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Whole Woman’s Health v. Smith (Texas)

(W.D. Tex. No. 1:16-CV-1300 / 5th Cir. Nos. 18-50484; 18-50730 / Sup. Ct. No. 18-622)

This case challenges a set of Texas laws that require healthcare providers to bury or cremate embryonic and fetal tissue following an abortion or miscarriage, regardless of their patients’ wishes. These laws violate the Constitution’s guarantee of personal liberty to act in accordance with one’s own beliefs about developing human life. Prior to their enactment, Texas law permitted a variety of disposition options sufficient to accommodate the wide range of beliefs—informed by diverse religious convictions, cultural traditions, and personal experiences—held by individuals who have abortions and miscarriages. If permitted to take effect, the challenged laws would force all Texans to act in accordance with a State-sanctioned belief system.

A federal district court permanently enjoined enforcement of these laws in September 2018. The case is now on appeal.

Plaintiffs: Whole Woman’s Health; Alamo City Surgery Center; Brookside Women’s Medical Center; Whole Woman’s Health Alliance; Lendol L. Davis, M.D.; Bhavik Kumar, M.D.

Defendant: Executive Commissioner of the Texas Health and Human Services Commission, in his official capacity

Co-counsel: Center for Reproductive Rights; Morrison & Foerster LLP; Patrick J. O’Connell


Timeline and Key Documents:

December 12, 2016       Plaintiffs file Complaint

January 27, 2017           District court enters Preliminary Injunction

March 13, 2017             Defendant files Answer to Complaint

December 22, 2017       Plaintiffs file First Amended Complaint

January 5, 2018             Defendant files Answer to First Amended Complaint

January 29, 2018           District court enters second Preliminary Injunction

July 16-20, 2018            Trial

September 5, 2018        District court enters Permanent Injunction

Defendant files Notice of Appeal

September 5, 2019        Court of appeals hears oral argument




Brief for Appellant (Executive Commissioner, Texas Health & Human Services Commission)

Brief for Appellees (Whole Woman’s Health, et al.)

Amici Curiae Brief for Organizations Dedicated to the Fight for Reproductive Justice

Amici Curiae Brief for American College of Obstetricians and Gynecologists, American Public Health Association, and American Medical Association

Amici Curiae Brief for Biomedical Ethicists

Amici Curiae Brief for Catholics for Choice and Other Faith-Based Organizations

Amici Curiae Brief for Constitutional Law Scholars

Reply Brief for Appellant