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Whole Woman's Health v. Cole

United States Court of Appeals, Fifth Circuit

June 9, 2015

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

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Western District of Texas.

For Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Nova Health Systems, SHERWOOD C. LYNN, JR., Medical Doctor, On behalf of themselves and their patients, PAMELA J. RICHTER, D.O., On behalf of themselves and their patients, LENDOL L. DAVIS, Medical Doctor, On behalf of themselves an their patients, Plaintiffs - Appellees Cross-Appellants: Stephanie Toti, Esq., Staff Attorney, David Patrick Brown, Center For Reproductive Rights, U.S. Legal Program, New York, NY; Esha Bhandari, Center for Reproductive Rights, Immigrants' Rights Project, New York, NY; Betre Mussie Gizaw, Morrison & Foerster, Washington, DC; Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY; Patrick J. O'Connell, O'Connell & Soifer, L.L.P., Austin, TX; Jan Soifer, O'Connell & Soifer, L.L.P., Austin, TX.

For KIRK COLE, Medical Doctor, 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 - Appellant Cross-Appellees: Scott A. Keller, Solicitor, Office of the Solicitor General for the State of Texas, Austin, TX; James Davis Blacklock, Senior Counsel, Office of General Counsel for the Governor of Texas, Austin, TX; Beth Ellen Klusmann, Esq., Office of the Attorney General, Office of the Solicitor General, Austin, TX; Michael P. Murphy, Office of the Attorney General, Office of the Solicitor General, Austin, TX; Andrew S. Oldham, Deputy General Counsels, Office of the Attorney General, Office of the Solicitor General, Austin, TX.

For American Center For Law And Justice, Houston Coalition For Life, Amici Curiae: Walter Martin Weber, Stuart J. Roth, American Center for Law & Justice, Washington, DC; CeCe Heil, Jay A. Sekulow, Esq., American Center for Law & Justice, Virginia Beach, VA.

For John Carona, Bob Deuell, Craig Estes, Kelly Hancock, Robert Nichols, Charles Perry, Charles Schwertner, M.D., Kel Seliger, Larry Taylor, Trent Ashby, Jimmie Don Aycock, Cecil Bell, Jr., Dwayne Bohac, Cindy Burkett, Angie Chen-Button, Travis Paul Clardy, Myra Crownover, Tony Dale, Dan Flynn, John Frullo, Linda Harper-Brown, Todd Hunter, Jason Isaac, Kyle Kacal, James Keffer, John Keumpel, Philip King, Matt Krause, Lyle Larson, Jeff Leach, Jodie Laubenberg, Geanie Morrison, Douglas Miller, Rick Miller, Chris Paddie, Debbie Riddle, Kenneth Sheets, David Simpson, Ron Simmons, John Smithee, Drew Springer, James White, Paul Workman, John M. Zerwas, M.D., Amici Curiae: Mailee Rebecca Smith, Esq., Americans United for Life, Washington, DC.

For Alliance Defending Freedom, Amicus Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC.

For American Association of Pro-Life Obstetricians & Gynecologists, Donna Harrison, M.D., Heidi Group, And Then There Were None, Abby Kristen Johnson, Life Legal Defense Foundation, Amici Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA; Gregory R. Terra, Texas Center for Defense of Life, Georgetown, TX.

For Texas Center For Defense of Life, Amicus Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA.

For Carol Everett, Amicus Curiae: Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA; Gregory R. Terra, Texas Center for Defense of Life, Georgetown, TX.

For Women Injured by Abortion, Dawn Milberger, Amici Curiae: Allan Edward Parker Jr., Justice Foundation, San Antonio, TX.

For Charles Anderson, Dennis Bonnen, Greg Bonnen, Giovanni Capriglione, John E. Davis, Pat Fallon, Allen Fletcher, James Frank, Bryan Hughes, Stephanie Klick, George Lavender, Jim Murphy, John Otto, Tan Parker, Larry Phillips, Jim Pitts, Scott Sanford, Matt Schaefer, Jonathan Stickland, Ed Thompson, Steve Toth, Scott Turner, Bill Zedler, Rodney Anderson, Wayne Faircloth, Mark Keough, Brooks Landgraf, Dade Phelan, Matt Rinaldi, Mike Schofield, Matt Shaheen, Stuart Spitzer, Molly S. White, John Wray, Brian Birdwell, Donna Campbell, Brandon Creighton, Troy Fraser, Glenn Hegar, Jr., Eddie Lucio, Jr., Jane Nelson, Bob Hall, Don Huffines, Texas Eagle Forum, Association of American Physicians & Surgeons, Incorporated, Texas Right to Life, Eagle Forum Education And Legal Defense Fund, Van Taylor, Amici Curiae: Lawrence John Joseph, Washington, DC.

For Planned Parenthood Center For Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Amici Curiae: Carrie Yvette Flaxman, Planned Parenthood Federation of America, Washington, DC.

For American College of Obstetricians And Gynecologists, American Medical Association, Amici Curiae: Kimberly A. Parker, WilmerHale, Washington, DC.

Before PRADO, ELROD, and HAYNES, Circuit Judges.

OPINION

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PER CURIAM:

Plaintiffs, Texas abortion providers, sued State of Texas officials (" the State" )[1] 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.

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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, 46 F.Supp.3d 673, 676 (W.D. Tex. 2014) (emphasis added). The State appeals the entry of declaratory and injunctive relief.[3] Plaintiffs cross-appeal the dismissal of their additional equal-protection and unlawful-delegation claims.

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, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). As with the case before us, Roe dealt with a challenge to Texas's regulation of abortion. Texas's penal code made it a crime punishable by imprisonment to procure or attempt to procure an abortion unless medically necessary to save the life of the mother. Id. at 117-18 & n.1. Unlike the law presently challenged, the Texas law was not of recent vintage. First enacted in 1854 with few substantial modifications, it was a century old at the time of Roe. See id. at 116, 119. Nor was Texas's law unique; a majority of the states had similar laws. See id. at 116, 118 & n.2.

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

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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, 476 U.S. 747, 759, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986); Akron v. Akron Ctr. for Reprod. Health, Inc. ( Akron I ), 462 U.S. 416, 420, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), before its framework was modified in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Because Roe allowed regulations during the second trimester that were " reasonably related

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to maternal health," 410 U.S. at 164, the Court had to determine the reasonableness of various health regulations. Some health-based regulations extended into the first trimester, some regulations were based on an interest in potential life but extended into the first or second trimester, and other regulations were said to be justified by interests not recognized in Roe. As the Supreme Court reviewed these regulations, two considerations often played a part in the analysis: (1) whether the regulation placed a substantial obstacle in the path of a woman's choice to obtain an abortion; [4] and (2) whether the regulation was reasonably related to a legitimate government interest.[5]

Relevant here, the Supreme Court addressed various state laws regulating the facilities in which abortions are performed.[6] In Doe v. Bolton, 410 U.S. 179,

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93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court considered a requirement that all abortions be performed " in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals" (" JCAH" ). Id. at 184. The Court held that the requirement did not withstand constitutional scrutiny because it was " not based on differences that are reasonably related to the purposes of the Act in which it is found." Id. at 194 (internal quotation marks omitted). In so concluding, the Court explained that the JCAH standards were general hospital standards not specific to abortion and the state did not require that the performance of non-abortion surgeries be constrained to JCAH-accredited hospitals. See id. at 193. The Court further found the regulation unconstitutional under Roe because it applied to abortions performed during the first trimester. Id. at 195.

In Akron I, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687, overruled in part by Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674, the Court parsed how stringently states could regulate abortion to protect a mother's health at different stages of pregnancy. It explained that even during the first trimester, " [c]ertain regulations that have no significant impact on the woman's exercise of her right may be permissible where justified by important state health objectives." Id. at 430. The Court required these regulations to " not interfere" with the doctor-patient consultation or the woman's choice to obtain an abortion. Id. During the second trimester, it allowed states to " regulate the abortion procedure to the extent that the regulation reasonably 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, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755, the Supreme Court upheld a state requirement that all second-trimester abortions be performed in a state-licensed " outpatient surgical hospital." Id. at 515. The Court explained that the law differed materially from that in Akron I :

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

Page 571

" 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, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a divided Court revisited Roe. In a joint opinion, Justices O'Connor, Kennedy, and Souter announced the judgment of the Court and delivered the opinion of the Court as to some parts. Id. at 843-44. Although parts of the joint opinion were a plurality not joined by a majority of the Court, the joint opinion is nonetheless considered the holding of the Court under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), as the narrowest position supporting the judgment.[7]

The Court first reaffirmed Roe 's " essential holding" that before viability a woman has a constitutional right to choose to terminate her pregnancy.[8] See 505 U.S. at 870-71. The Court went on, however, to modify the jurisprudence, reasoning that the legitimate interests of the states as recognized in Roe were " given too little acknowledgment and implementation by the Court in its subsequent cases," which decided that " any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest." Id. at 871 (citing by example Akron I, 462 U.S. at 427). The Court found it " an overstatement to describe [the abortion right] as a right to decide whether to have an abortion 'without interference from the State.'" Id. at 875 (quoting Danforth, 428 U.S. at 61). Those cases that struck down an abortion regulation, " which in no real sense deprived women of the ultimate decision

Page 572

. . . . went too far." Id. Thus, the Court concluded that, in practice, Roe 's trimester framework had not given proper effect to the states' legitimate interests, which the Court found exist throughout pregnancy. See id. at 872-73, 875-76.

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, 462 U.S. at 444, and Thornburgh, 476 U.S. at 762). It found the requirement was " a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion," serving the state's " legitimate goal of protecting the life of the unborn." Id. at 883. The Court concluded that " [t]his requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden." Id. [9]

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,

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462 U.S. at 450). The Court addressed the district court's finding that the 24-hour waiting period, combined with the driving distances to abortion providers, would often produce delays of more than one day, and " for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be particularly burdensome." Id. at 886 (internal quotation marks omitted). Despite acknowledging that " the waiting period ha[d] the effect of increasing the cost and risk of delay of abortions," the Court held that the findings did not demonstrate an undue burden. Id. (internal quotation marks omitted). The Court reasoned that, although the district court found the requirement imposed a heavier burden on some women, " [a] particular burden is not ...


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