Whole Woman's Health v. David Lakey , 769 F.3d 285 ( 2014 )

Case: 14-50928 Document: 00512791273 Page: 1 Date Filed: 10/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 2, 2014
No. 14-50928
Lyle W. Cayce
Clerk
WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER;
KILLEEN WOMEN'S HEALTH CENTER; NOVA HEALTH SYSTEMS,
doing business as Reproductive Services; SHERWOOD C. LYNN, JR., M.D.,
on behalf of themselves and their patients; PAMELA J. RICHTER, D.O., on
behalf of themselves and their patients; LENDOL L. DAVIS, M.D., on behalf
of themselves and their patients,
Plaintiffs - Appellees - Cross-Appellants
v.
DAVID LAKEY, M.D., Commissioner of the Texas Department of State
Health Services, in his Official Capacity; MARI ROBINSON, Executive
Director of the Texas Medical Board, in her Official Capacity,
Defendants - Appellants - Cross-Appellees
Appeals from the United States District Court
for the Western District of Texas
Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Plaintiffs 1 filed this lawsuit seeking declaratory relief and permanent
injunctions against the enforcement of two recent amendments to Texas’s
1Plaintiffs in this lawsuit are some of the abortion providers in Texas: Whole
Woman’s Health; Austin Women’s Health Center; Killeen Women’s Health Center; Nova
Case: 14-50928 Document: 00512791273 Page: 2 Date Filed: 10/02/2014
14-50928
laws pertaining to the performing of abortions. See 2013 Texas House Bill
No. 2 (“H.B. 2”). 2 The lawsuit was filed in April 2014, and the district court
conducted a four-day bench trial August 4–7, 2014. Three weeks later, at
4:39 p.m. on August 29, 2014, the last business day before the ambulatory
surgical center provision would go into effect, the district court delivered its
opinion and issued a final judgment enjoining the admitting privileges
requirement and ambulatory surgical center provision of H.B. 2 as to all
abortion facilities in Texas. The district court also enjoined other specific
applications of H.B. 2. The district court opined that together these
requirements “create a brutally effective system of abortion regulation” that
is unconstitutional.
Appellants (collectively “the State”) appealed to the Fifth Circuit and
filed an emergency motion to stay the district court’s injunctions pending the
resolution of their appeal. Plaintiffs filed a response, the State replied, and
Health Systems d/b/a Reproductive Services; and Sherwood C. Lynn, Jr., M.D., Pamela J.
Richter, D.O., and Lendol L. Davis, M.D., on behalf of themselves and their patients.
Plaintiffs largely overlap with the plaintiffs in a previous challenge to H.B.
2. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp.
2d 891 (W.D. Tex. 2013). Whole Woman’s Health, Austin Women’s Health Center, Killeen
Women’s Health Center, and Dr. Richter all were plaintiffs in the prior lawsuit. Doctors
Lynn and Davis were not parties to the earlier proceeding, but Whole Woman’s Health and
Austin Women’s Health Center, respectively, sued on their behalf in Abbott. See Complaint
¶¶ 13–14, Abbott, No. 1:13-CV-862-LY (stating that clinics were suing “on behalf of” their
“physicians”). Reproductive Services was not a plaintiff in Abbott, but Dr. Richter, its
medical director, was a plaintiff in Abbott. See id. ¶ 21.
Lamar Robinson, M.D. was a named plaintiff in Abbott and was originally a named
plaintiff in this case. However, on June 3, 2014, he and former plaintiff Abortion
Advantage filed a Notice of Voluntary Dismissal. At oral argument in this case, the parties
advised the panel that Dr. Robinson voluntarily dismissed his claims because he obtained
admitting privileges at a hospital within thirty miles of the clinic at which he provided
abortions. Planned Parenthood, the largest provider of abortion services in Texas, is not a
party to this lawsuit, although it was a named plaintiff in Abbott.
2 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1–12, 2013 Tex. Sess. Law Serv.
4795–802 (West) (codified at Tex. Health & Safety Code Ann. §§ 171.0031, 171.041–.048,
171.061–.064, & amending §§ 245.010–.011; Tex. Occ. Code Ann. amending §§ 164.052 &
164.055).
2
Case: 14-50928 Document: 00512791273 Page: 3 Date Filed: 10/02/2014
14-50928
we heard oral argument on the motion to stay on September 12, 2014. We
GRANT, in part, and DENY, in part, the motion to stay the district court’s
injunctions pending appeal.
I.
On July 12, 2013, the Texas Legislature passed H.B. 2. The proposed
legislation for what became H.B. 2 was first filed in the Texas House of
Representatives in June 2013. The House considered the bill in two public
hearings. After three readings of the bill before the entire House, H.B. 2
passed with a 96-49 vote. 3 The bill was then sent to the Texas Senate, which
also held a public hearing and read the bill three times. 4 The Senate engaged
in a debate in which a number of senators gave speeches for and against the
bill, and ultimately passed H.B. 2 with a final vote of 19-11. 5
Two of H.B. 2’s provisions are at issue here. The first requires any
physician performing an abortion to have active admitting privileges at a
hospital within thirty miles of the location where the abortion is performed.
Tex. Health & Safety Code Ann. § 171.0031. The admitting privileges
requirement went into effect on October 31, 2013. 6 The second provision
3 83rd Leg., Second Called Session, House Journal at 63, 10 Jul. 2013, available at
http://www.journals.house.state.tx.us/hjrnl/832/pdf/83C2DAY03FINAL.PDF#page=13.
4 83rd Leg., Second Called Session, available at
http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=832&Bill=HB2.
5 83rd Leg., Second Called Session, Senate Journal at 46, 12 Jul. 2013, available at
http://www.journals.senate.state.tx.us/sjrnl/832/pdf/83S207-12-F.PDF#page=2.
6 The admitting privileges requirement was originally scheduled to take effect on
October 29, 2013, but the district court enjoined the requirement on October 28, 2013. See
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 734 F.3d
406, 409–10 (5th Cir. 2013). We stayed the district court’s injunction as to the admitting
privileges requirement on October 31, 2013, thus reinstating the admitting privileges
requirement except as to “abortion providers who applied for admitting privileges within
the grace period allowed under H.B. 2, but [were] awaiting a response from a hospital.”
3
Case: 14-50928 Document: 00512791273 Page: 4 Date Filed: 10/02/2014
14-50928
requires that all abortion clinics existing on or after September 1, 2014,
comply with the same minimum standards required of ambulatory surgical
centers. Tex. Health & Safety Code Ann. § 245.010. 7 The regulatory
standards for ambulatory surgical centers contain two main categories: (1)
physical plant, which includes architectural, electrical, plumbing, and HVAC
requirements, see 25 Tex. Admin. Code §§ 135.51–.56, and (2) operations,
which includes requirements for medical records systems, training, staffing,
and cleanliness, see 25 Tex. Admin. Code §§ 135.4–.17, 135.26–.27.
We are familiar with legal challenges to H.B. 2. In 2013, the district
court enjoined enforcement of H.B. 2’s admitting privileges requirement and
medication abortion provision, and the State challenged the injunction on
appeal. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
951 F. Supp. 2d 891, 909 (W.D. Tex. 2013). In that case, we granted in part 8
the State’s emergency motion to stay the permanent injunction, Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 734
F.3d 406, 419 (5th Cir. 2014), and later upheld both the admitting privileges
requirement and the medication abortion provision as facially constitutional.
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d
583, 600 (5th Cir. 2014).
7 These standards are codified at Tex. Health & Safety Code § 243.010. Given H.B.
2’s enactment date, July 12, 2013, clinics had fourteen months within which to comply with
these standards before the ambulatory surgical center provision became effective.
8 We granted a stay of the district court’s determination that the admitting
privileges requirement was facially invalid. We denied a request for a stay of the district
court’s decision to create a health exception to the medication abortion provision. In
denying the stay of the medication abortion provision, we noted that “we do not prejudge
the outcome of these issues on appeal. We conclude only that a stay of the injunction on
these grounds pending appeal is not appropriate.” Abbott I, 734 F.3d at 418. Indeed, at the
merits stage, we concluded that the statute regulating medication abortions did not facially
require a court-imposed exception. Abbott II, 748 F.3d at 600–04.
4
Case: 14-50928 Document: 00512791273 Page: 5 Date Filed: 10/02/2014
14-50928
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott (Abbott
II), 748 F.3d 583, 605 (5th Cir. 2014).
In the instant lawsuit, Plaintiffs challenge the admitting privileges
requirement, this time not on its face, but as applied to two specific clinics.
Whole Woman’s Health and Dr. Sherwood C. Lynn, Jr. challenge the
requirement as applied to the clinic operated by Whole Woman’s Health in
McAllen. Nova Health Systems and Dr. Pamela J. Richter challenge the
requirement as applied to the clinic operated by Reproductive Services in El
Paso. Plaintiffs also challenge the ambulatory surgical center provision as
unconstitutional on its face, and as applied to the clinics in McAllen and El
Paso, and as applied to medication abortion.
The district court’s judgment extended beyond Plaintiffs’ claims and
the relief requested. 9 Not only did the district court enjoin the admitting
privileges requirement as applied to the McAllen and El Paso clinics, as
Plaintiffs sought, the district court determined that the admitting privileges
requirement “create[d] an impermissible obstacle as applied to all women
seeking a previability abortion.” Whole Woman’s Health v. Lakey, No. 1:14-
CV-284-LY, 2014 WL 4346480 at *2 (W.D. Tex. Aug. 29, 2014) (hereinafter
[Whole Woman’s Health Judgment] (emphasis added); see also Whole
Woman’s Health v. Lakey, No. 1:14-CV-284-LY, slip op. at 4 (W.D. Tex. Aug.
29, 2014) (The two requirements “operate together to place an
unconstitutional undue burden on women throughout Texas.”).
As to the ambulatory surgical center provision, the district court’s
opinion and final judgment are unclear. The final judgment declares that the
ambulatory surgical center provision is unconstitutional “as to all abortion
9Moreover, the district court’s ruling contravened Abbott II, which had already
upheld the admitting privileges requirement as facially constitutional.
5
Case: 14-50928 Document: 00512791273 Page: 6 Date Filed: 10/02/2014
14-50928
facilities in the State” with two exceptions: (1) facilities already licensed and
meeting the minimum standards; and (2) all future abortion facilities
commencing operation after the effective date. Whole Woman’s Health
Judgment at *1. Confusingly, the judgment further declares that the
ambulatory surgical center provision is unconstitutional and that when
considered together with the admitting privileges requirement, “create[s] an
impermissible obstacle as applied to all women seeking a previability
abortion.” Id. at *2. In their briefs and at oral argument, the parties
expressed uncertainty as to whether the district court intended to invalidate
this provision on its face or, according to the earlier language, as applied to
some clinics in the state.
It is also unclear whether the district court specifically determined that
the provision is unconstitutional as applied to the McAllen and El Paso
clinics. While Plaintiffs made these as-applied challenges, the district court
did not directly address them in either the declarations section of its final
judgment or the conclusion of its opinion. 10 However, the district court
indicated in the introductory parts of its opinion and judgment that it
intended to do so. See Whole Woman’s Health Judgment at *1 (“[T]he . . .
ambulatory-surgical-center requirements of House Bill 2 as applied to [the]
clinic[s] in McAllen [and] El Paso . . . are unconstitutional”); Whole Woman’s
Health, slip op. at 4 (declaring that the ambulatory surgical center provision,
“as applied to the McAllen and El Paso clinics, place[s] an unconstitutional
undue burden on women”); id. at 16 (stating that the requirement, “as
applied to the Rio Grande Valley and El Paso clinics, [is] constitutionally
10A similar issue arose in the Abbott case, when the district court issued a judgment
broader in scope than the determinations in its opinion. Abbott I, 734 F.3d at 410 (“The
final judgment enjoined the medication abortions provision to a greater extent than the
court had indicated it would in its Memorandum Opinion.”). In that case, we narrowed the
injunction in the judgment. Id. at 419.
6
Case: 14-50928 Document: 00512791273 Page: 7 Date Filed: 10/02/2014
14-50928
impermissible”); see also id. at 19 (“In all other applications, the court finds
that the ambulatory-surgical-center requirement imposes an undue burden
on Texas women of reproductive age.”). We note that the broad judgment “as
applied to all women” logically would include the McAllen and El Paso clinics,
even though the district court did not specifically address in its conclusions
and judgment Plaintiffs’ as-applied claims for these locations.
To alleviate confusion and to fairly address the State’s emergency
motion and Plaintiffs’ response, we consider whether to stay injunctions of
both the admitting privileges requirement and the ambulatory surgical
center provision on their face—or in the district court’s words, “as applied to
all women in Texas”—and as applied to the McAllen and El Paso clinics. In
addition, we will address the injunction of the ambulatory surgical center
provision as applied to medication abortions. See Whole Woman’s Health
Judgment at *2.
II.
“Factual findings by the district court are typically reviewed for clear
error.” City of Alexandria v. Brown, 740 F.3d 339, 352 (5th Cir. 2014). The
district court found, after trial with witness credibility determinations, that
Texas had over forty abortion clinics prior to the enactment of H.B. 2, and
that after the ambulatory surgical center provision takes effect, only seven or
eight clinics will remain, representing more than an 80% reduction in clinics
statewide in nearly fourteen months, with a 100% reduction in clinics west
and south of San Antonio. The district court further found that there was no
credible evidence of medical or health benefit associated with the ambulatory
surgical center provision in the abortion context.
The district court also found: (1) the construction costs of bringing
existing clinics into compliance with the minimum standards for ambulatory
7
Case: 14-50928 Document: 00512791273 Page: 8 Date Filed: 10/02/2014
14-50928
surgical centers “will undisputedly approach 1 million dollars and will most
likely exceed 1.5 million dollars”; (2) “the cost of acquiring land and
constructing a new compliant clinic will likely exceed three million dollars”
for existing clinics that cannot comply due to physical space limitations; (3)
the enforcement of both challenged H.B. 2 provisions will increase women’s
travel distances to clinics; for example, 1.3 million women of reproductive age
in Texas will live more than 100 miles from a clinic, 900,000 women will live
more than 150 miles from a clinic, 750,000 women will live more than 200
miles from a clinic, and some women will live as far as 500 miles from a
clinic; (4) the burdens of increased travel combine with “practical concerns
includ[ing] lack of availability of child care, unreliability of transportation,
unavailability of appointments at abortion facilities, unavailability of time off
from work, immigration status and inability to pass border checkpoints,
poverty level, [and] the time and expense involved in traveling long
distances”; and (5) the remaining seven or eight clinics likely will not have
the capacity to perform 60,000–72,000 abortions per year in Texas.
III.
We consider four factors in deciding whether to grant a stay pending
appeal:
(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.
Abbott I, 734 F.3d at 410 (quoting Nken v. Holder, 556 U.S. 418, 425–26
(2009)). A stay “is not a matter of right, even if irreparable injury might
otherwise result to the appellant.” Nken, 556 U.S. at 427.
The State initially filed a motion to stay in this court and, shortly
thereafter, filed the same motion with the district court. The district court
8
Case: 14-50928 Document: 00512791273 Page: 9 Date Filed: 10/02/2014
14-50928
denied the motion “for substantially the reasons stated in its memorandum
opinion.” Plaintiffs do not object to the order in which the State filed its
motions and agree that the present motion is properly before us. See Abbott
I, 734 F.3d at 410.
IV.
“Before viability, a State may not prohibit any woman from making
the ultimate decision to terminate her pregnancy.” Gonzales v. Carhart, 550
U.S. 124, 146 (2007) (internal quotation marks omitted). Nor may a State
“impose upon this right an undue burden, which exists if a regulation’s
purpose or effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.” Id. (internal quotation
marks omitted); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 846 (1992)). To determine the constitutionality of a state law, we ask
“whether the Act, measured by its text in this facial attack, imposes a
substantial obstacle to . . . previability[] abortions.” Carhart, 550 U.S. at 156.
Following Carhart and Casey, our circuit conducts a two-step approach,
first applying a rational basis test, then independently determining if the
burden on a woman’s choice is undue. See Abbott II, 748 F.3d at 593–94, 597
(“Even though the state articulated a rational basis for the law . . . [Plaintiff]
could succeed if the effect of the law substantially burdened women’s access
to abortion in Texas.”); see also Carhart, 550 U.S. at 158 (“Where it has a
rational basis to act, and it does not impose an undue burden, the State may
use its regulatory power . . . in furtherance of its legitimate interests . . . .”).
A.
Though Plaintiffs sought only as-applied relief from the admitting
privileges requirement, limited to two abortion clinics—one in El Paso and
one in McAllen—the district court, in its final judgment, appears to have
9
Case: 14-50928 Document: 00512791273 Page: 10 Date Filed: 10/02/2014
14-50928
facially invalidated the admitting privileges requirement throughout Texas.
See Whole Woman’s Health Judgment at *2 (“[T]he two portions of Texas
Health and Safety Code, Sections 245.010(a) [ambulatory surgical center
provision] and 171.0031(a)(1) [admitting privileges requirement], create an
impermissible obstacle as applied to all women seeking a previability
abortion.”) (emphasis added); see also Whole Woman’s Health, slip op. at 21
(noting that the admitting privileges requirement and ambulatory surgical
center provision are unconstitutional as to all women in the state seeking a
previability abortion because they “act together to create an undue burden on
a woman seeking a previability abortion by restricting access to previously
available legal facilities”). This was inappropriate because Plaintiffs did not
request that relief. See Jackson Women’s Health Org. v. Currier, 760 F.3d
448, 458 (5th Cir. 2014) (narrowing the district court’s injunction to
correspond with the scope of the plaintiffs’ requested relief). Furthermore,
the district court’s facial invalidation of the admitting privileges requirement
is directly contrary to this circuit’s precedent. Abbott II specifically upheld
the facial constitutionality of the admitting privileges requirement. 748 F.3d
at 599–600.
B.
We now turn to the central question presented by this emergency
motion: whether the State has shown a likelihood of success regarding
whether the ambulatory surgical center provision is unconstitutional on its
face. We conclude that it has.
As explained in Abbott II, if the State establishes that a law is
rationally related to a legitimate state interest, we do not second guess the
legislature regarding the law’s wisdom or effectiveness. 748 F.3d at 594. Nor
10
Case: 14-50928 Document: 00512791273 Page: 11 Date Filed: 10/02/2014
14-50928
is the State “required to prove that the objective of the law would be fulfilled.”
Id. (internal quotation marks omitted).
The district court concluded that H.B. 2, including both provisions at
issue here, “surmount[ed] the low bar of rational-basis review.” Whole
Woman’s Health, slip op. at 6. We agree with the district court’s conclusion
that the ambulatory surgical center provision satisfies rational basis review.
In addition, no party challenges the district court’s conclusion.
Thus, our review will focus on the second step of this circuit’s approach;
namely, whether this provision imposes an undue burden. The undue burden
inquiry looks to whether the challenged provision has either “the purpose or
effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” Casey, 505 U.S. at 877 (emphasis added). If it
does, it is unconstitutional. Id.
1.
We begin with the purpose inquiry. “[P]laintiffs bore the burden of
attacking the State’s purpose here,” and the State has shown a strong
likelihood that Plaintiffs failed to meet that burden. Abbott II, 748 F.3d at
597; see also Abbott I, 734 F.3d at 413.
The district court determined that “the ambulatory-surgical-center
requirement was intended to close existing licensed abortion clinics.” Whole
Woman’s Health, slip op. at 16. To support its conclusion, the district court
determined that H.B. 2 treats abortion facilities in a “disparate and
arbitrary” manner by not including an exception to the ambulatory surgical
center provision for previously licensed abortion providers. According to the
district court, “other types of ambulatory-surgical facilities are frequently
granted waivers or are grandfathered due to construction dates that predate
11
Case: 14-50928 Document: 00512791273 Page: 12 Date Filed: 10/02/2014
14-50928
the newer construction requirements.” Id. at 10 (citing 25 Tex. Admin. Code
§ 135.51(a)).
The State argues that the district court misunderstood the relevant
provision in the governing Texas regulation. As the State reads the
provision, H.B. 2 does not treat abortion facilities disparately from other
ambulatory surgical centers in this respect. See 25 Tex. Admin. Code
§ 135.51(a). According to the State, there is no ambulatory surgical center
exemption for any facility within the statutorily-defined subset requiring
licensure, regardless of whether it provides abortions. The provision cited by
the district court provides an exemption to any facility previously licensed as
an ambulatory surgical center that failed to comply with new building code
requirements amended in June 2009. Any such facility, regardless of
whether it provides abortions, qualifies for the exemption. Based on our
review of the relevant provision, we agree with the State that ambulatory
surgical centers providing abortions are not treated differently from other
ambulatory surgical centers.
Besides its view of the above regulation, the district court cited no
record evidence to support its determination that the ambulatory surgical
center provision was enacted for the purpose of imposing an undue burden on
women seeking abortions, nor did it make any factual finding regarding an
improper purpose. The Texas Legislature’s stated purpose was to improve
patient safety. See, e.g., Senate Comm. On Health & Human Servs., Bill
Analysis, Tex. H.B. 2, 83d Leg., 2d C.S. 1–2 (2013) (“H.B. 2 seeks to increase
the health and safety” of abortion patients and to provide them with “the
highest standard of health care”). As we observed in Abbott I, the State of
Texas has an “interest in protecting the health of women who undergo
abortion procedures.” 734 F.3d at 413; see also Carhart, 550 U.S. at 157
12
Case: 14-50928 Document: 00512791273 Page: 13 Date Filed: 10/02/2014
14-50928
(“There can be no doubt the government has an interest in protecting the
integrity and ethics of the medical profession.” (internal quotation marks
omitted)). Courts are not permitted to second guess a legislature’s stated
purposes absent clear and compelling evidence to the contrary. See Kansas v.
Hendricks, 521 U.S. 346, 361 (1997) (“[W]e ordinarily defer to the
legislature’s stated intent.”); Flemming v. Nestor, 363 U.S. 603, 617 (1960)
(“[O]nly the clearest proof could suffice to establish the unconstitutionality of
a statute on [the] ground of [improper legislative motive].”). Such evidence
simply does not appear in the record here.
Alternatively, the district court opined that it was “not required” to find
actual evidence of improper purpose because H.B. 2’s ambulatory surgical
center provision has the effect of creating an undue burden. Whole Woman’s
Health, slip op. at 16. To the extent the district court found an improper
purpose based on the law’s effect, the State is likely to succeed on the merits.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (noting that the purpose and
effect of undue burden are two different inquiries and there must be “some
evidence of that improper purpose”); Abbott II, 748 F.3d at 597 (“[T]he
plaintiffs offered no evidence implying that the State enacted the admitting
privileges provision in order to limit abortions . . . . There is thus no basis for
a finding of impermissible purpose under Casey.”).
2.
We now evaluate whether the State has shown a likelihood of success
on the merits of whether the ambulatory surgical center provision “has the
effect of imposing an unconstitutional burden” sufficient to justify a facial
invalidation. Carhart, 550 U.S. at 161 (emphasis added). The State has
made such a showing.
13
Case: 14-50928 Document: 00512791273 Page: 14 Date Filed: 10/02/2014
14-50928
Facial challenges relying on the effects of a law “impose[] a heavy
burden upon the part[y] maintaining the suit.” Abbott I, 734 F.3d at 414
(second alteration in original) (quoting Carhart, 550 U.S. at 167) (internal
quotation marks omitted); Abbott II, 748 F.3d at 604 (same). In Carhart, the
Supreme Court recognized the existence of divergent views as to “[w]hat that
burden consists of in the specific context of abortion statutes . . . .” 550 U.S.
at 167. It is well-settled in this circuit that “[a] facial challenge will succeed
only where the plaintiff shows that there is no set of circumstances under
which the statute would be constitutional.” Barnes v. Mississippi, 992 F.2d
1335, 1342 (5th Cir. 1993); see also Abbott II, 748 F.3d at 588 (“Standard
principles of constitutional adjudication require courts to engage in facial
invalidation only if no possible application of the challenged law would be
constitutional.”). The Supreme Court uses the same “no set of circumstances”
rule in general for facial challenges. See United States v. Salerno, 481 U.S.
739, 745 (1987). However, as we noted in Abbott II, it is not clear whether
the Supreme Court applies this general rule in abortion cases. 748 F.3d at
588.
In Casey, the controlling plurality held that an abortion-regulating
statute would fail constitutional muster if, “in a large fraction of the cases in
which it is relevant, it will operate as a substantial obstacle to a woman’s
choice to undergo an abortion.” 505 U.S. at 895 (emphasis added). In earlier
abortion cases, the Court used the “no set of circumstances” approach. See,
e.g., Rust v. Sullivan, 500 U.S. 173, 183 (1991); Ohio v. Akron Ctr. for Reprod.
Health, 497 U.S. 502, 514 (1990). The more recent Carhart majority did not
choose between “no set of circumstances” and “large fraction,” but instead
upheld the statute in question on the basis that the facial challenge could not
satisfy either standard. 550 U.S. at 167–68 (“We need not resolve that
14
Case: 14-50928 Document: 00512791273 Page: 15 Date Filed: 10/02/2014
14-50928
debate.” Id. at 167.). We will do the same here, as we did in Abbott I and
Abbott II, and “apply the ‘large fraction’ nomenclature for the sake of
argument only, without casting doubt on the general rule.” Abbott II, 748
F.3d at 588–89; see also Abbott I, 734 F.3d at 414.
The ambulatory surgical center provision applies to all clinics
performing abortions. Every woman in Texas who seeks an abortion will be
affected to some degree by this requirement because it effectively narrows her
options for where to obtain an abortion. As the parties stipulated at trial, six
licensed ambulatory surgical centers “will not be prevented by the
ambulatory surgical center [provision] of HB 2 from performing abortions.”
These are located in Austin, Dallas, Fort Worth, Houston, and San Antonio.
The parties also stipulated that Planned Parenthood has obtained a license to
open a new ambulatory surgical center in Dallas, and announced its intention
to open another one in San Antonio. However, the parties further stipulated
that all other abortion facilities now licensed by the State of Texas cannot
currently comply with the provision. The district court concluded that this
reduction in supply of clinics was an undue burden and facially invalidated
the ambulatory surgical center provision. In doing so, the district court
applied neither the Fifth Circuit’s “no set of circumstances” test nor Casey’s
“large fraction” test. Instead, the district court found that “a significant
number of the reproductive-age female population of Texas will need to travel
considerably further in order to exercise its right to a legal previability
abortion.” Whole Woman’s Health, slip op. at 9 (emphasis added). The
district court “conclude[d] that the practical impact on Texas women due to
the clinics’ closure statewide would operate for a significant number of
women in Texas just as drastically as a complete ban on abortion.” Id. at 11
(emphasis added). However, under this circuit’s precedent, and Carhart, a
15
Case: 14-50928 Document: 00512791273 Page: 16 Date Filed: 10/02/2014
14-50928
“significant number” is insufficient unless it amounts to a “large fraction.”
See Abbott II, 748 F.3d at 600 (“[T]he regulation will not affect a significant
(much less ‘large’) fraction of such women . . . .”).
The district court also erred when it balanced the efficacy of the
ambulatory surgical center provision against the burdens the provision
imposed. In the district court’s view, “the severity of the burden imposed by
both requirements is not balanced by the weight of the interests underlying
them.” Whole Woman’s Health, slip op. at 13. As support for this proposition,
the court evaluated whether the ambulatory surgical center provision would
actually improve women’s health and safety. Id. at 14–15 (“The court
concludes that it is unlikely that the stated goal of the requirement—
improving women’s health—will actually come to pass.”). This approach
contravenes our precedent. In our circuit, we do not balance the wisdom or
effectiveness of a law against the burdens the law imposes. See Abbott II, 748
F.3d at 593–94, 597 (conducting a two-step approach, first determining
whether the law at issue satisfies rational basis, then whether it places a
substantial obstacle in the path of a large fraction of women seeking
abortions); see also Harris v. McRae, 448 U.S. 297, 325–26 (1980) (“It is not
the mission of this Court or any other to decide whether the balance of
competing interests . . . is wise social policy.”).
The district court’s weighing of the interests basically boils down to the
district court’s own view that the facilities are already safe for women and
that the ambulatory surgical center provision, when implemented, will not
serve to promote women’s health. However, Abbott II discusses in detail the
perils of second-guessing the wisdom of the legislature in a constitutional
challenge:
If legislators’ predictions about a law fail to serve their purpose,
the law can be changed. Once the courts have held a law
16
Case: 14-50928 Document: 00512791273 Page: 17 Date Filed: 10/02/2014
14-50928
unconstitutional, however, only a constitutional amendment, or
the wisdom of a majority of justices overcoming the strong pull of
stare decisis, will permit that or similar laws to again take effect.
Abbott II, 748 F.3d at 594. Moreover, the district court’s approach ratchets
up rational basis review into a pseudo-strict-scrutiny approach by examining
whether the law advances the State’s asserted purpose. 11 Under our
precedent, we have no authority by which to turn rational basis into strict
scrutiny under the guise of the undue burden inquiry.
Plaintiffs argue that the district court’s balancing approach is used by
other circuits. We agree with Plaintiffs that some circuits have used the
balancing test to enjoin abortion regulations; other circuits—including ours—
have not. Compare Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905,
914 (9th Cir. 2014), and Planned Parenthood of Wisc., Inc. v. Van Hollen, 738
F.3d 786, 791–99 (7th Cir. 2013), with Abbott II, 748 F.3d at 593–94, 597,
Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515 (6th Cir.
2012), Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), and
Women’s Health Center of W. Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir.
1989). We are bound to follow our circuit’s approach.
In addition, Plaintiffs argue that Barnes v. Mississippi, 992 F.2d 1335
(5th Cir. 1993) supports a balancing approach. 12 However, a careful reading
of Barnes establishes that it does not support Plaintiffs’ argument.
In Barnes, we cited Casey for the proposition that “the constitutionality of an
11 This is particularly problematic in a facial challenge to a newly enacted law.
“Most legislation deals ultimately in probabilities, the estimation of the people’s
representatives that a law will be beneficial to the community. Success often cannot be
‘proven’ in advance. The court may not replace legislative predictions or calculations of
probabilities with its own, else it usurps the legislative power.” Abbott II, 748 F.3d at 594
(citing Heller v. Doe, 509 U.S. 312, 319 (1993)).
12 The concurring and dissenting opinion seems to agree with Plaintiffs’ and the
district court’s views on the balancing approach, as well as their interpretation of Barnes.
17
Case: 14-50928 Document: 00512791273 Page: 18 Date Filed: 10/02/2014
14-50928
abortion regulation . . . turns on an examination of the importance of the
state’s interests in the regulation and the severity of the burden that
regulation imposes on a woman’s right to seek an abortion.” 992 F.2d at 1339
(emphasis added). We then analyzed the importance of the State’s interest in
parental involvement statutes, without considering the extent to which the
challenged law actually advanced that interest. Likewise here, the health of
women seeking abortions is an important purpose. See Abbott II, 748 F.3d at
594–96. Our only remaining task is to analyze the severity of the burden the
regulation imposes on women’s right to seek abortions.
The district court’s failure to apply the “large fraction” test, and its
reliance on its own balancing of the State’s justifications against the burdens
imposed by the law, weigh in favor of the State’s strong likelihood of success
on the merits. Moreover, application of the “large fraction” test to the
evidence before us further supports the State’s position that the evidence at
the four-day trial is insufficient to show that a “large fraction” of women
seeking abortions would face an undue burden on account of the ambulatory
surgical center provision.
Plaintiffs’ expert, Dr. Daniel Grossman, opined that the ambulatory
surgical center provision would increase driving distances for women
generally, noting that after the provision becomes effective, 900,000 out of
approximately 5.4 million women of reproductive age in Texas would live at
least 150 miles from the nearest clinic. Whole Woman’s Health, slip op. at 8–
9. He did not testify specifically about how many women seeking abortions
would have to drive more than 150 miles or whether that number would
amount to a large fraction. See Abbott II, 748 F.3d at 583 (“[A]n increase of
travel of less than 150 miles for some women is not an undue burden under
Casey.”) (citing Abbott I, 734 F.3d at 415). Assuming that women seeking
18
Case: 14-50928 Document: 00512791273 Page: 19 Date Filed: 10/02/2014
14-50928
abortions are proportionally distributed across the state, Dr. Grossman’s
evidence suggests that approximately one out of six (16.7%) women seeking
an abortion will live more than 150 miles from the nearest clinic. 13
Even assuming, arguendo, that 150 miles is the relevant cut-off, this is
nowhere near a “large fraction.” See Abbott II, 748 F.3d at 600. As discussed
above, the Casey plurality, in using the “large fraction” nomenclature,
departed from the general standard for facial challenges. The general
standard for facial challenges allows courts to facially invalidate a statute
only if “no possible application of the challenged law would be constitutional.”
Abbott II, 748 F.3d at 588. In other words, the law must be unconstitutional
in 100% of its applications. We decline to interpret Casey as changing the
threshold for facial challenges from 100% to 17%. 14
Plaintiffs argue that the appropriate denominator in the large fraction
analysis consists only of women “who could have accessed abortion services in
Texas prior to implementation of the challenged requirements, but who will
face increased obstacles as a result of the law.” To narrow the denominator
in this way—to essentially only those women who Plaintiffs argue will face
an undue burden—ignores precedent. Casey itself counsels that the
13The State’s expert, Todd Giberson, testified that “90.6% of Texas women ages 15-
44 live within 150 miles of [an ambulatory surgical center abortion facility] or live in an
area that is not within 150 miles of an abortion provider due to reasons not alleged to be
related to the Act.” This testimony was not rebutted, but the district court found Mr.
Giberson to be less credible. Whole Woman’s Health, slip op. at 9 n.4. Even if we ignore
Mr. Giberson’s testimony and rely on the 17% figure gleaned from Dr. Grossman’s
testimony, Plaintiffs cannot satisfy the large fraction test.
14 The concurring and dissenting opinion inexplicably contends that, on this record,
the large fraction test is satisfied. This is baffling and ignores the baseline from which the
large fraction test was derived. It also ignores Abbott II’s guidance that a burden that “does
not fall on the vast majority of Texas women” does not meet the large fraction test. 748
F.3d at 600. Moreover, the concurring and dissenting opinion fails to justify its reliance on
the “large fraction” test to the exclusion of the “no set of circumstances” test, which, as
discussed, is the law of our circuit. See Barnes, 992 F.2d at 1342; Abbott II, 748 F.3d at 588.
19
Case: 14-50928 Document: 00512791273 Page: 20 Date Filed: 10/02/2014
14-50928
denominator should encompass all women “for whom the law is a restriction.”
Casey, 505 U.S. at 894 (involving a spousal consent requirement that applied
to married women who did not want to obtain consent). This is also the
approach that our circuit used in Abbott II. 748 F.3d at 598 (using a
denominator of “women seeking an abortion in Texas” when addressing a
facial challenge of H.B. 2 under the large fraction test). Here, the ambulatory
surgical center requirement applies to every abortion clinic in the State,
limiting the options for all women in Texas who seek an abortion. The
appropriate denominator thus includes all women affected by these limited
options. Moreover, Plaintiffs’ suggested approach would make the large
fraction test merely a tautology, always resulting in a large fraction. The
denominator would be women that Plaintiffs claim are unduly burdened by
the statute, and the numerator would be the same. 15
Based on unspecific testimony at trial, the district court also noted
“practical concerns” that combine with increased travel distances,
particularly for disadvantaged, minority, and immigrant populations. See
Whole Woman’s Health, slip op. at 11–12 (listing “lack of availability of child
care, unreliability of transportation, unavailability of appointments at
abortion facilities, unavailability of time off from work, immigration status
and inability to pass border checkpoints, poverty level, the time and expense
involved in traveling long distances, and other inarticulable psychological
obstacles.” Id. at 11.). We do not doubt that women in poverty face greater
difficulties. However, to sustain a facial challenge, the Supreme Court and
this circuit require Plaintiffs to establish that the law itself imposes an undue
15 Here, we use the same denominator as the panel in Abbott II—women seeking an
abortion in Texas. We note that even if the denominator excluded women who will not have
to change clinics as a result of the ambulatory surgical center provision—for whom the
provision arguably is not a restriction—Plaintiffs offered no evidence from which we could
conclude that a large fraction of the remaining women will face an undue burden.
20
Case: 14-50928 Document: 00512791273 Page: 21 Date Filed: 10/02/2014
14-50928
burden on at least a large fraction of women. Plaintiffs have not done so
here.
The district court also relied on its own determination that the
ambulatory surgical center provision would cause a shortage in capacity for
the remaining licensed clinics. The district court found that 60,000–72,000
abortions were performed annually in previous years. Id. at 8. After the
ambulatory surgical center provision goes into effect, it is undisputed that
seven or eight clinics will remain. Id. at 11. Based on Dr. Grossman’s
testimony, the district court then determined that each remaining clinic
would have to manage, on average, 7,500–10,000 patients a year, over 1,200
patients per month in some cases. Id. The district court found that handling
this high a caseload “stretches credulity.”
However, the district court did not make any findings of fact to support
its conclusion. Nor could it, given that Dr. Grossman’s testimony is ipse dixit
and the record lacks any actual evidence regarding the current or future
capacity of the eight clinics. 16 Dr. Grossman simply assumes, without
evidence, that these centers are currently operating at full capacity and will
be unable to accommodate any increased demand. Likewise, Dr. Grossman
did not consider how many physicians with admitting privileges from non-
ambulatory surgical centers will begin providing abortions at the ambulatory
surgical center clinics, thereby increasing those clinics’ capacities. It also
16In Abbott II, the testimony of an expert who was part of the same research team
as Dr. Grossman offered similarly unsupported conjecture when predicting that, as a result
of the admitting privileges requirement, approximately 22,000 women in Texas would be
unable to obtain abortions. On cross-examination in this case, Dr. Grossman admitted that
his colleague’s earlier predictions proved to be inaccurate. Dr. Grossman testified in this
case that there had been a decrease of only 9,200 abortions and that the decrease could not
be wholly ascribed to the admitting privileges requirement. Indeed, Dr. Grossman
acknowledged on cross-examination that in his team’s published, peer-reviewed article, the
researchers qualified their findings by noting that they “cannot prove causality between the
State restrictions and falling abortion rate.”
21
Case: 14-50928 Document: 00512791273 Page: 22 Date Filed: 10/02/2014
14-50928
does not appear from the record that Dr. Grossman considered the possibility
of additional capacity resulting from new clinics’ being built, nor did he
consider that the demand for abortion services in Texas may decrease in the
future, as it has done nationally over the past several years. Furthermore,
the record lacks evidence that the previous closures resulting from the
admitting privileges requirement have caused women to be turned away from
clinics. Without any evidence on these points, Plaintiffs do not appear to
have met their burden to show that the ambulatory surgical center provision
will result in insufficient clinic capacity that will impose an undue burden on
a large fraction of women. 17
The evidence does indicate, without specificity, that by requiring all
abortion clinics to meet the minimum standards of ambulatory surgical
centers, the overall cost of accessing an abortion provider will likely increase.
However, as the Supreme Court recognized in Carhart, and we observed in
Abbott I, “‘[t]he fact that a law which serves a valid purpose, one not designed
to strike at the right itself, has the incidental effect of making it more
difficult or more expensive to procure an abortion cannot be enough to
invalidate it.’” Abbott I, 734 F.3d at 413 (alteration in original) (quoting
Carhart, 550 U.S. at 157–58).
17 The concurring and dissenting opinion speculates that patients seeking abortions
will face delays comparable to those discussed by the Seventh Circuit in Planned
Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). Here, there is no
evidence in the record that women have faced delays, have been turned away for lack of
capacity, or will face delays in the future.
22
Case: 14-50928 Document: 00512791273 Page: 23 Date Filed: 10/02/2014
14-50928
In sum, the State has met its burden as to the district court’s facial
invalidation of the admitting privileges requirement and the ambulatory
surgical center provision. 18
V.
Finally, we address the district court’s injunctions of both requirements
as applied to clinics in McAllen and El Paso, as well as the ambulatory
surgical center provision as applied to medication abortion, and the State’s
likelihood of success on the merits of each. We conclude that the State has
met its burden as to each, with the exception of the ambulatory surgical
center provision as applied to El Paso.
A.
The State has shown a strong likelihood of success on the merits of its
argument that Plaintiffs’ as-applied challenges to the admitting privileges
requirement are barred by res judicata. In the interests of efficiency and
finality, the doctrine of res judicata bars litigation of claims that have been
litigated or could have been raised in a prior lawsuit. In the lawsuit giving
rise to Abbott I and Abbott II, Plaintiffs facially challenged the admitting
privileges requirement. They also could have brought, but chose not to bring,
as-applied challenges with regard to clinics in El Paso and McAllen. 19 Their
choice not to include the as-applied challenges in their previous lawsuit likely
precludes them from pursuing that challenge now. See Brown v. Felsen, 442
U.S. 127, 131 (1979) (“Res judicata prevents litigation of all grounds for, or
18 Even if the facial invalidation of the ambulatory surgical center provision were
upheld, the injunction should still be stayed as to the operational requirements of the
provision. See infra Part V.C.
19 Plaintiffs did bring simultaneous facial and as-applied challenges to the
ambulatory surgical center requirement of H.B. 2.
23
Case: 14-50928 Document: 00512791273 Page: 24 Date Filed: 10/02/2014
14-50928
defenses to, recovery that were previously available to the parties, regardless
of whether they were asserted or determined in the prior proceeding.”).
To be sure, res judicata bars a subsequent lawsuit only if, inter alia, the
same “claim or cause of action” is involved in both lawsuits. Petro-Hunt,
L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir. 2004). 20 To determine
whether two lawsuits involve the same “claim or cause of action” for purposes
of res judicata, the Fifth Circuit applies the transactional test of the
Restatement (Second) of Judgments, § 24. Id. Under that test, the “critical
issue is whether the two actions under consideration are based on ‘the same
nucleus of operative facts.’” Southmark Corp. v. Coopers & Lybrand (In re
Southmark Corp.), 163 F.3d 925, 934 (5th Cir. 1999) (quoting Bank of
Lafayette v. Baudoin (In re Baudoin), 981 F.2d 736, 743 (5th Cir. 1993)). If
the facts on which the second lawsuit is based are the same as those
prevailing at the time of the first lawsuit, the two lawsuits involve the same
“claim or cause of action” for purposes of res judicata.
Plaintiffs contended, and the district court agreed, that the present
lawsuit relies on a different set of operative facts than did the pre-
enforcement challenge because the abortion clinics in McAllen and El Paso
have now ceased providing abortion services. However, our precedent
dictates that changed circumstances prevent the application of res judicata
only if the change is “significant” and creates “new legal conditions.”
Hernandez v. City of Lafayette, 699 F.2d 734, 737 (5th Cir. 1983). The closure
of the clinics in McAllen and El Paso does not create “new legal conditions”
because, in the pre-enforcement challenge, Plaintiffs alleged that the McAllen
and El Paso clinics would shut down upon implementation of H.B. 2.
20 Res judicata also requires that the parties are identical to, or in privity with, the
parties in the previous lawsuit. Plaintiffs do not dispute that they are identical to or in
privity with the plaintiffs in Abbott I and II.
24
Case: 14-50928 Document: 00512791273 Page: 25 Date Filed: 10/02/2014
14-50928
Plaintiffs could have relied on these allegations to bring the very same as-
applied challenge they now pursue; they simply chose not to do so.
The district court stated that “it was not known in late October 2013
[i.e., when the district court entered its judgment in Abbott] that the McAllen
and El Paso clinics’ physicians would ultimately be unable to obtain
admitting privileges despite efforts to secure them.” However, the Complaint
in Abbott, which was filed in September 2013, expressly alleged that those
clinics would close if the admitting privileges requirement took effect.
Indeed, the physicians who performed abortions at those two facilities were
named plaintiffs in Abbott, further undermining any suggestion that the
closure of the clinics was a significant or unexpected change of facts. 21 Thus,
Plaintiffs’ as-applied challenges to the admitting privileges requirement are
likely barred by res judicata.
B.
Even if Plaintiffs’ claims are not barred by res judicata, the State is
still likely to succeed on the merits of whether the admitting privileges
requirement and the ambulatory surgical center provision, as applied to the
McAllen clinic, have the effect of imposing an undue burden on women in the
Rio Grande Valley.
The admitting privileges requirement went into effect in October 2013.
Since that time, abortion clinics have remained open in all of the major
metropolitan areas across the state. The district court found that the number
of total clinics in Texas decreased from more than forty clinics to fewer than
21 In the district court, plaintiffs also argued that res judicata does not bar their as-
applied challenge because “the panel’s decision in Abbott . . . is not yet final.” However,
unless and until Abbott II is vacated, it is binding precedent that this panel is not at liberty
to ignore. Under this circuit’s rule of orderliness, “only an intervening change in the law
(such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior
Fifth Circuit precedent.” United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013).
25
Case: 14-50928 Document: 00512791273 Page: 26 Date Filed: 10/02/2014
14-50928
thirty clinics “leading up to and in the wake of enforcement of the admitting-
privileges requirement.” Whole Woman’s Health, slip op. at 8; but see Abbott
II, 748 F.3d at 599 (noting that a number of these clinics had closed for
reasons other than the admitting privileges requirement). Importantly, Dr.
Grossman stated in his declaration that he was not “offering any opinion on
the cause of the decline in the number of abortion facilities from November
2012 to April 2014.” The district court further found that no abortion
providers are in operation in a number of cities, including, for example,
McAllen, Lubbock, Midland, and Waco. Whole Woman’s Health, slip op. at 8.
The ambulatory surgical center provision was set to go into effect on
September 1, 2014, which the district court found would cause even more
closures, leaving only seven or eight licensed providers. Id. at 10–11.
The district court found that the McAllen clinic closed as a result of the
admitting privileges requirement. Id. at 8. Since that time, the women who
would have otherwise been served by the McAllen clinic had to look
elsewhere for the procedure. As stated in his trial declaration, Dr. Grossman
identified more than 1,000 women from the Valley who sought abortions
between November 2013 and April 2014, and traveled to nearby cities where
clinics remained open. During that period, approximately 50% of those
women traveled to Corpus Christi, 25% traveled to Houston, 15% percent to
San Antonio, and 10% to a location even farther from the Valley.
In Abbott II, relying on Casey, we held that having to travel 150 miles
from the Rio Grande Valley to Corpus Christi is not an undue burden. Abbott
II, 748 F.3d at 598. Indeed, Casey permitted even greater travel distances, as
26
Case: 14-50928 Document: 00512791273 Page: 27 Date Filed: 10/02/2014
14-50928
it upheld a 24-hour waiting period that doubled driving times, increasing the
drive for some women from three hours to six hours. 22 See id.
While the clinic in Corpus Christi remained open after the admitting
privileges requirement went into effect, it currently does not comply with the
ambulatory surgical center provision. The district court found that once the
provision takes effect, the clinic nearest to the Rio Grande Valley will be in
San Antonio, between 230 and 250 miles away. Therefore, we must
determine whether the State is likely to prevail on its argument that this
incremental increase of 100 miles in distance does not constitute an undue
burden.
At trial, Plaintiffs had the burden of showing that the additional travel
distance to San Antonio constituted an undue burden. As noted above, the
record indicates that 50% of the more than 1,000 women in Dr. Grossman’s
study who resided in the Rio Grande Valley and were seeking abortions
traveled to San Antonio and Houston (which is even farther than San
Antonio) even when the Corpus Christi clinic was still in operation. Plaintiffs
also had the burden, which they failed to meet, of showing that clinics in San
Antonio and other nearby cities would be unable to manage the additional
demand for abortions caused by closures. Indeed, women from McAllen have
been traveling outside their city for nearly a year and Plaintiffs made no
showing that clinics in San Antonio (or any other city) have been deluged.
Considering that Casey upheld travel times of six hours (increases of three
hours) and that women in the Rio Grande Valley traveling to San Antonio
have less total travel time than women affected by the Pennsylvania law in
22 It is also important to note that Texas has a 24-hour waiting period, which
Plaintiffs do not challenge here, but women who must travel more than 100 miles to a clinic
are exempt. Tex. Health & Safety Code § 171.012(a)(4).
27
Case: 14-50928 Document: 00512791273 Page: 28 Date Filed: 10/02/2014
14-50928
Casey, the State has a strong likelihood of success on its appeal of the
injunctions of both requirements as applied to the McAllen clinic. 23
C.
As to the El Paso clinic, we grant, in part, and deny, in part, the State’s
motion to stay the district court’s injunction of the ambulatory surgical center
provision. The district court found that the physical plant requirements of
the ambulatory surgical center provision would force the El Paso clinic to
close. As a result, women in El Paso will be significantly farther from the
nearest in-state ambulatory surgical center than women in the Rio Grande
Valley. The distance from El Paso to San Antonio, for example, is greater
than 500 miles. The Eighth Circuit has held that no travel distance within
the state is too far. See Fargo Women’s Health Org. v. Schafer, 18 F.3d 526,
533 (8th Cir. 1994). We have not so held. Our circuit has not identified
whether there is a tipping point within the vast State of Texas, but at this
early stage, we are hesitant to extend Casey to such a large distance. But see
Abbott II, 748 F.3d at 598 (“Casey counsels against striking down a statute
solely because women may have to travel long distances to obtain
abortions.”).
It is true that approximately half of the women from El Paso seeking
abortions travel to Santa Teresa, New Mexico, which is in the same
metropolitan area as El Paso and just across the state line. Despite the
obvious practical implications of the New Mexico clinic’s proximity to El Paso,
our circuit’s precedent suggests that our focus must remain on clinics within
Texas when determining whether travel times create an undue burden. See
Jackson Women’s Health Org., 760 F.3d at 457–58 (enjoining a Mississippi
23 In light of Abbott II, the concurring and dissenting opinion does not explain how
the incremental increase of approximately 100 miles between Corpus Christi and San
Antonio constitutes an undue burden.
28
Case: 14-50928 Document: 00512791273 Page: 29 Date Filed: 10/02/2014
14-50928
law on the grounds that it would shut down the only abortion clinic in the
state). Although the situation in Texas is markedly different from that in
Mississippi, the opinion in Jackson contains broad language that appears to
go beyond the facts presented in that case. See id. at 457 (“Consistent with
Gaines, we hold that the proper formulation of the undue burden analysis
focuses solely on the effects within the regulating state—here, Mississippi.”).
The panel majority saw itself as “require[d] . . . to conduct the undue burden
inquiry by looking only at the ability of Mississippi women to exercise their
right within Mississippi’s borders.” Id. Given the panel’s reliance on Gaines,
the panel may have meant to apply its limitation only to states where all the
abortion clinics would close. However, we are reluctant to construe the
panel’s broad language so narrowly in this emergency stay proceeding.
Because of the long distance between El Paso and the nearest in-state
abortion clinic, as well as the doubt that Jackson casts on whether we may
look to out-of-state clinics, the State has not shown a strong likelihood of
success on the merits of the challenge to the physical plant requirements of
the ambulatory surgical center provision as applied to El Paso. Thus, the
district court’s injunction of the physical plant requirements of the
ambulatory surgical provision will remain in force for El Paso.
We do, however, stay the injunction as to the operational requirements
of the ambulatory surgical center provision because the district court made
no findings about whether the El Paso clinic would be able to comply with
those requirements. The district court’s conclusion that the ambulatory
surgical center provision imposed an undue burden rested solely on the
district court’s findings regarding the physical plant requirements. In view of
H.B. 2’s severability provision, as well as the similar provision in the
regulations, 25 Tex. Admin. Code § 139.9, the district court erred by failing to
29
Case: 14-50928 Document: 00512791273 Page: 30 Date Filed: 10/02/2014
14-50928
consider whether the physical plant requirements could be severed from the
operational requirements, allowing the operational requirements to take
effect. See Abbott I, 734 F.3d at 415. 24 As a result, it does not appear that
the district court’s injunction of the operational requirements was supported
by any evidence. We therefore stay the district court’s injunction of the
operational requirements.
D.
The district court also enjoined the ambulatory surgical center
provision as applied to medication abortions. To the extent the district court
concluded that the ambulatory surgical center provision had an improper
purpose as applied to medication abortion, we have already rejected that
argument for the reasons stated above. To the extent that the district court
determined that the provision’s effect as applied to medication abortion was
unconstitutional, the record evidence does not support that conclusion. In
conducting its own balancing analysis, the district court stated that “any
medical justification for the requirement is at its absolute weakest in
comparison with the heavy burden it imposes.” Whole Woman’s Health, slip
op. at 18. However, as discussed, our circuit does not incorporate a balancing
analysis into the undue burden inquiry. See Abbott II, 748 F.3d at 594 (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). The
district court provided no support for its conclusion other than its improper
balancing. The district court did not cite to record evidence or make any
findings to support its conclusion that the ambulatory surgical center
24 Indeed, the district did not appear to address the constitutionality of the
implementing regulations. To the extent that it invalidated the regulations sub silentio, its
failure to consider the severability provision in the regulations was error.
30
Case: 14-50928 Document: 00512791273 Page: 31 Date Filed: 10/02/2014
14-50928
provision imposes an undue burden as applied to medication abortions. 25
Indeed, at oral argument, Plaintiffs could not identify any findings in the
district court’s opinion supporting the conclusion that the ambulatory
surgical center provision imposed an undue burden as applied to medication
abortion. Thus, the State has shown a substantial likelihood of success on
the merits of the district court’s injunction of the ambulatory surgical center
provision as applied to medication abortions.
VI.
As in Abbott I, the State has made a strong showing of likelihood of
success on the merits of its appeal as to all of the district court’s injunctions
except for the injunction of the physical plant requirements of the ambulatory
surgical center provision as applied to the clinic in El Paso. Regarding the
other three factors we must weigh in determining whether to grant a motion
to stay pending appeal, the State has also met its burden. “When a statute is
enjoined, the State necessarily suffers the irreparable harm of denying the
public interest in the enforcement of its laws. Abbott I, 734 F.3d at 419
(citing Maryland v. King, 133 S. Ct. 1, 3 (2012); New Motor Vehicle Bd. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)). The public interest is directly
aligned with the State’s interest. Nken, 556 U.S. at 435. To the extent the
State’s interest is at stake, so is the public’s. Abbott I, 734 F.3d at 419. We
recognize that Plaintiffs have also made a strong showing that their interests
will be injured by a grant of the stay. However, given that the first two
factors are the most critical, Nken, 556 U.S. at 434, and the State has made a
strong showing regarding each, a stay is appropriate. We have addressed
only the issues necessary to rule on the motion for a stay pending appeal, and
25 In Abbott II, we noted that medication abortions have higher complication rates
than surgical abortions. Abbott II, 748 F.3d at 602.
31
Case: 14-50928 Document: 00512791273 Page: 32 Date Filed: 10/02/2014
14-50928
our determinations are for that purpose and do not bind the merits panel.
See, e.g., Abbott I, 734 F.3d at 419.
IT IS ORDERED that Appellants’ opposed motion for stay pending
appeal is GRANTED, in part, and DENIED, in part, and that the district
court’s injunction orders are STAYED until the final disposition of this
appeal, in accordance with this opinion.
32
Case: 14-50928 Document: 00512791273 Page: 33 Date Filed: 10/02/2014
14-50928
STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting
in part:
I too would deny the State’s motion for a blanket stay of the district
court judgment entered on August 29, 2014, pending appeal. I agree with a
stay of the district court’s facial invalidation of the admitting-privileges
requirement because the plaintiffs did not request that relief. See Jackson
Women’s Health Org. v. Currier, 760 F.3d 448, 458 (5th Cir. 2014). Second, I
agree with a stay to allow enforcement of the operational requirements of the
ambulatory surgical center (“ASC”) provision because the district court only
evaluated the burdens imposed by the provision’s physical plant
requirements. Applying H.B. 2’s severability provision, however, I would not
stay the district court’s facial invalidation of the physical plant requirements.
Finally, I would narrow the stay so that it does not reach the admission-
privileges requirement as applied to the McAllen and El Paso clinics, which
the district court found would result in closure of all clinics west and south of
San Antonio. 1
As to the first stay factor, the district court found, after trial with
witness credibility determinations, that an undue burden existed because
Texas had over forty abortion clinics prior to the enactment of H.B. 2, and
1 I do not believe that the State has shown a strong likelihood of success on the merits of its
argument that this as-applied challenge is barred by res judicata. This court in Abbott II disavowed
relying on any new factual developments that were not in the record before the district court during
the bench trial in Abbott. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott
(Abbott II), 748 F.3d 584, 599 n.14 (5th Cir. 2014). Significantly, Abbott II anticipated that
physicians, like those in McAllen and El Paso, would gain admitting privileges. See id. at 598-99 &
n.13; see also Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 807 (7th Cir. 2013)
(Manion, J., concurring) (“The notion that abortion doctors will be unable to obtain admitting
privileges is a fiction.”). Indeed, as Abbott II acknowledged, “[l]ater as-applied challenges can always
deal with subsequent, concrete constitutional issues.” Id. at 589; see also Jackson Women’s Health
Org., 760 F.3d at 450-51 (evaluating the impact of H.B. 1390 after the plaintiff’s doctors were
conclusively denied admitting privileges). Now that the physicians’ applications have been denied,
the availability of abortion services for women living near the McAllen and El Paso clinics has
concretely changed. See Restatement (Second) of Judgments § 24, cmt. (f) (“Where important human
values . . . are at stake, even a slight change of circumstances may afford a sufficient basis for
concluding a second action may be brought.”).
33
Case: 14-50928 Document: 00512791273 Page: 34 Date Filed: 10/02/2014
14-50928
that after the ASC provision takes effect, only seven or eight clinics will
remain, representing more than an 80% reduction in clinics statewide in
nearly fourteen months, with a 100% reduction in clinics west and south of
San Antonio. See Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999) (“A
measure that has the effect of forcing all or a substantial portion of a state’s
abortion providers to stop offering such procedures creates a substantial
obstacle to a woman’s right to have a pre-viability abortion, thus constituting
an undue burden under Casey.”), vacated on other grounds on reh’g en banc,
244 F.3d 405 (5th Cir. 2001); cf. also Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (finding no undue burden when “no woman seeking an abortion
would be required by the new law to travel to a different facility than was
previously available”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
869 (1992) (“[I]t falls to us to give some real substance to the woman’s liberty
to determine whether to carry her pregnancy to full term.”). The district
court further found that there was no credible evidence of medical or health
benefit associated with the ASC requirement in the abortion context. At this
emergency stay point, the State does not challenge as clear error either set of
factual findings. 2 Weighing lack of medical benefit against the significant
reduction in clinic access, the district court found the burden to be “undue.”
2 The majority opinion lists the following additional findings made by the district court,
which are entitled to deference, see Anderson v. Bessemer, 470 U.S. 564, 573-74 (1985); N.A.A.C.P. v.
Fordice, 252 F.3d 361, 365 (5th Cir. 2001): (1) the construction costs of bringing existing clinics into
compliance with ASC standards “will undisputedly approach 1 million dollars and will most likely
exceed 1.5 million dollars”; (2) for existing clinics that cannot comply due to physical space
limitations, “[t]he cost of acquiring land and constructing a new compliant clinic will likely exceed
three million dollars”; (3) if both challenged H.B. 2 provisions are enforced, women’s travel distances
to clinics will significantly increase: 1.3 million women of reproductive age in Texas will live more
than 100 miles from a clinic, 900,000 women will live more than 150 miles from a clinic, 750,000
women will live more than 200 miles from a clinic, and some women will live as far as 500 miles from
a clinic; (4) the burdens of increased travel combine with “practical concerns include[ing] lack of
availability of child care, unreliability of transportation, unavailability of appointments at abortion
facilities, unavailability of time off from work, immigration status and . . . poverty level, [and] the
time and expense involved in traveling long distances”; and (5) the remaining seven or eight clinics
will unlikely have the capacity to perform 60,000-72,000 abortions per year in Texas.
34
Case: 14-50928 Document: 00512791273 Page: 35 Date Filed: 10/02/2014
14-50928
The majority opinion disagrees, concluding especially that the district
court “erred when it balanced the efficacy of the ambulatory surgical center
provision against the burdens the provision imposed.” For my part, I do not
read Abbott II to preclude consideration of the relationship between the
severity of the obstacle imposed and the weight of the State’s interest in
determining if the burden is “undue.” Although I agree with the majority
opinion that Abbott II rejected the district court’s assessment of empirical
data as part of its rational-basis analysis, see 748 F.3d at 594, Abbott II did
not expressly disclaim such an inquiry for purposes of the undue-burden
prong, see id. at 590 (referring to “Casey’s undue burden balancing test”
(emphasis added)). In Abbott II—in contrast to the district court’s factual
findings in this case—our court concluded that there had been “no showing
whatsoever that any woman [would] lack reasonable access to a clinic within
Texas.” Id. at 598. In light of the minimal or non-existent burden found on
that record, the court in Abbott II did not need to conduct an in-depth
analysis of the State’s interest as part of its undue-burden review. Other
courts’ criticism of Abbott II on this ground is therefore inexact. See Planned
Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014); Planned
Parenthood Se., Inc. v. Strange, No. 2:13cv405-MHT, 2014 WL 3809403, at
*7-8 (M.D. Ala. Aug. 4, 2014).
Consistent with this analysis, the district court considered the weight
of the State’s interest in its undue-burden review. See Barnes v. Mississippi,
992 F.2d 1335, 1338 (5th Cir. 1993) (“As long as Casey remains authoritative,
the constitutionality of an abortion regulation thus turns on an examination
of the importance of the state’s interest in the regulation and the severity of
the burden that regulation imposed on the woman’s right to seek an
abortion.”); see also Casey, 505 U.S. at 878 (“Unnecessary health regulations
35
Case: 14-50928 Document: 00512791273 Page: 36 Date Filed: 10/02/2014
14-50928
that have the purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the right.” (emphasis
added)). In doing so, the district court adhered to reasoning that reconciles,
rather than divides, circuit authority applying Casey’s undue-burden test.
See, e.g., Humble, 753 F.3d at 912 (“[W]e compare the extent of the burden a
law imposes on a woman’s right to abortion with the strength of the state’s
justification of the law. The more substantial the burden, the stronger the
state’s justification for the law must be to satisfy the undue burden test.”);
Van Hollen, 738 F.3d at 798 (“The feebler the medical grounds, the likelier
the burden, even if slight, to be ‘undue’ in the sense of disproportionate or
gratuitous.”); see also ROBERT A. LEFLAR, APPELLATE JUDICIAL OPINIONS 235
(1974) (“[C]ompeting values . . . must somehow be brought together so that as
much as possible of the good in each can be protected and preserved.”).
I also do not see a strong likelihood of legal error related to the district
court’s demographic calculations pertaining to impact on women, relevant
both to its facial invalidation of the ASC provision, as well as to our stay
factors. First, the district court recognized that there are 5.4 million women
of reproductive age in Texas. Next, the district court found that if the ASC
provision goes into effect, 900,000 women will live more than 150 miles from
an abortion clinic; 750,000 women will live more than 200 miles from a clinic;
and some women will live as far as 500 miles or more from a clinic.
Furthermore, the district court explicitly considered the financial and other
practical obstacles that interact with and compound the burdens imposed by
the law, both in it its discernment of a substantial obstacle and also in its
assessment of impact on women. 3 Finally, the district court also found that
3 Indeed, the State forthrightly acknowledged during oral argument that the real-world
context in which women’s decisions are made and operate does factor into the undue-burden
36
Case: 14-50928 Document: 00512791273 Page: 37 Date Filed: 10/02/2014
14-50928
the remaining seven or eight abortion ASCs lack sufficient capacity to
accommodate all women seeking abortions in the state. Indeed, these
remaining clinics would have to increase by at least fourfold the number of
abortions they perform annually. Altogether, although the district court did
not use the phrase “large fraction,” its findings—which related not only to
travel distances but also to other practical obstacles—demonstrate that
enforcement of the ASC provision will likely affect a significant number and a
large fraction of women across the state of Texas. See Casey, 505 U.S. at 893-
95 (facially invalidating Pennsylvania’s spousal-notification requirement
because it would “likely prevent a significant number of women from
obtaining an abortion” (emphasis added)).
As to the remaining stay factors, which reasonable minds may balance
differently, and in this case do, it is nonetheless undisputed that the State for
decades has not held plaintiffs’ clinics to ASC standards—indeed, never until
now. Based on the record established at trial, assessed firsthand by the
district court, I do not perceive that Texas has demonstrated urgency,
medical or otherwise, to immediate enforcement. After hearing conflicting
expert testimony, the district court found that “abortion in Texas [is]
extremely safe with particularly low rates of serious complications,” and
further found that “risks are not appreciably lowered for patients who
undergo abortion at ambulatory surgical centers.” The denial of a stay would
preserve this status quo pending our court’s ultimate decision on the
correctness of the district court’s ruling. See Commodity Futures Trading
Comm’n v. British Am. Commodity Options Corp., 434 U.S. 1316, 1320
(1977).
analysis, even if the State will contend that the record does not support the interplay of circumstance
and law that the district court held to be determinative.
37
Case: 14-50928 Document: 00512791273 Page: 38 Date Filed: 10/02/2014
14-50928
On the other hand, the district court found that if the ASC requirement
goes into effect plaintiffs likely will suffer substantial injury, notably that
enforcement would cause clinics to close in Corpus Christi, San Antonio,
Austin, McAllen, El Paso, Houston, and Dallas. The longer these clinics
remain closed, the less likely they are to reopen if this court affirms that the
law is unconstitutional. The district court further found that only seven or
eight clinics will remain open, and that these clinics alone lack sufficient
capacity. Unless shown to be clear error, this circumstance is comparable to
the one the Seventh Circuit observed would subject patients “to weeks of
delay because of the sudden shortage of eligible [clinics]—and delay in
obtaining an abortion can result in the progression of a pregnancy to a stage
at which an abortion would be less safe, and eventually illegal.” See Van
Hollen, 738 F.3d at 796.
Agreeing not to impose a blanket stay on direct appeal, but not having
convinced colleagues whom I respect as to the scope of the stay that is
appropriate, I would grant the State’s independent request to expedite its
appeal of an underlying issue that has complexity which divides courts, as
well as profundity which divides convictions deeper than the rules of law
courts must apply.
38