Whole Woman's Health v. David Lakey
790 F.3d 598
5th Cir.
2015
Check Treatment
Docket

WHOLE WOMAN‘S HEALTH; Austin Women‘s Health Center; Killeen Women‘s Health Center; Nova Health Systems, doing business as Reproductive Services; Sherwood C. Lynn, Jr., M.D., on behalf of themselves and their patients; Pamela J. Richter, D.O., on behalf of themselves and their patients; Lendol L. Davis, M.D., on behalf of themselves and their patients, Plaintiffs-Appellees-Cross-Appellants, v. Kirk COLE, M.D., Commissioner of the Texas Department of State Health Services, in his Official Capacity; Mari Robinson, Executive Director of the Texas Medical Board, in her Official Capacity, Defendants-Appellants-Cross-Appellees.

No. 14-50928.

United States Court of Appeals, Fifth Circuit.

June 19, 2015.

790 F.3d 563

junction 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 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.

Stephanie Toti, Esq., Staff Attorney (argued), Esha Bhandari, David Patrick Brown, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, N.Y., Patrick J. O‘Connell, Jan Soifer, O‘Connell & Soifer, L.L.P., Austin, TX, Betre Mussie Gizaw, Morrison & Foerster, Washington, DC, for Plaintiffs-Appellees-Cross-Appellants.

Scott A. Keller, Solicitor, Jonathan F. Mitchell (argued), James Davis Blacklock, Senior Counsel, Beth Ellen Klusmann, Esq., Michael P. Murphy, Andrew S. Old-ham, Deputy General Counsel, Office of the Attorney General Office of the Solicitor General, Austin, TX, for Defendants-Appellants-Cross-Appellees.

Walter Martin Weber, Stuart J. Roth, Mailee Rebecca Smith, Esq., Americans United For Life, Steven H. Aden, Alliance Defending Freedom, Lawrence John Joseph, Carrie Yvette Flaxman, Planned Parenthood Federation Of America, Kimberly A. Parker, Wilmerhale, Washington, DC, CeCe Heil, Jay A. Sekulow, Esq., Virginia Beach, VA, Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO, Catherine Glenn Foster, Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA, Gregory R. Terra, Georgetown, TX, Allan Edward Parker, Jr., Justice Foundation, San Antonio, TX, Stephen Daniel Casey Esq., Round Rock, TX, for Amicus Curiae.

Before PRADO, ELROD, and HAYNES, Circuit Judges.

ORDER:

On June 9, 2015, we issued an opinion in . We now MODIFY our opinion and judgment of June 9, 2015 to provide that the district court‘s injunction of the ASC requirement (as defined in the June 9 opinion) as applied to the McAllen facility shall remain in effect until October 29, 2015, at which time the injunction shall be vacated in part, as delineated and explained in our June 9 opinion.

The unopposed Motion to Become an Amicus Party and to File Amicus Brief, filed June 15, 2015, is GRANTED.

The opposed Appellees’ Motion to Stay the Mandate, filed June 10, 2015, is DENIED. Judge Prado respectfully dissents from the denial of the motion to stay.