# Opposition Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2015 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A03. Public record. Not legal advice.