Planned Parenthood of Greater Texas Surgical Health Services v. Abbott

REVISED OCTOBER 9, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 9, 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

ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion March 27, 2014, 748 F.3d 583)

No. 13-51008

Before JONES, ELROD, and HAYNES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The Petition for Rehearing is DENIED. Judge Dennis dissents from the

court’s denial of rehearing en banc and his dissent is attached.

The court having been polled at the request of one of its members, and a

majority of the judges who are in regular active service and not disqualified

not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.

In the en banc poll, 3 judges voted in favor of rehearing (Judges Dennis,

Graves, and Costa) and 12 judges voted against rehearing (Chief Judge

Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod,

Southwick, Haynes, and Higginson).

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

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JAMES L. DENNIS, Circuit Judge, dissenting:

I respectfully but emphatically dissent from the court’s refusal to rehear

this case en banc. In upholding Texas’s unconstitutional admitting-privileges

requirement for abortion providers and medication-abortion restrictions, the

panel opinion flouts the Supreme Court’s decision in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), by refusing to apply

the undue burden standard expressly required by Casey. Instead, the panel

applied what effectively amounts to a rational-basis test—a standard rejected

by Casey—under the guise of applying the undue burden standard. The panel’s

assertion that it applies Casey is false because it does not assess the strength

of the state’s justifications for the restrictive abortion laws or weigh them

against the obstacles the laws place in the path of women seeking abortions,

as required by Casey. A correct application of the Casey undue burden

standard would require that the admitting-privileges provision and

medication-abortion restrictions be stricken as undue burdens because the

significant obstacles those legal restrictions place in the way of women’s rights

to previability abortions clearly outweigh the strength of their purported

justifications.

If not overruled, the panel’s sham undue burden test will continue to

exert its precedential force in courts’ review of challenges to similar types of

recently minted abortion restrictions in Texas, Louisiana, and Mississippi. See

Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014); Whole

Woman’s Health v. Lakey, No. 1:14-CV-284-LY, 2014 WL 4346480 (W.D. Tex.

Aug. 29, 2014); June Med. Servs., LLC v. Caldwell, No. 3:14-CV-525-JWD-

RLB, 2014 WL 4296679 (M.D. La. Aug. 31, 2014). Moreover, the panel opinion

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deepens a circuit split, 1 and has been criticized by other federal courts.

Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014)

(“We conclude that Abbott . . . [is] inconsistent with the undue burden test as

articulated and applied in [the relevant Supreme Court case law.]”); see also

Planned Parenthood Se. Inc., v. Strange, No. 2:13-CV-405-MHT (WO), 2014

WL 1320158, at *9-10 (M.D. Ala. Mar. 31, 2014) (hereinafter “Strange I”)

(criticizing Abbott panel’s application of the Casey undue burden test). In

disclaiming its duty to correct the panel’s perversion of the undue burden

standard, a majority of this court effectively ensures that laws, like the Texas

law challenged here, that substantially chop away at a woman’s right to a

previability abortion, will be given only a modicum of scrutiny, essentially

giving states carte blanche with respect to the regulation of the right to an

abortion. This court’s abject deference to state authority annihilates any “real

substance” to the vital individual constitutional interest at stake: “the urgent

claims of the woman to retain the ultimate control over her destiny and her

body, claims implicit in the meaning of liberty.” Casey, 505 U.S. at 869.

***

In Casey, the Supreme Court of the United States reaffirmed the right

announced in Roe v. Wade, 410 U.S. 113 (1973)—“the right of the woman to

choose to have an abortion before viability and to obtain it without undue

interference from the State.” 505 U.S. at 846 (plurality opinion). The Casey

Court simultaneously recognized and endorsed “the principle that the State

1See Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013)

(upholding a preliminary injunction of a nearly identical admitting-privileges provision);

Planned Parenthood Ariz., Inc., et al, v. Humble, 753 F.3d 905, 914 (9th Cir. 2014) (holding

that the Arizona law restricting the provision of medication that induces abortion is likely

unconstitutional).

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has legitimate interests from the outset of the pregnancy in protecting the

health of the woman and the life of the fetus that may become a child.” Id. A

controlling plurality of the Court, striking a balance between the state’s

legitimate interests and a woman’s constitutionally protected liberty interest,

announced that a State regulation goes too far in pursuing its legitimate

interests when it imposes an “undue burden” on a woman’s ability to choose an

abortion. Id. at 874 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).

All federal courts are obliged to apply the principles and governing

standard announced in Casey to determine the constitutionality of a state law

challenged as imposing an undue burden on the woman’s ability to choose to

procure an abortion. We must perform this duty in order to give “real

substance to the woman's liberty,” id. at 869, while at the same time fully

honoring the State’s ability to pursue, in good faith, its own acknowledged

legitimate interests.

On July 18, 2013, the Governor of Texas signed into law House Bill 2

(“H.B. 2”), which contains several provisions regulating abortions. Among its

provisions, H.B. 2 requires that all doctors who provide abortions must have

admitting privileges at a hospital within 30 miles of where each abortion is

performed. See TEX. HEALTH & SAFETY CODE § 171.0031(a)(1). On September

27, 2013, the Plaintiffs filed this lawsuit in the United States District Court

for the Western District of Texas against the Attorney General of Texas,

Gregory Abbott, and others, challenging the constitutionality of, inter alia,

H.B. 2’s admitting-privileges requirement. After a bench trial, the district

court held that the admitting-privileges requirement is unconstitutional and

enjoined its enforcement. Planned Parenthood of Greater Tex. Surgical Health

Servs. v. Abbott, 951 F. Supp. 2d 891, (W.D. Tex. 2013). A motions panel of this

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No. 13-51008

court stayed the decision pending appeal, Planned Parenthood of Greater Tex.

Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013) (“Abbott I”), and

a merits panel reversed and rendered judgment for the State of Texas, except

that “the admitting privileges requirement, . . . may not be enforced against

abortion providers who timely applied for such privileges under the statute but

are awaiting a response from a hospital.” 748 F.3d 583, 695 (5th Cir. 2014)

(“Abbott II”).

The Abbott II panel decision conflicts with the Supreme Court’s decision

in Casey in various ways. This dissenting opinion will be limited to a

discussion of Abbott II’s analysis and conclusions regarding H.B. 2’s admitting-

privileges provision because it is within that portion of the panel decision

where the panel most egregiously errs in its application of Casey. 2 Specifically,

2 The district court also enjoined H.B. 2’s ban on medication-induced abortion

performed after 49 days of pregnancy as applied to a woman for whom a physician, in his or

her sound medical opinion, determines that a medication abortion between 50 and 63 days

from the woman’s last menstrual period (“LMP”) is necessary to preserve her health or life.

The Abbott II panel reversed this ruling. As noted herein, this dissenting opinion will be

focused primarily on a discussion of H.B. 2’s admitting-privileges provision. That being said,

I believe the panel’s decision upholding H.B. 2’s medication-abortion provision is

constitutionally invalid for the reasons briefly outlined in this footnote.

First, the Abbott II panel characterized the Plaintiffs’ challenge as a purely facial

challenge, when Plaintiffs in fact brought both a facial challenge and a pre-enforcement, as-

applied challenge to the medication-abortion provision. As the Plaintiffs contend in their

petition for rehearing en banc, their initial complaint asked the district court to (1) enjoin the

medication abortion restriction as a whole [i.e., facially] and, alternatively, (2) enjoin the

restriction “as applied to women with gestational ages greater than 49 days LMP for whom

a medication abortion is necessary, in their doctor’s appropriate medical judgment, to protect

their lives or health.” (emphasis added). The district court rejected Plaintiffs’ facial challenge

and granted Plaintiffs partial relief, finding that, as applied to women for whom surgical

abortion is a significant health risk, the law imposes an undue burden. Abbott, 951 F. Supp.

2d, at 907. The Abbott II panel inexplicably characterized this partial, as-applied injunction

as a facial remedy, and rejected it largely on that basis. Abbott II, 748 F.3d at 604 (“[W]e

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 . . . . 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.”) (emphasis added). The fact that Plaintiffs’

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No. 13-51008

challenge was brought pre-enforcement does not render it purely “facial” and therefore an

improper means to challenge the regulation’s health exceptions, or lack thereof. Rather,

Gonzales affirmed the availability of pre-enforcement as-applied challenges. Gonzales v.

Carhart, 550 U.S. 124, 167 (2007) (“[P]reenforcement as-applied challenges to the Act can be

maintained”) (emphasis added). A pre-enforcement, as-applied challenge is just what was

brought here, and the district court, rejecting the facial challenge, properly granted the

Plaintiffs the alternative remedy they requested.

Further, the Gonzales Court was asked to invalidate the Act at issue in its entirety—

a “facial” remedy—because the provision lacked a health exception. Gonzales, 550 U.S. at

166-67 (“The Act is not invalid on its face where there is uncertainty over whether the barred

procedure is ever necessary to preserve a woman’s health . . .”). Unlike the Court in Gonzales,

the Abbott II panel was asked to determine whether the district court erred in enjoining the

medication abortion restrictions as-applied to a certain group of women—the Abbott II panel

was never tasked with determining whether the lack of a health exception for this class of

women should invalidate the provision in toto. Thus this language from the Gonzales Court

that the Abbott II panel cited to is not directly applicable. The Abbott II panel misconstrued

Gonzales when it wholesale rejected Plaintiffs’ challenge to the medication-abortion

restrictions because it was, in part, a facial challenge.

Even if we were to construe the Plaintiffs’ challenge to H.B. 2’s medication abortion

restrictions as a purely facial challenge, the Abbott II panel’s conclusion here was nonetheless

erroneous. First, the Supreme Court has recently explained that “the distinction between

facial and as-applied challenges” has no “automatic effect” on the “pleadings and disposition”

of a case. Citizens United v. FEC, 558 U.S. 310, 331 (2010); see also Richard H. Fallon, Jr.,

Fact and Fiction About Facial Challenges, 99 CAL. L. REV. 915, 935 (2011) (“Powerful

evidence that the Supreme Court routinely entertains, and not infrequently upholds, facial

challenges emerges from examination of the leading cases under a broad range of

constitutional provisions . . . . A survey of leading cases unmistakably demonstrates that the

Court has held statutes wholly invalid under nearly every provision of the Constitution under

which it has adjudicated challenges to statutes.”). Accordingly, rejecting the Plaintiffs’

challenge because it is a “facial” challenge does not comport with the Court’s instruction that

the distinction between facial and as-applied should not mandate a particular result.

Moreover, and critically, H.B. 2 contains an express severability provision, clearly

indicating the Texas legislature’s intent to allow courts to construct narrowly-drawn

remedies that preserve as much of the law that complies with the constitution. See 2013 Tex.

Sess. Law Serv. 2nd Called Sess. Ch. 1 (H.B. 2), Section 1(b) (“The legislature intends that

every application of this statute to every individual woman shall be severable from each

other.”). Here, the district court, in accordance with the severability provision, enjoined the

law only to the extent that it imposed a substantial obstacle upon a certain, defined group of

women. In so doing, the district court crafted a narrowly drawn remedy, after making

findings of fact that are substantially supported by the record. Specifically, the district court

made a finding of fact that “there are certain situations where medication abortion is the only

safe and medically sound option for women with particular physical abnormalities or

preexisting conditions.” Abbott, 951 F. Supp. 2d, at 907 (footnote detailing these medical

conditions omitted). This finding is adequately supported by the record evidence, survives

clear error review, and therefore must be upheld by this court. This finding also supports

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this dissent will focus on three main points of error, any one of which warrants

en banc consideration or correction by the Supreme Court. First, the Abbott

panel failed to weigh the magnitude of the burden that the admitting-

privileges requirement places on a woman’s right to abortion against the

strength of the State’s justification for the law, in order to determine whether

the State’s justifications are robust enough to warrant the restriction and

corollary burdens. As will be explained infra, this weighing of burdens and

justifications constitutes the very heart of the inquiry into whether a burden

is “undue” within the meaning of Casey, and the Abbott II panel’s patent failure

to conduct this inquiry necessitates en banc review. Second, the panel

misinterpreted and misapplied Casey’s “large fraction” test by disregarding the

effect of the law in light of the relevant context and circumstances faced by the

women for whom the law is relevant (i.e. for whom it actually burdens).

Finally, it is also necessary to reconsider the panel decision en banc because,

although purporting to apply clear error review, as required by Supreme Court

and circuit precedents, the panel improperly reviewed the district court’s

factual findings de novo, and thereby erroneously substituted the panel’s own

fact finding for that of the district court. In other words, the panel opinion is

based on both erroneous legal precepts and improper de novo appellate court

the district court’s legal conclusion that, as applied to this subset of women with certain

physical conditions, H.B. 2’s medication-abortion restrictions impose an undue burden

because it functions as a “total method ban after 49 days LMP.” Id. at 908. Thus, even if we

construe the Plaintiffs’ challenge as purely facial, the district court properly applied the

severability clause to construct the narrow, as-applied remedy. See Gillian E. Metzger,

Facial and As-Applied Challenges Under the Roberts Court, 26 FORDHAM URB. L. J. 773, 791

(June 2009) (“severability means that a facial challenge need not lead to facial invalidation”).

In sum, the Abbott II panel not only failed to apply the clear error standard of review to the

district court’s findings of fact that support the as-applied injunction, but it also

misinterpreted and improperly broadened the meaning of Gonzales when it reversed the

district court’s partial injunction as an improper facial remedy.

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No. 13-51008

factual findings. The Abbott II panel’s serious constitutional errors in

misapplying the Casey undue burden standard to the admitting-privileges

requirement and its erroneous substitution of its factual findings for the

district court’s are more than sufficient reason for an en banc rehearing.

I. Casey’s Undue Burden Standard

In Casey, the Court reaffirmed the “central right” established in Roe v.

Wade, 410 U.S. 113 (1973)—that a “State may not prohibit any woman from

making the ultimate decision to terminate her pregnancy before viability.”

Casey, 505 U.S. at 879. As the Court explained, “[t]he woman’s right to

terminate her pregnancy before viability is the most central principle of Roe v.

Wade. It is a rule of law and a component of liberty we cannot renounce.” Id.

at 871. While approving of Roe’s central premises, the controlling Casey

plurality rejected a strict-scrutiny standard of review that cases following Roe

had adopted and applied to challenges to abortion regulations, id. at 871-72,

and for which Justice Blackmun argued in his partial dissent, id. at 926

(Blackmun, J.) (urging the court to apply strict scrutiny to a State’s abortion

restrictions). The Casey plurality likewise rejected mere rational-basis

review—the standard urged by Chief Justice Rehnquist in dissent. Id. at 966

(Rehnquist, C.J.). The controlling Casey plurality read Roe as acknowledging

both the importance of a woman’s right to make the ultimate decision of

whether to terminate her pregnancy previability, as well as the State’s

legitimate interests in protecting fetal life and preserving the health of the

pregnant woman. Id. at 872. In light of these competing interests, and in an

effort to strike a balance between them, the Casey plurality announced the

undue burden standard, which functions as a reconciliatory standard between

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strict scrutiny and rational-basis review. See Casey, 505 U.S. at 878 (“To

protect the central right recognized by Roe v. Wade while at the same time

accommodating the State’s profound interest in potential life, we will employ

the undue burden analysis.”). As the Court has emphasized, the undue burden

test “struck a balance. The balance was central” to the Casey Court’s holding.

Gonzales v. Carhart, 550 U.S. 124, 146 (2007).

Casey thus adopted a compromise position, between the strict-scrutiny

review endorsed by Justice Blackmun and the rational-basis review urged by

Chief Justice Rehnquist. However, the Casey plurality did not adopt ordinary,

intermediate scrutiny. 3 Rather than apply one of the recognized tiers of

scrutiny, the Court adopted the undue burden test, and in so doing, pointed to

two ballot-access cases—namely Anderson v. Celebrezze, 460 U.S. 780 (1983),

and Norman v. Reed, 502 U.S. 279 (1992)—that similarly applied a standard

of review that does not squarely fit into the established tiers of scrutiny. Casey,

505 U.S. at 873–74. The ballot access cases apply a flexible balancing test that

provides the State with leeway to regulate for a valid purpose, where such

regulation does not unnecessarily infringe upon individuals’ voting rights. Id.

The Court explained that the “abortion right is similar” in that courts must

weigh the individual woman’s right against the State’s legitimate interests.

Id. Therefore, we may look to the ballot access cases for guidance on how to

apply the undue burden standard. See id.; see also Strange I, 2014 WL

1320158, at *9-10 (discussing the Casey’s Court’s reference to the ballot-access

cases as indicative that the ordinary tiers of scrutiny do not apply to the undue

3For an example of traditional intermediate scrutiny, see, e.g., Wengler v. Druggists

Mut. Ins. Co., 446 U.S. 142, 150 (1980) (applying intermediate scrutiny to a gender

discrimination claim, requiring that a law be “substantially related” to the achievement of

“important governmental objectives”).

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burden standard announced in Casey but rather, “slight burdens may merit

slight scrutiny, while heavy burdens warrant heavy scrutiny”); 4 cf. Okpalobi v.

Foster, 190 F.3d 337, 354-55 (5th Cir. 1999), vacated on other grounds on reh’g

en banc, 244 F.3d 405 (5th Cir. 2001) (explaining that we are not without

guidance to apply the undue burden test’s purpose analysis, because a similar

inquiry is mandated in, for example, voting rights cases).

Anderson and Norman apply a fluid balancing test that does not function

as a “‘litmus-paper test’ that will separate valid from invalid restrictions.”

Anderson, 460 U.S. at 789. Rather,

4 In the final order in the Strange case, see Planned Parenthood Se., Inc. v. Strange,

No. 2:13-CV-405-MHT, 2014 WL 3809403 (M.D. Ala. Aug. 4, 2014) (hereinafter “Strange II”),

Judge Thompson further noted that Roe v. Wade’s companion case, Doe v. Bolton, 410 U.S.

179 (1973) was cited approvingly in Casey, see 505 U.S. at 874-5, and thus provides further

evidence that the Casey undue burden standard requires a balancing of the strength of the

State’s justifications against the extent of the burden imposed upon women. Strange II, 2014

WL 3809403, at *8-9. Specifically, in Doe, the Court reviewed a challenge to a Georgia

regulation that required, inter alia, that all abortions be conducted in hospitals, rather than

at clinics. In concluding that the law was unconstitutional, the Court considered

the burdens that such a clinic ban would impose on women seeking

abortions, [and thus] demanded from the State an honest accounting of the

health benefits of the hospital-only requirement. The Court ultimately struck

down the requirement, finding that the persuasive “mass of data” offered by

the plaintiffs and amici, tended to show that clinics with appropriate staff and

facilities were “entirely adequate to perform abortions,” while Georgia failed to

offer “persuasive data to show that only hospitals meet its acknowledged

interest in insuring the quality of the operation and the full protection of the

patient.” Doe, 410 U.S. at 195. Thus, despite acknowledging the State’s

legitimate interest in protecting women’s health, the Court carefully

considered the evidence on the degree to which the hospital regulation would

actually advance that interest.

Strange II, 2014 WL 3809403, at *8. Unlike the Abbott II panel, the Court in Doe

“required more than general statements of concern and claims that the regulations

conceivably might, in some cases, lead to better health outcomes; rather, the Court required

the State to establish, through evidence, that the regulation was strongly justified.” Id. at

*9.

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a court must first consider the character and magnitude of

the asserted injury to the rights protected by the [Constitution]

that the plaintiff seeks to vindicate. It then must identify and

evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule. In passing

judgment, the Court must not only determine the legitimacy and

strength of each of those interests; it also must consider the extent

to which those interests make it necessary to burden the plaintiff's

rights. Only after weighing all these factors is the reviewing court

in a position to decide whether the challenged provision is

unconstitutional.

Id. (emphasis added). The Casey plurality’s comparison to Anderson and

Norman as it explained the competing interests at stake in challenges to

abortion regulations reveals that, like the standard the Court applied in the

ballot-access cases, the undue burden test requires a court to consider the

“character and magnitude of the asserted injury,” Anderson, 460 U.S. at 789,

and determine whether the “corresponding interest [is] sufficiently weighty to

justify the limitation,” Norman, 502 U.S. at 288–89. Thus, the undue burden

test necessarily contains a proportionality principle: if a regulation has the

effect of imposing a particularly severe obstacle upon a woman’s right to an

abortion, then the government’s justification must be correspondingly strong.

See, e.g., Casey, 505 U.S. at 874, 901; Anderson, 460 U.S. at 789; see also

Strange I, 2014 WL 1320158, at *13; Van Hollen, 738 F.3d at 798 (“The feebler

the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the

sense of disproportionate or gratuitous.”).

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The Casey Court adopted this flexible undue burden test, seeking to

balance the competing interests inherent in every challenge to an abortion

regulation. In so doing, the Court explained that “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.” Casey, 505 U.S. at 877. The undue burden test thus

requires that we determine: (1) whether the statute has a purpose of placing a

substantial obstacle in the path of a woman seeking an abortion, and (2) even

if the purpose of the regulation is for a valid state interest, whether the law

has such an effect. Id. If the state’s law has either the purpose or effect of

placing a substantial obstacle in the path of a woman’s choice to obtain a

previability abortion, it “cannot be considered a permissible means of serving

its legitimate ends.” Id. To determine whether the regulation has the effect of

creating a substantial obstacle to a woman’s right to a previability abortion,

courts must look to whether the law imposes an undue burden upon a “large

fraction of the cases in which [the regulation] is relevant.” Id. at 895. As

explained more fully infra, this inquiry requires weighing the magnitude of the

burden imposed against the extent and strength of the State’s justification for

the law. See, e.g., Casey, 505 U.S. at 900-01 (balancing the State’s legitimate

interest in collecting patient information—which the Court deemed a “vital

element of medical research”—against the only “slight” increase in cost of

abortions, and therefore upholding the challenged recordkeeping and reporting

requirements).

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Applying this undue burden standard to the challenged provisions of the

Commonwealth of Pennsylvania’s Abortion Control Act of 1982, 5 the Casey

Court facially invalidated one provision of the Act—the spousal notification

regulation, which required married women to seek consent from their

husbands before obtaining an abortion. Casey, 505 U.S. at 887-88. The

Commonwealth attempted to defend the spousal notification provision by

contending that it did not impose a substantial obstacle upon a large fraction

of women seeking abortions. Id. at 894. Specifically, the Commonwealth

argued that eighty percent of women seeking abortions are not married and, of

the married women seeking abortions, about 95 percent chose to notify their

husbands of the procedure. Id. Therefore, the Commonwealth reasoned, only

approximately one percent of women—a small fraction of women seeking

abortions—would be burdened by the regulation. Id. The Casey Court rejected

this argument and explained that “[t]he proper focus of constitutional inquiry

is the group for whom the law is a restriction, not the group for whom the law

is irrelevant.” Id. at 894. “The analysis does not end with the one percent of

5 The challenged provisions of the Act were summarized by the Court as follows:

The Act requires that a woman seeking an abortion give her informed

consent prior to the abortion procedure, and specifies that she be provided with

certain information at least 24 hours before the abortion is performed. For a

minor to obtain an abortion, the Act requires the informed consent of one of

her parents, but provides for a judicial bypass option if the minor does not wish

to or cannot obtain a parent’s consent. Another provision of the Act requires

that, unless certain exceptions apply, a married woman seeking an abortion

must sign a statement indicating that she has notified her husband of her

intended abortion. § 3209. The Act exempts compliance with these three

requirements in the event of a “medical emergency,” which is defined in § 3203

of the Act. In addition to the above provisions regulating the performance of

abortions, the Act imposes certain reporting requirements on facilities that

provide abortion services.

Id. at 844 (citations omitted).

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women upon whom the statute operates; it begins there.” Id. The Court held

that the spousal notification regulation had the effect of imposing a substantial

obstacle upon a large fraction of women because within the one percent of

women, there was a “significant number of women” for whom the provision

functioned as a restriction because they “fear for their safety and the safety of

their children [and] are likely to be deterred from procuring an abortion as

surely as if the Commonwealth had outlawed abortion in all cases.” Id.

(emphasis added). In drawing this conclusion, the Court considered the effect

of the provision in light of the particular, real-world circumstances of the

women “most affected by this law.” Id. at 897 (explaining that an effect of the

spousal notification provision is that women who “most reasonably fear the

consequences of notifying their husbands that they are pregnant [ ] are in the

gravest danger”).

Subsequently, in Gonzales v. Carhart, the Supreme Court applied Casey

to review a challenge to the Partial-Birth Abortion Ban Act of 2003, which

prohibited a particular form of surgical abortion, known as “intact dilation and

extraction” or “intact D & E,” a procedure performed in the second trimester of

pregnancy that is a variation on another surgical abortion procedure, referred

to as D & E. 550 U.S. at 135-36. Gonzales applied Casey’s undue burden test—

addressing first the purpose of the Act and then its effect, considering both the

State’s legitimate interests and the extent of the Act’s infringement upon a

woman’s right to procure a previability abortion. First, the Court analyzed the

purpose of the Act and concluded that it actually furthered the State’s

legitimate interests in protecting fetal life and thus satisfied the first prong of

the Casey undue burden analysis. Next, the Court analyzed the effect,

observing that the Act’s “furtherance of legitimate government interests bears

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upon,” but is not dispositive of, whether the Act has the effect of placing a

substantial obstacle on women. Id. at 161. The Court concluded that because

there are safe, alternative means for women to exercise their right to choose to

terminate a pregnancy previability, Congress’ ban on a single procedure did

not have an effect of placing a substantial obstacle in the way of a woman’s

right to obtain an abortion. Id. at 164. On balance, in light of the fact that the

Act actually advanced the government’s legitimate objectives, and that it did

not place a substantial obstacle in the path of a woman seeking to procure a

previability abortion, the Court upheld the Act as constitutional against

Plaintiffs’ challenge. Id. at 166-67. Gonzales thus applied Casey’s two-part

balancing test and did not introduce any additional aspects to the undue

burden standard. See id. at 168-69 (Thomas, J., concurring, joined by Scalia,

J.) (noting that he concurs in the opinion “because it accurately applies” Casey).

Accordingly, this court is obliged to subject the challenged provisions of

H.B. 2 to Casey’s undue burden balancing test. We must inquire as to whether

the law has the purpose or effect of placing a substantial obstacle in the path

of a woman seeking an abortion. Casey, 505 U.S. at 877. Pursuant to Casey,

we begin the “effects” analysis by considering the real-life situation of the women who

are actually affected by the regulation and ask whether, given these women’s

circumstances and the particular context in which the law is enacted, a

substantial obstacle is placed in the way of a large fraction of these women

whose liberty rights are actually restricted by the law. See id. at 894-97. In so

doing, we must look to the specific group of women for whom the provision in

question is relevant (i.e., for whom it is a restriction), and determine if the law

places a substantial obstacle in the way of a large fraction of those women. We

must consider these women’s circumstances—for example, whether they are

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No. 13-51008

impoverished or are prevented by some other relevant social factor, such as

local hostility and aggression towards abortion clinics and providers—in

combination with the direct effects of the admitting-privileges requirement, in

order to determine the extent of the burden that results from the regulation.

See id. at 897 (considering the particular circumstances of women in abusive

relationships). To determine whether the obstacle or burden is undue, we must

analyze the strength of the state’s justifications for the law and weigh it

against the magnitude of the burden imposed upon a woman’s liberty interest.

Id. at 847, 900-01; see also id. at 882-83 (weighing the State’s legitimate

interest in “protecting the life of the unborn by . . . ensuring a decision that is

mature and informed” with the slight burden imposed by requiring physicians

to provide women with literature regarding the “consequences to the fetus”).

Before addressing the ways in which the Abbott II panel misread the

Supreme Court precedent and neglected to adhere to the Casey undue burden

test, I will review the district courts’ findings of fact that support its legal

conclusions that H.B. 2’s admitting-privileges provision imposes substantial

obstacles and that the State’s justifications for the provision are weak or

nonexistent, and the wealth of record evidence that supports each of the

district court’s findings.

II. Factual Findings and Record Evidence Supporting the

District Court’s Opinion

In the district court, the parties presented competing evidence on both

sides of the undue burden test. After careful consideration of the live testimony

offered by the Plaintiffs, as well as each side’s sworn declarations, the district

court made various findings of fact with regard to the extent of the obstacles

imposed by the admitting-privileges provision and the questionable

justifications for the provision in light of the record evidence. Specifically, with

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No. 13-51008

regard to the obstacles imposed by the admitting-privileges provision, the court

found that: (1) as a result of the admitting-privileges provision, abortion clinics

would close, Abbott, 951 F. Supp. 2d at 900; (2) the “Rio Grande Valley would

be left with no abortion provider because those providers do not have admitting

privileges and are unlikely to get them,” id.; (3) each hospital’s bylaws are

unique, requiring a variety of prerequisites, some of which abortion providers

will be “unable to ever meet,” id. at 900-01; and (4) finding physicians for hire

with active admitting privileges is “difficult because physicians’ contracts often

bar them from providing ‘moonlight’ services as abortion providers,” and

because physicians are “concerned about negative impact on their private

practice . . . either financially or as a result of attention from anti-abortion

protestors,” id. at 901. With regard to the State’s justifications for the

admitting-privileges provisions, the court found that a lack of admitting

privileges on the part of an abortion provider “make[s] no difference” in the

quality or timeliness of care received by an abortion patient in an emergency

room, nor does it improve communication between abortion providers and

emergency room physicians, id. at 899-900. The district court considered the

State’s evidence in support of the law and concluded that it was too slight to

justify the severe obstacles imposed by the admitting-privileges requirement

on a woman’s right to obtain an abortion.

We are obliged to review the district court’s findings of fact for clear

error. See, e.g., Okpalobi, 190 F.3d at 342, 357 (reviewing a challenge to an

abortion regulation and applying the clear error standard of review to the

district court’s factual findings); Voting for America, Inc. v. Steen, 732 F.3d 382,

386 (5th Cir. 2013) (“[T]he district court’s findings of fact are subject to a

clearly-erroneous standard of review.”). Accordingly, when analyzing the

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district court’s factual findings, we ask whether they are “plausible in light of

the record as a whole.” Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir.

2007). “If the district court’s account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (citing United

States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).

As discussed at length below, each of the five major findings by the

district court is substantially supported by the record evidence and,

consequently, is not clearly erroneous. Thus, the Abbott II panel’s reversal of

these findings contravenes Supreme Court and Fifth Circuit precedent

mandating clear error review.

A. Obstacles

On the obstacle side, the parties disagreed as to what effect the

admitting-privileges requirement would have on current and potential

abortion providers and what effect the elimination of abortion services in

various counties of Texas would have on women seeking abortion. The

Plaintiffs argued that the admitting-privileges requirement would pose a

substantial obstacle because few, if any, of the doctors who provide abortions

at their clinics will be able to secure the privileges required by the law and very

few, in any, other doctors who have or could secure admitting privileges will

begin performing abortions, either at the Plaintiffs’ clinics or in other settings

within the state. As a result, one third of the abortion clinics in Texas will

close, leaving abortion providers in only seven counties of Texas—the counties

containing the major urban centers—and leaving many impoverished and

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No. 13-51008

rural areas, for example, the Rio Grande Valley, without any abortion

providers. The Plaintiffs presented evidence that, as a result of the closure of

approximately one third of Texas abortion clinics and the remaining clinics’

inability to meet the inevitably increased demand, approximately 22,000

women per year will be precluded from accessing abortion services in Texas.

The State asserted that the obstacles for women would be minor and that

the Plaintiffs’ doctors may be able to secure privileges that satisfy the law and

that, if they are unable to, other doctors would take their places. The State

further contended that, even if the admitting-privileges requirement renders

abortions unavailable in some areas of Texas, women seeking abortion would

experience only minimal obstacles or inconveniences that do not rise to the

level of substantial obstacles. The district court rejected the State’s argument

and concluded that clinics will close; the Rio Grande Valley will be without an

abortion provider; current abortion providers will be unable to obtain the

requisite admitting privileges; and it will be difficult or impracticable to secure

new doctors to provide abortions at the closed clinics in Texas. As illustrated

by the following summary of record evidence, the Abbott II panel erroneously

disregarded the district court’s findings of facts and substituted its own de novo

findings, although each of the district court’s factual findings are substantially

supported by the record evidence.

1. The Closure of Abortion Clinics

Plaintiffs presented the findings of Joseph Potter, Ph.D., who is an

Associate Professor of Demography at the Harvard School of Public Health, a

Professor of Sociology at the University of Texas, Austin, earned a Ph.D. from

Princeton University in economics, and is the principal investigator for the

Texas Policy Evaluation Project. Potter was certified by the court as an expert

in demography, and testified to his expert opinions in this regard, and not

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No. 13-51008

merely as a “sociology professor”—as the Abbott II panel characterized him.

See Abbott II, 748 F.3d at 591. Potter, after conducting a survey of data

available from 2011 until the present and investigating, inter alia, the current

status of abortion providers’ admitting privileges, 6 concluded that the

admitting-privileges provision will result in the loss of abortion clinics in six

Texas counties—Bell, Cameron, Hidalgo, Lubbock, McLennen, and Tarrant—

and that only seven counties in all of Texas will be left with an abortion

provider. Based on Potter’s research, analysis, and calculations, he concluded

that, if H.B. 2 goes into effect, at least a third of the clinics in Texas will close,

and as a result, over 22,000 women annually will not be able to access abortion

services. 7

6The Abbott II panel criticizes Potter’s evidence as unscientific and biased because he

obtained his evidence from interested parties, including some of the named Plaintiffs. The

Abbott II panel misrepresented Potter’s statement that, because he relied on information

provided from abortion providers and other interested parties, “there is no science there.”

Abbott II, 748 F.3d at 593. The Abbott II panel cited this testimony to suggest that Potter

concedes that his evidence is unreliable, when in actuality, Potter stated, “[t]here’s no science

there. It’s just evidence.” (emphasis added). Potter appears not to concede anything, but to

simply acknowledge that in the field of demography, a social science, an expert’s calculations

and conclusions are based on evidence obtained from affected individuals. Such

methodologies are the regular and accepted practice in demographic research, and, as

explained by Potter, are “consistent with the most rigorous and highest standards of

demography to rely on that kind of factual information.”

7 The Abbott II panel cited one of the State’s experts, Dr. Uhlenberg’s, attestation that

any remaining clinics would perform more abortions as the demand increased, purportedly

casting doubt upon Potter’s conclusion that over 22,000 women would be unable to access

abortion services in Texas after H.B. 2 is implemented. Uhlenberg’s declaration, however,

ignores Potter’s explanation of his finding that, in addition to an increase in demand,

enactment of the admitting-privileges provision would simultaneously result in a decrease in

capacity among abortion facilities that manage to remain open in Texas. Potter’s declaration

and testimony not only established a detailed account of the increased demand, but a

corollary decrease in capacity, and a resulting inability of women to promptly access abortion

treatment. Uhlenberg’s affidavit in no way renders the district court’s finding that clinics

will close clearly erroneous.

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The Plaintiffs’ other evidence corroborated Dr. Potter’s findings. For

example, Dr. Paul Fine testified that his organization’s Fort Worth surgery

center will have to stop providing abortion services because all of the providers

who reside in Dallas will be unable to obtain admitting privileges at the Fort

Worth hospital. Amy Hagstrom-Miller, the Founder and CEO of Whole

Woman’s Health (“WWH”), likewise testified that, in Fort Worth, the WWH

facility—which accounts for one third of the abortion providers in the Fort

Worth area—will close because the facility does not employ any physicians

with local admitting-privileges. Dr. Fine further testified that, in West Texas

(specifically, in Lubbock County and the city of Waco), all of the current

providers travel from hundreds of miles away to provide abortion services and

thus will be ineligible for admitting privileges at local hospitals. Additionally,

Darrel Jordan, M.D., the Chief Medical Officer of Planned Parenthood of

Greater Texas (“PPGT”), attested via sworn affidavit that, if the admitting-

privileges provision takes effect, three of the four clinics that PPGT owns—

namely, clinics providing abortion services in Austin, Fort Worth, and Waco—

will close. From this evidence, the district court plausibly found that clinics

throughout Texas will close.

The Abbott II panel criticized the district court for its “vague” and

“imprecise” findings. Abbott II, 748 F.3d at 597. However, perfect precision is

not what is required to satisfy clear error review. The district court’s finding,

while not specific or detailed, is adequately supported by the record evidence,

plausible in light of the evidence taken as a whole, and thus not clearly

erroneous. Rivera, 505 F.3d at 360; see also Voting for America, Inc., 732 F.3d

at 386.

22

No. 13-51008

2. Rio Grande Valley Will be Without an Abortion Clinic

The district court found that all “24 counties in the Rio Grande Valley

[will] be left with no abortion provider.” Abbott, 951 F. Supp. 2d at 900. The

Abbott II panel concluded that this finding of fact was clearly erroneous for two

reasons. First, the panel correctly notes that there are only four, not 24,

counties in the Rio Grande Valley. However, as Plaintiffs contend, this error

was likely typographical and probably a result of the court’s efforts to issue an

opinion before the admitting-privileges provision was set to go into effect—less

than one week after the completion of trial. Such an error does not render the

district court’s finding that the Rio Grande Valley will be without an abortion

provider clearly erroneous, given that (as will be discussed directly below) the

record adequately supports the substance of this finding—that the region will

lack any abortion providers after the admitting-privileges provision goes into

effect.

In addition to faulting the district court for its apparent typographical

error, the Abbott II panel concluded that the court’s finding that the Rio

Grande Valley would be without an abortion provider was clearly erroneous

because the court only accepted evidence as to one of the two clinics in the Rio

Grande Valley, and that the other evidence was excluded as hearsay. Abbott

II, 748 F.3d at 597. Before H.B. 2 went into effect, there were two clinics in

the Rio Grande Valley that provided abortion services—the WWH’s McAllen

facility, and the Reproductive Health Care and Health Services Facility

(“RHCHS”). The panel reasoned that because Amy Hagstrom-Miller’s

testimony regarding the RHCHS facility was excluded as hearsay, the court

only heard admissible evidence as to whether the WWH facility would close,

and thus it was clearly erroneous to conclude that both clinics would close. Id.

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No. 13-51008

at 597, n.12. However, the panel overlooks the un-objected-to live testimony

of Andrea Ferrigno, the Corporate Vice President of WWH, which establishes,

with admissible evidence, that both of the two clinics in the Rio Grande Valley

will close.

Specifically, Ferrigno testified that the RHCHS Facility and the WWH’s

McAllen facility will both close as a result of the admitting-privileges provision.

At the time of trial, Ferrigno testified that the RHCHS Facility had already

announced its impending closure, and that the WWH’s McAllen clinic would

also close because none of its providers has admitting privileges, and therefore,

“people won’t have access to safe legal services in the entire Rio Grande

Valley.” Id. This information regarding both clinics’ closures in the Rio Grande

Valley is also contained in Ferrigno’s sworn declaration, which was admitted

into evidence by the district court under the residual hearsay rule, FED. R.

EVID. 807. See Abbott, 951 F. Supp. 2d at 897, n.3 (“The court overrules

Planned Parenthood and the State’s objections [to the use of declarations at

trial because] admitting the declarations will best serve the rules of evidence

and the interests of justice.”) (emphasis added). Therefore, contrary to the

Abbott II panel’s conclusion, the district court’s finding that the only two clinics

in the Rio Grande Valley will close is not clearly erroneous because it was

supported by admissible record evidence.

3. Abortion Clinic Physicians Will be Unable to Meet

Hospitals’ Varying Prerequisites to Admitting Privileges

The district court’s finding that each hospital’s bylaws are unique and

have a variety of prerequisites for granting admitting privileges, some of which

abortion providers will be unable to meet, is supported by the record. For

example, Andrea Ferrigno testified that, before granting admitting privileges,

hospitals have various facial requirements, including that the physician

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No. 13-51008

maintain a local residence, be board certified, and have a minimum number of

hospital admissions and surgeries. Ferrigno testified that her current abortion

providers would not qualify for many hospital admitting-privileges

applications because they would not meet the hospitals’ residency

requirements nor do they have the number and type of prior hospital

admissions typically required. For example, some hospitals require at least 50

deliveries, five C-sections, and 25 gynecological surgical procedures during the

24-month period preceding the physician’s application. Ferrigno testified that,

in the last five years, her physicians have seen approximately 50,000 abortion

patients, and only eight to ten of those patients required a transfer from the

clinic to a hospital. Her providers thus do not regularly admit or treat patients

at hospitals and, consequently, will not meet the hospitals’ admission or

surgery prerequisites for obtaining admitting privileges. Further, many of the

abortion providers completed their licensures decades ago, when it was less

common to have board certification, and therefore will not meet the board

certification requirement.

Likewise, Dr. Paul Fine testified that his organization’s Fort Worth

surgery center will have to stop providing abortion services because all of the

providers, who reside in Dallas, will be unable to obtain admitting-privileges

at the Fort Worth hospital, which requires physicians to maintain a local

residence. Dr. Jennifer Carnell similarly testified that, if abortion providers

travel away from their county of residence to conduct abortion services—a

common practice given that 87 percent of counties in the United States are

without an abortion provider—then local Texas hospitals will not grant the

physician privileges. For example, he testified that, in West Texas, where all

of the providers travel hundreds of miles or from out of state to provide abortion

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No. 13-51008

services, the physicians will be unable to comply with the admitting-privileges

provision. The district court therefore did not clearly err when it found that

the vast majority of abortion providers in Texas will be unable to obtain

admitting privileges at local hospitals.

4. Finding Local Physicians with Active Admitting

Privileges is Difficult and Unlikely

The district court found that abortion clinics will be unlikely to find

physicians with active admitting privileges because physicians’ contracts often

“bar them from providing ‘moonlight’ services as abortion providers,” and

physicians are concerned about the negative impact on their careers by

associating with an abortion provider, either for financial reasons or negative

attention from anti-abortion protestors. Abbott, 951 F. Supp. 2d. at 901. The

district court directly referenced record evidence that supports this finding of

fact. For example, the district court noted Amy Hagstrom-Miller’s testimony

that some physicians’ contracts with hospitals “prevent[] them from working

with abortion care on the side.” The evidence further demonstrated that, even

when abortion care is not forbidden outright, some local hospitals are averse

to associating with abortion providers. For example, Andrea Ferrigno attested

that in at least three attempts to contact hospitals about obtaining admitting

privileges for her physicians, the hospitals’ personnel verbally discouraged her

from pursuing an application “because of hostility against abortion providers

among members of the hospital’s governing board.”

Furthermore, the Plaintiffs presented evidence that hostility,

harassment, and violence from anti-abortion protestors towards abortion

providers, clinics, and patients will deter local physicians with admitting

privileges from providing services. For example, Dr. Jordan attested that in

the small and “extremely socially conservative community” of Fort Worth, any

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No. 13-51008

resident abortion provider would face “routine harassment, social and

professional ostracism, and even a significant risk of violence (all of which

extend to his or her family as well).” He added that, “[h]ostility to abortion

also makes it impossible to hire a new doctor who lives in Fort Worth and has

privileges at a local hospital.” Similarly, Angela Martinez, the Clinic Director

of Planned Parenthood Women’s Health Center in Lubbock, Texas, attested

that anti-abortion protestors harass the health center employees every day her

clinic is open. Martinez explained that at her facility, anti-abortion protestors

shout insults at us every day, take pictures of us (and take

down license plate information), refer to employees by name, and

have protested outside employees’ homes and posted pictures of

employees online with their names. Because physicians are the

biggest target of antiabortion harassment and violence . . . I am

unaware of any Lubbock physician ever having performed

abortions. . . .[F]or decades . . . the physicians who performed

abortions [in Lubbock] have travelled . . . from another part of the

state, most frequently from Dallas.

Likewise, Hagstrom-Miller testified that at the WWH facilities, they

regularly have protestors, have received bomb threats, and receive threatening

phone calls. Further, staff are followed and sometimes the physicians are

harassed when they are coming to and from work. Hagstrom-Miller also

testified regarding “Operation Rescue,” an anti-abortion effort that targeted

two physicians, publishing their names online, apparently to encourage

attention and further harassment from anti-abortion protestors. Hagstrom-

Miller testified that physicians will be deterred by this “very regular[]”

occurrence of harassment and violence committed against abortion providers.

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No. 13-51008

She recalled at least two physicians who changed their mind about working for

WWH and one who quit based on anti-abortion harassment. She testified that

because of this local hostility, she has been flying in two providers from out of

state to be able to meet the needs of women in the local communities. The

district court’s finding that abortion facilities are unlikely to be able to hire

local physicians to perform abortion services is thus adequately supported by

the record.

5. Additional Record Evidence of Obstacles: Loss of

Capacity, Poverty, Travel Distances, and Other Factors

Affecting Access to Abortion

In addition to the record evidence substantiating the district court’s

express findings of facts, the Plaintiffs also presented evidence that supports

the district court’s legal conclusions, but which the court neglected to reference

expressly. First, the evidence established that, as a consequence of the clinic

closures, the remaining clinics will be unable to meet the increased demand for

abortion services, resulting in substantially diminished access to abortion for

women in Texas. Dr. Potter explained that, while some clinics may remain in

operation because they employ one or more physicians with local admitting

privileges, these remaining clinics may have a reduced capacity, as not all of

their physicians on staff have the requisite privileges. While capacity is

reduced, the demand upon these limited facilities will be increased, as women

who would have otherwise obtained abortion services from closed facilities,

now will seek services at the remaining providers. Based on the increase in

demand and simultaneous reduction in capacity, Potter found that

in five of the seven counties [that will still have abortion

clinics after the admitting-privileges provision goes into effect],

there will be a substantial increase in the projected volume of

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No. 13-51008

services required due to closure of clinics in other counties that will

no longer have a provider. Moreover, there will be a substantial

reduction in the capacity to provide services in four of these five

counties. . . . All told, the projected demand for abortion care

statewide is 68,8889, and the expected capacity after

implementation of the law is only 43,850. The implication is that

25,039 women will not be able to access abortion care in the state,

even if they could travel the long distances necessary to access the

nearest clinic with capacity to serve them. Eighty-nine percent of

this deficit, or 22,286 abortions, is due to closures that will occur

as a result of the implementation of the challenged provision.

The Plaintiffs presented Potter’s specific calculations regarding the

capacity and demand for each county in which there would be a substantial

change. For example, in Bexar County, where there were once eight abortion

providers, after the admitting-privileges provision goes into effect, only three

will remain—one of which will function at an extremely limited capacity.

Therefore, the providers that will remain in operation in Bexar County will be

unable to meet the demand for abortion services. 8 Angela Martinez, the Clinic

8 More specifically, in Bexar County, at the time of trial, there were five clinics (three

have closed since 2011 after funding cuts). Potter concluded that two would close after the

law was implemented and that one would have extremely limited capacity. Potter projected

the demand at 7,006 abortions per year and capacity was calculated at 4,250. Thus, the

projected volume would exceed capacity by 2,750 abortions annually. In Dallas, Potter

attested that two of the five clinics would close and the projected volume will “increase

dramatically” by 51% to 22,598. The capacity in Dallas would then only be approximately

12,5000, barely more than half the expected demand volume. Potter concluded that the

projected volume would therefore exceed capacity by 10,098 abortions per year.

In El Paso, Potter found that one of two clinics would close and the projected volume

would exceed capacity by approximately 2,500 abortions per year. In Harris County, three

or four of the ten providers would close and the projected volume increase on remaining

clinics will be approximately 16%. In Neuces County one clinic was expected to stay open,

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No. 13-51008

Director of Planned Parenthood Women’s Health Center, corroborated this

evidence in her declaration, attesting that when nearby clinics in Midland,

Abilene, and San Angelo closed in recent years, their Lubbock facility has as a

result been “inundated with patient calls” and are currently “scheduling

patients up to a month in advance.” Similarly, Hagstrom-Miller testified that

in Austin she has one physician with privileges and one without so, after the

admitting-privileges provision goes into effect, her capacity to provide services

at her Austin facility will decrease by 50%.

An inevitable result of the reduced capacity of abortion providers in

Texas is an increase in delayed services for abortion patients. Potter attested

that reduction in supply and increase in demand will mean that the “delays to

obtain an appointment with many providers will increase, and some providers

may turn patients away entirely.” (emphasis added). He attested that

“[a]bortion is of course a time-sensitive procedure: having to wait a few weeks

may make it impossible for women to get an abortion.”

In addition to the increased demand and delay that the Plaintiffs’

established will result from the admitting-privileges provision, the evidence

demonstrated that because of the various clinic closures, women in the

panhandle and other parts of West Texas will have to travel vast distances to

seek in-state abortions, and that a large percentage of women who seek

abortion services are impoverished and will therefore be precluded from ever

obtaining abortion services. Potter testified that, in the panhandle of Texas,

but would have an 182% increase in volume due to the expected closures of the only two

clinics in the Rio Grande Valley, and the Neuces County Clinic thus was unlikely to meet the

increased demand. In Travis County, Potter found that three of the four clinics were expected

to stay open, but would experience a volume increase of 26%. Potter concluded that the

projected volume for Travis County would exceed capacity by 3,401 abortions per year.

30

No. 13-51008

women will have to travel 400-500 miles to access legal abortion services. He

explained that “[s]ome women who would otherwise have gotten an abortion

will be prevented from doing so by these burdens.” Potter also testified that

the number of women across Texas who will be required to travel over one

hundred miles to obtain an abortion will double, and that in “multiple

counties,” the travel distance for women seeking abortions will “exceed 400

miles.” Furthermore, the evidence demonstrated that there will be no abortion

clinics west of Interstate 35, requiring women in certain West Texas areas to

travel between six and eight hours to access an abortion clinic.

The Plaintiffs’ evidence established that nearly half of abortion patients

in Texas are below the federal poverty line and therefore will be unlikely to be

able to travel these long distances to access abortion services. Specifically,

data from Dr. Potter’s research in Texas indicated that approximately 40% of

women seeking abortion are at or below 100% of the Federal Poverty

Guidelines.” Angela Martinez attested that most of Planned Parenthood

Women’s Health Center’s clients in Lubbock are parents below the federal

poverty line who “often have trouble obtaining use of a car and the resources

to pay for gas, permission from their employer to take the necessary time off,

and/or childcare.” As Potter attested, the burden of travel is higher for younger

women, women of color, and low-income women, who have fewer resources to

overcome the increased cost of further travel. Martinez’s experience confirms

this, as she has repeatedly heard from patients that the additional distance

will make it impossible for them to obtain an abortion. Martinez attested that,

“[b]ased on [her] familiarity with [the clinic’s abortion] patients and their

already-difficult situations, I believe that this change [in the law] would be

extraordinarily difficult for almost all of our patients, and could prevent many

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No. 13-51008

of them from obtaining an abortion at all.” Ferrigno similarly testified that

that the reality is that for women in the Rio Grande Valley to travel to Corpus

Christi or San Antonio for abortion services will require “a lot of arrangements

and expenses.”

In addition to the Plaintiffs’ evidence that the admitting-privileges

provision will severely diminish women’s access to abortion services, the

evidence demonstrated that the provision will be particularly burdensome on

women seeking abortions who have been pregnant for sixteen weeks or longer.

Prior to implementation of H.B. 2, Texas law required that an abortion

performed at sixteen or more weeks after pregnancy must be conducted at an

ambulatory surgical center (“ASC”). At the time of trial, there were only six

providers in the state that are licensed as ASCs. Potter attested that three of

these ASCs will stop providing services as a direct result of the admitting

privileges law, leaving only three operating ASCs in Texas (located in Dallas,

Houston, and San Antonio). Dr. Jordan likewise attested that his facility

(Planned Parenthood of Greater Texas) operates the only ASC in both Austin

and Fort Worth—which are two of the six total ASCs providing abortion

services in the state—and both of those facilities will have to close after

enactment of the law. Therefore, women throughout all of Texas will only have

three locations where they can legally obtain an abortion after sixteen weeks

of pregnancy.

In light of this abundance of evidence supporting the district court’s

findings of facts regarding the ways in which H.B. 2’s admitting-privileges

provision imposes obstacles upon a woman’s right to obtain a previability

abortion, the Abbott II panel erred in rejecting the district court’s findings.

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No. 13-51008

B. Justifications

The parties disagreed about the strength of the State’s justifications for

the admitting-privileges requirement. According to the State, the admitting-

privileges requirement has two strong justifications, both grounded in the

State’s legitimate interest in protecting women’s health. Primarily, it argued

that the requirement ensures proper care for complications. Furthermore, it

asserted that the requirement has a secondary benefit of “credentialing” high-

quality doctors. After considering the State’s evidence that was submitted to

support its argument that the admitting-privileges provision advances patient

care and protects women’s health, the district court rejected the State’s

arguments and found that an abortion doctor’s “lack of admitting privileges is

of no consequence when a patient presents at a hospital emergency room,”

because “emergency-room physicians treat patients of physicians with

admitting privileges no differently than patients of physicians without

privileges” and therefore the admitting-privileges provision has no effect on

the quality or timeliness of care received, nor does it impact the ability of

providers and physicians to communicate any necessary health information.

Id. at 899-900.

1. Admitting Privileges Have No Bearing on Quality or

Timeliness of Care, nor on Communications

Between Abortion Providers and Emergency Room

Physicians

The Plaintiffs presented evidence that on the extremely rare occasion

that an abortion patient requires hospital admission because of a complication

from an abortion procedure, the patient is treated just as all patients are—she

is independently assessed and diagnosed by the emergency room medical staff,

without the need to rely upon a patient’s treating or referring physician.

Plaintiffs presented the testimony and sworn declaration of Dr. Paul Fine, who

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No. 13-51008

is board-certified in obstetrics and gynecology, a Fellow of the American

Congress of Obstetricians & Gynecologists, a Professor in the Departments of

Obstetrics & Gynecology and Urology at the Baylor College of Medicine in

Houston, the Medical Director of Planned Parenthood Gulf Coast and Planned

Parenthood Center for Choice, Inc., the Medical Director of Emergency Medical

Services (“EMS”) for three cities in Galveston County, Texas, and who has

nearly four decades of experience providing abortions, teaching abortion

methods, and supervising the provision of abortion services. Dr. Fine testified

that when an abortion doctor is unable to communicate with a treating

physician or abortion provider, this does not hinder the care the patient

receives. Rather, “[t]he treatment of most [abortion] complications are very

straightforward . . . and treated the same way.” If an abortion patient requires

hospitalization for a complication following an abortion procedure, medical

staff at the hospital will determine whether an on-call ob/gyn will need to be

involved, or whether another “sub-specialist” will be necessary to treat the

patient. Dr. Fine attested that “all ob/gyns, regardless of whether they perform

abortions, are qualified to manage the care of a patient experiencing a

complication from an abortion.”

In addition, Dr. Jennifer Carnell, an emergency physician, assistant

professor at Baylor College of Medicine in emergency medicine, the director of

the emergency ultrasound fellowship, and who is board-certified in emergency

medicine, was certified by the court as an expert in the field of emergency

medicine. Dr. Carnell testified that if an abortion patient presents at a

hospital with a rare, severe complication, the abortion provider will not be the

physician performing the treatment; rather, the on-call ob/gyn at the hospital

will provide the necessary care. Thus, an abortion provider’s inability to

34

No. 13-51008

personally admit his patient into a local hospital does not impede the patient’s

treatment in any way and does not constitute “abandoning” the patient, as the

State contended. Instead, the patient is cared for by those physicians who can

best perform the procedure—emergency room physicians who “do these

surgeries every day.” Dr. Fine explained that

admitting privileges are . . . irrelevant to providing optimal

care in the event of a complication because the physician who

provides the abortion may not be the appropriate physician to

manage the patient’s care in the hospital, regardless of whether

the physician has privileges there. Given that abortions have such

a low complication rate, abortion providers may . . . only rarely

perform the types of surgeries . . . that may be necessary to treat a

complication, while the on-call ob/gyn at the hospital will have

more experience doing these procedures . . . .

Dr. Fine also attested that “[g]iven how specialized the practice of

medicine has become, particularly in a hospital setting, such handoffs to the

appropriate specialists are common and necessary across medicine.”

Dr. Fine further stated that the “admitting privileges requirement

is . . . unnecessary and irrelevant to providing optimal care because of the

distances some women travel to obtain an abortion.” Dr. Fine explained that

generally, when complications occur, a woman will begin to experience the

complication after she has left the clinic and returned home. “If, after

discharge from the abortion clinic, a woman who lives outside the area where

she obtained her abortion experiences a complication that requires hospital

treatment, it makes no sense for her to travel to be treated at a hospital near

the abortion clinic just because her abortion provider has admitting privileges

35

No. 13-51008

there.” Rather, she should and likely would go to the closest hospital

emergency room to get prompt treatment. Dr. Fine explained that, “[i]n an

emergency or potential emergency situation, no physician, or EMT, would

countenance going further than necessary just to get to a hospital where her

abortion provider has privileges.”

Dr. Fine explained that the current professional standards therefore

suggest only that abortion clinics have “arrangements in place for transferring

patients who require emergency treatment,” but do not require that the

“physician performing abortions have admitting privileges at a hospital.” Such

is the recommendation from the American Congress of Obstetricians &

Gynecologists, as well as Planned Parenthood Federation of America, and the

National Abortion Federation. Moreover, prior to implementation of H.B. 2,

Texas law required the same for abortions performed after sixteen weeks of

pregnancy or later—riskier procedures than abortions performed before

sixteen weeks that are required to be performed in a licensed ASC. And,

notably, physicians who perform more dangerous outpatient surgeries at

ASCs, such as hysterectomies or pelvic constructive surgeries, are likewise

only required to have either written transfer agreements or hospital admitting

privileges, and therefore are not required to have hospital privileges. Dr. Fine

opined that in his expert opinion, “there is no reason to place a more onerous

requirement on doctors who provide abortions prior to 16 weeks, . . . than is

placed on providers of much more risky [non-abortion] surgeries performed in

ASCs.”

The record evidence also established that legal abortion is one of the

safest medical procedures in the United States. Jennifer Carnell, M.D.,

testified that in her nine years of experience in emergency medical care, she

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No. 13-51008

has seen less than ten patients come to the emergency room following an

abortion procedure; only five of those patients actually required admission; and

none were critically ill. The evidence established that the risk of a woman

experiencing a complication that requires hospitalization is less than 0.3%.

The risk of death associated with childbirth is approximately fourteen times

higher than that associated with abortion, and every pregnancy-related

complication is more common among women having live births than among

those having abortions. In fact, the risk of death associated with abortion is

almost three times less than that associated with using penicillin, which could

in some rare cases result in anaphylactic shock. Thus, the few abortion

patients who develop serious problems are referred to hospital emergency room

physicians who may call in other on-staff specialists if necessary.

The evidence therefore established that it is not necessary for an

abortion doctor to have admitting privileges to refer patients to a hospital

emergency room doctor, and requiring them to have admitting privileges will

not increase the speed or quality of medical care for the few abortion patients

that need such attention after an abortion. Given the record evidence that

emergency room physicians are adequately trained to assess and treat any

abortion complications, and that in the rare instance of a severe complication

from an abortion, the on-call ob/gyn is better suited to perform the necessary

treatment, the district court did not clearly err by finding that the admitting-

privileges provision does nothing to improve quality of care for abortion

patients who require emergency treatment. 9

9 See also Brief of Amicus Curiae, the American College of Obstetricians and

Gynecologists and the American Medical Association, at 1, Abbott II (No. 13-51008) (“There

is simply no medical basis to impose a local admitting privileges requirement on abortion

37

No. 13-51008

Additionally, the Plaintiffs’ evidence supports the district court’s finding

that the admitting-privileges provision does not improve communication

between abortion providers and emergency room physicians, nor is there any

evidence that such a communication problem exists. The Plaintiffs’ evidence

established that emergency room physicians generally have no need to consult

with an abortion provider whose patient presents at the hospital because the

hospital physicians have the requisite skills necessary to treat abortion

complications, which are often similar to symptoms of a spontaneous

miscarriage—a condition that emergency room physicians treat regularly. Dr.

Carnell testified that all of the abortion patients she has treated in the

emergency room had pain and vaginal bleeding—conditions “well within [her]

purview” of practice that did not require communication with the abortion

provider. Further, even in severe cases of hemorrhage or sepsis, emergency

room physicians see those conditions “all the time” and are “trained and very

comfortable treating” them. Dr. Fine similarly attested that “[e]mergency

room physicians are qualified to initially evaluate and treat most

complications . . . [s]uch skills are the same as those needed for the treatment

of spontaneous miscarriages.”

Moreover, the evidence established that Texas regulations in place

before the enactment of H.B. 2 adequately provided for effective

communication between abortion providers and emergency room physicians.

Under Texas law prior to enactment of H.B. 2, all physicians who practice at

any licensed abortion facility must

providers.”); id. at 6 (“The care a woman receives at the emergency room is independent of,

and not contingent on, her abortion provider having admitting privileges.”).

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No. 13-51008

have admitting privileges or have a working arrangement

with a physician(s) who has admitting privileges at a local hospital

in order to ensure the necessary back up for medical complications.

[The facility also must] have a readily accessible written protocol

for managing medical emergencies and the transfer of patients

requiring further emergency care to a hospital.

25 TEX. ADMIN. CODE § 139.56(a). Texas law also already required all

women undergoing abortions to be provided a “telephone number by which

[she] may reach the physician, or other health care personnel employed by the

physician or by the facility where the abortion was performed or induced with

access to the woman’s relevant medical record, 24 hours a day to request

assistance for any complications that arise from the performance or induction

of the abortion or ask health-related questions regarding the abortion.” See

TEX. HEALTH & SAFETY CODE § 171.0031(2)(A).

Dr. Carnell testified that “very rarely, if ever,” do the referring

physicians have admitting privileges at her hospital and, yet, to provide

optimal care, she is able to have all the information she needs communicated

to her over the telephone. Carnell testified in her expert opinion that she

would not be better able to communicate with a referring physician if that

physician had admitting privileges at the hospital. Carnell has in fact never

seen an outpatient physician—either after an abortion procedure or any other

outpatient procedure—accompany his or her patient to the hospital to

communicate with the emergency room physician. Instead, if an emergency

room physician needs to communicate with a referring physician, that

communication occurs via telephone. Andrea Ferrigno similarly attested to

WWH’s practice of ensuring that the abortion provider speaks with the

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No. 13-51008

emergency room’s admission staff and the backup physician via telephone to

ensure any necessary information is transmitted to the caregiver at the

hospital. Dr. Fine similarly testified that it is the “standard medical practice”

for an emergency room physician to communicate with an abortion provider by

telephone, regardless of whether the provider has admitting privileges at the

hospital. Dr. Fine added that when a patient is transferred to the hospital

from an abortion clinic by ambulance, the patient is transferred with a copy of

her records that contain all the necessary information for proper continuity of

care, including, for example, the procedure performed, any medication already

provided, and anything else that occurred at the outpatient clinic. Accordingly,

the district court did not clearly err in concluding that there is no evidence of

a harmful communication problem between abortion providers and emergency

room physicians and that, even if there were one, H.B. 2 does not improve any

potential communication issues.

As noted, the district court also found that the admitting-privileges

provision does nothing to get patients faster access to care, because the practice

at hospitals is to treat all patients, regardless of their treating physician, with

“all possible haste.” Abbott, 951 F. Supp. 2d at 900. Dr. Carnell testified that

all patients at the emergency room go through triage, where an emergency

room medical staff “sees [the patient] quickly, evaluates their vital signs, and

then [the patient is] placed . . . on a list to be seen.” The entire triage process

happens in under three minutes, regardless of whether the patient’s treating

physician has admitting privileges at the hospital. Dr. Fine likewise testified

that “if the [abortion] patient in the rare situation needs to go to the operating

room,” her abortion providers’ lack of admitting privileges has no bearing on

how quickly the operation will occur because a physician, with or without

40

No. 13-51008

admitting privileges “can’t reserve an operating room for [her] patient,” but

rather, patients are treated based on the gravity of his or her condition and

need for immediate treatment. Thus the district court’s finding that the

admitting-privileges provision is of no consequence to abortion patient’s

treatment at an emergency room is not clearly erroneous.

2. The District Court Properly Found that the

State’s Evidence Did not Support Its

Justification Arguments

In response to the Plaintiffs’ evidence, the State submitted seven sworn

declarations in an effort to establish that the admitting-privileges provision

improved quality of care for abortion patients and increased effective

communication between abortion providers and emergency room physicians.

The Abbott II panel summarized the State’s evidence regarding the

justifications for the provision as follows:

Dr. John Thorp, a board-certified Ob/Gyn, . . . referred to

several studies [to support his assertion that the provision

improves continuity of care], 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-privileges requirement hospitals in Texas could, as

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No. 13-51008

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. . . .

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.

Abbott II, 748 F.3d at 592-93. Nothing in the State’s evidence, either

summarized by the panel or contained in the record, makes the district court’s

42

No. 13-51008

findings of fact implausible and, thus, this court is obliged to uphold the district

court’s findings, detailed supra. Further, the panel’s representation of the

record evidence mischaracterizes the strength of the State’s evidence.

First, with regard to the State’s contention that the admitting-privileges

provision improves continuity of care and communication between abortion

providers and emergency room physicians, the district court rejected this

argument, reasoning that the State’s evidence that approximately 80% of

serious complications are caused by miscommunication during patient hand-

offs does not demonstrate whether there are any communication problems

between abortion providers and emergency room physicians. Abbott, 951 F.

Supp. 2d at 899 (“The State . . . provides no evidence of correlation between

admitting privileges and improved communication with patient handoff or that

a communication problem actually exists between abortion providers and

emergency-room physicians.”). Review of the Joint Commission’s study that

the panel relies upon, reveals that it is a two-page report that does not address

whether communication problems exist between abortion providers and

hospital physicians nor whether communication between abortion providers

and emergency room physicians would be improved were all abortion providers

able to maintain local hospital privileges. Rather, the report cited by Dr. Thorp

primarily addresses internal hand-offs between caregivers or teams of

caregivers at hospitals, with brief mention of external hand-offs, and makes

recommendations for improving communication between providers during

hand-offs—none of which include any mention that all providers transferring

patients have admitting privileges, or that admitting privileges in any way

impact the effectiveness of the communication between caregivers upon the

patient’s transfer. See Facts about the Hand-off Communications Project,

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No. 13-51008

JOINT COMM’N CTR. FOR TRANSFORMING HEALTHCARE, available at

www.centerfortransforminghealthcare.org/assets/4/6CTH_HOC_Fact_Sheet.p

df (last visited July 7, 2014). Similarly, the other studies that Dr. Thorp cites

to support the contention that the admitting-privileges provision promotes

effective communication, reflect only the potential danger that may occur upon

miscommunication during a hand-off. None conclude that requiring external

physicians to maintain local hospital privileges will improve communication

upon transfer. Rather, the studies suggest that other measures have been

proven to enhance communication and reduce risk of injury, for example,

establishing a standardized form and providing ample time for physicians to

communicate with one another. See, e.g., Julie K. Johnson, et al., Searching

for the missing pieces between the hospital and primary care: mapping the

patient process during care transitions, OPEN ACCESS, available at

http://qualitysafety.bmj.com/content/21/Suppl_1/i97.full.pdf+html

(recommending “process mapping” to work towards building “safe and reliable

patient transitions”); see also Improving Transitions of Care: Hand-Off

Communications, JOINT COMM’N CTR. FOR TRANSFORMING HEALTHCARE,

available at

http://www.centerfortransforminghealthcare.org/assets/4/6/CTH_Hand-

off_commun_set_final_2010.pdf (last visited July 7, 2014) (recommending,

inter alia, that hospitals make successful hand-offs an “organization priority,”

that the hospital “develop and use standardized forms,” and allow for ample

opportunity for caregivers to ask questions”). The State’s experts rely on this

sort of evidence to conclusorily contend that “holding local hospital admitting

privileges is likely to minimize communication errors.”

44

No. 13-51008

Similarly, the Abbott II relies in part upon the State’s evidence that 73%

of hospitals report inadequate availability of on-call specialists, to suggest that

the admitting-privileges provision will help ensure prompt treatment directly

from the abortion provider, rather than relying on a hospital’s on-call ob/gyn

to treat complications that follow abortion procedures. The cited report, dated

2007, in turn cites a 2006, nationwide study for the proposition that 73% of

hospitals have inadequate on-call coverage. The data therefore is at least

seven years old, and does not indicate whether different states or specialties

have varying availability. Thus, this data does not adequately rebut the

Plaintiffs’ evidence established by its experts, who have decades of experience

in emergency medical care in Texas, that emergency room physicians and on-

call specialists are adequately trained to handle the treatment of abortion

patients who present at the hospital with complications, and that in fact, the

on-call ob/gyn is better qualified to handle a severe complication than the

abortion provider. Rather than defer to the district court’s finding of facts, the

Abbott II panel looked at the State’s evidence de novo and concluded that

“[r]equiring 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.” Abbott II, 748 F.3d at 595. The panel

improperly draws this conclusion by analyzing the record de novo and relying

upon evidence that the district court considered and reasonably rejected.

With regard to the State’s evidence that requiring admitting privileges

“screens out” unqualified providers and holds abortion providers to a higher

standard of care, the Plaintiffs’ evidence rebuts this contention by establishing

that hospital boards have a variety of reasons for rejecting a physician’s

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No. 13-51008

application for privileges, which may have nothing to do with the provider’s

abilities or experience, and instead, may be for reasons completely divorced

from medicine, such as their anti-abortion sentiments or the physicians’ home

address. See supra, Section II, A, 3-4. Moreover, despite the State’s and the

Abbott II panel’s contention that federal and state laws prohibit discrimination

against abortion providers and therefore hospitals will not reject abortion

providers based on anti-abortion sentiments, the Plaintiffs’ evidence

established that anti-discrimination laws are unlikely to prevent hospital

boards’ discrimination against abortion physicians seeking admitting

privileges. The board is not required to announce or disclose its bases for a

decision, and may simply reject an application without stating a particular

reason. Dr. Fine thus explained that the law may protect a physician who

already has staff privileges or is a hospital employee from wrongful

termination, but it does not guard against boards discriminating against

abortion providers in the application process for admitting privileges because

physicians denied admitting privileges “never find out why.”

Furthermore, the State’s own experts have suggested that the admitting-

privileges provision is not necessary to improve the quality of care that

abortion patients receive. For example, Dr. Mikael Love concedes that the

State’s interests would be adequately served by simply requiring abortion

providers to maintain a relationship with a local surgeon with admitting

privileges. Dr. Love attests that “[a] responsible surgeon who abides by the

standard of care will have admitting privileges or a relationship with a surgeon

who does.” (emphasis added). As noted, such a relationship with a physician

with admitting privileges is all that is required of abortion providers who

perform abortions at sixteen weeks or more at ASCs—a riskier procedure than

46

No. 13-51008

abortions provided at other outpatient facilities. Moreover, the evidence

established that in various abortion clinics, the facilities have emergency plans

in place that adhere to this recommendation. For example, Ferrigno attested

that all WWH facilities “have an emergency protocol in place to ensure the

safety of . . . patients in the rare event of complications requiring

hospitalization. . . . [T]he physician will remain with the patient until the

transfer [to the hospital] is completed. The physician will then be placed on

the telephone with the hospital emergency room admitting staff and with his

or her backup physician (the physician with local admitting privileges with

whom he or she is required to have a working relationship to assist with

complications) and provide the backup physician with information about the

patient. The backup physician can then meet the patient when she arrives at

the hospital, or will be asked to remain on call, as necessary.”

In sum, the State’s evidence does not demonstrate the need for abortion

providers to have local admitting privileges in order to facilitate

communication or improve the standard of care abortion patients receive and

thus does not render the district court’s findings of fact implausible in light of

the record as a whole. Accordingly, the panel erred by crediting the State’s

evidence that the district court rejected, and disregarding the court’s findings

of facts that were substantially supported by the record evidence.

III. Abbott II Panel’s Improper Application of Undue Burden Test

In addition to its failure to give proper deference to the district court’s

findings of fact, throughout its discussion of the effects that the admitting-

privileges provision of H.B. 2 will have upon a woman’s right to a previability

abortion, the panel contravened Casey by: (1) failing to weigh the extent and

severity of the burden the law imposes on women against the strength of the

47

No. 13-51008

State’s legitimate justifications, thereby neglecting to do the balancing that is

at the heart of Casey; and (2) misapplying Casey’s “large fraction” test by

looking to the burden imposed upon all women in Texas seeking abortions,

declining to consider the particular circumstances of the women affected by the

law, and disregarding evidence of relevant contextual facts.

A. Panel’s Failure to Weigh Obstacles against Strength of State’s

Justification

As discussed supra, to give proper consideration to both the State’s

legitimate objectives and women’s liberty interests, the undue burden

standard announced in Casey charted a middle-of-the-road path between strict

scrutiny and rational-basis review. Similar to the analysis employed by the

Court in its ballot-access cases, when considering whether the burden placed

upon women by a challenged abortion regulation is undue, we must weigh the

extent, character, and magnitude of the obstacles placed in the path of women

seeking previability abortions against the strength of the state’s justifications.

Casey, 505 U.S. at 878 (“To protect the central right recognized by Roe v. Wade

while at the same time accommodating the State’s profound interest in

potential life, we will employ the undue burden analysis.”). As the author of

Abbott II has explained, “[a]s long as Casey remains authoritative, the

constitutionality of an abortion regulation thus turns on an examination of the

importance of the State’s interest in the regulation and the severity of the

burden that regulation imposes on the woman’s right to seek an abortion.”

Barnes v. State of Miss., 992 F.2d 1335, 1339 (5th Cir. 1993) (emphasis added)

(Jones, J.). Our sister circuits have agreed that the undue burden test

encompasses a weighing of the magnitude of the state’s interest against the

extent of the burden imposed by the regulation. See Humble, 753 F.3d at 914

48

No. 13-51008

(9th Cir. 2014) (“[We must] weigh the extent of the burden against the strength

of the state’s justification in the context of each individual statute or

regulation.”); Van Hollen, 738 F.3d at 798 (“The feebler the medical grounds,

the likelier the burden, even if slight, to be ‘undue’ in the sense of

disproportionate or gratuitous.”). Casey instructs, and the very meaning of the

term “undue” implies, that the harsher the obstacle resulting from a

regulation, then the more robust the government’s justification must be. See,

e.g., Casey, 505 U.S. at 874, 901; Anderson, 460 U.S. at 789; see also Strange I,

2014 WL 1320158, at *13.

Rather than consider the strength of the State’s interests against the

extent of the burden imposed by the admitting-privileges provision, the Abbott

II panel instead deferred to the State’s proffered “conceivably” rational

justifications for the law, and disregarded evidence establishing the extent of

the burden placed upon women by the admitting-privileges requirement. In so

doing, the Abbott II panel never expressly addressed whether the State’s

interests were actually furthered by H.B. 2’s admitting privileges-provision,

nor did it consider the strength or importance of the State’s justifications, let

alone weigh the strength of the governmental interests against the burden

imposed upon women—an analytical error which our sister circuits have

already observed is inconsistent with Supreme Court precedent. See Humble,

753 F.3d at 914 (“We conclude that Abbott . . . [is] inconsistent with the undue

burden test as articulated and applied in Casey and Gonzales. . . .[in part

because it] fails to recognize that the undue burden test is context-specific, and

that both the severity of a burden and the strength of the state’s justification

can vary depending on the circumstances.”).

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No. 13-51008

The Abbott II panel, in a perfunctory analysis, altogether failed to

conduct the weighing of burden against justification that the Casey “undue

burden” standard requires. Instead, the panel looked to the burden imposed

by the admitting-privilege provision in isolation, without comparing the

magnitude of the burden on a woman’s right to procure an abortion to the

strength (or lack thereof) of the State’s justifications, as Casey requires. Casey,

505 U.S. at 888-896; 900-01. The panel’s simplistic and deferential approach

is a patent disregard of the dictates of Casey. Indeed, under the panel’s

analysis, the Casey “undue burden” test simply requires courts to assess

whether an abortion restriction has the “purpose” or “effect” of imposing a

“substantial obstacle” in the path of a woman seeking an abortion, each in

isolation of the other, without any meaningful analytical substance.

The weighing or balancing necessary under Casey gives meaningful form

and content not only to what constitutes a “substantial obstacle” but also to the

abortion right itself because, absent balancing, the Government could

permissibly enact legislation that only marginally advanced its interests while

significantly hindering women’s access to abortion—just as Texas has done

here. This is not what Casey requires. Indeed, Casey itself conducted this

exact sort of balancing, which we are obliged to follow. See, e.g., Casey, 505

U.S. at 900-01 (balancing the State’s legitimate interest in collecting patient

information—which the Court deemed a “vital element of medical research”—

against the only “slight” increase in cost of abortions, and therefore upholding

the challenged recordkeeping and reporting requirements); id. at 888-896

(weighing the substantial obstacle imposed upon women in abusive marriages,

who are most affected by the spousal notification provision, against the State’s

limited interest in protecting the husband’s right to be notified of the wife’s

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No. 13-51008

abortion procedure—an interest premised in part on outmoded ideals about a

“woman’s role within the family”). Even prior decisions of this Court applying

Casey have recognized that balancing is part of the inquiry. See, e.g., Barnes,

992 F.2d at 1339-40 (considering the only “slight” burden imposed upon minor

women seeking abortion against the government’s “undeniable” interest in

“protect[ing] children from their own immaturity and naiveté.”).

Moreover, if the severity of the burdens imposed has nothing to do with

the strength of the reasons for those burdens (i.e. absent balancing), then

courts would be left to articulate a one-size-fits-all definition of “substantial

obstacle” regardless of the weight of the government interests at stake.

Strange I, 2014 WL 1320158, at *18. Such an approach would engender absurd

results completely at odds with Casey. If the one-size-fits-all definition of

substantial obstacle is set too low (e.g., minor burdens on women), then courts

will be instructed to strike down regulations even in the face of compelling

health consequences. Id. Conversely, if the one-size-fits-all definition of

“substantial obstacle” is too high, then essentially all abortion regulation

would be permitted, no matter how severe the burdens and how slight the

governmental interests at stake. Id. While the Abbott panel may endorse this

view of women’s right to access an abortion, Casey instructs us that a law need

not impose an insurmountable burden or interference in order to be a

substantial obstacle. Id. Balancing is therefore required to adequately protect

both the State’s legitimate interest and a woman’s constitutional right.

Nevertheless, the panel relies upon Gonzales v. Carhart, as compelling

this court to apply a deferential rational-basis inquiry, 10 followed by a

10 The Abbott II panel misread the Gonzales Court’s use of the term “rational basis”

within the Court’s discussion of the “purpose” prong of Casey’s undue burden test. To

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threadbare consideration of the purpose and effect of the law, each in isolation,

and without reference to important contextual realities in which the law will

determine whether the Partial Birth Abortion Act had a lawful purpose, the Court analyzed

whether the government had a “rational basis to act” by looking to the Congressional findings

and determining whether the Act actually furthered the government’s stated purpose for the

law. Gonzales, 550 U.S. at 158 (“Where it has a rational basis to act, and it does not impose

an undue burden, the State may use its regulatory power to bar certain procedures and

substitute others, all in furtherance of its legitimate interests in regulating the medical

profession in order to promote respect for life, including life of the unborn.”). Citing only to

this “rational basis to act” language in Gonzales, the Abbott II panel states that “[t]he first-

step in the analysis of an abortion regulation, . . . is rational basis review, not empirical basis

review.” Abbott II, 748 F.3d at 596 (citing Gonzales, 550 U.S. at 158). The Abbott II panel

relies upon this phrase in Gonzales, taken out of context, to apply a highly deferential,

rational-basis review articulated in cases such as F.C.C. v. Beach Communications, Inc., 508

U.S. 307 (1993), and Heller v. Doe, 509 U.S. 312 (1993)—case law and reasoning which the

Supreme Court has never applied to review an abortion regulation. Id. at 590. The Abbott

II panel imports language from these unrelated cases, never cited by the Court in the abortion

context, to conclude that the district court erred in finding that the State did not present any

“evidence of correlation” between the admitting-privileges regulation and its legitimate

interest because, even in the abortion context, “the rational basis test seeks only to determine

whether any conceivable rationale exists for an enactment.” Id. at 594 (citing F.C.C., 508

U.S. at 313). The panel reasons that even “rational speculation unsupported by evidence or

empirical data satisfies rational basis review.” Id. (citation omitted).

A careful reading of Gonzales reveals that it faithfully follows the Casey undue burden

analysis, as discussed infra. In Gonzales, the Court did not reintroduce the rational-basis

standard of review nor change the Casey undue burden standard. Gonzales used the term

“rational” only in explaining why Congress acted with a permissible purpose to ban partial

birth abortions. Gonzales, 550 U.S. at 158. The Gonzales Court reaffirmed that Congress

cannot act to impose an undue burden on a woman’s right to choose an abortion prior to

viability, and the Gonzales Court’s language cannot be read to transform Casey’s undue

burden standard into the ordinary rational basis standard that the controlling plurality flatly

rejected in Casey. As discussed, Casey requires a court to analyze the strength of the state’s

justifications and the extent to which those justifications are furthered by the law. A

deferential rational basis test has no place in that inquiry.

The Abbott II panel, treating the Gonzales Court’s use of the words “rational basis” as

an invitation to apply a run-of-the-mill rational-basis review to H.B. 2, held that by

scrutinizing the evidence to conclude that the law lacked a rational basis, the district court

applied an erroneous legal standard. The panel concluded that the State’s mere offer of

conceivably rational justifications for the provision was sufficient to find that the State

rationally “acted within its prerogative to regulate the medical profession.” Abbott, 748 F.3d

at 595. Most egregiously, the Abbott II panel never considered whether the State’s

justification was sufficiently weighty to warrant the extent of the burden imposed upon

women; instead, it rested on its conclusion that the law had a conceivably rational basis.

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operate. Contrary to the panel’s understanding of Gonzales, the Court in

Gonzales adhered to the Casey undue burden test by expressly considering the

extent to which the regulation at issue furthered the underlying government

interest vis-à-vis the burden imposed on women by the restriction. In so doing,

the Gonzales Court, like the Casey Court, in fact did weigh the burden against

the purported justification, even if the Court did not explicitly use the term

“balancing.”

The majority opinion in Gonzales applied the principles in Casey’s undue

burden test to determine the validity of the federal Partial-Birth Abortion Act.

Gonzales, 550 U.S. at 145-46.

Before viability, a State “may not prohibit any woman from

making the ultimate decision to terminate her pregnancy.” 505

U.S., at 879. It also may not impose upon this right an undue

burden, which exists if a regulation’s “purpose or effect is to place

a substantial obstacle in the path of the woman seeking an

abortion before the fetus attains viability.” Id. at 878. On the

other hand, “[r]egulations which do no more than create a

structural mechanism by which the State, or the parent or

guardian of a minor, may express profound respect for the life of

the unborn are permitted, if they are not a substantial obstacle to

the woman’s exercise of the right to choose.” Id. at 877. Casey, in

short, struck a balance. The balance was central to its holding.

We now apply its standard to the cases at bar.

Id. at 146. The Gonzales majority opinion thus expressly analyzed the

Act under the Casey standard and stated that the Act would be held

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unconstitutional if its purpose or effect is to place a substantial obstacle in the

path of a woman seeking an abortion before the fetus attains viability. Id.

Critically, the Gonzales Court applied and adhered to Casey not only in

form, but also in recognizing that the content of the Casey inquiry involves a

careful weighing of both burdens and justifications. The Act, as interpreted by

the Gonzales Court, prohibited only very limited types of abortion practices;

the pregnant woman and her physician had an almost unlimited number of

abortion procedures, other than the intact D & E method, to choose from. 11 Id.

at 164. Accordingly, the effect of the law did not place an obstacle in the path

of a woman seeking an abortion. But that is not all. In stark contrast to the

Abbott II panel’s approach, the Gonzales Court’s “effects” calculus considered

more than just the obstacles imposed by the Act: the Court also expressly

considered those obstacles in light of its conclusion that the Act actually

furthered the Government’s interest in promoting respect for human life. Id.

at 157-60. Indeed, the Court explicitly observed that the Act’s “furtherance of

legitimate government interests bears upon,” but is not dispositive of, whether

the Act has the effect of placing a substantial obstacle on women. Id. at 161.

Weighing the nearly non-existent burdens imposed upon women’s liberty

interests, against the fact that the Act actually furthered a legitimate

government interest in protecting fetal life, the majority ruled that the law did

not impose an undue burden on a woman’s right to choose to have an abortion.

This is the very balancing that Casey requires and that the Abbott II panel

neglected to do.

11 Thus, in Gonzales, the evidence established that the Act would not foreclose the

availability of numerous other abortion procedures, whereas the evidence here established

that H.B. 2 would foreclose the availability of abortion services for approximately 22,000 in

Texas.

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Application of the proper balancing test to the evidence adduced at trial

reveals that the admitting-privileges provision amounts to an undue burden

and is unconstitutional under Casey because the substantial obstacles are not

outweighed or warranted by the state’s purported justifications for the law. As

explained supra, the evidence established that the admitting-privileges

provision will impose an absolute obstacle upon over 22,000 women, and a

substantial obstacle on a large fraction of those women restricted by the law—

those who must travel vast distances to access the nearest abortion provider.

On the other side of the scale, the district court correctly found that the

justifications for H.B. 2’s admitting-privileges provision is virtually

nonexistent because the evidence shows that requiring abortion doctors to have

admitting privileges would not increase the competence of those doctors, the

safety of abortions, or the quality of hospital care given to the few abortion

patients who are treated in hospital emergency care facilities. In light of the

heavy burden imposed upon a woman’s constitutionally protected right and the

weak, if any, justifications for the law, the district court properly concluded

that the law amounts to an undue burden on a woman’s liberty interest in

obtaining an abortion and must be facially invalidated. The enormous flaw in

the Abbott II panel’s spurious undue burden analysis is that it nowhere

assesses the strength of the justification that the State names for its

legislation, nor does it weigh the weakness of the State’s justifications against

the extent of the burden imposed upon women. Instead, it simply assumes

that the legislation will result in what the State says it is seeking and, as

explained directly below, erroneously minimizes the extent of the burden

imposed upon women actually restricted by the admitting-privileges provision.

The Abbott panel’s failure to consider the strength of the State’s justifications

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or to conduct the balancing required by Casey alone warrants en banc

reconsideration.

B. Panel’s Failure to Properly Apply the “Large Fraction” Analysis

and Its Disregard of Relevant Real-World Effects

In addition to the Abbott II panel’s failure to apply Casey’s balancing test,

it also neglected to apply Casey’s “large fraction” analysis and utterly

disregarded the context in which the law will take effect as irrelevant—in clear

contravention of Casey.

First, overturning the district court’s injunction of the admitting-

privileges provision of H.B. 2, the Abbott panel reasoned that

[t]he 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[.]

Abbott II, 748 F.3d at 600 (emphasis added). Thus, the panel found that

because the law would not affect a large fraction of all women seeking abortions

in Texas, the admitting-privileges provision thus did not impose a substantial

obstacle upon a woman’s right to seek a previability abortion. Id. But this is

not what Casey requires. Rather, as discussed supra, under Casey, a court

must consider whether the admitting-privileges provision would amount to a

substantial obstacle for a large fraction of women who are affected by the

abortion restriction in question. Casey, 505 U.S. at 897; see also Planned

Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 921 (9th Cir. 2004) (“The

relevant ‘large fraction’ is in turn to be computed with reference only to the

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‘group for whom the law is a restriction, not the group for whom the law is

irrelevant,’ i.e., those upon whom a challenged law would have some actual

effect, rather than all women[] . . . seeking an abortion.”) (quoting Casey, 505

U.S. at 894). The record evidence established that clinics throughout Texas

will close and that, for example, women in the Rio Grande Valley will be

without access to an abortion provider in that region, and women in the

“panhandle” of Texas, will be required to travel between 300 and 400 miles in

order to access abortion services. 12 Moreover, the evidence showed that

approximately one in three, or 22,000, women seeking an abortion in Texas

annually will be precluded from doing so as a result of clinic closures and the

remaining clinics’ inability to meet the increased demand. The evidence

further demonstrated that nearly half of women who seek abortions in Texas

have incomes below the federal poverty line, and thus will have either

substantial barriers to accessing abortion services, or may be completely

precluded from obtaining an abortion. 13 Under Casey, the proper inquiry then

is whether a large fraction of women restricted by the law—i.e., who as a result

of the admitting-privileges regulation, are absolutely precluded from obtaining

an abortion, as well as those who are forced to travel vast distances and incur

prohibitive traveling costs to access abortion services from a provider with the

requisite admitting privileges—will face a substantial obstacle. It is these

12As Dr. Potter attested, “[s]ome women in the Panhandle will have to travel more

than 350 miles to seek an abortion. The burdens of these trips are magnified by the

patchwork of state requirements that may force women to make multiple trips to a clinic.

Some women who would otherwise have gotten an abortion will be prevented from doing so

by these burdens.”

13 Angela Martinez explained that most of Planned Parenthood Women’s Health

Center’s clients are parents below the federal poverty line who “often have trouble obtaining

use of a car and the resources to pay for gas, permission from their employer to take the

necessary time off, and/or childcare.”

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women affected and burdened by the enactment of the admitting-privileges

provision that should have served as the “denominator” for purposes of the

large-fraction analysis—not, as the Abbott II panel erroneously reasoned, all

women in Texas seeking an abortion. Casey, 505 U.S. at 894. The panel’s

articulated calculus is improper under Casey.

Second, the panel failed to follow Casey when it rejected relevant

evidence regarding the effect the law will have in Texas, in light of the social

context of the law, such as local hostility towards abortion providers. For

example, the Abbott panel discounted the evidence adduced at trial that

abortion providers in Texas will have difficulty complying with H.B. 2’s

admitting-privileges regulation, reasoning that the “challenges [faced by

doctors seeking admitting privileges] were almost entirely unrelated to H.B.

2.” Abbott II, 748 F.3d at 599 (reasoning that clinics’ difficulties in hiring

physicians with local hospital admitting privileges based on “the terms of [the

physicians’] existing employment . . . [or] fear[] [of] anti-abortion

violence[,] . . . is [not] connected with H.B. 2.”). The Abbott II panel viewed this

evidence as inapposite to the undue burden analysis because it reflected only

that “many factors other than the hospital-admitting-privileges requirement

affected abortion access” and did not reflect the direct impact of H.B. 2 itself.

Id. at 599 (citing Abbott, 734 F.3d at 415). Contrary to the Abbott II panel’s

analysis, the inquiry under Casey requires us to look at exactly this sort of

contextual evidence that the Abbott II panel rejected to determine whether the

effect of the law is to create a substantial obstacle in the path of women’s access

to abortions, in light of the social context in which the law will be enacted.

Rather than consider the real-world, context-specific effect of H.B. 2, the Abbott

II panel looked at H.B. 2’s admitting-privileges provision in a vacuum, and

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thereby disregarded Casey’s mandate to consider the relevant circumstances

that impact a woman’s access to abortion services. Casey, 550 U.S. at 897; see

also Planned Parenthood Se., Inc. v. Strange, No. 2:13-CV-405-MHT, 2014 WL

3809403, at *26 (M.D. Ala. Aug. 4, 2014) (hereinafter “Strange II”) (reasoning

that the Abbott II panel erred in declining to consider the “obstacles that arise

from the interactions of regulation with women’s financial constraints, as well

as other aspects of women’s circumstances, as ineligible to be ‘substantial

obstacles’ under Casey” because “[i]n Casey itself, the Supreme Court found

that a spousal-notification requirement was an undue burden because of its

effect on women who were in abusive relationships [and] [t]he circumstances

of those women and their relationships were at the core of the Casey analysis.

Casey’s treatment of the spousal-notification requirement shows that the

interaction of the state regulation and existing social conditions can create an

obstacle for women.”) (emphasis added).

Applying the Casey undue burden standard to the factual findings by the

district court that are supported by the record evidence, it is clear that a large

fraction of women affected by the admitting-privileges restriction will face

substantial obstacles in seeking abortions. Properly considered, the Plaintiffs’

evidence established the real-world effect of H.B. 2—that many clinics will

close because Texas abortion providers will be unable to comply with the

admitting-privileges provision; that the Rio Grande Valley, for example, will

be without an abortion provider; and that the few remaining clinics throughout

Texas will be unable to meet the significantly increased demand for abortion

services, thereby precluding approximately one in three women seeking

abortions in Texas, or 22,000 women, from accessing abortion services as a

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result of the decrease in available clinic providers alone. 14 Further, the

evidence established that women in the Rio Grande Valley and West Texas will

be required to travel vast distances to secure access to abortion, and that forty

percent of women seeking abortions in Texas are at or below the federal

poverty line, and thus are unable to travel the distances that will be necessary

as a result of various clinic closures.

Under Casey, the large-fraction analysis requires courts to examine the

effects on women actually restricted by the law: here, not only the 22,000

women completely deprived of abortion services as a result of clinic closures

and overall reduction in capacity of abortion providers in Texas, but also the

women who will only be able to access abortion services by overcoming the

severe, extra burden of traveling hundreds of miles to obtain a legal abortion

from a physician with the requisite admitting privileges. Casey, 505 U.S. at

894. 15 With feeble justification for so doing, the State is now not only

The Abbott II panel reasoned that Planned Parenthood cannot “resurrect its

14

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.” Abbott II, 748 F.3d at 598. As discussed, while the district court’s factual findings,

written into an opinion issued the day before the admitting-privileges provision was set to go

into effect, did not address many of the details adduced at trial, the court expressly stated

that it was relying upon all admissible evidence—including the evidence contained in both

parties’ sworn declarations. See Abbott, 951 F. Supp. 2d at 896 n.3. Accordingly, the panel

read too much into the district court’s failure to specifically recite the detailed evidence

presented at trial that supported the district court’s explicit findings. Such neglect to include

these details, among others, does not reflect a “refusal to accept” the relevant evidence, but

rather, a time-constrained effort to grant the Plaintiffs’ relief before the unconstitutional law

went into effect.

Even if we assume incorrectly, as the Abbott II panel did, that the proper

15

denominator for the Casey large-fraction analysis is comprised of all Texas women seeking

an abortion, or approximately 68,000 women annually, the evidence nonetheless established

that a large fraction of women—22,000 women throughout Texas, or one in three Texas

women seeking an abortion—will be absolutely precluded from accessing abortion services as

a result of H.B. 2’s admitting-privileges provision. Thus, even utilizing arguendo an improper

denominator and also disregarding, as the Abbott II panel erroneously did, the social context

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precluding one third of women from accessing an abortion provider

altogether—because, as a result of the admitting-privileges provision, clinics

will indefinitely close and the remaining clinics will be unable to meet the

significantly increased demand placed upon their facilities—but also, forcing

women who reside in, for example, the Rio Grande Valley and the western

panhandle, to travel vast distances. Assuming these women who reside great

distances from an abortion clinic are actually able to obtain an appointment at

an over-booked facility, they must additionally overcome the burden of

travelling hundreds of miles to keep their appointment. A significant number

of these women may be unable to do so because of their particular life

circumstances, such as poverty, inability to access travel accommodations,

difficultly obtaining child care, or inability to take time off from work or other

duties. The evidence established that these barriers amount to substantial

obstacles in the path of a woman seeking a legal abortion—not merely

incidental inconveniences. Indeed, the record demonstrated that forty percent

of women seeking abortions in Texas are below the federal poverty line and

thus will likely be unable to secure transportation to the closest abortion

provider. For these women, the admitting-privileges provision “does not

and real-world barriers to access, such as poverty, the evidence established that a large

fraction—one third of women seeking abortions in Texas annually—will be unable to access

abortion services as a result of the overwhelmed capacity of the few remaining clinics in

Texas.

To be sure, the Court has never indicated that a “large fraction” must be an absolute

majority of the women actually affected by the law. Had the Court meant to require proof

that a majority rather than a fraction of women actually affected by the law will face

substantial obstacles, it would have so held. Instead, in its analysis of the challenged spousal

notification provision, the Casey Court found that although the vast majority of women

volunteered to inform their husbands of their intent to procure an abortion, within the one

percent of women who declined to share this information with their spouses, a large fraction

of those women would face a substantial obstacle. Casey, 505. U.S. at 894-97. The Court so

held without articulating how many women within that one percent would be so burdened.

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merely make abortions a little more difficult or expensive to obtain; for many

women, it will impose a substantial obstacle. We must not blind ourselves to

the fact that the significant number of women who [cannot travel outside of

the Rio Grande Valley, or their relevant region, because of barriers caused by

poverty] are likely to be deterred from procuring an abortion as surely as if the

[State] had outlawed abortion in all cases.” Casey, 505 U.S. at 893-94. Thus,

applying Casey properly, the record shows that H.B. 2 imposes a substantial

obstacle on a large fraction of women actually restricted by the law.

Additionally, in reversing the district court’s decision, the Abbott panel

made the sweeping conclusion that Casey “counsels against” finding that

“potential” travel burdens amount to a substantial obstacle because the Casey

Court upheld the 24-hour informed consent provision despite noting the

additional travel that women would be required to endure as a result of the

provision. Abbott II, 748 F.3d at 598. But an examination of Casey reveals

that the panel’s conclusion on this score is wrong. As an initial matter, the

Abbott II panel altogether neglects to note that the Casey Court explicitly

limited its holding to the record evidence in that case. Casey, 505 U.S. at 901

(acknowledging that “some amount of increased cost could become a

substantial obstacle, [but] there is no such showing on the record before us.”)

(emphasis added).

But there is more. The facts of Casey were substantially and

meaningfully distinguishable from the instant case: in particular, the women

affected by the 24-hour notice provision in Casey were already required to

travel significant distances to obtain an abortion; at most, the provision

required those women to make the same trip twice. Id. at 886-87; Planned

Parenthood of Se. Pa. v. Casey, 744 F. Supp. 1323, 1351-52 (E.D. Pa. 1990). By

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contrast, the clinic closures caused by H.B. 2’s admitting-privileges provision

imposes significant new burdens on women by requiring them to travel

significant distances for the very first time. Accord Strange II, 2014 WL

3809403, at *28 (“The women at issue in . . . Casey were like the rural woman

described above: before the waiting-period provision, they already had to, and

were able to, make a two-to-three-hour trip to a clinic. The new provision

simply required them to make that trip twice or to stay overnight. By contrast,

as discussed above, the clinic closures in this case would impose severe new

burdens on the urban woman.”). Furthermore, in Casey the Court,

characterizing its conclusion as a “close[] question,” weighed this burden of

additional travel time against the State’s legitimate interest to “facilitate[] the

wise exercise of” a woman’s right to choose to have a previability abortion, and

concluded that the burden was not undue. Casey, 505 U.S. at 886-87.

Comparatively, the Abbott II panel neglected to weigh the strength of the

State’s interest against the burden imposed by additional travel time and,

instead, erroneously pronounced that Casey counsels against finding that 150

miles of additional travel is a substantial obstacle in every challenge to an

abortion regulation. The panel thus erred in interpreting this record-tethered

ruling in Casey to stand for the consequential legal rule that increased

distances are categorically insufficient to constitute a substantial obstacle.

See, e.g., Strange II, 2014 WL 3809403, at *29 (“Courts, like the Abbott courts,

err when they seek to transform [a] factual conclusion into a simplistic legal

rule. As this case demonstrates, in assessing the burdens imposed by a

regulation, the factual details are critical.”).

Moreover, by diminishing the significance of traveling 150 miles to

obtain an abortion, the panel seems to imply that burdens which are

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surmountable for some women categorically do not amount to an undue

burden. Nowhere in Casey or Gonzales does the Court suggest that the burden

imposed upon women must be insurmountable in order to be undue. This

troubling suggestion that a burden is not undue if women can overcome it,

despite any hurdles they must jump over in order to do so, would flout the

Supreme Court’s continued reaffirmation of the liberty right recognized in Roe,

and upheld in Casey and Gonzales. Merely because some women, particularly

those with financial resources and familial support, will undoubtedly be able

to overcome the substantial obstacles that H.B. 2 has placed in their path, does

not somehow render an otherwise unconstitutional provision lawful—stated

simply, overcoming a burden does not mean the burden is not undue. 16 We

cannot look at women’s ability to overcome an obstacle in isolation and use that

predicted ability to overcome barriers to somehow conclude that the obstacle is

not substantial or undue.

The Supreme Court has never indicated, either in the abortion context

or in other similar contexts, that an ability to overcome an obstacle caused by

a regulation is fatal to the plaintiff’s constitutional challenge to that

regulation. For example, in Anderson v. Celebrezze, the Court struck down an

Ohio regulation that precluded independent candidates from running for the

Presidential election if they did not submit a statement of candidacy and a

nominating petition by March 20th, for the November election. 460 U.S. 780,

782-83 (1983). The Court struck down the law because, on balance, the State’s

interest in regulating the election process by enforcing a strict deadline was

16Indeed, “[a] woman with means, the freedom and ability to travel, and the desire to

obtain an abortion, will always be able to obtain one, in Texas or elsewhere. However, Roe’s

essential holding guarantees to all women, not just those of means, the right to a previability

abortion.” Lakey, 2014 WL 4346480, at *13.

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“minimal” in comparison to the extent and nature of the burden placed on

voters’ “freedom of choice and freedom of association.” Id. at 806. As Chief

Justice Rehnquist noted in dissent, the “record shows that in 1980 five

independent candidates submitted nominating petitions with the necessary

5,000 signatures by the March 20 deadline and thus qualified for the general

election ballot in Ohio.” Id. at 809 (Rehnquist, J., dissenting). Thus, we know

that some candidates were able to overcome the obstacle imposed by the

restriction. This fact did not impact the Court’s decision to conclude that in

light of the State’s weak interest, the burden imposed upon independent

candidates and their supporters was unconstitutional.

Just as the evidence of individual candidates overcoming the

unconstitutional restrictions in Anderson was not dispositive in the Court’s

analysis, I fail to see how women’s potential success in struggling to overcome

a substantial obstacle imposed by a regulation that does not actually further

the State’s purported interest is relevant. The Casey Court reaffirmed Roe’s

central principles and articulated a middle-of-the-road standard between strict

scrutiny and rational-basis review in order to reconcile a woman’s liberty

interest in choosing to obtain an abortion with the state’s legitimate interests

in protecting women’s health and promoting fetal life. The Abbott II panel’s

interpretation of the undue burden standard implies that a state may all but

prohibit abortions. That is simply not the Casey undue burden standard and

such an approach threatens to eviscerate the careful balance that lies at the

heart of Casey. Gonzales, 550 U.S. at 146 (explaining that Casey “struck a

balance. The balance was central” to the Casey Court’s holding).

Lastly, the Abbott II panel looked only to the evidence that women in the

Rio Grande Valley would be required to travel an additional 150 miles or less

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to access an abortion outside of the region, and altogether ignored evidence

regarding the distances traveled by women in West Texas and the panhandle.

Id. However, even if we confine our view of the evidence to the effect on women

in the Rio Grande Valley, the record indicates not merely an inconvenient

increase in travel, but a corresponding inability of women seeking abortions

living in that area to actually travel the increased distance because of

prohibitive costs and burdensome arrangements that would be necessary to

make before traveling to the abortion provider. As discussed supra, Casey

dictates that this court focus its inquiry on these very women who are most

restricted by the admitting-privileges provision. Casey, 505 U.S. at 894.

Upon weighing the heavy burden imposed on a large fraction of women

affected by the admitting-privileges provision against the State’s weak

justifications that are unsupported by reliable evidence, it becomes clear that

this court should reconsider this case en banc and affirm the district court’s

conclusion that H.B. 2’s admitting-privileges provision imposes an undue

burden upon a woman seeking to obtain a previability abortion and thus is

unconstitutional.

IV. Conclusion

This court’s charge is clear: “The woman’s right to terminate her

pregnancy before viability is the most central principle of Roe v. Wade. It is a

rule of law and a component of liberty we cannot renounce.” Casey, 505 U.S.

at 870. In Casey, the Court articulated a framework that this court is bound

to follow to ensure that a woman’s substantive due process right to choose to

have a previability abortion is protected, while allowing the State to promote

its legitimate interests in protecting women’s health and promoting fetal life.

The undue burden test that Casey announced strikes this careful balance

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between the competing interests and must be applied in challenges to abortion

regulations, like H.B. 2’s admitting-privileges requirement. The Abbott II

panel failed to properly apply this standard, thereby threatening to annihilate

the constitutional protections afforded women under Roe and explicitly

reaffirmed in Casey. The Abbott II panel’s opinion will invariably affect the

outcome of future challenges (some of which are currently pending before this

court) to abortion regulations. For these reasons, I dissent from the denial of

rehearing en banc.

67