Providing abortion care services is the largest part of our work, and that work could not be possible in the Midwest and South without a strong commitment to an ambitious litigation strategy. Because we work in states with the most regulations on abortion and endure continuous attacks from anti-abortion lawmakers, part of our work at WWHA is to take bold action with advocacy and litigation. We are involved in national and state level repro movement coalitions and work closely with other abortion providers, funds, and allies as co-plaintiffs in these cases. Here’s a look at the lawsuits we are currently involved in. In each lawsuit, we are represented by the Center for Reproductive Rights or The Lawyering Project.
Texas
Whole Woman’s Health, Whole Woman’s Health Alliance, et al. v. Young
In December 2016, WWH and WWHA filed a lawsuit challenging a Texas law which specified the methods for the treatment and disposition of embryonic and fetal tissue remains by burial or the scattering of ashes following certain abortion procedures. An injunction stopping the enforcement of the law was immediately issued and reiterated by the District Court in September 2018, where the judge ruled that the law was unconstitutional under the 14th Amendment and imposed a significant burden on women seeking abortions. The State appealed and the case had been on hold by the Fifth Circuit Court of Appeals since October 2019, pending the Supreme Court’s decision in June Medical Services v. Gee. Since that decision’s release, the Fifth Circuit has asked for supplemental briefing, which was submitted in July 2020. The Fifth Circuit has yet to rule on its findings and is most likely waiting for a decision from the Supreme Court in the Dobbs v. Jackson Women’s Health Organization.
Whole Woman’s Health Alliance, et al. v. Paxton
In June 2018, WWHA challenged a wide variety of state regulations targeting abortion providers, including laws that deny abortion patients the benefits of scientific progress, mandatory disclosure and waiting period laws, parental involvement laws, and evoking criminal penalties. Over three years later, we are still waiting for the District Court Judge to rule on the State’s motions to dismiss. This lawsuit has been branded The People’s Lawsuit to unite co-plaintiffs and challenge the web of unconstitutional abortion restrictions.
Indiana
Whole Woman’s Health Alliance, et al. v. Rokita
In June 2018, WWHA filed a lawsuit against a comprehensive list of regulations targeted at abortion providers. These laws include a telemedicine ban, in-person examination and counseling requirements, as well as an ultrasound requirement, and required physical plant specifications. The District Court ruled that the licensing law violated a patient’s due process and equal protection rights, as well as imposed a substantial burden to women seeing abortion care. The State appealed and arguments were heard in March 2021. The second phase of the trial took place on June 23-26, 2021, where additional arguments against regulations targeting abortion providers were heard. On August 10, 2021, the District Court struck down many of the regulations on the grounds that each violated the 14th Amendment including the telemedicine ban, the physician-only ban to medication abortions and mandatory disclosure requirements. On September 10, 2021, the Seventh Circuit ordered that several of the laws remain in place while the appeal on the merits moves forward. On January 13, 2022, the Court ruled to postpone its decision pending the U.S. Supreme Court’s resolution of Dobbs v. Jackson Women’s Health Organization.
Past Court Victories
At the U.S. Supreme Court on June 27, 2016, a landmark victory was delivered in Whole Woman’s Health v. Hellerstedt, where WWH challenged a 2013 Texas law requiring all abortion providers in the state to obtain local hospital admitting privileges. As a result, providers across the state were shuttered. SCOTUS struck down the law as unconstitutional and protected the constitutional right to choose abortion as well as affirmed the undue burden test by which all state regulations limiting women’s fundamental right to choose abortion must be evaluated under. The undue burden test, as articulated by the Supreme Court in WWH, states that a law burdening abortion must further a valid state interest and that its benefits afforded must outweigh the burdens imposed on women if enforced. Learn more about our historic SCOTUS win.
In Virginia, our litigation challenges, in conjunction with advocacy efforts with the Commonwealth’s legislature, resulted in the enactment of the Reproductive Health Protection Act in July 2020 and the repeal of a wide variety of regulations targeting abortion providers and placing an unnecessary burden on woman’s access to abortion care. This includes the 24-hour waiting period, physician-only requirement and required ultrasound.
In Indiana, WWHA challenged the State’s denial of a license to our South Bend clinic all the way to the Seventh Circuit Court of Appeals, where it ruled in a unanimous decision to uphold the District Court’s decision ordering the State to issue a license or treat the facility as if it had one. As a result, WWH of South Bend remains open and continues to provide excellent care to its patients.
In May 2021, WWHA challenged several abortion restrictions enacted by the state of Indiana during its recent legislation session. These regulations include forcing healthcare providers to share false and misleading information with their patients about “reversing” a medication abortion and a ban on the use of telemedicine to obtain a medication abortion. The Judge subsequently decided to hear arguments only on the “Abortion Reversal Disclosure Requirement” as the other two regulations are being contested in our other Indiana case (WWHA v. Rokita). On June 30, 2021, the Court granted WWHA’s request for a preliminary injunction and blocked the enforcement of the Required Disclosure ruling that there was no evidence to show that it was not “truthful and not misleading and (was) not a reasonable regulation of the practice of medicine.”
Disappointing Losses
Whole Woman’s Health, et al. v. Austin Reeve Jackson, et al.
On July 13, 2021, WWH and WWHA joined a consortium of other providers, abortion funds, and clergy members and filed suit challenging Texas Senate Bill 8 and requesting it be declared unconstitutional and enjoined from going into effect on September 1, 2021. SB 8 bans abortion at approximately six weeks in pregnancy and constitutes a pre-viability ban in direct defiance of Roe v. Wade and nearly fifty years of unbroken court precedent protecting the c constitutional right to an abortion. A law of this nature has never been seen before because it affords private citizen enforcement against anyone who aids and abets an abortion. On August 30th, lawyers filed an emergency request with the U.S. Supreme Court (SCOTUS) asking it to block SB 8 before September 1st. SCOTUS denied the request, citing the “complex and novel” procedural questions it presented and forcing almost all abortion in Texas to come to an abrupt stop. The case was returned to the Fifth Circuit Court of Appeals to adjudicate the appeal, who On July 13, 2021, WWH and WWHA joined a consortium of other providers, abortion funds, and clergy members and filed suit challenging Texas Senate Bill 8 and requesting it be declared unconstitutional and enjoined from going into effect on September 1, 2021. SB 8 bans abortion at approximately six weeks in pregnancy and constitutes a pre-viability ban in direct defiance of Roe v. Wade and nearly fifty years of unbroken court precedent protecting the c constitutional right to an abortion. A law of this nature has never been seen before because it affords private citizen enforcement against anyone who aids and abets an abortion. On August 30th, lawyers filed an emergency request with the U.S. Supreme Court (SCOTUS) asking it to block SB 8 before September 1st. SCOTUS denied the request, citing the “complex and novel” procedural questions it presented and forcing almost all abortion in Texas to come to an abrupt stop. The case was returned to the Fifth Circuit Court of Appeals to adjudicate the appeal, who subsequently issued a briefing schedule that would not allow the case to be heard until at least December. In response, on September 23rd, a petition for writ of certiorari before judgment was filed with SCOTUS asking to hear the appeal on an expedited basis. In the interim, the Biden Administration has intervened and the Department of Justice (DOJ) filed a suit against the State of Texas challenging SB 8 on September 9th arguing that it is blatantly unconstitutional. Seven days later, the DOJ filed a request to block the enforcement of the law. On October 6th, a Texas District Court Judge issued an order blocking SB 8, stating that “the State set an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” The injunction went into effect immediately and blocked the law in its entirety. On October 8th, the State of Texas filed an appeal to the Fifth Circuit requesting that the preliminary injunction be stayed pending resolution of the appeal. In under four hours, the Fifth Circuit granted the State’s temporary administrative stay motion and SB 8 is now back in effect. The DOJ appealed to SCOTUS for an injunction to block the law and to agree to hear oral arguments this term to decide whether the law is constitutional. On November 1st, SCOTUS heard oral arguments for both cases, but declined to block SB 8’s enforcement. On December 13, 2022, the Court dismissed the DOJ’s case and ruled that that the challenges in Jackson could proceed against some of the defendants remanding the case to the lower courts. The Fifth Circuit held a hearing on January 7, 2022, and sent the case to the Texas Supreme Court. On January 20, 2022, SCOTUS denied The U.S. Supreme Court denied a request to allow the case to proceed in district court. The Texas Supreme Court held a hearing in February and ruled on March 11, 2022 that the remaining defendants (including the medical board and other state licensing officials) do not have the authority to enforce SB 8 and; therefore, no further relief can be pursued in the case.
Whole Woman’s Health, et al. v. Paxton
WWH filed a suit in July 2017 challenging a Texas law which banned the use of dilation and evacuation after WWH filed a suit in July 2017 challenging a Texas law which banned the use of dilation and evacuation after approximately 15 weeks of pregnancy. This procedure, known as a D&E (dilation and evacuation), is the most common practice among physicians and is backed by medical science as being the safest and preferable standard of care for abortions after 15 weeks. A District Court ruled that the law was unconstitutional as it placed an undue burden on all patients. The State appealed and the Fifth Circuit Court of Appeals postponed a decision until the U.S. Supreme Court resolved June Medical Services v. Gee. Despite the Fifth Circuit denying the State’s request to lift the injunction in 2019, a year later the Court decided to rehear the case before its entire panel of judges on January 21, 2021. On August 18, 2021, the Fifth Circuit dealt a major blow to abortion access, allowing Texas to criminalize the D&E procedure for abortion. They are the first federal court in the U.S. to uphold a ban on this procedure.
