Whole Woman's Health v. David Lakey
790 F.3d 563
5th Cir.2015Background
- Texas enacted H.B. 2 in 2013 imposing (a) a physician hospital-admitting-privileges requirement (within 30 miles) and (b) a requirement that abortion facilities meet ambulatory surgical center (ASC) standards; plaintiffs are Texas abortion providers challenging both provisions.
- District court enjoined both provisions "as applied to all women seeking a previability abortion" and as-applied to McAllen and El Paso facilities; also enjoined ASC requirement for medication abortion.
- This appeal raises: facial and as-applied challenges to the admitting-privileges and ASC requirements; defendants (State) appeal injunction scope; plaintiffs cross-appeal dismissal of equal-protection and unlawful-delegation claims.
- Record included stipulations that only a small number of ASCs in major Texas cities would remain able to provide abortions, expert testimony about increased travel distances for many Texas women, and evidence that some physicians were denied admitting privileges or clinics could not meet ASC physical-plant requirements.
- The Fifth Circuit: affirmed dismissal of equal-protection and unlawful-delegation claims; vacated the district court’s facial injunction of the admitting-privileges requirement and facial injunction of the ASC requirement; affirmed/modifed as-applied relief for McAllen; reversed as-applied relief for El Paso; rejected broad balancing of medical benefits vs. burdens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial challenge to admitting-privileges requirement | The requirement places a substantial obstacle statewide and should be enjoined facially | Abbott II already rejected facial relief; district court exceeded scope; res judicata and mandate issues | Vacated district court’s facial injunction; facial challenge barred by prior decision/mandate principles |
| Facial challenge to ASC requirement | ASC standard is not medically necessary, will close many clinics and impose undue burden statewide | ASC requirement is rationally related to legitimate health/safety interest; plaintiffs could have raised in Abbott II; not an undue burden on a large fraction | Reversed facial injunction; res judicata bars separate facial attack and, on the merits, plaintiffs failed to show undue burden on a large fraction |
| As-applied challenge — McAllen facility | Combined admitting-privileges and ASC physical requirements make access effectively impossible for Rio Grande Valley women (long travel, closures) | State: travel to other Texas ASCs remains possible; costs/feasibility of compliance | Affirmed in part and modified: injunction maintained as to ASC physical-plant (§§135.51–.56) and fire-prevention (§135.41) standards for Whole Woman’s McAllen clinic and as to admitting-privileges for Dr. Lynn, limited until closer facility reopens |
| As-applied challenge — El Paso facility | Closure and inability to obtain privileges burden El Paso women | Many El Paso women already used nearby New Mexico clinic; cross-border metropolitan reality defeats argument that Texas must alone provide proximate access | Reversed: district court erred; as-applied injunction for El Paso vacated (access via Santa Teresa, NM considered legitimate) |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (recognition of constitutional right to previability abortion and state interests in maternal health)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (adopted undue-burden standard for previability abortion regulation)
- Gonzales v. Carhart, 550 U.S. 124 (legislative deference where medical uncertainty exists; facial-challenge standards in abortion context)
- Doe v. Bolton, 410 U.S. 179 (invalidating overly broad hospital-only requirement for abortion)
- Simopoulos v. Virginia, 462 U.S. 506 (upholding outpatient-surgical-hospital requirement where standards fit medical objectives)
- Stenberg v. Carhart, 530 U.S. 914 (facial invalidation of partial-birth abortion statute for lack of health exception and overbreadth)
- Mazurek v. Armstrong, 520 U.S. 968 (per curiam; rejected inference of improper purpose from lack of medical evidence)
- Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir.) (Abbott II) (framework for analyzing H.B.2; rejected facial admitting-privileges challenge; scope of judicial review)
- Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) (discussion about relying on out-of-state clinics when in-state access is effectively eliminated)