Planned Parenthood v. Gregory Abbott

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REVISED MARCH 28, 2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 27, 2014
No. 13-51008
Lyle W. Cayce
Clerk
PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH
SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE;
PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE
WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN
WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY
CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET
WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC, each on behalf of itself,
its patients and physicians; ALAN BRAID, M.D.; LAMAR ROBINSON, M.D.;
PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients;
PLANNED PARENTHOOD WOMEN'S HEALTH CENTER,
Plaintiffs - Appellees
v.
ATTORNEY GENERAL GREGORY ABBOTT; DAVID LAKEY, M.D.;
MARI ROBINSON, Executive Director of the Texas Medical Board,
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Texas
Before JONES, ELROD, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Planned Parenthood of Greater Texas Surgical Health Services and
other abortion facilities and three physicians (collectively “Planned
Parenthood”) sued the Attorney General of Texas and other individuals
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(collectively “the State”), seeking to enforce their rights and those of patients
for declaratory judgment and to enjoin two provisions of 2013 Texas House Bill
No. 2 (“H.B. 2”) pertaining to the regulation of surgical abortions and abortion–
inducing drugs. 1 The district court held that parts of both provisions were
unconstitutional and granted, in substantial part, the requested injunctive
relief. A motions panel of this court granted a stay pending appeal, and the
Supreme Court upheld the stay. We conclude that both of the challenged
provisions are constitutional and therefore reverse and render judgment, with
one exception, for the State.
I. Background
Passed on July 12, 2013, H.B. 2 contains two provisions that Planned
Parenthood contends are unconstitutional. The first requires that a physician
performing or inducing an abortion have admitting privileges on the date of
the abortion at a hospital no more than thirty miles from the location where
the abortion is provided. 2 The second mandates that the administration of
abortion–inducing drugs comply with the protocol authorized by the Food and
Drug Administration (FDA), with limited exceptions. 3 We follow the parties in
referring to drug–induced abortions, as distinguished from surgical abortions,
as “medication abortions.” 4
1 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1-12, 2013 Tex. Sess. Law Serv.
4795-802 (West) (codified at TEX. HEALTH & SAFETY CODE §§ 171.0031, 171.041-048, 171.061-
064, & amending § 245.010.011; TEX. OCC. CODE amending §§ 164.052 & 164.055).
2 TEX. HEALTH & SAFETY CODE § 171.0031(a)(1). Section 171.0031(b) criminalizes a
physician’s failure to comply with Section 171.0031(a)(1).
3 Id. § 171.063(a); Planned Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott, 951 F. Supp. 2d 891, 905 (W.D. Tex. 2013).
4 Along with Texas, five other states have recently passed laws substantially similar
to the provisions at issue here, which have also been challenged in federal courts. In each of
these cases, the district court enjoined all or part of the law pending trial on the merits.
Jackson Women's Health Org. v. Currier, 940 F. Supp. 2d 416 (S.D. Miss. 2013) (admitting
privileges); Planned Parenthood Se., Inc. v. Bentley, 951 F. Supp. 2d 1280 (M.D. Ala. 2013)
(admitting privileges); MBK Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900 (D. N.D. 2013)
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Planned Parenthood presented four grounds to the district court for
invalidating the hospital admitting privileges requirement: violation of
patients’ substantive due process rights, violation of physicians’ procedural due
process rights, unlawful delegation of authority to hospitals, and vagueness.
As to the medication abortion regulation, Planned Parenthood argued that it
also violated patients’ substantive due process rights and was
unconstitutionally vague. Faced with a pleading filed only days before H.B. 2
was to become effective, the district court consolidated the preliminary
injunction and merits hearings. Waiving a jury trial, the parties consented to
a bench proceeding in which Planned Parenthood presented a few witnesses
and both sides offered numerous affidavits. On October 28, 2013, five days
after the conclusion of the trial, the district court issued an opinion that would
permanently enjoin the admitting–privileges provision and partially enjoin the
medication abortion regulation.
The State noted its appeal and moved for an emergency stay of the
district court’s order. Within forty-eight hours, on October 31, this court
responded to the parties’ briefing and held that the State made a substantial
showing of its likelihood of success on the merits of the admitting privileges
(admitting privileges); Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13–CV–465–
WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (admitting privileges); Planned
Parenthood Sw. Ohio Region v. DeWine, No. 1:04-CV-493; 2011 WL 9158009 (S.D. Ohio May
23, 2011) (medication abortion). Four of these cases—Bentley, Burdick, Van Hollen, and
DeWine—are pending before the district court. The Seventh Circuit issued an extensive
opinion affirming the preliminary injunction in Van Hollen. Parenthood of Wisconsin, Inc. v.
Van Hollen, 738 F.3d 786 (7th Cir. 2013), discussed infra. Additionally, the Sixth Circuit
affirmed summary judgment for the State in DeWine on three of the four claims, though the
issue of whether the State's regulation of medication abortion burdens a woman's right to
health and life under the Fourteenth Amendment has been held for trial. Planned
Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490 (6th Cir. 2012). The preliminary
injunction entered by the district court in Currier has been stayed pending its appeal before
this court. Jackson Women’s Health Org. v. Currier, No. 13-60599, (5th Cir., filed Aug. 27,
2013).
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requirement, and that it demonstrated likely success as to part of the district
court’s hand–crafted “health of the mother” exception to the medication
abortion regulation. Planned Parenthood of Greater Tex. Surgical Health
Servs. v. Abbott, 734 F.3d 406, 416, 418 (5th Cir. 2013). Finding the other
requirements for a stay pending appeal to be satisfied, the court of appeals
stayed the district court’s judgment in part. Id. at 419. The appeal was
expedited for this court’s full consideration of the merits. Id.
Planned Parenthood appealed to the Supreme Court for emergency
relief. 5 In a five–four decision, with writings on both sides, the Court refused
to vacate this court’s stay. Planned Parenthood of Greater Tex. Surgical Health
Servs. v. Abbott, 134 S. Ct. 506 (2013).
In this appeal, the State maintains that the district court erred in four
respects: granting standing to abortion providers to assert physicians’ and
patients’ rights vis-à-vis the issues raised; facially invalidating the admitting-
privileges regulation; creating a “broad and vague ‘health’ exception” to the
medication abortion regulations; and enforcing an injunction beyond the rights
of the plaintiffs in this case. We address these issues in turn.
5 In its brief filed with the Supreme Court in support of the emergency application to
vacate stay, Planned Parenthood only addressed the hospital admitting privileges injunction
and failed to challenge the off–label protocol injunction as this court had reframed it. See
Brief for Applicant, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
134 S. Ct. 506 (2013) (No. 13A452).
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II. Preliminary Issues
A. Standards of Review
At the outset, we are confronted by the district court’s pre–enforcement
facial invalidation of these state law provisions in toto. Standard principles of
constitutional adjudication require courts to engage in facial invalidation only
if no possible application of the challenged law would be constitutional. See
Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013) (citing United
States v. Salerno, 481, U.S. 739, 745 (1987)). This court applied the principle
in Barnes v. Mississippi when construing a Mississippi abortion statute.
992 F.2d 1335, 1342 (5th Cir. 1993). However, whether the Supreme Court
applies this rule in the same way in abortion cases as in others is uncertain.
In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court noted the implication
in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833,
895 (1992), that an abortion–regulating statute would fail constitutional
muster if it erected an undue burden on women’s decisions to choose abortion
in a “large fraction” of cases. As in the stay opinion, we will apply the “large
fraction” nomenclature for the sake of argument only, without casting doubt
on the general rule. Cf. Abbott, 734 F.3d at 414.
To assess the court’s rendition of injunctive relief, we review its legal
conclusions de novo, factfindings for clear error, and the ultimate decision to
enjoin enforcement of H.B. 2 for abuse of discretion. Voting for Am., 732 F.3d
at 386.
We also must consider the proper place of H.B. 2’s comprehensive and
careful severability provision, to which the district court barely referred.
Federal courts are bound to apply state law severability provisions. Leavitt v.
Jane L., 518 U.S. 137, 138-39 (1996). Even when considering facial
invalidation of a state statute, the court must preserve the valid scope of the
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provision to the greatest extent possible. Later as-applied challenges can
always deal with subsequent, concrete constitutional issues.
B. Standing
The district court ruled perfunctorily that abortion providers have never
been denied standing to assert the rights of patients. Planned Parenthood of
Greater Tex. Surgical Health Servs v. Abbott, 951 F. Supp. 2d 891, 897 (W.D.
Tex. 2013). The rule for third–party standing requires the named plaintiff to
have suffered an injury in fact and to share a “close” relationship with third–
parties who face an obstacle inhibiting them from bringing the claim on their
own behalf. Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004). Here, the
requirements for third–party standing are met in relation to the claims
asserted by the physician–plaintiffs on behalf of their patients because (1) the
physicians face potential administrative and criminal penalties for failing to
comply with H.B. 2, 6 (2) doctors who perform abortions share a sufficiently
close relationship with their patients, 7 and (3) a pregnant woman seeking to
assert her right to abortion faces obvious hindrances in timely bringing a
lawsuit to fruition. 8 Because the physician–plaintiffs have third–party
standing to assert the rights of their patients in this litigation, as well as
standing to assert their own rights, 9 we need not consider the issue of standing
6 See TEX. HEALTH & SAFETY CODE §§ 171.0031(b), 171.064 (West 2013); Doe v. Bolton,
410 U.S. 179, 188 (1973) (“The physician is the one against whom [H.B. 2] directly operate[s]
in the event he procures an abortion that does not meet the statutory exceptions and
conditions. The [physician], therefore, assert[s] a sufficiently direct threat of personal
detriment.”).
7 Singleton v. Wuff, 428 U.S. 106, 117 (1976) (“Aside from the woman herself, . . . the
physician is uniquely qualified to litigate the constitutionality of the State’s interference
with, or discrimination against, [the constitutionally protected abortion] decision.”).
8 Id. at 117-18.
9 The State argues that, where third–party standing is concerned, there may be a
point at which the doctor’s interests begin to conflict with his patient’s. For example, the
doctor’s economic incentives regarding the performance of abortions may not always align
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as it relates to the remaining plaintiffs. See Watt v. Energy Action Educ.
Found. 454 U.S. 151, 160 (1981); Allandale Neighborhood Ass’n v. Austin
Transp. Study Policy Advisory Comm., 840 F.2d 258, 263 (5th Cir. 1988).
C. Substantive Due Process Standard
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, 878. In Gonzalez, the Court added that abortion restrictions
must also pass rational basis review. Gonzalez, 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)).
Planned Parenthood urges a stricter standard of review for the state’s
admitting–privileges regulation than Casey’s undue burden standard because
this regulation allegedly protects only the mother’s health rather than fetal
life. Appellees cite City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S.
416, 431 (1983), to support their position. This argument is wrong on several
grounds. First, no such bifurcation has been recognized by the Supreme Court.
Second, Akron’s application of strict scrutiny was replaced by Casey’s undue
with a woman’s right to choose to have an abortion. We are convinced that such no such
conflict exists here, however.
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burden balancing test, 505 U.S. at 871. Third, Planned Parenthood’s proposed
standard was not applied even by the district court in this case, nor do
appellees cite a single Supreme Court or lower court opinion that has
attempted to modify Casey in the way they propose. Fourth, the state’s
regulatory interest cannot be bifurcated simply between mothers’ and
children’s health; every limit on abortion that furthers a mother’s health also
protects any existing children and her future ability to bear children even if it
facilitates a particular abortion. In sum, the governing test articulated by
Casey applies here, and the fundamental question is whether Planned
Parenthood has met its burden to prove that the admitting privileges
regulation imposes an undue burden on a woman’s ability to choose an
abortion; only in that situation does the state abridge “the heart of the liberty
protected by the Due Process Clause.” Casey, 505 U.S. at 874.
III. Admitting Privileges Requirement
The State’s appeal of the ruling invalidating the admitting–privileges
requirement turns on the district court opinion’s analysis of Planned
Parenthood’s substantive due process claim. Planned Parenthood argued at
trial that the admitting–privileges requirement lacked a rational basis and
imposed an undue burden on a woman’s right to choose an abortion. The
opinion agreed with both parts of Planned Parenthood’s argument. The
opinion, however, applied the wrong legal standards under rational basis
review and erred in finding that the admitting–privileges requirement
amounts to an undue burden for a “large fraction” of the women that it affects.
A.
To show that the admitting–privileges requirement lacked a rational
basis, Dr. Paul Fine, a board–certified obstetrician and gynecologist (“Ob/Gyn”)
and director of one of the plaintiff clinics, testified that women face an
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“extremely low” risk of experiencing some type of complication after an
abortion. According to the studies referred to by Dr. Fine, only 2.5 percent of
women who have a first–trimester surgical abortion undergo minor
complications, while fewer than 0.3 percent experience a complication that
requires hospitalization. As for those abortion patients who need hospital care,
Dr. Fine indicated that “the appropriate course of action would be to refer the
woman to a nearby emergency room” because, from his perspective, ER
physicians are qualified to treat most post-abortion complications, and can
consult with the Ob/Gyn on-call in the event that they determine that a
specialist is required. Similarly, Dr. Jennifer Carnell, a board–certified
emergency medicine practitioner, explained that ER physicians have
experience in treating abortion-related complications, which are very similar
to the symptoms of miscarriage, a condition commonly seen in ERs.
Consequently, the abortion practitioners do not need admitting privileges.
Dr. Fine further testified that the admitting–privileges provision has the
effect of restricting the availability of abortion in the state. Joseph Potter, a
sociology professor, testified that the requirement will close one–third of the
state’s abortion facilities, and, as a result, prevent at least 22,286 women
annually—slightly less than a third of the number of women who seek
abortions in the state each year—from procuring an abortion. 10 Andrea
Ferrigno, corporate vice president of plaintiff Whole Woman’s Health
(“WWH”), indicated that her organization’s clinic in McAllen would close due
to the admitting-privileges requirement. Separate from the provision’s alleged
effects on abortion access in the Rio Grande Valley, Amy Hagstrom–Miller, an
10 According to the Texas Department of State Health Services, 72,470 abortions were
performed in Texas in 2011, with 70,003 obtained by Texas residents. Table 33: Selected
Characteristics of Induced Terminations of Pregnancy, Texas Residents, 2011, available at
http://www.dshs.state.tx.us/chs/vstat/vs11/t33.shtm.
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owner of WWH, and Ferrigno testified that their clinics in Fort Worth and San
Antonio would close, and Dr. Darrell Jordan, chief medical officer of plaintiff
Planned Parenthood of Greater Texas, testified that his organization’s clinics
in Austin, Waco, and Dallas would shut their doors.
To explain the challenges that providers faced in complying with the
admitting–privileges requirement, Hagstrom–Miller testified that eleven of
the fourteen physicians at her clinics are over the age of sixty, and six are over
the age of seventy. Hagstrom–Miller further testified that WWH recently
attempted to recruit five physicians. In Hagstrom–Miller’s words, three of
them “were unable to join WWH staff because their primary practice or
hospitals barred them from working as abortion care providers.” The fourth
was reluctant to join after the 2009 murder of Dr. George Tiller, a Kansas–
based physician who performed abortions. The fifth was forbidden because the
chair of his department does not permit moonlighting in general and did not
want the doctor to be affiliated with abortion practice.
Additionally, Hagstrom–Miller stated that WWH was in contact with
several physicians who had previously done some work with her clinics. Two
of these doctors claimed that they were not interested in joining WWH because
of their concern that future changes in the law would make it impossible to
provide abortions in the state. One declined because he planned to open an
obstetrics practice and feared that involving himself in abortion practice would
cost him business; ultimately this physician joined a practice owned by a
Catholic association which forbids any affiliation with abortion providers.
Another physician was at a Catholic hospital which allegedly directed the
doctor to sever contact with WWH, and ultimately fired him due to his
“outspoken support” for abortion rights. Another, who had spent one day–a–
week working with WWH, decided to take a position in New York due to the
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passing of abortion restrictions, including H.B. 2, and the need to pay student
loans. Finally, one physician, who worked with WWH, decided not to continue
with the organization after the passage of H.B. 2, concluding that it would be
impossible to obtain admitting privileges given the caseload requirements at
one of the local hospitals and the fact that the other is a Catholic hospital that,
in apparent violation of federal and state law, declines to grant privileges on
the basis of an applicant’s association with abortion practice.
In response to Planned Parenthood, Dr. John Thorp, a board-certified
Ob/Gyn, offered the most comprehensive statement of the requirement’s
rationale:
There are four main benefits supporting the requirement that
operating surgeons hold local hospital admitting and staff
privileges: (a) it provides a more thorough evaluation mechanism
of physician competency which better protects patient safety; (b) it
acknowledges and enables the importance of continuity of care;
(c) it enhances inter–physician communication and optimizes
patient information transfer and complication management; and
(d) it supports the ethical duty of care for the operating physician
to prevent patient abandonment.
The State focused its defense of the admitting-privileges requirement on two
of these factors: continuity of care and credentialing. To demonstrate the
importance of the former, Dr. Thorp referred to several studies, including a
report of a joint commission of hospitals, including Johns Hopkins, Mayo
Clinic, and New York Presbyterian, which concluded that “80 percent of serious
medical errors involve miscommunication between caregivers when patients
are transferred or handed–off.” Dr. James Anderson, an ER physician, also
testified that an abortion provider with admitting privileges is better suited
than one not admitted to know which specialist at the hospital to consult in
cases where an abortion patient presents herself at an ER with serious
complications. Further, Dr. Thorp doubted that without the admitting-
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privileges requirement hospitals in Texas could, as Dr. Fine suggested,
promptly treat women with abortion-related complications. This was because
73 percent of ERs nationwide, according to a statistic cited by Dr. Thorp, lack
adequate on-call coverage by specialist physicians, including Ob/Gyns. Thus,
requiring abortion providers to obtain admitting privileges will reduce the
delay in treatment and decrease health risk for abortion patients with critical
complications.
Dr. Thorp also opined that the admitting–privileges requirement would
ensure that only physicians “credentialed and board certified to perform
procedures generally recognized within the scope of their medical training and
competence” would provide abortions. Dr. Mikeal Love, a board–certified
Ob/Gyn, concurred that the admitting–privileges provision enlists hospitals to
“screen out” untrained and incompetent abortion providers, who could not
continue in the abortion practice if they were not able to obtain admitting
privileges. Echoing this sentiment, Dr. Anderson agreed that credentialing
would enhance the quality of care, noting that “hospital credentialing acts as
another layer of protection for patient safety.”
Finally, Dr. Thorp disputed Dr. Fine’s conclusions as to the percentage
of abortions that result in complications. According to Dr. Thorp, the 0.3
percent estimate of women requiring hospitalization from abortion
complications is based on data that are thirty-eight years old. Dr. Thorp
further testified that complications from abortion are underreported, and he
cited a study indicating that only one–third to one–half of abortion patients
return to their clinic for follow–up care.
The State also attacked Planned Parenthood’s evidence as to the effects
of the admitting–privileges requirement. During its examination of Dr. Potter,
the State elicited testimony that Dr. Potter relied on statements of predicted
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clinic closures provided by the plaintiffs, their attorneys, and other unknown
individuals who were interviewed by Dr. Daniel Grossman, an abortion
provider with whom Dr. Potter works. As Dr. Potter explained: “We are using
information that was obtained by—from Plaintiffs and by Dr. Grossman from
providers. There’s no science there.” Peter Uhlenberg, a sociology professor,
also testified that Dr. Potter’s estimate was inaccurate because Potter assumed
that abortion facilities unaffected by the admitting–privileges restriction
would perform the same number of abortions as they did before the provision
passed. Dr. Uhlenberg argued that it was more likely that these clinics would
perform more abortions in the face of higher demand if women travelled from
parts of the state where fewer abortion facilities remained as a consequence of
H.B. 2.
B.
According to its interpretation of the Supreme Court’s holdings, the
district court’s opinion found no rational basis for the new provision and
condemned it as having a purpose or effect to stymie women’s abortion access.
The opinion repeatedly stated that the State produced “no evidence” that a
rational relationship exists between an abortion provider’s admitting
privileges to a hospital and improved patient care at emergency facilities
handling patient complications. Moreover, the opinion found “no evidence”
that admitting privileges to a hospital within thirty miles of the abortion
provider's clinic “address issues of patient abandonment, hospital costs, or
accountability.”
The opinion next concluded that the statute places an undue burden on
women seeking an abortion. In a brief four–paragraph discussion, the opinion
found that some (unidentified) abortion clinics will close and “24 counties in
the Rio Grande Valley would be left with no abortion provider because those
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abortion providers do not have admitting privileges and are unlikely to get
them.” Drawing on Hagstrom–Miller’s testimony, the opinion expressed
concern that older physicians associated with particular clinics will be unable
to qualify for hospital–admitting privileges and dismissed as overly optimistic
the notion that abortion providers would be able to find qualified replacement
physicians. The opinion also noted evidence showing that “the vast majority”
of abortion providers do not engage in enough surgical procedures to qualify
for admission to hospital staffs. Thus, by the opinion’s prediction, the closure
of facilities was essentially imminent and irreversible.
The opinion also held, in one sentence, that the State “fails to show a
valid purpose for requiring that abortion providers have hospital privileges
within 30 miles of the clinic where they practice.” Accordingly, the “purpose”
prong of the Casey inquiry was not satisfied as to this provision.
C.
The district court’s opinion took the wrong approach to the rational basis
test. Nothing in the Supreme Court’s abortion jurisprudence deviates from the
essential attributes of the rational basis test, which affirms a vital principle of
democratic self–government. 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. Heller v. Doe,
509 U.S. 312, 320 (1993) (providing that a state “has no obligation to produce
evidence to sustain the rationality of a statutory classification”). 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. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As
the Supreme Court has often stressed, the rational basis test seeks only to
determine whether any conceivable rationale exists for an enactment. F.C.C.
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v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (citing cases). 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. Id. at
315 (holding that “a legislative choice is not subject to courtroom fact–finding”).
Most legislation deals ultimately in probabilities, the estimation of the people’s
representatives that a law will be beneficial to the community. Success often
cannot be “proven” in advance. The court may not replace legislative
predictions or calculations of probabilities with its own, else it usurps the
legislative power. Heller, 509 U.S. at 319 (stating that rational basis review
“is not a license for courts to judge the wisdom, fairness, or logic of legislative
choices”); Beach Commc’ns, 508 U.S. at 315 (explaining that judicial deference
to legislative choice “preserve[s] to the legislative branch its rightful
independence and its ability to function”). A law “based on rational
speculation unsupported by evidence or empirical data” satisfies rational basis
review. Beach Commc’ns, 508 U.S. at 315. The fact that reasonable minds can
disagree on legislation, moreover, suffices to prove that the law has a rational
basis. Finally, there is no least restrictive means component to rational basis
review. Heller, 509 U.S. at 321 (holding that courts must accept a legislature’s
generalizations under rational basis review “even when there is an imperfect
fit between means and ends” or where the classification “is not made with
mathematical nicety”).
This rule of restraint is particularly important in the realm of
constitutional adjudication for a simple reason. If legislators’ predictions about
a law fail to serve their purpose, the law can be changed. Once the courts have
held a law unconstitutional, however, only a constitutional amendment, or the
wisdom of a majority of justices overcoming the strong pull of stare decisis, will
permit that or similar laws to again take effect.
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Viewed from the proper perspective, the State’s articulation of rational
legislative objectives, which was backed by evidence placed before the state
legislature, easily supplied a connection between the admitting–privileges rule
and the desirable protection of abortion patients’ health. Dr. Love, who trained
at an abortion facility and served as the Chairman of the Ob/Gyn section of St.
David’s Medical Center in Austin, testified before the Texas Legislature that
the general standard of care requires hospital privileges for physicians who
perform abortions. At trial, moreover, the State established that the
admitting–privileges requirement was based on the “rational speculation,” if
not empirical data, that the regulation “would assist in preventing patient
abandonment by the physician who performed the abortion and then left the
patient to her own devices to obtain care if complications developed.” Abbott,
734 F.3d at 411.
During these proceedings, Planned Parenthood conceded that at least
210 women in Texas annually must be hospitalized after seeking an abortion.
Witnesses on both sides further testified that some of the women who are
hospitalized after an abortion have complications that require an Ob/Gyn
specialist’s treatment. Against Planned Parenthood’s claims that these women
can be adequately treated without the admitting–privileges requirement, the
State showed that many hospitals lack an Ob/Gyn on call for emergencies.
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. As Dr. Thorp testified, the abortion provider
is most familiar with the patient’s medical history and therefore in the best
position to diagnose and correct a complication that arises from the abortion.
The State’s witnesses also explained that admitting–privileges requirement
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was needed to maintain the standard of care within the abortion practice. The
specter of Dr. Kermit Gosnell informed the testimony of Dr. Love and
Dr. Anderson, both of whom explained that the credentialing process entailed
in the regulation reduces the risk that abortion patients will be subjected to
woefully inadequate treatment. Applying the rational basis test correctly, we
have to conclude that the State acted within its prerogative to regulate the
medical profession by heeding these patient–centered concerns and requiring
abortion practitioners to obtain admitting privileges at a nearby hospital.
This conclusion is consistent with rulings from the Fourth and Eighth
Circuits sustaining admitting-privileges regulations similar to the one at issue
here. 11 Although Planned Parenthood points out that the law upheld by the
Eighth Circuit lacked a restriction similar to H.B. 2’s requirement that the
provider have privileges within 30 miles of the abortion facility, this is a
distinction without a difference. There is sufficient evidence here that the
geographic restriction has a rational basis. For example, the State cites the
recommendation from the National Abortion Foundation that abortion
patients searching for a doctor should find one who “[i]n the case of an
emergency” can “admit patients to a nearby hospital (no more than 20 minutes
away).” National Abortion Federation, Having an Abortion? Your Guide to
Good Care (2000). The rationale is further supported by Dr. Love’s testimony
that an abortion patient is likely to call her physician, who then “tells the
patient to meet the physician at the hospital where he or she has privileges.”
The geographic restriction allows this meeting to occur within 30 miles of
11Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Envlt. Control, 317 F.3d
357, 360, 363 (4th Cir. 2002) (holding a South Carolina regulation requiring abortion
providers to have admitting privileges at a local hospital to be “so obviously beneficial to
patients”); Women's Health Ctr. of W. Cnty., Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir.
1989) (ruling that a Missouri statute requiring abortion providers to have admitting
privileges “furthers important state health objectives”).
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where the abortion was performed. In any case, the State is not required
under rational basis review to choose the least restrictive means to achieve a
legitimate goal. Cf. Heller, 509 U.S. at 321. Thus, the geographic restriction
does not affect our conclusion that the admitting–privileges requirement, as
enacted, has a rational basis.
The Seventh Circuit recently questioned the constitutionality of a
Wisconsin admitting–privileges law. Planned Parenthood of Wisconsin, Inc. v.
Van Hollen, 738 F.3d 786 (7th Cir. 2013). The court was asked, however, only
whether the district judge was justified in entering a preliminary injunction
against the Wisconsin requirement. Id. at 788 (“All we decide today is whether
the district judge was justified in entering the preliminary injunction.”). The
difference between the procedural posture of the Seventh Circuit case and ours
is crucial for two reasons. First, unlike our review of the entry of a permanent
injunction after a trial on the merits, the Seventh Circuit’s ruling was based
on a pre–trial record, which the circuit court emphasized was “sparse” and
could be “critically altered” and “cast . . . in a different light” by the
presentation of evidence at trial. Id. at 788, 789, 799. Second, unlike H.B. 2,
which afforded abortion providers a grace period of more than 100 days to
apply for admitting–privileges, the Wisconsin provision was signed into law on
a Friday and became effective the following Monday. Id. at 788. The
immediate effective date of the Wisconsin law furnished “a compelling reason
for the preliminary injunction.” Id. at 789. Since it takes at least two months
to obtain admitting privileges in Wisconsin, the Van Hollen panel unanimously
agreed that the requirement could not have been complied with unless the
preliminary injunction was granted. Id. at 788–89, 793 (Posner, J.), 799
(Manion, J., concurring).
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To the extent that Van Hollen’s lengthy discussion of the merits of the
Wisconsin law conflicts with our ruling, however, we are unpersuaded by the
concerns of the majority. Van Hollen faults the state of Wisconsin for not
adducing statistical evidence that the admitting–privileges requirement will
make abortions safer. It complains that the record includes no evidence that
abortion complications are underreported, id. at 790, that these complications
require continuity of care more than other outpatient services, id. at 793, or
that women who have complications from an abortion receiver better care if
their abortion provider has hospital privileges, id. The first–step in the
analysis of an abortion regulation, however, is rational basis review, not
empirical basis review. Gonzales, 550 U.S. at 158. By suggesting that
Wisconsin needed to offer factual or statistical evidence, Van Hollen ignored
case law from its own circuit holding, consistent with the Supreme Court’s oft-
repeated guidance, that there is “never a role for evidentiary proceedings”
under rational basis review. Nat’l Paint & Coatings Ass'n, 45 F.3d at 1127.
Van Hollen also sees an equal protection problem lurking about the Wisconsin
legislature’s choice not to require that doctors who perform outpatient services
other than abortions also have admitting privileges. Van Hollen, 738 F.3d at
790. The appellate court posits that Wisconsin’s abortion providers have been
singled out by the state’s legislature despite the fact that plaintiffs submitted
no evidence that other outpatient doctors are actually treated differently under
Wisconsin law. Id. at 802 (Manion, J., concurring). There is no requirement,
moreover, that a state legislature address all surgical procedures if it chooses
to address one. States “may select one phase of one field and apply a remedy
there, neglecting the others.” Williamson v. Lee Optical of Okla. Inc., 348 U.S.
483, 489 (1955).
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D.
The district court’s opinion also erred in its application of the purpose
and effect prongs of the undue burden test. Casey holds that the legislature
may not enact an abortion regulation whose purpose is to create a substantial
obstacle to a woman seeking an abortion. The plaintiffs bore the burden of
attacking the State’s purpose here, yet the court imposed the burden on the
State to disprove an improper purpose. This is plainly backwards. As in
litigation generally, the burden of proving the unconstitutionality of abortion
regulations falls squarely on the plaintiffs. Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (reversing appellate court for enjoining abortion restriction
where plaintiffs had not proven that the requirement imposed an undue
burden); Casey, 505 U.S. at 884 (affirming provision where “there is no
evidence on this record” that the restriction would amount to an undue
burden). Moreover, the plaintiffs offered no evidence implying that the State
enacted the admitting privileges provision in order to limit abortions; in fact,
as their reply brief states, they did not attack the State's purpose at all. There
is thus no basis for a finding of impermissible purpose under Casey.
Even though the State articulated rational bases for this law, and even
though its purpose was not impugned, Planned Parenthood could succeed if
the effect of the law substantially burdened women's access to abortions in
Texas. In this respect as well, however, the opinion erred. Its findings are
vague and imprecise, fail to correlate with the evidence, and even if credited,
fail to establish an undue burden according to the Supreme Court's decisions.
First, the opinion invalidated the admitting–privileges provision as it
pertains to the entire state of Texas, but its only recitation of evidence
concerned “24 counties in the Rio Grande Valley,” which it predicted would be
left with no abortion provider. As an initial matter, the statement that both
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clinics in the Rio Grande Valley will close may be disregarded as clearly
erroneous based on the trial court record. Hagstrom–Miller and Ferrigno each
testified that there were two clinics in the Rio Grande Valley, yet the district
court accepted testimony regarding only one of them. 12 Even if we were to
accept that both clinics in the Rio Grande Valley were about to close as a result
of the admitting privileges provision, however, this finding does not show an
undue burden. To put this “finding” into perspective, of the 254 counties in
Texas only thirteen had abortion facilities before H.B. 2 was to take effect. The
Rio Grande Valley, moreover, has four counties, not twenty-four, and travel
between those four counties and Corpus Christi, where abortion services are
still provided, takes less than three hours on Texas highways (distances up to
150 miles maximum and most far less). In addition, Texas exempts from its
24-hour waiting period after informed consent those women who must travel
more than 100 miles to an abortion facility. Tex. Health & Safety Code
§ 171.012(a)(4).
As the motions panel correctly concluded, based on the trial court record,
an increase of travel of less than 150 miles for some women is not an undue
burden under Casey. Abbott, 734 F.3d at 415. Indeed, the district court
in Casey made a finding that, under the Pennsylvania law, women in 62 of
Pennsylvania’s 67 counties were required to “travel for at least one hour, and
sometimes longer than three hours, to obtain an abortion from
12 Hagstrom–Miller testified that the owner of the clinic in Harlingen—the only other
abortion provider, aside from the McAllen clinic, in the Rio Grande Valley—informed her
that he was planning on closing his clinic. The district court, however, excluded this
statement as hearsay. Planned Parenthood also submitted a written declaration from
Ferrigno, which contained the same hearsay statement as to the Harlingen clinic and which
the State objected to on hearsay grounds before trial. The district court noted the State’s pre-
trial evidentiary objections in its opinion. Without ruling on any of these objections, the court
indicated that its opinion relied only on admissible evidence. Abbott, 951 F. Supp. 2d at 896
n.3.
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the nearest provider.” Planned Parenthood of Se. Pa. v. Casey, 744 F. Supp.
1323, 1352 (E.D. Pa. 1990), aff’d in part, rev’d in part, 947 F.2d 682 (3d Cir.
1991), aff’d in part, rev’d in part, 505 U.S. 833 (1992). Upholding the law, the
Supreme Court recognized that the 24-hour waiting period would require some
women to make two trips over these distances. The Supreme Court
nonetheless held that the Pennsylvania regulation did not impose an undue
burden. We therefore conclude that Casey counsels against striking down a
statute solely because women may have to travel long distances to obtain
abortions. The record before us does not indicate that the admitting–privileges
requirement imposes an undue burden by virtue of the potential increase in
travel distance in the Rio Grande Valley. Cf. Casey, 505 U.S. at 887 (“Hence,
on the record before us, and in the context of this facial challenge, we are not
convinced that the 24–hour waiting period constitutes an undue burden.”).
Second, the opinion’s finding that “there will be abortion clinics that will
close” is too vague. The opinion made no “baseline” finding as to precisely how
many abortion doctors currently lack admitting privileges required by H.B. 2.
Planned Parenthood cannot resurrect its assertion that one–third of the state’s
clinics will close or over 22,000 women will be deprived of access to abortion
services each year because the district court also refused to accept these
findings. Although some clinics may be required to shut their doors, there is
no showing whatsoever that any woman will lack reasonable access to a clinic
within Texas. All of the major Texas cities, including Austin, Corpus Christi,
Dallas, El Paso, Houston, and San Antonio, continue to have multiple clinics
where many physicians will have or obtain hospital admitting privileges.
Evidence offered by Planned Parenthood showed that more than ninety
percent of the women seeking an abortion in Texas would be able to obtain the
procedure within 100 miles of their respective residences even if H.B. 2 went
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into effect. Abbott, 734 F.3d at 415. As the motions panel ruled, “[t]his does
not constitute an undue burden in a large fraction of the relevant cases.” Id.
Third, the record does not show that abortion practitioners will likely be
unable to comply with the privileges requirement. In a number of areas in
Texas, physicians who are performing abortions already have admitting
privileges. Both state and federal law prohibit hospitals from discriminating
against physicians who perform abortions when they grant admitting
privileges. 13 Further, it is undisputed that many hospitals extend admitting
privileges without regard to the number of hospital admissions that a
physician has had in the past. To be sure, the district court’s opinion also found
that the “vast majority” of abortion providers could not obtain privileges at
hospitals with a minimum admissions requirement because abortion providers
do “not generally yield any hospital admissions.” Abbott, 2013 WL 5781583, at
*5. Yet this finding proves little for the reason explained by the motions panel:
Even if some hospitals have annual admission requirements, it is
hardly surprising that the physicians identified by the plaintiffs
have virtually no history of hospital admissions since the experts
presented by the plaintiffs argued that it is the practice of many
abortion physicians to instruct their patients to seek care from an
emergency room if complications arise.
13 Texas law specifically prohibits discrimination by hospitals or health care facilities
against physicians who perform abortions. “A hospital or health care facility may not
discriminate against a physician, nurse, staff member or employee because of the person’s
willingness to participate in an abortion procedure at another facility.” TEX. OCC. CODE ANN.
§ 103.002(b) (West 2013). Texas law further provides a private cause of action for an
individual to enforce this non–discrimination right. Id. § 1003.003. Federal law similarly
prohibits any entity that receives a “grant, contract, loan, or loan guarantee under the Public
Health Service Act, the Community Mental Health Centers Act, or the Development
Disabilities Services and Facilities Construction Act” or a “grant or contract for biomedical
or behavioral research under any program administered by the Secretary of Health and
Human Services” from discriminating “in the extension of staff of other privileges to any
physician or other health care personnel . . . because he performed or assisted in the
performance of a lawful sterilization procedure or abortion.” 42 U.S.C. § 300a-7(c).
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Abbott, 734 F.3d at 416.
Moreover, the opinion drew the wrong lessons from Hagstrom–Miller’s
testimony when it relied on her “difficulties getting the current physicians” at
WWH in compliance with H.B. 2. Abbott, 951 F. Supp. 2d at 901. Hagstrom–
Miller described her efforts in obtaining admitting privileges for just two of her
organization’s current physicians—its primary physician in McAllen, who does
not qualify for admitting privileges because he is not a board–certified Ob/Gyn,
and a physician in Beaumont, whose application the hospital had yet to
process. The remainder of Hagstrom–Miller’s testimony concerned her
difficulties recruiting new physicians and retaining the physicians who had
previously done some work for WWH. These challenges were almost entirely
unrelated to H.B. 2. Four of the five physicians that she endeavored to recruit
could not be persuaded to join WWH because they felt deterred by the terms of
their existing employment. The fifth feared anti–abortion violence. None of
these reasons is connected with H.B. 2. As to the other physicians, who had
previously done some work with WWH, two were worried about the passage of
future legislation (not H.B. 2), three were prevented by their employers, and
one found work in New York. All told, only one of the physicians that
Hagstrom–Miller contacted declined to provide abortions in Texas as a
consequence of H.B. 2. Here again, we are in substantial accord with the
motions panel, which concluded that “many factors other than the hospital–
admitting–privileges requirement” affected abortion access in the Rio Grande
Valley. Abbott, 734 F.3d at 415. There is even less probative evidence
regarding the rest of the state. 14
14To the extent that the State and Planned Parenthood rely on developments since
the conclusion of the bench trial and during this appeal, we do not consider any arguments
based on those facts, nor do we rely on any facts asserted in amicus briefs. This opinions is
confined to the record before the trial court.
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E.
In sum, the district court’s opinion applied wrong legal standards on the
rational basis and purpose tests and clearly erred in finding that “24 counties
in the Rio Grande Valley would be left with no abortion provider.” With regard
to the remainder of the state, the district court opinion erroneously concluded
that H.B. 2 imposed an undue burden in a large fraction of the cases. The
evidence presented to the district court demonstrates that if the admitting–
privileges regulation burdens abortion access by diminishing the number of
doctors who will perform abortions and requiring women to travel farther, the
burden does not fall on the vast majority of Texas women seeking abortions.
Put otherwise, the regulation will not affect a significant (much less “large”)
fraction of such women, and it imposes on other women in Texas less of a
burden than the waiting–period provision upheld in Casey. Casey, 505 U.S. at
885-87. This suffices to sustain the admitting–privileges requirement.
F.
The court’s opinion rejected Planned Parenthood’s challenge to the
admitting–privileges provision on vagueness grounds and did not rule on
plaintiffs’ procedural due process and unlawful delegation claims. It is not
necessary to remand either of the unresolved arguments to the district court.
The unlawful delegation argument fails for the reasons set forth in Women’s
Health Center of West County, Inc. v. Webster, where the Eighth Circuit held:
The requirement that physicians performing abortions obtain
surgical privileges, which involves the independent action of a
public or private hospital, poses no more significant threat to
plaintiffs’ due process rights than the requirement that those
performing abortions be licensed physicians, which involves the
independent action of a medical licensing board.
871 F.2d 1377, 1382 (8th Cir. 1989). As for the procedural due process
argument, Planned Parenthood contends that H.B. 2 did not offer abortion
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providers a long enough “grace period” to comply with the admitting-privileges
provision. H.B. 2, however, gave abortion providers approximately 100 days to
apply for admitting privilege, which, on its face, is a sufficient grace period.
Atkins v. Parker, 472 U.S. 115, 130-31 (1985) (maintaining that “a grace period
of over 90 days” is adequate). By the same token, it would be absurd to enforce
H.B. 2 against physicians who timely applied for admitting privileges but have
not heard back from the hospital, which can take up to 170 days from the date
of application under Texas law. See TEX. HEALTH & SAFETY CODE § 41.101
(setting deadlines by which hospitals must act on admitting-privileges
applications). Obviously, it is unreasonable to expect that all abortion
providers will be able to comply with the admitting-privileges provision within
100 days where receiving a response from a hospital processing an application
for admitting privileges can take 170 days. Accordingly, we conclude that
pursuant to H.B. 2’s severability provision, § 10(b), the admitting–privileges
requirement may not be enforced against abortion providers who applied for
admitting privileges within the grace period allowed under H.B. 2, but are
awaiting a response from a hospital.
IV. Protocol for Medication Abortions
In addition to requiring hospital admitting privileges, H.B. 2 mandates
that medication abortions satisfy the protocol approved for such abortions by
the FDA and outlined in the final printed label (“FPL”) for the abortifacient
drug mifepristone. Since the FDA authorized the protocol for medication
abortions in 2000, doctors performing such abortions in Texas, and apparently
across the country, have developed an off–label protocol that differs from the
FDA–approved version in terms of dosage amounts and administration of the
two abortion drugs—mifepristone and misoprostol. In particular, although the
FPL limits the administration of a medication abortion to forty–nine days
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following a woman’s last menstrual period (“LMP”), doctors regularly
administer medication abortions up to sixty–three days LMP, and sometimes
as late as seventy days LMP.
In ruling on Planned Parenthood’s facial challenge of the medication
abortion regulations, the opinion found that such regulations do not impose an
undue burden on a woman seeking an abortion between one and forty–nine
days LMP. 15 Neither party challenges the district court’s conclusion on this
point. The opinion went further and found that H.B. 2 does place a substantial
obstacle in the path of a woman seeking an abortion between fifty and sixty–
three days LMP in situations where surgical abortion is not a medically sound
or safe alternative for her. Enjoining application of the law even beyond this
finding, however, the district court ruled that H.B. 2’s medication abortion
provisions, though constitutional, could not be enforced against any physician
who determined that using an off–label protocol for a medication abortion (i.e.,
performing a medication abortion between fifty and sixty–three days LMP)
was necessary “for the preservation of the life or health of the mother.” Abbott,
951 F. Supp. 2d at 908–09.
Planned Parenthood essentially concedes the constitutionality of the
FDA protocol as it applies to medication abortions between one and forty–nine
days LMP. Because we are required to decide a constitutional case on the
narrowest grounds presented, we will assume the district court meant to align
15 Recently, the Sixth Circuit upheld, in a 2-1 ruling, an Ohio abortion statute that
mandated adherence to the FDA–approved forty–nine day LMP limit for medication
abortions. Planned Parenthood S.W. Ohio Region v. DeWine, 696 F.3d 490 (6th Cir. 2012).
The Sixth Circuit reasoned that the constitution protects a woman’s right to have an abortion,
but it does not protect a woman’s choice in the method of abortion. Id. at 514–15. The court
found no evidence that banning medical abortions after forty–nine days LMP imposed an
undue burden on a woman’s right to bodily integrity or to choose abortion, or that an alleged
increase in costs and mandatory doctor visits constituted an undue burden as compared to
what the Supreme Court rejected in Casey. Id.
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the scope of the injunction with the narrower scope of its reasoning. Planned
Parenthood’s defense of the injunction accords with this view. Our discussion
is thus confined to the question whether the district court erred in holding that
H.B. 2’s rejection of the off–label protocol from fifty to sixty–three days LMP
constitutes an undue burden on the abortion rights of women who, because of
particular gynecological abnormalities, cannot safely undergo surgical
abortion during that period. See Gonzales, 550 U.S. at 161.
A.
During trial, both sides presented expert witness testimony and
declarations opining on the safety and efficacy of medication abortions. For
Planned Parenthood, Dr. Fine stated his opinion that H.B. 2’s medication
abortion requirements are medically unnecessary and will not improve patient
health and safety. In particular, Dr. Fine stated that off–label medication
abortions are very safe and highly effective through sixty–three days LMP and
that although the FDA has placed certain limitations on the use of
mifepristone, those limitations have never required physicians to stop using it
after forty–nine days LMP. Dr. Fine indicated that medication abortions are
preferable to surgical abortions for women who want to have more personal
control over the process or who fear the invasive nature of a surgical abortion.
Dr. Fine also asserted that some women have medical conditions that make
first–trimester surgical abortion extremely difficult, if not impossible. These
scenarios include women who are extremely obese, have uterine fibroids
distorting normal anatomy, have a uterus that is very flexed, or have certain
uterine anomalies, such as a malformed uterus. Dr. Fine also opined that
medication abortions may be significantly safer than surgical abortions for
women who have a stenotic cervix or have undergone female genital
mutilation. These latter conditions make it very difficult to dilate a woman’s
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cervix, and Dr. Fine stated that performing a surgical abortion on a woman
suffering from such conditions would put her at greater risk of damage to her
cervix as well as other complications, such as uterine perforation. The bottom
line, according to Dr. Fine, is that for women who suffer from certain medical
conditions that make surgical abortion significantly more risky, H.B. 2 acts as
a ban to previability abortion after forty–nine days LMP.
The State, on the other hand, adduced reasons for upholding the FDA
protocol in its entirety, irrespective of a life and health exception. As to the
FDA–approved forty–nine day LMP limit, the State’s expert, Dr. Donna
Harrison, pointed out that the FDA’s approval of mifepristone as an
abortifacient hinged on the imposition of post–approval restrictions, which
have included requiring women to sign a Patient Agreement before using
mifepristone. Among other things, the Patient Agreement requires a woman
to confirm prior to the medication abortion that she believes she is no more
than forty–nine days pregnant. Dr. Harrison also emphasized how medical
research has shown that drug–induced abortions present more medical
complications and adverse events than surgical abortions, with six percent of
medication abortions eventually requiring surgery to complete the abortion,
often on an emergency basis. With this statistic in mind, Dr. Harrison opined
that when surgery is already contraindicated for a woman, it would be
medically irresponsible and contrary to her best interest for a physician to
submit her to a medication abortion, for in the event an emergency surgical
abortion is later needed, she will be placed at an even higher risk of adverse
health results.
B.
Considering the evidence, the district court opinion found that “there are
certain situations where medication abortion is the only safe and medically
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sound option for women with particular physical abnormalities or preexisting
conditions.” Abbott, 951 F. Supp. 2d at 907. The opinion also concluded, while
noting it had no specific evidence on the point, that “it is possible that a sizeable
fraction of women may [first] discover pregnancy or elect abortion during the
period from 50 to 63 days LMP.” Id. at 906 n.20. Accordingly, the opinion
found that for women who discover or elect abortion between fifty and sixty–
three days LMP, but for whom surgical abortion represents a significant health
risk, H.B. 2’s regulations of medication abortion “act as a total method ban
after 49 days LMP,” thereby “plac[ing] a substantial obstacle” in the way of a
woman’s right to abortion. Id. at 907. The opinion emphasized that H.B. 2 did
not fail constitutional review due to the lack of a specific health–of–the–mother
exception. Nevertheless, the court enjoined enforcement of H.B. 2’s medication
abortion regulations “to the extent those provisions prohibit a medication
abortion where a physician determines in appropriate medical judgment, [that]
such a procedure is necessary for the preservation of the life or health of the
mother.” The court’s injunction also indiscriminately enjoined the State from
enforcing certain H.B. 2 requirements that Planned Parenthood never
challenged and that have nothing to do with patients’ access to drug-induced
abortions. 16 Indeed, Planned Parenthood does not seek to affirm this part of
the injunction on appeal.
16As summarized by this court in its prior opinion,
The Final Judgment . . . removes the requirement in [Texas Health and Safety Code]
§ 171.063(c) that before the physician may dispense or administer an abortion–
inducing drug, he or she must examine the pregnant woman and document, in the
patient’s medical record, the gestational age, and intrauterine location of the
pregnancy. The injunction similarly inexplicably removes the requirement in
§ 171.063(e) that the physician schedule a follow-up visit for a woman who has
received an abortion–inducing drug not more than 14 days after the administration of
the drug and the requirement that at that follow–up visit, the physician must
determine whether the pregnancy is completely terminated and assess the degree of
bleeding. The injunction likewise removes the applicability of § 171.063(f), which also
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C.
To evaluate the district court’s partial injunction against H.B. 2’s
medication abortion regulations, we turn once more to Gonzales. In Gonzales
the Supreme Court considered whether the Partial–Birth Abortion Ban Act of
2003 (“the Act”), which otherwise passed constitutional muster against the
respondents’ facial challenges, had the effect of imposing an unconstitutional
burden on a woman’s right to abortion because it did not allow the use of intact
dilation and evacuation (“D & E”) where “necessary, in appropriate medical
judgment, for the preservation of the . . . health of the mother.” Gonzales,
550 U.S. at 161 (internal quotation marks omitted) (quoting Ayotte v. Planned
Parenthood of N. New Eng., 546 U.S. 320, 327-28 (2006)). In addressing this
issue, the Court reasoned that the lack of a health exception in an abortion
statute imposes an unconstitutional burden on a woman’s right to abortion if
it subjects a woman to significant health risks. 17 Id.
pertains to the follow–up visit. There is no indication from the district court’s opinion
that there is any constitutional infirmity in these sections.
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 418-19
(5th Cir. 2013).
17 The State suggests that introductory language to H.B. 2 specifies a general
statutory intent to preserve the life or health of the mother, by stating: “[T]his Act does not
apply to abortions that are necessary to avert the death or substantial and irreversible
physical impairment of a major bodily function of the pregnant woman.” Section 1(4)(B).
According to the State, this language, plus its in-court assurances that no physician would
be prosecuted for a medication abortion outside the FDA protocol if the health of the woman
was jeopardized as provided, renders the district court's inclusion of its own health provision
redundant. We doubt that the statute creates a general limitation. First, the language
appears in a provision that describes only H.B. 2’s prohibition on late–term abortions, which
is not at issue in this case. It is arguable that this health of the mother language concerns
only late–term abortions. Second, even if a legislature’s statutory declarations of purpose, as
opposed to its affirmative dictates, apply in holistic interpretation of the entire statute, this
language does not appear broad enough to cover the type of reproductive system
abnormalities or conditions that, according to Dr. Fine, render medication abortions safer for
certain women during the 50-63 day LMP window at issue here. Because of the above
disposition, however, we do not resolve this issue.
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The respondents in Gonzales proffered evidence concerning intact D & E,
including that it “was safer for women with certain medical conditions or
women with fetuses that had certain anomalies.” Id. Despite this evidence,
the Court found that the Act’s lack of a health exception did not facially impose
an undue burden on the right to abortion because (1) there was medical
disagreement as to whether prohibiting intact D & E as a method of abortion
would actually impose a significant health risk on women, 18 id. at 162-64;
(2) alternative methods to intact D & E remained available for women seeking
abortions, id. at 164; and (3) the Act still allowed performance of another
“commonly used and generally accepted” method of abortion, id. at 165.
In light of this precedent, we conclude that H.B. 2’s regulations on
medication abortion, like the Act in Gonzales, do not facially require a court–
imposed exception for the life and health of the woman. First, we emphasize
that the conditions that supposedly require off-label protocol have not been
clearly defined. The district court’s opinion asserted that such cases include
women who are “extremely obese” or who have “certain uterine anomalies.”
Abbott, 951 F. Supp. 2d at 906 n.18. As the State argued, granting an
injunction to this vague group would effectively give doctors wide latitude to
prescribe the medication between 49 and 63 days LMP. Second, although Dr.
Fine baldly asserts that surgical abortion is nearly, if not actually, impossible
for a particular subset of women, Planned Parenthood has not pointed this
court to any evidence of scientific studies or research in the record showing this
to be true. See Gonzales, 550 U.S. at 162. Moreover, there appears to be
disagreement over whether medication abortions are actually safer for that
18The petitioners in Gonzales offered evidence from doctors who had testified before
Congress and in the lower courts that the alleged health advantages of intact D & E “were
based on speculation without scientific studies to support them.” Gonzales, 550 U.S. at 162.
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same subset of women, at least when subsequent emergency surgical abortions
are necessary. Third, H.B. 2, unlike the Act in Gonzales, does not ban an entire
abortion method. Rather, it merely shortens the window during which a
woman may elect to have a medication abortion, leaving open the possibility
for any woman to have a medication abortion up to forty–nine days LMP.
Although Dr. Fine mentioned in passing that many women do not detect
pregnancies until they are close to forty–nine days LMP, there is no evidence
that such women are unable to obtain a medication abortion before the forty–
nine day FDA–approved window closes. The district court’s opinion
speculated, absent any evidence, that at least some women for whom surgical
abortion is contraindicated will likely not discover or choose abortion until
after forty–nine days LMP. Abbott, 951 F. Supp. 2d at 906 n.20. Courts,
however, must base decisions on facts, not hypothesis and speculation.
This brings us to our final point. The Gonzales court noted in closing
that the respondents’ facial attack on the Act should not have been entertained
in the first place because “the proper means to consider exceptions is by as–
applied challenge.” Gonzales, 550 U.S. at 167. Facial challenges impose a
“‘heavy burden’ upon the parties maintaining the suit” because there is often
too little evidence to show that a particular condition has in fact occurred or is
very likely to occur. Id. That is the case here. We follow in the Supreme
Court’s footsteps by noting that in an as–applied challenge, which is the proper
means of challenging the lack of an exception to the regulations at issue, “the
nature of the medical risk can be better quantified and balanced than in a facial
attack.” Id. As this case currently stands, H.B. 2 on its face does not impose
an undue burden on the life and health of a woman, and the district court erred
in finding to the contrary. We underscore that nothing in our opinion or the
law as we have affirmed it detracts from Casey’s requirement regarding
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abortion restrictions where the abortion is necessary to preserve the life of the
mother. Casey, 505 U.S. at 879.
Because the district court’s opinion erred in holding that H.B. 2’s
rejection of the off–label protocol from fifty to sixty–three days LMP facially
imposes an undue burden on the abortion rights of certain women, we need not
address whether the district court enforced the injunction beyond the scope of
the evidence before it.
V.
For these reasons, the district court’s judgment is REVERSED and
RENDERED for the State of Texas, except that the admitting privileges
requirement, § 10(b), may not be enforced against abortion providers who
timely applied for admitting privileges under the statute but are awaiting a
response from the hospital.
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