Planned Parenthood v. Gregory Abbott , 769 F.3d 330 ( 2014 )

REVISED OCTOBER 9, 2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2014
No. 13-51008
Lyle W. Cayce
Clerk
PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH
SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE;
PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE
WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN
WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY
CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET
WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC, each on behalf of itself,
its patients and physicians; ALAN BRAID, M.D.; LAMAR ROBINSON, M.D.;
PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients;
PLANNED PARENTHOOD WOMEN'S HEALTH CENTER,
Plaintiffs - Appellees
v.
ATTORNEY GENERAL GREGORY ABBOTT; DAVID LAKEY, M.D.;
MARI ROBINSON, Executive Director of the Texas Medical Board,
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Texas
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion March 27, 2014, 748 F.3d 583)
No. 13-51008
Before JONES, ELROD, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The Petition for Rehearing is DENIED. Judge Dennis dissents from the
court’s denial of rehearing en banc and his dissent is attached.
The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition
for Rehearing En Banc is DENIED.
In the en banc poll, 3 judges voted in favor of rehearing (Judges Dennis,
Graves, and Costa) and 12 judges voted against rehearing (Chief Judge
Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod,
Southwick, Haynes, and Higginson).
ENTERED FOR THE COURT:
UNITED STATES CIRCUIT JUDGE
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No. 13-51008
JAMES L. DENNIS, Circuit Judge, dissenting:
I respectfully but emphatically dissent from the court’s refusal to rehear
this case en banc. In upholding Texas’s unconstitutional admitting-privileges
requirement for abortion providers and medication-abortion restrictions, the
panel opinion flouts the Supreme Court’s decision in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), by refusing to apply
the undue burden standard expressly required by Casey. Instead, the panel
applied what effectively amounts to a rational-basis test—a standard rejected
by Casey—under the guise of applying the undue burden standard. The panel’s
assertion that it applies Casey is false because it does not assess the strength
of the state’s justifications for the restrictive abortion laws or weigh them
against the obstacles the laws place in the path of women seeking abortions,
as required by Casey. A correct application of the Casey undue burden
standard would require that the admitting-privileges provision and
medication-abortion restrictions be stricken as undue burdens because the
significant obstacles those legal restrictions place in the way of women’s rights
to previability abortions clearly outweigh the strength of their purported
justifications.
If not overruled, the panel’s sham undue burden test will continue to
exert its precedential force in courts’ review of challenges to similar types of
recently minted abortion restrictions in Texas, Louisiana, and Mississippi. See
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014); Whole
Woman’s Health v. Lakey, No. 1:14-CV-284-LY, 2014 WL 4346480 (W.D. Tex.
Aug. 29, 2014); June Med. Servs., LLC v. Caldwell, No. 3:14-CV-525-JWD-
RLB, 2014 WL 4296679 (M.D. La. Aug. 31, 2014). Moreover, the panel opinion
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No. 13-51008
deepens a circuit split, 1 and has been criticized by other federal courts.
Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014)
(“We conclude that Abbott . . . [is] inconsistent with the undue burden test as
articulated and applied in [the relevant Supreme Court case law.]”); see also
Planned Parenthood Se. Inc., v. Strange, No. 2:13-CV-405-MHT (WO), 2014
WL 1320158, at *9-10 (M.D. Ala. Mar. 31, 2014) (hereinafter “Strange I”)
(criticizing Abbott panel’s application of the Casey undue burden test). In
disclaiming its duty to correct the panel’s perversion of the undue burden
standard, a majority of this court effectively ensures that laws, like the Texas
law challenged here, that substantially chop away at a woman’s right to a
previability abortion, will be given only a modicum of scrutiny, essentially
giving states carte blanche with respect to the regulation of the right to an
abortion. This court’s abject deference to state authority annihilates any “real
substance” to the vital individual constitutional interest at stake: “the urgent
claims of the woman to retain the ultimate control over her destiny and her
body, claims implicit in the meaning of liberty.” Casey, 505 U.S. at 869.
***
In Casey, the Supreme Court of the United States reaffirmed the right
announced in Roe v. Wade, 410 U.S. 113 (1973)—“the right of the woman to
choose to have an abortion before viability and to obtain it without undue
interference from the State.” 505 U.S. at 846 (plurality opinion). The Casey
Court simultaneously recognized and endorsed “the principle that the State
1See Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013)
(upholding a preliminary injunction of a nearly identical admitting-privileges provision);
Planned Parenthood Ariz., Inc., et al, v. Humble, 753 F.3d 905, 914 (9th Cir. 2014) (holding
that the Arizona law restricting the provision of medication that induces abortion is likely
unconstitutional).
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has legitimate interests from the outset of the pregnancy in protecting the
health of the woman and the life of the fetus that may become a child.” Id. A
controlling plurality of the Court, striking a balance between the state’s
legitimate interests and a woman’s constitutionally protected liberty interest,
announced that a State regulation goes too far in pursuing its legitimate
interests when it imposes an “undue burden” on a woman’s ability to choose an
abortion. Id. at 874 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).
All federal courts are obliged to apply the principles and governing
standard announced in Casey to determine the constitutionality of a state law
challenged as imposing an undue burden on the woman’s ability to choose to
procure an abortion. We must perform this duty in order to give “real
substance to the woman's liberty,” id. at 869, while at the same time fully
honoring the State’s ability to pursue, in good faith, its own acknowledged
legitimate interests.
On July 18, 2013, the Governor of Texas signed into law House Bill 2
(“H.B. 2”), which contains several provisions regulating abortions. Among its
provisions, H.B. 2 requires that all doctors who provide abortions must have
admitting privileges at a hospital within 30 miles of where each abortion is
performed. See TEX. HEALTH & SAFETY CODE § 171.0031(a)(1). On September
27, 2013, the Plaintiffs filed this lawsuit in the United States District Court
for the Western District of Texas against the Attorney General of Texas,
Gregory Abbott, and others, challenging the constitutionality of, inter alia,
H.B. 2’s admitting-privileges requirement. After a bench trial, the district
court held that the admitting-privileges requirement is unconstitutional and
enjoined its enforcement. Planned Parenthood of Greater Tex. Surgical Health
Servs. v. Abbott, 951 F. Supp. 2d 891, (W.D. Tex. 2013). A motions panel of this
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No. 13-51008
court stayed the decision pending appeal, Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013) (“Abbott I”), and
a merits panel reversed and rendered judgment for the State of Texas, except
that “the admitting privileges requirement, . . . may not be enforced against
abortion providers who timely applied for such privileges under the statute but
are awaiting a response from a hospital.” 748 F.3d 583, 695 (5th Cir. 2014)
(“Abbott II”).
The Abbott II panel decision conflicts with the Supreme Court’s decision
in Casey in various ways. This dissenting opinion will be limited to a
discussion of Abbott II’s analysis and conclusions regarding H.B. 2’s admitting-
privileges provision because it is within that portion of the panel decision
where the panel most egregiously errs in its application of Casey. 2 Specifically,
2 The district court also enjoined H.B. 2’s ban on medication-induced abortion
performed after 49 days of pregnancy as applied to a woman for whom a physician, in his or
her sound medical opinion, determines that a medication abortion between 50 and 63 days
from the woman’s last menstrual period (“LMP”) is necessary to preserve her health or life.
The Abbott II panel reversed this ruling. As noted herein, this dissenting opinion will be
focused primarily on a discussion of H.B. 2’s admitting-privileges provision. That being said,
I believe the panel’s decision upholding H.B. 2’s medication-abortion provision is
constitutionally invalid for the reasons briefly outlined in this footnote.
First, the Abbott II panel characterized the Plaintiffs’ challenge as a purely facial
challenge, when Plaintiffs in fact brought both a facial challenge and a pre-enforcement, as-
applied challenge to the medication-abortion provision. As the Plaintiffs contend in their
petition for rehearing en banc, their initial complaint asked the district court to (1) enjoin the
medication abortion restriction as a whole [i.e., facially] and, alternatively, (2) enjoin the
restriction “as applied to women with gestational ages greater than 49 days LMP for whom
a medication abortion is necessary, in their doctor’s appropriate medical judgment, to protect
their lives or health.” (emphasis added). The district court rejected Plaintiffs’ facial challenge
and granted Plaintiffs partial relief, finding that, as applied to women for whom surgical
abortion is a significant health risk, the law imposes an undue burden. Abbott, 951 F. Supp.
2d, at 907. The Abbott II panel inexplicably characterized this partial, as-applied injunction
as a facial remedy, and rejected it largely on that basis. Abbott II, 748 F.3d at 604 (“[W]e
conclude that H.B. 2’s regulations on medication abortion, like the Act in Gonzales, do not
facially require a court-imposed exception for the life and health of the woman . . . . H.B. 2
on its face does not impose an undue burden on the life and health of a woman, and the
district court erred in finding to the contrary.”) (emphasis added). The fact that Plaintiffs’
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challenge was brought pre-enforcement does not render it purely “facial” and therefore an
improper means to challenge the regulation’s health exceptions, or lack thereof. Rather,
Gonzales affirmed the availability of pre-enforcement as-applied challenges. Gonzales v.
Carhart, 550 U.S. 124, 167 (2007) (“[P]reenforcement as-applied challenges to the Act can be
maintained”) (emphasis added). A pre-enforcement, as-applied challenge is just what was
brought here, and the district court, rejecting the facial challenge, properly granted the
Plaintiffs the alternative remedy they requested.
Further, the Gonzales Court was asked to invalidate the Act at issue in its entirety—
a “facial” remedy—because the provision lacked a health exception. Gonzales, 550 U.S. at
166-67 (“The Act is not invalid on its face where there is uncertainty over whether the barred
procedure is ever necessary to preserve a woman’s health . . .”). Unlike the Court in Gonzales,
the Abbott II panel was asked to determine whether the district court erred in enjoining the
medication abortion restrictions as-applied to a certain group of women—the Abbott II panel
was never tasked with determining whether the lack of a health exception for this class of
women should invalidate the provision in toto. Thus this language from the Gonzales Court
that the Abbott II panel cited to is not directly applicable. The Abbott II panel misconstrued
Gonzales when it wholesale rejected Plaintiffs’ challenge to the medication-abortion
restrictions because it was, in part, a facial challenge.
Even if we were to construe the Plaintiffs’ challenge to H.B. 2’s medication abortion
restrictions as a purely facial challenge, the Abbott II panel’s conclusion here was nonetheless
erroneous. First, the Supreme Court has recently explained that “the distinction between
facial and as-applied challenges” has no “automatic effect” on the “pleadings and disposition”
of a case. Citizens United v. FEC, 558 U.S. 310, 331 (2010); see also Richard H. Fallon, Jr.,
Fact and Fiction About Facial Challenges, 99 CAL. L. REV. 915, 935 (2011) (“Powerful
evidence that the Supreme Court routinely entertains, and not infrequently upholds, facial
challenges emerges from examination of the leading cases under a broad range of
constitutional provisions . . . . A survey of leading cases unmistakably demonstrates that the
Court has held statutes wholly invalid under nearly every provision of the Constitution under
which it has adjudicated challenges to statutes.”). Accordingly, rejecting the Plaintiffs’
challenge because it is a “facial” challenge does not comport with the Court’s instruction that
the distinction between facial and as-applied should not mandate a particular result.
Moreover, and critically, H.B. 2 contains an express severability provision, clearly
indicating the Texas legislature’s intent to allow courts to construct narrowly-drawn
remedies that preserve as much of the law that complies with the constitution. See 2013 Tex.
Sess. Law Serv. 2nd Called Sess. Ch. 1 (H.B. 2), Section 1(b) (“The legislature intends that
every application of this statute to every individual woman shall be severable from each
other.”). Here, the district court, in accordance with the severability provision, enjoined the
law only to the extent that it imposed a substantial obstacle upon a certain, defined group of
women. In so doing, the district court crafted a narrowly drawn remedy, after making
findings of fact that are substantially supported by the record. Specifically, the district court
made a finding of fact that “there are certain situations where medication abortion is the only
safe and medically sound option for women with particular physical abnormalities or
preexisting conditions.” Abbott, 951 F. Supp. 2d, at 907 (footnote detailing these medical
conditions omitted). This finding is adequately supported by the record evidence, survives
clear error review, and therefore must be upheld by this court. This finding also supports
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No. 13-51008
this dissent will focus on three main points of error, any one of which warrants
en banc consideration or correction by the Supreme Court. First, the Abbott
panel failed to weigh the magnitude of the burden that the admitting-
privileges requirement places on a woman’s right to abortion against the
strength of the State’s justification for the law, in order to determine whether
the State’s justifications are robust enough to warrant the restriction and
corollary burdens. As will be explained infra, this weighing of burdens and
justifications constitutes the very heart of the inquiry into whether a burden
is “undue” within the meaning of Casey, and the Abbott II panel’s patent failure
to conduct this inquiry necessitates en banc review. Second, the panel
misinterpreted and misapplied Casey’s “large fraction” test by disregarding the
effect of the law in light of the relevant context and circumstances faced by the
women for whom the law is relevant (i.e. for whom it actually burdens).
Finally, it is also necessary to reconsider the panel decision en banc because,
although purporting to apply clear error review, as required by Supreme Court
and circuit precedents, the panel improperly reviewed the district court’s
factual findings de novo, and thereby erroneously substituted the panel’s own
fact finding for that of the district court. In other words, the panel opinion is
based on both erroneous legal precepts and improper de novo appellate court
the district court’s legal conclusion that, as applied to this subset of women with certain
physical conditions, H.B. 2’s medication-abortion restrictions impose an undue burden
because it functions as a “total method ban after 49 days LMP.” Id. at 908. Thus, even if we
construe the Plaintiffs’ challenge as purely facial, the district court properly applied the
severability clause to construct the narrow, as-applied remedy. See Gillian E. Metzger,
Facial and As-Applied Challenges Under the Roberts Court, 26 FORDHAM URB. L. J. 773, 791
(June 2009) (“severability means that a facial challenge need not lead to facial invalidation”).
In sum, the Abbott II panel not only failed to apply the clear error standard of review to the
district court’s findings of fact that support the as-applied injunction, but it also
misinterpreted and improperly broadened the meaning of Gonzales when it reversed the
district court’s partial injunction as an improper facial remedy.
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No. 13-51008
factual findings. The Abbott II panel’s serious constitutional errors in
misapplying the Casey undue burden standard to the admitting-privileges
requirement and its erroneous substitution of its factual findings for the
district court’s are more than sufficient reason for an en banc rehearing.
I. Casey’s Undue Burden Standard
In Casey, the Court reaffirmed the “central right” established in Roe v.
Wade, 410 U.S. 113 (1973)—that a “State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability.”
Casey, 505 U.S. at 879. As the Court explained, “[t]he woman’s right to
terminate her pregnancy before viability is the most central principle of Roe v.
Wade. It is a rule of law and a component of liberty we cannot renounce.” Id.
at 871. While approving of Roe’s central premises, the controlling Casey
plurality rejected a strict-scrutiny standard of review that cases following Roe
had adopted and applied to challenges to abortion regulations, id. at 871-72,
and for which Justice Blackmun argued in his partial dissent, id. at 926
(Blackmun, J.) (urging the court to apply strict scrutiny to a State’s abortion
restrictions). The Casey plurality likewise rejected mere rational-basis
review—the standard urged by Chief Justice Rehnquist in dissent. Id. at 966
(Rehnquist, C.J.). The controlling Casey plurality read Roe as acknowledging
both the importance of a woman’s right to make the ultimate decision of
whether to terminate her pregnancy previability, as well as the State’s
legitimate interests in protecting fetal life and preserving the health of the
pregnant woman. Id. at 872. In light of these competing interests, and in an
effort to strike a balance between them, the Casey plurality announced the
undue burden standard, which functions as a reconciliatory standard between
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strict scrutiny and rational-basis review. See Casey, 505 U.S. at 878 (“To
protect the central right recognized by Roe v. Wade while at the same time
accommodating the State’s profound interest in potential life, we will employ
the undue burden analysis.”). As the Court has emphasized, the undue burden
test “struck a balance. The balance was central” to the Casey Court’s holding.
Gonzales v. Carhart, 550 U.S. 124, 146 (2007).
Casey thus adopted a compromise position, between the strict-scrutiny
review endorsed by Justice Blackmun and the rational-basis review urged by
Chief Justice Rehnquist. However, the Casey plurality did not adopt ordinary,
intermediate scrutiny. 3 Rather than apply one of the recognized tiers of
scrutiny, the Court adopted the undue burden test, and in so doing, pointed to
two ballot-access cases—namely Anderson v. Celebrezze, 460 U.S. 780 (1983),
and Norman v. Reed, 502 U.S. 279 (1992)—that similarly applied a standard
of review that does not squarely fit into the established tiers of scrutiny. Casey,
505 U.S. at 873–74. The ballot access cases apply a flexible balancing test that
provides the State with leeway to regulate for a valid purpose, where such
regulation does not unnecessarily infringe upon individuals’ voting rights. Id.
The Court explained that the “abortion right is similar” in that courts must
weigh the individual woman’s right against the State’s legitimate interests.
Id. Therefore, we may look to the ballot access cases for guidance on how to
apply the undue burden standard. See id.; see also Strange I, 2014 WL
1320158, at *9-10 (discussing the Casey’s Court’s reference to the ballot-access
cases as indicative that the ordinary tiers of scrutiny do not apply to the undue
3For an example of traditional intermediate scrutiny, see, e.g., Wengler v. Druggists
Mut. Ins. Co., 446 U.S. 142, 150 (1980) (applying intermediate scrutiny to a gender
discrimination claim, requiring that a law be “substantially related” to the achievement of
“important governmental objectives”).
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No. 13-51008
burden standard announced in Casey but rather, “slight burdens may merit
slight scrutiny, while heavy burdens warrant heavy scrutiny”); 4 cf. Okpalobi v.
Foster, 190 F.3d 337, 354-55 (5th Cir. 1999), vacated on other grounds on reh’g
en banc, 244 F.3d 405 (5th Cir. 2001) (explaining that we are not without
guidance to apply the undue burden test’s purpose analysis, because a similar
inquiry is mandated in, for example, voting rights cases).
Anderson and Norman apply a fluid balancing test that does not function
as a “‘litmus-paper test’ that will separate valid from invalid restrictions.”
Anderson, 460 U.S. at 789. Rather,
4 In the final order in the Strange case, see Planned Parenthood Se., Inc. v. Strange,
No. 2:13-CV-405-MHT, 2014 WL 3809403 (M.D. Ala. Aug. 4, 2014) (hereinafter “Strange II”),
Judge Thompson further noted that Roe v. Wade’s companion case, Doe v. Bolton, 410 U.S.
179 (1973) was cited approvingly in Casey, see 505 U.S. at 874-5, and thus provides further
evidence that the Casey undue burden standard requires a balancing of the strength of the
State’s justifications against the extent of the burden imposed upon women. Strange II, 2014
WL 3809403, at *8-9. Specifically, in Doe, the Court reviewed a challenge to a Georgia
regulation that required, inter alia, that all abortions be conducted in hospitals, rather than
at clinics. In concluding that the law was unconstitutional, the Court considered
the burdens that such a clinic ban would impose on women seeking
abortions, [and thus] demanded from the State an honest accounting of the
health benefits of the hospital-only requirement. The Court ultimately struck
down the requirement, finding that the persuasive “mass of data” offered by
the plaintiffs and amici, tended to show that clinics with appropriate staff and
facilities were “entirely adequate to perform abortions,” while Georgia failed to
offer “persuasive data to show that only hospitals meet its acknowledged
interest in insuring the quality of the operation and the full protection of the
patient.” Doe, 410 U.S. at 195. Thus, despite acknowledging the State’s
legitimate interest in protecting women’s health, the Court carefully
considered the evidence on the degree to which the hospital regulation would
actually advance that interest.
Strange II, 2014 WL 3809403, at *8. Unlike the Abbott II panel, the Court in Doe
“required more than general statements of concern and claims that the regulations
conceivably might, in some cases, lead to better health outcomes; rather, the Court required
the State to establish, through evidence, that the regulation was strongly justified.” Id. at
*9.
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a court must first consider the character and magnitude of
the asserted injury to the rights protected by the [Constitution]
that the plaintiff seeks to vindicate. It then must identify and
evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule. In passing
judgment, the Court must not only determine the legitimacy and
strength of each of those interests; it also must consider the extent
to which those interests make it necessary to burden the plaintiff's
rights. Only after weighing all these factors is the reviewing court
in a position to decide whether the challenged provision is
unconstitutional.
Id. (emphasis added). The Casey plurality’s comparison to Anderson and
Norman as it explained the competing interests at stake in challenges to
abortion regulations reveals that, like the standard the Court applied in the
ballot-access cases, the undue burden test requires a court to consider the
“character and magnitude of the asserted injury,” Anderson, 460 U.S. at 789,
and determine whether the “corresponding interest [is] sufficiently weighty to
justify the limitation,” Norman, 502 U.S. at 288–89. Thus, the undue burden
test necessarily contains a proportionality principle: if a regulation has the
effect of imposing a particularly severe obstacle upon a woman’s right to an
abortion, then the government’s justification must be correspondingly strong.
See, e.g., Casey, 505 U.S. at 874, 901; Anderson, 460 U.S. at 789; see also
Strange I, 2014 WL 1320158, at *13; 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.”).
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The Casey Court adopted this flexible undue burden test, seeking to
balance the competing interests inherent in every challenge to an abortion
regulation. In so doing, the Court explained that “an undue burden is a
shorthand for the conclusion that a state regulation has 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. The undue burden test thus
requires that we determine: (1) whether the statute has a purpose of placing a
substantial obstacle in the path of a woman seeking an abortion, and (2) even
if the purpose of the regulation is for a valid state interest, whether the law
has such an effect. Id. If the state’s law has either the purpose or effect of
placing a substantial obstacle in the path of a woman’s choice to obtain a
previability abortion, it “cannot be considered a permissible means of serving
its legitimate ends.” Id. To determine whether the regulation has the effect of
creating a substantial obstacle to a woman’s right to a previability abortion,
courts must look to whether the law imposes an undue burden upon a “large
fraction of the cases in which [the regulation] is relevant.” Id. at 895. As
explained more fully infra, this inquiry requires weighing the magnitude of the
burden imposed against the extent and strength of the State’s justification for
the law. See, e.g., Casey, 505 U.S. at 900-01 (balancing the State’s legitimate
interest in collecting patient information—which the Court deemed a “vital
element of medical research”—against the only “slight” increase in cost of
abortions, and therefore upholding the challenged recordkeeping and reporting
requirements).
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Applying this undue burden standard to the challenged provisions of the
Commonwealth of Pennsylvania’s Abortion Control Act of 1982, 5 the Casey
Court facially invalidated one provision of the Act—the spousal notification
regulation, which required married women to seek consent from their
husbands before obtaining an abortion. Casey, 505 U.S. at 887-88. The
Commonwealth attempted to defend the spousal notification provision by
contending that it did not impose a substantial obstacle upon a large fraction
of women seeking abortions. Id. at 894. Specifically, the Commonwealth
argued that eighty percent of women seeking abortions are not married and, of
the married women seeking abortions, about 95 percent chose to notify their
husbands of the procedure. Id. Therefore, the Commonwealth reasoned, only
approximately one percent of women—a small fraction of women seeking
abortions—would be burdened by the regulation. Id. The Casey Court rejected
this argument and explained that “[t]he proper focus of constitutional inquiry
is the group for whom the law is a restriction, not the group for whom the law
is irrelevant.” Id. at 894. “The analysis does not end with the one percent of
5 The challenged provisions of the Act were summarized by the Court as follows:
The Act requires that a woman seeking an abortion give her informed
consent prior to the abortion procedure, and specifies that she be provided with
certain information at least 24 hours before the abortion is performed. For a
minor to obtain an abortion, the Act requires the informed consent of one of
her parents, but provides for a judicial bypass option if the minor does not wish
to or cannot obtain a parent’s consent. Another provision of the Act requires
that, unless certain exceptions apply, a married woman seeking an abortion
must sign a statement indicating that she has notified her husband of her
intended abortion. § 3209. The Act exempts compliance with these three
requirements in the event of a “medical emergency,” which is defined in § 3203
of the Act. In addition to the above provisions regulating the performance of
abortions, the Act imposes certain reporting requirements on facilities that
provide abortion services.
Id. at 844 (citations omitted).
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women upon whom the statute operates; it begins there.” Id. The Court held
that the spousal notification regulation had the effect of imposing a substantial
obstacle upon a large fraction of women because within the one percent of
women, there was a “significant number of women” for whom the provision
functioned as a restriction because they “fear for their safety and the safety of
their children [and] are likely to be deterred from procuring an abortion as
surely as if the Commonwealth had outlawed abortion in all cases.” Id.
(emphasis added). In drawing this conclusion, the Court considered the effect
of the provision in light of the particular, real-world circumstances of the
women “most affected by this law.” Id. at 897 (explaining that an effect of the
spousal notification provision is that women who “most reasonably fear the
consequences of notifying their husbands that they are pregnant [ ] are in the
gravest danger”).
Subsequently, in Gonzales v. Carhart, the Supreme Court applied Casey
to review a challenge to the Partial-Birth Abortion Ban Act of 2003, which
prohibited a particular form of surgical abortion, known as “intact dilation and
extraction” or “intact D & E,” a procedure performed in the second trimester of
pregnancy that is a variation on another surgical abortion procedure, referred
to as D & E. 550 U.S. at 135-36. Gonzales applied Casey’s undue burden test—
addressing first the purpose of the Act and then its effect, considering both the
State’s legitimate interests and the extent of the Act’s infringement upon a
woman’s right to procure a previability abortion. First, the Court analyzed the
purpose of the Act and concluded that it actually furthered the State’s
legitimate interests in protecting fetal life and thus satisfied the first prong of
the Casey undue burden analysis. Next, the Court analyzed the effect,
observing that the Act’s “furtherance of legitimate government interests bears
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upon,” but is not dispositive of, whether the Act has the effect of placing a
substantial obstacle on women. Id. at 161. The Court concluded that because
there are safe, alternative means for women to exercise their right to choose to
terminate a pregnancy previability, Congress’ ban on a single procedure did
not have an effect of placing a substantial obstacle in the way of a woman’s
right to obtain an abortion. Id. at 164. On balance, in light of the fact that the
Act actually advanced the government’s legitimate objectives, and that it did
not place a substantial obstacle in the path of a woman seeking to procure a
previability abortion, the Court upheld the Act as constitutional against
Plaintiffs’ challenge. Id. at 166-67. Gonzales thus applied Casey’s two-part
balancing test and did not introduce any additional aspects to the undue
burden standard. See id. at 168-69 (Thomas, J., concurring, joined by Scalia,
J.) (noting that he concurs in the opinion “because it accurately applies” Casey).
Accordingly, this court is obliged to subject the challenged provisions of
H.B. 2 to Casey’s undue burden balancing test. We must inquire as to whether
the law has the purpose or effect of placing a substantial obstacle in the path
of a woman seeking an abortion. Casey, 505 U.S. at 877. Pursuant to Casey,
we begin the “effects” analysis by considering the real-life situation of the women who
are actually affected by the regulation and ask whether, given these women’s
circumstances and the particular context in which the law is enacted, a
substantial obstacle is placed in the way of a large fraction of these women
whose liberty rights are actually restricted by the law. See id. at 894-97. In so
doing, we must look to the specific group of women for whom the provision in
question is relevant (i.e., for whom it is a restriction), and determine if the law
places a substantial obstacle in the way of a large fraction of those women. We
must consider these women’s circumstances—for example, whether they are
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No. 13-51008
impoverished or are prevented by some other relevant social factor, such as
local hostility and aggression towards abortion clinics and providers—in
combination with the direct effects of the admitting-privileges requirement, in
order to determine the extent of the burden that results from the regulation.
See id. at 897 (considering the particular circumstances of women in abusive
relationships). To determine whether the obstacle or burden is undue, we must
analyze the strength of the state’s justifications for the law and weigh it
against the magnitude of the burden imposed upon a woman’s liberty interest.
Id. at 847, 900-01; see also id. at 882-83 (weighing the State’s legitimate
interest in “protecting the life of the unborn by . . . ensuring a decision that is
mature and informed” with the slight burden imposed by requiring physicians
to provide women with literature regarding the “consequences to the fetus”).
Before addressing the ways in which the Abbott II panel misread the
Supreme Court precedent and neglected to adhere to the Casey undue burden
test, I will review the district courts’ findings of fact that support its legal
conclusions that H.B. 2’s admitting-privileges provision imposes substantial
obstacles and that the State’s justifications for the provision are weak or
nonexistent, and the wealth of record evidence that supports each of the
district court’s findings.
II. Factual Findings and Record Evidence Supporting the
District Court’s Opinion
In the district court, the parties presented competing evidence on both
sides of the undue burden test. After careful consideration of the live testimony
offered by the Plaintiffs, as well as each side’s sworn declarations, the district
court made various findings of fact with regard to the extent of the obstacles
imposed by the admitting-privileges provision and the questionable
justifications for the provision in light of the record evidence. Specifically, with
17
No. 13-51008
regard to the obstacles imposed by the admitting-privileges provision, the court
found that: (1) as a result of the admitting-privileges provision, abortion clinics
would close, Abbott, 951 F. Supp. 2d at 900; (2) the “Rio Grande Valley would
be left with no abortion provider because those providers do not have admitting
privileges and are unlikely to get them,” id.; (3) each hospital’s bylaws are
unique, requiring a variety of prerequisites, some of which abortion providers
will be “unable to ever meet,” id. at 900-01; and (4) finding physicians for hire
with active admitting privileges is “difficult because physicians’ contracts often
bar them from providing ‘moonlight’ services as abortion providers,” and
because physicians are “concerned about negative impact on their private
practice . . . either financially or as a result of attention from anti-abortion
protestors,” id. at 901. With regard to the State’s justifications for the
admitting-privileges provisions, the court found that a lack of admitting
privileges on the part of an abortion provider “make[s] no difference” in the
quality or timeliness of care received by an abortion patient in an emergency
room, nor does it improve communication between abortion providers and
emergency room physicians, id. at 899-900. The district court considered the
State’s evidence in support of the law and concluded that it was too slight to
justify the severe obstacles imposed by the admitting-privileges requirement
on a woman’s right to obtain an abortion.
We are obliged to review the district court’s findings of fact for clear
error. See, e.g., Okpalobi, 190 F.3d at 342, 357 (reviewing a challenge to an
abortion regulation and applying the clear error standard of review to the
district court’s factual findings); Voting for America, Inc. v. Steen, 732 F.3d 382,
386 (5th Cir. 2013) (“[T]he district court’s findings of fact are subject to a
clearly-erroneous standard of review.”). Accordingly, when analyzing the
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No. 13-51008
district court’s factual findings, we ask whether they are “plausible in light of
the record as a whole.” Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir.
2007). “If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (citing United
States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).
As discussed at length below, each of the five major findings by the
district court is substantially supported by the record evidence and,
consequently, is not clearly erroneous. Thus, the Abbott II panel’s reversal of
these findings contravenes Supreme Court and Fifth Circuit precedent
mandating clear error review.
A. Obstacles
On the obstacle side, the parties disagreed as to what effect the
admitting-privileges requirement would have on current and potential
abortion providers and what effect the elimination of abortion services in
various counties of Texas would have on women seeking abortion. The
Plaintiffs argued that the admitting-privileges requirement would pose a
substantial obstacle because few, if any, of the doctors who provide abortions
at their clinics will be able to secure the privileges required by the law and very
few, in any, other doctors who have or could secure admitting privileges will
begin performing abortions, either at the Plaintiffs’ clinics or in other settings
within the state. As a result, one third of the abortion clinics in Texas will
close, leaving abortion providers in only seven counties of Texas—the counties
containing the major urban centers—and leaving many impoverished and
19
No. 13-51008
rural areas, for example, the Rio Grande Valley, without any abortion
providers. The Plaintiffs presented evidence that, as a result of the closure of
approximately one third of Texas abortion clinics and the remaining clinics’
inability to meet the inevitably increased demand, approximately 22,000
women per year will be precluded from accessing abortion services in Texas.
The State asserted that the obstacles for women would be minor and that
the Plaintiffs’ doctors may be able to secure privileges that satisfy the law and
that, if they are unable to, other doctors would take their places. The State
further contended that, even if the admitting-privileges requirement renders
abortions unavailable in some areas of Texas, women seeking abortion would
experience only minimal obstacles or inconveniences that do not rise to the
level of substantial obstacles. The district court rejected the State’s argument
and concluded that clinics will close; the Rio Grande Valley will be without an
abortion provider; current abortion providers will be unable to obtain the
requisite admitting privileges; and it will be difficult or impracticable to secure
new doctors to provide abortions at the closed clinics in Texas. As illustrated
by the following summary of record evidence, the Abbott II panel erroneously
disregarded the district court’s findings of facts and substituted its own de novo
findings, although each of the district court’s factual findings are substantially
supported by the record evidence.
1. The Closure of Abortion Clinics
Plaintiffs presented the findings of Joseph Potter, Ph.D., who is an
Associate Professor of Demography at the Harvard School of Public Health, a
Professor of Sociology at the University of Texas, Austin, earned a Ph.D. from
Princeton University in economics, and is the principal investigator for the
Texas Policy Evaluation Project. Potter was certified by the court as an expert
in demography, and testified to his expert opinions in this regard, and not
20
No. 13-51008
merely as a “sociology professor”—as the Abbott II panel characterized him.
See Abbott II, 748 F.3d at 591. Potter, after conducting a survey of data
available from 2011 until the present and investigating, inter alia, the current
status of abortion providers’ admitting privileges, 6 concluded that the
admitting-privileges provision will result in the loss of abortion clinics in six
Texas counties—Bell, Cameron, Hidalgo, Lubbock, McLennen, and Tarrant—
and that only seven counties in all of Texas will be left with an abortion
provider. Based on Potter’s research, analysis, and calculations, he concluded
that, if H.B. 2 goes into effect, at least a third of the clinics in Texas will close,
and as a result, over 22,000 women annually will not be able to access abortion
services. 7
6The Abbott II panel criticizes Potter’s evidence as unscientific and biased because he
obtained his evidence from interested parties, including some of the named Plaintiffs. The
Abbott II panel misrepresented Potter’s statement that, because he relied on information
provided from abortion providers and other interested parties, “there is no science there.”
Abbott II, 748 F.3d at 593. The Abbott II panel cited this testimony to suggest that Potter
concedes that his evidence is unreliable, when in actuality, Potter stated, “[t]here’s no science
there. It’s just evidence.” (emphasis added). Potter appears not to concede anything, but to
simply acknowledge that in the field of demography, a social science, an expert’s calculations
and conclusions are based on evidence obtained from affected individuals. Such
methodologies are the regular and accepted practice in demographic research, and, as
explained by Potter, are “consistent with the most rigorous and highest standards of
demography to rely on that kind of factual information.”
7 The Abbott II panel cited one of the State’s experts, Dr. Uhlenberg’s, attestation that
any remaining clinics would perform more abortions as the demand increased, purportedly
casting doubt upon Potter’s conclusion that over 22,000 women would be unable to access
abortion services in Texas after H.B. 2 is implemented. Uhlenberg’s declaration, however,
ignores Potter’s explanation of his finding that, in addition to an increase in demand,
enactment of the admitting-privileges provision would simultaneously result in a decrease in
capacity among abortion facilities that manage to remain open in Texas. Potter’s declaration
and testimony not only established a detailed account of the increased demand, but a
corollary decrease in capacity, and a resulting inability of women to promptly access abortion
treatment. Uhlenberg’s affidavit in no way renders the district court’s finding that clinics
will close clearly erroneous.
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No. 13-51008
The Plaintiffs’ other evidence corroborated Dr. Potter’s findings. For
example, Dr. Paul Fine testified that his organization’s Fort Worth surgery
center will have to stop providing abortion services because all of the providers
who reside in Dallas will be unable to obtain admitting privileges at the Fort
Worth hospital. Amy Hagstrom-Miller, the Founder and CEO of Whole
Woman’s Health (“WWH”), likewise testified that, in Fort Worth, the WWH
facility—which accounts for one third of the abortion providers in the Fort
Worth area—will close because the facility does not employ any physicians
with local admitting-privileges. Dr. Fine further testified that, in West Texas
(specifically, in Lubbock County and the city of Waco), all of the current
providers travel from hundreds of miles away to provide abortion services and
thus will be ineligible for admitting privileges at local hospitals. Additionally,
Darrel Jordan, M.D., the Chief Medical Officer of Planned Parenthood of
Greater Texas (“PPGT”), attested via sworn affidavit that, if the admitting-
privileges provision takes effect, three of the four clinics that PPGT owns—
namely, clinics providing abortion services in Austin, Fort Worth, and Waco—
will close. From this evidence, the district court plausibly found that clinics
throughout Texas will close.
The Abbott II panel criticized the district court for its “vague” and
“imprecise” findings. Abbott II, 748 F.3d at 597. However, perfect precision is
not what is required to satisfy clear error review. The district court’s finding,
while not specific or detailed, is adequately supported by the record evidence,
plausible in light of the evidence taken as a whole, and thus not clearly
erroneous. Rivera, 505 F.3d at 360; see also Voting for America, Inc., 732 F.3d
at 386.
22
No. 13-51008
2. Rio Grande Valley Will be Without an Abortion Clinic
The district court found that all “24 counties in the Rio Grande Valley
[will] be left with no abortion provider.” Abbott, 951 F. Supp. 2d at 900. The
Abbott II panel concluded that this finding of fact was clearly erroneous for two
reasons. First, the panel correctly notes that there are only four, not 24,
counties in the Rio Grande Valley. However, as Plaintiffs contend, this error
was likely typographical and probably a result of the court’s efforts to issue an
opinion before the admitting-privileges provision was set to go into effect—less
than one week after the completion of trial. Such an error does not render the
district court’s finding that the Rio Grande Valley will be without an abortion
provider clearly erroneous, given that (as will be discussed directly below) the
record adequately supports the substance of this finding—that the region will
lack any abortion providers after the admitting-privileges provision goes into
effect.
In addition to faulting the district court for its apparent typographical
error, the Abbott II panel concluded that the court’s finding that the Rio
Grande Valley would be without an abortion provider was clearly erroneous
because the court only accepted evidence as to one of the two clinics in the Rio
Grande Valley, and that the other evidence was excluded as hearsay. Abbott
II, 748 F.3d at 597. Before H.B. 2 went into effect, there were two clinics in
the Rio Grande Valley that provided abortion services—the WWH’s McAllen
facility, and the Reproductive Health Care and Health Services Facility
(“RHCHS”). The panel reasoned that because Amy Hagstrom-Miller’s
testimony regarding the RHCHS facility was excluded as hearsay, the court
only heard admissible evidence as to whether the WWH facility would close,
and thus it was clearly erroneous to conclude that both clinics would close. Id.
23
No. 13-51008
at 597, n.12. However, the panel overlooks the un-objected-to live testimony
of Andrea Ferrigno, the Corporate Vice President of WWH, which establishes,
with admissible evidence, that both of the two clinics in the Rio Grande Valley
will close.
Specifically, Ferrigno testified that the RHCHS Facility and the WWH’s
McAllen facility will both close as a result of the admitting-privileges provision.
At the time of trial, Ferrigno testified that the RHCHS Facility had already
announced its impending closure, and that the WWH’s McAllen clinic would
also close because none of its providers has admitting privileges, and therefore,
“people won’t have access to safe legal services in the entire Rio Grande
Valley.” Id. This information regarding both clinics’ closures in the Rio Grande
Valley is also contained in Ferrigno’s sworn declaration, which was admitted
into evidence by the district court under the residual hearsay rule, FED. R.
EVID. 807. See Abbott, 951 F. Supp. 2d at 897, n.3 (“The court overrules
Planned Parenthood and the State’s objections [to the use of declarations at
trial because] admitting the declarations will best serve the rules of evidence
and the interests of justice.”) (emphasis added). Therefore, contrary to the
Abbott II panel’s conclusion, the district court’s finding that the only two clinics
in the Rio Grande Valley will close is not clearly erroneous because it was
supported by admissible record evidence.
3. Abortion Clinic Physicians Will be Unable to Meet
Hospitals’ Varying Prerequisites to Admitting Privileges
The district court’s finding that each hospital’s bylaws are unique and
have a variety of prerequisites for granting admitting privileges, some of which
abortion providers will be unable to meet, is supported by the record. For
example, Andrea Ferrigno testified that, before granting admitting privileges,
hospitals have various facial requirements, including that the physician
24
No. 13-51008
maintain a local residence, be board certified, and have a minimum number of
hospital admissions and surgeries. Ferrigno testified that her current abortion
providers would not qualify for many hospital admitting-privileges
applications because they would not meet the hospitals’ residency
requirements nor do they have the number and type of prior hospital
admissions typically required. For example, some hospitals require at least 50
deliveries, five C-sections, and 25 gynecological surgical procedures during the
24-month period preceding the physician’s application. Ferrigno testified that,
in the last five years, her physicians have seen approximately 50,000 abortion
patients, and only eight to ten of those patients required a transfer from the
clinic to a hospital. Her providers thus do not regularly admit or treat patients
at hospitals and, consequently, will not meet the hospitals’ admission or
surgery prerequisites for obtaining admitting privileges. Further, many of the
abortion providers completed their licensures decades ago, when it was less
common to have board certification, and therefore will not meet the board
certification requirement.
Likewise, Dr. Paul Fine testified that his organization’s Fort Worth
surgery center will have to stop providing abortion services because all of the
providers, who reside in Dallas, will be unable to obtain admitting-privileges
at the Fort Worth hospital, which requires physicians to maintain a local
residence. Dr. Jennifer Carnell similarly testified that, if abortion providers
travel away from their county of residence to conduct abortion services—a
common practice given that 87 percent of counties in the United States are
without an abortion provider—then local Texas hospitals will not grant the
physician privileges. For example, he testified that, in West Texas, where all
of the providers travel hundreds of miles or from out of state to provide abortion
25
No. 13-51008
services, the physicians will be unable to comply with the admitting-privileges
provision. The district court therefore did not clearly err when it found that
the vast majority of abortion providers in Texas will be unable to obtain
admitting privileges at local hospitals.
4. Finding Local Physicians with Active Admitting
Privileges is Difficult and Unlikely
The district court found that abortion clinics will be unlikely to find
physicians with active admitting privileges because physicians’ contracts often
“bar them from providing ‘moonlight’ services as abortion providers,” and
physicians are concerned about the negative impact on their careers by
associating with an abortion provider, either for financial reasons or negative
attention from anti-abortion protestors. Abbott, 951 F. Supp. 2d. at 901. The
district court directly referenced record evidence that supports this finding of
fact. For example, the district court noted Amy Hagstrom-Miller’s testimony
that some physicians’ contracts with hospitals “prevent[] them from working
with abortion care on the side.” The evidence further demonstrated that, even
when abortion care is not forbidden outright, some local hospitals are averse
to associating with abortion providers. For example, Andrea Ferrigno attested
that in at least three attempts to contact hospitals about obtaining admitting
privileges for her physicians, the hospitals’ personnel verbally discouraged her
from pursuing an application “because of hostility against abortion providers
among members of the hospital’s governing board.”
Furthermore, the Plaintiffs presented evidence that hostility,
harassment, and violence from anti-abortion protestors towards abortion
providers, clinics, and patients will deter local physicians with admitting
privileges from providing services. For example, Dr. Jordan attested that in
the small and “extremely socially conservative community” of Fort Worth, any
26
No. 13-51008
resident abortion provider would face “routine harassment, social and
professional ostracism, and even a significant risk of violence (all of which
extend to his or her family as well).” He added that, “[h]ostility to abortion
also makes it impossible to hire a new doctor who lives in Fort Worth and has
privileges at a local hospital.” Similarly, Angela Martinez, the Clinic Director
of Planned Parenthood Women’s Health Center in Lubbock, Texas, attested
that anti-abortion protestors harass the health center employees every day her
clinic is open. Martinez explained that at her facility, anti-abortion protestors
shout insults at us every day, take pictures of us (and take
down license plate information), refer to employees by name, and
have protested outside employees’ homes and posted pictures of
employees online with their names. Because physicians are the
biggest target of antiabortion harassment and violence . . . I am
unaware of any Lubbock physician ever having performed
abortions. . . .[F]or decades . . . the physicians who performed
abortions [in Lubbock] have travelled . . . from another part of the
state, most frequently from Dallas.
Likewise, Hagstrom-Miller testified that at the WWH facilities, they
regularly have protestors, have received bomb threats, and receive threatening
phone calls. Further, staff are followed and sometimes the physicians are
harassed when they are coming to and from work. Hagstrom-Miller also
testified regarding “Operation Rescue,” an anti-abortion effort that targeted
two physicians, publishing their names online, apparently to encourage
attention and further harassment from anti-abortion protestors. Hagstrom-
Miller testified that physicians will be deterred by this “very regular[]”
occurrence of harassment and violence committed against abortion providers.
27
No. 13-51008
She recalled at least two physicians who changed their mind about working for
WWH and one who quit based on anti-abortion harassment. She testified that
because of this local hostility, she has been flying in two providers from out of
state to be able to meet the needs of women in the local communities. The
district court’s finding that abortion facilities are unlikely to be able to hire
local physicians to perform abortion services is thus adequately supported by
the record.
5. Additional Record Evidence of Obstacles: Loss of
Capacity, Poverty, Travel Distances, and Other Factors
Affecting Access to Abortion
In addition to the record evidence substantiating the district court’s
express findings of facts, the Plaintiffs also presented evidence that supports
the district court’s legal conclusions, but which the court neglected to reference
expressly. First, the evidence established that, as a consequence of the clinic
closures, the remaining clinics will be unable to meet the increased demand for
abortion services, resulting in substantially diminished access to abortion for
women in Texas. Dr. Potter explained that, while some clinics may remain in
operation because they employ one or more physicians with local admitting
privileges, these remaining clinics may have a reduced capacity, as not all of
their physicians on staff have the requisite privileges. While capacity is
reduced, the demand upon these limited facilities will be increased, as women
who would have otherwise obtained abortion services from closed facilities,
now will seek services at the remaining providers. Based on the increase in
demand and simultaneous reduction in capacity, Potter found that
in five of the seven counties [that will still have abortion
clinics after the admitting-privileges provision goes into effect],
there will be a substantial increase in the projected volume of
28
No. 13-51008
services required due to closure of clinics in other counties that will
no longer have a provider. Moreover, there will be a substantial
reduction in the capacity to provide services in four of these five
counties. . . . All told, the projected demand for abortion care
statewide is 68,8889, and the expected capacity after
implementation of the law is only 43,850. The implication is that
25,039 women will not be able to access abortion care in the state,
even if they could travel the long distances necessary to access the
nearest clinic with capacity to serve them. Eighty-nine percent of
this deficit, or 22,286 abortions, is due to closures that will occur
as a result of the implementation of the challenged provision.
The Plaintiffs presented Potter’s specific calculations regarding the
capacity and demand for each county in which there would be a substantial
change. For example, in Bexar County, where there were once eight abortion
providers, after the admitting-privileges provision goes into effect, only three
will remain—one of which will function at an extremely limited capacity.
Therefore, the providers that will remain in operation in Bexar County will be
unable to meet the demand for abortion services. 8 Angela Martinez, the Clinic
8 More specifically, in Bexar County, at the time of trial, there were five clinics (three
have closed since 2011 after funding cuts). Potter concluded that two would close after the
law was implemented and that one would have extremely limited capacity. Potter projected
the demand at 7,006 abortions per year and capacity was calculated at 4,250. Thus, the
projected volume would exceed capacity by 2,750 abortions annually. In Dallas, Potter
attested that two of the five clinics would close and the projected volume will “increase
dramatically” by 51% to 22,598. The capacity in Dallas would then only be approximately
12,5000, barely more than half the expected demand volume. Potter concluded that the
projected volume would therefore exceed capacity by 10,098 abortions per year.
In El Paso, Potter found that one of two clinics would close and the projected volume
would exceed capacity by approximately 2,500 abortions per year. In Harris County, three
or four of the ten providers would close and the projected volume increase on remaining
clinics will be approximately 16%. In Neuces County one clinic was expected to stay open,
29
No. 13-51008
Director of Planned Parenthood Women’s Health Center, corroborated this
evidence in her declaration, attesting that when nearby clinics in Midland,
Abilene, and San Angelo closed in recent years, their Lubbock facility has as a
result been “inundated with patient calls” and are currently “scheduling
patients up to a month in advance.” Similarly, Hagstrom-Miller testified that
in Austin she has one physician with privileges and one without so, after the
admitting-privileges provision goes into effect, her capacity to provide services
at her Austin facility will decrease by 50%.
An inevitable result of the reduced capacity of abortion providers in
Texas is an increase in delayed services for abortion patients. Potter attested
that reduction in supply and increase in demand will mean that the “delays to
obtain an appointment with many providers will increase, and some providers
may turn patients away entirely.” (emphasis added). He attested that
“[a]bortion is of course a time-sensitive procedure: having to wait a few weeks
may make it impossible for women to get an abortion.”
In addition to the increased demand and delay that the Plaintiffs’
established will result from the admitting-privileges provision, the evidence
demonstrated that because of the various clinic closures, women in the
panhandle and other parts of West Texas will have to travel vast distances to
seek in-state abortions, and that a large percentage of women who seek
abortion services are impoverished and will therefore be precluded from ever
obtaining abortion services. Potter testified that, in the panhandle of Texas,
but would have an 182% increase in volume due to the expected closures of the only two
clinics in the Rio Grande Valley, and the Neuces County Clinic thus was unlikely to meet the
increased demand. In Travis County, Potter found that three of the four clinics were expected
to stay open, but would experience a volume increase of 26%. Potter concluded that the
projected volume for Travis County would exceed capacity by 3,401 abortions per year.
30
No. 13-51008
women will have to travel 400-500 miles to access legal abortion services. He
explained that “[s]ome women who would otherwise have gotten an abortion
will be prevented from doing so by these burdens.” Potter also testified that
the number of women across Texas who will be required to travel over one
hundred miles to obtain an abortion will double, and that in “multiple
counties,” the travel distance for women seeking abortions will “exceed 400
miles.” Furthermore, the evidence demonstrated that there will be no abortion
clinics west of Interstate 35, requiring women in certain West Texas areas to
travel between six and eight hours to access an abortion clinic.
The Plaintiffs’ evidence established that nearly half of abortion patients
in Texas are below the federal poverty line and therefore will be unlikely to be
able to travel these long distances to access abortion services. Specifically,
data from Dr. Potter’s research in Texas indicated that approximately 40% of
women seeking abortion are at or below 100% of the Federal Poverty
Guidelines.” Angela Martinez attested that most of Planned Parenthood
Women’s Health Center’s clients in Lubbock are parents below the federal
poverty line who “often have trouble obtaining use of a car and the resources
to pay for gas, permission from their employer to take the necessary time off,
and/or childcare.” As Potter attested, the burden of travel is higher for younger
women, women of color, and low-income women, who have fewer resources to
overcome the increased cost of further travel. Martinez’s experience confirms
this, as she has repeatedly heard from patients that the additional distance
will make it impossible for them to obtain an abortion. Martinez attested that,
“[b]ased on [her] familiarity with [the clinic’s abortion] patients and their
already-difficult situations, I believe that this change [in the law] would be
extraordinarily difficult for almost all of our patients, and could prevent many
31
No. 13-51008
of them from obtaining an abortion at all.” Ferrigno similarly testified that
that the reality is that for women in the Rio Grande Valley to travel to Corpus
Christi or San Antonio for abortion services will require “a lot of arrangements
and expenses.”
In addition to the Plaintiffs’ evidence that the admitting-privileges
provision will severely diminish women’s access to abortion services, the
evidence demonstrated that the provision will be particularly burdensome on
women seeking abortions who have been pregnant for sixteen weeks or longer.
Prior to implementation of H.B. 2, Texas law required that an abortion
performed at sixteen or more weeks after pregnancy must be conducted at an
ambulatory surgical center (“ASC”). At the time of trial, there were only six
providers in the state that are licensed as ASCs. Potter attested that three of
these ASCs will stop providing services as a direct result of the admitting
privileges law, leaving only three operating ASCs in Texas (located in Dallas,
Houston, and San Antonio). Dr. Jordan likewise attested that his facility
(Planned Parenthood of Greater Texas) operates the only ASC in both Austin
and Fort Worth—which are two of the six total ASCs providing abortion
services in the state—and both of those facilities will have to close after
enactment of the law. Therefore, women throughout all of Texas will only have
three locations where they can legally obtain an abortion after sixteen weeks
of pregnancy.
In light of this abundance of evidence supporting the district court’s
findings of facts regarding the ways in which H.B. 2’s admitting-privileges
provision imposes obstacles upon a woman’s right to obtain a previability
abortion, the Abbott II panel erred in rejecting the district court’s findings.
32
No. 13-51008
B. Justifications
The parties disagreed about the strength of the State’s justifications for
the admitting-privileges requirement. According to the State, the admitting-
privileges requirement has two strong justifications, both grounded in the
State’s legitimate interest in protecting women’s health. Primarily, it argued
that the requirement ensures proper care for complications. Furthermore, it
asserted that the requirement has a secondary benefit of “credentialing” high-
quality doctors. After considering the State’s evidence that was submitted to
support its argument that the admitting-privileges provision advances patient
care and protects women’s health, the district court rejected the State’s
arguments and found that an abortion doctor’s “lack of admitting privileges is
of no consequence when a patient presents at a hospital emergency room,”
because “emergency-room physicians treat patients of physicians with
admitting privileges no differently than patients of physicians without
privileges” and therefore the admitting-privileges provision has no effect on
the quality or timeliness of care received, nor does it impact the ability of
providers and physicians to communicate any necessary health information.
Id. at 899-900.
1. Admitting Privileges Have No Bearing on Quality or
Timeliness of Care, nor on Communications
Between Abortion Providers and Emergency Room
Physicians
The Plaintiffs presented evidence that on the extremely rare occasion
that an abortion patient requires hospital admission because of a complication
from an abortion procedure, the patient is treated just as all patients are—she
is independently assessed and diagnosed by the emergency room medical staff,
without the need to rely upon a patient’s treating or referring physician.
Plaintiffs presented the testimony and sworn declaration of Dr. Paul Fine, who
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No. 13-51008
is board-certified in obstetrics and gynecology, a Fellow of the American
Congress of Obstetricians & Gynecologists, a Professor in the Departments of
Obstetrics & Gynecology and Urology at the Baylor College of Medicine in
Houston, the Medical Director of Planned Parenthood Gulf Coast and Planned
Parenthood Center for Choice, Inc., the Medical Director of Emergency Medical
Services (“EMS”) for three cities in Galveston County, Texas, and who has
nearly four decades of experience providing abortions, teaching abortion
methods, and supervising the provision of abortion services. Dr. Fine testified
that when an abortion doctor is unable to communicate with a treating
physician or abortion provider, this does not hinder the care the patient
receives. Rather, “[t]he treatment of most [abortion] complications are very
straightforward . . . and treated the same way.” If an abortion patient requires
hospitalization for a complication following an abortion procedure, medical
staff at the hospital will determine whether an on-call ob/gyn will need to be
involved, or whether another “sub-specialist” will be necessary to treat the
patient. Dr. Fine attested that “all ob/gyns, regardless of whether they perform
abortions, are qualified to manage the care of a patient experiencing a
complication from an abortion.”
In addition, Dr. Jennifer Carnell, an emergency physician, assistant
professor at Baylor College of Medicine in emergency medicine, the director of
the emergency ultrasound fellowship, and who is board-certified in emergency
medicine, was certified by the court as an expert in the field of emergency
medicine. Dr. Carnell testified that if an abortion patient presents at a
hospital with a rare, severe complication, the abortion provider will not be the
physician performing the treatment; rather, the on-call ob/gyn at the hospital
will provide the necessary care. Thus, an abortion provider’s inability to
34
No. 13-51008
personally admit his patient into a local hospital does not impede the patient’s
treatment in any way and does not constitute “abandoning” the patient, as the
State contended. Instead, the patient is cared for by those physicians who can
best perform the procedure—emergency room physicians who “do these
surgeries every day.” Dr. Fine explained that
admitting privileges are . . . irrelevant to providing optimal
care in the event of a complication because the physician who
provides the abortion may not be the appropriate physician to
manage the patient’s care in the hospital, regardless of whether
the physician has privileges there. Given that abortions have such
a low complication rate, abortion providers may . . . only rarely
perform the types of surgeries . . . that may be necessary to treat a
complication, while the on-call ob/gyn at the hospital will have
more experience doing these procedures . . . .
Dr. Fine also attested that “[g]iven how specialized the practice of
medicine has become, particularly in a hospital setting, such handoffs to the
appropriate specialists are common and necessary across medicine.”
Dr. Fine further stated that the “admitting privileges requirement
is . . . unnecessary and irrelevant to providing optimal care because of the
distances some women travel to obtain an abortion.” Dr. Fine explained that
generally, when complications occur, a woman will begin to experience the
complication after she has left the clinic and returned home. “If, after
discharge from the abortion clinic, a woman who lives outside the area where
she obtained her abortion experiences a complication that requires hospital
treatment, it makes no sense for her to travel to be treated at a hospital near
the abortion clinic just because her abortion provider has admitting privileges
35
No. 13-51008
there.” Rather, she should and likely would go to the closest hospital
emergency room to get prompt treatment. Dr. Fine explained that, “[i]n an
emergency or potential emergency situation, no physician, or EMT, would
countenance going further than necessary just to get to a hospital where her
abortion provider has privileges.”
Dr. Fine explained that the current professional standards therefore
suggest only that abortion clinics have “arrangements in place for transferring
patients who require emergency treatment,” but do not require that the
“physician performing abortions have admitting privileges at a hospital.” Such
is the recommendation from the American Congress of Obstetricians &
Gynecologists, as well as Planned Parenthood Federation of America, and the
National Abortion Federation. Moreover, prior to implementation of H.B. 2,
Texas law required the same for abortions performed after sixteen weeks of
pregnancy or later—riskier procedures than abortions performed before
sixteen weeks that are required to be performed in a licensed ASC. And,
notably, physicians who perform more dangerous outpatient surgeries at
ASCs, such as hysterectomies or pelvic constructive surgeries, are likewise
only required to have either written transfer agreements or hospital admitting
privileges, and therefore are not required to have hospital privileges. Dr. Fine
opined that in his expert opinion, “there is no reason to place a more onerous
requirement on doctors who provide abortions prior to 16 weeks, . . . than is
placed on providers of much more risky [non-abortion] surgeries performed in
ASCs.”
The record evidence also established that legal abortion is one of the
safest medical procedures in the United States. Jennifer Carnell, M.D.,
testified that in her nine years of experience in emergency medical care, she
36
No. 13-51008
has seen less than ten patients come to the emergency room following an
abortion procedure; only five of those patients actually required admission; and
none were critically ill. The evidence established that the risk of a woman
experiencing a complication that requires hospitalization is less than 0.3%.
The risk of death associated with childbirth is approximately fourteen times
higher than that associated with abortion, and every pregnancy-related
complication is more common among women having live births than among
those having abortions. In fact, the risk of death associated with abortion is
almost three times less than that associated with using penicillin, which could
in some rare cases result in anaphylactic shock. Thus, the few abortion
patients who develop serious problems are referred to hospital emergency room
physicians who may call in other on-staff specialists if necessary.
The evidence therefore established that it is not necessary for an
abortion doctor to have admitting privileges to refer patients to a hospital
emergency room doctor, and requiring them to have admitting privileges will
not increase the speed or quality of medical care for the few abortion patients
that need such attention after an abortion. Given the record evidence that
emergency room physicians are adequately trained to assess and treat any
abortion complications, and that in the rare instance of a severe complication
from an abortion, the on-call ob/gyn is better suited to perform the necessary
treatment, the district court did not clearly err by finding that the admitting-
privileges provision does nothing to improve quality of care for abortion
patients who require emergency treatment. 9
9 See also Brief of Amicus Curiae, the American College of Obstetricians and
Gynecologists and the American Medical Association, at 1, Abbott II (No. 13-51008) (“There
is simply no medical basis to impose a local admitting privileges requirement on abortion
37
No. 13-51008
Additionally, the Plaintiffs’ evidence supports the district court’s finding
that the admitting-privileges provision does not improve communication
between abortion providers and emergency room physicians, nor is there any
evidence that such a communication problem exists. The Plaintiffs’ evidence
established that emergency room physicians generally have no need to consult
with an abortion provider whose patient presents at the hospital because the
hospital physicians have the requisite skills necessary to treat abortion
complications, which are often similar to symptoms of a spontaneous
miscarriage—a condition that emergency room physicians treat regularly. Dr.
Carnell testified that all of the abortion patients she has treated in the
emergency room had pain and vaginal bleeding—conditions “well within [her]
purview” of practice that did not require communication with the abortion
provider. Further, even in severe cases of hemorrhage or sepsis, emergency
room physicians see those conditions “all the time” and are “trained and very
comfortable treating” them. Dr. Fine similarly attested that “[e]mergency
room physicians are qualified to initially evaluate and treat most
complications . . . [s]uch skills are the same as those needed for the treatment
of spontaneous miscarriages.”
Moreover, the evidence established that Texas regulations in place
before the enactment of H.B. 2 adequately provided for effective
communication between abortion providers and emergency room physicians.
Under Texas law prior to enactment of H.B. 2, all physicians who practice at
any licensed abortion facility must
providers.”); id. at 6 (“The care a woman receives at the emergency room is independent of,
and not contingent on, her abortion provider having admitting privileges.”).
38
No. 13-51008
have admitting privileges or have a working arrangement
with a physician(s) who has admitting privileges at a local hospital
in order to ensure the necessary back up for medical complications.
[The facility also must] have a readily accessible written protocol
for managing medical emergencies and the transfer of patients
requiring further emergency care to a hospital.
25 TEX. ADMIN. CODE § 139.56(a). Texas law also already required all
women undergoing abortions to be provided a “telephone number by which
[she] may reach the physician, or other health care personnel employed by the
physician or by the facility where the abortion was performed or induced with
access to the woman’s relevant medical record, 24 hours a day to request
assistance for any complications that arise from the performance or induction
of the abortion or ask health-related questions regarding the abortion.” See
TEX. HEALTH & SAFETY CODE § 171.0031(2)(A).
Dr. Carnell testified that “very rarely, if ever,” do the referring
physicians have admitting privileges at her hospital and, yet, to provide
optimal care, she is able to have all the information she needs communicated
to her over the telephone. Carnell testified in her expert opinion that she
would not be better able to communicate with a referring physician if that
physician had admitting privileges at the hospital. Carnell has in fact never
seen an outpatient physician—either after an abortion procedure or any other
outpatient procedure—accompany his or her patient to the hospital to
communicate with the emergency room physician. Instead, if an emergency
room physician needs to communicate with a referring physician, that
communication occurs via telephone. Andrea Ferrigno similarly attested to
WWH’s practice of ensuring that the abortion provider speaks with the
39
No. 13-51008
emergency room’s admission staff and the backup physician via telephone to
ensure any necessary information is transmitted to the caregiver at the
hospital. Dr. Fine similarly testified that it is the “standard medical practice”
for an emergency room physician to communicate with an abortion provider by
telephone, regardless of whether the provider has admitting privileges at the
hospital. Dr. Fine added that when a patient is transferred to the hospital
from an abortion clinic by ambulance, the patient is transferred with a copy of
her records that contain all the necessary information for proper continuity of
care, including, for example, the procedure performed, any medication already
provided, and anything else that occurred at the outpatient clinic. Accordingly,
the district court did not clearly err in concluding that there is no evidence of
a harmful communication problem between abortion providers and emergency
room physicians and that, even if there were one, H.B. 2 does not improve any
potential communication issues.
As noted, the district court also found that the admitting-privileges
provision does nothing to get patients faster access to care, because the practice
at hospitals is to treat all patients, regardless of their treating physician, with
“all possible haste.” Abbott, 951 F. Supp. 2d at 900. Dr. Carnell testified that
all patients at the emergency room go through triage, where an emergency
room medical staff “sees [the patient] quickly, evaluates their vital signs, and
then [the patient is] placed . . . on a list to be seen.” The entire triage process
happens in under three minutes, regardless of whether the patient’s treating
physician has admitting privileges at the hospital. Dr. Fine likewise testified
that “if the [abortion] patient in the rare situation needs to go to the operating
room,” her abortion providers’ lack of admitting privileges has no bearing on
how quickly the operation will occur because a physician, with or without
40
No. 13-51008
admitting privileges “can’t reserve an operating room for [her] patient,” but
rather, patients are treated based on the gravity of his or her condition and
need for immediate treatment. Thus the district court’s finding that the
admitting-privileges provision is of no consequence to abortion patient’s
treatment at an emergency room is not clearly erroneous.
2. The District Court Properly Found that the
State’s Evidence Did not Support Its
Justification Arguments
In response to the Plaintiffs’ evidence, the State submitted seven sworn
declarations in an effort to establish that the admitting-privileges provision
improved quality of care for abortion patients and increased effective
communication between abortion providers and emergency room physicians.
The Abbott II panel summarized the State’s evidence regarding the
justifications for the provision as follows:
Dr. John Thorp, a board-certified Ob/Gyn, . . . referred to
several studies [to support his assertion that the provision
improves continuity of care], including a report of a joint
commission of hospitals, including Johns Hopkins, Mayo Clinic,
and New York Presbyterian, which concluded that “80 percent of
serious medical errors involve miscommunication between
caregivers when patients are transferred or handed-off.” Dr.
James Anderson, an ER physician, also testified that an abortion
provider with admitting privileges is better suited than one not
admitted to know which specialist at the hospital to consult in
cases where an abortion patient presents herself at an ER with
serious complications. Further, Dr. Thorp doubted that without
the admitting-privileges requirement hospitals in Texas could, as
41
No. 13-51008
Dr. Fine suggested, promptly treat women with abortion-related
complications. This was because 73 percent of ERs nationwide,
according to a statistic cited by Dr. Thorp, lack adequate on-call
coverage by specialist physicians, including Ob/Gyns. Thus,
requiring abortion providers to obtain admitting privileges will
reduce the delay in treatment and decrease health risk for abortion
patients with critical complications.
Dr. Thorp also opined that the admitting-privileges
requirement would ensure that only physicians “credentialed and
board certified to perform procedures generally recognized within
the scope of their medical training and competence” would provide
abortions. Dr. Mikeal Love, a board-certified Ob/Gyn, concurred
that the admitting-privileges provision enlists hospitals to “screen
out” untrained and incompetent abortion providers, who could not
continue in the abortion practice if they were not able to obtain
admitting privileges. . . .
Finally, Dr. Thorp disputed Dr. Fine’s conclusions as to the
percentage of abortions that result in complications. According to
Dr. Thorp, the 0.3 percent estimate of women requiring
hospitalization from abortion complications is based on data that
are thirty-eight years old. Dr. Thorp further testified that
complications from abortion are underreported, and he cited a
study indicating that only one-third to one-half of abortion patients
return to their clinic for follow-up care.
Abbott II, 748 F.3d at 592-93. Nothing in the State’s evidence, either
summarized by the panel or contained in the record, makes the district court’s
42
No. 13-51008
findings of fact implausible and, thus, this court is obliged to uphold the district
court’s findings, detailed supra. Further, the panel’s representation of the
record evidence mischaracterizes the strength of the State’s evidence.
First, with regard to the State’s contention that the admitting-privileges
provision improves continuity of care and communication between abortion
providers and emergency room physicians, the district court rejected this
argument, reasoning that the State’s evidence that approximately 80% of
serious complications are caused by miscommunication during patient hand-
offs does not demonstrate whether there are any communication problems
between abortion providers and emergency room physicians. Abbott, 951 F.
Supp. 2d at 899 (“The State . . . provides no evidence of correlation between
admitting privileges and improved communication with patient handoff or that
a communication problem actually exists between abortion providers and
emergency-room physicians.”). Review of the Joint Commission’s study that
the panel relies upon, reveals that it is a two-page report that does not address
whether communication problems exist between abortion providers and
hospital physicians nor whether communication between abortion providers
and emergency room physicians would be improved were all abortion providers
able to maintain local hospital privileges. Rather, the report cited by Dr. Thorp
primarily addresses internal hand-offs between caregivers or teams of
caregivers at hospitals, with brief mention of external hand-offs, and makes
recommendations for improving communication between providers during
hand-offs—none of which include any mention that all providers transferring
patients have admitting privileges, or that admitting privileges in any way
impact the effectiveness of the communication between caregivers upon the
patient’s transfer. See Facts about the Hand-off Communications Project,
43
No. 13-51008
JOINT COMM’N CTR. FOR TRANSFORMING HEALTHCARE, available at
www.centerfortransforminghealthcare.org/assets/4/6CTH_HOC_Fact_Sheet.p
df (last visited July 7, 2014). Similarly, the other studies that Dr. Thorp cites
to support the contention that the admitting-privileges provision promotes
effective communication, reflect only the potential danger that may occur upon
miscommunication during a hand-off. None conclude that requiring external
physicians to maintain local hospital privileges will improve communication
upon transfer. Rather, the studies suggest that other measures have been
proven to enhance communication and reduce risk of injury, for example,
establishing a standardized form and providing ample time for physicians to
communicate with one another. See, e.g., Julie K. Johnson, et al., Searching
for the missing pieces between the hospital and primary care: mapping the
patient process during care transitions, OPEN ACCESS, available at
http://qualitysafety.bmj.com/content/21/Suppl_1/i97.full.pdf+html
(recommending “process mapping” to work towards building “safe and reliable
patient transitions”); see also Improving Transitions of Care: Hand-Off
Communications, JOINT COMM’N CTR. FOR TRANSFORMING HEALTHCARE,
available at
http://www.centerfortransforminghealthcare.org/assets/4/6/CTH_Hand-
off_commun_set_final_2010.pdf (last visited July 7, 2014) (recommending,
inter alia, that hospitals make successful hand-offs an “organization priority,”
that the hospital “develop and use standardized forms,” and allow for ample
opportunity for caregivers to ask questions”). The State’s experts rely on this
sort of evidence to conclusorily contend that “holding local hospital admitting
privileges is likely to minimize communication errors.”
44
No. 13-51008
Similarly, the Abbott II relies in part upon the State’s evidence that 73%
of hospitals report inadequate availability of on-call specialists, to suggest that
the admitting-privileges provision will help ensure prompt treatment directly
from the abortion provider, rather than relying on a hospital’s on-call ob/gyn
to treat complications that follow abortion procedures. The cited report, dated
2007, in turn cites a 2006, nationwide study for the proposition that 73% of
hospitals have inadequate on-call coverage. The data therefore is at least
seven years old, and does not indicate whether different states or specialties
have varying availability. Thus, this data does not adequately rebut the
Plaintiffs’ evidence established by its experts, who have decades of experience
in emergency medical care in Texas, that emergency room physicians and on-
call specialists are adequately trained to handle the treatment of abortion
patients who present at the hospital with complications, and that in fact, the
on-call ob/gyn is better qualified to handle a severe complication than the
abortion provider. Rather than defer to the district court’s finding of facts, the
Abbott II panel looked at the State’s evidence de novo and concluded that
“[r]equiring abortion providers to have admitting privileges would also
promote the continuity of care in all cases, reducing the risk of injury caused
by miscommunication and misdiagnosis when a patient is transferred from one
health care provider to another.” Abbott II, 748 F.3d at 595. The panel
improperly draws this conclusion by analyzing the record de novo and relying
upon evidence that the district court considered and reasonably rejected.
With regard to the State’s evidence that requiring admitting privileges
“screens out” unqualified providers and holds abortion providers to a higher
standard of care, the Plaintiffs’ evidence rebuts this contention by establishing
that hospital boards have a variety of reasons for rejecting a physician’s
45
No. 13-51008
application for privileges, which may have nothing to do with the provider’s
abilities or experience, and instead, may be for reasons completely divorced
from medicine, such as their anti-abortion sentiments or the physicians’ home
address. See supra, Section II, A, 3-4. Moreover, despite the State’s and the
Abbott II panel’s contention that federal and state laws prohibit discrimination
against abortion providers and therefore hospitals will not reject abortion
providers based on anti-abortion sentiments, the Plaintiffs’ evidence
established that anti-discrimination laws are unlikely to prevent hospital
boards’ discrimination against abortion physicians seeking admitting
privileges. The board is not required to announce or disclose its bases for a
decision, and may simply reject an application without stating a particular
reason. Dr. Fine thus explained that the law may protect a physician who
already has staff privileges or is a hospital employee from wrongful
termination, but it does not guard against boards discriminating against
abortion providers in the application process for admitting privileges because
physicians denied admitting privileges “never find out why.”
Furthermore, the State’s own experts have suggested that the admitting-
privileges provision is not necessary to improve the quality of care that
abortion patients receive. For example, Dr. Mikael Love concedes that the
State’s interests would be adequately served by simply requiring abortion
providers to maintain a relationship with a local surgeon with admitting
privileges. Dr. Love attests that “[a] responsible surgeon who abides by the
standard of care will have admitting privileges or a relationship with a surgeon
who does.” (emphasis added). As noted, such a relationship with a physician
with admitting privileges is all that is required of abortion providers who
perform abortions at sixteen weeks or more at ASCs—a riskier procedure than
46
No. 13-51008
abortions provided at other outpatient facilities. Moreover, the evidence
established that in various abortion clinics, the facilities have emergency plans
in place that adhere to this recommendation. For example, Ferrigno attested
that all WWH facilities “have an emergency protocol in place to ensure the
safety of . . . patients in the rare event of complications requiring
hospitalization. . . . [T]he physician will remain with the patient until the
transfer [to the hospital] is completed. The physician will then be placed on
the telephone with the hospital emergency room admitting staff and with his
or her backup physician (the physician with local admitting privileges with
whom he or she is required to have a working relationship to assist with
complications) and provide the backup physician with information about the
patient. The backup physician can then meet the patient when she arrives at
the hospital, or will be asked to remain on call, as necessary.”
In sum, the State’s evidence does not demonstrate the need for abortion
providers to have local admitting privileges in order to facilitate
communication or improve the standard of care abortion patients receive and
thus does not render the district court’s findings of fact implausible in light of
the record as a whole. Accordingly, the panel erred by crediting the State’s
evidence that the district court rejected, and disregarding the court’s findings
of facts that were substantially supported by the record evidence.
III. Abbott II Panel’s Improper Application of Undue Burden Test
In addition to its failure to give proper deference to the district court’s
findings of fact, throughout its discussion of the effects that the admitting-
privileges provision of H.B. 2 will have upon a woman’s right to a previability
abortion, the panel contravened Casey by: (1) failing to weigh the extent and
severity of the burden the law imposes on women against the strength of the
47
No. 13-51008
State’s legitimate justifications, thereby neglecting to do the balancing that is
at the heart of Casey; and (2) misapplying Casey’s “large fraction” test by
looking to the burden imposed upon all women in Texas seeking abortions,
declining to consider the particular circumstances of the women affected by the
law, and disregarding evidence of relevant contextual facts.
A. Panel’s Failure to Weigh Obstacles against Strength of State’s
Justification
As discussed supra, to give proper consideration to both the State’s
legitimate objectives and women’s liberty interests, the undue burden
standard announced in Casey charted a middle-of-the-road path between strict
scrutiny and rational-basis review. Similar to the analysis employed by the
Court in its ballot-access cases, when considering whether the burden placed
upon women by a challenged abortion regulation is undue, we must weigh the
extent, character, and magnitude of the obstacles placed in the path of women
seeking previability abortions against the strength of the state’s justifications.
Casey, 505 U.S. at 878 (“To protect the central right recognized by Roe v. Wade
while at the same time accommodating the State’s profound interest in
potential life, we will employ the undue burden analysis.”). As the author of
Abbott II has explained, “[a]s 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 imposes on the woman’s right to seek an abortion.”
Barnes v. State of Miss., 992 F.2d 1335, 1339 (5th Cir. 1993) (emphasis added)
(Jones, J.). Our sister circuits have agreed that the undue burden test
encompasses a weighing of the magnitude of the state’s interest against the
extent of the burden imposed by the regulation. See Humble, 753 F.3d at 914
48
No. 13-51008
(9th Cir. 2014) (“[We must] weigh the extent of the burden against the strength
of the state’s justification in the context of each individual statute or
regulation.”); 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.”). Casey instructs, and the very meaning of the
term “undue” implies, that the harsher the obstacle resulting from a
regulation, then the more robust the government’s justification must be. See,
e.g., Casey, 505 U.S. at 874, 901; Anderson, 460 U.S. at 789; see also Strange I,
2014 WL 1320158, at *13.
Rather than consider the strength of the State’s interests against the
extent of the burden imposed by the admitting-privileges provision, the Abbott
II panel instead deferred to the State’s proffered “conceivably” rational
justifications for the law, and disregarded evidence establishing the extent of
the burden placed upon women by the admitting-privileges requirement. In so
doing, the Abbott II panel never expressly addressed whether the State’s
interests were actually furthered by H.B. 2’s admitting privileges-provision,
nor did it consider the strength or importance of the State’s justifications, let
alone weigh the strength of the governmental interests against the burden
imposed upon women—an analytical error which our sister circuits have
already observed is inconsistent with Supreme Court precedent. See Humble,
753 F.3d at 914 (“We conclude that Abbott . . . [is] inconsistent with the undue
burden test as articulated and applied in Casey and Gonzales. . . .[in part
because it] fails to recognize that the undue burden test is context-specific, and
that both the severity of a burden and the strength of the state’s justification
can vary depending on the circumstances.”).
49
No. 13-51008
The Abbott II panel, in a perfunctory analysis, altogether failed to
conduct the weighing of burden against justification that the Casey “undue
burden” standard requires. Instead, the panel looked to the burden imposed
by the admitting-privilege provision in isolation, without comparing the
magnitude of the burden on a woman’s right to procure an abortion to the
strength (or lack thereof) of the State’s justifications, as Casey requires. Casey,
505 U.S. at 888-896; 900-01. The panel’s simplistic and deferential approach
is a patent disregard of the dictates of Casey. Indeed, under the panel’s
analysis, the Casey “undue burden” test simply requires courts to assess
whether an abortion restriction has the “purpose” or “effect” of imposing a
“substantial obstacle” in the path of a woman seeking an abortion, each in
isolation of the other, without any meaningful analytical substance.
The weighing or balancing necessary under Casey gives meaningful form
and content not only to what constitutes a “substantial obstacle” but also to the
abortion right itself because, absent balancing, the Government could
permissibly enact legislation that only marginally advanced its interests while
significantly hindering women’s access to abortion—just as Texas has done
here. This is not what Casey requires. Indeed, Casey itself conducted this
exact sort of balancing, which we are obliged to follow. See, e.g., Casey, 505
U.S. at 900-01 (balancing the State’s legitimate interest in collecting patient
information—which the Court deemed a “vital element of medical research”—
against the only “slight” increase in cost of abortions, and therefore upholding
the challenged recordkeeping and reporting requirements); id. at 888-896
(weighing the substantial obstacle imposed upon women in abusive marriages,
who are most affected by the spousal notification provision, against the State’s
limited interest in protecting the husband’s right to be notified of the wife’s
50
No. 13-51008
abortion procedure—an interest premised in part on outmoded ideals about a
“woman’s role within the family”). Even prior decisions of this Court applying
Casey have recognized that balancing is part of the inquiry. See, e.g., Barnes,
992 F.2d at 1339-40 (considering the only “slight” burden imposed upon minor
women seeking abortion against the government’s “undeniable” interest in
“protect[ing] children from their own immaturity and naiveté.”).
Moreover, if the severity of the burdens imposed has nothing to do with
the strength of the reasons for those burdens (i.e. absent balancing), then
courts would be left to articulate a one-size-fits-all definition of “substantial
obstacle” regardless of the weight of the government interests at stake.
Strange I, 2014 WL 1320158, at *18. Such an approach would engender absurd
results completely at odds with Casey. If the one-size-fits-all definition of
substantial obstacle is set too low (e.g., minor burdens on women), then courts
will be instructed to strike down regulations even in the face of compelling
health consequences. Id. Conversely, if the one-size-fits-all definition of
“substantial obstacle” is too high, then essentially all abortion regulation
would be permitted, no matter how severe the burdens and how slight the
governmental interests at stake. Id. While the Abbott panel may endorse this
view of women’s right to access an abortion, Casey instructs us that a law need
not impose an insurmountable burden or interference in order to be a
substantial obstacle. Id. Balancing is therefore required to adequately protect
both the State’s legitimate interest and a woman’s constitutional right.
Nevertheless, the panel relies upon Gonzales v. Carhart, as compelling
this court to apply a deferential rational-basis inquiry, 10 followed by a
10 The Abbott II panel misread the Gonzales Court’s use of the term “rational basis”
within the Court’s discussion of the “purpose” prong of Casey’s undue burden test. To
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No. 13-51008
threadbare consideration of the purpose and effect of the law, each in isolation,
and without reference to important contextual realities in which the law will
determine whether the Partial Birth Abortion Act had a lawful purpose, the Court analyzed
whether the government had a “rational basis to act” by looking to the Congressional findings
and determining whether the Act actually furthered the government’s stated purpose for the
law. Gonzales, 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 to bar certain procedures and
substitute others, all in furtherance of its legitimate interests in regulating the medical
profession in order to promote respect for life, including life of the unborn.”). Citing only to
this “rational basis to act” language in Gonzales, the Abbott II panel states that “[t]he first-
step in the analysis of an abortion regulation, . . . is rational basis review, not empirical basis
review.” Abbott II, 748 F.3d at 596 (citing Gonzales, 550 U.S. at 158). The Abbott II panel
relies upon this phrase in Gonzales, taken out of context, to apply a highly deferential,
rational-basis review articulated in cases such as F.C.C. v. Beach Communications, Inc., 508
U.S. 307 (1993), and Heller v. Doe, 509 U.S. 312 (1993)—case law and reasoning which the
Supreme Court has never applied to review an abortion regulation. Id. at 590. The Abbott
II panel imports language from these unrelated cases, never cited by the Court in the abortion
context, to conclude that the district court erred in finding that the State did not present any
“evidence of correlation” between the admitting-privileges regulation and its legitimate
interest because, even in the abortion context, “the rational basis test seeks only to determine
whether any conceivable rationale exists for an enactment.” Id. at 594 (citing F.C.C., 508
U.S. at 313). The panel reasons that even “rational speculation unsupported by evidence or
empirical data satisfies rational basis review.” Id. (citation omitted).
A careful reading of Gonzales reveals that it faithfully follows the Casey undue burden
analysis, as discussed infra. In Gonzales, the Court did not reintroduce the rational-basis
standard of review nor change the Casey undue burden standard. Gonzales used the term
“rational” only in explaining why Congress acted with a permissible purpose to ban partial
birth abortions. Gonzales, 550 U.S. at 158. The Gonzales Court reaffirmed that Congress
cannot act to impose an undue burden on a woman’s right to choose an abortion prior to
viability, and the Gonzales Court’s language cannot be read to transform Casey’s undue
burden standard into the ordinary rational basis standard that the controlling plurality flatly
rejected in Casey. As discussed, Casey requires a court to analyze the strength of the state’s
justifications and the extent to which those justifications are furthered by the law. A
deferential rational basis test has no place in that inquiry.
The Abbott II panel, treating the Gonzales Court’s use of the words “rational basis” as
an invitation to apply a run-of-the-mill rational-basis review to H.B. 2, held that by
scrutinizing the evidence to conclude that the law lacked a rational basis, the district court
applied an erroneous legal standard. The panel concluded that the State’s mere offer of
conceivably rational justifications for the provision was sufficient to find that the State
rationally “acted within its prerogative to regulate the medical profession.” Abbott, 748 F.3d
at 595. Most egregiously, the Abbott II panel never considered whether the State’s
justification was sufficiently weighty to warrant the extent of the burden imposed upon
women; instead, it rested on its conclusion that the law had a conceivably rational basis.
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operate. Contrary to the panel’s understanding of Gonzales, the Court in
Gonzales adhered to the Casey undue burden test by expressly considering the
extent to which the regulation at issue furthered the underlying government
interest vis-à-vis the burden imposed on women by the restriction. In so doing,
the Gonzales Court, like the Casey Court, in fact did weigh the burden against
the purported justification, even if the Court did not explicitly use the term
“balancing.”
The majority opinion in Gonzales applied the principles in Casey’s undue
burden test to determine the validity of the federal Partial-Birth Abortion Act.
Gonzales, 550 U.S. at 145-46.
Before viability, a State “may not prohibit any woman from
making the ultimate decision to terminate her pregnancy.” 505
U.S., at 879. It also may not 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 the woman seeking an
abortion before the fetus attains viability.” Id. at 878. On the
other hand, “[r]egulations which do no more than create a
structural mechanism by which the State, or the parent or
guardian of a minor, may express profound respect for the life of
the unborn are permitted, if they are not a substantial obstacle to
the woman’s exercise of the right to choose.” Id. at 877. Casey, in
short, struck a balance. The balance was central to its holding.
We now apply its standard to the cases at bar.
Id. at 146. The Gonzales majority opinion thus expressly analyzed the
Act under the Casey standard and stated that the Act would be held
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unconstitutional if its purpose or effect is to place a substantial obstacle in the
path of a woman seeking an abortion before the fetus attains viability. Id.
Critically, the Gonzales Court applied and adhered to Casey not only in
form, but also in recognizing that the content of the Casey inquiry involves a
careful weighing of both burdens and justifications. The Act, as interpreted by
the Gonzales Court, prohibited only very limited types of abortion practices;
the pregnant woman and her physician had an almost unlimited number of
abortion procedures, other than the intact D & E method, to choose from. 11 Id.
at 164. Accordingly, the effect of the law did not place an obstacle in the path
of a woman seeking an abortion. But that is not all. In stark contrast to the
Abbott II panel’s approach, the Gonzales Court’s “effects” calculus considered
more than just the obstacles imposed by the Act: the Court also expressly
considered those obstacles in light of its conclusion that the Act actually
furthered the Government’s interest in promoting respect for human life. Id.
at 157-60. Indeed, the Court explicitly observed that the Act’s “furtherance of
legitimate government interests bears upon,” but is not dispositive of, whether
the Act has the effect of placing a substantial obstacle on women. Id. at 161.
Weighing the nearly non-existent burdens imposed upon women’s liberty
interests, against the fact that the Act actually furthered a legitimate
government interest in protecting fetal life, the majority ruled that the law did
not impose an undue burden on a woman’s right to choose to have an abortion.
This is the very balancing that Casey requires and that the Abbott II panel
neglected to do.
11 Thus, in Gonzales, the evidence established that the Act would not foreclose the
availability of numerous other abortion procedures, whereas the evidence here established
that H.B. 2 would foreclose the availability of abortion services for approximately 22,000 in
Texas.
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Application of the proper balancing test to the evidence adduced at trial
reveals that the admitting-privileges provision amounts to an undue burden
and is unconstitutional under Casey because the substantial obstacles are not
outweighed or warranted by the state’s purported justifications for the law. As
explained supra, the evidence established that the admitting-privileges
provision will impose an absolute obstacle upon over 22,000 women, and a
substantial obstacle on a large fraction of those women restricted by the law—
those who must travel vast distances to access the nearest abortion provider.
On the other side of the scale, the district court correctly found that the
justifications for H.B. 2’s admitting-privileges provision is virtually
nonexistent because the evidence shows that requiring abortion doctors to have
admitting privileges would not increase the competence of those doctors, the
safety of abortions, or the quality of hospital care given to the few abortion
patients who are treated in hospital emergency care facilities. In light of the
heavy burden imposed upon a woman’s constitutionally protected right and the
weak, if any, justifications for the law, the district court properly concluded
that the law amounts to an undue burden on a woman’s liberty interest in
obtaining an abortion and must be facially invalidated. The enormous flaw in
the Abbott II panel’s spurious undue burden analysis is that it nowhere
assesses the strength of the justification that the State names for its
legislation, nor does it weigh the weakness of the State’s justifications against
the extent of the burden imposed upon women. Instead, it simply assumes
that the legislation will result in what the State says it is seeking and, as
explained directly below, erroneously minimizes the extent of the burden
imposed upon women actually restricted by the admitting-privileges provision.
The Abbott panel’s failure to consider the strength of the State’s justifications
55
No. 13-51008
or to conduct the balancing required by Casey alone warrants en banc
reconsideration.
B. Panel’s Failure to Properly Apply the “Large Fraction” Analysis
and Its Disregard of Relevant Real-World Effects
In addition to the Abbott II panel’s failure to apply Casey’s balancing test,
it also neglected to apply Casey’s “large fraction” analysis and utterly
disregarded the context in which the law will take effect as irrelevant—in clear
contravention of Casey.
First, overturning the district court’s injunction of the admitting-
privileges provision of H.B. 2, the Abbott panel reasoned that
[t]he evidence presented to the district court demonstrates
that if the admitting-privileges regulation burdens abortion access
by diminishing the number of doctors who will perform abortions
and requiring women to travel farther, the burden does not fall on
the vast majority of Texas women seeking abortions. Put otherwise,
the regulation will not affect a significant (much less “large”)
fraction of such women[.]
Abbott II, 748 F.3d at 600 (emphasis added). Thus, the panel found that
because the law would not affect a large fraction of all women seeking abortions
in Texas, the admitting-privileges provision thus did not impose a substantial
obstacle upon a woman’s right to seek a previability abortion. Id. But this is
not what Casey requires. Rather, as discussed supra, under Casey, a court
must consider whether the admitting-privileges provision would amount to a
substantial obstacle for a large fraction of women who are affected by the
abortion restriction in question. Casey, 505 U.S. at 897; see also Planned
Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 921 (9th Cir. 2004) (“The
relevant ‘large fraction’ is in turn to be computed with reference only to the
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No. 13-51008
‘group for whom the law is a restriction, not the group for whom the law is
irrelevant,’ i.e., those upon whom a challenged law would have some actual
effect, rather than all women[] . . . seeking an abortion.”) (quoting Casey, 505
U.S. at 894). The record evidence established that clinics throughout Texas
will close and that, for example, women in the Rio Grande Valley will be
without access to an abortion provider in that region, and women in the
“panhandle” of Texas, will be required to travel between 300 and 400 miles in
order to access abortion services. 12 Moreover, the evidence showed that
approximately one in three, or 22,000, women seeking an abortion in Texas
annually will be precluded from doing so as a result of clinic closures and the
remaining clinics’ inability to meet the increased demand. The evidence
further demonstrated that nearly half of women who seek abortions in Texas
have incomes below the federal poverty line, and thus will have either
substantial barriers to accessing abortion services, or may be completely
precluded from obtaining an abortion. 13 Under Casey, the proper inquiry then
is whether a large fraction of women restricted by the law—i.e., who as a result
of the admitting-privileges regulation, are absolutely precluded from obtaining
an abortion, as well as those who are forced to travel vast distances and incur
prohibitive traveling costs to access abortion services from a provider with the
requisite admitting privileges—will face a substantial obstacle. It is these
12As Dr. Potter attested, “[s]ome women in the Panhandle will have to travel more
than 350 miles to seek an abortion. The burdens of these trips are magnified by the
patchwork of state requirements that may force women to make multiple trips to a clinic.
Some women who would otherwise have gotten an abortion will be prevented from doing so
by these burdens.”
13 Angela Martinez explained that most of Planned Parenthood Women’s Health
Center’s clients are parents below the federal poverty line who “often have trouble obtaining
use of a car and the resources to pay for gas, permission from their employer to take the
necessary time off, and/or childcare.”
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No. 13-51008
women affected and burdened by the enactment of the admitting-privileges
provision that should have served as the “denominator” for purposes of the
large-fraction analysis—not, as the Abbott II panel erroneously reasoned, all
women in Texas seeking an abortion. Casey, 505 U.S. at 894. The panel’s
articulated calculus is improper under Casey.
Second, the panel failed to follow Casey when it rejected relevant
evidence regarding the effect the law will have in Texas, in light of the social
context of the law, such as local hostility towards abortion providers. For
example, the Abbott panel discounted the evidence adduced at trial that
abortion providers in Texas will have difficulty complying with H.B. 2’s
admitting-privileges regulation, reasoning that the “challenges [faced by
doctors seeking admitting privileges] were almost entirely unrelated to H.B.
2.” Abbott II, 748 F.3d at 599 (reasoning that clinics’ difficulties in hiring
physicians with local hospital admitting privileges based on “the terms of [the
physicians’] existing employment . . . [or] fear[] [of] anti-abortion
violence[,] . . . is [not] connected with H.B. 2.”). The Abbott II panel viewed this
evidence as inapposite to the undue burden analysis because it reflected only
that “many factors other than the hospital-admitting-privileges requirement
affected abortion access” and did not reflect the direct impact of H.B. 2 itself.
Id. at 599 (citing Abbott, 734 F.3d at 415). Contrary to the Abbott II panel’s
analysis, the inquiry under Casey requires us to look at exactly this sort of
contextual evidence that the Abbott II panel rejected to determine whether the
effect of the law is to create a substantial obstacle in the path of women’s access
to abortions, in light of the social context in which the law will be enacted.
Rather than consider the real-world, context-specific effect of H.B. 2, the Abbott
II panel looked at H.B. 2’s admitting-privileges provision in a vacuum, and
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thereby disregarded Casey’s mandate to consider the relevant circumstances
that impact a woman’s access to abortion services. Casey, 550 U.S. at 897; see
also Planned Parenthood Se., Inc. v. Strange, No. 2:13-CV-405-MHT, 2014 WL
3809403, at *26 (M.D. Ala. Aug. 4, 2014) (hereinafter “Strange II”) (reasoning
that the Abbott II panel erred in declining to consider the “obstacles that arise
from the interactions of regulation with women’s financial constraints, as well
as other aspects of women’s circumstances, as ineligible to be ‘substantial
obstacles’ under Casey” because “[i]n Casey itself, the Supreme Court found
that a spousal-notification requirement was an undue burden because of its
effect on women who were in abusive relationships [and] [t]he circumstances
of those women and their relationships were at the core of the Casey analysis.
Casey’s treatment of the spousal-notification requirement shows that the
interaction of the state regulation and existing social conditions can create an
obstacle for women.”) (emphasis added).
Applying the Casey undue burden standard to the factual findings by the
district court that are supported by the record evidence, it is clear that a large
fraction of women affected by the admitting-privileges restriction will face
substantial obstacles in seeking abortions. Properly considered, the Plaintiffs’
evidence established the real-world effect of H.B. 2—that many clinics will
close because Texas abortion providers will be unable to comply with the
admitting-privileges provision; that the Rio Grande Valley, for example, will
be without an abortion provider; and that the few remaining clinics throughout
Texas will be unable to meet the significantly increased demand for abortion
services, thereby precluding approximately one in three women seeking
abortions in Texas, or 22,000 women, from accessing abortion services as a
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No. 13-51008
result of the decrease in available clinic providers alone. 14 Further, the
evidence established that women in the Rio Grande Valley and West Texas will
be required to travel vast distances to secure access to abortion, and that forty
percent of women seeking abortions in Texas are at or below the federal
poverty line, and thus are unable to travel the distances that will be necessary
as a result of various clinic closures.
Under Casey, the large-fraction analysis requires courts to examine the
effects on women actually restricted by the law: here, not only the 22,000
women completely deprived of abortion services as a result of clinic closures
and overall reduction in capacity of abortion providers in Texas, but also the
women who will only be able to access abortion services by overcoming the
severe, extra burden of traveling hundreds of miles to obtain a legal abortion
from a physician with the requisite admitting privileges. Casey, 505 U.S. at
894. 15 With feeble justification for so doing, the State is now not only
The Abbott II panel reasoned that Planned Parenthood cannot “resurrect its
14
assertion that one-third of the state’s clinics will close or over 22,000 women will be deprived
of access to abortion services each year because the district court also refused to accept these
findings.” Abbott II, 748 F.3d at 598. As discussed, while the district court’s factual findings,
written into an opinion issued the day before the admitting-privileges provision was set to go
into effect, did not address many of the details adduced at trial, the court expressly stated
that it was relying upon all admissible evidence—including the evidence contained in both
parties’ sworn declarations. See Abbott, 951 F. Supp. 2d at 896 n.3. Accordingly, the panel
read too much into the district court’s failure to specifically recite the detailed evidence
presented at trial that supported the district court’s explicit findings. Such neglect to include
these details, among others, does not reflect a “refusal to accept” the relevant evidence, but
rather, a time-constrained effort to grant the Plaintiffs’ relief before the unconstitutional law
went into effect.
Even if we assume incorrectly, as the Abbott II panel did, that the proper
15
denominator for the Casey large-fraction analysis is comprised of all Texas women seeking
an abortion, or approximately 68,000 women annually, the evidence nonetheless established
that a large fraction of women—22,000 women throughout Texas, or one in three Texas
women seeking an abortion—will be absolutely precluded from accessing abortion services as
a result of H.B. 2’s admitting-privileges provision. Thus, even utilizing arguendo an improper
denominator and also disregarding, as the Abbott II panel erroneously did, the social context
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No. 13-51008
precluding one third of women from accessing an abortion provider
altogether—because, as a result of the admitting-privileges provision, clinics
will indefinitely close and the remaining clinics will be unable to meet the
significantly increased demand placed upon their facilities—but also, forcing
women who reside in, for example, the Rio Grande Valley and the western
panhandle, to travel vast distances. Assuming these women who reside great
distances from an abortion clinic are actually able to obtain an appointment at
an over-booked facility, they must additionally overcome the burden of
travelling hundreds of miles to keep their appointment. A significant number
of these women may be unable to do so because of their particular life
circumstances, such as poverty, inability to access travel accommodations,
difficultly obtaining child care, or inability to take time off from work or other
duties. The evidence established that these barriers amount to substantial
obstacles in the path of a woman seeking a legal abortion—not merely
incidental inconveniences. Indeed, the record demonstrated that forty percent
of women seeking abortions in Texas are below the federal poverty line and
thus will likely be unable to secure transportation to the closest abortion
provider. For these women, the admitting-privileges provision “does not
and real-world barriers to access, such as poverty, the evidence established that a large
fraction—one third of women seeking abortions in Texas annually—will be unable to access
abortion services as a result of the overwhelmed capacity of the few remaining clinics in
Texas.
To be sure, the Court has never indicated that a “large fraction” must be an absolute
majority of the women actually affected by the law. Had the Court meant to require proof
that a majority rather than a fraction of women actually affected by the law will face
substantial obstacles, it would have so held. Instead, in its analysis of the challenged spousal
notification provision, the Casey Court found that although the vast majority of women
volunteered to inform their husbands of their intent to procure an abortion, within the one
percent of women who declined to share this information with their spouses, a large fraction
of those women would face a substantial obstacle. Casey, 505. U.S. at 894-97. The Court so
held without articulating how many women within that one percent would be so burdened.
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No. 13-51008
merely make abortions a little more difficult or expensive to obtain; for many
women, it will impose a substantial obstacle. We must not blind ourselves to
the fact that the significant number of women who [cannot travel outside of
the Rio Grande Valley, or their relevant region, because of barriers caused by
poverty] are likely to be deterred from procuring an abortion as surely as if the
[State] had outlawed abortion in all cases.” Casey, 505 U.S. at 893-94. Thus,
applying Casey properly, the record shows that H.B. 2 imposes a substantial
obstacle on a large fraction of women actually restricted by the law.
Additionally, in reversing the district court’s decision, the Abbott panel
made the sweeping conclusion that Casey “counsels against” finding that
“potential” travel burdens amount to a substantial obstacle because the Casey
Court upheld the 24-hour informed consent provision despite noting the
additional travel that women would be required to endure as a result of the
provision. Abbott II, 748 F.3d at 598. But an examination of Casey reveals
that the panel’s conclusion on this score is wrong. As an initial matter, the
Abbott II panel altogether neglects to note that the Casey Court explicitly
limited its holding to the record evidence in that case. Casey, 505 U.S. at 901
(acknowledging that “some amount of increased cost could become a
substantial obstacle, [but] there is no such showing on the record before us.”)
(emphasis added).
But there is more. The facts of Casey were substantially and
meaningfully distinguishable from the instant case: in particular, the women
affected by the 24-hour notice provision in Casey were already required to
travel significant distances to obtain an abortion; at most, the provision
required those women to make the same trip twice. Id. at 886-87; Planned
Parenthood of Se. Pa. v. Casey, 744 F. Supp. 1323, 1351-52 (E.D. Pa. 1990). By
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contrast, the clinic closures caused by H.B. 2’s admitting-privileges provision
imposes significant new burdens on women by requiring them to travel
significant distances for the very first time. Accord Strange II, 2014 WL
3809403, at *28 (“The women at issue in . . . Casey were like the rural woman
described above: before the waiting-period provision, they already had to, and
were able to, make a two-to-three-hour trip to a clinic. The new provision
simply required them to make that trip twice or to stay overnight. By contrast,
as discussed above, the clinic closures in this case would impose severe new
burdens on the urban woman.”). Furthermore, in Casey the Court,
characterizing its conclusion as a “close[] question,” weighed this burden of
additional travel time against the State’s legitimate interest to “facilitate[] the
wise exercise of” a woman’s right to choose to have a previability abortion, and
concluded that the burden was not undue. Casey, 505 U.S. at 886-87.
Comparatively, the Abbott II panel neglected to weigh the strength of the
State’s interest against the burden imposed by additional travel time and,
instead, erroneously pronounced that Casey counsels against finding that 150
miles of additional travel is a substantial obstacle in every challenge to an
abortion regulation. The panel thus erred in interpreting this record-tethered
ruling in Casey to stand for the consequential legal rule that increased
distances are categorically insufficient to constitute a substantial obstacle.
See, e.g., Strange II, 2014 WL 3809403, at *29 (“Courts, like the Abbott courts,
err when they seek to transform [a] factual conclusion into a simplistic legal
rule. As this case demonstrates, in assessing the burdens imposed by a
regulation, the factual details are critical.”).
Moreover, by diminishing the significance of traveling 150 miles to
obtain an abortion, the panel seems to imply that burdens which are
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surmountable for some women categorically do not amount to an undue
burden. Nowhere in Casey or Gonzales does the Court suggest that the burden
imposed upon women must be insurmountable in order to be undue. This
troubling suggestion that a burden is not undue if women can overcome it,
despite any hurdles they must jump over in order to do so, would flout the
Supreme Court’s continued reaffirmation of the liberty right recognized in Roe,
and upheld in Casey and Gonzales. Merely because some women, particularly
those with financial resources and familial support, will undoubtedly be able
to overcome the substantial obstacles that H.B. 2 has placed in their path, does
not somehow render an otherwise unconstitutional provision lawful—stated
simply, overcoming a burden does not mean the burden is not undue. 16 We
cannot look at women’s ability to overcome an obstacle in isolation and use that
predicted ability to overcome barriers to somehow conclude that the obstacle is
not substantial or undue.
The Supreme Court has never indicated, either in the abortion context
or in other similar contexts, that an ability to overcome an obstacle caused by
a regulation is fatal to the plaintiff’s constitutional challenge to that
regulation. For example, in Anderson v. Celebrezze, the Court struck down an
Ohio regulation that precluded independent candidates from running for the
Presidential election if they did not submit a statement of candidacy and a
nominating petition by March 20th, for the November election. 460 U.S. 780,
782-83 (1983). The Court struck down the law because, on balance, the State’s
interest in regulating the election process by enforcing a strict deadline was
16Indeed, “[a] woman with means, the freedom and ability to travel, and the desire to
obtain an abortion, will always be able to obtain one, in Texas or elsewhere. However, Roe’s
essential holding guarantees to all women, not just those of means, the right to a previability
abortion.” Lakey, 2014 WL 4346480, at *13.
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“minimal” in comparison to the extent and nature of the burden placed on
voters’ “freedom of choice and freedom of association.” Id. at 806. As Chief
Justice Rehnquist noted in dissent, the “record shows that in 1980 five
independent candidates submitted nominating petitions with the necessary
5,000 signatures by the March 20 deadline and thus qualified for the general
election ballot in Ohio.” Id. at 809 (Rehnquist, J., dissenting). Thus, we know
that some candidates were able to overcome the obstacle imposed by the
restriction. This fact did not impact the Court’s decision to conclude that in
light of the State’s weak interest, the burden imposed upon independent
candidates and their supporters was unconstitutional.
Just as the evidence of individual candidates overcoming the
unconstitutional restrictions in Anderson was not dispositive in the Court’s
analysis, I fail to see how women’s potential success in struggling to overcome
a substantial obstacle imposed by a regulation that does not actually further
the State’s purported interest is relevant. The Casey Court reaffirmed Roe’s
central principles and articulated a middle-of-the-road standard between strict
scrutiny and rational-basis review in order to reconcile a woman’s liberty
interest in choosing to obtain an abortion with the state’s legitimate interests
in protecting women’s health and promoting fetal life. The Abbott II panel’s
interpretation of the undue burden standard implies that a state may all but
prohibit abortions. That is simply not the Casey undue burden standard and
such an approach threatens to eviscerate the careful balance that lies at the
heart of Casey. Gonzales, 550 U.S. at 146 (explaining that Casey “struck a
balance. The balance was central” to the Casey Court’s holding).
Lastly, the Abbott II panel looked only to the evidence that women in the
Rio Grande Valley would be required to travel an additional 150 miles or less
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No. 13-51008
to access an abortion outside of the region, and altogether ignored evidence
regarding the distances traveled by women in West Texas and the panhandle.
Id. However, even if we confine our view of the evidence to the effect on women
in the Rio Grande Valley, the record indicates not merely an inconvenient
increase in travel, but a corresponding inability of women seeking abortions
living in that area to actually travel the increased distance because of
prohibitive costs and burdensome arrangements that would be necessary to
make before traveling to the abortion provider. As discussed supra, Casey
dictates that this court focus its inquiry on these very women who are most
restricted by the admitting-privileges provision. Casey, 505 U.S. at 894.
Upon weighing the heavy burden imposed on a large fraction of women
affected by the admitting-privileges provision against the State’s weak
justifications that are unsupported by reliable evidence, it becomes clear that
this court should reconsider this case en banc and affirm the district court’s
conclusion that H.B. 2’s admitting-privileges provision imposes an undue
burden upon a woman seeking to obtain a previability abortion and thus is
unconstitutional.
IV. Conclusion
This court’s charge is clear: “The woman’s right to terminate her
pregnancy before viability is the most central principle of Roe v. Wade. It is a
rule of law and a component of liberty we cannot renounce.” Casey, 505 U.S.
at 870. In Casey, the Court articulated a framework that this court is bound
to follow to ensure that a woman’s substantive due process right to choose to
have a previability abortion is protected, while allowing the State to promote
its legitimate interests in protecting women’s health and promoting fetal life.
The undue burden test that Casey announced strikes this careful balance
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between the competing interests and must be applied in challenges to abortion
regulations, like H.B. 2’s admitting-privileges requirement. The Abbott II
panel failed to properly apply this standard, thereby threatening to annihilate
the constitutional protections afforded women under Roe and explicitly
reaffirmed in Casey. The Abbott II panel’s opinion will invariably affect the
outcome of future challenges (some of which are currently pending before this
court) to abortion regulations. For these reasons, I dissent from the denial of
rehearing en banc.
67