Case Information
*1 Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
Plaintiffs, Texas abortion providers, sued State of Texas officials (“the
State”) seeking declaratory and injunctive relief against the enforcement of
recent amendments to Texas’s law regulating abortions.
See
2013 Texas House
Bill No. 2 (“H.B. 2”).
[2]
Plaintiffs challenge H.B. 2’s physician admitting
privileges requirement as applied to a McAllen and an El Paso abortion facility.
Plaintiffs also challenge H.B. 2’s requirement that abortion facilities satisfy
the standards set for ambulatory surgical centers facially and as applied to the
McAllen and El Paso abortion facilities. The district court enjoined
enforcement of both requirements “
as applied to all women seeking a
previability abortion
,” and as applied to the McAllen and El Paso abortion
facilities.
Whole Woman’s Health v. Lakey
,
After carefully considering the record in light of the parties’ extensive written and oral arguments, we AFFIRM the district court’s dismissal of the Plaintiffs’ equal-protection and unlawful-delegation claims, AFFIRM in part and MODIFY in part the district court’s injunction of the admitting privileges and ASC requirements as applied to McAllen, VACATE the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” and REVERSE the district court’s facial injunction of the ASC requirement, injunction of the ASC requirement in the context of medication abortion, and injunction of the admitting privileges and ASC requirements as applied to El Paso.
In plain terms, H.B. 2 and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court’s injunction of the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, Texas, and to uphold the district court’s injunction of the admitting privileges requirement as applied to Dr. Lynn when he is working at the McAllen facility.
I. Jurisprudential Background
So that our decision may benefit from a full understanding of the pertinent historical and jurisprudential context, we begin by reviewing the regulation of abortion and related Supreme Court cases.
A. Roe v. Wade
The Supreme Court’s modern abortion jurisprudence began in 1973 with
the landmark case
Roe v. Wade
,
Reviewing Texas’s statute against a backdrop of varying state regulations of abortion, Roe assessed the states’ interests in regulating abortion, acknowledging a legitimate interest in women’s health:
The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.
Id. at 150. The Court likewise credited an interest in protecting potential life: “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.” Id.
Most significantly, however, the Court recognized a constitutional right of privacy “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id. at 153. While “[t]he Constitution does not explicitly mention any right of privacy,” id. at 152, the Court relied on its cases recognizing a right of personal privacy in other contexts, which it found to be rooted in the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action,” id . at 153.
Considering these competing concepts, the Court “conclude[d] that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” Id. at 154. It thus fashioned a constitutional framework that conditioned the states’ ability to regulate abortion on a fetus’s viability. It held that states may not proscribe abortion prior to viability—the point at which “the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Id. at 163. After viability, generally at the end of the second trimester, states could proscribe or regulate abortion except when an abortion was necessary to preserve the life or health of the mother. Id. at 163–64. The Court drew this line because it believed the interest in potential life to be compelling only after viability. See id. at 163.
The Court drew a second line at the end of the first trimester of pregnancy. During the first trimester, states were precluded from interfering with a woman’s choice to obtain an abortion. Id. From the beginning of the second trimester onward, Roe held that “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Id. “Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.” Id. The Court drew this line because it believed the interest in the health of the mother became compelling only after the first trimester. See id. (crediting evidence “that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth”). Measured against Roe ’s framework, Texas’s law proscribing abortion at all stages of pregnancy was held unconstitutional. Id. at 166. B. The Supreme Court’s Review of Abortion Regulations Following Roe
In the approximately twenty-year period following
Roe
, it became a
regular practice of the Supreme Court to consider the constitutionality of state
abortion regulations.
Roe
was explicitly reaffirmed twice during this period,
see Thornburgh v. Am. Coll. of Obstetricians & Gynecologists
,
Relevant here, the Supreme Court addressed various state laws
regulating the facilities in which abortions are performed.
[6]
In
Doe v. Bolton
,
In
Akron I
,
relates to the preservation and protection of maternal health” and does not “depart from accepted medical practice.” Id. at 430–31 (internal quotation marks omitted). The Court applied these principles to invalidate a city ordinance that only allowed abortions in facilities that were part of a full- service hospital. See id. at 432–33. The Court held the ordinance “place[d] a significant obstacle in the path of women seeking an abortion” in the form of higher costs to obtain an abortion, increased travel distances, and additional health risks due to increased travel. Id. at 434–35. Further, the Court found the health justification for the requirement undercut by “present medical knowledge” that abortions during the second trimester could safely be performed in a physician’s office. Id. at 437.
In contrast, in
Simopoulos v. Virginia
,
The requirements at issue [in Akron I ] mandated that all second- trimester abortions must be performed in general, acute-care facilities. In contrast, the Virginia statutes and regulations do not require that second-trimester abortions be performed exclusively in full-service hospitals. Under Virginia’s hospitalization requirement, outpatient surgical hospitals may qualify for licensing as “hospitals” in which second-trimester abortions lawfully may be performed.
Id. at 516 (citation and internal quotation marks omitted). Virginia’s law required outpatient surgical hospitals to meet standards in the following categories: (1) “organization, management, policies, procedures, and staffing”; (2) “construction standards,” including for “public areas, clinical areas, laboratory and radiology services, and general building”; and (3) “patient care services,” including anesthesia, laboratory, pathology, sanitation, laundry, physical plant, medical records, emergency services, and evacuation planning. Id. at 515–16 (internal quotation marks omitted).
The Court held that Virginia’s outpatient-surgical-hospital requirement was “not an unreasonable means of furthering the State’s compelling interest in protecting the woman’s own health and safety.” Id. at 519 (citation and internal quotation marks omitted). The Court explained that, “[i]n view of its interest in protecting the health of its citizens, the State necessarily has considerable discretion in determining standards for the licensing of medical facilities.” Id. at 516. Unlike in Akron I , the Court concluded “[o]n their face, the Virginia regulations appear to be generally compatible with accepted medical standards governing outpatient second-trimester abortions.” Id. at 517. The Court also saw “no reason to doubt that an adequately equipped clinic could, upon proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions.” Id. at 518–19. C. Planned Parenthood of Southeastern Pennsylvania v. Casey
Nineteen years after
Roe
, in
Planned Parenthood of Southeastern
Pennsylvania v. Casey
,
The Court first reaffirmed
Roe
’s “essential holding” that before viability
a woman has a constitutional right to choose to terminate her pregnancy.
See
Accordingly, the Court held that a law, to infringe the right recognized in Roe , must do more than simply make the right more difficult to exercise. It must impose an undue burden on the exercise of that right:
Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The 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. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by 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. The Court also indicated that if a law does not impose an undue burden on a woman’s right to choose an abortion, the law is constitutional so long as it is reasonably related to, or designed to further, a legitimate state interest:
Unless it [imposes an undue burden] on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
Id. at 878 (emphasis added). Stated more simply, Casey held that a law regulating previability abortion is constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest. See id.
Overruling precedent, the Court applied this test to uphold the state’s
requirement that a physician provide the woman information on the risks of
abortion, the gestational age of the child, alternatives to abortion, and
available assistance if the woman chose to proceed to natural birth.
See id.
at
881–83 (overruling
Akron I
,
The Court separately upheld a 24-hour waiting period requirement. It
found it reasonable to conclude that “important decisions will be more informed
and deliberate if they follow some period of reflection,” and held 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.”
Id.
at 885 (overruling
Akron I
,
The Supreme Court also facially invalidated Pennsylvania’s requirement that, prior to obtaining an abortion, a married woman state that she notified her spouse that she planned to obtain an abortion. See id. at 887–98. In light of the domestic abuse that might result from some women notifying their spouses, the Court held that the requirement had the effect of placing a substantial obstacle in the path of a woman’s choice to obtain an abortion:
The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
Id. at 893–94. Pennsylvania argued that, even given this conclusion, the statute should not be facially invalidated because only 20% of women who obtained an abortion were married and 95% of those women voluntarily notified their spouses, resulting in the requirement affecting less than 1% of women seeking an abortion in Pennsylvania. See id. at 894. The Court rejected this argument and facially invalidated the requirement because “in a large fraction of the cases in which [it] is relevant, it [would] operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Id. at 895.
D. Application of Casey
Since
Casey
, the Court has applied the undue burden test three times.
In
Mazurek v. Armstrong
,
Respondents claim in this Court that the Montana law must have had an invalid purpose because all health evidence contradicts the claim that there is any health basis for the law. . . . But this line of argument is squarely foreclosed by Casey itself. In the course of upholding the physician-only requirement at issue in that case, we emphasized that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others .”
Id.
at 973 (alteration in original) (quoting
Casey
,
The two other post- Casey cases dealt with prohibitions on what has been termed partial-birth abortion, and the cases resulted in divergent conclusions. Stenberg v. Carhart involved a Nebraska law making it a felony to perform a partial-birth abortion unless necessary to save the life of the mother. 530 U.S. 914, 921–22 (2000). The Supreme Court held that the law was facially unconstitutional for two reasons. First, the Court found impermissible the lack of a health exception to allow for the partial-birth abortion procedure if necessary to preserve the life or health of the mother (as opposed to an exception solely to save the life of the mother, which the statute did contain). Id. at 930. Although Nebraska argued that a health exception was unnecessary because other abortion procedures could be safely used, the Court found this argument contradicted by evidence presented in the district court. Id. at 931–37. The Court explained that division of medical opinion on the subject favored a health exception. Id. at 937. Second, the Court held the law unconstitutional because it had the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” by encompassing within its statutory definition not only partial-birth abortion, but also the abortion procedure most commonly used during the second trimester of pregnancy—dilation and evacuation (“D&E”). Id. at 938 (citation and internal quotation marks omitted).
Gonzales v. Carhart
, 550 U.S. 124 (2007), upheld as facially
constitutional the Partial-Birth Abortion Ban Act of 2003 (“the Act”), 18 U.S.C.
§ 1531, which Congress drafted in response to
Stenberg
.
See
The Supreme Court applied
Casey
’s undue burden test, “assum[ing its]
principles for the purpose of th[e] opinion.”
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.
Id. at 158.
The Court then applied Casey ’s “effect” prong, asking whether the Act had the effect of imposing an undue burden by barring partial-birth abortion while not including a health exception. See id. at 161–67. The Court explained that “the Act would be unconstitutional, under precedents we here assume to be controlling, if it subject[ed] [women] to significant health risks.” Id. at 161 (alteration in original) (internal quotation marks omitted). However, the Court noted “documented medical disagreement whether the Act’s prohibition would ever impose significant health risks,” id. at 162, and held that this medical uncertainty foreclosed facially invalidating the act based on an undue burden:
The question becomes whether the Act can stand when this medical uncertainty persists. The Court’s precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.
. . . Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. . . .
Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.
Id. at 163–64 (citations omitted).
Accordingly, having concluded that the Act did not have the purpose or effect of imposing an undue burden on a woman’s right to choose an abortion in a large fraction of relevant cases, [11] the Court upheld the Act against facial challenge. Id. at 167–68.
E. This Court’s Decision in Abbott II
With this history in mind, in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott ( Abbott II )—an earlier case in which we addressed the constitutionality of the admitting privileges requirement in H.B. 2—we summarized those standards that are also applicable to this case:
A trio of widely-known Supreme Court decisions provides the framework for ruling on the constitutionality of H.B. 2. In Roe v. Wade , the Court held that the Fourteenth Amendment’s concept of personal liberty encompasses a woman’s right to end a pregnancy by abortion. Roe v. Wade ,410 U.S. 113 , 153 (1973). In Casey , the Court reaffirmed what it regarded as Roe ’s “essential holding,” the right to abort before viability, the point at which the unborn life can survive outside of the womb. Casey , 505 U.S. at 870, 878. Before viability, the State may not impose an “undue burden,” defined as any regulation that has the purpose or effect of creating a “substantial obstacle” to a woman’s choice. Id. at 874, . In Gonzales , the Court added that abortion restrictions must also pass rational basis review. Gonzales ,550 U.S. at 158 (holding that the State may ban certain abortion procedures and substitute others provided that “it has a rational basis to act, and it does not impose an undue burden” (emphasis added)).
II. Factual and Procedural Background of this Case Having set the stage, we now turn to the matters at issue in this case.
In 2013, the State of Texas passed H.B. 2, which contained various provisions
relating to abortions. H.B. 2 has four primary provisions, of which the
Plaintiffs challenge two. The first challenged provision requires a physician
performing an abortion to have admitting privileges at a hospital within thirty
miles of the location where the abortion is performed (the “admitting privileges
requirement”).
See
T EX . H EALTH & S AFETY C ODE A NN . § 171.0031(a)(1) (West
Supp. 2014). We addressed an earlier facial challenge to this provision in
Abbott II
,
Adopted in December 2013, the regulations implementing the ASC requirement mandate that abortion facilities satisfy the standards applicable to ASCs in addition to any standards specifically applicable to abortion facilities. See 25 T EX . A DMIN . C ODE § 139.40; 38 Tex. Reg. 9577 (Dec. 27, 2013). The regulatory standards for ASCs fall into three categories: (1) operating requirements, including requirements for records systems, patient rights, quality assurance, staffing, and cleanliness, 25 T EX . A DMIN . C ODE §§ 135.4– .17, 135.26–.27; (2) fire prevention and general safety requirements, id. §§ 135.41–.43; and (3) physical plant requirements, which include location, physical construction, electrical, plumbing, and HVAC requirements, id. §§ 135.51–.56.
Shortly after H.B. 2 was passed, some of the same parties named in this
case sued the State of Texas seeking to invalidate certain provisions of H.B. 2,
specifically, the admitting privileges requirement and the provision requiring
compliance with the FDA protocol for what is known as “medication abortions”
(the use of drugs to induce an abortion rather than performing a surgical
procedure) (the “medication abortion provision”). In that case, the district
court granted relief to the plaintiffs in part,
see Planned Parenthood of Greater
Tex. Surgical Health Servs. v. Abbott
, 951 F. Supp. 2d 891, 909 (W.D. Tex.
2013), and we first granted a stay,
see Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott
(
Abbott I
),
Instead, they waited until April of 2014, one week after the adverse decision in Abbott II , to file this lawsuit challenging Texas’s requirement that abortion facilities satisfy the standards set for ASCs. Together with a facial challenge to the ASC requirement, they also challenged the admitting privileges requirement and the ASC requirement as applied to Whole Woman’s Health’s abortion facility in McAllen and Reproductive Services’ abortion facility in El Paso. In addition, the Plaintiffs challenged H.B. 2 on several other grounds, including that it denies equal protection, unlawfully delegates lawmaking authority, and constitutes arbitrary and unreasonable state action. Before trial, the district court granted the State’s motion to dismiss claims based on these other grounds.
After a four-day bench trial employing a highly-abbreviated format for
the presentation of evidence, the district court enjoined enforcement of the
admitting privileges requirement and ASC requirement “
as applied to all
women seeking a previability abortion
,” and as applied to the McAllen and El
Paso abortion facilities.
Lakey
,
At trial, the parties stipulated to the following facts. Seven ASCs in five major Texas cities (Austin, Dallas, Fort Worth, Houston, and San Antonio) were licensed to perform abortions and would be able to continue providing abortions after the ASC requirement went into effect. No other facility in Texas licensed to perform abortions satisfied the ASC requirement, and, thus, these other facilities would be prohibited from performing abortions after the ASC requirement went into effect on September 1, 2014. The parties further stipulated that Planned Parenthood of South Texas planned to open an ASC in San Antonio in September 2014. The district court accepted these stipulated facts, stating that the ASC requirement would “reduce the number of licensed abortion-providing facilities to, at most, eight.” Id. at 681. [15] The district court also found that Texas had over forty abortion clinics prior to H.B. 2, but the district court did not discuss whether some of these clinics may have closed for reasons unrelated to H.B. 2. [16] See id. Both parties offered expert testimony at trial as to the increased travel distances that women would face to obtain an abortion due to H.B. 2. The district court credited the testimony of the Plaintiffs’ expert, Dr. Grossman, and found that, due to H.B. 2, “a significant number of the reproductive-age female population of Texas will need to travel considerably [farther] in order to” obtain an abortion. Id. at 681–82.
Regarding the ASC requirement, the Plaintiffs offered expert testimony that “abortions can be safely performed in office-based settings, such as doctors’ offices and specialized clinics,” and that “there is no medical basis for requiring facilities in which abortions are performed to meet ASC standards.” [17] Despite H.B. 2’s severability clause and the fact that many of the ASC standards seem benign and inexpensive, see, e.g. , 25 T EX . A DMIN . C ODE § 135.52(e)(1)(F) (“A liquid or foam soap dispenser shall be located at each hand washing facility.”), Plaintiffs conceded at oral argument that they made no effort to narrow their challenge to any particular standards of the ASC provision of H.B. 2 or its accompanying regulations. Instead, they ask us to invalidate the entire ASC requirement.
In opposition, the State offered expert testimony that the sterile environment of an ASC was medically beneficial because surgical abortion involves invasive entry into the uterus, which is sterile. Accordingly, the State’s expert opined that abortion procedures should “be performed in an ASC where the higher standard of care is required so as to better protect the patient’s health and safety.” [18]
Like the Plaintiffs, the district court made no effort to write narrowly, finding that the entirety of the ASC requirement was not medically necessary and that its burdens outweighed any benefits, including that: (1) “women will not obtain better care or experience more frequent positive outcomes at an [ASC] as compared to a previously licensed facility”; (2) “it is unlikely that the stated goal of the requirement—improving women’s health—will actually come to pass”; and (3) “the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them.” Lakey , 46 F. Supp. 3d at 684.
Regarding the as-applied challenge to the admitting privileges requirement, the State offered expert testimony that this requirement leads to greater continuity of care and “assures peer-review of abortion providers by requiring them to be credentialed and hold admitting privileges at a local hospital, thereby protecting patients from less than qualified providers.” Conversely, the Plaintiffs offered testimony that abortion physicians were being denied admitting privileges, not because of their level of competence, but for various other reasons, including: outright denial of admitting privileges with no explanation other than that it “was not based on clinical competence,” such as dilation and curettage, are traditionally performed in an ASC or hospital settings for that reason. The State’s expert further explained that ASC requirements as to accountability and monitoring mechanisms ensure patient safety and that other requirements regarding follow up and continuity of care result in patients receiving a higher quality of care. The State’s expert opined that the physician performing the abortion “is the most knowledgeable about the procedure and the patient,” whereas an emergency room “physician has no prior relationship with the abortion patient and is unfamiliar with her medical history and personal preferences.” Thus, it was the State’s expert’s opinion that the admitting privileges requirement would lead to greater continuity of care, increased quality of care, and fewer risks from complications. See also Abbott II , 748 F.3d at 595 (“Requiring abortion providers to have admitting privileges would also promote the continuity of care in all cases, reducing the risk of injury caused by miscommunication and misdiagnosis when a patient is transferred from one health care provider to another.”).
and having not completed a medical residency even though the bylaws of the hospital did not require such. As with the ASC requirement, the district court ultimately found the admitting privileges requirement was not medically justifiable and that the burdens it imposed were not outweighed by any potential health benefits. See id. at 684–85.
The State appeals the entry of declaratory and injunctive relief.
Plaintiffs cross-appeal the dismissal of their equal-protection and unlawful-
delegation claims and the district court’s failure to hold the ASC requirement
unconstitutional as applied to future abortion providers. As part of its appeal,
the State sought a stay of the district court’s order pending resolution of the
appeal, and a motions panel of this court stayed in part the district court’s
injunction.
See Whole Woman’s Health v. Lakey
,
III. Standard of Review
We review the district court’s factual findings for clear error, its legal
conclusions
de novo
, and its ultimate decision to enjoin enforcement of H.B. 2
for abuse of discretion.
See Abbott II
,
IV. Admitting Privileges Requirement – Facial Challenge
By facially invalidating the admitting privileges requirement, the
district court granted more relief than anyone requested or briefed.
See Lakey
,
mandate of
Abbott II
,
V. ASC Requirement – Facial Challenge
A. Res Judicata
The State of Texas argues that these Plaintiffs previously challenged
H.B. 2 in
Abbott II
without addressing the ASC requirement and, therefore,
res judicata bars the current facial challenge.
[22]
For their part, the Plaintiffs
argue that they could not have brought a challenge sooner because they did
not know how the statute would be implemented until the implementing
regulations went into effect. The district court agreed with Plaintiffs and
rejected the State’s res judicata defense at the motion to dismiss stage. It also
concluded that challenges to the admitting privileges requirement and the ASC
requirement represent different claims and causes of action. We reverse.
Res judicata bars any claims for which: (1) the parties are identical to or
in privity with the parties in a previous lawsuit; (2) the previous lawsuit has
concluded with a final judgment on the merits; (3) the final judgment was
rendered by a court of competent jurisdiction; and (4) the same claim or cause
of action was involved in both lawsuits.
Petro-Hunt, L.L.C. v. United States
,
Contrary to the district court’s conclusion, the present facial challenge to the ASC requirement and the prior facial challenge to the admitting privileges requirement in Abbott II arise from the same “transaction[] or series of connected transactions.” Petro-Hunt , 365 F.3d at 395–96 (quoting R ESTATEMENT (S ECOND ) OF J UDGMENTS § 24(1) (1982)). The challenges involve the same parties and abortion facilities; the challenges are governed by the same legal standards; the provisions at issue were enacted at the same time as part of the same act; the provisions were motivated by a common purpose; the provisions are administered by the same state officials; and the challenges form a convenient trial unit because they rely on a common nucleus of operative facts. See id. at 396 (describing the relevant considerations for the fourth prong of the res judicata analysis).
The Plaintiffs’ assertion that they could not have previously challenged
the ASC requirement because they did not know how it would be implemented
until the regulations were set forth is disingenuous, particularly in this
litigation. As Plaintiffs admitted at oral argument, they challenge H.B. 2
broadly, with no effort whatsoever to parse out specific aspects of the ASC
requirement that they find onerous or otherwise infirm. H.B. 2 very clearly
required facilities that perform abortions to meet the existing requirements for
ASCs, which were spelled out well before the effective date of this provision
and, more importantly, well before the date of the
Abbott II
lawsuit: “On and
after September 1, 2014,
the minimum standards for an abortion facility must
be equivalent to the minimum standards adopted under Section 243.010 for
ambulatory surgical centers
.” T EX . H EALTH & S AFETY C ODE A NN . § 245.010(a)
(emphasis added). The law does not allow several bites at the same apple, even
if from a different quadrant of the apple.
See Southmark Corp. v. Coopers &
Lybrand
(
In re Southmark
)
,
Although rather obliquely presented, Plaintiffs may be arguing that the
challenge to the ASC requirement would not have been ripe at the time
Abbott
II
was filed in the district court. “[T]he ripeness inquiry focuses on whether an
injury that has not yet occurred is sufficiently likely to happen to justify
judicial intervention.”
Pearson v. Holder
, 624 F.3d 682, 684 (5th Cir. 2010)
(alteration in original) (internal quotation marks omitted). “To determine if a
case is ripe for adjudication, a court must evaluate (1) the fitness of the issues
for judicial decision, and (2) the hardship to the parties of withholding court
consideration. The fitness and hardship prongs must be balanced . . . .”
Texas
v. United States
, 497 F.3d 491, 498 (5th Cir. 2007) (citing
Abbott Labs. v.
Gardner
,
Resolution of whether the ASC requirement is facially unconstitutional
did not need to await promulgation of regulations that simply carried out the
unambiguous mandate of H.B. 2.
Cf. Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n
,
In addition to the fitness prong, the hardship-to-the-parties analysis
supports the conclusion that this issue should have been resolved at the time
of
Abbott II
. It would have been in the interest of the non-ASC abortion
facilities to know at the earliest possible time whether H.B. 2 was
unconstitutional or whether they were required to begin making modifications
or buying or renting space to comply with the ASC requirement.
See Pac. Gas
& Elec. Co
,
B. Merits
Even if our conclusion as to res judicata is incorrect, the facial challenge to the ASC requirement fails on the merits as well. Thus, for the purpose of completeness, we address the facial challenge, assuming arguendo that res judicata does not bar the challenge.
1. Rational Basis
The stated purpose of H.B. 2 was to raise the standard and quality of
care for women seeking abortions and to protect the health and welfare of
women seeking abortions.
See
Senate Comm. on Health & Human Servs., Bill
Analysis, Tex. H.B. 2, 83d Leg., 2d C.S. 1, 2 (2013). Relying on
Abbott II
, the
district court concluded that both the admitting privileges and ASC
requirements were rationally related to a legitimate state interest. We agree:
Abbott II
held that the admitting privileges requirement is supported by a
rational basis,
2. Purpose Prong
Texas’s stated purpose for enacting H.B. 2 was to provide the highest
quality of care to women seeking abortions and to protect the health and
welfare of women seeking abortions.
[26]
There is no question that this is a
legitimate purpose that supports regulating physicians and the facilities in
which they perform abortions.
[27]
The district court found that this was not the
real purpose of the law and instead concluded “that the ambulatory-surgical-
center requirement was intended to close existing licensed abortion clinics.”
Lakey
,
The district court first found an impermissible purpose from the fact that the implementing regulations did not provide licensed abortion facilities a grandfathering exception to the standards applicable to ASCs, even though a grandfathering provision applied to existing ASCs—what it described as “disparate and arbitrary treatment.” Id. The State argues that the district court misunderstood the application of the ASC grandfathering provision be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.”). See Senate Comm. on Health & Human Servs., Bill Analysis, Tex. H.B. 2, 83d Leg.,
2d C.S. 1 (2013) (“H.B. 2 seeks to increase the health and safety of a woman who chooses to
have an abortion by requiring a physician performing or inducing an abortion to have
admitting privileges at a hospital and to provide certain information to the woman.”);
id.
at
2 (“Moving abortion clinics under the guidelines for ambulatory surgical centers will provide
Texas women choosing abortion the highest standard of health care.”).
See Roe
,
abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.”).
because it applies to all ASCs—including ASCs that currently provide
abortions—such that they do not have to comply with new construction
requirements as the ASC standards are modified.
See
25 T EX . A DMIN . C ODE § 135.51(a). In this regard, the State correctly points out that ASCs that
provide abortions are treated no differently than any other ASC.
See Lakey
,
The district court further found an impermissible purpose likely due to
“the dearth of credible evidence supporting the proposition that abortions
performed in ambulatory surgical centers have better patient health outcomes
compared to clinics licensed under the previous regime.”
Lakey
, 46 F. Supp.
3d at 685.
[29]
The district court erred in its conclusion. In
Mazurek
, the
Supreme Court rejected the argument that the law at issue “must have had an
invalid purpose because all health evidence contradicts the claim that there is
any health basis for the law.” 520 U.S. at 973 (internal quotation marks
omitted). Likewise, in
Gonzales
, the Court explained that legislatures have
“wide discretion to pass legislation in areas where there is medical and
scientific uncertainty” and that medical uncertainty, as the record
demonstrates is present here, does not lead to the conclusion that a law is
unconstitutional.
The Plaintiffs also argue that an impermissible purpose can be inferred
from the effect of the law—the closure of a majority of abortion facilities in
Texas. This argument is foreclosed by
Mazurek
, in which the Supreme Court
explained that courts “do not assume unconstitutional legislative intent even
when statutes produce harmful results.”
Plaintiffs bore the burden of proving that H.B. 2 was enacted with an
improper purpose.
See Abbott II
, 748 F.3d at 597. They failed to proffer
competent evidence contradicting the legislature’s statement of a legitimate
purpose for H.B. 2.
See Mazurek
,
3. Effect Prong
Facial challenges relying on the effects of a law “impose a heavy burden
upon the parties maintaining the suit.”
Gonzales
, 550 U.S. at 167 (internal
quotation marks omitted). In the abortion context, it is unclear whether a
facial challenge requires showing that the law is invalid in all applications (the
general test applied in other circumstances) or only in a large fraction of the
cases in which the law is relevant (the test applied in
Casey
).
See id.
;
Abbott II
, 748 F.3d at 588–89. In both
Gonzales
and
Abbott II
, the challenged
provisions were upheld because even the less deferential, large-fraction test
was not satisfied.
See Gonzales
,
As support for its holding that H.B. 2’s admitting privileges and ASC requirements constituted an undue burden, the district court also weighed the burdens and medical efficacy of these two requirements. Lakey , 46 F. Supp. 3d at 684 (“[T]he severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them.”). In so doing, the district court concluded that H.B. 2 would not further the State’s interests in maternal health and increased quality of care. In defense of this approach, Plaintiffs argue that the two requirements at issue are unconstitutional unless they are shown to actually further the State’s legitimate interests. We disagree with the Plaintiffs and the district court’s approach.
In
Abbott II
, the district court similarly held that the admitting
privileges requirement “does nothing to further” the State’s interest in
maternal health, although it performed this analysis as part of the rational
basis inquiry.
Planned Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott
,
It is not the courts’ duty to second guess legislative factfinding, improve on, or cleanse the legislative process by allowing relitigation of the facts that led to the passage of a law. Under rational basis review, courts must presume that the law in question is valid and sustain it so long as the law is rationally related to a legitimate state interest. As the Supreme Court has often stressed, the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment. Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to prove that the objective of the law would be fulfilled.
748 F.3d at 594 (citations and internal quotation marks omitted). In
addition, in
Gonzales,
in the course of applying the effect portion of the undue-
burden inquiry, the Court made clear that medical uncertainty underlying a
statute is for resolution by legislatures, not the courts.
See
550 U.S. at 163
(“The Court has given state and federal legislatures wide discretion to pass
legislation in areas where there is medical and scientific uncertainty.”);
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.”);
id.
at 166 (“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.”). Thus, we conclude that the district court erred by
substituting its own judgment for that of the legislature, albeit this time in the
name of the undue burden inquiry.
See Lakey
,
Turning to the direct application of the large fraction test to the facts of
this case, the parties’ arguments focused on the number of women who faced
increased travel distances due to the closure of abortion facilities. In
particular, the arguments centered around those women who would face travel
distances (one-way) of over 150 miles in light of
Abbott II
’s holding that “an
increase of travel of less than 150 miles for some women is not an undue burden
under
Casey
.”
Although Dr. Grossman and the district court did not mention percentages or fractions, using the district court’s finding that there were approximately 5.4 million women of reproductive age in Texas, see id. at 681, the following percentages and fractions are derived: (1) 7.4% or 1/13 of women of reproductive age faced travel distances of 150 miles or more after the admitting privileges requirement went into effect; and (2) 16.7% or 1/6 of women of reproductive age would face travel distances of 150 miles or more after both requirements went into effect.
The motions panel majority found that these numbers did not satisfy the large fraction test:
Even assuming, arguendo , that 150 miles is the relevant cut-off, this is nowhere near a “large fraction.” See Abbott II, 748 F.3d at 600. As discussed above, the Casey plurality, in using the “large fraction” nomenclature, departed from the general standard for facial challenges. The general standard for facial challenges allows courts to facially invalidate a statute only if “no possible application of the challenged law would be constitutional.” Abbott II , 748 F.3d at 588. In other words, the law must be unconstitutional in 100% of its applications. We decline to interpret Casey as changing the threshold for facial challenges from 100% to 17%.
In defense of the district court’s judgment, the Plaintiffs hardly argue
that these numbers amount to a large fraction. Instead, they try to shift the
discussion to making the denominator not all women of reproductive age in
Texas, but “the population of women for whom the law imposes a meaningful
burden.” They fail to specify what that number would be or how it might be
derived. In addition, the Plaintiffs’ approach would appear to “make the large
fraction test merely a tautology, always resulting in a large fraction. The
denominator would be women that Plaintiffs claim are unduly burdened by the
statute, and the numerator would be the same.”
Lakey
,
In reaching its conclusion that H.B. 2’s requirements imposed an undue
burden on a significant number of women, the district court also found that
travel distances combined with the following practical concerns to create a
de
facto
barrier to abortion for some women: “lack of availability of child care,
unreliability of transportation, unavailability of appointments at abortion
facilities, unavailability of time off from work, immigration status and inability
to pass border checkpoints, poverty level, the time and expense involved in
traveling long distances, and other, inarticulable psychological obstacles.”
Lakey
,
Finally, in reaching its holding, the district court also accepted the
finding of Dr. Grossman that the ASCs providing abortions in Texas “will not
be able to go from providing approximately 14,000 abortions annually, as they
currently are, to providing the 60,000 to 70,000 abortions that are done each
year in Texas once all of the non-ASC clinics are forced to close.” As the
motions panel majority observed, Dr. Grossman’s opinion “is
ipse dixit
and the
record lacks any actual evidence regarding the current or future capacity of the
eight clinics.”
Lakey
,
Because the Plaintiffs failed to prove that the ASC requirement imposes
an undue burden on a large fraction of women for whom it is relevant, we
conclude that the district court erred in striking down the ASC requirement as
a whole as facially invalid.
See Gonzales
,
C. ASC Requirement and the Provision of Medication Abortion
In addition to challenging the ASC requirement as facially unconstitutional, Plaintiffs challenged the ASC requirement as From the increased amount of abortions at some of the non-ASC facilities, Dr. Grossman concluded that there was an increased demand for abortions in that city. Conversely, Dr. Grossman found the decrease in the amount of abortions at some ASCs to be “likely indicative of their inability to increase capacity in the face of growing demand.” Dr. Grossman ultimately concluded that this purported inability to increase capacity at ASCs “may be a result of the admitting privileges requirement.”
There were similar problems with Plaintiffs’ evidence in Abbott II . As we noted in Lakey :
[A]n expert who was part of the same research team as Dr. Grossman offered
similarly unsupported conjecture [in
Abbott II
] when predicting that, as a
result of the
admitting privileges requirement,
approximately 22,000 women in
Texas would be unable to obtain abortions. On cross-examination in [
Lakey
],
Dr. Grossman admitted that his colleague’s earlier predictions proved to be
inaccurate. Dr. Grossman testified in [
Lakey
] that there had been a decrease
of only 9,200 abortions and that the decrease could not be wholly ascribed to
the admitting privileges requirement. Indeed, Dr. Grossman acknowledged on
cross-examination that in his team’s published, peer-reviewed article, the
researchers qualified their findings by noting that they “cannot prove causality
between the State restrictions and falling abortion rate.”
district court erred by excepting from its facial injunction of the ASC requirement “abortion providers that seek to become licensed in the future.”
unconstitutional statewide in the context of the provision of medication abortion (in which drugs, as opposed to surgical procedures, are used to induce an abortion). On this claim, the district court concluded that the ASC requirement was invalid “specifically as applied to the provision of medication abortions,” with the entirety of the district court’s analysis being that in this context “any medical justification for the requirement is at its absolute weakest in comparison with the heavy burden it imposes.” Lakey , 46 F. Supp. 3d at 686. The State appeals this portion of the district court’s judgment, pointing out that the district court’s conclusion is improperly based solely on its belief that the law is medically unjustified.
The Plaintiffs do not respond with any arguments on appeal in support
of this portion of the judgment. For the same reasons that we hold the district
court erred in facially invalidating the ASC requirement, we conclude that the
record and district court’s opinion do not justify statewide invalidation of the
ASC requirement in the context of medication abortions: (1) res judicata bars
this claim, as it arises out of the same transaction as the claims in
Abbott II
and it “could have been raised” in
Abbott II
,
Allen
,
VI. As-Applied Challenges
In
Abbott II
, we rejected the facial challenge to the admitting privileges
requirement but noted that an as-applied challenge to the Rio Grande Valley
(which is comprised of Starr, Hidalgo, Willacy, and Cameron County,
hereinafter collectively, “Rio Grande Valley”) may be appropriate based upon
the evidence presented in that case.
See Abbott II
,
A. Res Judicata for As-Applied Challenges
The State makes the same res judicata arguments as to these challenges
as it does for the facial challenge. The res judicata analysis is different,
however, when we address the as-applied challenges because, as we suggested
in
Abbott II
, the actual factual development may be different than anticipated
in a facial challenge setting. We now know with certainty that the non-ASC
abortion facilities have actually closed and physicians have been unable to
obtain admitting privileges after diligent effort. Thus, the actual impact of the
combined effect of the admitting privileges and ASC requirements on abortion
facilities, abortion physicians, and women in Texas can be more concretely
understood and measured.
See Hernandez v. City of Lafayette
,
Our sister circuits have confronted the issue of how the ripeness analysis (a subsidiary consideration in the res judicata analysis discussed above) differs between a facial challenge and an as-applied challenge. The Eleventh Circuit has explained:
Because the question of ripeness depends on the timing of the adjudication of a particular issue, it applies differently to facial and as-applied challenges. A facial challenge asserts that a law always operates unconstitutionally . . . . In the context of a facial challenge, a purely legal claim is presumptively ripe for judicial review because it does not require a developed factual record. An as-applied challenge, by contrast, addresses whether a statute is unconstitutional on the facts of a particular case or to a particular party. Because such a challenge asserts that a statute cannot be constitutionally applied in particular circumstances, it necessarily requires the development of a factual record for the court to consider.
Harris v. Mexican Specialty Foods, Inc.
,
[A] challenge to a rule or statute may be ripe for adjudication on the question of facial constitutionality and yet not be ripe for adjudication on the question of constitutionality as applied. See, e.g. , Grayned v. City of Rockford ,408 U.S. 104 , 121 & n.50 (1972) (upholding noise control ordinance but reserving decision on constitutionality of possible applications); Times Film Corp. v. City of Chicago , 365 U.S. 43 (1961) (upholding ordinance requiring licensing of films prior to public exhibition) and Teitel Film Corp. v. Cusack , 390 U.S. 139 (1968) (invalidating same ordinance as applied); Adler v. Board of Education , 342 U.S. 485 (1952) (upholding New York statutory scheme for identifying and removing subversive school teachers) and Keyishian v. Board of Regents , 385 U.S. 589 (1967) (invalidating portions of same statutory scheme as applied).
Kines v. Day
,
Although we agree with the State that some aspects of the as-applied
challenge were extant at the time the
Abbott II
litigation was filed, some
important facts occurred later, such as the actual closure of abortion facilities
in Corpus Christi and El Paso and the physicians ultimately being denied
admitting privileges after diligent effort.
Cf. Orix
,
B. McAllen
Whole Woman’s Health operates a licensed abortion facility in McAllen that is not an ASC and which resides on a lot that the Plaintiffs’ expert, George W. Johannes, testified would not allow for expansion to meet the ASC construction standards. Testimony showed that four physicians [37] of Whole Woman’s Health unsuccessfully sought admitting privileges from hospitals within thirty miles of the clinic, with one of the hospitals notifying them that the denial of admitting privileges “was not based on clinical competence.” Whole Woman’s Health has been unsuccessful in recruiting physicians with admitting privileges to work at the McAllen facility. It contends, then, that the ASC and admitting privileges requirements will prevent it from providing abortions. The McAllen clinic ceased providing abortions on November 1, 2013.
While women in the Rio Grande Valley could previously travel 150 miles
or less to Corpus Christi to obtain an abortion,
see Abbott II
,
In
Abbott II
, relying on
Casey
, we held that having to travel 150 miles
from the Rio Grande Valley to Corpus Christi to obtain an abortion was not an
undue burden for purposes of the facial challenge raised there and that “
Casey
counsels against striking down a statute solely because women may have to
travel long distances to obtain abortions.”
We recognize that any statement of “how far is too far” will involve some
imprecision.
Casey
suggested that three hours (one way) was not too far.
[41]
Abbott II
held that 150 miles is not too far and concluded that
Casey
suggested
that no distance, standing alone, could be too far.
“We also must consider the proper place of H.B. 2’s comprehensive and
careful severability provision . . . .”
Abbott II
,
applied challenge does not depend on the testimony of Plaintiffs’ expert, Dr. Grossman (or any related findings by the district court), as to the percentage of women in Texas driving more than 150 miles or the capacity of abortion facilities to handle any changes in, or reallocation of, demand. As we noted earlier, Dr. Grossman’s testimony on the capacity of remaining ASC abortion facilities is ipse dixit , and the record lacks evidence on this subject. See supra note 34 and accompanying text.
of the act or regulations that impose an undue burden be invalidated, with all
others left in place. H.B. 2, § 10(b). The implementing regulations include
similar language.
See
25 T EX . A DMIN . C ODE § 139.9. It is thus necessary to
“sever [H.B. 2 and the implementing regulations’] problematic portions while
leaving the remainder intact.”
Ayotte v. Planned Parenthood of N. New Eng.
,
The regulatory standards for ASCs fall into three categories: (1)
operating requirements, 25 T EX . A DMIN . C ODE §§ 135.4–.17, 135.26–.27; (2)
requirements related to fire prevention, general safety, and handling of
hazardous materials,
id.
§§ 135.41–.43; and (3) physical-plant requirements,
id.
§§ 135.51–.56. The Plaintiffs put forth expert testimony that abortion
facilities could not meet the ASC standards because they would be required to
modify their existing buildings to meet the physical-plant requirements,
corresponding to §§ 135.51–.56, and the fire-prevention requirements,
corresponding to § 135.41. In the same manner, the district court’s findings
with respect to the prohibitive effects of the ASC requirement focused on the
structural modifications or new buildings that would be required by these
standards. While the Plaintiffs also complained of the nursing requirements
at § 135.15(a), we are not aware of any record evidence that complying with
the nursing requirements would cause the closure of abortion facilities. The
Plaintiffs admitted that the remaining operational requirements were
comparable to the standards with which abortion facilities were already
required to comply. Therefore, we conclude that the district court erred by not
constraining its injunction to only those regulations that create an undue
burden, namely, § 135.51–.56 (physical plant) and § 135.41 (fire prevention).
See Lakey,
With respect to the admitting privileges requirement, Whole Woman’s facility would cost $3.4 million, not including the price of land. His testimony reflects that Whole Woman’s Health could not expand the McAllen facility, but would have to relocate either by obtaining new land and constructing a $3.4 million dollar facility, or leasing an existing ASC-compliant facility at a different location. Hagstrom Miller similarly testified that Whole Woman’s Health in McAllen could not comply with the ASC requirement.
The state agreed that it would be expensive for Whole Woman’s Health to acquire or build an ASC-compliant facility, but nevertheless argued that doing so would be feasible. The State’s expert, Deborah Kitz, testified that the McAllen clinic could reduce its costs by running more efficiently and reducing the management fee it pays to Whole Woman’s Health, which she testified was significantly above the average rate. The State’s expert also disagreed with Plaintiffs’ expert, testifying that the McAllen facility already had sufficient space to renovate into an ASC-compliant facility and would not even need to relocate.
The district court determined that the Plaintiffs’ expert was more credible, finding that the cost of complying with the ASC requirement was upwards of $1.5 million for clinics that could renovate their existing facilities, and over $3 million for those that had to acquire land and construct a new facility. It determined that the McAllen clinic was an “[e]xisting clinic[], unable to meet the financial burdens imposed by the new regulatory regime, and w[ould] close as a result.” On appeal, the State did not challenge these findings as clear error. Accordingly, we accept the district court’s findings with respect to the prohibitive costs of upgrading or relocating the McAllen clinic.
Health presented considerable evidence that Plaintiff Dr. Lynn and three unidentified physicians working at the McAllen facility were unable to obtain admitting privileges at local hospitals for reasons other than their competence. Plaintiffs also presented evidence that they were unsuccessful in recruiting physicians to work at the McAllen facility who had admitting privileges at a local hospital. Accordingly, we conclude that the district court’s injunction of the admitting privileges requirement as applied to the McAllen facility when utilizing Dr. Lynn at that specific facility should be upheld, as described more fully below.
To sum up, we affirm in part and modify in part the district court’s injunction of the admitting privileges and ASC requirements as applied to McAllen, as follows: (1) The State of Texas is enjoined from enforcing § 135.51– .56 and § 135.41 of the ASC regulations against the Whole Woman’s Health abortion facility located at 802 South Main Street, McAllen, Texas, when that facility is used to provide abortions to women residing in the Rio Grande Valley (as defined above), until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio; (2) The State of Texas is enjoined from enforcing the admitting privileges requirement against Dr. Lynn when he provides abortions at the Whole Woman’s Health abortion facility located at 802 South Main Street, McAllen, Texas, to women residing in the Rio Grande Valley. The remainder of the injunction as to the McAllen facility is vacated.
C. El Paso Abortion Facility
Reproductive Services operates a licensed abortion facility in El Paso that is not an ASC. The physician at this facility, Dr. Richter, applied for admitting privileges at three hospitals but was only able to obtain temporary privileges at one hospital. These privileges were later revoked. Reproductive Services has been unsuccessful in recruiting physicians with admitting privileges to work at the El Paso facility. After Dr. Richter’s temporary admitting privileges were revoked in April 2014, the El Paso facility stopped providing abortions and eventually closed. The closest Texas abortion facility that will remain open is in San Antonio, over 550 miles away. There is an abortion facility approximately twelve miles away in Santa Teresa, New Mexico. Prior to H.B. 2, more than half of the women who obtained abortions at the Santa Teresa facility were from El Paso.
The State argues the closure of the El Paso abortion facility will not
impose an undue burden because women in this area can travel to the Santa
Teresa facility. The Plaintiffs contend that this argument is precluded by
Jackson Women’s Health Organization v. Currier,
In
Jackson
, we relied on
State of Missouri ex rel. Gaines v. Canada
, 305
U.S. 337 (1938), an equal protection case in which the University of Missouri
denied admission to Gaines because he was African-American and offered him
a stipend to attend school in an adjacent state. We explained that “
Gaines
simply and plainly holds that a state cannot lean on its sovereign neighbors to
provide protection of its citizens’ federal constitutional rights.” 760 F.3d at
457. In this case, unlike in
Gaines
and
Jackson
, the State has not completely
shunted its responsibility onto other states. H.B. 2 does not result in the
closure of all abortion providers in the state: at least eight ASCs will continue
to provide abortions in Texas.
See Lakey
,
Unlike the city of Jackson, Mississippi, which is 175–200 miles from the borders of Tennessee and Louisiana, the evidence in this case shows that El Paso and Santa Teresa are part of the same metropolitan area, though separated by a state line, and that people regularly go between the two cities for commerce, work, and medical care. No such situation was presented by the evidence or considered by the panel in Jackson . Taking the Plaintiffs’ version of Jackson , a clinic just over the line in Texarkana, Arkansas, would not be a fact that could be considered by a court in Texarkana, Texas. An injunction is an equitable remedy, and it would be wholly inequitable to ignore the reality of metropolitan areas that straddle state lines and in which people regularly travel back and forth in commerce. See Weinberger v. Romero-Barcelo , 456 U.S. 305, 311–12 (1982) (explaining that “an injunction is an equitable remedy,” which does not “issue[] as of course or to restrain an act the injurious consequences of which are merely trifling” (citation and internal quotation marks omitted)). To the extent that Jackson can be read to so provide, it is dicta as that situation was simply not presented in that case.
Therefore, although the nearest abortion facility in Texas is 550 miles away from El Paso, there is evidence that women in El Paso can travel the short distance to Santa Teresa to obtain an abortion and, indeed, the evidence is that many did just that before H.B. 2. Accordingly, because H.B. 2 does not place a substantial obstacle in path of those women seeking an abortion in the El Paso area, we hold that the district court erred in sustaining Plaintiffs’ as- applied challenge in El Paso.
VII. Plaintiffs’ Cross-Appeal
The Plaintiffs appeal the district court’s dismissal of their equal protection and unlawful delegation claims. For substantially the same reasons as the district court stated in its order dismissing these claims, we affirm the judgment of the district court on these claims.
Accordingly, the district court’s judgment is AFFIRMED in part, MODIFIED in part, VACATED in part, and REVERSED in part.
Notes
[1] The Plaintiffs include Whole Woman’s Health; Austin Women’s Health Center; Killeen Women’s Health Center; Nova Health Systems d/b/a Reproductive Services; and Sherwood C. Lynn, Jr., M.D., Pamela J. Richter, D.O., and Lendol L. Davis, M.D., on behalf of themselves and their patients. The Defendants are Kirk Cole, M.D., Commissioner of the Texas Department of State Health Services, and Mari Robinson, Executive Director of the Texas Medical Board, in their official capacities.
[2] Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1–12, 2013 Tex. Sess. Law Serv. 4795–802 (West) (codified at T EX . H EALTH & S AFETY C ODE A NN . §§ 171.0031, 171.041–.048, 171.061–.064, & amending §§ 245.010–.011; amending T EX . O CC . C ODE A NN . §§ 164.052 & 164.055).
[3] As discussed more fully below, upon the State’s motion, a panel of this court partially
stayed the district court’s judgment pending appeal.
See Whole Woman’s Health v. Lakey
,
[4]
See, e.g.
,
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists
,
[5]
See, e.g.
,
Hodgson v. Minnesota
, 497 U.S. 417, 436 (1990) (Stevens, J., plurality
opinion);
Thornburgh
, 476 U.S. at 828 (O’Connor, J., dissenting);
Simopoulos
, 462 U.S. at
519;
Akron I
, 462 U.S. at 453 (O’Connor, J., dissenting);
McRae
, 448 U.S. at 324;
Doe v.
Bolton
,
[6] While not as pertinent to this case, the Supreme Court has addressed various other
abortion regulations. The Court has interpreted the Constitution to permit states and the
federal government to allocate resources so as to fund childbirth, but not fund abortion or the
providing of information about abortion—thus encouraging childbirth over abortion.
See,
e.g.
,
Rust v. Sullivan
,
[7]
See Stenberg v. Carhart
, 530 U.S. 914, 952 (2000) (Rehnquist, C.J., dissenting)
(“Despite my disagreement with the opinion, under the rule laid down in [
Marks
], the
Casey
joint opinion represents the holding of the Court in that case.”);
K.P. v. LeBlanc
, 729 F.3d
427, 442 n.93 (5th Cir. 2013);
see, e.g.
,
Stenberg
,
[8] The Court recognized that “time has overtaken some of Roe ’s factual assumptions,” because modern science and “advances in neonatal care have advanced viability to a point somewhat earlier.” Casey ,505 U.S. at 860 (comparing Roe ,410 U.S. at 160 , with Webster ,492 U.S. at 515–16).
[9] The Court also upheld a requirement that a
physician
must provide the information.
See
[10] The Court reasoned: The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. Id. at 894.
[11] The Court acknowledged without deciding the issue of whether a facial challenge required showing that the law is unconstitutional in all circumstances or, as described in Casey , only in a large fraction of the cases in which the law is relevant. See id. at 167–68.
[12] The admitting privileges requirement went into effect on October 31, 2013. The
district court enjoined the provision, but we stayed the injunction on October 31, 2013,
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I)
,
[13] An ambulatory surgical center is “a facility that operates primarily to provide surgical services to patients who do not require overnight hospital care.” T EX . H EALTH & S AFETY C ODE A NN . § 243.002(1) (West 2010).
[14] Planned Parenthood, the largest provider of abortion services in Texas, is not a
party to this lawsuit, although it was a named plaintiff in
Abbott II
. Lamar Robinson, M.D.
was a named plaintiff in
Abbott II
and was originally a named plaintiff in this case. However,
on June 3, 2014, he filed a Notice of Voluntary Dismissal because he obtained admitting
privileges at a hospital within thirty miles of the clinic at which he provided abortions.
Otherwise, Plaintiffs largely overlap with the plaintiffs in
Abbott II
. Whole Woman’s
Health, Austin Women’s Health Center, Killeen Women’s Health Center, and Dr. Richter
were plaintiffs in
Abbott II
.
[15] The State points out that it did not stipulate that only eight abortion facilities would remain in Texas, arguing that currently licensed abortion facilities that do not comply with the ASC requirement might buy, build, or lease a licensed ASC. The parties stipulated that there were “433 licensed ambulatory surgical centers in Texas.” There was testimony at trial that Dr. Davis and Austin Woman’s Health Center purchased land in Austin with plans to open an ASC in the future and that Reproductive Services hoped to open an ASC in San Antonio. The fact that there are currently licensed ASCs in Texas where abortions are performed and that abortion providers have plans to open more attests that it is indeed possible for abortion providers to comply with the ASC requirement. Conversely, the Plaintiffs offered testimony that their efforts to lease an existing ASC failed primarily due to hostility to abortion. The evidence thus showed that there will be at least eight licensed ASCs in Texas where abortions are performed.
[16] For example, we noted in
Abbott I
and
II
that abortion facilities had difficulty
recruiting physicians with admitting privileges because a large proportion of physicians
performing abortions were over the age of 60 and had already retired or were planning to
retire.
Abbott I
,
[17] Plaintiffs offered expert testimony that the ASC requirement’s construction standards were “largely aimed at maintaining a sterile operating environment,” which is not necessary for surgical abortion because “it entails insertion of instruments into the uterus through the vagina, which is naturally colonized by bacteria.” Plaintiffs also offered expert testimony that abortion procedures do not necessitate large operating rooms or scrub nurses and circulating nurses, as are required for ASCs. The Plaintiffs’ expert also explained that medication abortions do not involve surgery but entail the oral administration of medications; accordingly, the expert concluded that there is “no medical basis for requiring medical abortion to be provided in an ASC.”
[18] The State’s expert explained that other procedures requiring entry into the uterus,
[20] In its reply brief, the State argues for the first time that there is no longer an Article III case or controversy concerning the El Paso clinic because it has not yet reopened in light of the district court’s injunction and the Supreme Court continuing that injunction pending appeal. We conclude that this issue is not moot as the State suggests. The El Paso abortion facility was no longer able to provide abortions after April 2014 because its physician, Dr. Richter, no longer had admitting privileges at a local hospital. The Plaintiffs returned the facility’s license because they could not afford to pay its annual assessment fees while it was not generating revenue. The facility has not immediately resumed providing services because, during the four months that it was closed, it had to close its doors, lay off its staff, move its records and equipment into storage, cancel its contracts with vendors, and give up its lease and its license. The president of the organization that ran the facility testified that if it was successful in this lawsuit, it would “seek to reestablish a licensed abortion facility in El Paso.” Because the admitting privileges requirement arguably contributed to the closure of the El Paso facility and there is uncontested testimony that the facility will seek to reopen
[21] The only exception to our disallowing the facial challenge in Abbott II was that we did not reverse the district court’s injunction with respect to physicians whose application for admitting privileges was still pending at the time H.B. 2 went into effect. See Abbott II, 748 F.3d at 605.
[22] Although the State did not raise this argument in its briefing on the emergency stay motion, it did raise the issue in its motion to dismiss before the district court.
[23] Similarly, we conclude, infra , that the district court correctly ruled that res judicata does not bar the as-applied challenges here.
[24] Plaintiffs argue that they did not know whether existing facilities would be “grandfathered.” Nothing in the language of the legislation allows “grandfathering” of existing abortion facilities. Existing ASC facilities were already “grandfathered.” In any event, this argument would at most support only a challenge to the lack of “grandfathering,” not the broad-based challenge actually filed and the broad relief granted.
[25]
See also Simopoulos
, 462 U.S. at 519 (concluding that Virginia’s outpatient-
surgical-hospital requirement for second trimester abortion was “not an unreasonable means
of furthering the State’s compelling interest in ‘protecting the woman’s own health and
safety’” (quoting
Roe
,
[28] Further, the Plaintiffs do not argue that it is impossible for abortion providers to comply with the ASC requirement, only costly and difficult.
[29] The district court also inferred an impermissible purpose from the State’s attorneys arguing that women in El Paso would not face an undue burden because they could simply travel to New Mexico, a state without a requirement that abortions be performed in an ASC. We agree with the State that an improper legislative purpose cannot be inferred from an argument raised by its lawyers more than a year after H.B. 2 was enacted.
[30] Plaintiffs cite the use of the phrase “significant number” in
Casey
as support for the
district court’s approach.
See, e.g.
,
[31] See Lakey ,46 F. Supp. 3d at 684 (“[W]omen will not obtain better care or experience more frequent positive outcomes at an [ASC] as compared to a previously licensed facility.”); id. (“[I]t is unlikely that the stated goal of the [ASC] requirement—improving women’s health—will actually come to pass.”); id. (“The court finds no particularized health risks arising from abortions performed in nonambulatory-surgical-center clinics which countenance the imposition of the [ASC] requirement . . . .”).
[32] As they did in
Abbott II
, Plaintiffs again argue that
Akron I
and
Barnes
require
the more demanding approach employed by the district court.
Compare
Pls.’ Br. 35–38
(citing,
inter alia
,
Akron I
,
[33] Plaintiffs filed a Rule 28(j) letter referencing the recent district court opinion in
Planned Parenthood of Wis., Inc. v. Van Hollen
, No. 3:13-cv-465,
[34] Dr. Grossman based his opinion on a chain of unsupported inferences.
See Lakey
,
[36] Plaintiffs’ expert, Dr. Grossman, used the term “Lower Rio Grande Valley” to describe the area comprising the following four counties: Starr, Hidalgo, Willacy, and Cameron. See also Abbott II ,748 F.3d at 597 (“The Rio Grande Valley . . . has four counties.”).
[37] Of those four, only Dr. Lynn is a party to the case. The other three were neither named as parties nor identified in the district court; their names were redacted from exhibits.
[38] The record reflects that the distance between McAllen, which is located near the center of the Rio Grande Valley, and the center of San Antonio is approximately 235 miles. The distance between McAllen and the ASC-compliant clinic in San Antonio, based on the address information in the parties’ Joint Stipulation to Facts, is 234 miles.
[39] While some of Hagstrom Miller’s testimony, and that of Ceballos Felix, appears to
be hearsay (or even double hearsay in the case of the interviews by other employees of the
clinic), the record is unclear whether the State objected on these grounds. Moreover, the
district court relied on Hagstrom Miller’s and Ceballos Felix’s entire testimony for its findings
that women in the Rio Grande Valley faced “practical concerns” and the State did not
challenge these findings as clear error. We conclude that the district court’s findings are not
clearly erroneous.
See Abbott II
,
[40] Texas has a 24-hour waiting period, but the waiting period is reduced to 2 hours for women who certify that they live “100 miles or more from the nearest [licensed] abortion provider.” See T EX . H EALTH & S AFETY C ODE A NN . § 171.012(a)(4) (West Supp. 2014).
[41]
Casey
even suggested that doubling what amounted to a six-hour round trip was
not an undue burden.
[43] The parties stipulated that the McAllen clinic did not comply with the ASC requirement, but did not stipulate as to the feasibility of Whole Woman’s Health operating an ASC-compliant facility in the future. The parties also did not stipulate whether other ASC-compliant clinics might open in the Rio Grande Valley. The parties offered conflicting expert testimony regarding whether Whole Woman’s Health could renovate its current facility. Plaintiffs’ expert, George W. Johannes, inspected several of Plaintiffs’ facilities to determine how the ASC requirement would affect their operations. He testified that none of Plaintiffs’ clinics, including the one in McAllen, were built on a large enough footprint to accommodate an ASC-compliant facility. Moreover, he testified that only three of the clinics had sufficient land to expand their footprints. McAllen was not one of those three. Johannes estimated that the cost of expanding these clinics ranged from $1.7 million to $2.6 million. He testified that to build a new ASC-compliant
[44] Plaintiffs state that the hospital denied Dr. Richter admitting privileges because she was an abortion provider. As emphasized in Abbott II , Texas and federal law prohibit discrimination on this basis and Texas provides a private cause of action to challenge such discrimination. See 748 F.3d at 598 & n.13 (citing T EX . O CC . C ODE A NN . §§ 103.002(b), 103.003, and 42 U.S.C. § 300a-7(c)). This undermines the argument that the admitting privileges requirement is the cause of the closure of the facility since the suggestion is that the cause is actually unlawful discrimination for which state law provides Dr. Richter a remedy. However, because we conclude that the closure of the El Paso facility, whatever its cause, does not create an undue burden on a woman’s right to choose an abortion, we need not address this issue further.
[45] We note that this analysis would likely be different in the context of an international border, and we disclaim any suggestion that the analysis here applies to a city across an international border from a United States city in question.