Case: 21-50949 Document: 00516050234 Page: 1 Date Filed: 10/11/2021

No. 21-50949

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

STATE OF TEXAS,
Defendant-Appellant,

ERICK GRAHAM, JEFF TULEY, MISTIE SHARP,

Intervenor Defendants-Appellants.

On Appeal from the United States District Court for

the Western District of Texas, Austin Division
Case No. 1:21-cv-00796

BRIEF OF PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL

HEALTH SERVICES, PLANNED PARENTHOOD SOUTH TEXAS
SURGICAL CENTER, COMPREHENSIVE HEALTH OF PLANNED
PARENTHOOD GREAT PLAINS, PLANNED PARENTHOOD OF
ARKANSAS & EASTERN OKLAHOMA, PLANNED PARENTHOOD
CENTER FOR CHOICE, AND PLANNED PARENTHOOD OF THE
ROCKY MOUNTAINS AS AMICI CURIAE IN SUPPORT OF
PLAINTIFF-APPELLEE AND DENIAL OF STAY

DIANA O. SALGADO ALAN E. SCHOENFELD

JENNIFER SANDMAN Counsel of Record
CARRIE Y. FLAXMAN WILMER CUTLER PICKERING
PLANNED PARENTHOOD FEDERATION HALE AND DORR LLP
OF AMERICA, INC. 7 World Trade Center
123 William Street, 10th Floor 250 Greenwich Street
New York, NY 10038 New York, NY 10007
(212) 937-7294
October 11, 2021 [email protected]
 Case: 21-50949 Document: 00516050234 Page: 2 Date Filed: 10/11/2021

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

The following listed persons and entities as described in the fourth sentence

of Circuit Rule 28.2.1 have an interest in the outcome of this case. These

representations are made so that members of the Court may evaluate possible

recusal.

Amici Curiae
Planned Parenthood of Arkansas & Eastern Oklahoma
Planned Parenthood Center for Choice
Planned Parenthood of Greater Texas Surgical Health Services
Planned Parenthood South Texas Surgical Center
Planned Parenthood of the Rocky Mountains
Comprehensive Health of Planned Parenthood Great Plains

Attorneys for Amici Curiae

Wilmer Cutler Pickering Hale and Dorr LLP, Counsel
Alan E. Schoenfeld
Sarah Beigbeder Petty
Rachel Bier
Alicia M. Coneys
Caitlin Devereaux
Nina B. Garcia
Asma S. Jaber
Charlotte E. Mostertz
Michaela P. Sewall
Labdhi Sheth

Planned Parenthood Federation of America, Inc., Counsel

Diana O. Salgado
Jennifer Sandman
Carrie Y. Flaxman

/s/ Alan E. Schoenfeld

ALAN E. SCHOENFELD

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STATEMENT PURSUANT TO FED. R. APP. P. 29(a)(4)(E)

No party’s counsel authored this brief in whole or in part. No party

contributed money to fund this brief. No person other than amici, their members,

or their counsel contributed money to fund this brief.

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TABLE OF CONTENTS

Page
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES ............................i

STATEMENT PURSUANT TO FED. R. APP. P. 29(a)(4)(E) ............................... ii

INTEREST OF AMICI .............................................................................................. 1

I. PATIENTS IN TEXAS ARE BEING DENIED THEIR RIGHT TO AN

ABORTION......................................................................................................... 1

II. PATIENTS ENCOUNTER OBSTACLES TO RECEIVING OUT-OF-

STATE CARE ..................................................................................................... 5

III. SB8 TRAUMATIZES HEALTHCARE PROVIDERS................................................ 10

CONCLUSION ........................................................................................................ 12

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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INTEREST OF AMICI

Amici provide comprehensive reproductive health care in Texas and nearby

States. Through a series of narratives—based on contemporaneous interviews by

Planned Parenthood staff—this brief conveys SB8’s real-life impact on Texas

patients being denied, and Planned Parenthood staff who are now prohibited from

providing, the abortions patients need.

I. PATIENTS IN TEXAS ARE BEING DENIED THEIR RIGHT TO AN ABORTION

F.P.1 is a sixteen-year-old student denied an abortion under SB8. She is

unsure whether she can travel out-of-State. F.P.’s mother became pregnant as a

teenager herself and said she will “support whatever [F.P.] decides.” F.P.’s mother

said her daughter is “very bright” and “has so much talent.” She sees a “face of

anguish” on F.P. and knows she is not ready to have a baby.

F.P.’s mother does not have a stable home. Without financial assistance to

travel, F.P.’s mother said F.P. “would be forced to do something that she’s not

ready for”: become a parent.

***

D.O. is the single mother of a kindergartener and is balancing work and

school. She was just out of a relationship with her daughter’s father who “was just

really bad … very abusive.” The abuse during her first pregnancy “was horrible”

1
All initials are pseudonyms to protect interviewees’ privacy.

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and “after I had [my daughter], it was even worse.” She “finally got away” and

“was building [her] life.” But she said, “there was just no way that I could

physically, mentally, emotionally go through that again.” Her daughter’s father

“doesn’t pay child support. He sees [their daughter] maybe once a month.” She

said, “I just don’t think that I can take it again.”

D.O. could not get an abortion in Texas under SB8. She was filled with

“fear of if I’m actually going to be able to go through this, because so many factors

have to go around: me missing work, having to make sure that she has somebody

to take care [of her daughter], and then probably having to explain the situation to

somebody because I need somebody to take care of her, and then the cost. … It

makes me really angry. It makes me really sad.”

***

B.G. works two jobs, for 55-60 hours weekly. She will soon graduate from

college and has a job offer in engineering, which she sees as a path out of poverty;

pregnancy would be incompatible with the job’s physical and travel requirements.

B.G. said she is not emotionally or financially prepared to have a child because she

is the primary provider for herself, her mother, and younger siblings. B.G. grew up

with a single mother who was sometimes “very emotionally unstable just because

… she had to go do so much for all of us. … We didn’t receive that much love

when I was a young kid. … I really don’t want to [repeat that process].”

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After learning she could not have an abortion in Texas, B.G. felt “very

vulnerable” and said it was “very stressful [and] very hard.” She is concerned

about the travel costs, in addition to her regular bills.

***

E.M. tracks her periods on a phone application but they are irregular, and her

pregnancy was “further along … than [she] anticipated.” Because of SB8, her only

option for an abortion is to leave Texas.

E.M. said, “I throw up every day. … It is awful.” Her “throat is burned”

and she struggles to “get through work.”

She is concerned taking time off work to travel for the abortion could affect

her retail job since there are “blackout dates for three months where [she] can’t ask

for time off.” She struggles to cover expenses and lives paycheck-to-paycheck.

Only E.M.’s partner knows she is pregnant. E.M. thinks her partner suffers

from undiagnosed mental illness. She is not sure whether he will travel with her,

and she cannot ask anyone else because the abortion is “not something [she] really

want[s] to disclose to [] family.” She considered using a ride service/taxi but the

idea “is scary” because she would be in a car alone “with a stranger [as she is]

coming off anesthesia.”

***

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Clinic staff also report stories of patients affected by SB8. C.Y. in Houston

recalls a patient with five children (two of whom have disabilities) who had

embryonic cardiac activity at just five weeks, four days pregnant. The patient

frantically pleaded, “What am I going to do, what is going to happen now?”

Another patient who cannot read or write told staff that going out-of-State would

be impossible. A thirteen-year-old patient had to get a judicial bypass before

scheduling an abortion, which delayed her—embryonic cardiac activity was

detected at six weeks and three days. She cannot leave Texas without her parents

knowing because she cannot drive.

E.V. in Houston cried with her first patient after SB8 passed. The patient

had detectable embryonic cardiac activity on the day of her scheduled procedure

after having none the day before.

E.V. also spoke of a minor patient whose mother only spoke Spanish.

Neither the mother nor the patient had been to another State and could not

understand why they needed to leave Texas for an abortion or what would be

required.

A.S., in Dallas, recalled a patient who was on probation and had no idea how

she could leave the State.

K.D. had a patient who “put oils in her vagina” to try to terminate her

pregnancy and worries SB8 will force more people into “back-alley ways.”

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I.O., in Houston, spoke of a twelve-year-old patient who came in with her

mother, a single working mother with other children. The mother said they could

not travel out-of-State—they had barely made it to the Texas health center. The

twelve-year-old said, “Mom, it was an accident. Why are they making me keep

it?”

L.D., a San Antonio physician, had a patient who was undocumented and

felt unsafe traveling out-of-State. She would likely be forced to carry her

pregnancy to term.

II. PATIENTS ENCOUNTER OBSTACLES TO RECEIVING OUT-OF-STATE CARE

H.S. has two young children and recently separated from her husband. H.S

“couldn’t afford another [child]” and “do[es]n’t want to bring a child into the

world like this.” She could not get a health-center appointment until a week after

the home pregnancy test, and a hurricane caused further delay. At her

appointment, she was six weeks pregnant with embryonic cardiac activity. The

earliest out-of-State appointment was in Tulsa. She drove nine hours overnight

and booked a motel to sleep for a few hours.

***

W.M. has hyperemesis gravidarum; she cannot keep food down “for days at

a time.” W.M. and her partner want to afford the best life possible for their young

daughter. She thinks SB8 is “forcing women into situations to have more than one

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child when they can’t possibly provide” financially. She believes abortion is

sometimes “the most responsible … or right thing to do.”

***

T.K. suffers from a chronic disease for which she has been unable to get

medication for eight months. She fears the stress of the pregnancy “would

probably kill [her].”

T.K. said she is not financially stable enough to raise a child. Having grown

up in poverty, she “[doesn’t] want that cycle to happen again.” She noted that

baby formula costs $18 per canister but she barely earns over $20,000 a year.

As a child, T.K. was sexually abused in the care of extended family. She

would not trust anyone to care for her child given the abuse she suffered. She was

relieved to secure an out-of-State abortion, but was worried that because of SB8,

“they’d be waiting to drag [her] off to jail when [she] got here because [she’s] from

Texas.”

Had she not been able to get an abortion, she would “be looking online to

see if there’s something [she] could eat that would [terminate the pregnancy], or

throw [herself] down the stairs.”

***

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J.T. is in her mid-thirties with seven children, and recently lost employment

when they contracted COVID-19. She explained that she “can’t have another

child” and that her “seven children come first.”

J.T. was too far along to have an abortion in Texas and considered buying

“pills” online. With Mississippi appointments booking nine weeks out, J.T. woke

up at 4 a.m. to drive six hours to Oklahoma. She split up her children among

various caretakers. She said that hotel, food, and gas “took away over half of what

I make in the month. … I looked up my bank account before I walked in [to the

clinic].” She also said had she gone to a clinic closer to home, “I could be done

and making dinner for my children.”

***

K.S. works in sales and attends management school. SB8 forced her to

travel to Oklahoma.

She and her husband support many family members on a monthly income of

under $2000, but had to take several days of unpaid leave to make the “scary” 10-

hour drive to Oklahoma with their infant, reaching their hotel at midnight. They

had to drive through the night again to get home after the abortion.

***

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T.I. recently earned her MBA and works full-time. T.I. “was in utter shock,”

upon learning she was pregnant. “[She] use[d] protection and … never had any

scares before.”

Although eligible for an abortion in Texas, T.I. traveled to Oklahoma due to

anxiety caused by SB8 about “getting found out by the State of Texas.” She also

“didn’t want this on [her] bank statements, so [she] sold miscellaneous items in

[her] house to have enough cash.” She emphasized, “It is a very scary time.”

***

Some patients have encountered police while traveling to have an out-of-

State abortion, adding to their stress. R.T. was pulled over on her way to

Oklahoma. She said, “It was very scary. [The police] made my boyfriend get out

of the car, and my boyfriend is African American … . I was so scared. He asked

me where I was going, and I told him to Planned Parenthood. I have never driven

here, I don’t know the rules. … I was in a rental car. … But now he [was] saying,

‘which Planned Parenthood?’ I thought, ‘what do you want me to say? That I am

going to get an abortion?’” G.O. was also stopped; the police officer asked her,

“all the way from Dallas to Oklahoma for a doctor’s appointment?” She responded

that it was “personal.”

***

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B.Z. made an appointment at an “options clinic” that was (unbeknownst to

her) against abortion for a pregnancy consultation. The staff told her she needed a

sonogram, but could not have it performed for one week. They did not tell her that

this delay might make her ineligible for an abortion under SB8. At her second

appointment at the options clinic, B.Z. was exactly six weeks pregnant and

suffering from extreme morning sickness. B.Z. said, “[The clinic staff] didn’t care

if I wanted to or could have a baby. She wasn’t even worried about how I was so

sick.”

B.Z. was diagnosed with hyperemesis gravidarum at an emergency room.

The physician told her that it could be a difficult pregnancy, but that leaving Texas

was her only option if she wanted an abortion. “It was nerve wracking. How am I

going to handle the drive? Can I make it there without throwing up in the car? …

[W]hat happens if something goes wrong in a State I’ve never been to, with my

mom so far away?” She estimates the travel and procedure cost her $800, which

she paid out-of-pocket to maintain her privacy from family members on her

insurance plan. She missed almost two weeks of work due to illness from the

pregnancy. B.Z. said: “I have a vision of what I want my life to look like … . If I

want this vision of my life to happen, being a single mother for a man [who won’t

be around] is not what I deserve.”

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Planned Parenthood staff in Oklahoma and Colorado also reported the

following stories:

S.W. had one Texas patient who got pregnant right after giving birth, and

another who had been raped and was terrified that she would be unable to get an

appointment.

Physician C.Z. reports of a patient who flew into Denver, rented a car to

drive to the clinic in Fort Collins (where the earliest appointment was available),

only to discover at her appointment that she had a complicating factor, which

required her to drive back to Denver to have the abortion. The Denver staff

squeezed her in that day so that she could have an abortion in time to make her

return flight.

Nurse practitioner T.W. saw a young teen who came from Texas to

Oklahoma after being raped and impregnated by her father. Unfortunately, the

family member taking care of her lacked the guardianship forms to be able to

consent to the abortion, and they had to turn her away.

III. SB8 TRAUMATIZES HEALTHCARE PROVIDERS

C.Y. and her colleagues feel helpless, admitting they cry after nearly every

patient they turn away; this is the hardest job she has ever had. I.O. says the

inability to help her patients makes her feel like her heart “has been snatched out of

[her] chest.”

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A.N., a Houston physician, broke her arm on a Sunday evening and drove

herself to the ER so she could work on Monday because she could not risk

delaying care for patients.

K.D. says “it’s emotional, it’s hard” to “tell the patient they can’t get their

care.” I.O. despairs: “It’s heartbreaking. … We [don’t] know what happens to

these patients.”

Staff in neighboring States are also affected. Tulsa-based H.R. reports that

Texas patients now comprise the majority of their patients. Oklahoma staff are

working overtime to care for Texas patients denied abortions. H.R. says Texas

patients “com[e] with a sense of desperation.” The prolonged hours her team has

been working are not sustainable. C.Z. echoed concerns about the stress this puts

on staff in New Mexico and Colorado “[b]ecause the care is so intense.”

H.R. says clinicians cannot offer pain medication or sedation to patients who

must drive themselves home after the procedure. Supplies are depleting quickly

because they are providing extra menstrual and heating pads for the long drives

back to Texas.

According to T.W., “there is no family planning clinic a lot of days because

their abortion roster is so full right now.” T.W. also notes many patients speak

Spanish, but unlike providers in Texas, Oklahoma providers are not generally

bilingual.

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T.W. says the situation under SB8 is “dangerous.” Oklahoma nurses are

triaging patients by phone, including with potentially life-threatening ectopic

pregnancy. Some patients express concern about seeking care in Texas after an

out-of-State abortion if they experience complications. S.W. says patients ask,

“[Are we] going to get sued? What’s going to happen to [us]?” H.R. says, “I

started in abortion care twenty years ago. … [W]e are [now] in a worse place in

terms of our ability to treat patients … . In health care we are supposed to be

constantly … improving how we provide care. And that is not what is happening.

It’s worse. … And our patients feel it.”

T.W. says, “These Texas patients are uniformly terrified,” and SB8 “makes

women feel like there’s a bounty on their head for receiving health care. With a

$10,000 incentive to turn people in … it is endangering the lives of women.”

CONCLUSION

Texas’s motion for an emergency stay should be denied.

October 11, 2021 Respectfully submitted,

/s/ Alan E. Schoenfeld

DIANA O. SALGADO ALAN E. SCHOENFELD
JENNIFER SANDMAN Counsel of Record
CARRIE Y. FLAXMAN WILMER CUTLER PICKERING
PLANNED PARENTHOOD FEDERATION HALE AND DORR LLP
OF AMERICA, INC. 7 World Trade Center
123 William Street, 10th Floor 250 Greenwich Street
New York, NY 10038 New York, NY 10007
(212) 937-7294
[email protected]

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CERTIFICATE OF COMPLIANCE

The foregoing brief complies with Fed. R. App. P. 27(d)(2)(A) because it

contains 2,578 words, excluding the portions exempted by Rule 32(f), according to

the word-count feature of the word-processing program with which it was

prepared. This brief also complies with the typeface requirements of Rule 32(a)(5)

and the type-style requirements of Rule 32(a)(6) because it has been prepared in a

proportionally spaced typeface using Microsoft Office for Microsoft 365 MSO in

14-point Times New Roman font.

/s/ Alan E. Schoenfeld

ALAN E. SCHOENFELD

CERTIFICATE OF SERVICE

I electronically filed the foregoing on October 11, 2021, using the Court’s

appellate CM/ECF system, which effected service on all counsel of record.

/s/ Alan E. Schoenfeld

ALAN E. SCHOENFELD