a result of the COVID-19 pandemic, unemployment rates are soaring, 

meaning that families are losing not only their income but in many cases their employer-provided 

health insurance; the medical and economic hardships of pregnancy and childrearing, for many 

families, is thus more acute now than ever. 

71. Delaying abortion poses risks to patients, too. Although abortion is significantly 

safer than continuing pregnancy through childbirth, the risks associated with abortion increase as 

pregnancy advances. And carrying an unwanted pregnancy burdens patients physically, 

emotionally, psychologically, and financially. Finally, in Texas, as in many other states, legal 

restrictions make abortion harder to access with each passing weekand almost entirely unlawful 

at or after twenty-two weeks LMP. As ACOG and other well-respected medical professional 

organizations have observed, abortion is "a time-sensitive service for which a delay of several 

weeks, or in some cases days, may increase the risks [to patients] or potentially make it completely 

inaccessible."37 For these reasons, abortion is an especially urgent medical treatment during the 

COVID- 19 pandemic. 

37ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 

18, 2020), https ://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion 

-access-during-the-covid- 19-outbreak. 

23 
72. Patients generally seek abortion as soon as they are able, but many face financial 

and logistical obstacles that can delay their access to abortion. For example, low-wage workers 

often have no paid time off or sick leave, so even if a pregnant worker is able to get time off work 

for an abortion appointment, they will likely have to forgo part of a paycheck. Patients facing long 

travel distances typically must arrange and pay for transportation and arrange to take time off work. 

Many patients must also arrange and pay for childcare while they travel to their abortion 

appointment. These barriers routinely delay abortion access for people with low incomes, 

including delay past the point in pregnancy when medication abortion is no longer available, and 

for some, to the point that a more complex, two-day procedure is required. Although abortion is 

safe throughout pregnancy, the risk, complexity, duration, and thus cost increase as pregnancy 

progresses. As a result, patients who are delayed in obtaining care as they save money for the 

procedure may find that even more money is needed for the delayed procedure, necessitating even 

more delay. 

73. The Executive Order will remain in force until April 21, 2020, at the earliest. It is 

subject to extension for the duration of the coronavirus pandemic, which experts believe will last 

at least one year to eighteen months, if not more.38 The current shortage of PPE is expected to 

continue for months.39 As a result, the Attorney General's interpretation of the Executive Order 

threatens to ban abortion for all Texans who are currently pregnant or who will become pregnant 

in the coming months. 

38 See Grady, supra note 21. 

Ctrs. for Disease Control & Prevention, Healthcare Supply of Personal Protective 

Equipment, (last updated Mar. 14, 2020), https://www.cdc.gov/coronavirus/2019- 

ncov/hcp/healthcare-supply-ppe.html 

24 
CLAIMS FOR RELIEF 

COUNT I 

(Substantive Due Process) 

74. Plaintiffs reallege and incorporate by reference the allegations contained above. 

75. By banning all non-emergency abortion prior to viability, or alternatively by 

banning non-emergency abortion after ten weeks of pregnancy and allowing no exception for 

patients prior to ten weeks of pregnancy for whom medication abortion is contraindicated, the 

Executive Order and corresponding Attorney General interpretation and the Emergency Rule, as 

applied to abortion, violate the right to substantive due process. 

76. Unless enjoined, the Executive Order and corresponding Attorney General 

interpretation and the Emergency Rule will subject Plaintiffs' patients to irreparable harm for 

which no adequate remedy at law exists by preventing patients from or significantly delaying them 

in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, 

medical, emotional, and other harm. 

COUNT 2 

(Equal Protection) 

77. Plaintiffs reallege and incorporate by reference the allegations contained above. 

78. By selectively burdening patients' fundamental right to abortion without 

justification and singling abortion providers and their patients out for differential treatment from 

providers of other medical services and their patients, the Executive Order and corresponding 

Attorney General interpretation and the Emergency Rule, as enforced, violate Texans' right to 

equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution. 

25 
79. Unless enjoined, the Executive Order and corresponding Attorney General 

interpretation and the Emergency Rule will subject Plaintiffs and their patients to irreparable harm 

for which no adequate remedy at law exists by preventing patients from or significantly delaying 

them in obtaining an abortion in Texas, thereby causing them to suffer significant constitutional, 

medical, emotional, and other harm. 

REQUEST FOR RELIEF 

WHEREFORE, Plaintiffs ask this Court: 

A. To immediately issue a temporary restraining order, followed by a preliminary 

injunction, and ultimately a permanent injunction, restraining Defendants, their officers, agents, 

servants, employees, and attorneys, and any persons in active concert or participation with them, 

from enforcing or complying with the Executive Order and corresponding Attorney General 

interpretation and the Emergency Rule, as applied to abortion; 

B. To enter ajudgment declaring that the Executive Order and corresponding Attorney 

General interpretation and Emergency Rule, as applied to abortion, violate the Fourteenth 

Amendment to the U.S. Constitution; 

C. To award Plaintiffs their attorneys' fees and costs pursuant to 42 U.S.C. § 1988, 

and 

D. To grant such other and further relief as the Court deems just and proper. 

'3 

Dated: April M', 2020 

Respectfully 

Is! Patrick J. O'Connell 

Patrick J. O'Connell 

Texas Bar No. 15179900 

26 
Law Offices of Patrick J. O'Connell PLLC 

5926 Balcones Dr., Ste. 220 

Austin, Texas 78731 

(512) 852-5918 

pat@pjofca.com 

Attorney for Plaint ?ffs 

Julie Murray* 

Hannah Swanson* 

PLANNED PARENTHOOD FEDERATION OF 

AMERICA 

1110 Vermont Ave., NW Ste. 300 

Washington, D.C. 20005 

(202) 973-4800 

ju1ie.murrayppfa.org 

hannah.swanson@ppfa.org 

Jennifer Sandman* 

PLANNED PARENTHOOD FEDERATION OF 

AMERICA 

123 William Street 

New York, NY 10038 

(212) 541-7800 

jennifer.sandman@ppfa.org 

Attorneys for Plaintiffs Planned Parenthood Center for 

Choice, Planned Parenthood of Greater Texas Surgical 

Health Services, and Planned Parenthood South Texas 

Surgical Center 

Molly Duane* 

Rabia Muqaddam* 

Francesca Cocuzza* 

CENTER FOR REPRODUCTIVE RIGHTS 

199 Water St., 22nd Floor 

New York, NY 10038 

(917) 637-3631 

mduane@reprorights.org 

rmuqaddam@reprorights.org 

fcocuzzareprorights.org 

Attorneys for Plaintiffs Southwestern Women 's 

Surgery Center and Brookside Women 's Medical 

27 
Center PA d/b/a Brookside Women 's Health Center 

and Austin Women's Health Center 

Stephanie Toti 

Rupali Sharma* 

Sneha Shah* 

LAWYERING PROJECT 

25 Broadway, Fl. 9 

New York, NY 10004 

(646) 490-1083 

stoti@lawyeringproject.org 

rsharma@lawyeringproject.org 

sshah@lawyeringproject.org 

Attorneys for Plain4ffs Whole Woman 's Health and 

Whole Woman 's Health Alliance 

Anjali Salvador, TX Bar No. 241 10324** 

Andre Segura, TX Bar No. 241071 12** 

ACLU FOUNDATION OF TEXAS, INC. 

5225 Katy Freeway, Suite 350 

Houston, TX 77007 

Tel. (713) 942-8146 

Fax: (713) 942-8966 

asalvador@aclutx.org 

asegura@aclutx.org 

Brigitte Amiri** 

AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION 

125 Broad Street, 18th Floor 

New York, NY 10004 

Tel. (212) 549-2600 

Fax: (212) 549-2652 

bamiri@aclu.org 

Attorneys for Plaint?ff Houston Women 's Clinic 

* admitted pro hac vice 

**pro hac vice pending 

28 
CERTIFICATE OF SERVICE '3 

I certify that on this Jth day of April, 2020, I filed a copy of the foregoing with this 

Court's CMIECF system, which will serve a copy on the following individuals: 

Heather Gebelin Hacker David S. Lill 

Andrew Bowman Stephens Lill Firm, P.C. 

Benjamin S. Walton 4407 Bee Caves Road 

Office of the Attorney General of Texas Suite Ill Building I 

209 W. 14th Street Austin, TX 78746 

7th Floor (512) 330 0252 

Austin, TX 78701 844 402 9814 (fax) 

512-836-2540 david(iui ii tfirrn.com 

512-474-2697 (fax) 

heather.hacker(äoag.texas.gov Elizabeth Murrill 

andrew.stephcns(a,oag.texas.gov Louisiana Dept. of Justice 

beniamin.waIton(oag.texas.gov 1885 North Third Street 

Baton Rouge, LA 70804 

John J. Butrus, Jr. 225-456-7544 

Dallas County District Attorney's Office murri llcdag.loui siana.gov 

133 N. Riverfront Blvd LB 19 

Dallas, TX 75207 

(214) 653-3691 

(214) 653-2899 (fax) 

john.butrus(ádaI lascounty.org 

Justin C. Pfeiffer 

Fort Bend County Attorney's 

Office 401 Jackson Street 

Third Floor 

Richmond, TX 77469 

(281) 341-4555 

281-341-4557 (fax) 

J ustin .pfeiffer(d2fortbendcountytx. gov 

29 

/s/ Patrick 1 0 'Connell 

Patrick J. O'Connell