IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

PLANNED PARENTHOOD CENTER FOR 

CHOICE, et al., 

Plaintiffs, 

v. 

GREG ABBOTT, in his official capacity as 

Governor of Texas, et al., 

Defendants. 

No. 1:20-cv-00323-LY

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR A PRELIMINARY INJUNCTION 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 1 of 34
Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 2 of 34
ii

2. Individuals who will likely be ineligible for aspiration abortion by the time the 

Executive Orders expire. ........................................................................................... 20

3. Individuals who will likely be ineligible for a single-day D&E abortion by the time 

the Executive Orders expire. ..................................................................................... 21

4. Individuals who will likely be ineligible to have an abortion in a clinic setting by the 

time the Executive Orders expire. ............................................................................. 21

5. Individuals who will likely be past the gestational age limit for abortion in Texas by 

the time the Executive Orders expire. ....................................................................... 22

6. Patients experiencing IPV and minors who have obtained judicial bypass. ............. 22

C. Arbitrary and Unreasonable Treatment of Patients Seeking Procedural Abortion. ...... 22

D. Defendants’ Arguments That This Court Lacks Authority to Enter an Injunction Are 

Meritless. ....................................................................................................................... 23

II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM ABSENT A 

PRELIMINARY INJUNCTION. ..................................................................................... 24

III. THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT PRELIMINARY 

INJUNCTIVE RELIEF. .................................................................................................... 25

CONCLUSION ............................................................................................................................. 25

CERTIFICATE OF SERVICE ..................................................................................................... 29

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 3 of 34
iii

TABLE OF AUTHORITIES 

Cases

City of Austin v. Paxton, 

943 F.3d 993 (5th Cir. 2019) ................................................................................ 24 

Deerfield Med. Ctr. v. City of Deerfield Beach, 

661 F.2d 328 (5th Cir. Unit B Nov. 1981) ............................................................ 24 

Elrod v. Burns, 

427 U.S. 347 (1976) .............................................................................................. 24 

Gonzales v. Carhart, 

550 U.S. 124 (2007) .............................................................................................. 16 

In re Abbott, 

No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) ............................ passim

In re Abbott, 

No. 20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020) ................................. 14 

Ingebretsen v. Jackson Pub. Sch. Dist., 

88 F.3d 274 (5th Cir. 1996) .................................................................................. 25 

Jackson Women’s Health Org. v. Currier, 

760 F.3d 448 (5th Cir. 2014) .......................................................................... 15, 25 

Jacobson v. Commonwealth of Massachusetts, 

197 U.S. 11 (1905) ......................................................................................... passim

Janvey v. Alguire, 

647 F.3d 585 (5th Cir. 2011) ................................................................................ 15 

Opulent Life Church v. City of Holly Springs, 

697 F.3d 279 (5th Cir. 2012) ................................................................................ 24 

Planned Parenthood of Ariz., Inc. v. Humble, 

753 F.3d 905 (9th Cir. 2014) ................................................................................ 25 

Planned Parenthood of Cen. Mo. v. Danforth, 

428 U.S. 52 (1976) ................................................................................................ 23 

Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 

882 F.3d 1205 (10th Cir. 2018) ............................................................................ 25 

Planned Parenthood of Se. Pa. v. Casey, 

505 U.S. 833 (1992) ............................................................................ 13, 15, 16, 22 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 4 of 34
iv

Planned Parenthood of Wis., Inc. v. Van Hollen, 

738 F.3d 786 (7th Cir. 2013) ................................................................................ 25 

Robinson v. Marshall, 

No. 2:19cv365-MHT, 2020 WL 1659700 (M.D. Ala. Apr. 3, 2020) ................... 23 

Roe v. Wade, 

410 U.S. 113 (1973) ........................................................................................ 15, 16 

Whole Woman’s Health v. Hellerstedt, 

136 S. Ct. 2292 (2016) ........................................................................ 15, 16, 18, 22 

Statutes, Regulations, and Rules

22 Tex. Admin. Code § 187.57 ........................................................................................... 1

Tex. Gov’t Code Ann. § 402.028 ...................................................................................... 24 

Tex. Gov’t Code Ann. § 418.012 ...................................................................................... 24 

Tex. Health & Safety Code § 171.004 .......................................................................... 3, 21 

Tex. Health & Safety Code § 171.012 .............................................................. 4, 10, 17, 21 

Tex. Health & Safety Code § 171.044 .......................................................................... 3, 22 

Tex. Health & Safety Code § 171.063 .......................................................................... 2, 11 

Other Authorities

Am. Psychological Ass’n, How COVID-19 May Increase Domestic Violence and Child 

Abuse (Apr. 8, 2020), https://www.apa.org/topics/covid-19/domestic-violencechild-abuse .............................................................................................................. 8 

Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Worldwide, N.Y. Times (Apr. 

14, 2020), https://www.nytimes.com/2020/04/06/world/coronavirus-domesticviolence.html ........................................................................................................... 8 

Guttmacher Inst., Regulating Insurance Coverage of Abortion (Apr. 1, 2020), 

https://www.guttmacher.org/state-policy/explore/regulating-insurance-coverageabortion. .................................................................................................................. 7 

Julie A. Gazmararian et al., Prevalence of Violence Against Pregnant Women, 275 JAMA 

1915, 1918 (1996) ................................................................................................... 8 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 5 of 34
1 

INTRODUCTION 

Plaintiffs (collectively, “Providers”) submit this supplemental memorandum of law in 

support of their motion for a preliminary injunction. On April 17, 2020, Governor Greg Abbott 

issued Executive Order GA-15, “Relating to hospital capacity during the COVID-19 disaster,” 

which supersedes the prior Executive Order as of 11:59 P.M. on April 21, 2020. See Ex. 21, 

attached hereto. Executive Order GA-15 largely incorporates the terms of Executive Order GA09,1 which Defendants have interpreted to prohibit virtually all abortion in Texas for the Order’s 

duration. However, GA-15 establishes the following exception: 

any surgery or procedure performed in a licensed health care facility 

that has certified in writing to the Texas Health and Human Services 

Commission both: (1) that it will reserve at least 25% of its hospital 

capacity for treatment of COVID-19 patients, accounting for the 

range of clinical severity of COVID-l9 patients; and (2) that it will 

not request any personal protective equipment from any public 

source, whether federal, state, or local, for the duration of the 

COVID 19 disaster. 

Providers believe that they meet this exception, and therefore that Executive Order GA-15 

has no application to them. Providers’ licensed health care facilities do not have any hospital 

capacity, and Providers do not intend to request personal protective equipment (“PPE”) from any 

public source for the duration of the COVID-19 disaster. Providers will submit certifications to 

the Texas Health and Human Services Commission to that effect. 

1 The Texas Medical Board’s amendment to 22 Tex. Admin. Code § 187.57 incorporates 

the terms of GA-09 and remains in effect through July 20, 2020. Plaintiffs’ Motion for a 

Preliminary Injunction challenges that rule together with GA-09. To the extent Defendants intend 

to interpret and enforce the rule consistent with their interpretation of GA-09 and inconsistent with 

GA-15’s new exception, Plaintiffs maintain their request for a preliminary injunction against that 

enforcement. Throughout this brief, references to the “Executive Orders” include the rule. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 6 of 34
2 

 Providers have attempted to meet and confer with counsel for Defendants to confirm that 

their licensed facilities qualify for this exception by emails to Defendants yesterday and today, but 

do not have a response that clarifies Defendants’ position.2 Accordingly, the need for preliminary 

injunctive relief persists as long as Defendants continue their efforts to ban nearly all abortions 

during the COVID-19 pandemic through application of Governor Abbott’s March 22, 2020, 

Executive Order GA-09 and GA-15 (collectively, “Executive Orders”). A preliminary injunction 

is urgently needed: every day that the Executive Orders prevent Texas residents from obtaining 

in-state abortion care, Providers, their patients, and the public health suffer irreparable harm. 

STATEMENT OF FACTS3

A. Provision of Abortion Care in Texas. 

Twenty-four outpatient facilities in Texas were providing abortion before the pandemic. 

White Decl. ¶ 12. Sixteen are licensed abortion facilities (“clinics”), and eight are ambulatory 

surgical centers (“ASCs”). Id. The clinics are located in or near Austin; Dallas; Fort Worth; El 

Paso; Houston; McAllen; San Antonio; and Waco. Id. ¶ 13. Only six of the eight ASCs—those in 

Austin, Dallas, Houston, and San Antonio—provide abortion after eighteen weeks LMP. Id. ¶¶ 16–

2 Defendants’ response states in relevant part “OAG has no role in receiving, processing, 

or ruling upon certifications submitted under GA-15 and cannot confirm...whether any specific 

facility complies with GA-15’s certification requirement.” See Ex. 22, attached hereto. This 

response provides no information on the position of Defendant Wilson, Acting Executive 

Commissioner of the Texas Health and Human Services Commission, to which the required 

submissions must be submitted, or of the other Defendants charged with enforcement of the 

Executive Orders. 

Providers respectfully request the opportunity to supplement these filings with additional 

argument and evidence if Defendants take the position that GA-15’s exception does not apply to 

Provider Plaintiffs’ facilities, as this would implicate additional issues not addressed herein.

3 A complete list of all testimony and briefing that Providers are designating is set forth in 

Appendix A, attached hereto. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 7 of 34
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17. In the most recent year for which data are available, only two-tenths of a percent (0.2%) of 

Texas abortions were performed in hospitals. See Ex. 40, attached hereto. 

After ten weeks of pregnancy as measured from the first day of their last menstrual period 

(“LMP”), patients are not eligible for medication abortion in Texas; but must have procedural 

abortions. See Tex. Health & Safety Code § 171.063(a)(2). Early procedural abortions are 

performed using aspiration. Starting around twelve to thirteen weeks LMP, abortion requires sameday cervical preparation, which requires several hours in the health center. Schutt-Aine 2d Decl. 

¶ 30. Beginning at fourteen to sixteen weeks LMP, procedural abortion is provided by D&E rather 

than aspiration. Id. ¶¶ 16, 39. Between approximately fifteen and eighteen weeks LMP, patients 

must have two-day rather than single-day D&E procedures. Braid Decl. ¶ 9; Schutt-Aine 2d Decl. 

¶ 34. At eighteen weeks LMP, patients must seek abortion care at ambulatory surgical centers 

(“ASCs”) or hospitals. See Tex. Health & Safety Code § 171.004. Texas prohibits abortion, absent 

exceptional circumstances, beginning at twenty-two weeks LMP. See Tex. Health & Safety Code 

§ 171.044. 

B. Burdens on Abortion Access Imposed by the Executive Orders. 

As interpreted by Defendants, the Executive Orders function as a six-week long abortion 

ban. As a result, Texas residents with means to travel are leaving the State in droves to obtain 

abortion care. See Boyd Decl. ¶¶ 6, 8–9; Doe Decl. ¶¶ 15–22; Ferrigno 2d Decl. ¶¶ 5–6; Hagstrom 

Miller 2d Decl. ¶ 6; Johnson Decl. ¶¶ 8–10; Jones Decl. ¶ 15; Lamunyon Sanford Decl. ¶¶ 16–18; 

Moe Decl. ¶ 18; Nguyen Decl. ¶ 17; Schalit Decl. ¶¶ 15–16; Ward Decl. ¶¶ 12–14. Those unable 

to travel out of state are forced to wait as their pregnancies progress. 

Texas abortion providers expect to have substantial backlogs when the Executive Orders 

expire. See, e.g., Dewitt-Dick 2d Decl. ¶ 9 (one-month cessation will result in a backlog of 

approximately 800 patients); id. ¶ 11 (it will take two months to resolve backlog, pushing 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 8 of 34
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additional patients past the legal limit in Texas); see also Ferrigno Decl. ¶ 29; Hagstrom Miller 

Decl. ¶ 29; Johnson Decl. ¶ 12; Nguyen Decl. ¶ 23; White Decl. ¶¶ 21, 27. Combined with socialdistancing policies that reduce patient volume, see Ferrigno 2d Decl. ¶ 4; Hagstrom Miller 2d Decl. 

¶ 4; Schutt-Aine Decl. ¶ 30, and Texas laws that delay abortion access during normal times,4 those 

backlogs will inevitably prevent some people from obtaining an abortion in Texas for at least 

another one to two weeks. Clinics in neighboring states are experiencing long wait-times for 

appointments due to the influx of Texas patients. Boyd Decl. ¶ 9. 

The Executive Orders impose heavy burdens both on those who are able to travel out of 

state to access abortion and those who must wait in Texas until the ban is lifted. These burdens 

generally fall into the following categories: (1) increased health risks; (2) physical discomfort, 

emotional distress and loss of privacy; (3) travel-related burdens; (4) economic costs; (5) increased 

safety risks; and (6) forced childbirth. Many of these burdens compound one another. 

1. Increased health risks. 

Those who must wait weeks to access abortion care face increased health risks, whether 

they remain pregnant or are able to have a later abortion. The risks of pregnancy and abortion 

increase with gestational age. Macones Decl. ¶ 8; Schutt-Aine Decl. ¶ 22. Similarly, while very 

low, risk of major complications—those requiring hospital admission, surgery, or blood 

transfusion—from abortion is approximately 2.5 times greater in the second trimester than in the 

first. Schutt-Aine 2d Decl. ¶¶ 26–27. Some people unable to access abortion in a healthcare setting 

will turn to unsafe methods to end their pregnancies. Levison Decl. ¶ 11; Roe ¶ 15. 

4 Texas’ mandatory waiting period law, Tex. Health & Safety Code § 171.012(a)(4), (b), 

for example, delays abortion access for many Texans. Jones Decl. ¶ 12. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 9 of 34
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Those who must travel long distances to obtain abortion care also face increased health 

risks—they are at higher risk of contracting and spreading COVID-19. Bassett Decl. ¶¶ 7–8; 

Schutt-Aine ¶ 37; Sharfstein 2d. Decl. ¶ 10. One woman approaching the gestational limit for 

medication abortion described making a hazardous twelve-hour drive from Arlington, Texas, to 

Denver, Colorado, to access that care. Doe Decl. ¶¶ 12, 15–16; see also id. at ¶ 25. 

2. Physical discomfort, emotional distress, and loss of privacy. 

Individuals denied access to abortion must continue to cope with pregnancy-related 

physical symptoms, such as severe nausea and vomiting, shortness of breath, frequent urination 

and dizziness, and conditions exacerbated by pregnancy, such as hypertension, diabetes, kidney 

disease, autoimmune disorders, and asthma. Schutt-Aine 2d Decl. ¶¶ 6, 8; Bennett Decl. ¶ 25; 

Hagstrom Miller Decl. ¶ 33. They must also endure not knowing when—or if—they will be able 

to obtain an abortion, which is “devastat[ing],” Hagstrom Miller 2d Decl. ¶ 6. See also Bennett 

Decl. ¶ 22; Nguyen Decl. ¶ 13. Those who want to keep their pregnancy private must struggle to 

conceal their pregnancies for a longer period of time. Doe Decl. ¶ 6 (individual did not want 

prospective employers to know she was pregnant); Ferrigno 2d. Decl. ¶ 6. Revealing a pregnancy 

may also put individuals with abusive partners or family at risk of harm. See infra at 8–9. 

3. Travel-related burdens. 

The need to travel to access abortion is itself a burden, Lamunyon Sanford Decl. ¶ 10, and 

Texas residents with means are currently traveling long distances to reach out-of-state abortion 

providers. See Ward Decl. ¶ 12 (“average distance traveled . . . jumped from 158 miles in 2019 to 

734 miles” since the Executive Orders); Gomez Decl. ¶ 14 (Texans traveling to Arizona, 

Kentucky, Louisiana, Mississippi, New Mexico, Oklahoma, and Virginia); Schalit Decl. ¶¶ 15–16 

(Texans traveling to New Mexico, Kansas, and Illinois). Some have taken lengthy road trips and 

others have had to fly. Lamunyon Decl. ¶ 11 (describing travel of up to 860 miles, one way); Ward 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 10 of 34
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Decl. ¶ 14 (most clients are flying “because the health risks involved in air travel have made it 

much more affordable”). 

Long-distance travel is expensive, prohibitively so for some. See Ward Decl. ¶¶ 6, 8; Moe 

Decl. ¶¶ 14, 19; Bennett ¶¶ 9, 11. It is also fraught with logistical challenges, including the need 

to secure lodging and childcare, take time off from work, and explain one’s whereabouts to family 

members or others. See Bennett Decl. ¶¶ 2, 8–9; Gomez Decl. ¶¶ 1, 9; Jones Decl. ¶¶ 8, 12; 

Lamunyon Sanford Decl. ¶¶ 8, 10, 12; Moe Decl. ¶¶ 14, 18; Schalit Decl. ¶¶ 1, 4; Ward Decl. ¶ 10. 

Organizations that assist people with abortion access can mitigate some of these burdens but 

cannot alleviate them completely. See Bennett Decl. ¶ 16; Conner Decl. ¶ 7; Gomez Decl. ¶ 16; 

Moe Decl. ¶ 8, 12; Ward Decl. ¶¶ 1, 4, 8. In addition, the need to travel often delays access to 

abortion because, for many, it takes time to make arrangements and raise the necessary money. 

Bennett Decl. ¶ 11; Heflin Decl. ¶¶ 51–61; Jones Decl. ¶ 12; Lamunyon Sanford Decl. ¶¶ 10, 12–

13; Moe Decl. ¶ 14; Ward Decl. ¶ 7; see also Schalit Decl. ¶¶ 1, 4–5. 

The COVID-19 pandemic makes travel “increasingly fraught, and even dangerous.” 

Lamunyon Sanford Decl. ¶¶ 11–13; see also Moe Decl. ¶ 21 (reductions in flights; common delays 

and cancellations); Gomez Decl. ¶¶ 9-13 (difficulty finding local transportation and hotels; 

confusion due to state rules for out-of-state travelers during pandemic); Conner Decl. ¶ 11 

(increased difficulty securing childcare); Ward Decl. ¶ 10 (delays caused by greater logistical 

barriers during pandemic); infra pp. 11–12 (travel increases risk of contagion). 

4. Economic costs. 

Delays can drive up the cost of an abortion, which increases with gestational age together 

with the duration and complexity of the procedure. Jones Decl. ¶ 15 (cost of a client’s abortion 

increased about $1,500 due to two-week delay); Dewitt-Dick Decl. ¶ 22; Ferrigno Decl. ¶ 36; 

Hagstrom Miller 2d Decl. ¶¶ 7–10; Moe Decl. ¶ 8; Ward Decl. ¶ 6; White Decl. ¶ 25. For example, 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 11 of 34
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a medication abortion at one Texas clinic costs $725. Hagstrom Miller 2d Decl. ¶ 8. A procedural 

abortion at that clinic costs $750 before twelve weeks LMP, and increases by $100 every week 

thereafter, reaching $1,350 by eighteen weeks LMP. Id. An abortion at a Texas ASC at 21–22 

weeks LMP costs at least $3,000. Id. ¶ 10. Most patients will need to pay these costs out-of-pocket 

because Texas generally bars coverage of abortion in public and private insurance plans.5 And as 

discussed above, the need to travel also adds to the cost of an abortion. Supra p. 6–7. 

Even in normal times, roughly 75% of people seeking abortion are poor or low-income. 

Heflin Decl. ¶ 37. The pandemic has profoundly impacted people’s financial resources. Between 

March 15th and April 4th, 2020, 760,000 Texans filed for unemployment, exceeding the roughly 

700,000 claims filed in all of 2019. Heflin Decl. ¶ 10; see also, e.g., id. ¶¶ 13–14 (record number 

of Texans applying for SNAP benefits and relying on food pantries); Moe Decl. ¶ 15 (callers 

“struggling with loss of work, income, employer-sponsored health insurance, and childcare” and 

“finding it difficult to pay their rents, mortgages, and bills”); Ward Decl. ¶ 10 (“One client recently 

worked to raise money for her abortion care for weeks only to have to use it for rent.”); Doe Decl. 

¶¶ 5–6 (patient lost job at restaurant right as she discovered she was pregnant). 

5. Forced childbirth. 

Those who are delayed past twenty-two weeks LMP and who cannot travel out of state for 

an abortion will be forced to give birth. See Gomez Decl. ¶ 18. Even before their duration was 

extended by the GA-15, the record demonstrated that the Orders would push many individuals past 

Texas’s gestational age limit. Hagstrom Miller ¶ 27; Ward ¶ 12; Conner Decl. ¶ 10; Johnson ¶ 10; 

Moe Decl. ¶ 19. Further, obtaining abortion care in other states is becoming increasingly difficult 

because abortion clinics do not have capacity to see the large volume of Texas patients now seeking 

5 Guttmacher Inst., Regulating Insurance Coverage of Abortion (Apr. 1, 2020), 

https://www. guttmacher.org/state-policy/explore/regulating-insurance-coverage-abortion. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 12 of 34
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their services. Boyd Decl. ¶ 13 (New Mexico clinic is “simply overwhelmed with requests from 

Texas women and often unable to meet the sudden increase in need for timely care”); Moe Decl. 

¶ 18 (by April 1, New Mexico clinic was scheduling appointments for Texas patients between 

April 8–24 though that clinic is “generally able to see our callers within a week of being 

contacted”); Conner Decl. ¶ 11; Johnson Decl. ¶ 9. 

6. Increased risks of abuse. 

Patients who have been victims of intimate partner violence (“IPV”) and minors with 

abusive parents are at particular risk of harm from forced delays in access to abortion, and of being 

unable to access abortion altogether after the Executive Orders end. Stay-at-home guidelines have 

heightened the frequency and severity of IPV.6 Even before the pandemic, pregnancy was 

associated with increased and more severe violence in abusive relationships.7 To avoid further 

harm, including being denied abortion, a pregnant person may need to keep their pregnancy and 

abortion decision confidential, see Moe Decl. ¶ 19; Gomez Decl. ¶ 13, which is more difficult as 

access is delayed, Bennett Decl. ¶ 10; Moe Decl. ¶ 19. 

For minors who have obtained a judicial bypass due to abuse or other hardships, see

Northcutt Decl. ¶¶ 3–6, delay likewise threatens their health and safety and may prevent their 

access to abortion entirely. A judge has already determined that these minors should obtain an 

abortion promptly because, for example, any delay “increases the risk to the applicant’s health.” 

Nguyen Decl. ¶ 18 & Ex. A. And abortion access may be necessary to prevent further hardship 

imposed by a minor’s parents. Northcutt Decl. ¶ 5 (describing potential homelessness if parent 

6 See Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Worldwide, N.Y. Times 

(Apr. 14, 2020), https://www.nytimes.com/2020/04/06/world/coronavirus-domesticviolence.html; Am. Psychological Ass’n, How COVID-19 May Increase Domestic Violence and 

Child Abuse (Apr. 8, 2020), https://www.apa.org/topics/covid-19/domestic-violence-child-abuse. 

7 Julie A. Gazmararian et al., Prevalence of Violence Against Pregnant Women, 275 JAMA 

1915, 1918 (1996). 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 13 of 34
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discovered pregnancy). Minors in these circumstances are having appointments cancelled because 

of the Executive Orders, further increasing the risks and other burdens. Northcutt Decl. ¶¶ 5–6; 

Nguyen Decl. ¶¶ 18–19. Most lack the financial, social, and familial resources to travel out of state 

to obtain abortion care. Northcutt Decl. ¶¶ 4, 7; Nguyen Decl. ¶¶ 18–19. 

C. Asserted State Interests. 

Defendants assert three interests supporting the Executive Orders: (1) conserving PPE; (2) 

conserving hospital capacity; and (3) preventing COVID-19’s spread. None is advanced by 

banning and forcibly delaying abortion. 

1. Conserving PPE during the pandemic. 

The State’s asserted interest in conserving PPE is not served by banning or forcibly 

delaying abortion for at least three reasons. First, individuals with ongoing pregnancies require 

more interactions with the healthcare system, involving more PPE, than individuals who obtain 

abortions. Levison Decl. ¶¶ 12–14; Macones Decl. ¶ 20; Schutt-Aine Decl. ¶ 26; Rosenfeld Decl. 

¶ 15. Pregnant people must have regular, in-person medical visits to safeguard their own health, 

even if they intend to have an abortion. Chang Decl. ¶ 8; see also Levison Decl. ¶¶ 18–19. 

Pregnancy poses significant health risks, which are heightened for people with underlying 

conditions such as diabetes, high-blood pressure, and obesity. Schutt-Aine 2d Decl. ¶¶ 6–8. The 

Executive Orders impose no limits on routine pregnancy-related care, including physical 

examinations, ultrasounds, and laboratory tests. Macones Decl. ¶ 12; Levison Decl. ¶ 19; Chang 

Decl. ¶¶ 8–9. Doctors are continuing to provide such care during the pandemic, even while 

reducing other in-person visits. Levison Decl. ¶ 18; Macones Decl. ¶¶ 10–12. High-risk patients 

and patients in their second and third trimesters have more frequent in-person visits. Macones 

Decl. ¶¶ 10, 12. PPE used for prenatal care varies by provider, but at minimum, providers use 

gloves for physical examinations, vaginal ultrasounds, and laboratory testing, and wear masks and 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 14 of 34
10 

other PPE whenever a patient has symptoms of COVID-19 or is at high risk of contracting the 

virus. Levison ¶¶ 13, 17; Chang ¶ 15, 25; Macones Decl. ¶ 17. Some OB/GYNs wear masks for 

all patient interactions and give patients the option of wearing masks. Wood Decl. ¶ 16. 

In contrast, providing abortion care requires little or no PPE. Medication abortion requires 

a single, in-person visit without physical contact between doctor and patient, and no PPE is needed. 

See Schutt-Aine 2d Decl. ¶ 38. Aspiration abortion likewise requires a single, in-person visit 

during which minimal PPE is used. See, e.g., Barraza Decl. ¶ 7; Ferrigno Decl. ¶¶ 10, 12; Klier 

Decl. ¶ 11; Schutt-Aine Decl. ¶¶ 25; Wallace Decl. ¶ 12. D&E abortion requires one or two inperson visits, depending on gestational age, during which minimal PPE is used. Abortion providers 

generally do not use N95 masks. Only one physician associated with Plaintiffs has used an N95 

mask since the pandemic began, and that physician has been reusing the same mask. See, e.g., 

Barraza Decl. ¶ 8; Hagstrom Miller Decl. ¶ 16; Schutt-Aine Decl. ¶ 27. Plaintiffs are not treating 

patients with COVID-19 symptoms. See, e.g., Ferrigno Decl. ¶ 17; Lambrecht Decl. ¶ 16; SchuttAine Decl. ¶ 31. They screen those patients in advance and refer them for treatment. Id. 

Texas law requires an ultrasound and in-person consultation before every abortion. Tex. 

Health & Safety Code §171.012(a)(4), (b). For patients living within 100 miles of the facility, the 

consultation must occur at least twenty-four hours before the abortion. Id. A pre-abortion 

ultrasound requires no more PPE than an ultrasound performed for prenatal care. Compare

Ferrigno Decl. ¶ 11, and Hagstrom Miller Decl. ¶ 14, with Macones Decl. ¶ 14. When laboratory 

testing is required along with an abortion, technicians use only non-sterile gloves, just as with 

laboratory tests for prenatal care. Compare Hagstrom Miller Decl. ¶ 14 with Macones Decl. ¶ 14. 

Notably, in addition to routine prenatal care, doctors continue to offer other obstetrical and 

gynecological care comparable to abortion in PPE use and time-sensitivity. See Chang Decl. ¶ 24; 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 15 of 34
11 

Levison Decl. ¶ 18; Macones Decl. ¶ 19. Doctors also continue to prescribe or recommend oral 

medications comparable to the medications used to induce an abortion. Schutt-Aine 2d Decl. ¶ 47. 

Second, abortion becomes more complex as pregnancy progresses, in turn requiring more 

PPE. Medication abortion, available in Texas to ten weeks LMP, requires no PPE. See Tex. Health 

& Safety Code § 171.063(a)(2); Barraza Decl. ¶ 7; Dewitt-Dick Decl. ¶ 19; Schutt-Aine Decl. 

¶ 25. After ten weeks LMP abortion involves an aspiration procedure and limited PPE, such as 

gloves, a surgical mask, and a disposable or washable gown. Barraza Decl. ¶ 7; Dewitt-Dick Decl. 

¶ 19; Ferrigno Decl. ¶¶ 10, 12; Hagstrom Miller Decl. ¶¶ 13, 15; Klier Decl. ¶ 11; Lambrecht Decl. 

¶ 12; Rosenfeld Decl. ¶ 11; Schutt-Aine Decl. ¶ 25; Wallace Decl. ¶ 12. Around fourteen to sixteen 

weeks LMP the provider generally must use instruments to complete the procedure, usually 

requiring additional dilation and possibly additional staff and PPE. Ferrigno Decl. ¶ 35; Hagstrom 

Miller Decl. ¶ 34; Lambrecht Decl. ¶ 18; Schutt-Aine Decl. ¶¶ 16, 35; Schutt-Aine 2d Decl. ¶ 31. 

Beginning approximately fifteen to eighteen weeks LMP the dilation process must begin the day 

before the procedure, requiring two separate trips to the health center and an additional visit’s 

worth of PPE. Schutt-Aine Decl. ¶¶ 16, 39; Schutt-Aine 2d Decl. ¶¶ 32, 34. Moreover, as detailed 

below, while abortion remains safe throughout pregnancy (and safer than childbirth), risks increase 

with gestational age, Schutt-Aine Decl. ¶ 22, and accordingly so does the risk that PPE may be 

needed to treat any complications that do arise (such treatment generally occurs at the health center 

where the abortion was provided). 

Finally, forcing patients to attempt travel for care they could otherwise obtain locally 

results in no net savings of PPE, but rather increases contagion risks for both the patient and others. 

Bassett Decl. ¶¶ 6–8; Sharfstein 2d Decl. ¶¶ 9–11. If anything, such travel may increase the amount 

of PPE used because a patient forced to travel out-of-state will likely be delayed in doing so, and 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 16 of 34
12 

may therefore require a more complex procedure involving more PPE. Schutt-Aine Decl. 

¶¶ 16, 35, 39; Sharfstein 2d Decl. ¶ 11. 

2. Conserving hospital capacity during the pandemic. 

Likewise, preventing people from accessing abortion care during the pandemic will not 

conserve hospital capacity. As discussed above, nearly all abortions are provided in outpatient 

facilities rather than hospitals. See supra p. 2. Major complications occur in less than one-quarter 

of one percent (0.23%) of all abortion cases: in 0.31% of medication abortion cases, in 0.16% of 

first-trimester procedural abortion cases, and in 0.41% of procedural cases in the second trimester 

or later. Schutt-Aine Decl. ¶ 12. Abortion-related emergency room visits constitute just 0.01% of 

all emergency room visits in the United States. Id. Individuals with ongoing pregnancies are far 

more likely to seek treatment in a hospital (including in an emergency department) than individuals 

who have pre-viability abortions. Levison Decl. ¶¶ 8–11; Loe Decl. ¶¶ 14, 16; Macones Decl. ¶ 19; 

Roe Decl. ¶¶ 10–13; Schutt-Aine Decl. ¶ 26; Schutt-Aine 2d Decl. ¶¶ 9, 11, 13, 19. And as 

discussed below, forcing patients with the means to do so to travel long distances to attempt to 

obtain care increases contagion risks, including the risk that those patients or their close contacts 

will develop symptoms of COVID-19 requiring hospital care. 

3. Reducing the spread of COVID-19. 

As explained above, people denied access to abortion will still require regular, in-person 

visits with medical practitioners. Supra pp. 9–11. Accordingly, banning abortion will not reduce 

the risk of COVID-19 transmission in healthcare settings. In fact, because the Executive Orders 

are causing many Texas residents to travel out of state for abortion care, they are actually 

increasing the risk of COVID-19 transmission. Supra pp. 11–12. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 17 of 34
13 

D. Procedural History. 

On March 25, 2020, Providers moved for a temporary restraining order (“TRO”), ECF No. 

7, which this Court granted “as applied to medication abortions and procedural abortions.” Order 

Granting Pls.’ Req. for TRO at 8, ECF No. 40. Defendants petitioned the Fifth Circuit for a writ 

of mandamus to vacate the TRO. A divided panel of the Fifth Circuit administratively stayed the 

TRO, In re Abbott, No. 20-50264 (5th Cir. Mar. 31, 2020) (per curiam), and then granted the 

mandamus petition, In re Abbott, No. 20-50264, 2020 WL 1685929, at *1 (5th Cir. Apr. 7, 2020). 

The panel majority concluded that mandamus was appropriate for three reasons. First, it 

held that this Court erred by not applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 

11 (1905), under which this Court “was empowered to decide only whether GA-09 lacks a ‘real or 

substantial relation’ to the public health crisis or whether it is ‘beyond all question, a plain, palpable 

invasion’ of the right to abortion.” In re Abbott, 2020 WL 1685929, at *8 (citing Jacobson, 197 

U.S. at 31). Second, the panel rejected Providers’ argument that the Executive Orders operate as 

an “outright [abortion] ban.” Id. at *10. Because it concluded the first Order did not impose a ban, 

the panel held that the undue-burden balancing test in Planned Parenthood of Southeastern 

Pennsylvania v. Casey, 505 U.S. 833 (1992), applies. Id. at *10–12. Given the overlay of Jacobson, 

the panel held that “certain applications of GA-09 may constitute an undue burden under Casey,” 

where Providers can show, “‘beyond question,’ GA-09’s burdens outweigh its benefits in those 

situations.” Id. at *9 (quoting Jacobson, 197 U.S. at 31) (emphasis added). Third, the majority held 

that any determination whether the TRO served the public interest should “weigh the potential 

injury to the public health” from enjoining enforcement of the first Order. Id. at *12. Critically, 

the panel emphasized that it was not expressing an opinion as to “whether an injunction narrowly 

tailored to particular circumstances would pass muster under the Jacobson framework.” Id. It 

explained that “[t]hese are issues that the parties may pursue at the preliminary injunction stage, 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 18 of 34
14 

where [Providers] will bear the burden to prove, ‘by a clear showing,’ that they are entitled to 

relief.” Id.

On remand, Providers filed a second TRO motion, seeking more limited relief. ECF No. 

56. The Court granted the motion on April 9, 2020, temporarily restraining Defendants from 

enforcing the first Order as a categorical ban on all abortions; against medication abortions; against 

procedural abortion for any patient who, based on the treating physician’s medical judgment, 

would be more than eighteen weeks LMP on April 22, 2020, and likely unable to reach an ASC in 

Texas or to obtain abortion care; and against procedural abortion for any patient who, based on the 

treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 

weeks LMP—on April 22, 2020. Order Granting Pls.’ Second Mot. for TRO at 15, ECF No. 63. 

The TRO was set to expire on April 19, 2020, at 4:25 p.m., unless “extended for good cause, 

pursuant to Federal Rule of Civil Procedure 65.” Id.

Defendants filed another mandamus petition and motion to stay the TRO. On April 10, 

2020, the Fifth Circuit administratively stayed the second TRO “EXCEPT that part of the TRO 

applying to ‘any patient who, based on the treating physician’s medical judgment, would be past 

the legal limit for an abortion in Texas” by the Order’s expiration. In re Abbott, No. 20-50296, slip 

op. at 4 (5th Cir. Apr. 10, 2020) (per curiam). Following additional briefing by the parties and 

Plaintiffs’ application to the U.S. Supreme Court to vacate a portion of the Fifth Circuit’s stay, the 

Fifth Circuit dissolved the administrative stay and denied Defendants’ motion to stay the TRO as 

to medication abortion. In re Abbott, No. 20-50296, 2020 WL 1866010 (5th Cir. Apr. 13, 2020). 

On April 14, 2020, this Court set a preliminary injunction hearing for April 29, 2020; 

entered a briefing schedule; and extended the TRO, as modified by the Court of Appeals, until 

May 1, 2020, at 5 p.m. Order Extending Order Granting Pls.’ Second Mot. for TRO & Scheduling 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 19 of 34
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Order for Pls.’ Mot. for Prelim. Inj. at 2–4, ECF No. 82. The next day, despite their pending 

mandamus petition, Defendants filed an interlocutory appeal from the TRO as well as a motion for 

stay pending appeal. Appellants’ Opposed Emergency Mot. to Stay Pending Appeal and, 

Alternatively, for a Temp. Administrative Stay, Planned Parenthood Ctr. for Choice v. Abbott, 

No. 20-50314 (5th Cir. Apr. 15, 2020). All remain pending. 

ARGUMENT 

Providers are entitled to a preliminary injunction because the record demonstrates that (1) 

they have a substantial likelihood of success on the merits; (2) their patients are experiencing 

irreparable injury; (3) that injury outweighs any harm to Defendants; and (4) granting the 

injunction will not disserve the public interest. Jackson Women’s Health Org. v. Currier, 760 F.3d 

448, 452 (5th Cir. 2014); Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).8

I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. 

The right to end a pregnancy is a fundamental component of the liberty protected by the 

Due Process Clause. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309–10 

(2016); Casey, 505 U.S. at 851–53 (1992); Roe v. Wade, 410 U.S. 113, 152–54 (1973). Laws that 

infringe on this right are subject to the undue-burden standard set forth in Casey, which “requires 

that courts consider the burdens a law imposes on abortion access together with the benefits those 

laws confer.” Whole Woman’s Health, 136 S. Ct. at 2309. Where the burdens are disproportionate 

to the benefits, the law is unconstitutional. See id. at 2300, 2309–10. 

The undue burden standard is a form of heightened scrutiny. Id. at 2309–10. To satisfy it, 

the State cannot merely assert that a challenged law is rationally related to a valid state interest. Id.

8 For the reasons set forth in Plaintiffs’ Mot. for TRO and/or Prelim. Inj. at 27–28, ECF 

No. 7, which is hereby designated by Providers, the Court should waive the bond requirement in 

Federal Rule of Civil Procedure 65(c).

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 20 of 34
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at 2309. Instead, the State must demonstrate that the law actually advances the asserted interest—

and that it does so to an extent sufficient to justify the burdens that it imposes on abortion access. 

Id. at 2300, 2309–10 (“[T]he ‘Court retains an independent constitutional duty to review factual 

findings where constitutional rights are at stake.’” (quoting Gonzales v. Carhart, 550 U.S. 124, 

165 (2007))). 

The Fifth Circuit directed this Court to apply the undue-burden standard in tandem with 

the principles set forth in Jacobson, which it views as providing “the framework governing 

emergency public health measures like [the Executive Orders].” In re Abbott, 2020 WL 1685929, 

at *1. This Court must ask “whether [the Executive Orders] impose burdens on abortion that 

‘beyond question’ exceed its benefits in combating the epidemic Texas now faces.” Id. at *11 

(quoting Jacobson, 197 U.S. at 31). This inquiry is fact-specific, “requiring careful parsing of the 

evidence.” Id.9

The Executive Orders fail to satisfy the constitutional standard set forth by the Fifth Circuit. 

The burdens imposed by these laws are unwarranted as to all people seeking abortions, and 

especially as to (1) patients seeking medication abortions; (2) patients seeking procedural abortions 

after ten weeks LMP, including patients who, by the Executive Orders’ expiration, (a) will likely 

be ineligible for aspiration abortion; (b) will likely be ineligible for a single-day D&E abortion; 

(c) will likely be ineligible for abortion in a clinic setting; or (d) will likely be past the gestational 

age limit for abortion in Texas; and (3) patients experiencing IPV and minors who have obtained 

judicial bypasses. 

9

 Plaintiffs reassert and preserve for appeal their arguments that the Executive Orders as 

applied to provision of abortion care are unconstitutional because (1) they impose an outright ban 

on previability abortion, see Roe and Casey, and (2) they impose an undue burden under the test 

described in Casey, which is not modified during a public health emergency, by Jacobson or 

otherwise. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 21 of 34
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A. The Executive Orders Impose Unconstitutional Burdens on Texas Residents Seeking 

Medication Abortions. 

Applying the Executive Orders to medication abortion beyond question fails to serve 

Defendants’ asserted interests in conserving PPE and hospital capacity or limiting the spread of 

COVID-19. The record shows that medication abortion requires no PPE. Supra p. 10. Although 

Texas requires an in-person consultation and ultrasound examination before a medication abortion, 

see Tex. Health & Safety Code § 171.012(a)(4), (b), the Texas Medical Board has issued guidance 

indicating that those services—whether provided in the context of abortion care or prenatal care—

do not fall within the scope of the Executive Orders’ prohibitions.10 In any event, these preabortion visits require little or no PPE. Supra p. 10. Moreover, banning medication abortion fails 

to serve Defendants’ interest in conserving PPE because individuals with ongoing pregnancies will 

require more in-person healthcare, including ultrasounds, physical examinations, and lab tests, 

during the pandemic than individuals who have medication abortions. Supra pp. 9–11. 

Further, virtually all medication abortions are provided in outpatient facilities rather than 

hospitals, and complications associated with medication abortion, including any requiring hospital 

care, are exceedingly rare. Supra pp. 11–12. Delaying or denying abortion access does not 

conserve hospital capacity because patients with continuing pregnancies are far more likely to seek 

hospital care than patients who terminate a pregnancy before viability. Supra p. 12; Levison Decl. 

¶ 10 (testifying that at least twenty percent of pregnant patients will visit a hospital at some point 

prior to delivery, some on multiple occasions). 

10 Tex. Med. Bd., Texas Medical Board (TMB) Frequently Asked Questions (FAQs) 

Regarding Non-Urgent Elective Surgeries and Procedures During Texas Disaster Declaration for 

COVID-19 Pandemic (Mar. 29, 2020), Ex. A to Schutt-Aine 2d Decl. While Defendants 

characterize these services as part of a single, multi-step medication abortion “procedure,” if this 

were so, it would be impossible to comply with Texas’s law requiring the ultrasound to occur “at 

least 24 hours before the abortion.” Tex. Health & Safety Code §171.012(a)(4) (emphasis added).

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 22 of 34
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The Executive Orders’ application to medication abortion also undermines Defendants’ 

asserted interest in thwarting the spread of COVID-19. As discussed above, it has increased the 

risk that patients will contract and transmit the virus by forcing them to travel extensive distances 

to obtain a medication abortion. See Bassett Decl. ¶ 7; Doe Decl. ¶ 18. 

In these ways, Defendants’ threats to enforce the Executive Orders against those who 

provide medication abortions lack any “real or substantial relation” to the public health objectives 

offered to justify them, contravening Jacobson, 197 U.S. at 31. 

The Executive Orders’ failure to further Defendants’ interests is plainly outweighed by 

their profound burdens on medication abortion patients—which will continue without injunctive 

relief. They have already forced Providers to cancel hundreds of appointments, including for 

medication abortion, thus delaying patient care. See, e.g., Dewitt-Dick Decl. ¶ 8; Johnson Decl. 

¶ 4; Klier Decl. ¶ 17; Nguyen Decl. ¶ 8; Wallace Decl. ¶ 9; Rosenfeld Decl. ¶ 9. Delayed abortion 

access subjects patients to increased health risks, supra pp. 4–5, greater financial burdens, supra

pp. 6–7, and other harms, ranging from the physical and psychological impact of unwanted 

pregnancy to fear that an abusive partner or family member will learn of the pregnancy or intended 

abortion, supra pp. 5, 8–9. Moreover, the Executive Orders have compelled patients to travel long 

distances out of state during a pandemic to obtain pills that they could take at home. See, e.g., Doe 

Decl. ¶¶ 9, 19–22. These burdens are “beyond question” undue in relation to the illusory benefits 

of applying the Executive Orders to medication abortion. In re Abbott, 2020 WL 1685929, at *9 

(citing Jacobson, 197 U.S. at 31); see also Whole Woman’s Health, 136 S. Ct. at 2300, 2309–10. 

Enforcing the Executive Orders as to medication abortion is also at odds with the Fifth 

Circuit’s standard because it singles out medication abortion for disfavored treatment without 

justification. In re Abbott, 2020 WL 1685929, at *19 (citing Jacobson’s prohibition on states 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 23 of 34
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exercising their authority to “safeguard the public health” in an “arbitrary, unreasonable manner”). 

Defendants have yet to identify another oral medication they consider banned by the Executive 

Orders, which on their face apply only to “surgeries and procedures.” Supra p. 11. Indeed, the 

record shows that the Executive Orders exempt treatments comparable to medication abortion and 

the care accompanying it. See, e.g., Levison Decl. ¶¶ 13, 18–19 (noting that most prenatal care, 

which includes ultrasounds, physical exams, and blood tests, is continuing during the pandemic). 

B. The Executive Orders Impose Unconstitutional Burdens on Texas Residents Seeking 

Procedural Abortions. 

The Executive Orders also impose unwarranted burdens on people seeking procedural 

abortions. For the reasons explained above, the Executive Orders fail to advance Defendants’ 

asserted public health interests in any material way. See supra pp. 9–12 (continuing a pregnancy 

conserves no PPE because it requires more in-person healthcare at each stage of pregnancy than 

obtaining a previability abortion; abortions later in pregnancy use more PPE; and forcing patients 

to travel results in contagion risks that deplete rather than conserve PPE); supra p. 12 (patients 

with continuing pregnancies are far more likely to seek hospital care than patients who terminate 

a pregnancy before viability; abortion later in pregnancy, while safe, carries more risk of 

complications than earlier abortions; and forced travel results in contagion risks that increase the 

chances of hospital-based care); supra pp. 11–12 (out-of-state travel heightens the risk that 

abortion patients will contract and transmit the COVID-19 virus to others). 

On the other hand, the Executive Orders impose heavy burdens on people seeking 

procedural abortions. These burdens, detailed above, include increased health risks, supra pp. 4–

5; physical discomfort, emotional distress and loss of privacy, supra p. 5; travel-related burdens, 

supra pp. 5–6; economic costs, supra pp. 6–7; forced childbirth, supra pp. 7–8; and increased risk 

of abuse by a partner or family member, supra pp. 8–9. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 24 of 34
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Because these burdens are outweighed by any possible benefit and lack any "real or 

substantial relation" to the state's interest, they cannot be applied abortion procedures, but these 

burdens are most severe and unjustified in the following categories: 

1. Individuals seeking procedural abortions after ten weeks LMP. 

Texas law prohibits medication abortion after ten weeks LMP, so individuals turned away 

from procedural abortion will either lose all access in Texas or be forced to wait until they are at a 

later stage of pregnancy when their procedure will involve more PPE. Further, the risks of 

pregnancy, Macones Decl. ¶ 8, and abortion, Schutt-Aine Decl. ¶ 22, increase with gestational age. 

Also, after twelve weeks LMP, the abortion costs increases significantly each week as the length 

and complexity of the procedure increases. Hagstrom Miller 2d Decl. ¶ 8. This increased cost leads 

to further delay. Heflin Decl. ¶¶ 41–43, 48, 50–52. For these reasons, being delayed past ten weeks 

LMP, or forced to seek care elsewhere, imposes substantial burdens on Texas residents. And such 

delays or forced travel increase use of PPE, hospital resources, and contagion risks, and thus lack 

any “real or substantial relation” to the state’s interests. Jacobson, 197 U.S. at 31. 

2. Individuals who will likely be ineligible for aspiration abortion by the time the 

Executive Orders expire. 

Beginning around fourteen to sixteen weeks LMP, abortion patients must have a D&E 

abortion, which is a lengthier, more complex, and more expensive procedure than aspiration; it 

also uses more PPE and requires more time at the health center, and (while very safe) carries higher 

risks of complications. Ferrigno Decl. ¶¶ 35–36; Hagstrom Miller Decl. ¶¶ 34–35; Schutt-Aine 

Decl. ¶¶ 16, 39; Schutt-Aine 2d Decl. ¶¶ 32–34. Thus, being delayed past fourteen weeks LMP 

can impose significant burdens on abortion patients, and further undermine any “real or substantial 

relation” to the state’s interests. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 25 of 34
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3. Individuals who will likely be ineligible for a single-day D&E abortion by the time 

the Executive Orders expire. 

D&E abortions are usually performed as two-day procedures beginning between fifteen to 

eighteen weeks LMP, depending on the individual patient and physician judgment. Schutt-Aine 

2d Decl. ¶ 32. Thus, most abortion patients who require a two-day D&E procedure must make 

three rather than two trips to an abortion provider to terminate their pregnancy. See Tex. Health & 

Safety Code § 171.012(a)(4), (b). Multiple trips present many of the same logistical challenges as 

long-distance travel to obtain abortion care. Bennett Decl. ¶ 9; Jones Decl. ¶ 12; Moe Decl. ¶ 14. 

A two-day procedure involves more PPE and medical staff, as well as more time at the health 

center and trips back-and-forth, thus increasing risks of contagion and complication. Accordingly, 

the Executive Orders’ application to this category of patients lacks any “real or substantial relation” 

to the State’s interests. 

4. Individuals who will likely be ineligible to have an abortion in a clinic setting by the 

time the Executive Orders expire. 

Texas law requires abortion patients who exceed eighteen weeks LMP to obtain their care 

at an ASC rather than a licensed abortion facility. Tex. Health & Safety Code § 171.004. But just 

six of the ASCs in Texas (in only four cities) offer abortion care after eighteen weeks LMP. White 

Decl. ¶¶ 16–17. Long-distance travel is expensive, supra pp. 5–6, the cost of an abortion increases 

significantly with gestational age, supra at pp. 6–7, and about 75% of women seeking an abortion 

in the U.S. are poor or low-income. Heflin Decl. ¶ 37; see Ward Decl. ¶ 6. As a result, many Texas 

residents delayed past eighteen weeks LMP may be unable to access abortion and forced to carry 

to term. See Sanford Decl. ¶ 9. Patients delayed in or foreclosed from accessing abortion care will 

require more PPE and be exposed to higher health-related risks, again undermining any “real or 

substantial relation” to the state’s interests.

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 26 of 34
22 

5. Individuals who will likely be past the gestational age limit for abortion in Texas by 

the time the Executive Orders expire. 

Texas law prohibits abortion after twenty-two weeks LMP absent exceptional 

circumstances. Tex. Health & Safety Code § 171.044. Thus, delay past that gestational age forces 

Texans to carry their pregnancy to term or, for those with means, to leave the state to seek abortion 

care. See, e.g., Ward Decl. ¶ 12; Moe Decl. ¶ 18; Bennett Decl. ¶ 24; Johnson Decl. ¶ 10. As this 

Court has held, application of the Executive Orders to procedural abortion patients in these 

circumstances at minimum unduly burdens their right to access a previability abortion. Order 

Granting Pls.’ Second Mot. for TRO at 13, ECF No. 63; see Casey, 505 U.S. at 877. Those who 

manage to access care out of state obtain the care later in their pregnancies than they otherwise 

would—and suffer attendant health risks, financial burdens, and emotional costs. Thus, on this 

record, it is beyond question that the Executive Orders impose burdens that exceed any public 

health benefits. See Jacobson, 197 U.S. at 31; Whole Woman’s Health, 136 S. Ct. at 2300, 2309–

10. 

6. Patients experiencing IPV and minors who have obtained judicial bypass. 

Patients experiencing IPV and minors who have obtained a judicial bypass are at particular 

risk of harm from forced delays in access to abortion, including of being unable to access an 

abortion altogether even after the Executive Orders’ expiration. Supra at pp. 8–9. Because of these 

heightened harms, Defendants’ interpretation of the Executive Orders to flatly bar abortions for 

this group again imposes burdens that exceed any public health benefit. 

C. Arbitrary and Unreasonable Treatment of Patients Seeking Procedural Abortion. 

As with medication abortion, applying the Executive Orders to procedural abortion is also 

unconstitutional because it singles out abortion care for disfavored treatment in an “arbitrary, 

unreasonable manner.” Jacobson, 197 U.S. at 26. Texas physicians continue to provide obstetrical 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 27 of 34
23 

and gynecological procedures comparable to procedural abortion in PPE use and time-sensitivity 

based on their professional medical judgment. Chang Decl. ¶ 22; Levison Decl. ¶ 18.11 Indeed, all 

physicians other than abortion providers are permitted to exercise professional judgment as to 

whether a procedure can safely be postponed, and to rely on the guidance of leading professional 

organizations in so doing. Schutt-Aine 2d Decl. ¶¶ 48–50, 53–54. The Medical Board and Texas 

Medical Association agree that such judgment and reliance are appropriate. Id. Providers simply 

seek the same ability to care for their patients. Cf. Robinson v. Marshall, No. 2:19cv365-MHT, 

2020 WL 1659700, at *3 (M.D. Ala. Apr. 3, 2020) (ordering that “[t]he reasonable medical 

judgment of abortion providers will be treated with the same respect and deference as the 

judgments of other medical providers” and that “decisions will not be singled out for adverse 

consequences because the services in question are abortions or abortion-related”). 

D. Defendants’ Arguments That This Court Lacks Authority to Enter an Injunction Are 

Meritless. 

The Fifth Circuit has already held that “a justiciable controversy exists as to the 

[Defendant] health officials.” In re Abbott, 2020 WL 1685929, at *5 n.17. It has further held that 

Providers “have standing to sue on their own behalf because the [Executive Orders] ‘directly 

operates against them,’” id. (quoting Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 

62 (1976), and that consideration of Providers’ third-party standing may be deferred, id. 

Defendants’ remaining jurisdictional argument—that sovereign immunity bars Providers’ 

claims against the Governor and Attorney General—is meritless. Providers’ claims against the 

Governor are proper because he may modify, amend, rescind, or supersede the Executive Orders 

11 The singling out of abortion providers is further underscored by the fact that crisis 

pregnancy centers—which provide ultrasounds of no medical or diagnostic value—are advertising 

on their websites that they are providing ultrasounds during the COVID-19 pandemic. Nguyen 2d 

Decl. ¶¶ 16–17. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 28 of 34
24 

pursuant to their terms, Tex. Exec. Order No. GA-09 (Mar. 22, 2020) at 2, ECF No. 1-2; Tex. 

Exec. Order No. GA-15 (Apr. 17, 2020) at 2, Ex. 21, and his statutory authority, Tex. Gov’t Code 

Ann. § 418.012. By exercising his authority to implement one Executive Order after another, the 

Governor has directly and continuously injured Providers and their patients. See City of Austin v. 

Paxton, 943 F.3d 993, 998, 1000, 1002 (5th Cir. 2019) (holding that the requirements of Ex parte 

Young are satisfied when a state official has the ability to “compel or constrain” plaintiffs’ actions). 

Similarly, the Attorney General has authority to prosecute Providers and their agents at the 

request of local prosecutors for alleged violations of the Executive Orders. Tex. Gov’t Code Ann. 

§ 402.028(a). His public threat to do so “with the full force of the law,” ECF No. 1-1, directly 

caused Providers to cancel hundreds of abortion appointments and cease providing nearly all 

abortion care, Pls.’ Second Mot. for TRO at 3, ECF No. 56. Cf. City of Austin, 943 F.3d at 1001 

(noting that Ex Parte Young applied where Attorney General sent plaintiff letters threatening to 

enforce a statute and thus constrained plaintiff’s conduct). 

II. PLAINTIFFS’ PATIENTS WILL SUFFER IRREPARABLE HARM ABSENT A 

PRELIMINARY INJUNCTION. 

Plaintiffs’ patients will suffer severe and irreparable harm in the absence of a preliminary 

injunction. The Executive Orders violate their constitutional right to end a pregnancy. It is well 

settled that, where a plaintiff establishes a constitutional violation, no further showing of 

irreparable injury is necessary. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Opulent Life Church 

v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012); Deerfield Med. Ctr. v. City of Deerfield 

Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981). Moreover, the Executive Orders expose 

Providers’ patients to increased health and safety risks, supra pp. 4–5, and cause them to suffer 

physical discomfort, emotional distress, and loss of privacy, supra p. 5, as a consequence of having 

to continue unintended pregnancies. This “disruption or denial of . . . patients’ health care cannot 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 29 of 34
25 

be undone after a trial on the merits.” Planned Parenthood of Kan. & Mid-Mo. v. Andersen, 882 

F.3d 1205, 1236 (10th Cir. 2018) (internal quotation marks omitted), cert. denied sub nom. 

Andersen v. Planned Parenthood of Kan. & Mid-Mo., 139 S. Ct. 638 (Mem.) (2018); accord

Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014); Planned 

Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 796 (7th Cir. 2013). 

III.THE BALANCE OF HARMS AND PUBLIC INTEREST SUPPORT PRELIMINARY 

INJUNCTIVE RELIEF. 

As explained above, Providers’ patients will continue to experience severe and irreparable 

harm in the absence of a preliminary injunction. Supra pp. 3–9, 19–23. Defendants, on the other 

hand, will suffer no harm from such an injunction because the Executive Orders’ application to 

abortion fails to actually serve Defendants’ asserted public health interests. Supra pp. 9–12, 19–

22. Thus, the balance of harms weighs in favor of a preliminary injunction. Likewise, the Fifth 

Circuit has made clear that “the grant of an injunction will not disserve the public interest” where, 

as here, the “injunction is designed to avoid constitutional deprivations.” Jackson Women’s Health 

Org., 940 F. Supp. 2d at 424; see also Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 

(5th Cir. 1996). Finally, preserving abortion access will actually aid the response to COVID-19. 

See supra pp. 9–12. 

CONCLUSION 

For the foregoing reasons and those set forth in prior filings designated by Plaintiffs, this 

Court should grant Plaintiffs’ motion for a preliminary injunction. 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 30 of 34
26 

Dated: April 18, 2020 

Respectfully submitted, 

/s/ Patrick J. O’Connell

Patrick J. O’Connell 

Texas Bar No. 15179900 

Law Offices of Patrick J. O’Connell PLLC 

5926 Balcones Dr., Ste. 220 

Austin, Texas 78731 

(512) 852-5918 

pat@pjofca.com 

Attorney for All Plaintiffs 

Julie Murray* 

Hannah Swanson* 

PLANNED PARENTHOOD FEDERATION 

OF AMERICA 

1110 Vermont Ave., NW Ste. 300 

Washington, D.C. 20005 

(202) 973-4800 

julie.murray@ppfa.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 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 31 of 34
27 

mduane@reprorights.org 

rmuqaddam@reprorights.org

fcocuzza@reprorights.org

Attorneys for Plaintiffs 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., Alamo City Surgery Center 

PLLC d/b/a Alamo Women’s Reproductive 

Services, and Houston Women’s 

Reproductive Services 

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 Plaintiffs Whole Woman’s 

Health and Whole Woman’s Health Alliance

Anjali Salvador, TX Bar No. 24110324* 

Andre Segura, TX Bar No. 24107112* 

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 

bamiri@aclu.org 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 32 of 34
28 

Attorneys for Plaintiff Houston Women’s 

Center 

*Admitted Pro Hac Vice

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 33 of 34
29 

CERTIFICATE OF SERVICE 

I certify that on this 18th day of April, 2020, I filed a copy of the foregoing with this Court’s 

CM/ECF system, which will serve a copy on the following individuals:

Heather Gebelin Hacker 

Andrew Bowman Stephens 

Benjamin S. Walton 

Office of the Attorney General of Texas 

209 W. 14th Street 

7th Floor 

Austin, TX 78701 

(512) 836-2540 

(512) 474-2697 (fax) 

heather.hacker@oag.texas.gov

andrew.stephens@oag.texas.gov 

benjamin.walton@oag.texas.gov 

John J. Butrus, Jr. 

Dallas County District Attorney's Office 

133 N. Riverfront Blvd LB 19 

Dallas, TX 75207 

(214) 653-3691 

(214) 653-2899 (fax) 

john.butrus@dallascounty.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) 

justin.pfeiffer@fortbendcountytx.gov 

Ruben Gabriel Duarte 

El Paso County Attorney's Office 

500 E. San Antonio - Rm 503 

El Paso, TX 79901 

(915) 546-2083 

rduarte@epcounty.com 

Adam Arthur Biggs 

Special Litigation Counsel 

General Litigation Division 

P.O. Box 12548, Capitol Station 

Austin, TX 78711-2548 

(512) 463-2120 

(512) 320-0667 (fax) 

adam.biggs@oag.texas.gov

David S. Lill 

Lill Firm, P.C. 

4407 Bee Caves Road 

Suite 111 Building 1 

Austin, TX 78746 

(512) 330-0252 

(844) 402-9814 (fax) 

david@lillfirm.com 

Elizabeth Murrill 

Joseph Scott St. John 

Louisiana Dept. of Justice 

1885 North Third Street 

Baton Rouge, LA 70804 

225-456-7544 

murrille@ag.louisiana.gov 

stjohnj@ag.louisiana.gov 

/s/ Julie Murray 

Julie Murray 

Case 1:20-cv-00323-LY Document 89 Filed 04/18/20 Page 34 of 34