Whole Woman's Health v. Ken Paxton ( 2020 )

MODIFIED
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2020
No. 17-51060 Lyle W. Cayce
Clerk
Whole Woman's Health, On Behalf of Itself, Its Staff,
Physicians and Patients; Planned Parenthood Center
for Choice, On Behalf of Itself, Its Staff, Physicians, and
Patients; Planned Parenthood of Greater Texas
Surgical Health Services, On Behalf of Itself, Its Staff,
Physicians, and Patients; Planned Parenthood South
Texas Surgical Center, On Behalf of Itself, Its Staff,
Physicians, and Patients; Alamo City Surgery Center,
P.L.L.C., On Behalf of Itself, Its Staff, Physicians, and
Patients, doing business as Alamo Women's Reproductive
Services; Southwestern Women's Surgery Center, On
Behalf of Itself, Its Staff, Physicians, and Patients; Curtis
Boyd, M.D., On His Own Behalf and On Behalf of His
Patients; Jane Doe, M.D., M.A.S., On Her Own Behalf
and On Behalf of Her Patients; Bhavik Kumar, M.D.,
M.P.H., On His Own Behalf and On Behalf of His
Patients; Alan Braid, , M.D., On His Own Behalf and On
Behalf of His Patients; Robin Wallace, M.D., M.A.S., On
Her Own Behalf and On Behalf of Her Patients,
Plaintiffs—Appellees,
versus
Ken Paxton, Attorney General of Texas, In His Official
Capacity; Sharen Wilson, Criminal District Attorney
for Tarrant County, In Her Official Capacity; Barry
Johnson, Criminal District Attorney for McLennan
County, In His Official Capacity,
Defendants—Appellants.
No. 17-51060
Appeal from the United States District Court
for the Western District of Texas,
USDC No. 1:17-CV-690
Before Stewart, Dennis, and Willett, Circuit Judges.
James L. Dennis, Circuit Judge:
This appeal concerns the constitutionality of Texas Senate Bill 8
(“SB8” or “the Act”), a statute that requires a woman to undergo an
additional and medically unnecessary procedure to cause fetal demise before
she may obtain a dilation and evacuation (D&E) abortion, the safest and most
common method of second trimester abortions. A number of licensed
abortion clinics and physicians that provide abortion care services challenged
that law, arguing that it would impose an undue burden on a woman’s right
to obtain an abortion before fetal viability in violation of the Fourteenth
Amendment’s Due Process clause. The district court agreed, declared the
Act facially unconstitutional, and permanently enjoined its enforcement.
The State appealed. Because SB8 unduly burdens a woman’s
constitutionally-protected right to obtain a previability abortion, we
AFFIRM.
I.
In Texas and nationwide, a D&E abortion is the most common
method of abortion after the first 15 weeks of pregnancy, as measured from a
woman’s last menstrual period (LMP).1 As its name suggests, D&E is a two-
step procedure. First, in the dilation stage, a physician dilates a woman’s
1
The gestational age of a fetus is measured by the time elapsed since the woman’s
last menstrual period (LMP). A woman’s pregnancy is also commonly separated into three
trimesters. The first trimester runs from the first through twelfth week and the second
trimester runs from the thirteenth through twenty-sixth week. See Stenberg v. Carhart, 530
U. S. 914, 923-25 (2000). The third trimester begins the twenty-seventh week and
continues through the end of the pregnancy.
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No. 17-51060
cervix. Second, during the evacuation stage, the physician uses a
combination of suction, forceps, or other instruments to remove the fetus
through the dilated cervical opening. Because at 15 weeks LMP the fetus is
larger than the dilated cervical opening, the fetal tissue usually separates as
the physician moves it through the cervix, resulting in fetal demise. This
stage takes approximately ten minutes.
On May 26, 2017, the Texas legislature enacted the abortion
regulation SB8.2 See Act of May 26, 2017, 85th Leg. R.S., ch. 441, § 6, 2017
Tex. Gen. Laws 1164, 1165–67 (eff. Sept. 1, 2017) (codified as TEX. HEALTH
& SAFETY CODE §§ 171.151–.154). Relevant here, the Act states:
A person may not intentionally perform a dismemberment
abortion unless the dismemberment abortion is necessary in a
medical emergency.3
Id. § 171.152. A “dismemberment abortion” is defined as:
an abortion in which a person, with the purpose of causing the
death of an unborn child, dismembers the living unborn child
and extracts the unborn child one piece at a time from the
uterus through the use of clamps, grasping forceps, tongs,
scissors, or a similar instrument that, through the convergence
of two rigid levers, slices, crushes, or grasps, or performs any
2
The statute also contains other abortion-related regulations, including requiring
fetal burial. This appeal pertains only to the law’s provision concerning the D&E
procedure.
3
A “medical emergency” is defined as:
life-threatening physical condition aggravated by, caused by, or arising
from a pregnancy that, as certified by a physician, places the woman in
danger of death or a serious risk of substantial impairment of a major bodily
function unless an abortion is performed.
Id. § 171.002.
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combination of those actions on, a piece of a the unborn child’s
body to cut or rip the piece from the body.
Id. § 171.151. Though SB8 does not use the term “dilation and evacuation”
or “D&E,” the parties do not dispute that the Act applies to a D&E abortion.
Because fetal tissue separates as a physician removes it from the uterus
during the D&E procedure, SB8 prohibits such abortions unless the
physician first ensures fetal demise in utero—an invasive, additional step that
is not part of the D&E procedure. The Act thus requires an abortion provider
performing a D&E to carry out an extra, otherwise unnecessary procedure in
the woman’s body to bring about fetal demise. A medical provider who fails
to comply with the law is subject to criminal penalties. See id. § 171.153.
Plaintiffs are eight licensed abortion clinics and three abortion
providers who challenged SB8 in federal court, contending that it places an
undue burden on a woman seeking a previability abortion. Defendants are
Texas law enforcement officers acting in their official capacity (collectively,
“the State”). They respond that the Act does not impermissibly restrict
abortion access because there are procedures that cause fetal death in utero
that must be used in addition to D&E to ensure an SB8-compliant abortion.
Plaintiffs in rebuttal argue that the additional procedures place a substantial
obstacle to a woman’s right to a second trimester D&E abortion.
In August 2017, the district court granted a temporary restraining
order enjoining the law’s enforcement. The parties then agreed to forego a
decision on a preliminary injunction and proceed instead to a trial on the
merits. In November 2017, the court held a five-day bench trial during which
it heard testimony from nineteen witnesses, including both sides’ medical
experts. Later that month, the court issued extensive findings of fact and
concluded that SB8 imposed an undue burden on a large fraction of Texas
women seeking a D&E abortion after 15 weeks LMP. Accordingly, the
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district court declared SB8 facially unconstitutional and permanently
enjoined its enforcement. Defendants timely appealed.4
II.
We review the district court’s decision to permanently enjoin
enforcement of SB8 for abuse of discretion. See Jackson Women’s Health Org.
v. Dobbs, 945 F.3d 265, 270 (5th Cir. 2019). The court’s underlying
conclusions of law are reviewed de novo. Guzman v. Hacienda Records &
Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015). Its findings of fact,
on the other hand, are reviewed for clear error. Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573 (1985). “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.” Id. at 573-74. And “[w]hen findings are
based on determinations regarding the credibility of witnesses, [Federal]
Rule [of Civil Procedure] 52(a) demands even greater deference to the trial
court’s findings; for only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Id. at 575.
4
Oral argument was held in November 2018. In March 2019, the court held this
case in abeyance pending the Supreme Court’s resolution of June Medical Servs. L.L.C. v.
Russo, 140 S. Ct. 2103 (2020). Following the Court’s decision in June Medical, we ordered
supplemental briefing from the parties on the effect, if any, of that case on this appeal. In
addition, the State moved for a stay of the district court’s injunction pending appeal. A
two-member majority of this panel denied the motion with one panelist in dissent. See
Whole Woman’s Health v. Paxton, 972 F.3d 649 (2020).
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No. 17-51060
III.
Since the Supreme Court’s landmark decision nearly fifty years ago in
Roe v. Wade, 410 U.S. 113 (1973), it has been clear that the Fourteenth
Amendment guarantees a woman’s right to choose to undergo a previability
abortion. See Roe v. Wade, 410 U.S. 113 (1973). Two decades after Roe, in
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992)
(plurality opinion), the Court reaffirmed Roe’s “essential holding,” further
dividing it into a three-part legal framework:
First is a recognition of the right of the woman to choose to
have an abortion before [fetal] viability and to obtain it without
undue interference from the State. Before viability, the State’s
interests are not strong enough to support a prohibition of abor-
tion or the imposition of a substantial obstacle to the woman’s
effective right to elect the procedure. Second is a confirmation
of the State’s power to restrict abortions after fetal viability, if
the law contains exceptions for pregnancies which endanger
the woman’s life or health. And third is the principle that the
State 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.
Casey, then, “struck a balance.” Gonzales v. Carhart, 550 U.S. 124, 146
(2007). It protected, on the one hand, a woman’s right to “mak[e] the ulti-
mate decision to terminate her pregnancy.” Casey, 505 U.S. at 879. On the
other hand, it recognized that the state may enact previability regulations de-
signed “to further the health or safety of a woman seeking an abortion” or
“to express profound respect for the life of the unborn” so long as those reg-
ulations do not create “a substantial obstacle to the woman’s exercise of the
right to choose.” Id. at 877-78. The State asserts here that SB8 advances its
interests in “protecting unborn life” and promoting the integrity and ethics
of the medical profession. The Court has acknowledged that “[t]he [state]
may use its voice and its regulatory authority to show its profound respect for
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the life within the woman.” Gonzales, 550 U.S. at 157. And “[t]here can be
no doubt the [state] has an interest in protecting the integrity and ethics of
the medical profession.” Id. (internal quotation marks omitted).
However, even when a state statute “furthers the interest in potential
life or some other valid state interest,” that statute “cannot be considered a
permissible means of serving its legitimate ends” if it erects a “substantial
obstacle in the path of a woman’s choice.” Casey, 505 U.S. at 877. The
“shorthand” for a substantial obstacle is an undue burden. Id. Just a few
years ago in Whole Woman’s Health v. Hellerstedt, the Court confirmed that
the undue burden “rule announced in Casey . . . requires that courts consider
the burdens a law imposes on abortion access together with the benefits those
laws confer.” 136 S. Ct. 2292, 2309 (2016) (citing the Casey Court’s balanc-
ing of a law’s benefits against its burdens).
The Supreme Court issued its most recent ruling explaining and ap-
plying the undue burden last Term in June Medical Services, L.L.C. v. Russo,
140 S. Ct. 2103, 2114 (2020). In that case, a 4-1-4 Court invalidated a Loui-
siana law that imposed an admitting-privileges requirement on abortion pro-
viders because the law imposed an undue burden on a woman’s right to ob-
tain an abortion. Id. at 2112-13. The four Justice plurality applied the balanc-
ing approach elucidated in Whole Woman’s Health, weighing the statute’s as-
serted benefits against its burdens. See id. at 2121-32. In a solo opinion con-
curring in the judgment, Chief Justice Roberts rejected the balancing test,
stating that the undue burden test requires looking only to the burdens of an
abortion regulation. See id. at 2136-37 (Roberts, C.J., concurring in the judg-
ment). The dissenters also repudiated Whole Woman’s Health’s “cost-ben-
efit standard.” See id. at 2182 (Kavanaugh, J., dissenting) (observing that the
dissenters and concurrence disavowed the balancing test).
The parties dispute June Medical’s import. In supplemental briefing
ordered after that decision, the State contends that because Chief Justice
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Robert’s concurrence is the narrowest opinion necessary to June Medical’s
overall holding invalidating the Louisiana law, it thus provides the controlling
formulation of the undue burden test. Conversely, Plaintiffs maintain that
the Court’s split decision supplies no such precedential rule on the undue
burden test and therefore Whole Woman’s Health’s balancing test still gov-
erns.
For reasons provided more fully in our order denying the State’s stay
motion, we agree with Plaintiffs. See Whole Woman’s Health, 972 F.3d at 652-
53. In brief, the issue turns on application of the rule in Marks v. United
States, 430 U.S. 188 (1977). “Ordinarily, ‘[w]hen a fragmented Court de-
cides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as the position taken by
those Members who concurred in the judgment[ ] on the narrowest
grounds.’” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir.
2013) (first alteration in original) (quoting Marks, 430 U.S. at 193)). Marks
makes clear that the views of dissenting Justices are irrelevant to determining
the holding of the Court. Moreover, we have held that the Marks “principle
. . . is only workable where there is some ‘common denominator upon which
all of the justices of the majority can agree.’” Id. (quoting United States v.
Eckford, 910 F.2d 216, 219 n.8 (5th Cir. 1990)). And when a concurrence does
not share a “common denominator” with, or cannot “be viewed as a logical
subset of,” a plurality’s opinion, it “does not provide a controlling rule” that
establishes or overrules precedent. Id.In June Medical, four dissenters agreed with the rule of decision advo-
cated by the Chief Justice, but because they did not concur in or contribute
in any respect to the judgment, but instead dissented therefrom, their votes
cannot be counted as forming a holding of the Court. Further, though the
plurality and concurrence shared an overall conclusion that the challenged
statute constituted an undue burden, they disagreed on how to frame and
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apply the undue burden test that led to that determination. Specifically, they
disputed whether the test requires a comparative analysis or concerns only a
law’s burdens without regard to its asserted benefits. Compare 140 S. Ct. at
2132 (plurality opinion), with id. at 2141-42 (Roberts, C.J., concurring in the
judgment). In this case, the concurrence cannot “be viewed as a logical sub-
set of the” plurality’s opinion. Duron-Caldera, 737 F.3d at 994 n.4. That is
because accounting only for a law’s burdens renders it impossible to perform
a balancing test, which necessarily entails weighing two sides against each
other. In other words, the plurality’s and concurrence’s descriptions of the
undue burden test are not logically compatible, and June Medical thus does
not furnish a controlling rule of law on how a court is to perform that analysis.
See id.; see also Eckford, 910 F.2d at 219 n.8. Instead, Whole Woman’s Health’s
articulation of the undue burden test as requiring balancing a law’s benefits
against its burdens retains its precedential force.5 See 136 S. Ct. at 2309.
The State claims, however, that Whole Woman’s Health’s balancing
test is limited to health-related regulations and does not apply when, as here,
it invokes its legitimate interest in promoting respect for unborn life. True,
5
The Eighth Circuit has come to a contrary conclusion, holding that Chief Justice
Robert’s separate opinion in June Medical is controlling because his vote was necessary to
enjoining Louisiana’s admitting-privileges law. See Hopkins v. Jegley, 968 F.3d 912, 915
(8th Cir. 2020). Though the Eighth Circuit cited Marks, it did not provide any
interpretation of the Marks rule. We, however, are bound to apply our Circuit’s
construction of Marks, which entails determining whether the concurrence shares a
common denominator with or can be viewed as a logical subset of the plurality opinion. See
Duron-Caldera, 737 F.3d at 994 n.4.; Eckford, 910 F.2d at 219 n. 8. Because the Eighth
Circuit did not mention—let alone apply—such an analysis, its holding is not persuasive
and does not affect our decision. Further, the Eight Circuit observed that, when the views
of Chief Justice Roberts and the dissenters were combined, a total of five Justices rejected
the balancing test articulated in Whole Woman’s Health. But by definition, dissenters do
not concur in the judgment of the court but dissent therefrom; therefore, they are not
members “who concurred in the judgment,” and their views cannot be considered in
determining the Court’s holding. Marks, 430 U.S. at 193.
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Whole Woman’s Health considered statutes that purportedly protected
women’s health. See id. at 2310. But the balancing test dates back to Casey,
and neither it nor Whole Woman’s Health suggest that the undue burden
standard changes based on the kind of state interest asserted. To the con-
trary, the Court’s cases describe a unitary standard that applies regardless of
the type of a state’s claimed interests. See, e.g., Casey, 505 U.S. at 877 (“[A]
statute which, while furthering the interest in potential life or some other valid
state interest, has the effect of placing a substantial obstacle in the path of a
woman’s choice cannot be considered a permissible means of serving its le-
gitimate ends.”). In Casey, for example, the Court applied the same undue
burden standard to all of the regulations it reviewed, including parental and
spousal consent provisions that were designed to further the state’s interest
in potential life. See id. at 898-99; Whole Woman’s Health, 136 S. Ct. at 2309
(expressly stating that Casey performed a “balancing” test with respect to
both of these provisions). It is unsurprising, then, that the State’s argument
that the undue burden changes based on the state interest asserted has been
rejected by every other court that has considered the issue. See, e.g., EMW
Women’s Surgical Ctr. P.S.C. v. Friedlander, 960 F.3d 785, 796 (6th Cir. 2020)
(“Like other courts presented with this argument, we find it unpersua-
sive.”); W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1326 (11th Cir.
2018) (“The State cites no support for the proposition that a different ver-
sion of the undue burden test applies to a law regulating abortion facilities.”).
The State’s argument in favor of creating an additional, novel undue burden
test is inconsistent with the Supreme Court’s cases, and we therefore dismiss
it. See Casey, 505 U.S. at 898-99; Whole Woman’s Health, 136 S. Ct. at 2309.
We proceed, then, to apply to SB8 the undue burden test in accord-
ance with how it was explained and performed in Whole Woman’s Health.
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IV.
An undue burden, we reiterate, exists when “a state regulation has the
purpose or effect of placing a substantial obstacle in the path of a woman seek-
ing an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. We first note
that, despite a law’s possible benefits, the Supreme Court has repeatedly de-
termined that a statute that would effectively ban the safest, most common
method of second trimester abortion imposes an undue burden. See, e.g.,
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 77-79 (1976) (in-
validating a law that barred the then-“most commonly used” method of sec-
ond trimester abortion); Stenberg v. Carhart, 530 U.S. 914, 938-39, 945-46
(2000) (holding unconstitutional a state law that, though it aimed to ban the
“D&X” abortion procedure,6 was written so broadly that it prohibited D&E
abortions, too, which were “the most commonly used method for performing
previability second trimester abortions”); Gonzales v. Carhart, 550 U.S. 124,
153, 165 (2007) (holding that the federal “Partial-Birth Abortion Act,” 18
U.S.C. § 1531, which banned the D&X procedure, did “not construct a sub-
stantial obstacle to the abortion right,” because the D&E procedure—the
“most commonly used and generally accepted method” of second trimester
abortions—remained available). Thus, if SB8 amounts to a prohibition on
the D&E procedure, then it necessarily creates an undue burden on a
woman’s “effective right” to choose a previability abortion. Casey, 505 U.S.
at 846.
The State insists that SB8 does not constitute an undue burden be-
cause several “alternative methods” of causing fetal demise are available and
6
The D&X procedure, also known as intact D&E, involves dilating the cervix
enough to remove the fetus intact. This procedure is banned under the Federal Partial-
Birth Abortion Ban Act of 2003, unless fetal demise is induced before the procedure. See
18 U.S.C. § 1531; Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding federal partial-birth
abortion ban).
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No. 17-51060
safe. Sister Circuits that have addressed challenges to substantially similar
fetal demise statutes have determined that the methods of fetal demise that
the State proposes here are not safe, effective, or available. See EMW
Women’s Surgical Ctr. P.S.C., 960 F.3d at 807-08; W. Ala. Women’s Ctr., 900
F.3d at 1324-28; see also Glossip v. Gross, 576 U.S. 863, 882 (2015) (“Our re-
view is even more deferential where, as here, multiple trial courts have
reached the same finding, and multiple appellate courts have affirmed those
findings.”). Those courts thus held that the statutes at issue imposed an un-
due burden. Although we ultimately reach the same conclusion about SB8
based on our independent analysis, the holdings of other Circuits bolster our
confidence that SB8 sets a substantial obstacle in the path of women seeking
abortions.
Before examining the district court’s findings on the State’s proffered
methods of fetal demise, we observe that there is a “fundamental flaw” in
the State’s description of these procedures as “alternatives.” EMW
Women’s Surgical Ctr. P.S.C., 960 F.3d at 798. “Fetal-demise procedures
are not, by definition, alternative procedures,” because a patient who endures
such a procedure “must still undergo the entirety of a standard D&E. In-
stead, fetal-demise procedures are additional procedures. Additional proce-
dures, by nature, expose patients to additional risks and burdens. No party
argues that these procedures are necessary or provide any medical benefit to
the patient.” Id.; see also, e.g., Danforth, 428 U.S. at 78-79 (invalidating an
abortion restriction that “force[d] a woman and her physician to terminate
her pregnancy by methods more dangerous to her health than the method
outlawed”); W. Ala. Women’s Ctr., 900 F.3d at 1326 (noting the State’s con-
cession that fetal demise procedures “would always impose some increased
health risks on women”); Planned Parenthood of Cent. N.J. v. Verniero, 41 F.
Supp. 2d 478, 500 (D.N.J. 1998), aff’d sub nom. Planned Parenthood of Cent.
N.J. v. Farmer, 220 F.3d 127 (3d Cir. 2000) (“By relegating physicians to the
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performance of more risk-laden abortion procedures, the Act imposes an un-
due burden on the woman’s constitutional right to terminate her preg-
nancy.”).
A.
With this background, we address the three additional procedures the
State proposes for causing fetal demise in utero: (1) injecting digoxin into the
fetus or amniotic fluid; (2) injecting potassium chloride directly into the fetal
heart; and (3) transecting the umbilical-cord. The district court found each
of these methods to be unfeasible.
1.
The first procedure for causing in utero fetal demise that the district
court considered was injection of the chemical digoxin into the fetus or am-
niotic fluid. This method requires a physician to insert a surgical needle ap-
proximately four inches in length through the patient’s skin, abdomen, and
uterine muscle, all without the aid of anesthesia. It is painful and invasive.
Generally, physicians wait twenty-four hours after the injection before at-
tempting the evacuation phase of a D&E, thereby requiring a patient to make
an additional trip to the clinic one day before her appointment for the D&E
procedure. Digoxin, moreover, fails to induce fetal demise about 5-10% of the
time, with its effectiveness dependent on variables such as uterine and fetal
positioning.
The district court observed that most studies in the record concerning
digoxin injections focus on pregnancies at or after 18 weeks LMP, with only
a few studies including cases at 17 weeks LMP. No study considered the ef-
ficacy, dosage, or safety of injecting digoxin into women before 17 weeks
LMP. In light of this, the district court found that requiring digoxin injections
before 18 weeks of pregnancy would subject women to an arguably experi-
mental procedure without any counterbalancing benefits. And even when
administered successfully after 18 weeks LMP, digoxin injections carry
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significant health risks as compared to a D&E procedure performed before
fetal demise is ensured, including a heightened risk of infection, hospitaliza-
tion, and extramural delivery—the unexpected and spontaneous expulsion of
the fetus from the uterus while the woman is outside of a clinical setting and
without the aid of a medical professional.
Based on the pain and invasiveness of the procedure, the delay in care
and logistical difficulties it necessitates, its unreliability, the unknown risks
for women before 18 weeks LMP, and the risk of complication, the court
found that digoxin is not a safe and viable method of inducing fetal demise
before the evacuation phase of a D&E abortion.
The State challenges these findings, claiming that digoxin injections
are unquestionably safe. The State essentially asks us to relitigate the district
court’s factual findings. But as an appellate court, even if we disagreed with
the findings below, we cannot reverse them so long as they are based on one
of two “permissible views of the evidence.” Anderson, 470 U.S. at 573. The
district court’s findings satisfy this standard. The record evidence shows
that digoxin injections indeed carry health risks for the pregnant woman, in-
cluding a study demonstrating that digoxin injections are six times more
likely to result in hospitalization as compared to injection with a placebo. The
dangers of the procedure were further corroborated by the testimony of ex-
pert witnesses. See Guzman, 808 F.3d at 1036. In short, we see no error,
clear or otherwise, in the district court’s determination that digoxin injec-
tions are not a safe and feasible method of inducing fetal demise.
2.
Next, the district court assessed inducing fetal demise in utero through
injections of potassium chloride. The procedure requires inserting a long
surgical needle through a woman’s abdomen and uterine muscles and into
the fetal heart. Because at 15 weeks LMP the fetal heart is very small—the
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No. 17-51060
size of a dime—the procedure demands great technical skill on the part of the
provider. For the patient, the procedure is painful and invasive.
The injections are also exceeding rare because they carry severe risks
for a woman; complications, including death, can result if the solution is in-
jected in the wrong place. Because of the risks inherent with transabdominal
injections, this procedure increases the risk of uterine perforation and infec-
tion. And no study exists on the efficacy or safety of the injection when ad-
ministered before the evacuation phase of a D&E. The court thus deter-
mined that potassium chloride injections are an unnecessary and potentially
harmful medical procedure with no counterbalancing medical benefit for
women.
The court also explained that the training necessary to perform the
procedure is generally available only to subspecialists in the field of high-risk
obstetrics called maternal-fetal medicine. It would be “virtually impossible,”
the court found, for all physicians at abortion clinics in Texas to receive the
requisite training in order for the procedure to be a meaningfully available
method of fetal demise. Considering this evidence, the court found that po-
tassium chloride injections are not a safe and workable method of inducing
fetal demise.
Again, the State takes issue with the district court’s findings. In par-
ticular, the State cites the testimony of a maternal-fetal medicine specialist,
Dr. Berry, who has used potassium chloride to cause fetal demise. That one
physician in a highly-skilled subspecialty may be able to perform the proce-
dure does nothing to refute the district court’s findings that, as a practical
matter, there are not a sufficient number of physicians trained in the proce-
dure to make it meaningfully available. Nor does it bear on the district court’s
finding—of which it noted there was “no credible dispute”—that the proce-
dure carries severe risks. And it is undisputed that the procedure carries no
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medical benefit for female patients. On this record, we cannot say that the
district court’s findings are “implausible.” Anderson, 470 U.S. at 573.
3.
Last, the court reviewed the State’s contention that umbilical cord
transection is a viable method of inducing fetal demise. To perform this pro-
cedure, the physician dilates a woman’s cervix such that instruments can be
passed through to transect the cord. Guided by ultrasound, the physician
then punctures the amniotic membrane, inserts an instrument into the
uterus, grasps the umbilical cord, and cuts the cord with a separate instru-
ment. The physician then waits for fetal heart activity to cease—usually
within ten minutes—and then performs the evacuation phase of the D&E
procedure.
The court found that this procedure is not a safe and feasible method
of fetal demise for four reasons. First, the procedure is very difficult to per-
form, particularly if the umbilical cord is blocked by the fetus. Second, the
court found that a lack of research on the risks associated with the procedure
renders it essentially experimental. Third, cord transection carries signifi-
cant health risk to the patient, including blood loss, infection, and injury to
the uterus. A physician practicing in an outpatient clinic does not have access
to blood services for patients at risk of serious blood loss. Fourth, there is
insufficient training available to physicians on how to conduct the procedure.
The State also disagrees with these findings, noting that some of the
abortion clinics’ physicians have performed the procedure. Again though,
this observation does not meaningfully address whether the district court’s
account of the evidence is not “plausible in the light of the record.”
16
No. 17-51060
Anderson, 470 U.S. at 575. We are not persuaded that the court below com-
mitted clear error.7
4.
We summarize the court’s overall findings regarding the effect of SB8.
Under the statute, all women seeking a second trimester abortion starting at
15 weeks LMP would be required to endure a medically unnecessary and in-
vasive additional procedure that provides no health benefit. The law in-
creases the duration of what otherwise is a one-day D&E procedure. For
most women, the length of the procedure would increase from one day to
two, adding to the costs associated with travel, lodging, time away from work,
and child care. This delay would be particularly burdensome for low-income
women, many of whom must wait until the second trimester to seek an abor-
tion because of the time needed to obtain funds to pay for the procedure.
SB8 also forces abortion providers to act contrary to their medical
judgment and the best interest of their patient by conducting a medical pro-
cedure that delivers no benefit to the woman. And without substantial addi-
tional training, the State’s proposed fetal-demise methods are not feasible for
any physician other than subspecialists in the high-risk field of maternal-fetal
medicine.
B.
Under Whole Woman’s Health, having reviewed SB8’s burdens, we
next consider its asserted benefits. First, the State claims that, even if a bal-
ancing test applies, SB8 advances its interest in respecting unborn life by pro-
tecting it from what the State describes as “the brutality of being
7
The State asserts that suction could be performed before 17 weeks LMP,
contending that the district court overlooked this procedure. The court, however, found
“adding any additional step to an otherwise safe and commonly used procedure” in of itself
led to the conclusion that the State had erected a substantial obstacle in the path of a woman
seeking a previability abortion.
17
No. 17-51060
dismembered alive.” The district court observed that the D&E procedure is
“graphic” but did not make any clear findings whether SB8 furthers the
State’s interest in promoting respect for potential human life. We note that
SB8 does not purport to actually prevent the D&E procedure but instead has
the effect of requiring invasive procedures to bring about fetal demise before
the D&E is performed. Because some may sincerely believe that requiring
fetal demise before the D&E procedure advances respect for potential life,
we assume without deciding that SB8 provides a limited benefit in this re-
spect. See EMW Women’s Surgical Ctr., 960 F.3d at 807.
Second, the State asserts that SB8 advances its interest in ensuring
integrity and ethics in the medical profession. However, the Act confers no
medical benefit for women patients while forcing them to undergo unneces-
sary, painful, invasive, and even experimental procedures. Like the district
court, we are “unaware of any other medical context that requires a doctor—
in contravention of the doctor’s medical judgment and the best interests of
the patient—to conduct a medical procedure that delivers no benefit to the
[patient].” Whatever SB8 arguably may do to advance the State’s interest in
the medical profession is negated by the Act’s forcing of physicians to act
contrary to what is best in their medical judgment for their patients.
Third, the State contends that by requiring fetal demise in utero, SB8
serves its interest in having patients be informed about the procedures they
are to undergo. It claims that Plaintiffs’ consent forms do not explain in suf-
ficiently graphic terms what happens to a fetus during a D&E procedure per-
formed before fetal demise and that, by banning such a practice, women will
no longer be able to choose this procedure based on a supposed lack of infor-
mation as to what it entails. But the State’s argument that SB8 ensures
women are informed about how fetal demise occurs is wholly undermined by
the fact that the statute does not require that women receive information on
18
No. 17-51060
how fetal demise occurs during any of the State’s proposed additional proce-
dures to cause fetal demise in utero.
Fourth, the State claims that the Act will promote its interest in align-
ing its laws with those of the international community. That the district court
did not discuss this as one of the State’s interests is understandable because
the Supreme Court itself has never identified this as a valid interest to be
considered as part of the undue burden analysis. Moreover, the State’s com-
parative law expert acknowledged that most countries that prohibit second
trimester abortions actually ban abortion outright and evidently lack consti-
tutional safeguards for women’s reproductive freedoms. Aligning the State’s
abortion law with that of foreign nations whose reproductive rights laws con-
flict with the dictates of our Constitution does not serve a valid state interest.8
Fifth, the State contends that the law promotes its interest in prevent-
ing fetal pain. We find little merit in this argument. Major medical organiza-
tions, including the American Medical Association, the American College of
Obstetricians and Gynecologists, and the Royal College of Obstetricians and
Gynecologists, have concluded that fetal pain is not even possible before at
least 24 weeks LMP. Offering a less mainstream view, the State’s expert, Dr.
Malloy, testified that in her opinion a fetus can feel pain at 22 weeks LMP.
But even if Dr. Malloy’s opinion were credited, Plaintiffs do not perform
abortions at this late time of gestation, and Texas already bans abortion after
22 weeks LMP except in extremely limited circumstances. See TEX. HEALTH
& SAFETY CODE §§ 171.041-46. Further, the State has not adduced evidence
8
The foregoing should not be construed to suggest that comparative-law
perspective cannot serves useful and important functions. Indeed, we readily acknowledge
that it can. See, e.g., Atkins v. Virginia. Texas, 539 U.S. 304, 316 n.21 (citing international
consensus against executing the “mentally retarded”). Here though, the State attempts to
use foreign law in an invalid way by asserting that it has an interest in adjusting its laws to
more closely reflect those of nations whose laws are incompatible with our fundamental
charter.
19
No. 17-51060
that requiring doctors to induce fetal demise in utero would be more likely to
prevent any purported fetal pain than permitting the D&E procedure without
first ensuring fetal demise. The State thus has not demonstrated that SB8
actually advances any interest in preventing fetal pain.
C.
Weighing SB8’s significant burdens upon female patients against its
nonexistent health benefits and any other limited benefits it may actually con-
fer, it is clear that the law places a “substantial obstacle in the path of a
woman seeking” a previability abortion.9 Casey, 505 U.S. at 877. Based on
the district court’s findings—which are not clearly erroneous and to which
we therefore must defer—the procedures proposed by the State to ensure
compliance with SB8 are themselves substantial obstacles to D&E abortions,
a procedure whose availability the Supreme Court has continually cited as
essential to guaranteeing women’s right to abortion care. See Stenberg, 530
U.S. at 938-39, 945-46 (2000); Gonzales, 550 U.S. at 153, 165. SB8, then,
results in severe burdens as it would effectively prohibit the most common
and safest method of abortions in Texas after 15 weeks LMP. And it would
inflict a special hardship on low-income women who are often unable to ob-
tain an abortion until this point in their pregnancy. On the other end of the
scale are the State’s interests advanced by SB8, which are minimal at most.
We thus conclude that SB8’s burdens substantially outweigh its benefits.
The law therefore constitutes an undue burden on a woman’s right to obtain
9
The State objects to the district court’s comment that an obstacle is substantial if
it is “of substance.” The State contends that this is an incorrectly lax description of the
substantial-obstacle test. We need not pass on the district court’s objected to single remark
because it was not necessary to or employed in the district court’s decision applying correct
legal principles to plausible and permissible factual findings based on the record in this case.
20
No. 17-51060
a previability abortion and violates the Fourteenth Amendment. See id. at
877.
V.
The State next contends that the district court erred in granting facial
relief. “[A]n abortion restriction is facially invalid if in a large fraction of the
cases in which it is relevant, it will operate as a substantial obstacle.” Jackson
Women’s Health Org., 945 F.3d at 275-76 (internal quotation marks omitted).
“The relevant denominator” in this analysis consists of the class of “women
for whom the provision is an actual rather than an irrelevant restriction.” Id.
(internal quotation marks omitted). That category is narrower “than all
women, pregnant women, or even women seeking abortions identified by the
State.” Id. (internal quotation marks omitted). The district court deter-
mined that because SB8 affects every second trimester D&E procedure in
Texas, the class of women for whom SB8 is a relevant restriction is all women
between 15-20 weeks LMP who seek an outpatient second trimester D&E
abortion. We agree. And the State does not contend otherwise.
We turn, then, to the numerator in this fraction: the portion of women
seeking a D&E procedure between 15-20 weeks LMP for whom SB8 is a sub-
stantial obstacle. See id. SB8 compels all women seeking a D&E abortion
during this gestational period to undergo an additional and otherwise unnec-
essary procedure to induce fetal demise. The procedures are dangerous,
painful, invasive, and potentially experimental. And they expose all women
to heightened risks of adverse health consequences, while offering no corre-
sponding health benefit. Taken together, these burdens are substantial, ex-
ceed any minimal benefits from the law, and thus are undue. And because
SB8 would subject all women seeking a D&E abortion after 15 weeks LMP to
these undue burdens, SB8 operates as a substantial obstacle in a large fraction
of cases in which it is relevant. See Jackson Women’s Health Org., 945 F.3d at
21
No. 17-51060
275-76. Indeed, the law imposes an undue burden on every Texas woman for
whom it is an actual, rather than irrelevant, restriction.
In an effort to salvage SB8, the State argues that we should limit the
scope of injunctive relief by enjoining only the law’s unconstitutional appli-
cations while leaving intact its purportedly constitutional applications. We
reject this argument for several reasons. First, as explained, the district court
properly exercised its discretion in granting facial relief. Second, “it is not
our role to rewrite an unconstitutional statute.” Jackson Women’s Health
Org., 945 F.3d at 277 n.50 (quoting United States v. Stevens, 559 U.S. 460, 481
(2010)); see also Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,
330 (2006) (“[M]indful that our constitutional mandate and institutional
competence are limited, we restrain ourselves from rewriting state law to
conform it to constitutional requirements[.]” (cleaned up)). Third, “we are
without power to adopt a narrowing construction of a state statute unless
such a construction is reasonable and readily apparent.” Stenberg, 530 U.S.
at 944 (internal quotation marks omitted). The State offers no such construc-
tion, and we think no such construction is possible because, as explained in
our large-fraction analysis, SB8 operates as an undue burden in all of its ap-
plications where it is a relevant restriction.
VI.
For these reasons, we AFFIRM the judgment of district court.
22
No. 17-51060
Don R. Willett, Circuit Judge, dissenting:
Civilized society has long recognized that death and dignity should
coincide. It’s why we dress up for funerals and venerate the heroes of hospice
and palliative care. It’s why we derive comfort when we hear that a loved one
died peacefully in their sleep; the loss, no less sorrowful, is leavened with
solace knowing that someone dear to us didn’t suffer. It’s why babies born
pre-viability receive medication to ease their passing. Human dignity should
prevail even when—especially when—human life slips away.
Women who anguish over the decision to have an abortion understand
this. In one medical study cited in the record, 92% of women undergoing the
second-trimester method challenged here preferred that the unborn life in
her womb be ended before being torn apart and extracted.1 The process of
death—how we die, and how agonizingly—matters. And this incontestable
truth is why the State of Texas enacted Senate Bill 8 (SB8) in 2017 to limit
what Texas law calls “dismemberment abortions,” a method known more
clinically, though less accurately, as Dilation and Evacuation (D&E). Texas
does not seek to ban D&E outright; it seeks to make it less brutal and more
humane.
The law is awash in coy euphemisms. The abortion-rights debate, and
the attendant language wars, are emotionally charged, to be sure. But SB8
minces no words about what “dismemberment abortion” means for an
unborn child’s final moments. For its part, the district court offered just nine
words: “The evidence before the court is graphic and distasteful.” The panel
majority follows a similar tack, camouflaging things in anodyne, sanitizing
abstractions that conceal more than they reveal: “Because at 15 weeks LMP
1
Sfakianaki et al., Potassium Chloride-Induced Fetal Demise, 33 Journal of
Ultrasound in Medicine 2 (2014), https://pubmed.ncbi.nlm.nih.gov/24449738/.
23
No. 17-51060
the fetus is larger than the dilated cervical opening, the fetal tissue usually
separates as the physician moves it through the cervix, resulting in fetal
demise.” This bit of linguistic sleight of hand is like saying The Godfather is
about an immigrant who experiences bumps in the road while running the
family olive oil business. Such cloudy vagueness deflects rather than
describes.
If you had trouble deciphering the majority’s mystifying sentence, let
me peel away the lawyerly jargon.2 The Supreme Court described the D&E
procedure in gruesome “technical detail” in Stenberg v. Carhart,
acknowledging that its description “may seem clinically cold or callous to
some, perhaps horrifying to others.”3 As the Supreme Court explained,
abortion doctors use D&E in the second trimester because at that stage of
fetal development, “the fetus is larger”—“particularly the head”—and the
“bones are more rigid,” meaning “dismemberment or other destructive
procedures” are required.4 So, let me quote the Texas Health and Safety
Code’s description of a D&E abortion, which puts things rather bluntly:5 A
physician extracts from the womb what moments before had been a living
“unborn child”—using forceps, scissors, or a similar instrument that
2
“We will look th[e]se facts in the face, setting them out in language that does not
obscure matters for people who, like us, are untrained in medical terminology.” W.
Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), cert. denied sub
nom. Harris v. W. Alabama Women’s Ctr., 139 S. Ct. 2606 (2019).
3
530 U.S. 914, 923 (2000).
4
Id. at 925 (internal citation omitted).
5
SB8 opts for non-medical terminology, using “dismemberment abortion” rather
than “dilation and evacuation”; “unborn child” rather than “fetus” or “product of
conception”; and “causing the death of an unborn child” rather than “fetal demise.”
Tex. Health & Safety Code § 171.151.
24
No. 17-51060
“slices, crushes, or grasps” fetal body parts one at a time. Piece by piece.
Arm by arm. Leg by leg. And as the abortion doctor “cut[s] or rip[s] the piece
from the body”—a torso, a spine, a rib cage—he places each body part on a
tray (or in a dish) to keep inventory and ensure that nothing is left behind.
Sometimes the heart is still beating on the tray. The fetus dies just as an adult
experiencing corporal dismemberment would—by bleeding to death as his or
her body is torn apart.
The majority opinion spurns what the Supreme Court has called the
State’s “legitimate and substantial interest in preserving and promoting fetal
life”6 as “minimal at most.” Such breezy disregard is unserious. No
constitutional right is absolute (even the categorically worded ones expressly
enshrined in the Bill of Rights). Yet the majority takes the view that a
woman’s right to have an abortion has no end while the State’s interest in
recognizing fetal humanity has no beginning.
Rhetoric must not befog reason. The majority uses gauzy, evasive
language to minimize the reality of D&E and to maximize, but never quantify,
the risks of various “fetal-demise” techniques. The majority then relies on
this imprecision to evade exacting analysis. But without fully understanding
the procedures at issue, one cannot fully understand the State’s asserted
interest in reducing the barbarism of D&E on a living unborn child by
requiring more humane alternatives—alternatives Plaintiffs have long used,
and touted as safe, in their own provision of abortion services.
It merits repeating: The State of Texas is not seeking to ban this grisly
procedure. But Texas does seek to unbrutalize it, requiring that an abortion
doctor not dismember a living unborn child. SB8 does not proscribe D&E; it
prescribes more humane D&E, one that substitutes merciful deaths for
6
Gonzales v. Carhart, 550 U.S. 124, 145 (2007).
25
No. 17-51060
horrific ones. Few would disagree that tearing the limbs off a live fetus until
it dies is more barbaric than tearing the limbs off a dead fetus, or injecting the
fetus with a lethal substance first. Under SB8, developing human life must be
extinguished before it is extracted, thus granting a measure of mercy and
dignity to the unborn child’s final moments. As explained below, there is
nothing unconstitutional about that.
Respectfully, I dissent.
* * *
The district court committed numerous reversible errors, scrutinizing
SB8 under a now-invalid legal standard and making multiple clearly
erroneous fact findings that disregard or distort the evidentiary record.
Reversal is warranted for at least four reasons:
1. The controlling opinion of June Medical Services LLC v.
Russo scrapped the benefits vs. burdens balancing test used
by the district court (and endorsed by the panel majority).7
2. SB8 meets the correct legal standard: the three-decades-old
“undue burden” test (whether a law poses a “substantial
obstacle”) from Planned Parenthood of Southeastern
Pennsylvania v. Casey.8
3. Even under Whole Woman’s Health v. Hellerstedt’s
amorphous and now-defunct balancing test, SB8 passes
constitutional muster.9
7
140 S. Ct. 2103 (2020).
8
505 U.S. 833 (1992).
9
136 S. Ct. 2292 (2016).
26
No. 17-51060
4. Plaintiffs failed to meet the heavy evidentiary burden of
showing that SB8 is facially unconstitutional.
I
First, I explain why the controlling standard is Chief Justice Roberts’s
2020 formulation in June Medical of the “undue burden” test from Casey
rather than the 2016 Hellerstedt benefits vs. burdens balancing test.
In 2016, Hellerstedt invalidated a Texas statute that required abortion
providers to have admitting privileges at local hospitals and to meet the
minimum standards for ambulatory surgical centers.10 The Court stated that
Casey’s undue-burden test “requires that courts consider the burdens a law
imposes on abortion access together with the benefits those laws confer.”11
Framing the inquiry this way, the Court then concluded that the district court
properly “weighed the asserted benefits” of the challenged provisions
“against the burdens.”12
Just a few months ago in June Medical, the Supreme Court again
tackled the meaning of “undue burden” in another admitting-privileges case.
The restriction was similar to that in Hellerstedt, but the Court’s reasoning
was anything but. Critically, no rationale received majority support. While
Hellerstedt garnered a clear five-vote majority for its benefits vs. burdens
balancing approach, June Medical managed only a plurality. The Court
fractured 4-1-4, with five votes agreeing on what to do, but only four agreeing
on why to do it.13 The four-Justice plurality repeated the Hellerstedt balancing
approach, stating that the Casey undue-burden standard requires courts “to
10
Id. at 2300.
11
Id. at 2309.
12
Id. at 2310.
13
140 S. Ct. at 2112.
27
No. 17-51060
weigh the law’s asserted benefits against the burdens it imposes on abortion
access.”14 But again, that decisional rule mustered just four votes.
Chief Justice Roberts provided a fifth vote for the result, but not for
the reasoning. Writing for himself, the Chief Justice (who had dissented in
Hellerstedt) concurred in the judgment but denounced the nebulous balancing
of benefits and burdens. The on-target test, said the Chief Justice, harkening
back to Casey, has a simpler formulation: “Laws that do not pose a substantial
obstacle to abortion access are permissible, so long as they are ‘reasonably
related’ to a legitimate state interest.”15
In rejecting balancing, the Chief Justice insisted that trying to weigh
the State’s interest in protecting the potentiality of human life is absurd
because it’s impossible to “assign weight to such imponderable values.”16 He
emphasized that “[n]othing about Casey suggested that a weighing of costs
and benefits of an abortion regulation was a job for the courts.”17 Instead,
Casey “focuses on the existence of a substantial obstacle.”18 Agreeing with
the plurality’s substantial-obstacle analysis (focusing on the law’s burdens),
Chief Justice Roberts said the inquiry should have ended there. “In neither
[Hellerstedt nor Casey] was there [a] call for consideration of a regulation’s
benefits.”19 The only relevance of an abortion regulation’s asserted
“benefits,” said the Chief Justice, is “in considering the threshold
requirement that the State have a ‘legitimate purpose’ and that the law be
14
Id. (internal quotation marks omitted).
15
Id. at 2135 (Roberts, C.J., concurring).
16
Id. at 2136.
17
Id.
18
Id.
19
Id. at 2139.
28
No. 17-51060
‘reasonably related to that goal.’”20 And since we must apply “the
‘traditional rule’” of deference to Texas’s “medical and scientific”
judgments,21 this threshold requirement is satisfied if Texas has “a rational
basis to . . . use its regulatory power.”22 And if the State makes that modest
legitimate-interest showing, “the only question for a court is whether a law
has the ‘effect of placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus.’”23
The majority opinion in this case defies the Chief Justice’s controlling
opinion in June Medical and instead clings to the Hellerstedt balancing test,
the same balancing test that “five Members of the Court reject[ed]”—
irrefutably—a few months ago.24 Proper application of the Marks rule
dictates otherwise.
How are lower courts to divine the legal rules of the road when no
single rule of decision garners at least a five-Justice majority? There’s a rule
for that. And it is simply stated, if not applied. Forty-plus years ago in Marks
v. United States, the Supreme Court instructed that “[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgment on the narrowest
grounds.”25 In other words, the absence of a decisional rule doesn’t mean the
20
Id. at 2138 (quoting Casey, 505 U.S. at 878, 882).
21
Id. at 2136 (quoting Gonzales, 550 U.S. at 163).
22
Gonzales, 550 U.S. at 158.
23
June Medical, 140 S. Ct. at 2138 (Roberts, C.J., concurring) (quoting Casey, 505
U.S. at 877) (emphasis added).
24
Id. at 2182 (Kavanaugh, J., dissenting).
25
430 U.S. 188, 193 (1977) (internal quotation marks omitted).
29
No. 17-51060
absence of binding precedent. We have clarified that this principle “is only
workable where there is some common denominator upon which all of the
justices of the majority can agree.”26 If a concurrence “can be viewed as a
logical subset” of the plurality, thus yielding outcome convergence, the
concurrence controls.27 And its precedential force is absolute: “The binding
opinion from a splintered decision is as authoritative for lower courts as a
nine-Justice opinion. . . . This is true even if only one Justice issues the
binding opinion.”28
The panel majority concludes that Marks is inapt because Chief
Justice Roberts’s concurrence in June Medical is not a logical subset of the
plurality. The majority first notes that since Chief Justice Roberts rejected
the balancing test, his concurrence is not “logically compatible” with the
plurality opinion. The majority adds that even though the four dissenters in
June Medical agreed with Chief Justice Roberts that the correct standard is
“substantial obstacle”—not Hellerstedt’s balancing test—their cobbled-
together dissents and his concurrence can’t combine to form an opinion with
any precedential force. The majority’s arguments collapse under scrupulous
analysis of June Medical and our caselaw on the proper application of Marks.
As a preliminary matter, the panel majority says that the views of the
dissenting Justices in June Medical are irrelevant. But the Marks rule doesn’t
apply unless there is a fragmented opinion “and no single rationale explaining
the result enjoys the assent of five Justices.”29 Dissenting in June Medical,
26
United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (internal
quotation marks omitted).
27
Id.28
United States v. Duvall, 740 F.3d 604, 611 (D.C. Cir. 2013) (Kavanaugh, J.,
concurring in the denial of rehearing en banc).
29
Marks, 430 U.S. at 193 (emphasis added).
30
No. 17-51060
Justice Kavanaugh observed that “five Members of the Court reject
the [Hellerstedt] cost-benefit standard.”30 Noting Justice Kavanaugh’s
statement, then, is no attempt to stitch together a holding between the
dissenters and the concurring Chief Justice. Instead, it merely shows that the
requirements for applying Marks are met here.31 Only after making this
determination can we ask: Is the Chief Justice’s concurrence “a logical
subset” of the plurality and decided “on the narrowest grounds” such that it
is the controlling opinion? Short answer: Yes.
The June Medical plurality weighed the law’s asserted benefits against
its burdens on abortion access.32 The plurality referred to the “burdens” side
of the test as a “substantial-obstacle determination.”33 Devoting almost ten
pages to this analysis, the plurality scrutinized the law’s impact on abortion
providers and abortion access more generally.34 It then assessed the “law’s
asserted benefits,” spending considerably less time (barely two pages) on this
part of the balancing test.35 The plurality concluded that the law “pose[d] a
‘substantial obstacle’ to women seeking an abortion” and “offer[ed] no
significant health-related benefits.”36 Thus, the plurality decided “that the
law consequently imposes an ‘undue burden’ on a woman’s constitutional
30
June Medical, 140 S. Ct. at 2182 (Kavanaugh, J., dissenting).
31
Even aside from the application of Marks, Justice Kavanaugh’s point calls into
question the validity of the plurality’s holding. See Alleyne v. United States, 570 U.S. 99, 120
(2013) (Sotomayor, J., concurring) (“A decision may be of questionable precedential value
when a majority of the Court expressly disagreed with the rationale of a plurality.” (cleaned
up)).
32
140 S. Ct. at 2120.
33
Id. at 2121–30.
34
Id.
35
Id. at 2130–32.
36
Id. at 2132.
31
No. 17-51060
right to choose to have an abortion.”37 The plurality’s test can be distilled to
this formula: substantial obstacle + insignificant benefits = undue burden.
Now to Chief Justice Roberts’s test. As explained below, his
concurrence, the narrowest opinion concurring in the judgment, constitutes
the Court’s holding and provides the controlling standard. The Chief Justice
says the proper rule under Casey, and the one he applies, is whether the law
places “an undue burden on the woman’s ability to obtain an abortion.”38 “A
finding of 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.”39
After noting that the plurality recites these standards as well, the Chief
Justice explains how the plurality diverges from his opinion and from Casey,
by injecting benefits into the equation.40 The Chief Justice goes on to
emphasize that the undue burden test is about the “‘substantial obstacle’
standard,” pointing to Casey’s use of that standard “nearly verbatim no less
than 15 times.”41 In other words, the Chief Justice’s test is: substantial
obstacle = undue burden. The only difference between the plurality’s
formulation and that of the Chief Justice is the elimination of one variable
from the left side of the equation. Indeed, the Chief Justice concludes that,
“for the reasons the plurality explains,” the law “imposed a substantial
37
Id.
38
Id. at 2135 (Roberts, C.J., concurring) (citing Casey, 505 U.S. at 877).
39
Id. Conversely, a law regulating abortion that “serves a valid purpose” without
imposing a substantial obstacle is constitutional, even if it “has the incidental effect of
making it more difficult or more expensive to procure an abortion.” Casey, 505 U.S. at 874.
40
June Medical, 140 S. Ct. at 2135 (Roberts, C.J., concurring) (citing Casey, 505
U.S. at 877).
41
Id. at 2138.
32
No. 17-51060
obstacle” on abortion access.42 In short, the Chief Justice’s test is a narrower
version of the plurality’s test and thus a logical subset of it.
For the math-inspired, an illustration may prove helpful:
The larger circle (B) is the June Medical plurality’s “grand ‘balancing test’”
to determine undue burden.43 The subset (A) is the Chief Justice’s narrower
test, which focuses only on half of the plurality’s test: the burden part. Simply
put, the tests have a common denominator—substantial obstacle—and the
Chief Justice’s agreement with the plurality’s substantial-obstacle analysis is
the “narrowest position supporting the judgment.”44
42
Id. at 2141.
43
Id. at 2135.
44
Whole Woman’s Health v. Cole, 790 F.3d 563, 571 (5th Cir.), modified, 790 F.3d
598 (5th Cir. 2015), rev’d and remanded sub nom. Whole Woman’s Health v. Hellerstedt, 136
S. Ct. 2292 (2016), as revised (June 27, 2016), and rev’d and remanded sub nom. Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016) (applying
Marks to find that the joint opinion in Casey was controlling).
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Even if you consider the two tests substantially different, as the
majority does, because only one (the plurality’s) is a balancing test, these
differences in type do not preclude the application of Marks. That’s because
the types of tests say nothing about the tests’ commonalities. Our decision in
United States v. Duron-Caldera, relied on by the panel majority for inapposite
reasons, confirms this conclusion.45
In Duron-Caldera, the government argued that to determine whether
an affidavit was testimonial, we should apply the primary purpose/accusation
test from the plurality opinion in Williams v. Illinois.46 In Williams, Justice
Alito, writing for the plurality, stated that an out-of-court statement is
testimonial when it has “the primary purpose of accusing a targeted
individual of engaging in criminal conduct.”47 Justice Thomas, concurring in
the judgment, rejected the primary-purpose test, as modified by Justice Alito,
in its entirety. “The shortcomings of the original primary purpose test pale in
comparison, however, to those plaguing the reformulated version that the
plurality suggests today. The new primary purpose test . . . lacks any
grounding in constitutional text, in history, or in logic.”48
Justice Thomas proposed a completely different test—the “indicia of
solemnity” test, which asks whether out-of-court statements are “formalized
testimonial materials, such as depositions, affidavits, and prior testimony, or
statements resulting from formalized dialogue, such as custodial
interrogation.”49 Justice Thomas based his concurrence in the judgment on
45
737 F.3d at 994–96.
46
567 U.S. 50 (2012).
47
Williams, 567 U.S. at 82.
48
Id. at 114 (Thomas, J., concurring).
49
Id. at 111 (internal quotation marks omitted).
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the result of the indicia of solemnity test, expressly acknowledging that the
plurality “forg[oes] that approach” and instead applies the primary
purpose/accusation test.50 In short, Justice Thomas’s test has absolutely
nothing in common with the plurality’s primary purpose/accusation test; he
just happened to reach the same result.
Because of this lack of commonality, we refused (in Duron-Caldera) to
find the primary purpose/accusation test controlling, noting that neither the
plurality nor the concurrence could “be viewed as a logical subset of the
other.”51 We concluded that Marks didn’t apply because there was no
“‘narrowest’ holding that enjoys the support of five Justices.”52
Our nonapplication of Marks there supports the application of Marks
here. In June Medical, the Chief Justice does not reject the plurality’s test in
its entirety. Instead, he adopts the plurality’s “substantial obstacle” analysis,
which takes up most of the plurality’s opinion.53 After agreeing with that
analysis, he concludes that “finding a substantial obstacle before invalidating
an abortion regulation is therefore a sufficient basis for the decision.”54 He
only rejects the plurality’s “added . . . observation” concerning the weighing
of “the law’s asserted benefits.”55 In other words, remove the few pages of
the plurality’s “benefits” analysis, and the Chief Justice is on board with the
opinion. The Chief Justice’s June Medical concurrence, then, is both a subset
of, and a narrower holding than, the plurality opinion.
50
Id. at 118.
51
737 F.3d at 994 n.4.
52
Id.
53
June Medical, 140 S. Ct. at 2139 (Roberts, C.J., concurring).
54
Id.
55
Id. at 2135.
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There are still more reasons to apply the Chief Justice’s “substantial
obstacle” test here. Legal clashes have erupted nationally over the vexing
interplay between Marks and June Medical. But notably, the panel majority in
this case collides head-on with the two other circuits to have considered the
issue.56 The Eighth Circuit barely two months ago and the Sixth Circuit just
last week both held that Chief Justice Roberts’s concurrence in June Medical
constitutes the Court’s controlling opinion because he joined the judgment
on the narrowest grounds.57
Indeed, the Supreme Court’s own docket activity immediately
following June Medical underscores the correctness of the Sixth and Eighth
Circuits’ interpretation. On the heels of June Medical, the Court directed the
Seventh Circuit to reconsider two decisions that had applied a balancing
test.58 Sending these cases back “for further consideration in light of” June
Medical, instead of simply denying review, suggests the High Court rejected
56
Hopkins v. Jegley, 968 F.3d 912 (8th Cir. 2020); EMW Women’s Surgical Center,
P.S.C. v. Friedlander, No. 18-6161, 2020 WL 6111008 (6th Cir. Oct. 16, 2020).
57
Id. The only district court to consider this issue has come to the opposite
conclusion even though it admits that a showing of substantial obstacle “is a ‘common
denominator’” among the plurality and concurrence. Am. Coll. of Obstetricians &
Gynecologists v. United States Food & Drug Admin., No. 20-1320, 2020 WL 3960625, at *16
(D. Md. July 13, 2020). The United States moved to stay the district court’s injunction,
noting that “every Justice of th[e] Court stressed the importance of demonstrating that a
law poses a substantial obstacle to abortion access in order to obtain relief. And at least five
Justices explicitly rejected the balancing test that the district court here adopted.” No.
20A34, Application for Stay in Am. Coll. of Obstetricians & Gynecologists v. United States
Food & Drug Admin., No. 20-1320, 2020 WL 3960625 (D. Md. July 13, 2020) (internal
citations omitted). The Government further argues that any “discussion of benefits in
[Hellerstedt] was not necessary to its holding,” so the Chief Justice’s concurrence in June
Medical applies the only relevant test (substantial obstacle). Id.58
Box v. Planned Parenthood of Indiana & Kentucky, Inc., No. 18-1019, 2020 WL
3578669, at *1 (July 2, 2020); Box v. Planned Parenthood of Indiana & Kentucky, Inc., No. 19-
816, 2020 WL 3578672, at *1 (July 2, 2020).
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a balancing test and expects the Seventh Circuit to apply the more lenient
undue-burden framework outlined in the Chief Justice’s concurrence.
As middle-management circuit judges, we cannot overrule the
Supreme Court. But neither should we “underrule” it. “Our duty is to
harmonize its decisions as well as possible.”59 There is admitted
awkwardness in treating as precedential an opinion that no one else joins,
even one authored by the Chief Justice of the United States. But this is the
settled practice when that opinion is the determinative one.60 Indeed, the
Chief Justice’s concurrence is the only opinion that attempts to synthesize
Casey, Hellerstedt, and June Medical. “Nothing about Casey suggested that a
weighing of costs and benefits of an abortion regulation was a job for the
courts,” and courts should “respect the statement in [Hellerstedt] that it was
applying the undue burden standard”—that is, the substantial-obstacle test
“of Casey.”61
The controlling opinion in June Medical clarified that the “undue
burden” standard leaves no room for benefits vs. burdens balancing. Nor
does it envision judges as legislators, making quintessential value-laden
policy judgments. The panel majority wrongly holds otherwise, endorsing the
district court’s free-form balancing analysis. Even so, as explained in the
following sections, SB8 passes constitutional muster under either standard:
(1) Casey’s governing “undue burden” test, and (2) Hellerstedt’s now-
defunct grand balancing test.
59
Nelson v. Quarterman, 472 F.3d 287, 339 (5th Cir. 2006) (Jones., C.J., dissenting
on other grounds).
60
Marks, 430 U.S. at 193.
61
June Medical, 140 S. Ct. at 2136, 2138 (Roberts, C.J., concurring).
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II
A forthright application of Casey’s principles and progeny
underscores the constitutionality of SB8. It is reasonably related to a
legitimate state interest and imposes no substantial obstacle.
A
Casey represented a fundamental shift in abortion jurisprudence and
set forth the undue-burden test. The Casey plurality explicitly rejected the
post-Roe v. Wade line of cases that ignored the State’s “important and
legitimate interest” in fetal life and that invalidated abortion restrictions
“which in no real sense deprived women of the ultimate decision” to obtain
an abortion.62 “Only where [a] state regulation imposes an undue burden on
a woman’s ability to make this decision does the power of the State reach”
the abortion right.63 The Casey plurality further explained: “A finding of 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.”64
After Casey, the Supreme Court decided Stenberg v. Carhart and
Gonzales v. Carhart, both involving the constitutionality of statutes banning
D&E abortions.
In Stenberg, the Court struck down a Nebraska statute that in effect
banned both D&E procedures (intact and dismemberment) without a health
exception for the mother.65 Dismemberment D&E is the procedure
62
Casey, 505 U.S. at 871, 875.
63
Id. at 874.
64
Id. at 877.
65
Stenberg, 530 U.S. at 945–46.
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challenged in this case, and intact D&E (also called D&X) is a procedure in
which the abortion provider extracts the fetus intact, “pull[ing] the fetal body
through the cervix [and] collap[sing] the skull.”66 The Court discussed at
length whether a maternal-health exception was necessary (it held it was) and
whether the statute’s language was broad enough to cover both types of D&E
procedures (it held it was).67 The Court specifically noted there was record
evidence that intact D&E was sometimes safer for the pregnant woman than
dismemberment D&E.68 But the parties’ experts disagreed about “whether
[intact D&E] is generally safer.”69
Seven years later, in Gonzales, the Court upheld the federal Partial-
Birth Abortion Ban Act, which banned “intact D&E.”70 The Court, as in
Stenberg, did not mask the procedure’s gruesomeness. It explained that once
the baby’s body is in the birth canal, sometimes with limbs completely
outside of the mother’s body (when the baby is feet first), the doctor “forces
[] scissors into the base of the skull . . . [then] introduces a suction catheter”
to “evacuate the skull contents.”71
Before reaching its decision, the Court laid out the three holdings of
Casey: (1) the woman has a right to choose to have an abortion before viability
without undue interference from the State; (2) the State has the power to
restrict abortions after fetal viability; and (3) the State has legitimate interests
from the outset of the pregnancy in protecting the health of the woman and
66
Id. at 927.
67
Id. at 930–46.
68
Id. at 936.
69
Id. at 936–37.
70
Gonzales, 550 U.S. at 137.
71
Id. at 138.
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the life of the fetus.72 The Court then repeated Casey’s undue-burden
standard: An undue burden exists “if a regulation’s ‘purpose or effect is to
place a substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability.’”73 This test was not a balancing test, but it “struck
a balance” between the woman’s right to an abortion and the State’s ability
to “express profound respect for the life of the unborn.”74
The Court concluded that the Partial-Birth Abortion Ban Act did not
impose an undue burden on second-trimester abortions, as a facial matter,
because the act excluded most D&Es (the dismemberment procedure), and
it furthered the government’s interests. “Implicitly approving such a brutal
and inhumane procedure by choosing not to prohibit it will further coarsen
society to the humanity of not only newborns, but all vulnerable and innocent
life, making it increasingly difficult to protect such life.”75 The Court
concluded that the case presented an inappropriate facial challenge. As-
applied challenges were “the proper manner to protect the health of the
woman if it can be shown that in discrete and well-defined instances a
particular condition has or is likely to occur in which the procedure
prohibited by the Act must be used.”76 The Court further noted that “[i]n an
as-applied challenge the nature of the medical risk can be better quantified
and balanced than in a facial attack.”77
72
Id. at 145.
73
Id. at 146 (quoting Casey, 505 U.S. at 878).
74
Id.75
Id. at 157.
76
Id. at 167.
77
Id.
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The majority opinion ignores the principles of these cases and the
constitutional analysis they employed.
B
First, the majority turns the clock back to the pre-Casey days where
state interests in fetal life were minimized to the point of nonexistence.
Indeed, the majority opinion calls the State’s interest in banning live-
dismemberment abortions “minimal at most.” In doing so, it blesses the
district court’s dismissive finding that the State’s interest in fetal life is “only
marginal,” while the woman’s right to an abortion is “absolute.” The district
court stated that “[t]he State’s legitimate concern with the preservation of
the life of the fetus is an interest having its primary application once the fetus
is capable of living outside the womb.” But this flatly contradicts Casey’s
holding, repeated in Gonzales, “that the State 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.”78
Next, the majority concludes that SB8 constitutes a substantial
obstacle because it amounts to a de facto ban on D&E abortions—the most
common abortion procedure in the second trimester. The majority believes
that Stenberg and Gonzales stand for the proposition that where a statute
“effectively ban[s] the safest, most common method of second trimester
abortion,” that statute “imposes an undue burden.” And because the
majority believes the fetal-demise techniques proposed by Texas are not
feasible or safe, it holds that SB8 amounts to a complete ban on D&E
abortions.79
78
Gonzales, 550 U.S. at 145 (quoting Casey, 505 U.S. at 846) (emphasis added).
79
The majority and Plaintiffs also rely on Planned Parenthood of Cent. Missouri v.
Danforth, 428 U.S. 52 (1976) for this proposition. But Danforth is easily distinguished. In
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No. 17-51060
The majority and Plaintiffs view one particular sentence in Gonzales
as controlling here: “The Act excludes most D&Es in which the fetus is
removed in pieces, not intact.”80 This cherry picking ignores the Court’s
analysis as a whole. And the conclusion rests on the false premise that SB8
amounts to a ban on the D&E procedure. It does not.
C
SB8 only bans D&E if fetal demise is not feasible. Before getting into
whether it is, it’s important to understand the D&E procedure.
The second trimester spans from 13–26 weeks of gestation. Texas law
bans abortions after 22 weeks’ gestation unless the abortion is necessary to
protect the woman’s health or the fetus has a severe abnormality.81 After 15
weeks, the D&E procedure is the most common abortion method. So SB8
only affects abortions between 15–22 weeks, which makes up about 8% of total
abortions in the U.S.82 And the trend is toward fewer second-trimester
that case, the Supreme Court assessed numerous state restrictions on abortion, including a
ban on saline amniocentesis, which at the time affected “all abortions after the first
trimester.” Id. at 76. The state enacted the ban “on the ground that the technique ‘is
deleterious to maternal health.” Id. But the Court found that the ban was not “reasonably
relate[d]” to this interest and was instead “an unreasonable or arbitrary regulation
designed to inhibit, and having the effect of inhibiting, the vast majority of second-trimester
abortions.” Id. at 79 (emphasis added). Here, the State asserts interests in fetal life and the
integrity and ethics of the medical profession. There is undoubtedly a rational relation
between these interests and banning a doctor from tearing a live unborn child apart. Plus,
as explained below, Plaintiffs have failed to quantify even an estimate of how many
abortions they believe SB8 will inhibit, much less that SB8 inhibits a vast majority of them.
80
Gonzales v. Carhart, 550 U.S. at 151.
81
Tex. Health & Safety Code §§ 171.044, .046.
82
Centers for Disease Control and Prevention, CDCs Abortion
Surveillance System FAQs, https://www.cdc.gov/reproductivehealth/data_stats/
abortion.htm.
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abortions. Between 2007 and 2016, the percentage of abortion before 8 weeks
rose by 113%.83
In the small percentage of overall abortion cases where D&E is used,
this is the process: The abortion doctor first provides the mother with the
option of sedation. After sedation, the doctor administers a local anesthetic
(usually lidocaine) using a 22-gauge needle inserted into the cervix. The
doctor then begins the dilation process, using osmotic dilators that absorb
liquid and expand the cervix. The process can take up to two days and may
require additional drugs to aid dilation. Once the cervix is sufficiently dilated,
the doctor starts extracting the unborn child—first using suction then
forceps.84 Forceps are necessary to remove what suction cannot—usually the
head and spine. At later gestational ages, forceps with bigger and sharper
teeth are often used to remove the body.
Before 17 weeks’ gestation, suction will remove most of the unborn
child, so suction is the cause of death. SB8 doesn’t ban suction, even when
forceps are required to remove any remaining pieces of the unborn child or
other pregnancy tissue. Suction can sometimes be a one-day procedure, but
depending on how effective the administered drugs are at dilation, the
woman may have to return the following day.
After 17 weeks’ gestation, suction is usually insufficient because the
unborn child is more developed and too large to be suctioned out of the
83
Id.
84
Plaintiffs purposefully obscure this fact by selling D&E as a “ten-minute”
procedure. This is refuted by the record. Indeed, Plaintiffs’ record support for this is the
district court’s opinion that noted the evacuation phase “takes approximately ten
minutes.” Plaintiffs selectively ignore that dilation, especially at later gestational ages can
take up to two days. In fact, Plaintiffs’ own documents show that the dilation portion of the
D&E can be a two- or even three-day process.
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woman’s body. So an abortion doctor causes fetal death by dismemberment
or by alternative methods, including those described below, before
dismembering the fetus. SB8 requires doctors to take the second path: death
by alternative methods before the unborn child is torn apart.
The D&E procedure carries risks, including hemorrhage, uterine
perforation or laceration, infections, failed abortion, amniotic fluid
embolism, cervical incompetence, Asherman Syndrome, hysterectomy,
cardiac arrest, and death. Many of these risks are rare, although the record
shows that others are not quantifiable. Even with these risks, Plaintiffs
consider D&E “extremely safe.” Doctors might not perform D&Es on
certain women with high-risk factors, such as cardiac issues, placenta accrete,
hypertension, uncontrolled diabetes, obesity, or severe anemia.
For those women who do get a D&E abortion, SB8 requires fetal
demise before the unborn child is dismembered. The State proposes three
fetal-demise methods (though there are others) that abortion providers can
use to comply with SB8: digoxin, potassium chloride, and umbilical-cord
transection. The majority deems these techniques unfeasible because they
are “risky,” “medically unnecessary,” and “experimental.” I’ll defer to the
majority’s descriptions of these methods but want to discuss the medical
risks and feasibility of the procedures one by one.
1. Digoxin
The majority concludes that the district court committed no error in
finding that digoxin injections “are not a safe and feasible method of inducing
fetal demise.” No fair reading of the record supports this conclusion.
First, the majority focuses on the possibly “experimental” nature of
digoxin. But two decades ago, in Stenberg, the Supreme Court noted that
“[s]ome physicians use intrafetal potassium chloride or digoxin to induce
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No. 17-51060
fetal demise prior to a late D & E (after 20 weeks), to facilitate evacuation.”85
Seven years later, in Gonzales, the Supreme Court again acknowledged that
“[s]ome doctors, especially later in the second trimester, may kill the fetus a
day or two before performing” the D&E.86 In fact, the court in Gonzales
found that “an injection that kills the fetus” allows a doctor to perform the
D&E without violating the Partial-Birth Abortion Ban Act.87 The use of
digoxin to cause fetal demise before a D&E is hardly a novel, much less
“experimental,” phenomenon.
Plaintiffs know this because they have used—and continue to use—
digoxin. After Gonzales, abortion providers consistently used fetal-demise
techniques to comply with the ban on partial-birth abortion. Planned
Parenthood Federation of America even mandated that its affiliates use
digoxin to cause fetal demise before D&E abortions at or after 18 weeks’
gestation. If a woman declined digoxin, Planned Parenthood affiliates had to
refer the woman to another abortion provider. All but one abortion provider
that testified at trial had used digoxin in the past. The one who had not works
with doctors who have. One Planned Parenthood affiliate previously used
digoxin in all abortions in the second trimester. And the National Abortion
Federation’s 2018 Clinical Policy Guidelines for Abortion Care discuss both
digoxin and potassium chloride (as well as lidocaine)—stating that each
“may be used to cause fetal demise” in second-trimester abortions.
Texas providers also use, and some even require, digoxin to cause fetal
demise. Plaintiff Alamo requires digoxin for abortions starting at 18 weeks’
gestation. And Plaintiff Southwestern requires digoxin starting at 20 weeks’
85
Stenberg, 530 U.S. at 925.
86
Gonzales, 550 U.S. at 136.
87
Id. at 164.
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gestation. Plaintiffs bury their response to this point in a footnote in their
brief, claiming that Planned Parenthood of Greater Texas no longer requires
digoxin—its use starting at 18 weeks is now optional. One abortion doctor
from Planned Parenthood of Greater Texas testified that she stopped using
digoxin in consultation with an attorney who thought its use might violate
another Texas law. When asked how she felt about not using digoxin
anymore, she responded that she was “okay with it” because she “was
comfortable with performing [D&E] both with and without digoxin.”
Whether digoxin is required or optional, the point is that Plaintiffs have
used—and continue to use—digoxin to cause fetal demise. Yet in this
litigation they claim that digoxin is unsafe and experimental.
Second, the majority focuses on the risks of digoxin. Plaintiffs first
claim digoxin is not a feasible method of demise because it’s invasive and
painful. But Plaintiffs ignore that patients undergoing D&E are given the
option of sedation even when digoxin is not administered. And Plaintiff
Wallace admitted in testimony that when he performs an abortion involving
digoxin, he injects a local numbing anesthetic before injecting the digoxin.
Plaintiffs next argue that digoxin presents significant risks and is
contraindicated for women with certain heart conditions. And Plaintiffs state
that for obese women or women with fibroids, administering digoxin is
“difficult or impossible.” Plaintiffs ignore that their own documents state
that obese women and women with fibroids are considered to have “special
conditions requiring special evaluation and management” for the D&E itself.
In other words, the conditions that Plaintiffs argue make digoxin injections
unsafe also make D&E unsafe. And it’s unclear whether certain women with
these conditions may get a D&E abortion at all.
Plaintiffs never quantify any of digoxin’s risks. Instead, they argue that
the mere existence of these risks renders the procedure unsafe. But Plaintiffs’
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No. 17-51060
own consent forms for digoxin tell the patient that it’s safe. Plaintiff Alamo’s
consent form goes so far as to say that starting at 18 weeks’ gestation, “the
abortion process is made easier and safer by injecting the fetus with a
medication called Digoxin.” And Planned Parenthood of Greater Texas’s
consent form says “[s]tudies have shown that it is safe to use digoxin” for an
abortion.
Third, the majority claims that digoxin has a 5–10% failure rate. This
is the only quantified “risk” in the entire opinion. But the record doesn’t
support the statistic. Plaintiffs’ testifying expert who offered this statistic said
he derived it from medical literature in general, without ever specifying what
literature he relied on. Plaintiffs admit, without quantifying, that the rate is
lower than 5–10% for intrafetal injection. Plaintiff Southwestern Women’s
Surgery Center’s “Consent for Digoxin Injection” states in unequivocal
terms that failure to cause fetal demise “is uncommon and may or may not
delay the expected completion time of your abortion procedure.”
Plaintiffs also turn a blind eye to their own documents showing that
digoxin can be administered a second time, which undermines the 5–10%
failure rate. They say “repeat injections are unstudied” and “nothing short
of experimentation.” Yet their own protocol documents say that “[i]f fetal
demise has not been induced, a second injection of Digoxin can be
administered at the physician’s discretion.”
Fourth, the majority claims that digoxin injections (and all fetal-
demise procedures) are medically unnecessary. But Planned Parenthood of
Greater Texas’s consent form for digoxin says it “helps the clinician comply
with a federal abortion law.” Plaintiffs feel comfortable using digoxin not just
for medical reasons, but for legal reasons too. Indeed, Plaintiffs themselves
administer digoxin to avoid legal liability in the event of an accidental live
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birth. It seems that digoxin is safe when avoiding tort exposure but unsafe
when trying to avoid SB8.88
Finally, the majority claims that causing fetal demise through digoxin
(and the other methods) will delay a woman’s abortion procedure for what
“otherwise is a one-day procedure.” Yet Plaintiffs’ own documents state
that fetal demise is required at certain gestational ages, and that the required
fetal-demise procedure between 20–21 weeks using digoxin is a “two- or
three-day procedure.” Further, the record shows that digoxin can work
within hours.
Given this mountain of evidence, it’s unsurprising that several of
Plaintiffs’ testifying doctors admitted digoxin was safe and widely used. The
panel majority concludes, however, that despite Plaintiffs’ own continued
use of digoxin, the drug has all of a sudden become dangerous and
experimental. If this is supported by the record, then Plaintiffs have been
willfully endangering their patients for a long time.
2. Potassium Chloride
Compared to digoxin, there is less record evidence about potassium
chloride. The record does contain, however, expert testimony and medical
literature indicating it’s a safe and effective way to cause fetal demise before
dismemberment. One doctor testified about a medical study of the use of
potassium chloride in 239 patients. The drug had a 100% efficacy rate.
The majority’s main contention with potassium chloride is that it
requires a specialist. There is record evidence to dispute this. But even so,
88
In any event, SB8 has a health-and-safety exception that allows live
dismemberment when medically necessary. Tex. Health & Safety Code
§§ 171.002(3), 171.152(a).
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the majority apparently equates needing a specialist with substantial obstacle.
It provides no authority for this argument.
Plaintiffs also make the broad claim that no Texas abortion provider
has ever injected potassium chloride to cause fetal demise. But their support
for this proposition is the testimony of several doctors who said only that they
had not personally used potassium-chloride injections. Plaintiffs point to no
testimony or other record evidence that shows no Texas abortion provider
has used potassium chloride or that it’s not feasible for any provider to do so.
3. Umbilical-Cord Transection
The majority agreed with the district court’s conclusion that
umbilical-cord transection was “essentially experimental.” But both Planned
Parenthood Federation of America and Planned Parenthood of Greater
Texas include in their clinical guides umbilical-cord transection as an option
for their physicians to comply with the federal Partial-Birth Abortion Ban.
The record also shows that some of Plaintiffs’ doctors have performed this
procedure, and one study of over 400 patients showed that umbilical-cord
transection achieved fetal demise safely and easily 100% of the time. The
study recommended that doctors use umbilical-cord transection over
digoxin, and the doctors in the study used the technique for every patient
they had over 16 weeks’ gestation.
Plaintiffs dismiss this study as having “severe limitations.” But their
record cites for this argument are a doctor’s discussion of potassium-chloride
injections (not umbilical-cord transection) and another doctor’s testimony
that actually defended the study’s strength. The only record cite Plaintiffs
invoke that arguably supports their point is one of their witness’s testimony
that the study was “retrospective” and “not generalizable to the entire D&E
providing community.” Right after making this statement, the court cut off
the witness from answering the attorney’s next question about umbilical-cord
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No. 17-51060
transections because it didn’t “seem like [the witness] has experience in this
area.”
* * *
In sum, the district court erred in wholly disregarding substantial
portions of the record and failing to acknowledge that Plaintiffs’ own
documents contradict their arguments about the risks of fetal-demise
methods. Plus, the district court concluded that these methods were risky
even though not a single risk was ever quantified.
The majority also focuses on the possible risks and side effects of all
three techniques. But the mere existence of side effects, even severe ones,
says little (if anything) about the procedures’ safety. Anyone who has
watched a drug commercial for something as benign as Zyrtec knows how the
ad rattles off an ominous, rapid-fire list of potential side effects. It is the
probability of these side effects occurring that matters. And Plaintiffs have
failed to show that the probability is high enough to render any of these
methods unsafe. The State, by contrast, offers actual empirical data about the
risks here. In the past five years, there have been zero reports of
complications from fetal-demise procedures. Zero.
In light of the record, the district court (and the panel majority) erred
by finding that the three fetal-demise procedures discussed above are unsafe
or unfeasible. Plaintiffs may not want to perform fetal-demise procedures
before dismembering unborn children. But the Supreme Court is disinclined
to such disinclination: “Physicians are not entitled to ignore regulations that
direct them to use reasonable alternative procedures. The law need not give
abortion doctors unfettered choice in the course of their medical practice, nor
should it elevate their status above other physicians in the medical
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community.”89 So long as the State doesn’t substantially burden the abortion
decision, its authority to ensure respect for unborn human life trumps the
ability of abortion doctors “to choose the abortion method he or she might
prefer.”90 In other words, if Texas exercises its regulatory power to
moderate abortion procedures that devalue unborn life, the medical
profession must give way and “find different and less shocking methods to
abort the fetus in the second trimester, thereby accommodating legislative
demand.”91
89
Gonzales, 550 U.S. at 163. Plaintiffs cite an Eleventh Circuit case striking down
Alabama’s ban on live-dismemberment abortions. W. Alabama Women’s Center v.
Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), cert. denied sub nom. Harris v. W. Alabama
Women’s Ctr., 139 S. Ct. 2606 (2019). I am unpersuaded. The statutes are different, and
the records are different. Williamson involved a truncated preliminary injunction record
that included just one state-called witness. See W. Alabama Women’s Ctr. v. Miller, 217 F.
Supp. 3d 1313, 1339 (M.D. Ala. 2016). The record evidence in this case is markedly more
developed and flatly contradicts the Alabama record in critical respects. Here, the district
court held a five-day bench trial with dozens of witnesses and hundreds of exhibits. Even
so, the smaller record in the Alabama case quantified the number of women impacted by
the law, including the exact number of low-income women who seek abortions at the two
abortion clinics in the state. Id. And the district court noted that not all doctors in Alabama
are trained to perform the standard D&E, so finding any doctors willing to provide
abortions in Alabama is difficult. W. Alabama Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244,
1284 (M.D. Ala. 2017), aff’d sub nom. W. Alabama Women’s Ctr. v. Williamson, 900 F.3d
1310 (11th Cir. 2018). The district court found that requiring doctors to learn not only D&E
but also the fetal-demise techniques would result in a substantial obstacle. Id. Plaintiffs here
point to no similar evidence in the record. The record evidence in this case includes
significant evidence to contradict the Eleventh Circuit’s conclusion that alternatives to live
dismemberment were not “safe, effective, or available.” Finally, the most significant
difference is that the Alabama district court found the fetal-demise law unconstitutional
“as applied to the plaintiffs”—not on its face. Id. at 1289. Plaintiffs here argue SB8 is
facially unconstitutional. In sum, I do not find convincing Plaintiffs reliance on non-binding
cases dependent on different factual records.
90
Gonzales, 550 U.S. at 158.
91
Id. at 160.
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Also jarring: The district court held that “adding an additional step to
an otherwise safe and commonly used procedure” (ensuring fetal death
before dismemberment) creates an undue burden “in and of itself.” This is
a glaring misreading of governing Supreme Court precedent. As the Court
expressly observed in Gonzales, “an injection that kills the fetus”—one of
the “fetal demise” methods that Texas urges here—“is an alternative . . .
that allows the doctor to perform the [partial-birth abortion] procedure.”92
Why would such an injection be a constitutionally viable “alternative” for
one type of D&E procedure but not another? The premise of Gonzales
controls here: The fact that SB8, which serves a valid purpose, “one not
designed to strike at the right itself,” has the incidental effect of making it
more difficult or more expensive to procure an abortion cannot be enough to
invalidate it.”93
Because the record doesn’t support the finding that abortion doctors
cannot safely cause fetal demise before dismemberment, SB8 is not a de facto
ban on D&E abortions. Thus, it’s not an undue burden and not
unconstitutional. This is true under the controlling test from Casey. But, as
I’ll discuss next, even if Hellerstedt’s nebulous balancing test applies, SB8 still
stands.
III
Even assuming the now-defunct balancing test applies, the district
court incorrectly applied it. The balancing test requires courts to “weigh the
92
Id. at 164; see also id. at 136 (“Some doctors, especially later in the second
trimester, may kill the fetus a day or two before performing the surgical evacuation. They
inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic
fluid.”).
93
Id. at 157–58 (quoting Casey, 505 U.S. at 874) (alteration omitted).
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law’s ‘asserted benefits against the burdens’ it imposes on abortion
access.”94
But the district court stated that it weighed the abortion right against
the State’s interest—not the law’s benefits against its burdens. The court
claimed, as a categorical matter, that the abortion right is “absolute” and
“dominant over” the state’s interests. In other words, there’s a permanent
thumb (or anvil) on the scale, and no regulation can stand.
In applying this invented standard, the district court brushed off the
State’s legitimate interests in fetal life and medical-profession ethics as
“marginal.” Instead, it replaced the interests on the benefits side of the scale
with maternal health, finding that SB8 doesn’t further women’s health. But
the State didn’t assert this interest. The district court ignored that the
Supreme Court specifically weighed health benefits against burdens in
Hellerstedt and June Medical because the state’s asserted interest in those
cases was “protecting women’s health.”95
By ignoring the State’s interests here, the district court misapplied not
only Hellerstedt and June Medical but also Casey and Gonzales. Casey
established a state’s legitimate interest in fetal life from “the outset of the
pregnancy.”96 And Gonzales found the government’s interest in fetal life and
medical ethics both legitimate and furthered by a ban on a brutal and
inhumane abortion procedure.97
94
June Medical, 140 S. Ct. at 2112.
95
Id. (discussing the state interests in Hellerstedt and June Medical).
96
Casey, 505 U.S. at 846.
97
Gonzales, 550 U.S. at 157–60.
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The majority opinion admits that the district court made no findings
about whether SB8 furthers the State’s interest in respecting unborn life. It’s
worth stopping and emphasizing this point: The majority concedes that the
district court gave no weight to the State’s interest. So, again, it’s entirely
unclear how the district court was balancing anything.
Regardless, the majority purports to weigh—but, in reality, disposes
of—the State’s interests.
First, the majority assumes SB8 “provides a limited benefit” in
respecting fetal life. Ironically, the majority appears to find the benefit
“limited” because SB8 doesn’t “purport to” ban D&E altogether. Plaintiffs
make a similarly illogical argument on appeal by stating that there is no
“relevant distinction between emptying the uterus” (removing the unborn
child) via suction or forceps. “The fetus, which is alive at the beginning of
the evacuation process, is no longer alive upon completion of both
procedures.” So, according to Plaintiffs, banning the use of forceps to
dismember the unborn child, and not suction, doesn’t “further the State’s
interest in potential life.” These arguments, aside from their disturbing
callousness, ignore Gonzales’s statement that “[t]here would be a flaw in this
Court’s logic, and an irony in its jurisprudence, were we first to conclude a
ban on both D & E and intact D & E was overbroad and then to say it is
irrational to ban only intact D & E because that does not proscribe both
procedures.”98 Banning live-dismemberment abortions undoubtedly
furthers the State’s interest in fetal life. And given the graphic nature of live
dismemberment, this interest merits weight.
SB8 also furthers the State’s interest in fetal life because of the
medical uncertainty as to when a fetus can feel pain. Some evidence indicates
98
Id. at 160.
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that a fetus can feel pain as early as 15 weeks. At the trial below, a
neonatologist at Northwestern University testified that some of the
behavioral markers of pain observed in fetuses include “[g]rimacing, crying
in utero, kicking, kind of moving away from noxious stimuli.” Recognizing
this potential for feeling pain, doctors provide babies born before viability
with pain medications because “you’d still want that baby to be comfortable
in the last minutes of its life.” And, of course, anesthesia is standard medical
procedure for fetal surgeries. Undoubtedly, as Plaintiffs point out, there is
disagreement in the medical literature about when a fetus can experience
pain. But that doesn’t remove any weight from the State’s interest. The State
is permitted to err on the side of caution by banning the live dismemberment
of a fetus that might feel pain. “Medical uncertainty does not foreclose the
exercise of legislative power in the abortion context any more than it does in
other contexts.”99 Or, as the Chief Justice put it in his controlling June
Medical concurrence, “the ‘traditional rule’ that ‘state and federal
legislatures [have] wide discretion to pass legislation in areas where there is
medical and scientific uncertainty’ is ‘consistent with Casey.’”100
Second, the majority diminishes the State’s asserted interest in the
integrity and ethics of the medical profession because SB8 forces abortion
doctors to conduct unnecessary and painful procedures: “Whatever SB8
arguably may do to advance the State’s interest in the medical profession is
negated by the Act’s forcing of physicians to act contrary to what is best in
their medical judgment for their patients.” The majority apparently believes
the medical profession’s integrity only encompasses an abortion doctor’s
preferred method of abortion. The majority gives no weight to, or even
99
Id. at 164.
100
June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring) (alteration in
original) (quoting Gonzales, 550 U.S. at 163).
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mentions, the State’s interest in how unborn children are killed. This flies in
the face of Gonzales: “[T]he 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.”101
As one bioethicist testified, it’s “self-evident that it’s brutal and
inhumane to tear a living organism limb from limb alive.” Indeed, killing an
animal this way is a crime under Texas law.102 The State’s interest in
preventing abortion doctors from ending fetal human life in a way someone
could not legally kill an animal merits weight on the scale.
Third, the majority distorts the State’s asserted interest in informed
consent beyond recognition. The State argues that abortion providers do not
fully inform women of what a live-dismemberment abortion entails. This lack
of information “is of legitimate concern to the State.”103 The majority states,
however, that this interest “is wholly undermined by the fact that the statute
does not require that women receive information on how fetal demise
occurs.”
But the federal Partial-Birth Abortion Ban Act didn’t contain any
informed-consent requirement. It was just a ban on intact D&E. Yet the
Court found that the ban by its very nature furthered the government’s
interests in informed consent regarding abortion procedures:
It is self-evident that a mother who comes to regret her choice
to abort must struggle with grief more anguished and sorrow
more profound when she learns, only after the event, what she
101
Gonzales, 550 U.S. at 158.
102
Tex. Penal Code § 42.092.
103
Gonzales, 550 U.S. at 159.
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once did not know: that she allowed a doctor to pierce the skull
and vacuum the fast-developing brain of her unborn child, a
child assuming the human form.104
Because abortion entails a “difficult and painful moral decision,” banning a
brutal form of abortion helps inform women in general about abortion
procedures, possibly “reducing the absolute number of late-term
abortions.”105 And the “medical profession . . . may find different and less
shocking methods to abort the fetus in the second trimester.”106 The State’s
interests are therefore “advanced by the dialogue that better informs the
political and legal systems, the medical profession, expectant mothers, and
society as a whole of the consequences that follow from a decision to elect a
late-term abortion.”107
After dismissing all of the State’s interests, the majority concludes
that “SB8’s significant burdens upon female patients” outweigh the
“nonexistent health benefits and any other limited benefits it may actually
confer.” Thus, according to the majority, “the law places a ‘substantial
obstacle in the path of a woman seeking’ a previability abortion.”
By giving essentially no weight to the State’s interests, the majority
casts aside Casey and Gonzales. And by agreeing with the district court that
SB8 imposes “significant burdens,” the majority takes a one-sided view of
the record. In sum, no balancing occurred below or in the majority opinion.
And when an actual balancing test is applied, SB8 passes.
104
Id. at 159–60.
105
Id.106
Id. at 160.
107
Id.57
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IV
I turn now to the final fatal flaw in the majority’s analysis. The
majority opinion spends its last page explaining why SB8 is facially
unconstitutional—“it imposes an undue burden on every Texas woman”
seeking an abortion between 15–20 weeks’ gestation. This fanciful assertion
is refuted—emphatically—by the record.
Sweeping generalizations make for very bad law. And when the issue
is facial invalidity, such blanket generalizations are verboten. Yet the majority
decides that all fetal-demise procedures (apparently even the ones not
proposed by the State) “are dangerous, painful, invasive, and potentially
experimental.” Even crediting Plaintiffs’ arguments regarding the “risks” of
the three fetal-demise procedures discussed above, those arguments do not
apply to all pregnant women between 15–20 weeks’ gestation. But neither
Plaintiffs nor the majority account for any of these variations.
For example, the majority finds that the use of digoxin before 18 weeks
is “experimental.” Even if this were true, which the record contradicts, what
about women between 18–20 weeks of pregnancy? During this timeframe,
some Plaintiffs require digoxin for fetal demise.
Or take the availability of suction to cause fetal death, which SB8
doesn’t ban, between 15–17 weeks. An abortion provider at Planned
Parenthood of Greater Texas testified that if SB8 went into effect, she would
use suction up to 16.6 weeks. Plaintiffs’ only response is that “for some
patients,” suction could not be used. But Plaintiffs are not bringing this pre-
enforcement lawsuit on behalf of those “some patients.” They have
launched a facial challenge to SB8’s constitutionality. In the non-abortion
context, facial attacks are reserved for exceptional circumstances because a
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plaintiff must show that the law could never be constitutionally applied.108 But
in abortion cases, the facial-challenge test is phrased less stringently. In
Hellerstedt, the Supreme Court applied something resembling the Casey
plurality’s math-oriented approach: An abortion restriction is facially invalid
if “in a large fraction of the cases in which it is relevant, it will operate as a
substantial obstacle.”109 While facial invalidity under “large fraction” may
be a lower bar than under “no set of circumstances,” it is not subterranean.
Even so, the district court declared SB8 facially invalid without
holding Plaintiffs to the evidentiary burden of the “large fraction” test. It
invalidated SB8 absent proof of its actual impact on any number of real
women, thus allowing Plaintiffs to evade the requirements of a facial
challenge.
Strangely, Plaintiffs argue that requiring the use of fetal-demise
techniques is facially unconstitutional because “none are 100% effective.”
This turns facial validity on its head: Fetal demise is unconstitutional all of
the time because the techniques don’t work some of the time. Plaintiffs
distort Texas’s burden. The State need not prove that every alternative
works every time for every woman. As the Supreme Court put it in Gonzales,
a state need only show “the availability of . . . safe alternatives” to live
dismemberment.110 Texas has done exactly that. Again, Plaintiffs concede
that they regularly use digoxin to cause fetal death. And Planned Parenthood
concedes that umbilical-cord transection “immediately prior to D&E” is “an
108
Some of our earlier decisions involving facial challenges to abortion-related laws
used similar “no set of circumstances” language. Barnes v. State of Miss., 992 F.2d 1335,
1342 (5th Cir. 1993); see also Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992).
109
136 S. Ct. at 2320.
110
550 U.S. at 166–67.
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appropriate alternative to digoxin” and “a feasible, efficacious, and safe way
to induce fetal demise.”
The district court and the majority make no attempt to quantify any
of the medical risks of fetal-demise techniques. Instead, they’ve decided that
if you stack up enough speculation, it results in significant risks for “every
Texas woman.” The Supreme Court’s abortion precedents prohibit such
straw-grasping. As-applied challenges are “the proper manner to protect the
health of the woman if it can be shown that in discrete and well-defined
instances a particular condition has or is likely to occur in which the
procedure prohibited by the Act must be used.”111 This is because “[i]n an
as-applied challenge the nature of the medical risk can be better quantified
and balanced than in a facial attack.”112
To sum up, this record does not come close to justifying the facial
invalidation of SB8.113 As the Court stressed in Gonzales, “[a]s-applied
challenges are the basic building blocks of constitutional adjudication.”114
Those seeking facial relief must show that SB8 would be unconstitutional in
a “large fraction” of relevant cases. This demands real-world evidence, not
isolated hypotheticals.
111
Gonzales, 550 U.S. at 167.
112
Id.113
“The medical uncertainty over whether the Act’s prohibition creates significant
health risks provides a sufficient basis to conclude in this facial attack that the Act does not
impose an undue burden.” Id. at 164.
114
Id. at 168 (quoting Fallon, As-Applied and Facial Challenges and Third-Party
Standing, 113 Harv. L. Rev. 1321, 1328 (2000)).
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V
Roe v. Wade is almost a half-century old. It was argued twice in the
Supreme Court and has been argued nonstop in the court of public opinion
ever since. Five decades later, the constitutional underpinnings of abortion
law continue to bedevil American politics, law, and culture.
But today’s case is a modest one. Again, SB8 does not proscribe D&E;
it prescribes D&E that is marginally more humane. D&E is common, if
uncommonly “distasteful” (to borrow the district court’s understatement).
The majority opinion pits the rights of those seeking abortion against the
State’s legitimate interest in respecting the dignity of fetal life, cheering the
former and jeering the latter. But SB8 doesn’t present this false choice. It
shutters no clinics who offer D&E abortions; it deters no women who seek
them. The lone thing SB8 seeks to ban is a particular form of brutality:
dismembering a living unborn child. And the record below—including
Plaintiffs’ own admissions—makes clear that safe and effective alternatives
to live-dismemberment abortion are not just available but plentiful. On this
record, Plaintiffs have failed to show that SB8 places a substantial obstacle in
the path of even one woman seeking a D&E abortion in Texas, much less a
large fraction of women. As 2021 approaches, I would allow the State of
Texas to enforce (finally) a law that the people’s representatives passed
almost four years ago.
I dissent.
More, I urge the en banc court to align our circuit’s abortion
jurisprudence with controlling Supreme Court precedent that recognizes the
validity of a State’s legitimate and substantial interest in valuing unborn life.
61