Opposition Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

No. 15-274

In the Supreme Court of the Giited States

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS

v.

KIRK COLE, COMMISSIONER OF THE TEXAS DEPARTMENT

OF STATE HEALTH SERVICES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

KEN PAXTON Scott A. KELLER

Attorney General of Texas Solicitor General

Counsel of Record

CHARLES E. Roy

First Assistant Attorney J. CAMPBELL BARKER

General Deputy Solicitor General

BETH KLUSMANN

MICHAEL P. MURPHY

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott. keller@

texasattorneygeneral gov

(512) 936-1700

QUESTIONS PRESENTED

l.a. Should the Court disregard Planned

Parenthood of Southeast Pennsylvania v. Casey, 505

U.S. 833 (1992), Mazurek v. Armstrong, 520 U.S. 968

(1997) (per curiam), and Gonzales v. Carhart, 550 U.S.

124 (2007), and revert back to a pre-Casey standard

requiring courts to scrutinize the medical merits of

abortion regulations that raise standards of care?

l.b. Did the Fifth Circuit err in concluding that

Texas’s admitting-privileges and ambulatory-surgical-

center requirements are facially valid, given that the

benefits of raising standards of care in this context are

recognized by medical experts and that an abortion

facility will remain open in each area where an abor-

tion facility will close under the Fifth Circuit’s deci-

sion?

2. Did the Fifth Circuit err in concluding that

res judicata bars (i) a facial challenge to the admitting-

privileges requirement that was raised and resolved on

the merits in a prior lawsuit by the same plaintiffs, and

(ii) a facial challenge to the ambulatory-surgical-center

requirement?

(I)

ES ee eee

TABLE OF CONTENTS

Page

TIT ss secccseniestseesiniittiiehiciniesialitimieitiiiieiiaais I

, | —___ TERE Ree neNcemee ame IV

REESE eS eC RROe ere mE ome l

SI ainicicenenrisesssiniaiicantesiintiacieittiesiinilmsiaiiiasitaaaiisiaatahaitiaa 3

L HB2 And Its Implementing Regulations. ............. 3

IL. Petitioners’ First Lawsuit. ......................ccccccssesseeees 6

IIL Petitioners’ Second Lawsuit. ................:.ccessseseeees 7

Reasons For Denying The Petition.......................cesceseeees 15

L Review Of The Constitutional Questions Is

TIT, cocccesctnsnsecseuseiehiiiteisienianmstiniuniiitiainipeiantsinn 15

A. The Fifth Circuit correctly applied

Casey in rejecting most of petitioners’

1. Casey, Mazurek, and Gonzales did

not scrutinize whether an abortion

regulation is sufficiently beneficial

or medically necessary. ..................:0-++ 16

2. Petitioners seek to revive the strict

scrutiny analysis rejected in Casey....... 18

3. The Fifth Circuit correctly rejected

most of petitioners’ claims..................... 22

B. There is no entrenched split of

authority on the governing legal

I ceietcsinmennensstanctincntatainssinabiniinnmennmenin 27

IL Review Of The Res Judicata Question Is

STII oscnsisentntnencensiniennininaiamnindiicnnintentasi 30

IIL There Are Significant Vehicle Problems............. 33

SR eiiccniiccehnithinithiaia inhibi 36

(IIT)

IV

TABLE OF AUTHORITIES

Page(s)

Cases

Citizens United v. FEC,

EIN ne ee 31

City of Akron v. Akron Ctr. for Reproductive

Health,

I 18

City of Springfield v. Kibbe,

480 U.S. 257 (1987) (per curiam) .....................0000. 34

Gonzales v. Carhart,

I passim

Greenville Women’s Clinic v. Bryant,

Be ED TES SUID cnstcntenvsictctvctinnisnteniiiiaian 27

Harris v. McRae,

EE Caer ae aR a 21, 26

Heller v. Doe,

| | ERS SER ee eee en ean 15

Jackson Women’s Health Org. v. Currier,

760 F.3d 448 (5th Cir. 2014), petition for cert.

filed, S. Ct. No. 14-997 (Feb. 18, 2015) ..........000.... 26

Karlin v. Foust,

188 F.3d 446 (7th Cir. 1999) 2.00.00... cece 29

Kowalski v. Tesmer,

GEER AER ame e eee eae a 36

Leavitt v. Jane L.,

518 U.S. 137 (1996) (per curiam) .......................0+. 24

Mazurek v. Armstrong,

520 U.S. 968 (1997) (per curiam) .................. passim

McCleskey v. Kemp,

I li 20

McCormack v. Herzog,

788 F.3d 1017 (9th Cir. 2015) ................ccccssrseseees 30

V

Pers. Adm’r of Mass. v. Feeney,

EEE Te ee eT 21

Planned Parenthood Ariz., Inc. v. Humble,

753 F.3d 905 (9th Cir. 2014), cert. denied,

| RE Ae en ee 29

Planned Parenthood Min., N. Dak., S. Dak. v.

Rounds,

686 F.3d 889 (8th Cir. 2012) (en banc) ........... 27-28

Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott,

Lk TE eee nen enn ENTE 7

Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott,

734 F.3d 406 (5th Cir. 2013) ...............ccccscssesseeees 6, 7

Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott,

748 F.3d 683 (5th Cir. 2014) ......................... passim

Planned Parenthood of Se. Pa. v. Casey,

I a sanieeeii passim

Planned Parenthood of Se. Pa. v. Casey,

744 F. Supp. 1323 (E.D. Pa. 1990)....................00 25

Planned Parenthood of the Heartland, Inc. v.

Iowa Bd. of Med.,

865 N.W.2d 252 (Iowa 2015) ........................c0es000 30

Planned Parenthood of Wis., Inc. v. Van Hollen,

738 F.3d 786 (7th Cir. 2013), cert. denied,

I 28, 29

Roe v. Wade,

ESE EER art cee een a 16

Simopoulos v. Virginia,

LS ERR ae ee passim

Smith v. Doe,

ETE SSS SD ene Soo erneee 20

Tucson Woman’s Clinic v. Eden,

879 F.3d G31 (Gti Cir. BOOS) .......0000ccccccccecccccccceeees 29

United States v. Salerno,

ee I i issintiidncueintabiens 34

United States v. Tohono O’Odham Nation,

I a eameneibiial 31

Whole Woman’s Health v. Cole,

RS e er rarer et 14

Whole Woman’s Health v. Lakey,

I ian 12

Women’s Health Ctr. of W. Cnty., Inc. v. Webster,

871 F.2d 1877 (Oth Cir. 196) ..............cccccccccccccceee 27

Women’s Med. Prof Corp. v. Baird,

438 F.3d 596 (6th Cir. 2006) ..................c00cccccccscees 27

Statutes and Rules

I aed 4

I se ernie 27

Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1,

» 8 & FESS eeenpoeeenaers 3

Tex. Health & Safety Code § 171.0031(a) .................. 4

Tex. Health & Safety Code § 171.004... 3

Tex. Health & Safety Code § 171.012(a)(4)................ 4

Tex. Health & Safety Code ch. 241...................cccceeeee 4

Tex. Health & Safety Code ch. 243..........0.0...00cccceeeee 4

Tex. Health & Safety Code § 245.004..................... 4,5

Tex. Health & Safety Code § 245.010(a) .................... 4

Tex. Health & Safety Code § 245.016..................00..... 4

_ 5 § |b | RSE eeEererE 4

25 Tex. Admin. Code §§ 135.1-135.56..................0..00. 4

25 Tex. Admin. Code § 135.51(a) ................00:ccccceeeeeeee 6

25 Tex. Admin. Code § 135.51(C)................cccccccccceeeeeees 6

25 Tex. Admin. Code § 139.1(D) ................cccceceeeeeees 4,5

25 Tex. Admin. Code § 139.1(b)(1)(B)(ii) ................... 4

25 Tex. Admin. Code § 139.9(b) .................ccccccceeeeeees 24

25 Tex. Admin. Code § 139.40................cccccceeeeeeeeeeee ees 5

) 5 2 ee senecersee 6

tr WELLING lt ctescernsisenntishetieiiannibinsdaieageicieibeenabienbiaiiiataniaa 33

Vil

Other Authorities

Appellants’ Ltr., Whole Woman’s Health v. Cole,

No. 14-50928 (5th Cir. June 15, 2015)........0....... 2,6

Appellees’ Principal & Resp. Br., Whole Woman’s

Health v. Cole, No. 14-50928 (5th Cir. Nov. 24,

Compl., Planned Parenthood of Greater Tex.

Surgical Health Servs. v. Abbott, No. 1:13-cv-

862 (W.D. Tex. Sept. 27, 2013).............ccccccssssssssees 32

Restatement (Second) of Judgments § 19 (1982).....31

Restatement (Second) of Judgments § 24 (1982) .....31

Senate Comm. on Health & Human Servs., Bill

Analysis, Tex. H.B. 2, 83d Leg., 2d C.S. (2013)....21

INTRODUCTION

Petitioners ignore the fact that under the Fifth

Circuit’s decision, which granted as-applied relief in

McAllen, every metropolitan area with an abortion fa-

cility operating today in Texas will still have an operat-

ing abortion facility if the ruling takes effect. There

are ten facilities currently operating in Texas that per-

form abortions and comply with the ambulatory-

surgical-center requirement. Excluding McAllen,

there are only nine abortion facilities operating today

that do not comply with the ambulatory-surgical-

center requirement and would therefore have to close

under the Fifth Circuit’s ruling:

#5 : as ae ceeee nny cAbsrtion Facilities

tis Nae bs wt “Continuing “| © ‘ Closing

Austin ] 1

Dallas 2 0

Fort Worth 1 ]

Houston 2 4

San Antonio 4 1

El Paso 1 2

(Santa Teresa, NM)

McAllen 1 0

(1)

2

See Appellants’ Ltr., Whole Woman’s Health v. Cole,

No. 14-50928 (5th Cir. June 15, 2015).’

Texas’s admitting-privileges and ambulatory-

surgical-center (ASC) requirements raise the standard

of care for all abortion patients. Medical experts in this

case testified to the benefits of these requirements and

explained how they wiil improve the health and safety

of women. And this Court upheld an ambulatory-

surgical-center requirement for second-trimester

abortions under the pre-Casey strict-scrutiny frame-

work. Simopoulos v. Virginia, 462 U.S. 506, 519

(1983).

While some abortion providers may choose to close

rather than comply, petitioners did not even attempt to

prove that remaining facilities will lack the capacity to

perform the number of abortions sought—or that some

of the other 423 ambulatory surgical centers in Texas

will not begin performing abortions. So there is no evi-

dence that women will experience any materially dif-

' In the few months since the Fifth Circuit requested this in-

formation in June, (1) Planned Parenthood opened an ASC in San

Antonio and closed its non-ASC facility there; (2) Routh Street

Women’s Clinic in Dallas closed; (3) petitioner Reproductive Ser-

vices opened a non-ASC facility in E] Paso pursuant to the dis-

trict court’s injunction; and (4) an existing ASC in San Antonio

(Castle Hills Surgery Center) has begun performing abortions.

The Texas Department of State Health Services maintains a pub-

licly available list of all operating ASCs in Texas that describes

their offered services, including abortions. See

https://www.dshs.state.tx.us/facilities/find-a-licensee.aspx. (last

visited Oct. 5, 2015).

3

ferent travel distances to obtain an abortion under the

Fifth Circuit’s ruling.

Petitioners ask the Court to disregard nearly a

quarter-century of abortion jurisprudence, including

Casey and Gonzales, by overriding the medical evi-

dence presented below and reverting back to the pre-

Casey strict-scrutiny framework. Moreover, this case

has many significant vehicle problems, including res

judicata and forfeiture of arguments. The Court should

deny certiorari.

STATEMENT

L HB2 And Its Implementing Regulations.

Like other States, Texas has set health and safety

standards for abortions. In 2003, the Texas Legisla-

ture enacted a requirement that abortions after 15

weeks’ gestation generally must be performed in an

ambulatory surgical center or hospital. See Tex.

Health & Safety Code § 171.004. Abortion providers

responded by opening four new ASCs, despite the fact

that there were only 3,642 abortions performed in

Texas after 15 weeks’ gestation in 2003. R.3963.’

In 2013, the Texas Legislature enacted House Bill 2

(“HB2”). Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1,

2013 Tex. Gen. Laws 5013. Petitioners challenge two

provisions of HB2—its admitting-privileges and ambu-

latory-surgical-center requirements. Both were en-

acted to raise standards of care and ensure the health

and safety of all abortion patients.

* The Fifth Circuit electronic record on appeal is cited as R.p.

4

HB2’s provisions do not apply to abortions neces-

sary to prevent the death or permanent physical im-

pairment of a woman. Pet. App. 182a; Tex. Health &

Safety Code § 245.016; see also 25 Tex. Admin. Code

§ 139.1(b)(1)(B)Giii) (exempting offices of licensed phy-

sicians from licensure requirement if they perform 50

or fewer abortions in a 12-month period). Women who

must travel more than 100 miles to an abortion facility

are also exempted from the preexisting 24-hour wait-

ing period after informed consent, as only a 2-hour

waiting period would apply. Tex. Health & Safety

Code § 171.012(a)(4). Further, Texas law prohibits

hospitals and health care facilities from discriminating

against physicians who perform abortions. Tex. Occ.

Code § 103.002(b); see also 42 U.S.C. § 300a-7(c)(1).

Among other things, HB2 included (1) an admit-

ting-privileges requirement: that abortion practition-

ers must hold admitting privileges at a hospital within

30 miles of where an abortion is performed; and (2) an

ambulatory-surgical-center requirement: that licensed

abortion facilities operating after September 1, 2014

must meet ambulatory-surgical-center standards. See

Tex. Health & Safety Code §§ 171.0031(a), 245.010(a);

Pet. App. 43a-44a. The rules for licensing general

ASCs long pre-date HB2, and they include “Operating

Requirements,” “Fire Prevention and Safety Re-

quirements,” and “Physical Plant and Construction

Requirements.” See 25 Tex. Admin. Code §§ 135.1-

135.56; see also Simopoulos, 462 U.S. at 515-16 (de-

scribing three groups of ASC standards).

HB2 left in place existing laws allowing abortions

to be performed at general ASCs and hospitals, both of

which are licensed by the State. Tex. Health & Safety

Code § 245.004; 25 Tex. Admin. Code § 139.1(b); see

also Tex. Health & Safety Code chs. 241, 243. Even

5

beyond the abortion context, ASCs perform only out-

patient procedures. They therefore provide suitable

care for certain surgical procedures without the full

cost of hospitals, which are equipped to perform inpa-

tient procedures too. See Simopoulos, 462 U.S. at 519.

Multiple abortion providers already operated ASCs

in Texas when HB2 was enacted, Pet. App. 28a, and

the rules implementing HB2 incorporated by reference

the longstanding ASC standards. See 25 Tex. Admin.

Code § 139.40. Petitioners complain that the Depart-

ment of State Health Services did not repeal abortion-

facility rules that were “more stringent” than the cor-

responding ASC rules. Pet. 6. But regardless of those

rules, a facility need not be licensed specifically as an

abortion facility to perform abortions; abortions can be

performed at facilities meeting the preexisting general

ASC standards, even if they are not licensed as abor-

tion facilities. See Tex. Health & Safety Code

§ 245.004; 25 Tex. Admin. Code § 139.1(b). In any

event, because some petitioners are currently licensed

abortion facilities, they are, presumably, already satis-

fying the allegedly “more stringent” standards.

Petitioners also criticize the Department for failing

to incorporate the “grandfathering” provision from the

general ASC rules. Pet. 6. But this grandfathering

provision was not a blanket exemption from ASC

standards; it was specific to the 2009 amendments to

the general ASC rules, which exempted preexisting

licensed ASCs from minor updates to the require-

6

ments. 25 Tex. Admin. Code § 135.51(a), (c).*® Petition-

ers do not assert that they meet pre-2009 ASC stand-

ards. Instead, they seek an exemption from meeting

ASC requirements in their entirety.

Since HB2’s enactment, four ASCs have either

been opened by abortion providers or begun providing

abortions, joining the six ASC abortion facilities al-

ready oper«ting. R.2290; Appellants’ Ltr., Cole, No.

14-50928 (5th Cir. June 15, 2015).

IL Petitioners’ First Lawsuit.

In September 2013, petitioners in this case, along

with other parties, filed a lawsuit challenging HB2’s

admitting-privileges requirement (and a separate HB2

provision regulating abortion-inducing drugs).

Planned Parenthood of Greater Tex. Surgical Health

Servs. v. Abbott, 734 F.3d 406, 409 (5th Cir. 2013) (Ab-

bott J). Petitioners sought facial invalidation of the

admitting-privileges requirement, arguing that it

would cause the closure of facilities thus imposing an

undue burden by causing increased travel for women

seeking abortions. Jd. at 414-16.

The parties voluntarily waived a jury trial, and the

bench trial was consolidated with the preliminary-

injunction hearing. See Planned Parenthood of Great-

er Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583,

587-88 (5th Cir. 2014) (Abbott IJ). The district court

* For example, the 2009 changes to the ASC construction re-

quirements decreased the spatial requirements for some rooms

by 20 square feet, but increased others by 20 square feet. 34 Tex.

Reg. 3948, 3949 (2009).

7

facially invalidated the admitting-privileges require-

ment, but the Fifth Circuit stayed that decision pend-

ing appeal. See Abbott J, 734 F.3d at 419. This Court

denied petitioners’ motion to vacate the stay. Planned

Parenthood of Greater Tex. Surgical Health Servs. v.

Abbott, 134 S. Ct. 506 (2013).

On the merits, the Fifth Circuit reversed the dis-

trict court and rejected the challenge to HB2’s admit-

ting-privileges requirement. Abbott JJ, 748 F.3d at

599-600. Petitioners did not seek review in this Court.

IIL Petitioners’ Second Lawsuit.

Six days after the Fifth Circuit upheld HB2’s ad-

mitting-privileges requirement in Abbott I], petition-

ers filed this second lawsuit against HB2. This time,

petitioners sought to enjoin the admitting-privileges

requirement only as applied to practitioners at Whole

Woman’s Health in McAllen and Reproductive Ser-

vices in E] Paso. Pet. App. 27a. Petitioners also chal-

lenged the ASC requirement by raising the same trav-

el-distance theory from their first lawsuit. Jd. They

sought facial invalidation of the ASC requirement and

alternatively as-applied relief limited to those McAllen

and E] Paso facilities. /d.

A. The State moved to dismiss petitioners’ claims

as barred by res judicata and as legally unsustainable.

See R.969-81. The district court rejected the State’s

res judicata defense, but dismissed petitioners’ equal-

protection, unlawful-delegation, and “arbitrary and

unreasonable state action” claims. The district court

also recognized the HB2 provisions’ rational relation to

patient health and safety. Pet. App. 176a.

8

B. The district court held a four-day bench trial.

The parties stipulated that there were 433 ASCs in

Texas, Pet. App. 29a n.15, and at least seven ASCs

would offer abortions in Texas after September 1, 2014

(when the ASC requirement would take effect under

HB2). See Pet. App. 28a; R.2289-90. Those ASCs are in

Austin, Dallas (two), Fort Worth, Houston (two), and

San Antonio. See R.2289-90. Moreover, as predicted at

trial, Planned Parenthood has since opened an ASC in

San Antonio, and Dr. Eduardo Aquino, who used to

operate an abortion facility in Corpus Christi, has

opened an ASC in San Antonio. See supra p. 2 n.1;

R.2290, 3005-06. An existing ASC in San Antonio has

also informed the State that it now provides abortion

services, see supra p. 2 n.1, bringing the current total

of ASCs performing abortions in Texas to ten.

Petitioners argued at trial that the ASC and admit-

ting-privileges requirements did not “further a com-

pelling state interest” because the requirements were

a “departure from accepted medical practice.” R.2615-

16. Yet one of their experts admitted that whether

abortions should be required to be performed in ASCs

was a subject of disagreement among physicians.

R.2941-42. And the president of petitioner Whole

Woman’s Health acknowledged that its ASC offers

“more robust pain management options” for abortions

than those performed at non-ASC facilities. See

R.3068:18-3069:2.

The State also presented medical experts who testi-

fied that the ASC and admitting-privileges require-

ments are reasonable and effective measures to raise

the standard of care for abortion patients and ensure

their health and safety:

9

e R.3859-63 (surgical abortion should be per-

formed in a sterile environment because it in-

volves entry into the sterile uterus);

e R.3862-63 (procedures requiring entry into the

uterus, such as dilation and curettage, are tradi-

tionally performed in ASC or hospital settings);

e R.3865 (ASCs provide accountability and moni-

toring mechanisms that ensure patient safety);

e R.3877 (admitting-privileges and ASC require-

ments are “reasonable and medically necessary”

to “improve the quality of abortion care” and to

“improve the postoperative management of se-

rious post-abortion complications”);

e see Pet. App. 32a & n.19 (admitting-privileges

requirement “assures peer-review” and “pro-

tect(s] patients”).

The State also introduced evidence demonstrating that

abortion complications are underreported. R.3857,

3883-84; Def. Exs. 36, 39.

Petitioners’ undue-burden argument alleged in-

creased travel distances to obtain an abortion, on the

inaccurate premise that Texas would have only seven

ASC abortion facilities. R.2156-57, 2162, 2354-55, 2619.

Petitioners did not and could not prove that the ASC

requirement would subject a “large fraction” of the

State’s abortion patients to unduly burdensome driv-

ing distances. See Gonzales, 550 U.S. at 167-68. It was

undisputed that the vast majority of the State’s popu-

lation lives within 150 miles of the ASC abortion facili-

ties in Austin, Dallas, Fort Worth, Houston, and San

Antonio. The State’s expert, Todd Giberson, testified

that at least 83% of Texas women of reproductive age

live within 150 miles of those ASC abortion facilities.

See R.3923-24; see also Abbott I], 748 F.3d at 588-89,

598 (holding, in light of this Court’s guidance in Casey,

10

that driving distances of 150 miles or less are not an

“undue burden”). Of the remaining 17%, 6.2% live

within 150 miles of the McAllen facility (that ultimate-

ly received as-applied relief from the Fifth Circuit);

3.3% live within 150 miles of the Santa Teresa, New

Mexico facility just outside E] Paso; and 7.2% already

did not live within 150 miles of an abortion facility at

the time of trial—when the ASC requirement was not

in effect. R.3928.

Petitioners made the same travel-distance argu-

ment in their as-applied challenge to the ASC and ad-

mitting-privileges requirements. As to McAllen, they

argued that the requirements would force the facility

to close and that the roughly 235-mile distance to San

Antonio from the Rio Grande Valley of South Texas

would prevent women from obtaining abortions.

R.2619.

As for El] Paso, petitioners argued that the only

Texas abortion facility in that area would close and

that patients would be forced to travel over 500 miles

to the nearest Texas abortion facility if the ASC and

admitting-privileges requirements took effect. R.2619.

But a facility will remain operational in Santa Teresa,

New Mexico, which is only twelve miles from the E]

Paso facility and only one mile from the Texas border

where E] Paso is located. See Pet. App. 72a-75a.

Although petitioners currently argue that the re-

maining facilities will lack the capacity to meet the

demand for abortion in Texas, Pet. 34-35, petitioners

did not press that theory at trial. Petitioners intro-

duced no evidence of facility capacity, sought no dis-

covery from any ASC facilities to determine their ca-

pacity, failed to account for the opening of new ASCs,

and did not request a finding or conclusion on capacity.

R.2137-66. Their sole piece of evidence is a statement

11

from their expert Dr. Daniel Grossman, based on his

supposition rather than evidence, that in his “opinion”

the existing ASCs would not be able to meet the in-

creased demand. R.2352-53. Hence, petitioners’ new

capacity theory rests on an ipse dizit statement with

no supporting data. See Pet. App. 56a-57a & n.34 (con-

clusion of Fifth Circuit that Grossman’s opinion was

based on “a chain of unsupported inferences” and “the

record lacks any actual evidence regarding the current

or future capacity” of remaining ASC abortion facili-

ties); Pet. App. 67a n.42 (same); Pet. App. 105a-106a

(“Grossman’s testimony is ipse dixit and the record

lacks any actual evidence regarding the current or fu-

ture capacity of the eight clinics.”).

C. On August 29, 2014, the district court issued an

opinion and final judgment. The court concluded that

the reduction in abortion facilities to “at most, eight,”

and the “lessened geographic distribution of abortion

services” would mean that a “significant number” of

women in Texas “will need to travel considerably fur-

ther” to obtain an abortion. Pet. App. 138a-39a. The

court then held that the admitting-privileges and ASC

requirements did not provide sufficient medical bene-

fits to outweigh the alleged burdens they imposed. Pet.

App. 145a. The court also concluded that HB2 was en-

acted with an unconstitutional purpose, although it cit-

ed no evidence of the Legislature’s motives. Pet. App.

148a-49a.

Regarding the admitting-privileges requirement,

the district court found as-applied violations with re-

spect to the McAllen and El Paso facilities. Pet. App.

147a, 158a. But the court also held that the admitting-

privileges and ASC requirements worked together

statewide to create an undue burden and declared both

provisions facially unconstitutional. Pet. App. 154a.

12

The district court’s judgment broadly enjoined the

ASC requirement, but created an exception for “cur-

rently licensed ambulatory-surgical-center abortion

providers” and “new abortion providers that begin of-

fering abortion services after September 1, 2014.” Pet.

App. 152a. The district court invalidated the ASC re-

quirement as applied to the provision of medication

abortions statewide. Pet. App. 157a-58a. The court

then enjoined application of the admitting-privileges

requirement to the facilities and physicians in McAllen

and E] Paso. Pet. App. 158a.

Finally, and contrary to the specific relief just de-

scribed, the court enjoined application of the admit-

ting-privileges and ASC requirements as applied to all

women seeking previability abortions in the State. Pet.

App. 158a.

D. The State appealed and moved for a stay, which

the Fifth Circuit granted in large part. Pet. App. 118a-

19a. This Court vacated the stay in part, leaving in

place the stay of the facial, statewide injunction

against the admitting-privileges requirement. Whole

Woman’s Health v. Lakey, 135 S. Ct. 399 (2014).

E. On the merits, the Fifth Circuit largely ruled

for the State, although it granted as-applied relief for

the McAllen facility and physician. Pet. App. 3a-4a.

1. The court of appeals first rejected the district

court’s sua sponte facial invalidation of the admitting-

privileges requirement. Pet. App. 35a-36a. It held that

the district court hac no authority to defy the ruling in

petitioners’ first lawsuit (Abbott JJ) or grant more re-

lief than petitioners requested, especially given that

res judicata barred that relief. Jd.

2. The Fifth Circuit then rejected petitioners’ faci-

al challenge to the ASC requirement. Pet. App. 36a-

42a. It first held that this claim was barred by res ju-

13

dicata. The court alternatively rejected the claim on

the merits, holding that petitioners failed to prove that

the ASC requirement lacked a rational basis or had the

purpose or effect of creating a substantial obstacle for

a large fraction of women in Texas to obtain abortions.

Pet. App. 42a-58a. The Fifth Circuit also noted that

this Court, in Simopoulos, upheld a similar ASC re-

quirement for second-trimester abortions in Virginia

even under this Court’s pre-Casey strict-scrutiny

framework. Jd. at 1lla-12a, 43a n.25 (discussing Si-

mopoulos, 462 U.S. at 519).

The court likewise rejected petitioners’ challenge

to the ASC requirement as applied to medication abor-

tions. Pet. App. 58a-59a. That relief, the court held,

was undefended by petitioners, barred by res judicata,

and erroneous on the merits. /d.

3. Turning to petitioners’ as-applied challenges,

the Fifth Circuit held that res judicata did not bar

those claims, although it found this a “close question.”

Pet. App. 60a-63a.

Addressing McAllen, the court held that the effect

of the ASC and admitting-privileges requirements cre-

ated a substantial obstacle for women seeking an abor-

tion in four counties in South Texas. Pet. App. 67a. The

court based its ruling on the increased travel distance

to San Antonio “combined with” testimony regarding

the burdens uniquely faced by women in that particu-

lar area. Pet. App. 67a (emphasis in original); see Pet.

App. 65a n.39, 142a.

However, the Fifth Circuit concluded that the dis-

trict court’s injunction was too broad in light of HB2’s

severability clause. Pet. App. 67a-68a. The court there-

fore narrowed the injunction to cover just the single

Whole Woman’s Health facility in McAllen and only

the ASC physical-plant and fire-prevention provisions.

14

Pet. App. 70a-71la. Also, the Fifth Circuit held that this

injunction would dissolve if an ASC began performing

abortions in the area. Pet. App. 71a. The Court then

enjoined the admitting-privileges requirement only for

the named plaintiff-physician in McAllen until he or

another physician there is able to secure sufficient

admitting privileges. Pet. App. 71a. The relief also ap-

plied only to women in this four-county region of Tex-

as. Pet. App. 71a.

4. Addressing E] Paso, the Fifth Circuit rejected

petitioners’ as-applied challenge. Pet. App. 72a-76a. It

held that women in the E] Paso area would not face a

substantial obstacle in obtaining an abortion even as-

suming no new ASC-compliant facilities began operat-

ing in the area, because an abortion facility remained

operational just across the state line in Santa Teresa,

New Mexico—less than twelve miles from the E] Paso

facility. Pet. App. 72a, 74a.

F Petitioners asked the Fifth Circuit to stay its

mandate. The court denied the request but modified its

judgment so that none of the ASC regulations would

go into effect in McAllen until October 29, 2015. Pet.

App. 77a-78a. This Court then stayed the mandate.

Whole Woman’s Health v. Cole, 135 S. Ct. 2923 (2015).

15

REASONS FOR DENYING THE PETITION

L Review Of The Constitutional Questions Is Un-

warranted.

Certiorari review is unwarranted on the constitu-

tional questions because the Fifth Circuit’s rejection of

most of petitioners’ claims was a faithful application of

Casey and there is no entrenched split of authority on

the application of Casey’s undue-burden test.

A. The Fifth Circuit correctly applied Casey in

rejecting most of petitioners’ claims.

Under this Court’s doctrine, a State may regulate

abortion as long as it “has a rational basis to act, and it

does not impose an undue burden.” Gonzales, 550 U.S.

at 158. The rational-basis test is well known in the

Court’s jurisprudence. See, e.g., Heller v. Doe, 509 U.S.

312, 319-20 (1993). And the undue-burden test asks

simply whether the regulation has the “purpose or ef-

fect of placing a substantial obstacle in the path of a

woman” seeking a previability abortion. Casey, 505

U.S. at 877 (plurality op.). At no point is the Court

called upon to choose between competing medical opin-

ions, nor is it required to constantly reevaluate the

constitutionality of abortion regulations based on

evolving medical standards. See Gonzales, 550 U.S. at

163-64. Rather, as in other contexts, the States are

given “wide discretion” to pass medical regulations,

and the existence of medical debate is sufficient to up-

hold the law. Jd.

The Fifth Circuit’s opinion faithfully applied Casey

and Gonzales to correctly conclude that the challenged

provisions of HB2 do not faciaily impose an undue

burden. Petitioners ask this Court to depart from a

quarter-century of this Court’s abortion jurisprudence

16

by judging for itself the medical effectiveness of HB2’s

requirements and balancing it against the burdens

purportedly caused by HB2. Pet. 15-25. In short, peti-

tioners would have this Court serve as “the country’s

ex officio medical board with powers to approve or dis-

approve medical and operative practices and standards

throughout the United States”—a role this Court has

specifically declined to assume. Gonzales, 550 U.S. at

162-64 (interna] quotation marks and citation omitted).

1. Casey, Mazurek, and Gonzales did not

scrutinize whether an abortion regulation

is sufficiently beneficial or medically nec-

essary.

When the Court first held that the Constitution in-

cludes the right to obtain a previability abortion, it also

recognized that States could regulate doctors and

medical facilities to “insure maximum safety for the

patient.” Roe v. Wade, 410 U.S. 113, 150 (1973). Roe

however, adopted a rigid trimester framework that

prohibited almost all abortion regulations before the

second trimester, concluding that maternal health was

not “compelling” until that point. /d. at 163. This

framework used strict scrutiny to evaluate various

abortion regulations. Jd. at 165-66; see Casey, 505 U.S.

at 871.

In Casey, the Court rejected Roe’s strict-scrutiny

test. 505 U.S. at 872-73. In its place, Casey adopted the

undue-burden test, which renders a law invalid 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.” Jd. at 878. In so holding, the

Court recognized that “the State has legitimate inter-

ests from the outset of the pregnancy in protecting the

health of the woman.” Jd. at 846.

17

Since Casey, the Court has upheld abortion regula-

tions while refusing to balance the medical justifica-

tions against putative burdens. Casey itself upheld a

challenge to the requirement that a physician provide

the patient with informed consent information, “even if

an objective assessment might suggest that those

same tasks could be performed by others.” Jd. at 885.

At no point did the Court ask whether this regulation

was sufficiently beneficial or medically necessary.

Mazurek confirmed that analyzing medical necessi-

ty and benefits was not part of the constitutional anal-

ysis. There, the Court upheld a requirement that abor-

tions be performed by physicians, even though “the

only extant study comparing the complication rates for

first-trimester abortions performed by [physician-

assistants} with those for first-trimester abortions per-

formed by physicians found no significant difference.”

520 U.S. at 973 (internal quotation marks and citation

omitted). The Court held that the plaintiffs’ argument,

that “‘all health evidence contradicts the claim that

there is any health basis’ for the law,” was “squarely

foreclosed by Casey itself.” Jd.

And Gonzales upheld a ban on partial-birth abor-

tion without conducting a balancing analysis, requiring

only that the State have “a rational basis to act” and

that it not “impose an undue burden.” 550 U.S. at 158.

In so holding, the Court noted that the Judiciary

should not “serve as the country’s ex officio medical

board.” Jd. at 163-64 (internal citation and quotation

marks omitted). The very existence of “medical uncer-

tainty over whether the [partial-birth abortion ban]

creates significant health risks” provided “a sufficient

basis to conclude in this facial attack that the Act does

not impose an undue burden.” /d. at 164; see id. (“Med-

ical uncertainty does not foreclose the exercise of leg-

18

islative power in the abortion context any more than it

does in other contexts.”).

2. Petitioners seek to revive the strict scru-

tiny analysis rejected in Casey.

a. Petitioners press for a constitutional test in

which courts independently determine whether a

State’s medical regulations addressing abortion serve

the State’s asserted interest at some undefined level of

effectiveness, and then balance that against the per-

ceived weight of the burden. Pet. 15-25. This would re-

turn the Court to its repudiated, pre-Casey jurispru-

dence. Even then, Simopoulos upheld an ASC re-

quirement for second-trimester abortions under the

pre-Casey strict-scrutiny framework. 462 U.S. at 519.

And in Simopoulos, Justice O’Connor would have ap-

plied the undue-burden test to uphold that ASC re-

quirement regardless of the trimester of the pregnan-

ey. Id. at 520 (O’Connor, J., concurring in part and in

the judgment).

Petitioners base their argument on isolated state-

ments in City of Akron v. Akron Center for Reproduc-

tive Health, 462 U.S. 416 (1983) (Akron J), Casey, and

Gonzales, none of which support their claims. Pet. 16-

17, 20-22. To begin with, the statement in Akron / that

“(t]he existence of a compelling state interest in

health is only the beginning of the inquiry” and

that “[t]he State’s regulation may be upheld only if it is

reasonably designed to further that state interest,”

Akron I, 462 U.S. at 434 (cited at Pet. 20-21), is a ref-

erence to Roe’s strict-scrutiny framework. And Casey

rejected strict scrutiny and replaced it with the undue-

burden test. 505 U.S. at 873; see Akron I, 462 U.S. at

461 (O’Connor, J., dissenting) (arguing, in favor of a

hospitalization requirement, that “not every regulation

19

that the State imposes must be measured against the

State’s compelling interests and examined with strict

scrutiny”).

Petitioners also note Casey’s statement that

“[uJnnecessary health regulations that have the pur-

pose or effect of presenting a substantial obstacle” are

unconstitutional. Pet. 17. The Court has never used the

phrase “unnecessary health regulations” in any other

abortion case and there is no reason to believe that it

adds an additional layer of scrutiny beyond the estab-

lished undue-burden test articulated in multiple other

passages in Casey, as well as Gonzales, 550 U.S. at

158, and Mazurek, 520 U.S. at 971. If anything, that

phrasing of the test cuts against petitioners, as it

would invalidate only those laws that are an undue

burden and also unnecessary.

Petitioners point to this Court’s decision upholding

the recordkeeping and reporting requirements in Ca-

sey and assert that the Court determined the require-

ments were “reasonably directed to the preservation of

maternal health.” Pet. 17. That is simply an application

of the rational-basis prong, which is separate from the

undue-burden test. Gonzales, 550 U.S. at 158. It is not

a weighing of benefits and burdens or an independent

determination of medical necessity.

Finally, petitioners assert that Gonzales “con-

firmed the need for courts to ensure that abortion re-

strictions actively and effectively serve a valid state

interest.” Pet. 21. But Gonzales upheld a ban on par-

tial-birth abortion where the medical evidence was in

dispute. The Court determined that the partial-birth

abortion ban had a constitutional purpose based on a

“reasonable inference” that it would advance the

State’s interest in respect for life. Gonzales, 550 U.S.

at 160. Contrary to petitioners’ position, the Court

20

went on to hold that the existence of a mere medical

dispute regarding whether banning partial-birth abor-

tions created “significant health risks” was a sufficient

basis to conclude that it did not impose an undue bur-

den. Jd. at 164.‘

b. Petitioners’ arguments regarding an impermis-

sible purpose are also unsupported. Petitioners reraise

their medical arguments. Pet. 22. Gonzales, however,

did not conduct a medical analysis when considering a

challenge to the purpose of the partial-birth abortion

ban. Instead, the Court based its purpose ruling on

“self-evident” conclusions and “reasonable infer-

ence[s]” demonstrating that banning partial-birth

abortion promotes respect for life. 550 U.S. at 157-60.

Moreover, Mazurek found no unconstitutional purpose

in a law requiring abortions to be performed by physi-

cians, despite the plaintiffs’ claim that “all health evi-

dence” and the “only extant study” showed no medical

benefits for the law. 520 U.S. at 973.

This is in keeping with the Court’s holdings that it

will not infer an impermissible purpose where a legis-

lature has “legitimate reasons” for acting. McCleskey

v. Kemp, 481 U.S. 279, 298-99 (1987); see Smith v. Doe,

538 U.S. 84, 92 (2008) (“only the clearest proof’ will

suffice to override” the “legislature’s stated intent”

(internal citation omitted)).

‘ Petitioners suggest a different test applies to laws that

promote maternal health as opposed to those that promote re-

spect for life. Pet. 17. Gonzales’s use of the Casey undue-burden

test demonstrates that the analysis is the same, regardless of the

underlying law.

21

The Texas Legislature here sought to “increase the

health and safety” of abortion patients and provide

them with “the highest standard of health care.” See

Senate Comm. on Health & Human Servs., Bill Analy-

sis, Tex. H.B. 2, 83d Leg., 2d C.S. (2013). Indeed, this

Court in Simopoulos upheld an ASC requirement on

the basis that it protects health and safety. 462 U.S. at

519. And the Court has recognized that abortion can be

regulated differently than other medical procedures.

See, e.g., Harris v. McRae, 448 U.S. 297, 325 (1980).

Petitioners also urge the Court to conclude that the

alleged effect of HB2 (the closure of some abortion fa-

cilities) demonstrates an unconstitutional purpose. Pet.

22-23. But effects alone cannot prove unconstitutional

motive. See, e.g., Mazurek, 520 U.S. at 972.° Even a

legislator’s awareness of possible consequences is in-

sufficient to demonstrate an unconstitutional intent.

See, e.g., Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,

278-79 (1979).

° Petitioners assert that Mazurek conflated the purpose and

effects inquiries. Pet. 23 n.7. But Mazurek did not suggest that

evidence of effects sufficed to demonstrate an unconstitutional

purpose. 520 U.S. at 973-74. Rather, Mazurek looked elsewhere

for legislative purpose, stating that “[o]ne searches the Court of

Appeals’ opinion in vain for any mention of any evidence suggest-

ing an unlawful motive on the part of the Montana Legislature.”

Id. at 972.

22

3. The Fifth Circuit correctly rejected most

of petitioners’ claims.

a. Admitting-privileges requirement. Petitioners

did not bring a facial challenge to the admitting-

privileges requirement in this lawsuit. Pet. App. 35a.

Even if they had, it is barred by res judicata, as peti-

tioners raised a facial challenge to the admitting-

privileges requirement in their first HB2 lawsuit. See

infra pp. 30-32.

Regardless, the admitting-privileges requirement

is facially valid on the merits. It bears a rational rela-

tionship to the State’s interest in patient health: it en-

sures doctors are qualified, promotes continuity of

care in the case of complications that require hospitali-

zation, and reduces communication errors and time de-

lays when a patient must be treated at a hospital.

R.3879-80; see Abbott IJ, 748 F.3d at 592, 599-600; see

also id. at 595 (stating that “at least 210 women in

Texas annually must be hospitalized after seeking an

abortion” and that the National Abortion Federation

had recommended that women choose a doctor who

can admit them to a nearby hospital).

Nor does the admitting-privileges requirement im-

pose an undue burden. As noted above, the vast major-

ity of Texas women of childbearing age live within 150

miles of a facility that will remain operational if HB2

takes effect. See supra pp. 9-10. Petitioners did not in-

troduce evidence of how many facilities permanently

closed as a result of the admitting-privileges require-

ment, and petitioners have not identified a large frac-

tion of Texas women who have been unable to receive

an abortion because of the admitting-privileges re-

quirement, which has been in effect since October 31,

2013. And petitioners put forth no evidence that the

23

remaining facilities lacked capacity to meet abortion

demand, that more doctors could not perform abor-

tions at remaining facilities, or that any of the other

423 ASCs would not start performing abortions.

With respect to the McAllen facility, the Fifth Cir-

cuit granted relief to the plaintiff-physician who sued

for as-applied relief, limited to the women that he ar-

gued were unduly burdened—those in the Rio Grande

Valley of South Texas. Pet. App. 71a. Petitioners can-

not point to any evidence that this relief, when com-

bined with as-applied relief from certain ASC re-

quirements, is insufficient to alleviate any alleged un-

due burden in McAllen.*

Regarding the E) Paso facility, petitioners present-

ed no evidence that any woman would face an undue

burden as a result of the admitting-privileges re-

quirement. Another physician who performs abortions

in E] Paso has admitting privileges at a local hospital.

Theard Dep. Excerpts 70:2-71:11. Moreover, given the

proximity of an abortion facility in New Mexico, see

supra p. 10, women in E] Paso will still be able to ob-

tain abortions with the admitting-privileges require-

ment in effect. See Pet. App. 75a-76a.

* Texas has not petitioned for certiorari regarding the as-

applied relief to the McAllen facility and physician because that

relief turned on the admission of hearsay evidence regarding the

particular burden in that area. Pet. App. 64a-67a. This fact-bound

relief was based on specific evidence unique to McAllen and not

present in any other area.

24

b. Ambulatory-surgical-center requirement.

Even beyond the res judicata bar to petitioners’ facial

challenge to the ASC requirement, see infra pp. 30-33,

the Fifth Circuit was correct that facial invalidation

was improper on the merits. The ASC requirement

improves the standard of care by providing heightened

accountability and monitoring mechanisms for practi-

tioners, R.3865; ensuring that patients will not be rele-

gated to substandard clinics; ensuring enhanced pain-

management options for patients, R.3068-69; and

providing a sterile operating environment for surgical

abortions, R.3859-63.

Even the district court agreed that the ASC re-

quirement had a rational basis and could be applied to

facilities opening after September 2014. Pet. App.

157a. Moreover, this Court in Simopoulos approved a

surgical-center requirement for second-trimester

abortions, under Roe’s trimester framework. 462 U.S.

at 519. HB2 and the ASC regulations also have severa-

bility provisions, Pet. App. 199a-201a; 25 Tex. Admin.

Code § 139.9(b), which preclude facial invalidation. See

Leavitt v. Jane L., 518 U.S. 137, 138-39 (1996) (per cu-

riam).

Petitioners’ theory rests on alleged (1) lack of ca-

pacity due to facility closures and (2) travel distances.

Petitioners’ evidence is woefully inadequate to prove

that the remaining facilities will lack capacity to meet

abortion demand. Since trial began, at least three new

abortion-performing ASCs have opened, and another

ASC has begun performing abortions. See supra p. 8.

The district court reflexively rejected the State’s posi-

tion—that the remaining facilities would be able to

meét the demand for abortion—as “stretch[ing] credu-

lity.” Pet. App. 141a. But the district court made no

findings of fact about existing or new capacity, and pe-

25

titioners steadfastly avoided presenting any capacity

data. The Fifth Circuit correctly held that petitioners’

capacity argument was the “ipse dixit” of their expert,

based on a “chain of unsupported inferences,” and had

similar problems to petitioners’ admittedly inaccurate

capacity predictions in their first HB2 lawsuit. Pet.

App. 56a-57a.

The other undue-burden argument centers on trav-

e] distances. But with the granting of as-applied relief

in McAllen and the recognition that it is not an undue

burden to simply cross state lines around E] Paso to

receive an abortion, every metropolitan area with an

abortion facility will still have an abortion facility once

the ASC requirement goes into effect under the Fifth

Circuit’s decision. See supra pp. 1-2, 8. And the vast

majority of Texas women of childbearing age live with-

in 150 miles of a facility that will remain operational if

HB2 takes effect. See supra pp. 9-10. Under Casey,

traveling 150 miles is not an undue burden. 505 U.S. at

885-87 (upholding 24-hour waiting period despite dis-

trict court findings regarding travel); Planned

Parenthood of Se. Pa. v. Casey, 744 F Supp. 1323,

1352 (E.D. Pa. 1990) (finding that 42% of women would

have to travel at least one to three hours to reach the

nearest provider).

Petitioners’ repeated claim that HB2 has forced

75% of Texas abortion facilities to close lacks support.

Pet. 1-2, 33-34. Petitioners’ own evidence shows that at

least eight of the forty-one facilities closed before ei-

ther the admitting-privileges or ASC requirements

were in effect. R.2346. And petitioners’ expert, Gross-

man, explicitly stated that he was not offering an opin-

ion on the cause for the decline of abortion facilities in

Texas. R.2347-48. To suggest that HB2 is responsible

for all of the closures is pure speculation.

26

Additionally, petitioners show no error in the Fifth

Circuit’s disposition of their as-applied challenges to

the ASC requirement. Applying HB2’s severability

provisions, the Fifth Circuit granted as-applied relief

to the McAllen facility from the portions of the ASC

regulations about which petitioners complained, name-

ly the physical-plant and fire-prevention requirements.

Pet. App. 68a-7la. Petitioners failed to present evi-

dence that any other ASC regulation will cause an un-

due burden on women seeking abortion services in the

Rio Grande Valley. Pet. App. 68a (Fifth Circuit’s ex-

planation that petitioners did not identify which ASC

regulations would require them to close).

With respect to the E) Paso facility, the Fifth Cir-

cuit recognized that women in E] Paso were already

routinely crossing state lines to receive abortion ser-

vices in New Mexico, despite the presence of abortion

facilities in El] Paso. Pet. App. 75a-76a.’ Crossing a

short distance across state lines is not an undue bur-

den. And States are not required to affirmatively sub-

sidize abortions. See Harris, 448 U.S. at 316-17. Peti-

tioners have identified no women who will be unable to

receive abortion services as a result of applying the

ASC requirement in E] Paso.

Finally, petitioners fail to even defend the district

court’s judgment enjoining the ASC requirement as

’ The Fifth Circuit relied on this fact and the fact that HB2

did not close all abortion facilities in the state to distinguish this

case from Jackson Women’s Health Org. v. Currier, 760 F.3d 448

(5th Cir. 2014), petition for cert. filed, S. Ct. No. 14-997 (Feb. 18,

2015). Pet. App. 72a-76a.

27

applied to medication abortions; petitioners have thus

forfeited this argument. See Pet. App. 59a (Fifth Cir-

cuit so noting). The complication logs from petitioner

Whole Woman’s Health reflect dozens of patients who

required surgical follow-up after an incomplete medi-

cation abortion. Def. Ex. 39. It is entirely rational for

the State to require that facilities offering medication

abortions be able to provide surgical follow-up with the

same standards as facilities that offer surgical abor-

tions. See Pet. App. 59a.

B. There is no entrenched split of authority on

the governing legal standard.

Petitioners assert a division of authority on the

question whether Casey’s undue-burden test requires

courts to second-guess the strength of a law’s medical

justifications. Pet. 15-20. That split, however, is not

entrenched. Nor have petitioners identified a circuit

split on the validity of ASC or admitting-privileges re-

quirements, despite the fact that other States have

similar requirements. Following the Kermit Gosnell

scandal, for example, Pennsylvania enacted an ASC

requirement nearly identical to HB2’s. 35 Pa. Stat.

§ 448.806(h)(1).

1. The Fifth Circuit’s interpretation of the undue-

burden standard is not only consistent with Casey,

Mazurek, and Gonzales, see supra pp. 15-17, 21-27, it

is also the mainstream view among the circuits, includ-

ing the Fourth, Sixth, and Eighth Circuits. See Pet.

App. 5la-52a n.33 (citing Greenville Women’s Clinic v.

Bryant, 222 F.3d 157, 170-72 (4th Cir. 2000); Women’s

Med. Prof Corp. v. Baird, 438 F.3d 595, 604-09 (6th

Cir. 2006); Women’s Health Ctr. of W. Cnty., Inc. »v.

Webster, 871 F.2d 1377, 1380-81 (8th Cir. 1989)); see

also Planned Parenthood Min., N. Dak., S. Dak. v.

28

Rounds, 686 F.3d 889, 904 (8th Cir. 2012) (en banc)

(“[Tyhe state legislature, rather than a federal court, is

in the best position to weigh the divergent results and

come to a conclusion about the best way to protect its

populace. So long as the means chosen by the state

does not impose an unconstitutional burden on women

seeking abortions or their physicians, we have no basis

to interfere.”).

2. Petitioners rely primarily on language from the

Seventh and Ninth Circuits. Pet. 17-19. But those opin-

ions—both interlocutory—reveal a conflict with their

own circuit precedent, not an entrenched split among

the circuits. That leaves only language in an outlier

Iowa Supreme Court opinion.

a. Planned Parenthood of Wisconsin, Inc. v. Van

Hollen, 738 F.3d 786 (7th Cir. 2013), cert. denied, 134

S. Ct. 2841 (2014), addressed a preliminary injunction

of a Wisconsin admitting-privileges requirement. The

law was set to go into effect days after enactment, de-

spite the State’s concessions that obtaining admitting

privileges takes months and that implementing the law

immediately would impede access to abortion. Jd. at

788, 793, 795. The Seventh Circuit evaluated the law

according to the preliminary-injunction standard,

which requires balancing the equities. See id. at 795. It

was also careful to point out that its decision was only

preliminary and was based on a “sparse evidentiary

record.” See id. at 788, 799.

A single sentence in the court’s opinion suggests

that “[t]he feebler the medical grounds, the likelier the

burden.” Jd. at 798. This observation was made with-

out citation to any authority, and it does not establish

that the Seventh Circuit engages in a searching in-

quiry that balances medical benefits of abortion regu-

lations with costs. To the contrary, the “benefits” and

29

“burdens” balanced by the court concerned the imme-

diate implementation of the law in the context of

weighing the equities of a preliminary injunction. See

id.

In fact, such a balancing test would conflict with

the Seventh Circuit’s own precedent. For example, in

Karlin v. Foust, 188 F.3d 446, 481 (7th Cir. 1999), the

court held that “a court’s proper focus [in the ‘undue

burden’ analysis} must be on the practical impact of

the challenged regulation and whether it will have the

likely effect of preventing a significant number of

women for whom the regulation is relevant from ob-

taining abortions.” This case is now pending on appeal,

providing that court with an opportunity to clarify its

views in a non-interlocutory posture. See No. 15-1736

(7th Cir., appeal filed Apr. 6, 2015).

b. Planned Parenthood Arizona, Inc. v. Humble,

753 F.3d 905 (9th Cir. 2014), cert. denied, 135 S. Ct.

870 (2014), was also an interlocutory decision regard-

ing a preliminary injunction, and that case concerned a

law regulating medication abortions rather than an

ASC or admitting-privileges requirement.

Insofar as the Ninth Circuit adopted a balancing

approach that requires courts to second-guess the ex-

tent of a law’s health benefits, the Ninth Circuit ap-

pears to have misread its own precedent. See id. at 912

(citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531,

539 (9th Cir. 2004)). The Ninth Circuit’s prior opinion

in Eden made no mention of a “balancing” analysis in

its discussion of the undue-burden test. See 379 F.3d at

539; id. at 541 (“Mazurek compels us to hold that

where a health regulation of abortion is not facially

pretextual or irrational with respect to the interest it

purports to assert, it is subject to the ‘substantial ob-

stacle’ test in Casey.”). And its subsequent decision,

30

McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir.

2015), said nothing about a balancing test and ex-

plained that a State may enact laws to “protect the

health and safety of a woman seeking an abortion” so

long as they do not “operate as a substantial obstacle

to a woman’s choice to undergo an abortion.” To the

extent that Humble deviates from Eden and McCor-

mack, the Ninth Circuit is best positioned to resolve

its own intra-circuit conflict.

c. The Iowa Supreme Court language that peti-

tioners cite in Planned Parenthood of the Heartland,

Inc. v. lowa Board of Medicine, 865 N.W.2d 252 (lowa

2015), conflicts with Casey, Mazurek, and Gonzales.

Heartland did not consider ASC or admitting-

privileges requirements, as it invalidated state regula-

tions that banned so-called telemedicine abortions, in

which the doctor is not present for medication abor-

tions. Jd. at 253-54. The Iowa court’s adoption of a test

that second-guesses medical judgments misreads Ca-

sey, but confined to Iowa, it does not establish an en-

trenched conflict warranting this Court’s review.

IL Review Of The Res Judicata Question Is Unwar-

ranted.

The Fifth Circuit’s threshold ruling rejecting facial

invalidation under res judicata is a correct, fact-bound

holding that does not warrant certiorari review. Peti-

tioners wish to proceed as if their first lawsuit against

HB2 never happened. But they litigated that case to a

final judgment, and arguments and evidence they

chose not to present there are barred. See Pet. App.

35a-42a (explaining overlap).

A. Petitioners “do not dispute that they are identi-

cal to or in privity with the plaintiffs in Abbott J and

II.” Pet. App. 109a n.20. They also do not dispute that

31

their initial lawsuit concluded with a final judgment on

the merits, rendered by a court of competent jurisdic-

tion. Hence, the only res judicata question is whether

the earlier lawsuit involved “the same claim or cause of

action.” See United States v. Tohono O’Odham Nation,

131 S. Ct. 1723, 1730 (2011); Restatement (Second) of

Judgments § 19 (1982).

Petitioners do not identify a circuit split on any is-

sue underlying the Fifth Circuit’s res judicata holding.

See Pet. 25-31. The Fifth Circuit proceeded under the

accepted test, Pet. App. 37a, asking whether the sec-

ond action asserts rights with respect to “all or any

part of the transaction, or series of connected transac-

tions, out of which the [first] action arose.” Restate-

ment (Second) of Judgments § 24 (1982); see Tohono

O’Odham Nation, 131 S. Ct. at 1730.

Petitioners instead allege a “direct conflict” with

Citizens United v. FEC, 558 U.S. 310 (2010). Pet. 27.

Yet that decision did not even involve res judicata or

successive lawsuits. Petitioners cite only Citizens

United’s explanation that the difference between facial

and as-applied invalidation of a law goes to the breadth

of the reasoning for finding invalidity and thus the

remedy employed by the court. Pet. 27. Nothing about

that point forecloses a res judicata bar to claims raised

in a successive lawsuit.

B. Petitioners also argue that they may obtain fa-

cial invalidation of the admitting-privileges and ASC

requirements, despite the first action, because their

legal theories rest on “newly-developed facts.” Pet. 27-

28. The Fifth Circuit correctly rejected that conten-

tion.

1. As to the admitting-privileges requirement, pe-

titioners did not even assert a fac‘al challenge in the

district court in this lawsuit. Pet. App. 35a-36a. And

32

they doubly forfeited any argument on this basis by

not raising it in the Fifth Circuit. Pet. App. 36a (noting

that petitioners “do not dispute” that res judicata bars

such facial invalidation); Appellees’ Principal & Resp.

Br. at 55, Whole Woman’s Health v. Cole, No. 14-50928

(5th Cir. Nov. 24, 2014) (arguing only that their facial

challenge in the first lawsuit did not preclude “subse-

quent, as-applied challenges after the statute takes

effect” (emphasis added)).

In any event, Petitioners wrongly suggest that “the

inability of physicians to obtain admitting privileges

despite diligent effort” was not originally known. Pet.

28. That was both foreseeable and foreseen to petition-

ers in the first action. See, e.g., Compl. 1% 13, 20, 21, 50,

Planned Parenthood of Greater Tex. Surgical Health

Servs. v. Abbott, No. 1:13-cv-862 (W.D. Tex. Sept. 27,

2013) (alleging statewide effects of the admitting-

privileges requirement).

2. As to the ASC requirement, petitioners note

that some non-ASC abortion facilities closed once the

admitting-privileges requirement took effect. Pet. 28-

30. Petitioners suggest they needed to await “imple-

menting regulations to give [the ASC requirement] ef-

fect,” and specifically that the regulations could have

“made abortion facilities eligible for waivers or grand-

fathering.” Pet. 30-31. But every non-ASC facility

knew at the time of the first lawsuit that continuing to

provide abortions would require compliance with ASC

standards once HB2 took effect. Pet. App. 38a (noting

that HB2 “very clearly required facilities that perform

abortions to meet the existing requirements for ASCs,

which were spelled out well before the effective date”;

deeming petitioners’ suggestion to the contrary “dis-

ingenuous”). Tellingly, petitioners “made no effort to

parse the regulations or otherwise assert anything ma-

33

terial” in them that was not known when HB2 was

passed. Pet. App. 41a.

Petitioners’ only other argument is that the Fifth

Circuit is now “compelling litigants who challenge one

provision of a statutory scheme to challenge all provi-

sions simultaneously.” Pet. 31. The Fifth Circuit made

no such holding. Its application of res judicata rests on

numerous fact-specific overlaps between petitioners’

two actions alleging an undue burden on the ability to

obtain abortions in Texas based on facility closures

and travel distances. See Pet. App. 37a. The State did

propose bifurcating the trial, see Pet. 30, but that is

routinely done in complex cases for efficiency in coor-

dinating evidence presentation. The Fifth Circuit cor-

rectly explained that the two actions involve the same

parties, abortion facilities, legal standards, legislation,

and legislative purpose, and that they “form a conven-

ient trial unit because they rely on a common nucleus

of operative fact.” Pet. App. 37a.

IIL There Are Significant Vehicle Problems.

Numerous issues make this case an inappropriate

vehicle for revisiting constitutional standards.

A. Res judicata. Petitioners’ facial challenges to

HB2’s requirements are barred by res judicata. See

supra pp. 30-33. The only claims not held barred by

res judicata were for relief as applied to two specific

facilities, and as-applied relief was granted in part as

to one (the McAllen facility). Those as-applied aspects

of petitioners’ challenges are fact-bound, and this

Court does not traditionally review fact-bound rulings.

See Sup. Ct. R. 10.

34

B. Forfeiture. Petitioners have forfeited several

arguments.

They forfeited the argument that res judicata does

not bar the district court’s facial invalidation of the

admitting-privileges requirement. See supra p. 31 (cit-

ing Pet. App. 36a). Petitioners also failed to contest

that they are identical to or in privity with the plain-

tiffs in the first lawsuit. See supra p. 30.

Additionally, petitioners forfeited any argument

pertaining only to medication abortions. The district

court invalidated the ASC requirement as applied to

the provision of medication abortions statewide. Pet.

App. 58a. Although the State challenged that aspect of

the judgment on appeal, petitioners “d[id] not respond

with any arguments on appeal in support of this por-

tion of the judgment.” Pet. App. 59a. Such arguments

are thus forfeited. City of Springfield v. Kibbe, 480

U.S. 257, 259 (1987) (per curiam).

Petitioners also did not dispute in the court of ap-

peals that HB2’s admitting-privileges and ASC re-

quirements are rationally related to a legitimate state

interest. Pet. App. 42a-43a (“Plaintiffs do not argue

differently and, instead, focus their attack on” whether

HB2 has the purpose or effect of erecting a “substan-

tial obstacle”). Petitioners have thus forfeited their

contention, in the petition, that the challenged re-

quirements “serve no valid state interest.” Pet. 2.

Further, petitioners make no argument regarding

the proper standard for facial challenges to abortion

regulations—whether it is the “no set of circumstanc-

es” test or the “large fraction” test. See Gonzales, 550

U.S. at 167. The “no set of circumstances” test is the

correct test. See United States v. Salerno, 481 U.S.

739, 745 (1987). But even assuming arguendo that it is

the “large fraction” test, petitioners raise no argument

35

that the relevant denominator is anything other than

all women of childbearing age in Texas, as the Fifth

Circuit held. Pet. App. 54a-55a.

Finally, petitioners have not even attempted to ex-

plain or cite sufficient record evidence showing wheth-

er the Fifth Circuit erred in fashioning an as-applied

remedy in McAllen. See Pet. 34.

C. The record. The meager factual record pre-

cludes any meaningful application of the undue-burden

test. The record and district-court findings are so lack-

ing in important details that this case is not a suitable

vehicle to review the constitutional questions. For ex-

ample, petitioners presented no competent evidence

that the remaining operational abortion facilities

would lack capacity to perform the number of abor-

tions sought—no data, no research, no interviews, and

not even hearsay. Pet. App. 56a-57a, 105a-06a & n.16.

Petitioners never even asked the district court to make

a finding about capacity. R.2137-53.

Similarly, as to access to abortions, petitioners

have not presented any evidence of women who will be

unable to travel to an abortion facility under the Fifth

Circuit’s ruling, much less what fraction of women

would face what the district court called an undue bur-

den. See supra pp. 9-10, 25; Pet. App. 56a. The record

also contains no proof substantiating petitioners’ as-

sertion that a decrease in Texas abortions was caused

by HB2 as opposed to declining abortion rates nation-

wide. Cf. Pet. App. 57a n.34 (noting Grossman’s con-

cession that causality cannot be proved); R.3959 (de-

scribing the nationwide decline in the abortion rate).

36

D. Standing. The district court held that the ASC

requirement could be validly applied to new abortion

facilities. Pet. App. 152a, 157a. Insofar as petitioners

challenge that portion of the district court’s judgment,

they lack standing. Petitioners do not allege that they

intend to open new, non-ASC abortion facilities in

Texas. Likewise, petitioners lack standing to raise po-

tential claims of non-party abortion facilities. Kowalski

v. Tesmer, 543 U.S. 125, 129 (2004).

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

KEN PAXTON Scott A. KELLER

Attorney General of Texas _ Solicitor General

Counsel of Record

CHARLES E. Roy

First Assistant Attorney J. CAMPBELL BARKER

General Deputy Solicitor General

BETH KLUSMANN

MICHAEL P. MURPHY

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

texasattorneygencral.gov

(512) 936-1700

OCTOBER 2015