Whole Woman's Health v. Lakey
46 F. Supp. 3d 673
W.D. Tex.2014Background
- Plaintiffs (abortion providers and doctors) sued Texas state officials challenging two provisions of House Bill 2: (1) an admitting-privileges requirement for physicians and (2) a requirement that abortion facilities meet ambulatory surgical center (ASC) standards by Sept. 1, 2014.
- The court had previously enjoined the admitting-privileges requirement in an earlier decision; the Fifth Circuit ultimately upheld it on its face in Abbott II. Plaintiffs here brought as-applied and facial challenges to the two provisions, and also challenged the ASC rule as applied to medication abortions.
- Trial evidence and stipulations showed clinic closures after the admitting-privileges rule and that, if the ASC requirement took effect, only about 7–8 providers would remain statewide (concentrated in a few metropolitan corridors), dramatically increasing travel distances for many Texas women.
- The ASC rules impose extensive construction, staffing, and design standards (no grandfathering or waivers for existing abortion clinics); compliance costs were estimated in the millions and would likely force many clinics to close; the ASC rule applies even to medication abortion.
- The court found abortion in Texas already very safe under the prior regulatory scheme and concluded the ASC standards have only a tenuous relation to patient safety in the abortion context; combined with practical burdens (travel, childcare, time off work, poverty, immigration issues), the requirements create substantial obstacles for many women, especially in the Rio Grande Valley and El Paso.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ASC requirement is constitutional (facial) | ASC rule places an undue burden statewide by forcing clinic closures and increasing travel and ancillary burdens | ASC rule advances women's health and safety; rational basis satisfied; severability preserves valid applications | ASC requirement is unconstitutional as applied to most clinics and facially imposes an undue burden statewide (with narrow severability exceptions for existing ASCs and new providers) |
| Whether ASC requirement is unconstitutional as applied to medication abortion | Applying ASC standards to medication abortion is medically unnecessary and imposes an undue burden | State asserts uniform standards necessary for health/safety | ASC requirement unconstitutional as applied to medication abortion |
| Whether admitting-privileges requirement is unconstitutional as applied to McAllen and El Paso clinics | Requirement prevents local physicians from obtaining privileges, causing clinic closures and undue burden for women in those regions | Fifth Circuit upheld admitting-privileges requirement on its face; it advances continuity of care and credentialing | Admitting-privileges requirement unconstitutional as applied to McAllen and El Paso clinics when combined with ASC requirement; enjoined as applied there |
| Whether the two provisions together create an undue burden statewide | Combined effect is to close nearly all clinics and create a substantial obstacle to previability abortion across Texas | State invoked severability clause and interstate options (e.g., New Mexico) and argued travel increases alone are not dispositive | The two provisions together create an impermissible obstacle and are enjoined to the extent they operate collectively to restrict access statewide |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (establishes right to previability abortion)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (undue-burden standard for abortion regulations)
- Gonzales v. Carhart, 550 U.S. 124 (rational-basis review where regulation serves legitimate state interest and imposes no undue burden)
- Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir.) (Fifth Circuit decision upholding admitting-privileges requirement on its face)
- Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir.) (relevant Fifth Circuit discussion of burdens and travel distance)
- Stenberg v. Carhart, 530 U.S. 914 (plurality/concurring discussion on erosion of abortion rights and assessing burdens)