Whole Woman's Health v. Ken Paxton ( 2021 )

Case: 17-51060 Document: 00515984856 Page: 1 Date Filed: 08/18/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2021
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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-690
Before Owen, Chief Judge, and Jones, Smith, Stewart, Dennis,
Elrod, Haynes, Graves, Higginson, Costa, Willett, Ho,
Engelhardt, and Wilson, Circuit Judges. ∗
Jennifer Walker Elrod and Don R. Willett, Circuit Judges,
joined by Owen, Chief Judge, and Jones, Smith, Haynes, Ho,
Engelhardt, and Wilson, Circuit Judges: ∗∗
We must decide whether the district court erred in permanently
enjoining Texas’s Senate Bill 8 (SB8), which prohibits a particular type of
dilation and evacuation (D&E) abortion method. SB8 refers to the
prohibited method as “live dismemberment” because doctors use forceps to
separate, terminate, and remove the fetus. SB8 requires doctors to use
alternative fetal-death methods.
The district court declared SB8 facially unconstitutional. It held that
SB8 imposes an undue burden on a large fraction of women, primarily
because it determined that SB8 amounted to a ban on all D&E abortions. But
viewing SB8 through a binary framework—that either D&Es can be done
only by live dismemberment or else women cannot receive abortions in the
second trimester—is to accept a false dichotomy. Instead, the record shows
that doctors can safely perform D&Es and comply with SB8 using methods
that are already in widespread use. In permanently enjoining SB8, the district
∗
Judges Southwick, Duncan, and Oldham are recused.
**
Chief Judge Owen and Judge Haynes concur in the judgment only.
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court committed numerous, reversible legal and factual errors: applying the
wrong test to assess SB8, disregarding and misreading the Supreme Court’s
precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey and
Gonzales v. Carhart, and bungling the large-fraction analysis. Accordingly,
we VACATE the district court’s permanent injunction.
Moreover, remanding to the district court would be futile here
because the record permits only one conclusion. The plaintiffs have failed to
carry their heavy burden of proving that SB8 would impose an undue burden
on a large fraction of women. We REVERSE and RENDER.
I.
Dilation and evacuation is an abortion method commonly used after
the beginning of the 15th week. It begins with the dilation phase, which is
lengthy and can take two or even three days to complete. First, the woman
is given the option of conscious sedation and then is administered medication
for dilation. If medication cannot alone cause sufficient dilation, the doctor
injects a local anesthetic directly into the woman’s cervix. After the cervix
has been numbed, the doctor inserts osmotic dilators into the cervical canal,
which absorb liquid and expand to allow the removal of the fetus and
placenta. Starting around 18 weeks gestation, this expansion process
normally happens overnight, requiring the woman to come back the next day
for the rest of the abortion procedure.
Once sufficient dilation has occurred, the second phase begins and the
doctor evacuates (removes) the fetus. Doctors use three main evacuation
methods: (1) the suction method alone to terminate, separate, and remove
the fetus; (2) suction and forceps together to terminate, separate, and remove
the fetus; or (3) various fetal-death techniques (e.g., digoxin injections) to
terminate the fetus before using forceps (sometimes combined with suction)
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to separate and remove the fetus. Unlike the dilation phase, evacuation is
relatively brief and can be done in “a few minutes.”
In 2017, the Texas legislature enacted SB8, which allows any abortion
accomplished by dilation and suction alone (the first method) or
accomplished by fetal death caused without forceps followed by evacuation
with forceps (the third method), but regulates the second method by
prohibiting a doctor from using forceps to separate the fetal tissue and
thereby terminate the fetus via live dismemberment. 1 SB8 states:
A person may not intentionally perform a dismemberment
abortion unless the dismemberment abortion is necessary in a
medical emergency. 2
A “dismemberment abortion” is defined by the legislature 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
combination of those actions on, a piece of a the unborn child’s
body to cut or rip the piece from the body. 3
A “medical emergency” is defined as a:
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
1
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).
2
Id. § 171.152.
3
Id. § 171.151.
4
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impairment of a major bodily function unless an abortion is
performed. 4
When a medical emergency arises, the doctor may proceed straight to live
dismemberment with forceps. 5
SB8 does not regulate the dilation phase of the abortion or any other
evacuation method. SB8 does not ban the use of suction during any abortion
procedure. SB8 does not prohibit a doctor from having forceps “on hand”
to use after fetal death has occurred or to use if a medical emergency arises. 6
What SB8 does do is prohibit one particular evacuation method in one
particular set of circumstances—live dismemberment by forceps when a
medical emergency does not exist. Thus, doctors may comply with SB8 by
using only suction to achieve fetal death and remove the fetus—or, at later
gestational ages, using either suction or a digoxin injection to cause fetal
death before forcep-dismemberment and removal. 7
The plaintiffs here, six abortion clinics and five individual doctors who
provide abortions, brought this facial challenge against SB8 in federal court.
They allege that SB8 imposes an undue burden on women seeking abortions
in the second trimester of pregnancy. The defendants are various Texas law
4
Id. § 171.002.
5
Id. § 171.152.
6
Although SB8 prohibits using “clamps, grasping forceps, tongs, scissors,
or . . . similar instrument[s]” to cause fetal death, id. § 171.151, we will refer to those items
collectively as “forceps.”
7
A potassium-chloride injection and umbilical-cord transection are additional
alternatives to live dismemberment, and the State presented testimony about them at the
trial. As far back as Stenberg v. Carhart, 530 U.S. 914, 925 (2000), the Supreme Court has
recognized potassium chloride, in particular, as an established method of causing fetal
death. We need not discuss these additional alternatives, however, because digoxin and
suction are already widely used and are alone sufficient for our holding in this case that the
plaintiffs failed to prove an undue burden on a large fraction of women in the relevant
circumstances.
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enforcement officials. Texas argues that SB8 does not impose an undue
burden on a large fraction of women in the relevant circumstances because
there are safe and available alternatives for causing fetal death without
forceps.
The district court granted a temporary restraining order preventing
SB8’s enforcement, followed by a five-day bench trial. The district court
subsequently ruled that SB8 is facially unconstitutional and entered a
permanent injunction. Texas appealed.
A panel of our court held the case in abeyance pending the Supreme
Court’s decision in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103(2020). Once the June Medical opinion was issued, we ordered supplemental
briefing from the parties on the effect, if any, of June Medical on this appeal.
Texas moved for a stay of the district court’s injunction pending appeal. A
two-member majority of the panel denied the motion with Judge Willett in
dissent. See Whole Woman’s Health v. Paxton, 972 F.3d 649 (5th Cir. 2020).
The panel subsequently issued its opinion on the merits, ruling that SB8 is
unconstitutional under Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,
2309 (2016), with Judge Willett in dissent again. See Whole Woman’s Health
v. Paxton, 978 F.3d 896 (5th Cir.), vacated and reh’g en banc granted, 978 F.3d
974 (5th Cir. 2020). A majority of the members of our court voted to take the
case en banc.
II.
A.
We review the district court’s permanent injunction for abuse of
discretion. Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016). The district
court abuses its discretion if it “(1) relies on clearly erroneous factual findings
when deciding to grant or deny the permanent injunction, (2) relies on
erroneous conclusions of law when deciding to grant or deny the permanent
injunction, or (3) misapplies the factual or legal conclusions when fashioning
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its injunctive relief.” Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 790
(5th Cir. 1999) (alteration omitted) (quoting Peaches Ent. Corp. v. Ent.
Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995)). We review questions of
fact for clear error and legal conclusions de novo. Scott, 826 F.3d at 211. A
clear error has occurred when we are “left with the definite and firm
conviction that a mistake has been committed.” June Medical, 140 S. Ct. at
2141 (Roberts, C.J., concurring) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).
If “a district court’s findings rest on an erroneous view of the law,
they may be set aside on that basis.” Pullman-Standard v. Swint, 456 U.S.
273, 287 (1982); see also Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir.
2014) (“When, as here, a court’s factual finding ‘rest[s] on an erroneous
view of the law’, its factual finding does not bind the appellate court.”
(quoting Swint, 456 U.S. at 287)); Thornburg v. Gingles, 478 U.S. 30, 79
(1986) (holding that appellate courts’ power to correct extends to “finding[s]
of fact that [are] predicated on a misunderstanding of the governing rule of
law” (quoting Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 501
(1984))). And “when the record permits only one resolution of the factual
issue after the correct law is applied, remand is unnecessary.” Aransas
Project, 775 F.3d at 658 (citing Swint, 456 U.S. at 292); see also Swint, 456 U.S.
at 292 (“[W]here findings are infirm because of an erroneous view of the law,
a remand is the proper course unless the record permits only one resolution
of the factual issue.”).
B.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, the
Supreme Court repudiated lower courts’ post-Roe v. Wade practice of
invalidating abortion regulations that “in no real sense deprived women of
the ultimate decision” to have an abortion. 505 U.S. 833, 875 (1992). Casey
established three principles: (1) the woman has a “right . . . to choose to have
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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 the life of the fetus.” Id. at 846.
In Casey, the Court set out the familiar undue-burden test, stating that
“[o]nly where state regulation imposes an undue burden on a woman’s
ability to make” the decision to have an abortion does the State violate the
Due Process Clause. Id. at 874. “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.” Id. at 877 (emphasis added). The Casey Court further
explained that “[t]he fact that a law which serves a valid purpose, one not
designed to strike at the right itself, has the incidental effect of making it more
difficult or more expensive to procure an abortion cannot be enough to
invalidate it.” Id. at 874.
When a plaintiff claims that an abortion law is facially invalid—as
opposed to unconstitutional as applied to her—we ask whether the law would
impose a substantial obstacle on a “large fraction” of women in the relevant
circumstances. Id. at 895. 8 We first determine the denominator of the
fraction by identifying the number of women “for whom the law is a
restriction, not the [number of women] for whom the law is irrelevant.” Id.
at 894. After determining that proper denominator, courts should deduce
the numerator—the number of women for whom the abortion regulation
8
The large-fraction test is a generous exception to the normal burden that litigants
bear in facial challenges. In non-abortion cases, a plaintiff must establish that no set of
circumstances exists under which the law would be constitutional. See Women’s Med. Pro.
Corp. v. Voinovich, 130 F.3d 187, 193–95 (6th Cir. 1997) (noting the Supreme Court’s
“inconsistent” rules in facial challenges between abortion cases and non-abortion cases);
see also Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142–43 (3d Cir. 2000)
(same).
8
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would impose an “undue burden.” Id. at 895. The plaintiff bears the burden
of proving a large fraction—and that burden is “heavy.” Gonzales v. Carhart,
550 U.S. 124, 167–68 (2007).
III.
The district court concluded that SB8 amounts to a complete ban on
“standard D&E” abortions. This conclusion rested on four errors—each of
which independently compels reversal. First, the district court applied an
incorrect legal test to assess SB8. Second, the district court disregarded
Casey, Gonzales, and Hellerstedt by dismissing the State’s interests and
committing myriad other legal errors. Third, the district court failed to
properly evaluate SB8’s burdens under Casey and, in doing so, improperly
concluded that the only safe second-trimester abortion procedure is live
dismemberment by forceps. Finally, the district court misapplied the large-
fraction test by incorrectly determining the number of women upon whom
SB8 would place an undue burden (the numerator) and incorrectly
determining the number of women to whom SB8 would apply (the
denominator). In sum, the district court’s opinion rested on bad law, bad
facts, and bad math. We address each error in turn.
A.
1.
For decades, Casey’s undue-burden test was the governing standard
for assessing abortion regulations. Five years ago, in Whole Woman’s Health
v. Hellerstedt, the Supreme 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.” Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2309 (2016). This language in Hellerstedt came
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to be recognized by some as a “balancing test.” Id. at 2324 (Thomas, J.,
dissenting). 9
Last summer in June Medical—issued after the district court enjoined
SB8—the Supreme Court again tackled the meaning of “undue burden.”
140 S. Ct. at 2112 (plurality opinion). The four-Justice plurality considered
the law’s benefits together with its burdens. Id. Chief Justice Roberts wrote
separately, concurring in the judgment but disavowing any balancing test. Id.
at 2135–37 (Roberts, C.J., concurring). The Chief Justice explained that the
proper standard is the straightforward undue-burden test and that neither
Casey nor Hellerstedt established a balancing test. “In neither [Hellerstedt nor
Casey] was there [a] call for consideration of a regulation’s benefits.” Id. at
2139. The Chief Justice noted that the Court in Hellerstedt explicitly stated
that it “appl[ied] the undue burden standard of Casey” and that it needed
“[n]othing more” than the burdens analysis to hold the challenged law
unconstitutional. Id. at 2138–39. As the Chief Justice put it, Hellerstedt,
properly understood, was simply an iteration of Casey’s undue-burden
standard, which “require[s] a substantial obstacle before striking down an
abortion regulation.” Id. at 2139. “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.” Id. at 2135 (quoting Casey, 505 U.S.
at 878). The only relevance of an abortion regulation’s asserted “benefits”
is “in considering the threshold requirement that the State have a ‘legitimate
9
Previously, our circuit explicitly eschewed a benefits-versus-burdens balancing
test. “In our circuit, we do not balance the wisdom or effectiveness of a law against the
burdens the law imposes.” Whole Woman’s Health v. Cole, 790 F.3d 563, 587 n.33 (5th Cir.)
(quoting Whole Woman’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.) (citing Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 593–94 (5th Cir.
2014) (Abbott II)), vacated in part, 574 U.S. 931 (2014))), 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).
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purpose’ and that the law be ‘reasonably related to that goal.’” Id. at 2138
(first quoting Casey, 505 U.S. at 878 (plurality opinion); and then quoting id.
at 882 (joint opinion)).
The Chief Justice opined in June Medical that trying to weigh the
State’s interest in protecting fetal life is impossible—and therefore a
balancing test is impossible—because how do you “assign weight to such
imponderable values?” Id. at 2136. Agreeing with all but two pages of the
plurality’s opinion, Chief Justice Roberts said that the inquiry should have
ended after the plurality analyzed the law’s burdens on abortion access.
2.
Under the Marks rule, the Chief Justice’s concurrence is June
Medical’s controlling opinion. 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 judgments on the narrowest grounds.” 430 U.S. 188, 193
(1977) (internal quotation marks omitted) (quoting Gregg v. Georgia, 428 U.S.
153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). 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.” United
States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (internal
quotation marks omitted) (quoting United States v. Eckford, 910 F.2d 216, 219
n.8 (5th Cir. 1990)).
In June Medical, the common denominator is the undue-burden
(substantial-obstacle) analysis, which took up more than 80% of the
plurality’s reasoning. Indeed, the Chief Justice concluded that, “for the
reasons the plurality explain[ed],” the law “imposed a substantial obstacle”
to abortion access. June Medical, 140 S. Ct. at 2139, 2141 (Roberts, C.J.,
concurring). The only part the Chief Justice disagreed with was the
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plurality’s two-page benefits analysis. So the Chief Justice’s test is a
narrower version (only burdens) of the plurality’s test (benefits and burdens).
Accordingly, the Chief Justice’s concurrence controls and we do not balance
the benefits and burdens in assessing an abortion regulation.
We agree with the Eighth and Sixth Circuits in holding that the Chief
Justice’s concurrence controls. See Hopkins v. Jegley, 968 F.3d 912, 915 (8th
Cir.) (“Chief Justice Robert[s]’s vote was necessary in holding
unconstitutional Louisiana’s admitting-privileges law, so his separate
opinion is controlling.”), reh’g and reh’g en banc denied, No. 4985329
(2020); 10 EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418,
437 (6th Cir.) (“The Chief Justice’s opinion in June Medical Services concurs
in the judgment on the narrowest grounds, so it is the ‘controlling opinion’
from that decision.” (quoting Marks, 430 U.S. at 193)), reh’g en banc denied,
No. 104-1 (6th Cir. Dec. 31, 2020). 11 These circuits held that the Chief
10
See also Little Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682, 687 n.2 (8th Cir.
2021) (“Chief Justice Roberts’s concurring opinion [in June Medical] is controlling.”),
petition for cert. filed, No. 20-1434 (Apr. 13, 2021).
11
While noting that the Chief Justice’s concurrence offered the narrowest basis for
June Medical’s judgment, the Seventh Circuit has taken a somewhat different approach to
Marks’s application to June Medical. Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d
740, 741 (7th Cir. 2021), petition for cert. filed, No. 20-1375 (Mar. 29, 2021). The Seventh
Circuit views only one part of the Chief Justice’s concurrence as binding—the part where
the Chief Justice agreed with the plurality that Hellerstedt “was entitled to stare decisis
effect on essentially identical facts.” Id. at 748.
The Seventh Circuit also stated that “the Marks rule tells us that June Medical did
not overrule [Hellerstedt]” and that “[Hellerstedt] remains precedent binding on lower
courts.” Id. On this point, we agree with the Seventh Circuit. Where we diverge from the
Seventh Circuit is our respect for the full weight of the Chief Justice’s controlling
concurrence, which observed that neither Casey nor Hellerstedt established a balancing test.
“As middle-management circuit judges, we cannot overrule the Supreme Court. But
neither should we ‘underrule’ it.” Whole Woman’s Health, 978 F.3d at 920 (Willett, J.,
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Justice’s concurrence “clarified that the undue burden standard is not a
balancing test.” EMW Women’s Surgical Ctr., P.S.C., 978 F.3d at 437; 12 see
also Hopkins, 968 F.3d at 915 (“According to Chief Justice Roberts, the
appropriate inquiry under Casey is . . . ‘not whether benefits outweighed
burdens’. . . . [Benefits are] ‘consider[ed] [only in] the threshold
requirement that the State [has] a “legitimate purpose” and that the law be
“reasonably related to that goal.”’” (first quoting June Medical, 140 S. Ct.
at 2137–38; then quoting Casey, 505 U.S. at 878)).
dissenting). “Our duty is to harmonize its decisions as well as possible.” Nelson v.
Quarterman, 472 F.3d 287, 339 (5th Cir. 2006) (Jones, C.J., dissenting on other grounds).
Like the Seventh Circuit, the Eleventh Circuit has chosen to underrule the Chief
Justice’s controlling concurrence. In Reproductive Health Services v. Strange, the court
noted that the June Medical plurality opinion applied a benefits-versus-burdens balancing
test. 3 F.4th 1240, 1259 (11th Cir. 2021). The court also explained that the plurality opinion
and the Chief Justice’s concurrence shared a “common ground,” which is the “conclusion
that the . . . statute constituted an undue burden.” Id. Despite acknowledging the shared
analysis and conclusion of the plurality opinion and the Chief Justice’s concurrence, the
Eleventh Circuit confusingly held that the Chief Justice’s concurrence was not “narrower”
than the plurality opinion and thus not controlling under Marks. Id.12
Even though it acknowledged that the EMW panel had held that the Chief
Justice’s opinion in June Medical was controlling under the Marks rule, a subsequent panel
of the Sixth Circuit decided to disregard the EMW panel’s holding when it denied a state’s
motion to stay pending appeal in an abortion case involving waiting periods. Bristol Reg’l
Women’s Ctr., P.C. v. Slatery, 988 F.3d 329, 337–38 (6th Cir.), opinion vacated, 994 F.3d 774(6th Cir. 2021). Judge Thapar dissented and pointed out that the panel majority erred
because “the holding of a published panel opinion [EMW] binds all later panels unless
overruled or abrogated en banc or by the Supreme Court.” Id. at 346 (Thapar, J.,
dissenting) (quoting Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019)). The Sixth
Circuit decided to take the case straight to en banc review. See Bristol Reg’l Women’s Ctr.,
P.C. v. Slatery, 993 F.3d 489 (6th Cir. 2021).
Moreover, a more recent Sixth Circuit opinion confirms that that circuit views the
Chief Justice’s concurrence as controlling. See Preterm-Cleveland v. McCloud, 994 F.3d 512,
524 (6th Cir. 2021) (en banc) (explaining that the EMW decision applied Marks “to
determine that the June Medical concurrence was the narrowest opinion and, therefore, the
governing law”).
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Under the Chief Justice’s controlling concurrence in June Medical,
the district court erred by balancing SB8’s benefits against its burdens. That
is reason alone to reject the district court’s findings. See Swint, 456 U.S. at
287 (“[A] district court’s findings [that] rest on an erroneous view of the
law . . . may be set aside on that basis.”). But, as explained below, the district
court erred under all of the Supreme Court’s relevant precedents—Casey,
Hellerstedt, Gonzales, and June Medical.
B.
1.
Despite Casey’s clear language, repeated in Gonzales, that the State
has legitimate and substantial interests in fetal life throughout pregnancy, the
district court dismissed the State’s interests as deserving “only marginal
consideration” and “having [] primary application once the fetus is capable
of living outside the womb.” What is more, the State asserted several
interests in passing SB8 in addition to respect for fetal life—benefits to
patients both physically and psychologically, medical and societal ethics, and
informed consent for women seeking abortions. The Supreme Court
accepted all of these interests in Gonzales. 550 U.S. at 158, 163. Yet the
district court disregarded all of them here, contravening both Casey and
Gonzales. See Casey, 505 U.S. at 846; Gonzales, 550 U.S. at 145–46.
First, the State asserted its interest in the health and safety of women
seeking abortions. The State presented evidence showing that women
seeking abortions benefit physically and psychologically when fetal death
occurs before dismemberment. For example, the Planned Parenthood
Federation of America Manual of Medical Standards and Guidelines tells
patients that a study showed that “more than 90 percent of
women . . . prefer[] knowing that fetal death occurred before the abortion
surgery began.” The American Institute of Ultrasound and Medicine agrees
and has also found that doctors have a similar preference and believe that
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inducing fetal death can help with emotional difficulties for the patient. Casey
noted that “most women considering an abortion would deem the impact on
the fetus relevant, if not dispositive, to the decision.” 505 U.S. at 882.
Beyond psychological benefits, terminating the fetus before dismembering it
makes the abortion physically easier for the mother. As the Supreme Court
noted in Gonzales: “Fetal demise may cause contractions and make greater
dilation possible. Once dead, moreover, the fetus’s body will soften and its
removal will be easier.” 550 U.S. at 136.
Second, the State asserted its interest in providing a greater degree of
dignity in a soon-to-be-aborted fetus’s death. The State argues that, by
requiring doctors to choose alternatives to a brutal abortion procedure, SB8
evinces the State’s “profound respect for the life within the woman.” Id. at
157. Dismemberment D&Es are self-evidently gruesome. It has long been
illegal to kill capital prisoners by dismemberment. See In re Kemmler, 136 U.S.
436, 447 (1890). It is also illegal to dismember living animals. Tex. Penal
Code § 42.092. The State urges that SB8 would simply extend the same
protection to fetuses. 13
In its opinion, the district court dismissed the State’s interest in
respecting fetal life with the comment that “[a]n abortion always results in
13
The State also argues that SB8 may protect fetuses from feeling the pain of being
dismembered alive. The Supreme Court “has given state and federal legislatures wide
discretion to pass legislation in areas where there is medical and scientific uncertainty.”
Gonzales, 550 U.S. at 163. The record here reveals that scientists are unsure at what
gestational age a fetus begins to feel pain. The plaintiffs and the State presented conflicting
expert testimony and there appears to be a wide range of views. Faced with this
uncertainty, the State is permitted to exercise its “wide discretion” and err on the side of
caution—especially in light of the numerous benefits provided by killing the fetus before it
is dismembered and evacuated. June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring)
(quoting Gonzales, 550 U.S. at 163). “Medical uncertainty does not foreclose the exercise
of legislative power in the abortion context any more than it does in other contexts.”
Gonzales, 550 U.S. at 164.
15
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the death of the fetus.” The district court also noted that the State’s interest
“does not add weight to tip the balance in the State’s favor.” The district
court’s analysis cannot be reconciled with the Supreme Court’s instruction
in Gonzales:
The government may use its voice and its regulatory authority
to show its profound respect for the life within the woman. . . .
Where it has a rational basis to act, and it does not impose an
undue burden, the State may use its regulatory power to bar
certain procedures and substitute others, all in furtherance of
its legitimate interests in regulating the medical profession in
order to promote respect for life, including life of the unborn.
550 U.S. at 157–58 (emphases added).
Third, the State asserted its interest in promoting societal and medical
ethics. “There can be no doubt the government ‘has an interest in protecting
the integrity and ethics of the medical profession.’” Id. at 157 (quoting
Washington v. Glucksberg, 521 U.S. 702, 731 (1997)). SB8’s provisions are
supported by general principles of medical ethics, which require accounting
for the harms to and dignity of both the mother and the fetus.
Finally, the State asserted its interest in ensuring that women give
informed consent to abortions. The State contends that SB8 by its very
nature furthers this important interest. Although SB8’s constitutionality
does not depend on whether it has an informed-consent requirement, the law
nevertheless promotes informed consent even without technically requiring
that abortion providers use more detailed consent forms. In Gonzales, the
Supreme Court upheld the Partial-Birth Abortion Ban Act despite the fact
that the law did not include an informed-consent requirement because:
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
once did not know: that she allowed a doctor to pierce the skull
16
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and vacuum the fast-developing brain of her unborn child, a
child assuming the human form.
Gonzales, 550 U.S. at 159–60 (emphasis added). “It is . . . precisely [a] lack
of information concerning the way in which the fetus will be killed that is of
legitimate concern to the State.” Id. at 159. “The State has an interest in
ensuring so grave a choice is well informed.” Id.What was true in Gonzales is true here. Women who receive live-
dismemberment D&Es are not being told what is going to happen to the fetus.
In this case, the plaintiffs’ consent forms do not explain in “clear and precise
terms” what a live-dismemberment abortion entails. Id. (quoting Nat’l
Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436, 466 n.22 (S.D.N.Y. 2004)).
For example, Plaintiff Southwestern’s form tells the patient that “the
pregnancy tissue will be removed during the procedure” and does not explain
that the fetus’s body parts—arms, legs, ribs, skull, and everything else—will
be ripped apart and pulled out piece by piece. Plaintiff Alamo’s consent form
states that the doctor will “empt[y] the uterus either by vacuum aspiration
or evacuation (manual removal of the fetus by forceps).” Plaintiff Whole
Woman’s Health’s form states: “The physician will use . . . instruments such
as forceps to remove the pregnancy from the uterus . . . in multiple
fragments.”
The district court cast aside all of these interests—even though each
was recognized as legitimate and substantial in Gonzales and even though a
“central premise of [Casey] was that the Court’s precedents after Roe had
‘undervalue[d] the State’s interest in potential life.’” Gonzales, 550 U.S. at
157 (quoting Casey, 505 U.S. at 873).
2.
In addition to dismissing all of the State’s interests, the district court
contravened the Supreme Court’s precedents in several other ways. First,
the district court disregarded Roe by deeming the abortion right “absolute.”
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“[W]e do not agree” that “the woman’s right is absolute.” Roe v. Wade, 410
U.S. 113, 153 (1973). Of course, no constitutional rights, even those expressly
enshrined in the Bill of Rights, are absolute.
Second, the district court’s faulty framework led it to place the burden
of proof on the wrong party and turn the State’s legislative power on its head.
It did so by holding that SB8 was unconstitutional because live
dismemberment is a common abortion method in the second trimester. This
was exactly backwards. Since Casey, we have recognized that abortion
doctors do not get to set their own rules. They are not permitted to self-
legislate or self-regulate simply by making an abortion method “common.”
Abortion doctors do not have “unfettered choice[s].” Gonzales, 550 U.S. at
163. Indeed, not even the woman—the patient—gets “to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses.” Roe, 410 U.S. at 153. To the contrary, when the State enacts
laws reasonably related to a legitimate interest, abortion doctors must find
“different and less shocking methods to abort the fetus . . . thereby
accommodating legislative demand.” Gonzales, 550 U.S. at 160.
Third, the district court incorrectly defined “substantial obstacle.”
Casey, 505 U.S. at 877. “Substantial” is defined as “of considerable
importance, size, or worth.” Substantial, New Oxford Am. Dictionary 1736
(3d ed. 2010); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
196 (2002) (“‘[S]ubstantially’ in the phrase ‘substantially limits’ suggests
‘considerable’ or ‘to a large degree.’”). The definition of “substantial” is
consistent with the purpose of Casey’s substantial-obstacle test: to establish
a relatively high bar for striking down laws—especially in facial challenges—
that regulate abortions. See also Gonzales, 550 U.S. at 156, 167 (explaining
that a facial-challenge plaintiff bears a “heavy burden” of proving that a law
would impose a “substantial obstacle”). And yet the district court construed
“substantial” to mean “no more and no less than ‘of substance.’” This
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construction would yield essentially all abortion regulations unconstitutional
and cannot be harmonized with the Supreme Court’s precedent. “[N]ot
every law which makes a right more difficult to exercise is, ipso facto, an
infringement of that right.” Casey, 505 U.S. at 873.
In sum, the district court committed numerous legal errors and
contravened Casey, Gonzales, and Hellerstedt by balancing SB8’s benefits
against its burdens; diminishing the State’s compelling, numerous, and
evidence-supported interests in preventing live-dismemberment abortions;
granting the right to abortion an “absolute” status; placing the burden of
proof on the wrong party; and erroneously defining “substantial” in
“substantial obstacle.” These legal errors undermine the deference that we
would normally owe the district court’s factual findings. See Thornburg, 478
U.S. at 79 (holding that appellate courts can correct errors, “including those
that may infect a so-called mixed finding of law and fact, or a finding of fact
that is predicated on a misunderstanding of the governing rule of law”
(quotation and citations omitted)).
C.
We now turn to the district court’s analysis of SB8’s burdens and its
attendant factual findings. Because the district court’s myriad and
fundamental legal errors evinced “a misunderstanding of the governing rule
of law,” Bose Corp., 466 U.S. at 501, its factual “findings may be set aside on
that basis,” Swint, 456 U.S. at 287. See also Aransas Project, 775 F.3d at 658
(“When, as here, a court’s factual finding ‘rest[s] on an erroneous view of
the law’, its factual finding does not bind the appellate court.” (quoting
Swint, 456 U.S. at 287)); Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d
411, 419 (5th Cir. 2001) (“Although the ultimate decision whether to grant
or deny a preliminary injunction is reviewed only for abuse of discretion, a
decision grounded in erroneous legal principles is reviewed de novo.”). We
therefore owe no deference to the district court’s factual findings. But, as
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demonstrated below, even if we were to consider the district court’s factual
findings under a clear-error standard, they fail to demonstrate an “undue
burden” on the protected right.
The district court disregarded and distorted the record to hold that
SB8 would result in a complete ban on D&E abortions, in large part due to its
erroneous definition of “substantial obstacle.” The district court first
assumed, as a matter of law before even alluding to anything in the record,
that requiring fetal death before live dismemberment by forceps would be
“banning the standard D&E procedure.” The district court read Gonzales to
describe the “standard D&E” as the “procedure performed before fetal
demise.” This was error. In Gonzales, the Supreme Court described the
typical D&E, and within that description noted that “[s]ome 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.” 550 U.S.
at 136. The Court also pointed out that “[o]ther doctors refrain” from
causing fetal death because they believe it provides no medical benefit. Id.After making these statements, the Court proceeded to describe partial-birth
abortions—“a variation of this standard D & E.” Id. In other words, the
Court’s description of the “standard D&E” included the option of fetal
death before live dismemberment. The district court here misread Gonzales
and thereby incorrectly concluded that there was only one kind of “standard
D&E.”
More broadly, the district court failed to sufficiently appreciate the
direct applicability of Gonzales to the facts and many of the legal issues in this
case. Gonzales’s facts are extremely similar to the situation presented here.
In Gonzales, the Supreme Court upheld the federal Partial-Birth Abortion
Ban Act and vacated two permanent injunctions of it. 550 U.S. at 133, 168.
The Act proscribed “intact” dilation and extraction abortions, during which
20
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the fetus is removed in one—as opposed to, as here, multiple—piece(s). 14 Id.at 136–37. The Court concluded that “the medical uncertainty over whether
the Act’s prohibition create[d] significant health risks provide[d] a sufficient
basis to conclude . . . that the Act d[id] not impose an undue burden.” Id. at
164. The Court noted that Congress was legitimately concerned “with the
effects on the medical community and on its reputation caused by the
practice of partial-birth abortion” and that the Act furthered the State’s
legitimate and substantial interests in promoting ethics in the medical
profession. Id. at 157. Moreover, the Act furthered the State’s interest in
promoting “respect for life” by prohibiting procedures that are “laden with
the power to devalue human life.” Id. at 158. Another “consideration[]”
that supported the Court’s conclusion that the Act did not impose an undue
burden was that “alternatives” to the prohibited procedure were available.
Id. at 164. The district court was not at liberty to deviate from the teachings
of Gonzales, and neither are we.
Errors also pervaded the district court’s analysis of the alternatives to
live dismemberment. The district court found that requiring fetal death
before live dismemberment was an undue burden for “all women seeking a
second-trimester abortion at 15 weeks” and beyond. Its bases for this
sweeping conclusion were that the alternative methods would delay a
woman’s abortion, which, according to the court, was sufficient by itself to
create an undue burden, and that the alternative methods were unsafe and
ineffective. 15 So, according to the district court, even if SB8 is not an explicit
14
Dismemberment abortions are “brutal.” Gonzales, 550 U.S. at 182 (Ginsburg,
J., dissenting).
15
The district court apparently copied and pasted into its opinion facts from other
district and circuit court opinions. That was inappropriate. The analysis is case-specific,
litigation-specific, and fact-specific, and the district court erred by relying on other cases’
factual descriptions as bases for its ruling. For example, the district court borrowed facts
from West Alabama Women’s Center v. Miller, 217 F. Supp. 3d 1313, 1339 (M.D. Ala. 2016).
21
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ban, it would operate as a functional ban on second-trimester abortions.
Contrary to the district court’s holding, the record shows that performing a
D&E that complies with SB8, using either suction or digoxin, is safe,
effective, and commonplace. 16
1. Suction
Suction is a relatively simple technique. The woman is dilated enough
to allow the placement of the “suction catheter” into the woman’s uterus.
The suction then removes the amniotic fluid and fetus. Relevant to this case,
the record describes three different ways suction can be used: (1) as a stand-
alone method to cause fetal death and remove the entire fetus; (2) as a fetal-
death technique to be followed by forceps for complete removal of the fetus;
and (3) as a complement to forceps during live-dismemberment abortions to
ensure that all amniotic fluid and pieces of the fetus have been removed. The
But Miller involved a truncated preliminary-injunction record that included just one state-
called witness. Id. Here, the district court held a five-day bench trial with dozens of
witnesses and hundreds of exhibits. The district court should have relied on the
voluminous and comprehensive record before it, not other courts’ opinions with materially
different records.
16
We contrast this case with the Eleventh Circuit’s decision in West Alabama
Women’s Center v. Williamson, 900 F.3d 1310 (11th Cir. 2018), cert. denied sub nom. Harris
v. W. Ala. Women’s Ctr., 139 S. Ct. 2606 (2019). The most significant difference is that the
Alabama district court found the fetal-demise law unconstitutional “as applied to the
plaintiffs” whereas the plaintiffs here argue that SB8 is facially unconstitutional. W. Ala.
Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1289 (M.D. Ala. 2017). Also, SB8 differs
from the Alabama statute in meaningful ways, as do the cases’ records. As explained in
footnote 14 supra, the record evidence in this case is markedly more developed and,
moreover, flatly contradicts the Alabama record in critical respects. Even so, the smaller
record in the Alabama case quantified the number of women impacted by the law. Id. at
1278. And the district court noted that not all doctors in Alabama are trained to perform
D&Es, so finding any doctors willing to provide abortions in Alabama is difficult. The
district court there found that requiring doctors to learn not only D&E but also the
alternative fetal-death techniques would result in a substantial obstacle. Id. at 1284–85. As
we explain above the line, the plaintiffs here did not even attempt to quantify the number
of women who would face a substantial obstacle under SB8.
22
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first two of these methods are allowed by SB8 because SB8 is violated only
when a fetus is killed by dismemberment with forceps. See Tex. Health &
Safety Code § 171.151.
There was substantial trial testimony about suction. According to the
record, some doctors use suction as a stand-alone method up to 17 weeks,
while others begin using alternative methods, like digoxin or live
dismemberment, at an earlier point. 17 Plaintiffs’ expert, Dr. Amna Dermish,
the Regional Medical Director for Plaintiff Planned Parenthood of Greater
Texas, testified that she could “guarantee” compliance with SB8 in the
“vast majority of cases” through 16 weeks, 6 days using suction alone to
cause fetal death and complete the procedure. The State’s expert, Dr.
Chireau, reviewed over 100 studies to offer her opinion that suction alone is
sufficient to complete abortions through 16 weeks, 6 days. Another plaintiffs’
expert, Dr. Mark Nichols, a Medical Director for Planned Parenthood,
testified that he has used suction to cause fetal death and complete an
abortion through 15 weeks, 6 days. Plaintiff Dr. Robin Wallace, a Family
Physician for Plaintiff Southwestern Women’s Surgery Center, testified that
some doctors rely on suction through 16 weeks, 6 days. Dr. Edward Aquino,
who provides abortions at Plaintiff Alamo’s San Antonio location, testified
that the increased size of suction cannulas in recent years has allowed doctors
to more commonly use suction as a stand-alone method.
17
Judge Dennis’s dissent quibbles at some length on a perceived distinction
between “alternative” methods and “additional” procedures. In Gonzales, the Supreme
Court upheld the Partial-Birth Abortion Ban Act and described the same procedures
proposed by Texas in this case as “alternatives”—despite the fact that more steps had to
be taken to complete an abortion under the Act. 550 U.S. at 136, 164, 166–67. Even if
Texas’s proposed alternatives to live dismemberment could be construed as “additional”
procedures, that would not render SB8 unconstitutional. See Casey, 505 U.S. at 873(“[N]ot every law which makes a right more difficult to exercise is, ipso facto, an
infringement of that right.”).
23
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The district court’s only reference to suction was in a footnote, which
stated that “before 15 weeks,” doctors do not usually use forceps because
“the fetus and all other in utero materials will pass through a dilated cervix
using only suction.” That suction is commonly used “before 15 weeks” says
nothing about whether it can also be used safely and effectively after 15
weeks. Indeed, according to the plaintiffs and their own witnesses, this safe
and common abortion procedure can be used to comply with SB8 up to
almost 17 weeks.
In 2015, 1,520 of the 3,150 abortions (48%) performed in Texas during
weeks 15–22 occurred in weeks 15 and 16. The testimony of the plaintiffs
themselves, their experts, and their doctors that suction can be used to
comply with SB8 in many abortions during weeks 15 and 16 casts serious
doubt on the plaintiffs’ efforts to carry their heavy burden of proving an
undue burden on a large fraction of women. As we show below, adding the
second alternative to live dismemberment—digoxin—removes any doubt
that plaintiffs have failed to carry their burden.
2. Digoxin
The district court found that using digoxin to cause fetal death is
unsafe, ineffective, and would delay a woman’s abortion procedure. The
district court found that digoxin use before 18 weeks would be experimental.
Many of the district court’s digoxin findings are contradicted by the
plaintiffs’ own evidence and practices; others are simply unsupported by the
record.
a. Safety and Risk
Digoxin has long been recognized as a common method of causing
fetal death during an abortion. Two decades ago, in Stenberg, the Supreme
Court noted that “[s]ome physicians use . . . digoxin to induce fetal demise
prior to a late D & E (after 20 weeks), to facilitate evacuation.” Stenberg v.
Carhart, 530 U.S. 914, 925 (2000) (quoting Carhart v. Stenberg, 11 F. Supp.
24Case: 17-51060 Document: 00515984856 Page: 25 Date Filed: 08/18/2021
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2d 1099, 1104 (D. Neb. 1998)). 18 Seven years later, in Gonzales, the Supreme
Court again acknowledged that “[s]ome doctors, especially later in the
second trimester, may kill the fetus [using digoxin] a day or two before
18
As discussed below, three of the plaintiffs in this case require the use of digoxin
to achieve fetal demise prior to D&Es performed after 18 or 20 weeks. SB8 follows the lead
of these plaintiffs and requires fetal demise prior to all D&E procedures, whether by digoxin
or suction. In no way then is SB8 a ban on D&Es; rather it is a regulation of the method of
performing a D&E.
Judge Dennis’s dissent nevertheless mischaracterizes SB8 as a ban and contends
that “the Supreme Court has already decided this exact case, holding that a Nebraska law
was unconstitutional because it could be interpreted to be the sort of ban that the Texas
statute openly embodies.” Post at 67 (citing Stenberg, 530 U.S. at 945). Not so. The
Supreme Court struck down the partial-birth-abortion ban in Stenberg primarily because it
lacked a necessary health exception for the mother. See Stenberg, 530 U.S. at 930–31. SB8
has a health exception. The Stenberg Court then noted that, although the law targeted
“D&X”—dilation and extraction—abortions in which the fetus is pulled into a breech
position in the vaginal cavity before dismemberment, the law could also be read to cover
the more common D&E method. Id. at 926–27. And the Court noted as well that, at least
in 2000, “[t]he D & E procedure carries certain risks. The use of instruments within the
uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp
fetal bone fragments create similar dangers. And fetal tissue accidentally left behind can
cause infection and various other complications.” Id. at 926. Fast forward twenty-one
years and some, including Judge Dennis’s dissent, consider D&Es “very safe.” Post at 69.
We see no principled reason to decline to analyze Texas’s SB8 on its own terms,
cognizant of the current medical realities. Indeed, we glean from Supreme Court precedent
a duty to test the statute before us given the facts before us—that is what the Supreme
Court did in Gonzales when it considered (and upheld) the federal Partial-Birth Abortion
Ban Act in its own right rather than simply invalidating it on loose analogy to the Nebraska
statute at issue in Stenberg. See Gonzales, 550 U.S. at 140–41, 161–62, 168. Under Judge
Dennis’s dissent’s approach, any regulation affecting abortion procedures in any way can
be deemed unconstitutional simply because another regulation has been so deemed—
despite any differences between the regulations or the facts. But cf. Hellerstedt, 136 S. Ct.
at 2306 (“A statute valid as to one set of facts may be invalid as to another.” (quoting
Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 415 (1935))). That itself would fly
in the face of Roe and its progeny, which recognize that states can impose regulations
affecting abortion in some circumstances. Roe, 410 U.S. at 164–65; Casey, 505 U.S. at 846.
Moreover, it would disavow any possibility of progress in medicine and science and instead
shackle the states’ regulatory power to abortion standards from the last century.
25
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performing” the D&E. 550 U.S. at 136. 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. Id. at 164. The use of
digoxin to cause fetal death before a D&E is hardly a novel phenomenon. The
plaintiffs here know this because they have used and continue to use digoxin.
In 2007, one month after the Supreme Court described digoxin as a
“safe alternative” fetal-death method in Gonzales, the nation’s largest
abortion provider, Planned Parenthood Federation of America, mandated
that all of its affiliates use digoxin to cause fetal death before most surgical
abortions at or above 18 weeks. Plaintiff Alamo is so sure that digoxin is safe
that it requires digoxin’s use to cause fetal death in abortions after 18 weeks.
Plaintiff Southwestern requires digoxin beginning at 20 weeks. Plaintiff
Planned Parenthood of Greater Texas required the use of digoxin starting at
18 weeks. During the district court’s five-day bench trial, every doctor who
testified had used digoxin to cause fetal death except one, and he works with
other doctors who have used it.
Plaintiff Planned Parenthood of Greater Texas’s consent form lists
some of the “risks and side effects” of digoxin (like extramural delivery and
pain), then tells patients that “there are no published reports of serious
problems from using digoxin before abortion.” The form also assures
patients that “[s]ome clinicians also believe that using digoxin makes it easier
to do the abortion. Studies have shown that it is safe to use digoxin for this
purpose.” Despite arguing in this case that digoxin provides no health
benefits to the woman, Alamo’s consent form also assures patients that “the
injection [of digoxin] . . . help[s] the woman’s body prepare for the abortion
process” and that “the abortion process is made easier and safer by injecting
the fetus” with digoxin. Even with all of this evidence in the plaintiffs’ own
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documents, the district court found that digoxin presents “significant health
risks.” 19 This holding contradicted the State’s and the plaintiffs’ evidence.
The district court also found that the “pain and invasiveness” of
digoxin was one reason that its use was “a substantial obstacle” to a woman’s
abortion right. This finding ignored the record evidence that patients
undergoing D&E are given the option of sedation even when digoxin is not
administered. And Plaintiff Dr. Wallace admitted that, when she performs
an abortion involving digoxin, she injects a local numbing anesthetic before
injecting the digoxin. Plaintiff Planned Parenthood of Greater Texas tells its
patients that any pain from the digoxin injection will “go away quickly.”
b. Efficacy
When digoxin is used, its success rate is between 90 and 100%.
Plaintiffs Southwestern and Alamo describe digoxin failures as “unusual.”
Plaintiff Dr. Wallace testified that digoxin is 98% successful. Plaintiffs’
expert Dr. Dermish testified that digoxin is 95% successful. Another expert
testified that several studies have shown either 0% failure rates or 99%
effectiveness rates. Plaintiff Southwestern’s “Consent for Digoxin
Injection” form states in unequivocal terms that digoxin failing to cause fetal
death “is uncommon and may or may not delay the expected completion time
of your abortion procedure.” Dr. Chireau testified extensively about myriad
studies that found digoxin safe and effective. One study found digoxin “safe
and effective” with a 100% success rate for intra-fetal injections in a study
19
The plaintiffs also argue that digoxin presents significant risks and is
contraindicated for women with certain heart conditions. And the 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, according to the plaintiffs’ arguments, if digoxin is
unsafe, then D&E itself is unsafe. Indeed, it is unclear whether certain women with these
conditions are able to receive a D&E abortion at all.
27
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with 107 abortions performed in weeks 17–24. Another study showed a 98%
success rate with digoxin for 1,600 abortions performed in weeks 18–22.
What is more, the plaintiffs admit that if digoxin does not cause fetal
death after one attempt, it can be injected again. 20 Plaintiff Alamo’s digoxin
consent form tells patients: “If fetal death has not been induced [on the first
attempt], a second injection of Digoxin can be administered at the
physician’s discretion.” Plaintiff Southwestern tells its patients that digoxin
failure is “unusual” and that a “second injection may be administered” if
the first fails. In ruling for the plaintiffs on digoxin’s efficacy, the district
court ignored the plaintiffs’ own extensive documentation that digoxin is
highly effective.
c. Delay
The district court’s holding as to the delay digoxin would cause was
both factually and legally incorrect. The record does not support the district
court’s factual finding that digoxin’s use would cause a delay for all women
seeking what “otherwise is a one-day standard D&E procedure.” The
district court found that a woman “undergoing a digoxin injection would be
required to make an additional trip to the clinic 24 hours before her
appointment for the standard D&E procedure.” The district court assumed
that for women receiving a digoxin injection, that injection would happen a
day after the State’s mandatory 24-hour waiting period and a day before the
one-day D&E. This finding is refuted in several ways by the plaintiffs’
documents.
First, many D&E abortions are not one-day procedures. The plaintiffs
admit that starting at 18 weeks, doctors use laminaria to achieve the necessary
20
Judge Dennis’s contention that a second digoxin injection is “wholly
experimental” and “too dangerous to administer” stands at odds with what the plaintiffs
have been telling their patients for years. Post at 98–99.
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dilation. “Because laminaria expand gradually, patients usually have them
inserted and return the next day to complete the procedure.” So, according
to the plaintiffs, the “standard D&E” is a two-day procedure starting at 18
weeks. Their documents also say that the D&E can become a two-day
procedure as early as 16 weeks, 6 days. At trial, one of the plaintiffs’ doctors
also noted that later in the second trimester, the dilation process can take up
to two days such that the D&E procedure is not completed until the third
day. Second, digoxin works within several hours, and it can be administered
at the same time or close to the beginning of the dilation process. Thus, it is
not true that using digoxin would add another day to every woman’s one-day
D&E abortion.
Even so, the district court also legally erred by concluding that a one-
day delay is sufficient, by itself, to create an undue burden. The Supreme
Court has approved regulations embodied in 24-hour waiting periods for all
women and parental-consent and judicial-bypass laws covering minors that,
by their nature, may entail many days (and even weeks) before an abortion is
finally approved. See Casey, 505 U.S. at 885–86 (holding that Pennsylvania’s
24-hour waiting period, even if it caused “a delay of much more than a day,”
was not an undue burden); June Medical, 140 S. Ct. at 2136–37 (Roberts, C.J.,
concurring) (explaining that Casey held that Pennsylvania’s 24-hour waiting
period and parental-consent and doctor-notification requirements did not
create substantial obstacles even though they risked delays, increased costs,
and “had little if any benefit”); see also Tex. Fam. Code Ann. §§ 33.003,
33.004 (requiring trial and appellate courts to rule on a minor’s application
for judicial bypass within five business days of the initial request or notice of
appeal). If these procedures are not constitutionally infirm because of the
delays involved, then—even assuming that the district court was right on the
facts of delay—adding a one-day delay to assure a less brutal pregnancy
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termination and vindicate the State’s interest in human dignity is not an
undue burden.
d. Before 18 Weeks
As for the beginning of week 15 up through 17 weeks, 6 days, the
district court held that administering a digoxin injection during that period
would be “arguably experimental” and weighed that against the State.
Under Gonzales, this was yet another legal error made by the district court.
In Gonzales, the Supreme Court confronted a record with conflicting
testimony about the safety of intact D&E abortions and the alternatives. See
550 U.S. at 161–62. The question became, then, whether the Partial-Birth
Abortion Ban Act was constitutional in light of that medical uncertainty. Id.
at 163. The answer was a resounding yes: “The Court’s precedents instruct
that the Act can survive this facial attack. . . . [S]tate and federal legislatures
[have] wide discretion to pass legislation in areas where there is medical and
scientific uncertainty.” Id. (emphasis added). Indeed, “medical
uncertainty” about whether the Act’s requirements “create[d] significant
health risks provide[d] a sufficient basis to conclude” that the law there did
not impose an undue burden. Id. at 164 (emphasis added).
Gonzales was not the first time that the Court emphasized legislatures’
right to regulate in areas “fraught with medical and scientific uncertainties.”
Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997) (quoting Johnson v. United
States, 463 U.S. 354, 370 (1983)). “Legislative options must be especially
broad” in this context and “courts should be cautious not to rewrite
legislation.” Id. (emphasis added) (quoting Johnson, 463 U.S. at 370); see also
Marshall v. United States, 414 U.S. 417, 427 (1974) (“[L]egislative options
must be especially broad” in areas “fraught with medical and scientific
uncertainties.”).
In his June Medical concurrence, the Chief Justice reaffirmed courts’
obligation to give legislatures broad deference in the context of scientific or
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medical uncertainty—as taught by both Casey and Gonzales. June Medical,
140 S. Ct. at 2136 (Roberts, C.J., concurring) (“[W]e have explained that 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.’” (quoting Gonzales, 550 U.S. at 163)). Judges are
simply ill-suited to make such decisions. “Attempting to do so would be like
‘judging whether a particular line is longer than a particular rock is heavy.’”
Id. (quoting Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897
(1988) (Scalia, J., concurring in the judgment)). Staying in our judicial lane
accords with our broader duty to recognize and respect the institutional
competency of legislatures. 21
Medical uncertainty does not foreclose the exercise of legislative
power in the abortion context any more than it does in other contexts. Cf.
Hendricks, 521 U.S. at 360 n.3. The Court specifically addressed this in
Gonzales:
A zero tolerance policy would strike down legitimate abortion
regulations, like the present one, if some part of the medical
community were disinclined to follow the proscription. This is
too exacting a standard to impose on the legislative power,
exercised in this instance under the Commerce Clause, to
regulate the medical profession. Considerations of marginal
safety, including the balance of risks, are within the legislative
competence when the regulation is rational and in pursuit of
legitimate ends. When standard medical options are available,
mere convenience does not suffice to displace them; and if
some procedures have different risks than others, it does not
follow that the State is altogether barred from imposing
reasonable regulations. The Act is not invalid on its face where
there is uncertainty over whether the barred procedure is ever
21
Judge Dennis’s dissent chides us for deferring to the legislature. Post at 99–100.
But that is precisely what the Supreme Court has directed us to do in situations like this.
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necessary to preserve a woman’s health, given the availability
of other abortion procedures that are considered to be safe
alternatives.
Gonzales, 550 U.S. at 166–67.
This case is even easier than Gonzales because the plaintiffs here did
not contradict the State’s evidence about digoxin’s use before 18 weeks,
much less show that its use presents “significant health risks.” Id. at 164.
Dr. Chireau testified about a study that noted Planned Parenthood of Los
Angeles’s mandatory use of digoxin for all second-trimester abortions (weeks
13–26). 22 Dr. David Berry, a maternal-fetal medicine specialist in Austin,
testified that he knows of doctors who have administered digoxin before 18
weeks. The plaintiffs do not refute this evidence; they just blame the State
(the party without the burden of proof) for not producing more evidence.
In sum, in making its findings about digoxin, the district court failed
to apprehend that the plaintiffs’ own extensive use of digoxin, notices and
consent forms, and written minimization of risks not only conflict with their
testimony in this case, but also certainly raise serious questions about the
debatability of the actual risk of using digoxin to cause fetal death. The
plaintiffs have long used digoxin to ensure that they do not violate the Partial-
22
In their en banc brief and at oral argument, the plaintiffs argued that the sentence
in the study referencing the policy was a “typo.” The disputed sentence says: “Although
PPLA . . . protocols dictate use of digoxin for all second-trimester abortion. . . .” The study
was published in 2009 and concluded that intra-fetal or intra-amniotic “injection of digoxin
is safe and effective for inducing fetal death prior to second-trimester surgical abortion.”
The abstract is available here: https://www.contraceptionjournal.org/article/S0010-7824
(09)00409-0/fulltext. Ten years later, while this case was pending before this court, in
2019, the author of the study, Dr. Deborah Nucatola, sent a letter to the editor and
explained that the original statement was “not correct” because, she says, Planned
Parenthood of Los Angeles’s description of its digoxin policy in other years shows that the
original statement could not have been true: https://www.contraception
journal.org/article/S0010-7824(19)30386-5/fulltext.
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Birth Abortion Ban Act. Surely, no reasonable abortion provider would
subject women to “significant” health risks from digoxin just to avoid their
own federal liability. See Gonzales, 550 U.S. at 164.
Because there are safe, medically recognized alternatives to live-
dismemberment-by-forceps D&E (suction and digoxin), and because women
seeking a D&E abortion are not significantly affected by a non-forceps fetal-
death requirement, the district court’s undue-burden analysis is incorrect as
a matter of law. SB8 falls comfortably within the orbit of Casey/Gonzales as
a regulation that respects the important state and societal interests involved
in proscribing a brutal procedure, yet does not pose a substantial obstacle to
women seeking abortions in the relevant circumstances.
D.
The district court’s final flaw was its large-fraction analysis. In this
facial challenge, it is the plaintiffs who bear the “heavy burden” of showing
that SB8 would be unconstitutional in a “large fraction of relevant cases.”
Gonzales, 550 U.S. at 167–68. The numerator is the number of women for
whom the law is an undue burden. And the denominator is the number of
women in the relevant circumstances—i.e., the women for whom the law “is
an actual rather than an irrelevant restriction.” Hellerstedt, 136 S. Ct. at 2320.
Because the district court concluded that SB8 was a complete ban on
1
the standard D&E, it found that the fraction of burdened women was . The
1
district court botched both numbers in this fraction.
First, the district court erred by finding that the denominator included
only women with fetuses at the gestational age of 15–20 weeks. 23 In fact, the
23
The second trimester spans from 13 to 26 weeks gestation. Texas law bans
abortions after 22 weeks unless the abortion is necessary to protect the woman’s health or
the fetus has a severe abnormality. Tex. Health & Safety Code §§ 171.044, .046. After 15
weeks, the D&E procedure is a common abortion method. So SB8 affects only abortions
between 15 and 22 weeks, which make up about 5% of total abortions in Texas. See Induced
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correct denominator, as all parties to the case acknowledge, is all women with
fetuses in the gestational age of 15–22 weeks. The relevant denominator is
therefore larger by two weeks gestation than the district court stated. The
extra duration is important because, as discussed above, the plaintiffs already
use (and even require) digoxin after 18 weeks. 24
Second, the numerator is not equal to the denominator, which is what
the district court implicitly found by holding that SB8 constituted a “ban.”
There are safe and widely used alternatives to live-dismemberment D&E for
the entire second trimester. Regarding suction, the record shows that
doctors can sometimes use this method to complete abortions up through 16
weeks, 6 days. As for digoxin, and as explained by Chief Judge Owen,
“[t]here is no basis in the record for concluding that the use of digoxin,
standing alone, constitutes a substantial obstacle . . . at or after 15 weeks
gestation.” Post at 40. Indeed, digoxin is used ubiquitously, including by the
plaintiffs themselves, beginning at the first day of the 18th week.
The plaintiffs bear the heavy burden here. If there are actual cases in
which neither suction nor digoxin is medically indicated and only live-
dismemberment D&E by forceps is medically approved, the plaintiffs did not
describe them. The plaintiffs made no effort to quantify the number of
Termination of Pregnancy Statistics, Tex. Health & Human Servs., https://hhs.texas.gov/
about-hhs/records-statistics/data-statistics/itop-statistics (last visited June 21, 2021).
Texas presented evidence that 92% of countries ban almost all abortions after 12
weeks gestation. Only three countries’ abortion laws are roughly as permissive as Texas
(Singapore, the Netherlands, and the United Kingdom), whereas only six countries are
more permissive than Texas (China, North Korea, Vietnam, Canada, Cuba, and Bahrain).
24
Judge Dennis’s dissent contends that “the appropriate denominator is the class
of women actually affected by SB8, which is composed of only those women who would
undergo a forceps-assisted D&E in Texas without their doctors’ first inducing fetal demise
in the absence of SB8.” Post at 103. This is not how the district court characterized the
denominator, nor is it what the parties agree is the correct denominator: women seeking
abortions in the gestational age of 15–22 weeks.
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women who might be subjected to an additional burden if a digoxin injection
is used and the injection prolongs the entire procedure by an additional day.
The sum total of the plaintiffs’ efforts in this area is one expert’s testimony
about the negative effects an “additional trip to an abortion clinic” would
have on low-income women in Texas. Even if this were true, some
(unspecified number of) women does not constitute a large fraction. Plus,
under Casey, that would not constitute an undue burden, without more,
anyway. See 505 U.S. at 886 (rejecting the argument that a waiting period
imposed on women with the “fewest financial resources” would constitute
an undue burden).
Similarly, the plaintiffs made no effort to quantify the “unreliability”
of digoxin beyond stressing a 90–100% success rate for a single injection and
conceding heightened effectiveness with a second injection. The district
court acknowledged that digoxin’s failure rate is only “between 5% and 10%.”
This high efficacy rate made the plaintiffs’ “burden” even heavier to show
that digoxin’s high success rate is not enough. Some or all of this data should
have enabled the district court to determine whether in fact a “large
fraction” of the women seeking second-trimester abortions in Texas would
suffer a substantial obstacle through the operation of SB8. Instead, the
district court accepted plaintiffs’ all-or-nothing “ban” argument.
The district court did not just err by accepting the plaintiffs’ false
dichotomy; it also turned facial validity on its head and placed the burden of
proof on the wrong party. The district court concluded that prohibiting only
one method of D&E (live dismemberment by forceps) is unconstitutional all
of the time because the other methods that achieve fetal death (like digoxin)
do not work some of the time. This distorts the State’s burden. The State
need not prove that every alternative works every time for every woman. As
Gonzales instructs, a prohibition of a particular method is “permissible”
when “a woman [can] still obtain an abortion through an acceptable
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alternative method.” Preterm-Cleveland, 994 F.3d at 534. The plaintiffs’
own practices show that such alternatives are available and widely used for
the vast majority of abortions in most of the relevant weeks of gestation.
Thus, the plaintiffs cannot show that SB8 poses a substantial obstacle in a
large fraction of cases. See Gonzales, 550 U.S. at 164; Stenberg, 530 U.S. at
931–36.
Finally, because the plaintiffs rested only on their argument that SB8
is a ban on all D&E abortions, they did not develop any evidence related to
SB8’s specific impact on abortion access. During oral argument, the
plaintiffs’ attorney said that there was record evidence that “at least three
providers would stop providing abortions if SB8 took effect.” En Banc Oral
Argument at 39:31–39:48. Actually, the record shows that one doctor
testified that she would alter her practice only to stop providing abortions
after 17 weeks. This same doctor testified that another doctor at her clinic
told her that he would also stop providing abortions after 17 weeks; this
testimony was struck as hearsay. One other abortion doctor, who has been
practicing for over 40 years, said that he would retire.
Contrast this to Hellerstedt where these same plaintiffs argued to the
Supreme Court that 50% of Texas’s abortion clinics (20 out of 40 clinics)
would close if the challenged law had taken effect. 136 S. Ct. at 2301. That
argument was crucial to the Supreme Court’s determination that the
admitting-privileges law was facially invalid. See id. at 2312. No reading of
this record supports anything remotely similar here. Indeed, at en banc oral
argument, the plaintiffs conceded that they were not arguing that clinics
would close because of SB8.
IV.
SB8 was signed into law four years ago—four years in which federal
courts have halted Texas’s duly enacted and modest legislation from taking
effect. The parties produced mountains of evidence and presented that
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evidence to the district court during a week-long trial. The district court
abused its discretion by applying the wrong legal test to assess SB8,
dismissing and ignoring the State’s important and substantial interests,
placing the burden of proof on the wrong party, explicitly and erroneously
stating that the abortion right is “absolute” and evaluating SB8 under that
view, erroneously defining “substantial obstacle,” incorrectly determining
that SB8 constitutes a “ban” on D&E abortions, ignoring vast swaths of
testimony about suction, making findings about digoxin that contradict the
plaintiffs’ own digoxin use and practices, weighing medical uncertainty
against the State, and incorrectly determining both the numerator and
denominator in the large-fraction analysis.
As it was in Gonzales, remanding to the district court would be futile
here because the voluminous record permits only one conclusion. 25 The
safety, efficacy, and availability of suction to achieve fetal death during
abortions in weeks 15 and 16 combined with the safety, efficacy, and
availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs
have utterly failed to carry their heavy burden of showing that SB8 imposes
an undue burden on a large fraction of women in the relevant circumstances.
* * *
The district court’s permanent injunction is VACATED. We
REVERSE the judgment of the district court and RENDER judgment in
the State’s favor. SB8 is constitutional.
25
Our effort to apply Supreme Court precedent to SB8 very well may be called
“Sisyphean,” but that does not dissuade us from the task. See post at 67. Nor should it, as
we intermediate court judges must always roll the stones of Supreme Court precedent up
the hills before us. As it is with Sisyphus, so it is with us: “The struggle itself . . . is enough
to fill a man’s heart. One must imagine Sisyphus happy.” Albert Camus, The Myth of
Sisyphus 123 (Justin O’Brien, trans. 1955).
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Priscilla R. Owen, Chief Judge, concurring in the judgment:
I concur in reversing the district court’s judgment, which held
Texas’s prohibition of dismemberment abortions 1 facially unconstitutional
and permanently enjoined its enforcement. 2 Reversal is required because
prohibiting dismemberment of a living fetus with the purpose of causing the
death of an unborn child by a means described in Texas Health and Safety
Code § 171.151 3 does not “operate as a substantial obstacle to a woman’s
choice to undergo an abortion” “in a large fraction of the cases in which [it]
is relevant.” 4 All agree that the relevant focus is on abortions occurring from
15 to 22 weeks of gestation.
In order to avoid the risk of violating Texas law and incurring criminal
penalties, abortion providers can cause fetal demise before proceeding to use
forceps or the other devices described in § 171.151 to perform an abortion.
The record developed in this case clearly reflects that fetal demise prior to
1
See Tex. Health and Safety Code Ann. §§ 171.151-154 (West 2017).
2
ROA.1615-17.
3
See Tex. Health & Safety Code Ann. § 171.151 (West 2017):
In this subchapter, “dismemberment abortion” means 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 combination of
those actions on, a piece of the unborn child’s body to cut or rip
the piece from the body. The term does not include an abortion
that uses suction to dismember the body of an unborn child by
sucking pieces of the unborn child into a collection container. The
term includes a dismemberment abortion that is used to cause the
death of an unborn child and in which suction is subsequently used
to extract pieces of the unborn child after the unborn child’s death.
4
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992).
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extraction with forceps or similar devices can be accomplished with little or
no risk to the mother’s health by using digoxin.
The remaining question is whether prohibiting dismemberment
abortion creates a delay that amounts to a substantial obstacle to obtaining an
abortion. The record reflects that ensuring fetal demise after 17 weeks and
six days of gestation can be accomplished without any delay at all in the
abortion process. In abortions performed at 15 weeks to 17 weeks and six
days, there may be an additional delay for some women of approximately 24
hours beyond Texas’s statutory 24-hour waiting period. This additional 24-
hour delay does not constitute a substantial obstacle and does not render the
Texas statutes at issue unconstitutional. 5
Even were an additional 24-hour delay a substantial obstacle, there
would not be such a delay for a large fraction of women seeking an abortion
at 15 to 22 weeks of gestation.
I
As a preliminary matter, it is unnecessary to decide whether Chief
Justice Roberts’s concurring opinion in June Medical Services L.L.C. v.
Russo 6 governs and therefore supersedes the balancing test set forth in Whole
Woman’s Health v. Hellerstedt,7 as Judge Elrod and Judge Willett’s
5
See ante at 29-30 (first citing Casey, 505 U.S. at 885-86, and then citing June Med.
Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2136-37 (Roberts, C.J., concurring)).
6
See 140 S. Ct. at 2135-39 (Roberts, C.J., concurring) (rejecting a balancing
test and concluding that, so long as the state has a “legitimate purpose” and the statute is
“reasonably related to that goal,” “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’” (quotation at 2138) (quoting Casey, 505 U.S. at 877, 878, 882)).
7
See 136 S. Ct. 2292, 2309 (2016) (“The rule announced in Casey . . . requires that
courts consider the burdens a law imposes on abortion access together with the benefits
those laws confer.”).
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plurality opinion posits that it does. 8 Under either view of the governing
parameters, the Texas laws are constitutional because they do not place a
substantial obstacle in the path of a woman seeking to abort a nonviable fetus.
II
As discussed in Judge Elrod and Judge Willett’s opinion, the
record reflects that digoxin is a means of causing fetal demise that has been
widely and successfully used by many of the abortion providers who are
parties to this litigation. The use of digoxin rarely causes injury to or
complications for the mother. There is no basis in the record for concluding
that the use of digoxin, standing alone, constitutes a substantial obstacle to
obtaining an abortion at or after 15 weeks of gestation. As the plurality
opinion explains, the record is clear regarding digoxin’s safety and efficacy. 9
The remaining potential obstacle digoxin poses to women seeking an abortion
is delay.
The district court concluded that administering digoxin would create
an additional 24-hour delay for “all women” seeking an abortion past 15
weeks. 10 This conclusion was clearly erroneous. Based on the record
evidence, administering digoxin would create approximately an additional
24-hour delay (beyond Texas’s 24-hour waiting period) for some, but not all,
or even most, abortions occurring from 15 weeks to 17 weeks and six days. It
would create no additional delay for abortions performed after 17 weeks and
six days.
8
See ante at 9-13 (discussing the two standards of review and concluding that, under
Marks v. United States, 430 U.S. 188, 193 (1977), Chief Justice Roberts’s
formulation controls).
9
See ante at 24-28.
10
ROA.1610.
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In Texas, a physician cannot begin an abortion, including the dilation
process, until the 24-hour waiting period has concluded. 11 Patients must first
attend an initial office visit, during which the physician performs an
ultrasound and provides state-mandated information. 12 The patients may
then return 24 hours later for the actual abortion procedure, beginning with
dilation. 13
The duration of dilation varies depending on the method used, which
in turn depends on the fetus’s “gestational age.” 14 For pregnancies from 15
weeks to 17 weeks and six days of gestation, dilation is often achieved with
medication. 15 The physician administers the medication, which is effective
within several hours. 16 Once the medication takes effect, the physician may
begin the evacuation portion of the abortion procedure. 17
Importantly, however, dilation and evacuation are not always
performed on the same day in abortions occurring between 15 weeks and 17
weeks and six days. A potential delay arises for logistical reasons: a
physician’s ability to perform the evacuation on the same day as the dilation
depends on the timing of the patient’s initial appointment, which sets the 24-
hour waiting period. 18 As one of the physicians who is also a plaintiff in this
case explained, if the patient’s initial visit occurs early enough in the
11
See ROA.2012-15, 2111-12.
12
See ROA.2012-13, 2111.
13
See ROA.2014-15, 2111-12.
14
ROA.2111.
15
See ROA.1918, 2014-15, 2111-12.
16
See ROA.1923, 1924, 2014-15.
17
See ROA.1924, 2111-12.
18
See ROA.2111-13.
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morning, the patient is able to return and receive dilation medication the
following morning, and several hours later, the physician may perform the
evacuation. 19 But if the initial appointment—and the patient’s subsequent
return—occur “beyond a certain time of day, usually 10:00 or 11:00 in the
morning,” the physician may not be able to “assure enough time for adequate
dilation with the remainder of the clinic day.” 20 In such cases, the physician
“place[s] . . . dilators and allow[s] them to work overnight and ask[s] the
patient to return on a third day to have her D&E procedure completed.” 21
This plaintiff estimated that “[a]bout half” of patients between 15 weeks’
and 17 weeks and six days’ gestation were able to undergo dilation and
evacuation on the same day, while the other half had to undergo dilation and
evacuation over a two-day period. 22
For pregnancies at and beyond 18 weeks, dilation is achieved using
osmotic dilators, or laminaria. 23 The physician places the laminaria inside
the patient’s cervix on one day, and the patient generally returns the
following day for the evacuation. 24 In some cases, however, a second set of
laminaria is required, such that the first set of laminaria is placed one day, the
patient returns the following day for removal of the first set and placement of
a second set, then the patient returns once more on the third day for removal
19
See ROA.2111-12.
20
ROA.2112, 2113.
21
ROA.2113.
22
ROA.2113.
23
See ROA.1918, 1923.
24
See ROA.1923, 2015.
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of the second set of laminaria and the actual evacuation procedure. 25 The
record does not clearly indicate how often two sets of laminaria are needed.
The evidence reflects that even without the use of digoxin to ensure
fetal demise, many second-trimester dilation and evacuation abortions are
multi-day procedures. Including the waiting period, roughly one-half of
abortions performed between 15 weeks and 17 weeks and six days take two
days, while the remaining half take three days. Most abortions performed
during and after week 18 take three days, but some may take up to four.
The use of digoxin to ensure fetal demise would have no effect on
approximately two-thirds or more of abortions occurring from 15 to 22 weeks
of gestation. In theory, digoxin becomes effective over a period of 30 minutes
to 24 hours, depending on its method of administration—intra-cardiac, intra-
fetal, or intra-amniotic. 26 In practice, however, the record reflects that
physicians choose to administer it and wait 24 hours to ensure fetal death
before performing the evacuation. 27 Digoxin can be administered on the day
that dilation begins. 28 Accordingly, for abortions in which physicians would
otherwise be able to perform dilation and evacuation on the same day—
roughly one-half of abortions performed between 15 weeks and 17 weeks and
six days—digoxin might add an additional day to the procedure. But for the
other half of abortions performed between 15 weeks and 17 weeks and six
days, and all abortions performed past 17 weeks and six days, using digoxin
to cause fetal demise would not result in any delay in the abortion process.
25
See ROA.1923-24.
26
See ROA.4433, 4582-83, 4653; see also ROA.2101-04, 2659.
27
See ROA.1937, 1941, 2029, 2041, 2101-04, 2113, 2150.
28
See ROA.2091, 4312.
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The record in the present case contains data about abortions in Texas
from 2011 to 2015. The number of late-term abortions (15 weeks to 22 weeks)
pales in comparison to the number of abortions performed up to 15 weeks of
gestation: 29
Abortions at Less than Abortions at 15 Weeks
15 Weeks to 22 Weeks
2011 69,913 2,287
2012 65,642 2,434
2013 60,915 2,147
2014 50,979 3,135
2015 50,746 3,175
If, as the record evidence reflects, about one-half of abortions
performed between 15 weeks and 17 weeks and 6 days of gestation will not be
delayed at all by using digoxin to cause fetal demise prior to proceeding with
evacuation, the data also reflects that only about one-third of all abortions
performed from 15 weeks up to the 22nd week of gestation would be delayed
by approximately an additional 24 hours (that is, delayed another 24 hours
beyond the initial waiting period): 30
Abortions at One-Half of Abortions
15 weeks to Abortions at from 15
17 weeks and 15 weeks to weeks to 22 %
6 days 17 weeks and weeks
6 days
2011 1503 752 2287 32.88%
2012 1639 820 2434 33.69%
2013 1425 713 2147 33.21%
2014 2315 1158 3135 36.94%
29
See ROA.4242-4259.
30
See ROA.4242-4259.
44
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2015 2088 1044 3175 32.88%
But even were a delay to occur in all abortions from 15 to 22 weeks, as
already noted above, a 24-hour delay, in addition to a 24-hour waiting period,
does not constitute a substantial obstacle. 31 Requiring someone seeking to
abort a fetus at or beyond 15 weeks of gestation to wait 24 hours to reflect
upon the decision, 32 and to wait an additional 24 hours to ensure the demise
of the fetus in utero before proceeding with an abortion that may or will
involve the use of forceps or similar devices to dismember the fetus does not
present a substantial obstacle to a woman seeking an abortion.
Judicial bypass proceedings for minors that can delay an abortion well
beyond 48 hours have been upheld by the Supreme Court. The Court’s
opinion in Ohio v. Akron Center for Reproductive Health 33 is instructive. The
Court explained that “the Bellotti principal opinion indicated that courts
must conduct a bypass procedure with expedition to allow the minor an
effective opportunity to obtain the abortion.” 34 The judicial bypass
procedure under consideration in Akron Center required the trial court to
render its decision no more than five business days after the minor filed a
complaint, required the state court of appeals to docket an appeal no more
than four days after the minor filed a notice of appeal, and required the court
31
See ante at 29-30 (framing the issue in terms of an “undue burden” rather than a
“substantial obstacle”).
32
See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 (1992) (upholding a
“24–hour waiting period between the provision of the information deemed necessary to
informed consent and the performance of an abortion,” reasoning in part that “[t]he idea
that important decisions will be more informed and deliberate if they follow some period of
reflection does not strike us as unreasonable, particularly where the statute directs that
important information become part of the background of the decision.”).
33
497 U.S. 502 (1990).
34
Id. at 513 (citing Bellotti v. Baird, 443 U.S. 622, 644 (1979)).
45
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of appeals to render its decision no more than five days after docketing the
appeal. 35 The Supreme Court held that these bypass procedures withstood a
facial challenge. 36 It did so even though the Sixth Circuit had construed
“days” to mean business days and had calculated that the statute permitted
a delay of up to 22 days, and even though the record included an affidavit
averring that “a 3–week delay could increase by a substantial measure both
the costs and the medical risks of an abortion.” 37 Though the Supreme Court
questioned the soundness of construing “day” to mean “business day,” it
proceeded to hold that “the mere possibility that the procedure may require
up to 22 days in a rare case is plainly insufficient to invalidate the statute on
its face.” 38 The Supreme Court pointed out that in Planned Parenthood of
Kansas City, Missouri, Inc. v. Ashcroft, 39 “for example, [it had] upheld a
Missouri statute that contained a bypass procedure that could require 17
calendar days plus a sufficient time for deliberation and decisionmaking at
both the trial and appellate levels.” 40
In Ashcroft, the Eighth Circuit had rejected Planned Parenthood’s
argument that “the statute does not assure that the procedure will be . . .
expeditious.” 41 The Eighth Circuit concluded that Missouri’s bypass
“statute sets forth reasonable time requirements for court action on the
petition” and explained that “[a]lthough the statute does no more than direct
35
See id.36
See id. at 514.
37
Id. at 513.
38
Id. at 514.
39
462 U.S. 476 (1983).
40
Akron Ctr., 497 U.S. at 514 (citing Ashcroft, 462 U.S. at 477 n.4, 491 n.16).
41
Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 655 F.2d 848, 860
(8th Cir. 1981), aff’d in part & rev’d in part, 462 U.S. 476 (1983).
46
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the Missouri Supreme Court to promulgate rules for expedited appellate
review, we are confident the Missouri Supreme Court will exercise its
jurisdiction in a manner that recognizes the serious dangers caused by
delay.” 42 The Supreme Court affirmed the Eighth Circuit’s judgment
“insofar as it . . . upheld the State's parental and judicial consent
provision.” 43
An additional delay of 24 hours caused by the use of a medical
procedure to ensure that a living fetus in not dismembered or disemboweled
in utero does not constitute a substantial obstacle for women seeking an
abortion. At least some of the Supreme Court’s rationale in upholding a
State’s imposition of a 24-hour waiting period before proceeding with an
abortion provides support for this conclusion. In Casey, the Supreme Court
reasoned that the statute at issue “permit[ted] avoidance of the waiting
period in the event of a medical emergency and the record evidence show[ed]
that in the vast majority of cases, a 24–hour delay does not create any
appreciable health risk.” 44 Texas’s prohibition of dismemberment abortions
does not apply in cases of medical emergency. 45 There is no indication in the
record that when an additional day to perform an abortion would be necessary
to induce fetal demise, such a delay would create an appreciable risk to the
woman seeking an abortion. The Supreme Court reasoned in Casey that,
“[i]n theory, at least, the waiting period is a reasonable measure to implement
the State's interest in protecting the life of the unborn, a measure that does
42
Id.43
Ashcroft, 462 U.S. at 494 (holding that bypass provisions in the version of MO.
REV. STAT. § 188.028 (2019) in effect in 1981, see Act of June 29, 1979, No. 523, § 188.028,
1979 Mo. Laws 375, 376-78, were constitutional).
44
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 (1992).
45
See Tex. Health & Safety Code Ann. § 171.152(a) (West 2017).
47
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not amount to an undue burden.” 46 Prohibiting dismemberment of a living
fetus by the use of forceps or similar devices in the manner described in Texas
Health and Safety Code § 171.151 (including removing the living “unborn
child” from the uterus “one piece at a time” and “cut[ting]” or “rip[ping]”
“piece[s]” from the living unborn child’s body with forceps or other similar
devices) 47 is a reasonable measure to protect the unborn and does not amount
to an undue burden.
The Texas laws at issue in the present appeal should not have been
struck down by the district court.
III
Though I conclude that any delay caused by the Texas laws at issue is
not a substantial obstacle in the path of a woman seeking to abort a nonviable
fetus because of the brevity of any additional delay beyond the waiting period,
even assuming that a 24-hour delay were a substantial obstacle, the
prohibition of dismemberment abortions would not “be unconstitutional in a
large fraction of relevant cases.” 48 The record reflects that there would be
an additional delay of 24 hours for something less than approximately one-
third, at most, of those obtaining an abortion from 15 to 22 weeks of gestation.
That is because not all physicians would use digoxin from 15 weeks to 16
weeks and 6 days of gestation to cause fetal demise. They would use suction
to cause the death of the fetus.
Physicians and experts disagreed as to when digoxin would be used
during 15 weeks to 17 weeks six days of gestation, which is the only time frame
46
Casey, 505 U.S. at 885.
47
Tex. Health and Safety Code Ann. § 171.151 (West 2017).
48
Gonzales v. Carhart, 550 U.S. 124, 167-168 (2007).
48
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during which digoxin might cause a 24-hour delay, since the record reflects
that all abortions performed at and beyond 18 weeks take longer than 48
hours. The fraction of women for whom the use of digoxin might cause an
additional 24-hour delay is therefore less than all abortions from 15 to 22
weeks. The number does not exceed or even reach 37% of all abortions from
15 to 22 weeks based on the record, and there is considerable evidentiary
support for the conclusion that the fraction is much smaller, ranging from
4.63% to 9.57% in a given year. Some of Plaintiffs’ own experts testified that
digoxin would not be used until 17 weeks of gestation because suction or
vacuum abortions would cause fetal demise up through 16 weeks and six days
of gestation. That testimony supports the much smaller fractions ranging
from 4.63% to 9.57 % and certainly a fraction of less than 36.9%.
In determining the “fraction of relevant cases,” the denominator
consists of the cases in which the statute is “relevant,” 49 encompassing
“those [women] for whom [the provision] is an actual rather than an
irrelevant restriction.” 50 The Supreme Court explained in Gonzales v.
Carhart that “relevant cases” means “all instances in which the doctor
proposes to use the prohibited procedure.” 51 The denominator in the
present case is comprised of women who seek an abortion from 15 to 22 weeks
of gestation, the period in which the record reflects that physicians might
perform a dismemberment abortion.
As noted, there is conflicting evidence as to the numerator, again,
assuming for the sake of argument that a delay of 24 hours is a substantial
49
Id. at 168; see Casey, 505 U.S. at 895.
50
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016) (alterations in
original) (quoting Casey, 505 U.S. at 895).
51
Gonzales, 550 U.S. at 168.
49
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obstacle. The number of women who might experience a delay depends on
the number of women whose abortion procedure would be extended 24 hours
due to the injection of digoxin. One of the plaintiffs’ witnesses testified that
“in the vast majority of cases . . . in a situation of normal anatomy, I would be
able to absolutely complete [a suction abortion causing fetal demise] through
16.6 [sixteen weeks and six days of gestation].” 52 This witness stated that
“there may be a few select cases” 53 in which the “uterine anatomy might
make the use of a suction cannula difficult or impossible,” 54 but even if SB8
went into effect, this physician would continue to perform suction abortions
through 16 weeks and six days of gestation. 55 She would not use digoxin
during abortions at 15 weeks to 16 weeks and 6 days. 56 So, if the numerator
were based on this witness’s testimony, potential delay due to the use of
digoxin might only occur at week 17 through week 17 and 6 days. Up to the
17th week, digoxin would not be used to cause fetal demise; only suction
would be used, so there would be no additional delay from 15 weeks to 16
weeks and 6 days of gestation. A witness for the State similarly testified that
suction could be used to cause fetal demise through 16 weeks and 6 days of
gestation, and digoxin would not be necessary. 57 If we considered only the
testimony of these witnesses, the percentage of abortions delayed due to use
of digoxin would range from 4.63% to 9.57% from 2011 to 2015: 58
52
ROA.2227-2228.
53
ROA.2227.
54
ROA.2223.
55
ROA.2221.
56
ROA.2221.
57
See ROA.2587-2590 (Chireau, a witness for the State).
58
See ROA.4242-59.
50
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Abortions One-Half of Abortions
during Week Abortions from 15
17 During weeks to 22
Week 17 weeks %
2011 211 106 2287 4.63%
2012 249 125 2434 5.14%
2013 217 109 2147 5.08%
2014 599 300 3135 9.57%
2015 568 284 3175 8.94%
But there is testimony from other witnesses indicating that suction
alone does not or cannot always cause fetal demise and therefore, some other
means of ensuring the death of the fetus prior to use of forceps or a similar
device would be employed. Some physicians would use digoxin instead of
suction alone at varying stages of gestation from 15 weeks up to the end of the
16th week. 59 There was testimony that, from 15 weeks up to 18 weeks, some
abortion providers have forceps at hand in case suction aspiration cannot
fully evacuate the fetus. 60 Some providers said they were unwilling to risk
violating Texas law if they began, but were unable to complete, an abortion
59
See, e.g., ROA.1921 (one physician stating that he generally stops completing
abortions without the use of forceps, i.e., with suction alone, at 15 weeks); ROA.1972 (the
same physician explaining that he does not use suction alone during week 16, although he
sometimes uses suction alone during week 15); ROA.2012 (another physician stating that
he “commonly prepare[s] for the use of forceps [and not suction alone] around 15 ½
weeks”); ROA.2176-77 (another physician stating that she “switch[es]” from suction to
forceps at 15 weeks (quotation at 2177)); ROA.2205 (another physician explaining that she
began keeping forceps on hand at 15 weeks, and that she could not generally know before
beginning a procedure whether she would need to use forceps); ROA.2223-24, 2226-28
(that same physician explaining that there were some cases before 16.6 weeks in which she
would not be able to use suction to comply with the statute); ROA.2689 (another physician
stating that he could not offer the opinion that the use of suction would be possible in every
case up to 16 weeks); ROA.2807 (another physician describing the ability to use suction
alone at 15 to 16 weeks as “unpredictable”).
60
See, e.g., ROA.2012, 2205.
51
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using suction, then switched to forceps to complete the procedure without
having first caused fetal demise. 61 (The record reflects that virtually all
physicians cause fetal demise before performing an abortion at and after 18
weeks of gestation in order to avoid the risk of violating the federal ban on
partial-birth abortion. However, as discussed above, using digoxin causes no
additional delay when aborting a fetus at 18 to 22 weeks of gestation because
the abortion process in all of those cases already extends more than 24 hours
beyond Texas’s initial statutory 24-hour waiting period.)
Different physicians employ differing practices. The Plaintiffs did not
quantify how many women across Texas would experience a delay of an
additional 24 hours due to causing fetal demise by the use of digoxin. It was
their burden to do so in this facial challenge.
IV
To the extent that consideration of the benefits of Texas’s prohibition
on fetal demise by dismemberment is a relevant inquiry, the record is silent
as to how a means of bringing about fetal demise prior to dismemberment,
such as digoxin, actually affects the fetus. Other than reflecting that digoxin
causes fetal death in a large percentage of cases in which it is administered
within 24 hours before an abortion, there is no evidence as to how digoxin
brings about fetal death. There is no evidence as to potential pain or suffering
while the fetus succumbs after introduction of digoxin into the womb, and if
there is such a potential, the nature and duration of any pain or suffering.
The State has expressed its interest in prohibiting the dismemberment
of a living fetus. This is congruent with the widely accepted principle that
dismemberment of living mammals should be prohibited. For example,
61
See ROA.2223-28.
52
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unwanted dogs, cats, puppies and kittens in shelters must be humanely
euthanized under Texas law. 62 The plaintiffs have not demonstrated that
causing fetal demise by the use of digoxin is morally or even factually
equivalent to fetal demise by dismemberment. Both procedures are
abhorrent. But it cannot be said on this record that Texas has no legitimate
interest in requiring fetal demise by a means other than dismemberment
during an abortion.
* * *
I concur in reversing the district court’s judgment and rendering
judgment that the facial challenges asserted in this case to the
constitutionality of Texas’s prohibition of dismemberment abortion fail.
62
See 25 Tex. Admin. Code § 169.84(a), (c) (2013) (for dogs and cats in the
custody of an animal shelter, requiring the animal be euthanized only by sodium
pentobarbital, and for any animal other than a dog or cat in the custody of an animal shelter,
requiring the animal “be humanely euthanized only in accordance with the methods,
recommendations, and procedures of the American Veterinary Medical Association” in
their latest guidelines for the euthanasia of animals “applicable to that species of animal”);
Tex. Health & Safety Code Ann. § 821.052 (West 2015) (same).
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James C. Ho, Circuit Judge, concurring:
The plurality opinion chronicles the numerous errors committed by
the district court. I write separately to focus on one particular error.
Constitutional challenges to abortion laws are governed, not by the
text or original meaning of the Constitution, but by decisions of the Supreme
Court. “[W]hat distinguishes abortion from other matters of health care
policy in America—and uniquely removes abortion policy from the
democratic process established by our Founders—is Supreme Court
precedent.” Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 277 & n.1
(5th Cir. 2019) (Ho, J., concurring in the judgment), cert. granted, _ S. Ct. _.
Compare, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (rejecting
substantive due process claim that “a compulsory vaccination law is . . .
hostile to the inherent right of every freeman to care for his own body” and
“nothing short of an assault upon his person”).
So we focus on Supreme Court precedent. That precedent recognizes
that scientists and medical experts disagree over a number of issues affecting
abortion policy in states across the country. And when experts disagree,
legislators decide—and judges defer. See, e.g., Gonzales v. Carhart, 550 U.S.
124, 163 (2007) (“The Court has given state and federal legislatures wide
discretion to pass legislation in areas where there is medical and scientific
uncertainty.”) (collecting cases); id. at 164 (“Medical uncertainty does not
foreclose the exercise of legislative power in the abortion context any more
than it does in other contexts.”); see also June Medical Servs. v. Russo, 140 S.
Ct. 2103, 2136 (2020) (Roberts, C.J., concurring in the judgment) (same).
This is not only the “‘traditional rule,’” but the only sensible one.
June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring in the judgment)
(quoting Gonzales, 550 U.S. at 163). As the Chief Justice has observed, courts
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should focus on the “sort of inquiry familiar to judges”—namely, the
resolution of legal disputes—and not the heady medical and scientific
controversies for which judges lack the proper qualifications to decide. Id.The district court here repeatedly violated these principles and failed
to defer, as the plurality details. See ante, at 15–16 & n.13. So did the 2–1
panel majority, which chastised state officials for relying on experts that the
panel deemed “less mainstream” on such hotly debated matters as the
gestational age at which an unborn child begins to feel pain. Whole Woman’s
Health v. Paxton, 978 F.3d 896, 910 (5th Cir. 2020), vacated and reh’g en banc
granted, 978 F.3d 974 (5th Cir. 2020). And three of our dissenting colleagues
today make the same move. They acknowledge that scientists disagree on
these issues. Yet they insist that legislatures must take one particular side of
that debate over the other. Post, at 100 n.8 (Dennis, J., dissenting).
“Follow the science,” it’s often said. And rightly so. But what do we
do when scientists disagree? The Supreme Court’s abortion precedents are
unequivocal: Judges have no business deciding which scientists are right and
which ones are wrong.
Moreover, this principle is especially vital because, as it turns out,
scientists don’t always follow the science themselves. I write separately to
explore this concern.
I.
We take for granted today the overwhelming medical and scientific
consensus that germs cause disease, and that handwashing is therefore
essential to basic human hygiene.
But it was not always so. To the contrary, germ theory and
handwashing were once the subject of severe scorn and ridicule among
“mainstream” scientists. In fact, it took the outspoken efforts of a few
55
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dissenters within the medical community who were willing to withstand
years of ridicule and peer pressure in order to challenge—and eventually,
change—the reigning consensus.
A.
Ignác Semmelweis was a Hungarian physician who practiced
obstetrics in the maternity clinic of the Vienna General Hospital during the
late 1840s. At the time, a disease known as “childbed fever” was killing many
of the women who gave birth there. Sherwin B. Nuland, The
Doctors’ Plague: Germs, Childbed Fever, and the
Strange Story of Ignác Semmelweis 79–85 (2004).
The maternity clinic had two wards: one attended only by midwives,
and the other attended only by physicians. And significantly, the physicians
not only delivered babies—they also performed autopsies on women who
succumbed to childbed fever. Id. at 97.
Semmelweis observed that women who gave birth in the ward
attended by midwives died at significantly lower rates than women who gave
birth in the ward attended by physicians. Id. He hypothesized that the
physicians who were also examining the bodies of women dying of childbed
fever were transmitting contaminated particles from the infected patients to
healthy women during childbirth. Id. at 100–01. At the time, those
physicians saw no reason to wash their hands between conducting autopsies
and treating healthy women in the delivery ward. So they didn’t. Id. at 100.
To test his hypothesis, Semmelweis advised physicians to wash their
hands in chlorine solution after performing autopsies and before treating
healthy women. Id. at 101. As a result, “something remarkable [began] to
happen.” Id. Childbed fever deaths in the physicians’ ward plummeted.
The death rate fell to “virtually equal” in the two wards. Id. Semmelweis
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proved that the hospital could virtually eliminate the spread of infection
simply by insisting that physicians wash their hands. Id. at 104–05.
Semmelweis’s discovery saved lives. But instead of being praised or
even accepted, he was ridiculed as an “agitator” and marginalized within the
scientific community for his “unorthodox and highly irregular ways of doing
things.” Id. at 147, 157. More senior colleagues expressed “alarm [at] the
increasing influence of younger physicians” like Semmelweis. Id. at 120.
So, to use modern parlance, they cancelled him. Semmelweis was
denied another term as an instructor at the medical school because of “the
way he kept demanding that students and staff wash in the chloride
solution.” Id. at 125. And even when he was later accepted for another
teaching position, he was restricted in what courses he could teach and what
materials he could access. Id. at 128. A European medical publication
advised readers: “We thought that this theory of chlorine disinfection had
died out long ago . . . . [O]ur readers should not allow themselves to be misled
by this theory.” Id. at 144–45.
Why did the scientific community “turn[] its collective back on”
Semmelweis, even when it turned out that he was so obviously right—and on
a matter so critical to patients’ lives? Id. at 158. Why couldn’t he “change
their fatalistic attitude about the inevitability of recurrent epidemics”? Id. at
157.
Those who have studied the events observe that it would “prove to be
intolerable” for respected (“mainstream,” if you will) doctors to admit that
they were horribly, brutally wrong—for they could not accept “the
possibility that they had been killing their patients for years or decades.” Id.
at 118.
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B.
A similar fate befell Joseph Lister. A British surgeon nearly twenty
years after Semmelweis’s discovery, Lister sought to explain the causes of
infection in surgical wounds that led to post-operation deaths. Lindsey
Fitzharris, The Butchering Art: Joseph Lister’s Quest
to Transform the Grisly World of Victorian Medicine
155–60 (2017).
Lister developed a “germ theory of disease”—that certain diseases
are caused by the invasion of the body by microscopic organisms. Id. at 159.
And he sought out to find a “means of destroying microorganisms within the
wound itself before infection could set in.” Id. He began the practice of
treating wounds with a carbolic-acid antiseptic to disinfect the skin, “prevent
germs from entering wounds, [and] destroy[] those that had already entered
the body.” Id. at 168–70. And he advanced the technique of sterilizing
surgical instruments with his antiseptic solutions before using them on
patients. Id. at 177.
By the time of his death, Lister would be acclaimed as “the greatest
modern Englishman” and “the world’s greatest surgeon.” Laurence
Farmer, Master Surgeon: A Biography of Joseph Lister
129 (1962). But throughout his career, he encountered fierce opposition,
even mockery. His contemporaries could not accept his suggestion that
invisible germs floating in the air could somehow cause disease. So they
dismissed him as “crazy, rash, and blinded by enthusiasm.” Id. at 76. Others
denigrated him as “mentally unhinged” and possessed by “a ‘grasshopper
in the head.’” Fitzharris, supra, at 220. They disparaged his work as
“the latest toy in medical science,” “unnecessary and overly complicated
distractions,” “quackery,” and “medical hocus-pocus.” Id. at 203, 215, 218.
One renowned English surgeon, in an address to the British Medical
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Association, ridiculed Lister’s work as worse than “an innocent fallacy”—
as nothing more than “unsupported fancies, which have little other existence
than what is found in the imagination of those who believe in them.” Id. at
193. The editor of the magazine Medical Record captured the dominant mood
this way: “We are likely to be as much ridiculed in the next century for our
blind belief in the power of unseen germs, as our forefathers were for their
faith in the influence of spirits, of certain planets and the like, inducing
certain maladies.” Candice Millard, Destiny of the Republic:
A Tale of Madness, Medicine and the Murder of a
President 184 (2012).
As with Semmelweis, Lister’s colleagues resisted his methods for the
simple reason that they “direct[ly] conflict[ed] with [their own]
technique[s].” Fitzharris, supra, at 180. “It was difficult for many
surgeons at the height of their careers to face the fact that for the past fifteen
or twenty years they might have been inadvertently killing patients by
allowing wounds to become infected.” Id. at 185.
II.
The reaction of the “mainstream” scientific community to
Semmelweis and Lister may seem outrageous to us today. But it is
surprisingly typical, as explained by academics in a field known as the
philosophy of science.
Scientific progress is often arduous work. For science is at bottom “a
conservative activity.” Samir Okasha, Philosophy of Science:
A Very Short Introduction 71, 75 (2nd ed. 2016). That is, scientists
typically “accept the [prevailing] paradigm unquestioningly,” and devote
their research primarily to “develop[ing] and extend[ing] the existing
paradigm.” Id. at 75. Scientists generally assume that any “experimental
result which conflicts with the paradigm . . . is faulty, not that the paradigm
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is wrong.” Id. at 76. So challenges to prevailing scientific wisdom are often
dismissed. And the more entrenched the existing paradigm, the greater the
upheaval, and the more vigorous the resistance will be to any challenge to the
governing paradigm—as “a burgeoning sense of crisis envelops the scientific
community.” Id. at 76.
It may not be enough, then, that an existing paradigm deserves to be
supplanted, and that a new paradigm proves to be superior. The most
scientifically sound and intellectually rigorous viewpoint does not necessarily
prevail. Scientists may be subject to “peer pressure” and even “mob
psychology.” Id. at 77. So which view ultimately prevails may depend more
on personality than merit. “If a given paradigm has very forceful advocates,
it is more likely to win widespread acceptance.” Id.
As a result, some academics have even begun to wonder whether
“[s]cience . . . can no longer be construed simply as the ideal of the quest for
truth (i.e., pure science).” Fabrice Jotterand, The Politicization of Science and
Technology: Its Implications for Nanotechnology, 34 J.L. Med. & Ethics
658, 658 (2006). After all, “[s]cience, through its technological applications,
has become the source of economic power and, by extension, political
power.” Id. As a result, “[s]cience, with its political implications, has
entered what [one scholar] calls the era of ‘post-academic’ science.” Id. And
“[t]he role played by cultural-political factors in scientific research lies at the
basis of a shift in how scientific inquiry is conducted.” Id. at 661.
Indeed, scientific resistance to novel ideas is so pervasive that medical
historians have coined a term for it: “the term ‘Semmelweis reflex’ is used
to refer to the knee-jerk tendency to reject new evidence because it
contradicts established norms.” Lindsey Fitzharris, The Unsung Pioneer of
Handwashing, Wall St. J. (Mar. 19, 2020), available at
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https://www.wsj.com/articles/the-unsung-pioneer-of-handwashing-
11584627614.
The bottom line is this: Of course we should “follow the science.”
But that doesn’t mean we should always blindly follow the scientists.
Because, like the rest of us, scientists are, first and foremost, human beings.
They’re susceptible to peer pressure, careerism, ambition, and fear of cancel
culture, just like the rest of us—as courts have recognized. See, e.g., Ott v.
St. Luke Hosp. of Campbell Cnty., Inc., 522 F. Supp. 706, 711 (E.D. Ky. 1981)
(a “Lister or Semmelweis” might well discover the need for “salutary
changes in [medical or scientific] procedures,” yet his views “may be
excluded simply because he ‘makes waves’”); Kosilek v. Spencer, 774 F.3d 63,
78 (1st Cir. 2014) (en banc) (noting concern that medical debate over sex
reassignment surgery may be “politically” driven); Gibson v. Collier, 920
F.3d 212, 222 (5th Cir. 2019) (same). 1
1
Similar concerns about intimidation and politicization within the scientific
community have been expressed in a number of recent press accounts. See, e.g., Adam
O’Neal, A Scientist Who Said No to Covid Groupthink, Wall St. J. (June 11, 2021),
available at https://www.wsj.com/articles/a-scientist-who-said-no-to-covid-groupthink-
11623430659 (profiling Filippa Lentzos, a scientist and expert on biological threats who was
“wary” about voicing her theory on the origins of COVID-19 because it “challenged the
enforced consensus,” noting that “there are power plays,” “agendas,” and “strong vested
interests” in the scientific community that cause dissenters to “fear[] for their careers
[and] for their grants”); Katherine Eban, The Lab-Leak Theory: Inside the Fight to Uncover
COVID-19’s Origins, Vanity Fair (June 3, 2021), available at
https://www.vanityfair.com/news/2021/06/the-lab-leak-theory-inside-the-fight-to-
uncover-covid-19s-origins (“[F]ormer Centers for Disease Control director Robert
Redfield received death threats from fellow scientists after telling CNN that he believed
COVID-19 had originated in a lab. ‘I was threatened and ostracized because I proposed
another hypothesis,’ Redfield told Vanity Fair. ‘I expected it from politicians. I didn’t
expect it from science.’”); John Tierney, The Panic Pandemic: Fearmongering from
journalists, scientists, and politicians did more harm than the virus, City Journal (Summer
2021), available at https://www.city-journal.org/panic-pandemic (“There’s always a
certain amount of herd thinking in science, but I’ve never seen it reach this level.”)
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III.
Doctors and scientists deserve enormous respect. We ignore their
advice at our peril. But we also follow them blindly at our peril.
Consider the story of Baby Richard. Born at just 21 weeks, he weighed
less than a pound, small enough to fit in the palm of a hand. He had small air
sacs instead of developed lungs. Oxygen was not flowing to his brain. He
needed IV fluid, a breathing tube, and blood pressure support to sustain
himself. He was immediately rushed to a neonatal intensive care unit.
Tommy Brooksbank, ‘Miracle baby’ born at 21 weeks heads home from hospital
just in time for Christmas, Good Morning America (Dec. 25, 2020),
available at https://www.goodmorningamerica.com/family/story/miracle-
baby-born-21-weeks-heads-home-hospital-74848084.
Richard’s doctors gave him a “0% chance of survival.” Id. As his
neonatologist, Dr. Stacy Kern, later noted, “many NICUs around the world
are not even resuscitating babies born at 22 weeks.” Id. See also id. (noting
that, “[a]ccording to the Department of Health and Human Services, babies
born before 22 weeks are typically not resuscitated because their bodies are
simply too immature to be treated with intensive care”).
(quoting Harvard epidemiologist Martin Kulldorff); see also, e.g., Lesley Stahl, State Bills
Would Curtail Health Care for Transgender Youth, 60 Minutes (May 23, 2021), available
at https://www.cbsnews.com/news/transgender-health-care-60-minutes-2021-05-23/
(quoting Dr. Laura Edwards-Leeper, a psychologist at a major youth gender clinic in Boston
who has “helped hundreds of teens and young adults transition successfully after a
comprehensive assessment”: “It greatly concerns me where the field has been going. I
feel like what is happening is unethical and irresponsible in some places. . . . Everyone is
very scared to speak up because we’re afraid of not being seen as affirming or being
supportive of these young people or doing something to hurt the trans community. But
even some of the providers are trans themselves and share these concerns.”).
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For weeks, Richard was hooked up to two ventilators to keep him
breathing. But his oxygen levels continued to decline. So doctors invited his
mother to Baby Richard’s bedside—to say goodbye.
But then they touched. “She puts her hand on him and all the sudden
his oxygen saturation goes up to the 80s then 90s, and I look at her and go, ‘I
guess he just needed his mom,’” Dr. Kern later said. Id. “It was one of the
most incredible things I’ve ever seen. He just continued to surprise us day
after day.” Id.After six months in the hospital, Baby Richard came home—just in
time for Christmas. Id. He recently celebrated his first birthday. See Sydney
Page, A newborn weighed less than a pound and was given a zero percent chance of
survival. He just had his first birthday., Wash. Post (June 23, 2021),
available at https://www.washingtonpost.com/lifestyle/2021/06/23/
premature-baby-survive-birthday-record/.
IV.
States have a profound interest in respecting unborn life. See, e.g.,
Gonzales, 550 U.S. at 157 (“The government may use its voice and its
regulatory authority to show its profound respect for the life within the
woman.”). Surely that interest includes protecting the unborn from
unnecessary pain and suffering. See, e.g., Jackson Women’s, 945 F.3d at 280
(Ho, J., concurring in the judgment) (“A State has an unquestionably
legitimate (if not compelling) interest in preventing gratuitous pain to the
unborn.”).
Indeed, if states must avoid unnecessary pain to convicted murderers
on death row as a matter of constitutional mandate, then surely states may
avoid unnecessary pain to innocent unborn babies as a matter of
constitutional discretion. “It would be surprising if the Constitution requires
States to use execution methods that avoid causing unnecessary pain to
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convicted murderers, but does not even permit them from preventing
abortions that cause unnecessary pain to unborn babies.” Id. at 280 (citing
Baze v. Rees, 553 U.S. 35, 49 (2008) (plurality opinion)).
“Not surprisingly, then, members of the Supreme Court have
acknowledged that avoidance of pain is indeed a valid state interest in the
abortion context.” Id. (citing Webster v. Reprod. Health Servs., 492 U.S. 490,
552 (1989) (Blackmun, J., concurring in part and dissenting in part) (“I
should think it obvious that the State’s interest in the protection of an embryo
. . . increases progressively and dramatically as the organism’s capacity to feel
pain, to experience pleasure, to survive, and to react to its surroundings
increases day by day.”) (quoting Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747, 778 (1986) (Stevens, J., concurring)); Webster,
492 U.S. at 569 (Stevens, J., concurring in part and dissenting in part)
(“There can be no interest in protecting the newly fertilized egg from
physical pain or mental anguish, because the capacity for such suffering does
not yet exist; respecting a developed fetus, however, that interest is valid.”).
The record of this case demonstrates that scientists disagree about
what gestational phase an unborn child begins to feel pain. See ante, at 15
n.13; see also Jackson Women’s, 945 F.3d at 274–75; id. at 279–80 (Ho, J.,
concurring in the judgment). Accordingly, the Supreme Court’s abortion
precedents require courts to defer to legislators to resolve those debates. See,
e.g., Gonzales, 550 U.S. at 163–64.
But rather than defer to Texas legislators to make that judgment call,
the 2–1 panel scolded them for relying on doctors the panel majority deemed
outside the “mainstream.” Whole Woman’s, 978 F.3d at 910.
If society takes seriously its obligation to protect the most innocent
among us from unnecessary pain, it’s hard to imagine a more important issue
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on which to defer to legislative judgments than the medical debate over an
unborn child’s capacity to feel pain.
***
Someday, scientists may look back on today’s abortion debates as
shocking and barbaric—just as we look back in disbelief at those who
ridiculed and ostracized proponents of handwashing and sterilizing surgical
instruments to prevent disease and infection.
Indeed, many have that view today. According to Carter Snead, one
of the nation’s leading scholars on public bioethics and an expert witness in
this case, “132 countries out of 194 that I looked at ban abortion outright, at
all gestational stages, with certain exceptions defined by law,” while 178
countries generally ban abortion after a gestational age of 12 weeks. So “92
percent of all countries presumptively ban abortions at 12 weeks or less.”
Texas does not ban abortion until 22 weeks. So Texas law is not only
valid under the Constitution and Supreme Court precedent—it’s also more
permissive than the overwhelming majority of laws around the world.
Yet federal courts have blocked it for four years. This in spite of the
fact that, when it comes to medical disputes surrounding abortion, Supreme
Court precedent requires judges to defer to—not overturn—the will of the
voters and the judgment of the legislators they elected to office. “The right
to vote means nothing if we abandon our constitutional commitments and
allow the real work of lawmaking to be exercised by [federal judges], rather
than by elected officials accountable to the American voter.” Texas v. Rettig,
993 F.3d 408, 410–11 (5th Cir. 2021) (Ho, J., dissenting from denial of
rehearing en banc). After four years, the court today finally allows the law to
take effect. I concur.
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James L. Dennis, Circuit Judge, joined by Stewart and Graves, Cir-
cuit Judges, dissenting:
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833, 846 (1992) (plurality opinion), three Supreme Court Justices set forth
the core principles that have come to guide the modern jurisprudence of abor-
tion. The foremost among these was that women have a constitutional right
“to choose to have an abortion before [fetal] viability and to obtain it without
undue interference from the State.” Id. In other words, “[b]efore 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.” Id. The corollary to this principle is known as the
undue burden standard, under which state regulations that have “the pur-
pose or effect ” of “plac[ing] a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability” are unconstitutional.
Id. at 877.
Notwithstanding Casey’s clear statement that “[u]nnecessary health
regulations that have the purpose or effect of presenting a substantial obstacle
to a woman seeking an abortion impose an undue burden on the right,” id. at
878, our court has frequently failed to identify and strike down laws that tar-
get abortion rights under the semblance of regulating the procedure. Five
years ago, the Supreme Court reversed our upholding of a Texas law that,
although ostensibly a medical regulation, provided very few if any actual
medical benefits and instead mainly served to hinder a woman’s right to a
previability abortion. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2318 (2016). Only two years later, our court declined to heed the Hel-
lerstedt decision and approved a virtually identical Louisiana law, substituting
our own strained reading of the evidence for the findings of the district court
in order to conclude that the burdens the law placed on women’s abortion
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choice did not outweigh its benefits. June Med. Servs., L.L.C. v. Gee, 905
F.3d 787, 815 (5th Cir. 2018). As one might expect, the Supreme Court again
reversed our decision, reprimanding us for defying on-point binding prece-
dent and failing to defer to the district court’s factual findings that were plau-
sible in light of the full record, as an appeals court must on clear error review.
June Med. Servs., L.L.C., v. Russo, 140 S. Ct. 2103, 2121, 2124-25 (2020) (plu-
rality opinion); id. at 2133-34, 2141 (Roberts, C.J., concurring).
Today, in a Sisyphean return to form, our court upholds a Texas law
that, under the guise of regulation, makes it a felony to perform the most
common and safe abortion procedure employed during the second trimester.
In an opinion that fortunately lacks fully binding precedential effect, the en
banc plurality disregards the two major lessons of June Medical. First, it ig-
nores on-point Supreme Court precedent in multiple ways. For one, the plu-
rality wrongly declares a single Justice’s concurrence to be precedential in
order to impose a variation of the undue burden standard that the Court has
explicitly rejected. See Hellerstedt, 136 S. Ct. at 2309. And, even under the
plurality’s preferred standard, the Supreme Court has already decided this
exact case, holding that a Nebraska law was unconstitutional because it could
be interpreted to be the sort of ban that the Texas statute openly embodies.
Stenberg v. Carhart, 530 U.S. 914, 945(2000). Second, just as in June Medical,
the en banc plurality fails to defer to the district court’s well-reasoned and
well-supported factual findings regarding the burdens and benefits associated
with the Texas law, instead substituting its own reading of the evidence to
make findings of fact in the first instance. This would be bad enough on its
own, but the actual findings that the plurality makes are contrary to the great
weight of the evidence in the record and place us at odds with virtually every
other court to have considered the matter.
In a final, entirely new sort of error, the plurality faults the district
court for “botch[ing]” the large fraction analysis, Plurality at 33, which asks
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whether the challenged restriction is an undue burden for a large portion of
the women affected by it. But the plurality “bungl[es]” the analysis itself,
Plurality at 3, incorrectly minimizing the statute’s impact by wrongly includ-
ing in its evaluation a large number of women whose lives will be wholly un-
affected by SB8.
The court’s decision today will, in the name of “medical ethics,”
force many women to unnecessarily undergo what the en banc plurality
wrongfully characterizes as “alternatives” to the very common and safe pro-
cedure that Texas has banned—painful, invasive, expensive, and in some
cases experimental additional treatments that carry with them significantly
elevated risks to the women’ health and well-being. Further burdening abor-
tion access, many abortion providers will likely decline to perform later-term
abortions rather than face the dilemma today’s ruling foists upon them: be-
come a felon or do a risky procedure that is contrary to the doctor’s medical
judgment regarding the patient’s best interests. This outcome is neither cor-
rect as a logical matter nor consistent with our duties as a lower federal ap-
pellate court, and I respectfully but emphatically dissent.
I.
A.
As courts have long recognized, dilation and evacuation (“D&E”) is
“the most commonly used method for performing previability second tri-
mester abortions.” Stenberg, 530 U.S. at 945. The procedure is generally
performed as a two-step process. The first step remains the same throughout
all stages of the pregnancy: doctors induce dilation through medication alone
or in combination with small sticks made from an expanding organic or syn-
thetic material called laminaria. But the technique employed at the second
step—evacuation—varies depending on how advanced the woman’s preg-
nancy is at the time of the procedure.
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The en banc plurality claims that there are three seemingly equally ac-
ceptable “main” options that a doctor may elect to employ during the evac-
uation phase of the D&E. Plurality at 3. According to the plurality, once a
woman’s cervix has been dilated, a doctor may evacuate the contents of her
uterus using either suction alone, a combination of suction and forceps, or
various “fetal-death” techniques in conjunction with suction and forceps.
Plurality at 3. This characterization of the procedure is inaccurate. The rec-
ord and the district court’s findings make clear that there are only two ways
to perform the second step of a D&E: suction alone or in conjunction with
forceps or similar implements, with the gestational age of the fetus the pri-
mary factor dictating which technique the doctor can safely and effectively
employ.
Generally, during the first trimester, 1 the contents of the uterus can
be evacuated via suction with a plastic tube called a “cannula” in a process
termed “suction aspiration.” The suction causes the fetal tissue to separate,
resulting in fetal demise, and it removes the residual contents of the womb.
But beginning during the second trimester at around fifteen weeks of preg-
nancy, the most common method of abortion both in Texas and nationally
involves the additional use of forceps or similar handheld medical imple-
ments. Performed in an outpatient setting, this very safe, approximately ten-
minute procedure differs from the early-stage procedure in that, rather than
relying solely on suction during the step-two evacuation phase, the physician
uses forceps to reach into the uterine cavity and manually remove the fetal
tissue through the cervix. Because of its size and position, doctors use the
1
The gestational age of a fetus is measured by the time elapsed since the woman’s
last menstrual period. Pregnancy is 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, 530 U.S. at 923-25. The third tri-
mester begins the twenty-seventh week and continues through the end of the pregnancy.
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forceps to “disarticulate” or separate the fetal tissue into pieces small
enough to be removed through the dilated opening. Once the removal is com-
plete, the doctor uses suction to remove any residual material remaining in
the uterus.
As other courts have recognized and as will be discussed, there are
some additional measures that doctors can perform during a D&E wherein
various techniques are used to independently produce fetal demise prior to
evacuation, but these are not an alternative method of evacuation as the en
banc plurality seems to claim. See EMW Women’s Surgical Ctr., P.S.C. v.
Friedlander, 960 F.3d 785, 798 (6th Cir. 2020) (“Fetal-demise procedures are
not, by definition, alternative procedures. A patient who undergoes a fetal-
demise procedure must still undergo the entirety of a standard D&E. Instead,
fetal-demise procedures are additional procedures.”), cert. granted in part on
other grounds sub nom. Cameron v. EMW Women’s Surgical Ctr., P.S.C., 141 S.
Ct. 1734 (2021). The tissue separation that occurs during a forceps-assisted
D&E results in fetal demise, and the procedure does not require an addi-
tional, antecedent step of producing fetal demise through other methods. As
is discussed in more detail below, performing such an extra step significantly
increases the health risks and physical, emotional, and financial costs associ-
ated with the procedure.
B.
In 2017, Texas enacted Senate Bill 8 (“SB8”). Along with a number
of other provisions exhibiting hostility to a woman’s constitutional right to
obtain a previability abortion, the law prohibits so-called “dismemberment
abortions.” 2 Act of May 26, 2017, 85th Leg. R.S., ch. 441, § 6, 2017 Tex.
2SB8 does not contain any legislative findings, and the district court did not make
any factual findings regarding the Texas legislature’s intent in enacting it. But when con-
sidering similar bans, well-respected jurists have posited that the abortion method was
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Gen. Laws 1164, 1165–67 (eff. Sept. 1, 2017) (codified as TEX. HEALTH &
SAFETY CODE §§ 171.151–.154). Obviously, this pejorative label, which the
en banc plurality largely adopts, is not found in any medical texts. But the
statute defines the procedure as one in which the physician, “with the pur-
pose 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 in-
strument.” 3 Id. Violation of the statute is a felony offense punishable by a
minimum of 180 days to a maximum of two years in jail and a fine of up to
$10,000.
Texas asserts in the present litigation that SB8 proscribes the use of
forceps or similar instruments to produce fetal demise during the second step
of the D&E procedure. The State concedes that SB8 does not prohibit a suc-
tion-aspiration abortion, and it likewise asserts that an abortion in which fetal
demise occurs prior to the evacuation of the uterus with forceps is outside
the statute’s ambit. In other words, a physician performing a D&E in which
forceps are needed could typically avoid criminal liability only by taking the
targeted “not because the procedure kills the fetus, not because it risks worse complica-
tions for the woman than alternative procedures would do, not because it is a crueler or
more painful or more disgusting method of terminating a pregnancy.” Stenberg, 530 U.S.
at 951-52 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F.3d 857, 881 (7th
Cir. 1999) (Posner, J., dissenting)). “Rather . . . the law prohibits the procedure because
the state legislators seek to chip away at the private choice shielded by Roe v. Wade, 410
U.S. 113 (1973), even as modified by Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833 (1992).” Id. at 952. “[I]f a statute burdens constitutional rights and all that can
be said on its behalf is that it is the vehicle that legislators have chosen for expressing their
hostility to those rights, the burden is undue.” Hope Clinic, 195 F.3d. at 881 (Posner, J.,
dissenting); see also, Casey, 505 U.S. at 877 (stating that a law imposes an undue burden if
it has “the purpose or effect ” of “plac[ing] a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability” (emphasis added)).
3
The statute includes an exception for medical emergencies. TEX. HEALTH &
SAFETY CODE § 171.152.
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additional, medically unnecessary step of inducing fetal demise in utero be-
fore performing the evacuation phase, regardless of the doctor’s professional
medical judgment whether such action is safe or appropriate.
The Plaintiffs in this case, who are six licensed abortion clinics and
five abortion providers that operate in Texas, filed the present lawsuit against
the defendants, who are various Texas law enforcement officers acting in
their official capacity. Plaintiffs contended that SB8 places an unconstitu-
tional undue burden on a woman’s ability to obtain a previability abortion.
Following an extensive five-day bench trial and consideration of testimony
from numerous medical experts and a multitude of professional literature,
the district court agreed that the statute is unconstitutional.
The court issued a thorough memorandum opinion that meticulously
reviewed and parsed the complex evidence the parties had introduced,
weighed the competing narratives, made credibility determinations, and oth-
erwise resolved complicated factual disputes in the manner that district
courts are uniquely situated to do within our judicial system. See Whole
Woman’s Health v. Paxton, 280 F. Supp. 3d 938, 941 n.5 (W.D. Tex. 2017)
(“In making these findings and conclusions, the court has considered the rec-
ord as a whole. The court has observed the demeanor of the witnesses and
has carefully weighed that demeanor and the witnesses’ credibility in deter-
mining the facts of this case and drawing conclusions from those facts. Fur-
ther, the court has thoroughly considered the testimony of both sides’ expert
witnesses and has given appropriate weight to their testimony in selecting
which opinions to credit and upon which not to rely.”). The court evaluated
each of the State’s proposed methods by which a doctor could comply with
SB8, and, “[a]fter considering all of the medical expert testimony, the court
conclude[d] that pre-evacuation fetal demise provides no additional medical
benefit to a woman undergoing a standard D & E abortion.” Id. at 949. In-
stead, the court found, each of the proposed techniques significantly
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increases the risk and physical, emotional, and financial cost associated with
the D&E procedure. Id. at 953. The court acknowledged that Texas has a
legitimate interest in promoting “respect for the life of the unborn,” but it
explained that this interest did not outweigh the considerable burden SB8
imposes on a woman’s ability to obtain the previability abortion to which she
is constitutionally entitled. Id. The court thus concluded that “requiring a
woman to undergo an unwanted, risky, invasive, and experimental procedure
in exchange for exercising her right to choose an abortion, substantially bur-
dens that right.” Id. And the district court accordingly declared SB8 facially
unconstitutional and permanently enjoined its enforcement. Id. at 954.
The State appealed, and we held this case in abeyance while the Su-
preme Court decided June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103(2020), a case much like this one in which a majority of this court defied on-
point Supreme Court precedent and substituted its own stilted interpretation
of the evidence for the district court’s first-hand findings. See June Med.
Servs., L.L.C. v. Gee, 913 F.3d 573, 574, 579-84 (5th Cir. 2019) (Dennis, J.,
dissenting from denial of en banc rehearing). The Supreme Court in June
Medical—including the Chief Justice in his separate concurrence—rebuked this
court’s temerity, chastising us about the importance of stare decisis and the
deference that appeals courts owe to a district court’s factual findings. See
140 S. Ct. at 2121, 2124-25 (plurality opinion); id. at 2133-34, 2141 (Roberts,
C.J., concurring). But after the Supreme Court issued June Medical, Texas
filed a motion for a stay of the district court’s injunction in this case in light
of that decision, somehow interpreting the Supreme Court’s admonishment
that our court should heed controlling precedent and defer to a district
court’s findings of fact as an invitation for our court to depart from Supreme
Court jurisprudence and overturn the district court’s factual findings. Rec-
ognizing the absurdity of this proposition, a majority of a panel of this court
denied Texas its requested stay, 972 F.3d 649 (5th Cir. 2020), and then
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affirmed the district court’s decision on the merits, 978 F.3d 896 (5th Cir.
2020). But an en banc majority of this court vacated that decision, 978 F.3d
974 (5th Cir. 2020), and it now reverses with only a plurality agreeing upon a
rationale.
II.
We review the district court’s decision to permanently enjoin enforce-
ment of SB8 for abuse of discretion. See Jackson Women’s Health Org. v.
Dobbs, 945 F.3d 265, 270 (5th Cir. 2019), cert. granted in part, 209 L. Ed. 2d
748 (May 17, 2021). 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 rec-
ord 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 evi-
dence, 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) de-
mands 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.
The en banc plurality relies on statements in Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 501 (1984), and Pullman-Standard v. Swint,
456 U.S. 273, 287 (1982), to boldly state that, because the district court em-
ployed the wrong legal standard, “[w]e therefore owe no deference to the
district court’s factual findings.” Plurality at 19. As discussed below, the
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district court employed the correct legal standard, so this contention fails
from the start. But even were that not the case, the plurality gives no clear
reason for its holding that a district court’s mistake regarding the rule for de-
termining whether an abortion restriction is constitutional relieves us of our
duty to defer to the underlying factual findings that the district court applied
that standard to.
“Clear error review follows from a candid appraisal of the compara-
tive advantages of trial courts and appellate courts. While we review tran-
scripts for a living, they listen to witnesses for a living. While we largely read
briefs for a living, they largely assess the credibility of parties and witnesses
for a living.” June Med. Servs., L.L.C., 140 S. Ct. at 2141 (Roberts, C.J., con-
curring) (internal quotes and citation omitted). To be sure, the Supreme
Court has stated that “[a] finding of fact in some cases is inseparable from
the principles through which it was deduced,” and there may be times when
an error of law makes it appropriate to set aside a “so-called mixed finding of
law and fact, or a finding of fact that is predicated on a misunderstanding of
the governing rule of law.” Bose, 466 U.S. at 501 & n.17. But when factual
questions are not intertwined with questions of law, district courts remain in
a far better position than appellate courts to evaluate credibility and parse
conflicting evidence in order to resolve them. And while a misunderstanding
of the governing law might affect which factual disputes a district court
chooses to resolve, see Swint,456 U.S. at 287 n.17 (“The presence of . . . legal
errors may justify a remand by the Court of Appeals to the District Court for
additional factfinding under the correct legal standard.”), it generally has lit-
tle bearing on whether the purely factual findings that a district court does
make are accurate.
The en banc plurality does not explain why the district court’s appli-
cation of what the plurality believes was an incorrect legal standard—weigh-
ing SB8’s burdens against its benefits to determine its constitutionality—
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would in any way undermine the district court’s first-hand reading of the ev-
idence of what those burdens and benefit are. It thus provides no reason for
our withholding the clear-error deference mandated for district courts’ fac-
tual determinations. See id. at 287 (“[Federal] Rule [of Civil Procedure]
52(a) broadly requires that findings of fact not be set aside unless clearly er-
roneous. It does not make exceptions or purport to exclude certain categories
of factual findings from the obligation of a court of appeals to accept a district
court’s findings unless clearly erroneous.”). The Supreme Court has had to
remind our court in recent years that, even in abortion cases, we are an ap-
pellate court that should not second guess a district court’s reading of con-
flicting evidence. See June Med. Servs., L.L.C., 140 S. Ct. at 2121, 2124-25
(plurality opinion); id. at 2133-34, 2141 (Roberts, C.J., concurring). I would
take that lesson to heart and hold that the clear error standard of review ap-
plies to the district court’s factual findings in the present case.
III.
On the merits, the en banc plurality claims that the district court com-
mitted a range of legal errors by employing the wrong legal standard, failing
to heed binding Supreme Court precedent, not sufficiently crediting the
State’s legitimate interests in enacting SB8, and making several other miscel-
laneous mistakes. It also asserts that the district court’s factual findings re-
garding the burdens SB8 imposes on abortion access are unsupported or con-
tradicted by the record. And the plurality contends that the district court
misapplied the “large fraction” analysis when determining what proportion
of women seeking previability abortions would be unduly burdened by SB8.
Each of the plurality’s claims of error is wrong and provides no grounds for
reversal, and each will be considered and rejected in turn.
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A.
It has been clear since the Supreme Court’s landmark decision in Roe
v. Wade, 410 U.S. 113 (1973), that the Fourteenth Amendment guarantees a
woman’s right to choose to undergo a previability abortion. Two decades
later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court
reaffirmed Roe’s “essential holding” and set forth a three-part legal frame-
work for assessing the constitutionality of abortion restrictions:
First is a recognition of the right of the woman to choose
to have an abortion before viability and to obtain it without un-
due 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.
505 U.S. at 846.
“Casey, in short, struck a balance.” Gonzales v. Carhart, 550 U.S. 124,
146 (2007). On the one hand, it protected women’s fundamental rights by
mandating that “a State may not prohibit any woman from making the ulti-
mate decision to terminate her pregnancy before viability.” Casey, 505 U.S.
at 879. On the other, it recognized that a state may enact previability regula-
tions designed “to further the health or safety of a woman seeking an abor-
tion” or “to express profound respect for the life of the unborn.” Id. at 877-
78. But “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
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serving its legitimate ends.” Id. at 877. Thus, state regulations may have
neither “the purpose [n]or [the] effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus.” Id. The “short-
hand” for a substantial obstacle is an undue burden. Id.
1.
Five years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme
Court confirmed that the undue burden “rule announced in Casey . . . re-
quires that courts consider the burdens a law imposes on abortion access to-
gether with the benefits those laws confer.” 136 S. Ct. at 2309 (citing the
Casey Court’s balancing of a law’s benefits against its burdens). That is to
say, in order to determine if a burden on a woman’s right to choose is “un-
due,” courts must assess the benefits of the state’s regulation relative to the
obstacles it erects to women obtaining a previability abortion. Id. A majority
of the Court expressly rejected an approach that considers only the burdens
imposed by an abortion restriction, stating that this “articulation of the rele-
vant standard is incorrect.” Id. And, applying the correct balancing test, the
Court reversed this court’s decision upholding a Texas law that, among other
things, required abortion providers to obtain admitting privileges at a local
hospital. Id. at 2313-14. In light of the district court’s findings that the law
had little if any medical benefit and imposed significant obstacles to many
women obtaining a previability abortion, the Court held that the law uncon-
stitutionally erected a substantial barrier to a large fraction of women exercis-
ing their constitutional right to choose. Id. at 2313-15.
As noted, the Supreme Court issued its most recent ruling explaining
and applying the undue burden test during the pendency of this appeal in
June Medical, in which it once again reversed this court’s ruling upholding an
abortion restriction. 140 S. Ct. at 2114. June Medical concerned a Louisiana
admitting-privileges statute that was virtually identical to the one considered
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in Hellerstedt, and the Court unsurprisingly came to the same conclusion, in-
validating the law because it imposed an undue burden on a woman’s right to
obtain a previability abortion. Id. at 2112-13. A four-Justice plurality applied
the balancing approach elucidated in Hellerstedt, 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, other than with respect to the preliminary inquiry as to whether
the challenged law is rationally related to a legitimate state interest, 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 judgment).
Citing Marks v. United States, 430 U.S. 188, 193 (1977), the en banc
plurality declares today that Chief Justice Roberts’s solo concurrence consti-
tutes June Medical’s holding and is accordingly binding on this court. It
therefore holds that the district court erred by employing the legal standard
set forth in Hellerstedt and balancing the benefits of SB8 relative to the bur-
dens it places on a woman’s constitutional right to choose. Plurality at 11-14.
For reasons that were discussed at length in the previous panel opinions, the
plurality is wrong. See Whole Woman’s Health, 972 F.3d at 652-53; Whole
Woman’s Health, 978 F.3d at 904-05.
To recapitulate, “[o]rdinarily, ‘[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five Jus-
tices, 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) (second
alteration in original) (quoting Marks, 430 U.S. at 193)). But we have long
held that the Marks “principle . . . is only workable where there is some ‘com-
mon 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)).
When a concurrence does not share a “common denominator” with, or
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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, the only common denominator between the plurality
and the concurrence is their shared conclusion that the challenged Louisiana
law constituted an undue burden. Compare 140 S. Ct. at 2132 (plurality opin-
ion), with id. at 2141-42 (Roberts, C.J., concurring in the judgment). What
they obviously disagreed on is the proper test for conducting the undue-bur-
den analysis: the June Medical plurality applied Hellerstedt’s balancing of the
law’s burdens against its benefits, while the concurrence analyzed only the
burdens. In fact, the Chief Justice expressly disavowed the plurality’s test.
See id. at 2136. Our precedents make clear that a concurrence is not a logical
subset of a plurality opinion or vice versa in these circumstances. See Duron-
Caldera, 737 F.3d at 994 n.4 (holding that, in the Supreme Court’s decision
in “Williams[ v. Illinois, 132 S. Ct. 2221 (2012)], there is no such common
denominator between the plurality opinion and Justice Thomas’s concurring
opinion. Neither of these opinions can be viewed as a logical subset of the
other. Rather, Justice Thomas expressly disavows what he views as ‘the plu-
rality’s flawed analysis,’ including the plurality’s ‘new primary purpose
test.’” (quoting Williams, 132 S. Ct. at 2255, 2262 (Thomas, J., concurring)
(emphasis added))).
Basic logic reaffirms that a rule that asks simply whether a given factor
is present in sufficient quantities is not a logical subset of a rule that calls for
that factor to be weighed against another variable. Consider this counterfac-
tual: If the June Medical plurality’s rule were “Unconstitutional if A or B is
present” and the concurrence’s were “Unconstitutional if A is present,”
then the concurrence would be a logical subset of the plurality’s opinion. 4 All
4
This appears to be how the en banc plurality conceptualizes the matter, as it
stresses that the Chief Justice agreed with the portion of the June Medical plurality’s
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possible unconstitutional outcomes produced by the concurrence’s test
would also be unconstitutional outcomes under the plurality’s, and the Venn
diagram of results would show the circle representing the concurrence fully
contained within the circle representing the plurality. Contrast this to the
situation we are now presented with: The June Medical plurality’s rule is
“Unconstitutional if A (burdens) is greater than B (benefits)” and the Chief
Justice’s concurrence’s standard is “Unconstitutional if A (burdens) is
greater than X (an acceptable level).” In situations in which an abortion re-
striction has virtually no benefits but imposes only modest burdens, it would
be unconstitutional under the June Medical plurality’s test but not the Chief
Justice’s. And in situations in which a law has tremendous benefits and im-
poses a lesser but nonetheless significant burden, the law would be unconsti-
tutional under the Chief Justice’s test but not the plurality’s. The Venn dia-
gram is divergent, with neither set of outcomes entirely contained within the
other. Both the Seventh and Eleventh Circuits have arrived at the same con-
clusion, recognizing that the Chief Justice’s single-justice concurrence is not
a logical subset of the June Medical plurality’s opinion. See Reprod. Health
Servs. v. Strange, 3 F.4th 1240, 1259 (11th Cir. 2021) (“The Chief Justice’s
concurrence cannot fairly be considered narrower than the plurality opinion
because, although they came to the same result, the Chief Justice and the
plurality diverged on the reasoning supporting that result. As a result, the
only common ground between the plurality and Chief Justice Roberts is in
the shared conclusion that the Louisiana statute constituted an undue
opinion analyzing the burdens imposed by the challenged law. Plurality at 11-12. But the
June Medical plurality did not reason that a previability abortion restriction is unconstitu-
tional if it has burdens or benefits. It concluded that a previability abortion restriction is
unconstitutional if the law’s burdens are greater than its benefits. Simply identifying that a
law imposes burdens on the right to abortion is not sufficient to resolve the case under the
Hellerstedt formulation that the June Medical plurality applied.
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burden. The benefits-burdens approach to the undue burden analysis from
Whole Woman’s Health therefore continues to bind us.”); Planned Parenthood
of Indiana & Kentucky, Inc. v. Box, 991 F.3d 740, 748 (7th Cir. 2021) (“In June
Medical, there is one critical sliver of common ground between the plurality
and the concurrence: Whole Woman’s Health was entitled to stare decisis ef-
fect on essentially identical facts. The Marks rule therefore applies to that
common ground, but it applies only to that common ground.”).
The en banc plurality’s approach to applying the Marks rule would
have far-reaching consequences, as it would allow “a single Justice writing
only for himself . . . the authority to bind th[e] Court to propositions it has
already rejected.” Ramos v. Louisiana, 140 S. Ct. 1390, 1402 (2020) (Gor-
such, J., plurality opinion). Anytime a fractured opinion arose, any Justice
on the court could seize the opportunity to rewrite precedent, regardless of
the disagreement of the rest of the Court. Indeed, in Hellerstedt, a majority
of the Court explicitly declined to adopt the approach later favored by the
Chief Justice in June Medical. Hellerstedt, 136 S. Ct. at 2309. The plurality
allows this binding ruling to be disregarded based on the will of a single Jus-
tice, which is far from what the Marks court intended when it said that a
case’s holding can be ascertained when there is agreement on a dispositive
point by a majority of Justices concurring in the judgment. Marks, 430 U.S.
at 193.
Thus, under our precedents, June Medical did not serve to displace
the balancing test called for by Hellerstedt, which remains controlling law.
The district court cited and applied the correct legal standard, and the en banc
plurality errs by concluding otherwise.
2.
Before I proceed to an in-depth discussion of the en banc plurality’s
further errors, it is worth noting that this should be an exceptionally easy case
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even under the plurality’s preferred legal standard because the Supreme
Court has already decided it. In Stenberg v. Carhart, the Supreme Court con-
sidered a Nebraska statute that prohibited “deliberately and intentionally de-
livering into the vagina a living unborn child, or a substantial portion thereof,
for the purpose of performing a procedure that the person performing such
procedure knows will kill the unborn child.” 530 U.S. 914, 938 (2000) (quot-
ing NEB. REV. STAT. ANN. § 28–326(9)). Nebraska contended that the stat-
ute was constitutional because it merely prohibited “dilation and extraction”
(“D&X”) abortions, an alternative abortion method that is not implicated in
the present case. But the Supreme Court struck down the Nebraska law spe-
cifically because the text of the prohibition could reach the same common
D&E procedure that SB8 bans. Stenberg, 530 U.S. at 938.
Evidence before the trial court makes clear that D & E
will often involve a physician pulling a “substantial portion” of
a still living fetus, say, an arm or leg, into the vagina prior to the
death of the fetus. Indeed D & E involves dismemberment that
commonly occurs only when the fetus meets resistance that re-
stricts the motion of the fetus: The dismemberment occurs be-
tween the traction of the instrument and the counter-traction
of the internal os of the cervix. And these events often do not
occur until after a portion of a living fetus has been pulled into
the vagina. . . .
Even if the statute’s basic aim is to ban D & X, its lan-
guage makes clear that it also covers a much broader category
of procedures. . . . Both procedures can involve the introduc-
tion of a “substantial portion” of a still living fetus, through the
cervix, into the vagina[.]
....
In sum, using this law some present prosecutors and fu-
ture Attorneys General may choose to pursue physicians who
use D & E procedures, the most commonly used method for
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performing previability second trimester abortions. All those
who perform abortion procedures using that method must fear
prosecution, conviction, and imprisonment. The result is an
undue burden upon a woman’s right to make an abortion deci-
sion. We must consequently find the statute unconstitutional.
Id. at 938-39, 945 (internal citations and alterations omitted).
The Supreme Court explicitly stated that banning the performance of
a standard D&E, which it repeatedly emphasized involved the evacuation of
a living fetus in which fetal demise has not yet been induced, resulted in an
undue burden and was therefore constitutionally impermissible. The Court
declared the Nebraska law unconstitutional because it could be interpreted
to include such a ban. See id. at 945. What the Nebraska statute could be
read to extend to, SB8 does directly, targeting and prohibiting the standard
D&E procedure. And it is no answer that SB8’s prohibition may be evaded
through the various fetal demise techniques the State advocates, for the Ne-
braska law, which only applied to procedures involving a “living unborn
child,” id. at 922, could have been avoided through the same means. The
Supreme Court specifically noted that “[s]ome physicians . . . induce fetal
demise prior to a late D & E (after 20 weeks),” id. at 925, but the possibility
was immaterial to the Supreme Court’s decision, which should dictate ours.
If the Nebraska law was unconstitutional, it necessarily follows that SB8 is as
well.
Sixteen years prior to Hellerstedt, employing the legal standard that
the en banc plurality contends June Medical restored, the Supreme Court held
that prohibiting a standard D&E imposed an undue burden on a woman’s
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constitutional right to abortion. This is precisely what SB8 does, and that
should be the end of this case. 5
3.
Nonetheless, the plurality ignores the binding Stenberg precedent that
should mandate the resolution of this case under any legal standard, and in-
stead contends that the district court committed a host of additional legal er-
rors unrelated to the Marks question. None of these assertions withstand
even a cursory examination. The plurality argues that the district court com-
mitted what it characterizes as legal errors by failing to credit a number of the
State’s valid interests in enacting SB8. The district court did not fail to do
so, but merely determined either that SB8 failed to advance those interests
or that they were not sufficient to outweigh the burdens that SB8 imposes on
access to previability abortion.
5
The plurality mischaracterizes Stenberg’s holding as resting “primarily” on the
Nebraska law’s lack of a health exception. Plurality at 25 n.18. However, the Court said
explicitly in Stenberg that the Nebraska law was unconstitutional “for at least two
independent reasons.” 530 U.S. at 930 (emphasis added). The first independent reason
was the lack of a health exception. Id. But the Court’s second independent reason was that
the law “‘impos[ed] an undue burden on a woman’s ability’ to choose a D & E abortion,
thereby unduly burdening the right to choose abortion itself.” Id. (quoting Casey, 505 U.S.
at 874). This was so, the Court explained, because D&E was “the most commonly used
method for performing previability second trimester abortions.” Id. at 945. Thus, Stenberg
is clear that if a state law unduly burdens “the most commonly used method for performing
previability second trimester abortions” than “[t]he result is an undue burden upon a
woman’s right to make an abortion decision.” Id. at 945-46. That is the precise situation
that we are presented with in evaluating SB8, because, as a factual matter, D&E remains
the most commonly used method for performing previability second trimester abortions.
The conclusion that SB8 is unconstitutional is not based on a comparison to “abortion
standards from the last century” and does not require one to “disavow” medical progress.
See Plurality at 25 n.18. Rather, this conclusion is based on a straight-forward application
of the Supreme Court’s precedential Stenberg holding to the facts of the present case. 530
U.S. at 945-46.
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The plurality claims that the district court erred by treating the State’s
interest in preserving fetal life as “only [a] marginal consideration” that has
“its primary application once the fetus is capable of living outside the
womb.” Plurality at 14; see Whole Woman’s Health, 280 F. Supp. 3d at 953.
Similarly, it faults the district court for stating that a woman’s right to a previ-
ability abortion is “absolute.” Plurality at 17-18; see Whole Woman’s Health,
280 F. Supp. 3d at 953. As a threshold matter, these offhand and isolated
statements are gleaned from the conclusion of the district court’s memoran-
dum opinion, and there is no sign that the district court materially relied upon
them in its substantive reasoning. Moreover, the district court said little
more than the Supreme Court stated in Casey, in a passage that the plurality
conveniently omits from its description of that case’s holding: “Before via-
bility, the State’s interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the woman’s effective
right to elect the procedure.” 505 U.S. at 846; see Plurality at 8. In other
words, a woman’s right to a previability abortion is absolute in the sense that
a state’s interests are never enough to justify its placing an undue burden on
her exercise of that right. Casey, 505 U.S. at 846. Thus, the district court
was correct that, prior to viability, the State’s interest in protecting fetal life
is necessarily outweighed by a woman’s right to obtain an abortion free from
any substantial obstacle imposed by state regulation. As the district court
stated, “The State’s valid interest in promoting respect for the life of the un-
born, although legitimate, is not sufficient to justify such a substantial obsta-
cle to the constitutionally protected right of a woman to terminate a preg-
nancy before fetal viability.” 280 F. Supp. 3d at 953.
The plurality also contends that the district court failed to credit sev-
eral additional interests the State asserted SB8 serves, including the physical
and psychological benefits to a woman’s health that result from inducing fetal
demise prior to evacuation, the provision of dignity in death to fetuses
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immediately prior to the second phase of the D&E procedure, the promotion
of societal and medical ethics, and ensuring women give informed consent to
abortions. Plurality at 14-17. But that the State contended that SB8 pro-
moted these interests does not mean the district court was required to find
that it was so.
As I have stated, the district court conducted an extensive hearing and
reviewed voluminous evidence to make its factual findings. The plurality
cherry picks evidence in the record stating that some women feel better
knowing that fetal demise occurred prior to the evacuation phase of a D&E,
but the district court also heard evidence of the painful, invasive, and risky
techniques that must be used to induce fetal demise. The district court ulti-
mately concluded that, on balance, “pre-evacuation fetal demise provides no
additional medical benefit to a woman undergoing a standard D & E abor-
tion.” 6 Whole Woman’s Health, 280 F. Supp. 3d at 948. As has been stated
6
The plurality chides the district court at length for relying on the decisions of
other courts considering similar laws, including the well-reasoned opinion in West Alabama
Women’s Center v. Miller, in which a district court struck down virtually identical legislation
to SB8. 299 F. Supp. 3d 1244, 1268 (M.D. Ala. 2017), aff’d sub nom. W. Alabama Women's
Ctr. v. Williamson, 900 F.3d 1310 (11th Cir. 2018). The plurality states the district court
“should have relied on the voluminous and comprehensive record before it, not other
courts’ opinions with materially different record.” Plurality at 21 n.15. But the plurality
fails to heed its own advice and extensively relies on off-hand statements in Stenberg v. Car-
hart, 530 U.S. 914, 925 (2000), and Gonzales v. Carhart, 550 U.S. 124, 136 (2007), to claim
that independently inducing fetal demise is both widely practiced and can potentially make
a D&E easier in various ways. Plurality at 24-26. Needless to say, the prevalence and rel-
ative advantages of various methods of conducting a complex modern medical procedure
are not the type of widely known and uncontroversial facts of which we may take judicial
notice, let alone from sources more than a decade-and-a-half old. See Fed. R. Evid.
201(b). Based on a wealth of scientific literature and expert testimony, the district court in
this case found that “pre-evacuation fetal demise provides no additional medical benefit to
a woman undergoing a standard D & E abortion,” Whole Woman’s Health v. Paxton, 280 F.
Supp. 3d 938, 948 (W.D. Tex. 2017), and the plurality points to no evidence in the record
of this case compelling enough to make that finding clearly erroneous.
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repeatedly, weighing conflicting evidence, judging credibility, and making
factual determinations about the effects of a medical procedure are the prov-
ince of a district court, and the evidence on this point contained in the record
is far from so one-sided as to render the district court’s determination im-
plausible.
Similarly, the district court found that, unlike any other medical regu-
lation, SB8 “requires a doctor—in contravention of the doctor’s medical
judgment and the best interest of the patient—to conduct a medical proce-
dure that delivers no benefit to the woman.” Id. at 953. It further found that,
in some cases, the techniques for inducing fetal demise advocated by the
State were experimental and without clear evidence as to their safety or effi-
cacy. Id. at 949. As will be discussed in more detail below, these findings are
supported by the record, and thus the district court committed no error in
finding that, on balance, SB8 is inconsistent with principles of medical ethics
and did not further any state interest in protecting the integrity of the profes-
sion.
The plurality also mischaracterizes the district court’s consideration
of the State’s interest in protecting the dignity of fetuses. It contends that
the district court stated that “the State’s interest ‘does not add weight to tip
the balance in the State’s favor.’” Plurality at 16. But the district court’s
memorandum opinion says just the opposite: “The evidence before the court
is graphic and distasteful. But this evidence is germane only to the State’s
interest in the dignity of fetal life and is weighed on the State’s side of the
scale.” Whole Woman’s Health, 280 F. Supp. 3d at 947. The district court
merely reasoned that “[a]n abortion always results in the death of a fetus,”
“[t]he extraction of the fetus from the womb occurs in every abortion,” and
“[d]ismemberment of the fetus is the inevitable result.” Id. Thus, the court
found that any increase in fetal dignity afforded by SB8 over the standard
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D&E procedure was marginal, and thus it was not enough to “tip the balance
in the State’s favor.” Id. The district court did not err by so finding.
Finally, the plurality’s reasoning as to how SB8 promotes informed
consent is circuitous and puzzling. As the plurality concedes, the law says
nothing regarding what information about the procedure abortion providers
are required to convey to patients. Plurality at 16. Instead, if I understand
the en banc plurality correctly, it is arguing that SB8 furthers the interest of
informed consent by bringing the D&E procedure more into line with
women’s expectations. In support of this, the plurality posits that “[w]omen
who receive live-dismemberment D&Es are not being told what is going to
happen to the fetus.” Plurality at 17.
First, this is clearly the type of factual finding that appellate courts are
ill-suited to make, and it is based on little more than the plurality’s supposi-
tion. The plurality cites various abortion-provider consent forms that were
introduced into evidence, and it seems to contend that the forms are mislead-
ing because they describe the procedure in accurate, clinical terms rather
than containing a graphic and disparaging description that condemns the pro-
cedure as barbaric. Plurality at 17. And the plurality points to no evidence in
the record regarding what further details are conveyed to patients orally and
through other materials, and the district court made findings on neither this
point nor what women generally believe occurs during an abortion prior to
receiving information on the procedure.
Moreover, it is unclear that SB8 would in fact bring the abortion pro-
cedure more in line with patients’ expectations even accepting the plurality’s
contentions. The district court found that the women whom SB8 affected
would be “in a unique position” because no other “medical context” re-
quires a doctor to perform an unnecessary procedure that the doctor believes
is contrary to the patient’s best interests. Whole Woman’s Health, 280 F.
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Supp. 3d at 953. A reasonable inference from this finding is that, even if
women do not expect fetal demise to specifically occur as a result of the evac-
uation procedure, they likewise do not expect a doctor to perform an extra
step that the doctor considers unnecessary and liable to expose the patient to
additional risk without any reciprocal medical benefit. Further, SB8 imposes
certain procedures regardless of the choice reached by a woman through dis-
cussion and consultation with her physician—hardly a situation that respects
a patient’s informed consent. Thus, the district court did not err in finding
that SB8 does not on balance promote informed consent, and therefore this
interest does not add any weight to the benefit side of the equation.
4.
The en banc plurality next misrepresents the district court’s analysis
to claim that the district court placed the burden of proof on the wrong party.
Plurality at 18. The plurality’s entire basis for this contention is that, in hold-
ing SB8 unconstitutional, the district court relied in part on the fact that a
standard D&E without the separate step of inducing fetal demise is the most
commonly used method of surgical abortion in Texas and nationally. Accord-
ing to the plurality, the district court was permitting abortion providers to
“set their own rules” and “self-legislate or self-regulate simply by making an
abortion method ‘common.’” Plurality at 18. But this totally misconstrues
the district court’s reasoning, which merely considered what proportion of
abortions would be affected by SB8 in evaluating the burden the legislation
places on a woman’s right to choose.
As the district court explicitly noted, the Supreme Court has em-
ployed this exact analysis in landmark abortion-rights cases. See Whole
Woman’s Health, 280 F. Supp. 3d at 945 (citing Stenberg, 530 U.S. at 939). In
Stenberg, the Court struck down a Nebraska abortion restriction specifically
because it could be interpreted to prohibit “the most commonly used method
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for performing previability second trimester abortions.” 530 U.S. at 945.
Similarly, in Planned Parenthood of Central Missouri v. Danforth, the Court de-
clared unconstitutional a Missouri ban on saline amniocentesis because, at
the time, it was the “most commonly used” method of abortion “nationally
by physicians after the first trimester.” 428 U.S. 52, 78 (1976); see also Gon-
zales , 550 U.S. at 153, 165 (holding that the federal “Partial-Birth Abortion
Act,” 18 U.S.C. § 1531, which banned the D&X procedure, did “not con-
struct a substantial obstacle to the abortion right,” because the D&E proce-
dure—the “most commonly used and generally accepted method” of second
trimester abortions—remained available). The district court did not err by
considering the ubiquity and general acceptance of D&E within the medical
community in determining the degree of burden SB8 imposes on women’s
constitutional right to obtain a previability abortion.
The plurality also contends that the district court committed legal er-
ror by incorrectly defining “substantial obstacle,” focusing on the district
court’s statement that the term means “no more and no less than ‘of sub-
stance.’” Plurality at 18-19; see Whole Woman’s Health, 280 F. Supp. 3d at
944. But the district court’s incidental statement was part of its larger dis-
cussion of the undue burden standard set forth in Hellerstedt. The sentences
immediately preceding the excerpt on which the plurality wrongly focuses
stated the correct standard in no uncertain terms: “Whether an obstacle is
substantial—and a burden is therefore undue—must be judged in relation to
the benefits that the law provides. Where a law’s burdens exceed its benefits,
those burdens are by definition undue, and the obstacles they embody are by
definition substantial.” Whole Woman’s Health, 280 F. Supp. 3d at 944 (cit-
ing Hellerstedt, 136 S. Ct. at 2300, 2309-10, 2312, 2318). The district court
determined that SB8 erected a substantial obstacle because any benefits from
the law were significantly outweighed by the burdens it places on the consti-
tutional right to a previability abortion, and there is no indication that the
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incidental statement the plurality disfavors affected that analysis in the least.
The plurality is thus also wrong to claim this was legal error.
B.
I now turn to the true gravamen of the plurality’s dispute with the dis-
trict court: The plurality disagrees with the district court’s reading of the ev-
idence regarding the burdens attendant to the various fetal-demise tech-
niques that the State claims can be used to evade SB8’s prohibition.
The plurality focuses on two potential fetal-demise methods, suction
aspiration and digoxin injection, 7 and concludes that the district court clearly
erred by finding that the techniques are not “safe, effective, and common-
place.” Plurality at 22. Notably, we—an appellate court that generally
should not make factual findings—seem to be the only federal court that has
ever found that safe and effective means of complying with this sort of fetal-
demise mandate exist, and at least two of our sister circuits have affirmed
district courts that found that the methods being considered here are not safe
or effective. 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 review is even more deferential where, as here, multiple
trial courts have reached the same finding, and multiple appellate courts have
affirmed those findings.”). At the risk of belaboring the point, the plurality
repeats the errors of the past and does what a majority of the Supreme Court
in June Medical, including Chief Justice Roberts, clearly told us not to do:
Substitute our view of conflicting evidence for that of the district court and
7
The State also offered potassium-chloride injections and umbilical-cord transec-
tion as possible methods of complying with SB8. Because the plurality does not rely on
these possibilities, this dissent will not examine them at length. Suffice it to say, for the
reasons found by the district court and discussed in the panel opinion, these options are
even riskier and less feasible than the procedures the plurality contends are viable here.
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displace its well-considered factual findings simply because we do not like the
outcome. See June Med. Servs., L.L.C., 140 S. Ct. at 2121, 2124-25 (plurality
opinion); id. at 2133-34, 2141 (Roberts, C.J., concurring).
As I said at the outset, there is a “fundamental flaw” in the plurality’s
description of these fetal-demise procedures as “alternatives.” EMW
Women’s Surgical Ctr. P.S.C., 960 F.3d at 798. Instead, they are, “by defini-
tion, . . . additional procedures,” and “[a]dditional procedures, by nature,
expose patients to additional risks and burdens.” Id.; see also, e.g., W. Ala.
Women’s Ctr., 900 F.3d at 1326 (noting the State’s concession that fetal de-
mise procedures “would always impose some increased health risks on
women”). This fact alone—that an abortion restriction would require a
woman to undergo a riskier procedure in order to procure an abortion—has
been sufficient in other cases for the Supreme Court to conclude that the law
was unconstitutional. See Danforth, 428 U.S. at 78-79 (invalidating an abor-
tion restriction that “force[d] a woman and her physician to terminate her
pregnancy by methods more dangerous to her health than the method out-
lawed”); Gonzales, 550 U.S. at 161 (“The prohibition in the Act would be
unconstitutional, under precedents we here assume to be controlling, if it
‘subject[ed] [women] to significant health risks.’” (alterations in original)
(quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 327
(2006))); see also Planned Parenthood of Cent. N.J. v. Verniero, 41 F. Supp. 2d
478, 500 (D.N.J. 1998) (“By relegating physicians to the performance of
more risk-laden abortion procedures, the Act imposes an undue burden on
the woman’s constitutional right to terminate her pregnancy.”), aff’d sub
nom. Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127 (3d Cir. 2000).
Moreover, even if the mere existence of increased risk without any re-
ciprocal medical benefit were not sufficient to invalidate SB8, the plurality
errs here by doing its own fact finding and second-guessing the district
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court’s assessment of the efficacy and degree of risk associated with these
two techniques. I will consider each of them in turn.
1.
The plurality first contends that inducing fetal demise through suction
aspiration is a viable method of complying with SB8. Plurality at 22-24. The
plurality acknowledges that the district court did not make any factual find-
ings on the feasibility of using suction to induce fetal demise after fifteen
weeks’ gestation. Plurality at 24. But the plurality takes it upon itself to make
the factual findings on this point that the district court did not, boldly declar-
ing that the evidence in the voluminous record is so one-sided as to permit
only one conclusion. Plurality at 37.
As a threshold matter, neither the State nor the plurality contends that
fetal demise can be induced by suction alone at or after seventeen weeks’ ges-
tation. See Plurality at 24. Texas bans most abortions outright after twenty-
two weeks, see TEX. HEALTH & SAFETY CODE § 171.044, and even under the
plurality’s overly generous view of the evidence, suction would be a feasible
method of inducing fetal demise for only two of the seven weeks during which
most Texas D&Es are performed using forceps. Less than half of the fifteen-
to-twenty-two-week abortions conducted in Texas in 2015 fell into this two-
week period, and thus even the plurality admits that using only suction aspi-
ration to induce fetal demise would not be feasible in the majority of abortions
under consideration here. Plurality at 24.
Moreover, as even one of the judges concurring in the judgment rec-
ognizes, the actual evidence that suction alone can be used safely and effec-
tively after fifteen week’s gestation is equivocal at best. The en banc plurality
makes much of the fact that several witnesses stated that they had at points
performed suction aspiration abortions after the fifteen-week point and could
perhaps do so regularly if they were forced to under penalty of law. Plurality
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at 23. But those same experts testified that it is unpredictable whether suc-
tion will in fact work at this later stage and “suction alone is often not suffi-
cient to complete the procedure.” One doctor explained that he generally
does not know prior to beginning the D&E whether forceps will be required,
and he has needed to resort to them in some instances as early as ten weeks’
gestation. Another doctor explained that using suction becomes difficult as
a practical matter around the fifteen-week point because the larger suction
cannula that is needed to perform the procedure at that stage is unwieldy,
which likely leads to an increased risk of injury to the patient undergoing the
procedure. Additionally, several doctors testified that some women’s uter-
ine anatomy may make the use of a suction cannula difficult or impossible,
exposing those women to a heightened risk of injury if the doctor is forced to
use only suction aspiration.
In sum, the record at most suggests that, if forced, doctors might be
able to employ suction aspiration alone to induce fetal demise in some cases
after the fifteen-week mark, though doing so would often be contrary to their
preferences, medical judgment, and the patients’ best interests. This evi-
dence is hardly so compelling as to allow only one possible reading regarding
the feasibility of using suction alone to induce fetal demise after fifteen
weeks’ gestation, and the plurality errs by abandoning its proper role as an
appellate court in order to make a factual finding on the matter. See Swint,
456 U.S. at 292 (“[F]actfinding is the basic responsibility of district courts,
rather than appellate courts, and . . . the Court of Appeals should not have
resolved in the first instance this factual dispute which had not been consid-
ered by the District Court.” (quoting DeMarco v. United States, 415 U.S. 449,
450 n.* (1974))).
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2.
The en banc plurality also argues that abortion providers can safely and
effectively cause in utero fetal demise prior to the evacuation phase of a
D&E—and thereby avoid criminal sanctions for violating SB8—by injecting
the chemical digoxin into the fetus or amniotic fluid.
The plurality relies heavily on the fact that some abortion providers
have a policy of using digoxin to induce fetal demise when performing later-
term abortions, typically after eighteen or twenty weeks’ gestation at the ear-
liest. Plurality at 26. In its medical wisdom, the plurality seems to say that
what is good for the goose is good for the gander; what is fit for some later-
term D&Es must be suitable for all forceps-assisted D&Es at all gestational
stages. But this point is not the coup de grâce the plurality believes.
First, the plurality greatly overstates the prevalence of the technique;
only two out of the twenty-one clinics in Texas have a policy of using digoxin
for their later-term abortions, and in 2015, the injections were employed in
less than 200 of the 3,150 Texas abortions that were performed after fifteen
weeks’ gestation. Moreover, as the plurality fully acknowledges, the abortion
providers that do use digoxin injections when performing later-term abor-
tions frequently do so in order to fully ensure compliance with 18 U.S.C.
§ 1531, the federal law that prohibits performing a D&X abortion, which is a
procedure that can be done inadvertently during a standard D&E if a
woman’s cervix dilates more than anticipated. Plurality at 32-33; see Gonza-
les, 550 U.S. at 154. The plurality posits that, “[s]urely, no reasonable abor-
tion provider would subject women to ‘significant’ health risks from digoxin
just to avoid their own federal liability,” Plurality at 33, but this underscores
precisely why SB8 would impose such a large burden on women’s abortion
access. As doctors testified to repeatedly in this case, many abortion provid-
ers do not perform these later-term abortions, and more would stop providing
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earlier term abortions if they were forced to include an additional risky, inva-
sive, painful, and medically unnecessary step in the procedure that is contrary
to their medical judgment regarding the patient’s best interest.
And digoxin injections are all those things. The method requires a
physician to insert a 3- to 4-inch surgical “spinal” needle either transabdom-
inally (through the woman’s abdomen) or transvaginally (through the vaginal
wall or the cervix). Obviously, the injection is invasive and painful, and it
often requires the patient to receive an additional numbing injection or to un-
dergo intravenous sedation. The plurality makes little effort to claim other-
wise, stating only that anesthetic is available and, according to the reassur-
ances one abortion provider gives in an effort to settle patients’ fears, the pain
will fade quickly. Plurality at 27. As should be apparent, the administering
of additional anesthetic and sedation can itself be quite painful and invasive,
and it inherently imposes additional health risks.
But the burdens imposed by digoxin injections are not limited to those
associated with the immediate discomfort of the procedure. There was mul-
titudinous evidence and expert testimony at trial that digoxin injections carry
significant health risks as compared to a D&E procedure performed without
the injections, including a heightened risk of infection, bleeding, tachycardia,
nausea, vomiting, dizziness, fainting, and even extramural delivery—the un-
expected 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 profes-
sional. One study from the record found that the risk of hospitalization is six
times greater when digoxin injections are administered than when a standard
D&E is performed without the injections. One doctor testified that he had
discontinued a policy of administering digoxin like the ones the en banc plu-
rality cites specifically because of concern over the health risks associated
with the unnecessary and nonbeneficial procedure. Digoxin injections are
also contraindicated or outright impossible to administer to patients with
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certain conditions who collectively account for a large portion of the popula-
tion, including those with heart conditions, certain fetal or uterine anatomy,
and even obesity and fibroids. The plurality dismisses these latter concerns
by stating that a D&E itself might be unsafe for women with these conditions,
citing a passage from an abortion provider’s documentation that states these
are “special conditions requiring special evaluation and management.” Plu-
rality at 27 n.19. But that special measures may need to be employed to per-
form a D&E safely on women with these conditions has no bearing on
whether this procedure—digoxin injections—can ever be safely administered
to these women. The plurality reverses the district court’s factual finding
that the use of digoxin carries “significant health risk” not simply on the basis
of conflicting evidence, which we are not supposed to do, but against the
overwhelming weight of the evidence in the record.
Digoxin, moreover, fails to actually induce fetal demise about 5-10% of
the time, with its effectiveness dependent on variables such as uterine anat-
omy and fetal positioning. The plurality hand waves away this fact—that as
many as one-in-ten digoxin injections expose a woman to a painful, invasive,
and risky technique without even accomplishing the central goal of the pro-
cedure. Plurality at 27-28. Doctors can simply try again with a second injec-
tion, the Plurality states. But the plurality fails to acknowledge that, in addi-
tion to the pain and health risks normally associated with an initial digoxin
injection, there is no documented testing regarding the efficacy and safety of
administering a second injection; in fact, every abortion provider who testi-
fied in this case stated that, because of this unknown risk, they do not employ
a second digoxin injection if the first one fails. Instead, they currently simply
proceed with a standard D&E when a digoxin injection does not induce fetal
demise, a fallback measure that SB8 criminalizes. In a sizable number of
cases, then, SB8 would require doctors to undertake a wholly experimental
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second digoxin injection that they presently deem too dangerous to adminis-
ter.
Similarly, as the district court observed, nearly every study in the rec-
ord concerning the safety and efficacy of digoxin injections included only
pregnancies at or after eighteen weeks’ gestation, with only a few studies in-
cluding cases at seventeen weeks. No study considered the efficacy, dosage,
or safety of injecting digoxin into women before seventeen weeks’ gestation.
Indeed, that no abortion providers administer digoxin prior to eighteen
weeks’ gestation is a testament to how risky and untested the procedure is at
these earlier stages, for many of the same § 1531-compliance concerns that
exist after eighteen weeks’ gestation also exist before that point. In light of
the lack of evidence regarding its safety, the district court found that requir-
ing digoxin injections before eighteen weeks of pregnancy would subject
women to an arguably experimental procedure without any counterbalancing
medical benefit.
The plurality calls these well-supported findings error, relying on
statements in Gonzales that state legislatures enjoy substantial latitude to reg-
ulate abortion where there is scientific uncertainty. Plurality at 30-32 (citing
550 U.S. at 161-62, 166-67). First, the plurality once again repeats the mis-
takes of the past. In Hellerstedt, the Supreme Court rebuked our court for
relying on these same passages from Gonzales to declare that “medical un-
certainty underlying a statute is for resolution by legislatures, not the
courts.” 136 S. Ct. at 2309 (quoting Whole Woman’s Health v. Cole, 790 F.3d
563, 587 (5th Cir. 2015)). A majority of the Supreme Court held this “artic-
ulation of the relevant standard is incorrect,” and stated clearly that courts
should not defer to legislatures or refrain from making findings based on con-
flicting scientific evidence when Constitutional rights are at issue: “The
statement that legislatures, and not courts, must resolve questions of medical
uncertainty is also inconsistent with this Court’s case law,” the Court
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explained. Id. at 2310. Such deference wrongly “equate[s] the judicial re-
view applicable to the regulation of a constitutionally protected personal lib-
erty with the less strict review applicable where, for example, economic leg-
islation is at issue.” Id. at 2309. Instead, “[c]ourt[s] retain[] an independent
constitutional duty to [make and] review factual findings where constitu-
tional rights are at stake.” 8 Id. at 2310 (quoting Gonzales, 550 U.S. at 165).
That is exactly what the district court did here, finding that the wholly un-
known risks associated with the digoxin protocols the State advocates would
be a burden to the health and well-being of women who seek abortions.
Moreover, the situation we are presented with is materially different
from Gonzales. As the plurality states, the record in Gonzales contained con-
flicting expert testimony and other evidence about the safety of D&X abor-
tions and available alternatives. Plurality at 30 (citing 550 U.S. at 161). Here,
the record contains no evidence about the safety of employing a second di-
goxin injection or administering digoxin prior to seventeen weeks’ gestation,
and a plethora of evidence stating that doctors currently refrain from doing
so because of the risks associated with performing an untested procedure.
Indeed, the only evidence the plurality can point to is one expert’s mention
of a study that the author has since publicly acknowledged contained incor-
rect information regarding the gestation age at which digoxin was used. Plu-
rality at 32 & n. 22. Aside from this information that the plurality concedes
is erroneous, the plurality offers only one expert’s comment that he knows of
doctors who have employed digoxin before eighteen weeks, which is not re-
motely probative of whether it is in fact safe and effective to do so.
8
For this same reason, the plurality and concurrence’s contentions regarding the
possibility that SB8 guards against fetal pain are misplaced. The majority of the scientific
literature and expert testimony in the record indicates that fetal pain is not possible at these
early stages of development, and the district court was well within its rights to so find.
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The plurality further faults the district court’s well-supported finding
that employing a digoxin injection generally adds a day to what is typically a
one-day procedure, again doing its own fact finding to imagine various sce-
narios where this might not be the case. Plurality at 28-29. It further states
that it was error for the district court to even consider this matter as a burden
on abortion access, citing the Supreme Court’s upholding of mandatory wait-
ing periods and other regulations that by their nature cause a delay in a
woman receiving an abortion. Plurality at 29 (citing Casey, 505 U.S. at 885-
86). But this misses the point. The delay occasioned by requiring digoxin
injections is only one of the burdens on abortion access that would result from
requiring the technique. The district court did not err by holding that, when
this delay is considered together with the increased travel and other financial
costs it leads to, and in conjunction with the painful and invasive nature of
the procedure, its significant health risks, and its lack of consistent efficacy,
the burdens add up to a substantial obstacle—particularly when viewed in
light of the total absence of medical benefit associated with the technique.
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 eighteen weeks’ gestation, and the known heightened risk
of complication in all instances, the district court found that digoxin is not a
safe and viable method of inducing fetal demise before the evacuation phase
of a D&E abortion. These findings, along with those regarding the unfeasi-
bility of other methods of inducing fetal demise, are all very well supported
by the record, and the plurality errs by substituting its own findings for those
of the district court. See Anderson, 470 U.S. at 574 (stating that, as an appel-
late court, even if we disagree with the findings below, we cannot reverse
them so long as they are based on a “permissible view[ ] of the evidence”).
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C.
Lastly, the plurality contests the district court’s large-fraction analy-
sis, variously claiming that the court “bungl[ed]” and “botched” the evalu-
ation. Plurality at 3, 33. But the plurality’s analysis is itself riddled with er-
rors and predicated on its unsupported assumptions and faulty factual find-
ings.
The Supreme Court held in Casey that an abortion regulation is fa-
cially unconstitutional if “it will operate as a substantial obstacle to a
woman’s choice to undergo an abortion” in “a large fraction of the cases in
which [it] is relevant.” 505 U.S. at 895. The Court reaffirmed and clarified
that standard in Hellerstedt, in which it held that the phrase refers to a large
fraction of “those women for whom the provision is an actual rather than an
irrelevant restriction.” 136 S. Ct. at 2320 (alterations omitted) (quoting Ca-
sey, 505 U.S. at 895). That category is narrower “than all women, pregnant
women, or even women seeking abortions[.]” Id. (internal quotation marks
omitted).
Thus, the appropriate denominator—the number of women for whom
SB8 is an actual rather than irrelevant restriction—is not “all women with
fetuses in the gestational age of 15-22 weeks” as the plurality claims. Plural-
ity at 34. For a great many of those women, SB8 is a totally “irrelevant re-
striction.” Id. The vast majority are not seeking abortions, 9 and of that small
9
The plurality seems to acknowledge that these women are unaffected by SB8,
stating in a footnote that “SB8 affects only abortions between 15 and 22 weeks[.]” Plurality
at 33 n.23 (emphasis added). The plurality also misrepresents the district court’s finding
on this matter, which was not that SB8 affected “only women with fetuses at the gestational
age of 15-20 weeks.” Plurality at 33. Rather, the district court found that “the class of
women here consists of all women in Texas who are 15 to 20 weeks pregnant and seek an
outpatient second-trimester D & E abortion.” Whole Woman’s Health, 280 F. Supp. 3d at 952
(emphasis added). At most, the district court’s formulation was slightly underinclusive in
that some D&E abortions performed prior to fifteen weeks’ and from twenty to twenty-two
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portion who are, some would undergo a procedure that would comply with
SB8 in any event, even were the law not in effect. That is because, as the
plurality relies on elsewhere in its opinion, some D&Es are currently per-
formed through suction aspiration alone after fifteen weeks’ gestation and
some D&Es are currently performed with digoxin injections after eighteen
weeks’ gestation.
Instead, the appropriate denominator is the class of women actually
affected by SB8, which is composed of only those women who would undergo
a forceps-assisted D&E in Texas without their doctors’ first inducing fetal
demise in the absence of SB8. These are the only women “for whom the
provision is an actual . . . restriction,” because these are the only women for
whom SB8 mandates a change in the procedure they would otherwise un-
dergo. Cf. Jackson Women’s Health Org, 945 F.3d at 276 (“The only women
to whom the Act is an actual restriction, then, are those who seek abortions
before 20 weeks; the Act is redundant of existing Mississippi law as to all
abortions after that point.”). The plurality errs by defining the class far more
broadly to include many women whose lives will never be the least bit im-
pacted by SB8, regardless of whether the law goes into effect.
The question, then, becomes what portion of the women who would
otherwise receive SB8-noncompliant abortions are unduly burdened by the
statute. As I have stated, under controlling precedent, this is the number of
those women for whom the burdens SB8 imposes outweigh any benefits re-
sulting from the law. Hellerstedt, 136 S. Ct. at 2300, 2309-10, 2312, 2318. In
light of the district court’s well-supported findings that the fetal demise
weeks’ gestation do not already comply with SB8 and slightly overinclusive in that some
D&E abortions performed from fifteen to twenty weeks’ gestation are already SB8 compli-
ant. But the district court’s analysis was far closer to the mark than the plurality’s, which
includes a majority of women for whom SB8 is a wholly irrelevant restriction.
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measures that these women must undergo to comply with SB8 expose the
woman to risky, painful, invasive, and untested procedures; have no medical
benefit for the patient; cause needless delay and increased financial costs; and
only marginally advance the State’s interest in protecting and providing dig-
nity to potential human life, it is clear that SB8’s burdens far outweigh its
benefits in every such case. Cf. Jackson Women’s Health Org., 945 F.3d at
276 (“Here, the Act is invalid as applied to every Mississippi woman seeking
an abortion for whom the Act is an actual restriction, never mind a large frac-
tion of them.”).
The plurality declares that the district court erred by concluding the
fraction of women for whom SB8 is both an actual restriction and an undue
burden was 1/1. Plurality at 33. But when the matter is properly framed and
the district court’s findings are given the appropriate deference, no other
conclusion is possible.
***
The plurality concludes its opinion by relisting the litany of mistakes
it wrongfully attributes to the district court, none of which in fact occurred.
Plurality at 37. And, underscoring its abdication of the role of an appellate
court, it declines to order the remedy that would be proper if the district court
had in fact misstepped in its analysis, which would be a remand for reconsid-
eration in light of our clarification of the pertinent legal principles. The plu-
rality instead renders judgment, stating that its view of the evidence is the
only possible logical conclusion. For the above reasons, the plurality is
wrong.
The tendency of our court to eschew settled legal principles when
abortion is involved has been documented and discussed elsewhere, see, e.g.,
June Medical Services, L.L.C., 905 F.3d at 834-35 (Higginbotham, J. dissent-
ing) (“[W]hen abortion shows up, application of the rules of law grows
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opaque, a phenomenon not unique to this court.” (footnote omitted)), and
there seems little need to reprise that debate now, for the matter speaks for
itself. The district court’s legal rulings were correct, and its factual findings
were not clearly erroneous. And while the plurality laments the amount of
time SB8 has been enjoined, that is time in which women in Texas were
shielded from the ill effects of a law that is clearly unconstitutional in light of
Stenberg, 530 U.S. at 938-39, and the great burdens the statute places on abor-
tion access with exceedingly few reciprocal benefits. That the shield is with-
drawn today and that women in Texas will be forced to undergo invasive and
unsafe techniques to exercise their constitutional right to an abortion—if it
does not prevent their exercising that right altogether—is a devastating blow
to their self-determination. I hope only that this opinion gives voice to a mod-
icum of their frustration, anger, and pain. Once again, I respectfully but em-
phatically dissent.
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Stephen A. Higginson, Circuit Judge, joined by Costa, Circuit
Judge, dissenting:
I write separately to make two observations.
First, given our court’s plurality opinion’s conclusion that the district
court erred because it assessed SB8 under a “balancing test,” without the
benefit of Chief Justice Roberts’ “narrower version (only burdens) of the
plurality’s test (benefits and burdens),” 1 we should do no more than remand
to the district court, confident that it will perform its role finding and
applying facts to rules of law we clarify. This leaves us in our lane, not
arrogating to ourselves the job district judges perform: above all weighing
witness testimony, especially expert witness testimony, elicited by talented,
opposing counsel during a week-long trial. Indeed, a circuit decision the
plurality cites favorably, Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020),
did just that—and we should do no more.
Second, our court’s plurality opinion’s separate conclusion that the
district court erred “under all of the Supreme Court’s precedents”—a
contention I think is wrong—should be further reason for us to stay in our
lane—i.e., error correction. 2 We should explain our distinguishing
1
This issue currently divides courts. Compare EMW Women’s Surgical Ctr., P.S.C.
v. Friedlander, 978 F.3d 418, 433 (6th Cir. 2020) (“[T]he Chief Justice’s position is the
narrowest under Marks. His concurrence therefore constitutes June Medical Services’
holding and provides the governing standard here.” (cleaned up)), with Planned Parenthood
of Ind. & Ky., Inc. v. Box, 991 F.3d 740, 748 (7th Cir.), petition for cert. filed, No. 20-1375
(Mar. 29, 2021) (“[T]he Marks rule tells us that June Medical did not overrule Whole
Woman’s Health.”).
2
I regret our court’s plurality opinion’s characterization of the district judge’s
efforts—including that our colleague “disregarded and distorted the record,” “copied and
pasted” the facts section of the court’s opinion, “failed to apprehend” the evidence before
it, and “botched” a portion of its legal analysis. We weaken what we exaggerate. See
Jean-Francois de La Harpe, Mélanie act 1, sc. 1 (1778).
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interpretation of Supreme Court doctrine and, with rules of law clarified,
return the case to the district court for it to perform its work applying facts
assessed at trial to law we have clarified. Stated otherwise, what we should
not do is what we recently were admonished not to do in June Medical Services
v. Russo, 140 S. Ct. 2103, 2121, (2020): reweigh facts and witness credibility
ourselves, here relying selectively on unspecified portions of transcripts from
a five-day bench trial where plaintiffs’ expert testimony was heard, and
credited or discredited, by a district judge present to observe witness
demeanor. 3 See generally Aransas Project v. Shaw, 774 F.3d 324, 325-26, 331
(5th Cir. 2014) (Prado, J., dissenting from denial of rehearing en banc).
Regardless of the sensitivity and consequence of any issue that comes to us,
our commitment must be to layered judicial responsibilities, where co-equal
judges in courts of original jurisdiction adjudicate facts and we do our best
not to do so but just to discern error under existing Supreme Court law.
It goes without saying that our layer of responsibility starts and finishes
with the primacy of the only Court the Framers contemplated, whose rulings
we must unerringly follow. Especially when presented with facts we dislike,
it can be tempting to arrogate to ourselves the task of constitutional revision,
fractionally stepping ahead of, or nudging, the Supreme Court. 4 The
imperative, however, is the one followed by this district judge 5 and every
3
Notably, whereas our court’s plurality opinion gives repeated assurances about
SB8’s limited impact, as well as assurances about permissible abortion alternatives, the
Texas legislature set forth no such findings, indeed, it set forth no legislative findings at all.
4
Cf. Ruth Bader Ginsburg, Four Louisiana Giants in the Law, 48 Loy. L. Rev.
253, 264 (2002) (applauding Judge Rubin’s vision and confidence that “courts need not
follow . . . outgrown dogma,” yet acknowledging that only the Supreme Court may revise
its interpretation of the Constitution).
5
Cf. Alvin B. Rubin, Views from the Lower Court, 23 UCLA L. Rev. 448, 452
(1976) (“[A]n understandable desire to decide today’s case in accordance with the
proclivities of the panel now sitting seems to lead to opinions that fail to accord to prior
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court to have considered legislation like SB8. 6 He, they, and we are bound
by existing Supreme Court law. Our court’s plurality opinion goes to pains
to perceive nuance in Supreme Court precedent twice confirming that bans
like SB8 are invalid, 7 as well as to subordinate to one final footnote
acknowledgment of contrary circuit law. Suffice it to say, I agree with the
consensus of courts that apply Supreme Court law to invalidate similar bans,
leaving several judges on those courts free to regret the state of that law. 8
Indeed, Justices themselves confirm and apply, as to this issue, that law even
as they critique it 9—and we cannot do more.
decisions the willing acceptance and wholehearted enforcement that trial judges are
expected to accord appellate decisions.”).
6
EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 793 (6th Cir.
2020) (affirming injunction and noting that “in every challenge brought to date [as to ten
states’ similar laws], the court has enjoined the law, finding that it indeed unduly
burdens”); W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1327 (11th Cir. 2018)
(affirming injunction, also noting that “every court to consider the issue has ruled that laws
banning dismemberment abortions are invalid and that fetal demise methods are not a
suitable workaround”), cert. denied sub nom. Harris v. W. Ala. Women’s Ctr., 139 S. Ct. 2606(2019).
7
See Gonzales v. Carhart, 550 U.S. 124, 147, 150 (2007); Stenberg v. Carhart, 530
U.S. 914 (2000).
8
E.g., W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1314 (11th Cir. 2018),
cert. denied sub nom. Harris v. W. Ala. Women’s Ctr., 139 S. Ct. 2606 (2019) (Carnes, C.J.,
writing for the majority) (“Some Supreme Court Justices have been of the view that there
is constitutional law and then there is the aberration of constitutional law relating to
abortion. If so, what we must apply here is the aberration.”); id. at 1329-30 (“In our judicial
system, there is only one Supreme Court, and we are not it. . . . The primary factfinder is
the district court, and we are not it. Our role is to apply the law the Supreme Court has laid
down to the facts the district court found.”); id. at 1330 (Dubina, J., concurring) (“I am not
on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all
of the Supreme Court’s precedents, whether I agree with them or not.”).
9
Harris v. W. Ala. Women’s Ctr., 139 S. Ct. 2606, 2607 (2019) (Thomas, J.,
concurring in certiorari denial as to the Eleventh Circuit’s adherence to Stenberg and the
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undue burden test to invalidate similar legislation while still offering sharp critique: “[W]e
cannot continue blinking the reality of what this Court has wrought.”).
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