After three readings of the bill before the entire House, H.B. To determine the constitutionality of a state law, we ask “whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to ․ previability[ ] abortions.” Carhart, 550 U.S. at 156. The House considered the bill in two public hearings. See Planned Parenthood of Greater Tex. Id. The parties also stipulated that Planned Parenthood has obtained a license to open a new ambulatory surgical center in Dallas, and announced its intention to open another one in San Antonio. Compare Planned Parenthood Ariz ., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.2014), and Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 791–99 (7th Cir.2013), with Abbott II, 748 F.3d at 593–94, 597, Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515 (6th Cir.2012), Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir.2000), and Women's Health Center of W. 12 Whole Woman’s health v. Cole, 135 S. Ct. 2923 (2015) (mem.). At this emergency stay point, the State does not challenge as clear error either set of factual findings.2 Weighing lack of medical benefit against the significant reduction in clinic access, the district court found the burden to be “undue.”. 8. We consider four factors in deciding whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Court of . 155 THE WHOLE WOMAN’S HEALTH V. HELLERSTEDT ORAL ARGUMENT: A ROUNDTABLE DISCUSSION WITH MEMBERS OF NYU LAW STUDENTS FOR REPRODUCTIVE JUSTICE Photo Courtesy of Juliana Morgan-Trostle INTRODUCTION On June 27, 2016, the Supreme Court decided Whole Woman’s Health v. Hellerstedt,1 a case referred to as “the most significant … Appellants (collectively “the State”) appealed to the Fifth Circuit and filed an emergency motion to stay the district court's injunctions pending the resolution of their appeal. June 9, 2015 by Justia . Whole Woman’s Health, et al. See Abbott II, 748 F.3d at 594–96. Law Serv. See Jackson Women's Health Org. According to the district court, “other types of ambulatory-surgical facilities are frequently granted waivers or are grandfathered due to construction dates that predate the newer construction requirements.” Id. At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v.Hellerstedt. If the facts on which the second lawsuit is based are the same as those prevailing at the time of the first lawsuit, the two lawsuits involve the same “claim or cause of action” for purposes of res judicata. It is also important to note that Texas has a 24–hour waiting period, which Plaintiffs do not challenge here, but women who must travel more than 100 miles to a clinic are exempt. We have addressed only the issues necessary to rule on the motion for a stay pending appeal, and our determinations are for that purpose and do not bind the merits panel. (internal quotation marks omitted); see also Planned Parenthood of Se. Thus, the State has shown a substantial likelihood of success on the merits of the district court's injunction of the ambulatory surgical center provision as applied to medication abortions. [:] the clinic operated by Whole Woman’s Health in … “Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (internal quotation marks omitted). June 9, 2015. Health & Safety Code Ann. Plaintiffs filed a response, the State replied, and we heard oral argument on the motion to stay on September 12, 2014. In the case, Whole Woman’s Health argued that the requirements of House Bill 2 violated the decision made in the US Supreme Court case Planned Parenthood v. Casey. 14-50928 united states court of appeals for the fifth circuit whole woman’s health; austin women’s health center; killeen women’s health center; nova health systems, doing business as reproductive services; sherwood c. lynn, jr.,m.d., on behalf of themselves and their patients; pamela j. richter, d.o., on behalf of themselves and their patients; lendol l. davis, m.d., on 4. 14A365 WHOLE WOMAN’S HEALTH, ET AL. See 2013 Texas House Bill No. 2's admitting privileges requirement and medication abortion provision, and the State challenged the injunction on appeal. Planned Parenthood of Greater Tex. See Whole Woman's Health, slip op. In addition, Plaintiffs argue that Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.1993) supports a balancing approach.12 However, a careful reading of Barnes establishes that it does not support Plaintiffs' argument. Please try again. In 2013, the district court enjoined enforcement of H.B. The distance from El Paso to San Antonio, for example, is greater than 500 miles. As to the El Paso clinic, we grant, in part, and deny, in part, the State's motion to stay the district court's injunction of the ambulatory surgical center provision. The State has shown a strong likelihood of success on the merits of its argument that Plaintiffs' as-applied challenges to the admitting privileges requirement are barred by res judicata. Nor may a State “impose upon this right an undue burden, which exists if a regulation's purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. In other words, the law must be unconstitutional in 100% of its applications. Likewise, Dr. Grossman did not consider how many physicians with admitting privileges from non-ambulatory surgical centers will begin providing abortions at the ambulatory surgical center clinics, thereby increasing those clinics' capacities. It has been described as the most important abortion rights case since Planned Parenthood of Southeastern Pa. v. Casey. See Whole Woman’s Health v. Lakey, 769 F.3d 285 (5th Cir. Aug. 29, 2014) (The two requirements “operate together to place an unconstitutional undue burden on women throughout Texas.”). Three weeks later, at 4:39 p.m. on August 29, 2014, the last business day before the ambulatory surgical center provision would go into effect, the district court delivered its opinion and issued a final judgment enjoining the admitting privileges requirement and ambulatory surgical center provision of H.B. at 16. In conducting its own balancing analysis, the district court stated that “any medical justification for the requirement is at its absolute weakest in comparison with the heavy burden it imposes.” Whole Woman's Health, slip op. Nken, 556 U.S. at 435. (f) (“Where important human values ․ are at stake, even a slight change of circumstances may afford a sufficient basis for concluding a second action may be brought.”). The denominator would be women that Plaintiffs claim are unduly burdened by the statute, and the numerator would be the same.15. As a result, the clinics in McAllen and El Paso were able to reopen, and the surgical-center provision did not go into effect in the state. See Abbott I, 734 F.3d at 410. Petro–Hunt, L.L.C. Case: 14-50928 Document: 00513071917 Page: 2 Date Filed: 06/09/2015 1, 3 (2012); New Motor Vehicle Bd. Surgical Health Servs. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create … As discussed above, the Casey plurality, in using the “large fraction” nomenclature, departed from the general standard for facial challenges. Plaintiffs' expert, Dr. Daniel Grossman, opined that the ambulatory surgical center provision would increase driving distances for women generally, noting that after the provision becomes effective, 900,000 out of approximately 5.4 million women of reproductive age in Texas would live at least 150 miles from the nearest clinic. Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. We note that the broad judgment “as applied to all women” logically would include the McAllen and El Paso clinics, even though the district court did not specifically address in its conclusions and judgment Plaintiffs' as-applied claims for these locations. Whole Woman’s Health v. Lakey, 2014 WL 5148719 (U.S., 2014). The provision cited by the district court provides an exemption to any facility previously licensed as an ambulatory surgical center that failed to comply with new building code requirements amended in June 2009. Appeals’ stay order with reference to the district court’s order Whole Woman's Health, slip op. #5���i H2 In doing so, the district court applied neither the Fifth Circuit's “no set of circumstances” test nor Casey 's “large fraction” test. See, e.g., Abbott I, 734 F.3d at 419. See Whole Woman’s Health v. Lakey, 135 S. Ct. 399 (2014). It also does not appear from the record that Dr. Grossman considered the possibility of additional capacity resulting from new clinics' being built, nor did he consider that the demand for abortion services in Texas may decrease in the future, as it has done nationally over the past several years. hX�r�F~����l'��]��d�7�$N�'n&�dP��y�~�+��1ƍ����^��;ߊ+�"ƕe�K. 2, but [were] awaiting a response from a hospital.” Planned Parenthood of Greater Tex. The district court found that the McAllen clinic closed as a result of the admitting privileges requirement. In the instant lawsuit, Plaintiffs challenge the admitting privileges requirement, this time not on its face, but as applied to two specific clinics. 20. 2. Get free access to the complete judgment in Whole Woman's Health v. Lakey on CaseMine. Abbott I, 734 F.3d at 410 (quoting Nken v. Holder, 556 U.S. 418, 425–26 (2009)). The district court found that 60,000–72,000 abortions were performed annually in previous years. 14-50928 (5th Cir. at 11–12 (listing “lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other inarticulable psychological obstacles.” Id. Steven Aden was counsel of record on an amicus curiae brief filed in support of the respondent in Whole Woman’s Health v. Hellerstedt . 14-50928 (5th Cir. at 8. at 16 (stating that the requirement, “as applied to the Rio Grande Valley and El Paso clinics, [is] constitutionally impermissible”); see also id. In the interests of efficiency and finality, the doctrine of res judicata bars litigation of claims that have been litigated or could have been raised in a prior lawsuit. See Commodity Futures Trading Comm'n v. British Am. 21. Admin. As to the ambulatory surgical center provision, the district court’s See Complaint ¶¶ 13–14, Abbott, No. Oct 10 2014: Reply of applicant Whole Woman's Health, et al. Tex. Fifth Circuit Upholds the Enforcement of Two Abortion Provisions of a Texas Act--Whole Woman's Health v. Lakey. Based on our review of the relevant provision, we agree with the State that ambulatory surgical centers providing abortions are not treated differently from other ambulatory surgical centers. Plaintiffs have not done so here. Here, we use the same denominator as the panel in Abbott II—women seeking an abortion in Texas. Finally, we address the district court's injunctions of both requirements as applied to clinics in McAllen and El Paso, as well as the ambulatory surgical center provision as applied to medication abortion, and the State's likelihood of success on the merits of each. See Abbott II, 748 F.3d at 583 (“[A]n increase of travel of less than 150 miles for some women is not an undue burden under Casey.”) (citing Abbott I, 734 F.3d at 415). The district court found that once the provision takes effect, the clinic nearest to the Rio Grande Valley will be in San Antonio, between 230 and 250 miles away. Code § 135.51(a). The district court denied the motion “for substantially the reasons stated in its memorandum opinion.” Plaintiffs do not object to the order in which the State filed its motions and agree that the present motion is properly before us. at 9 n.4. The undue burden inquiry looks to whether the challenged provision has either “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877 (emphasis added). The longer these clinics remain closed, the less likely they are to reopen if this court affirms that the law is unconstitutional. After the ambulatory surgical center provision goes into effect, it is undisputed that seven or eight clinics will remain. 12. Therefore, we must determine whether the State is likely to prevail on its argument that this incremental increase of 100 miles in distance does not constitute an undue burden. To the extent the district court found an improper purpose based on the law's effect, the State is likely to succeed on the merits. In 2013, Texas legislators passed HB2, a sweeping measure that imposes numerous restrictions on access to abortion, most notably the following requirements: 1. doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic, and 2. every See Abbott II, 748 F.3d at 593–94, 597 (“Even though the state articulated a rational basis for the law ․ [Plaintiff] could succeed if the effect of the law substantially burdened women's access to abortion in Texas.”); see also Carhart, 550 U .S. Plaintiffs argue that the district court's balancing approach is used by other circuits. However, under this circuit's precedent, and Carhart, a “significant number” is insufficient unless it amounts to a “large fraction.” See Abbott II, 748 F.3d at 600 (“[T]he regulation will not affect a significant (much less ‘large’) fraction of such women․”). We agree with the district court's conclusion that the ambulatory surgical center provision satisfies rational basis review. Surgical Health Servs. The admitting privileges requirement was originally scheduled to take effect on October 29, 2013, but the district court enjoined the requirement on October 28, 2013. This approach contravenes our precedent. at 16. Health & Safety Code Ann. Aug. 29, 2014)at *2 (hereinafter [Whole Woman’s Health (emphasis added)Judgment; ] see also Whole Woman’s Health v. Lakey. Furthermore, the record lacks evidence that the previous closures resulting from the admitting privileges requirement have caused women to be turned away from clinics. Assuming that women seeking abortions are proportionally distributed across the state, Dr. Grossman's evidence suggests that approximately one out of six (16.7%) women seeking an abortion will live more than 150 miles from the nearest clinic.13, Even assuming, arguendo, that 150 miles is the relevant cut-off, this is nowhere near a “large fraction.” See Abbott II, 748 F.3d at 600. at 8. On April 3, 2014, five independent abortion clinics sued to block the fourth component of HB2 from taking effect on September 1, 2014: the ASC requirement. Id. The district court found that the physical plant requirements of the ambulatory surgical center provision would force the El Paso clinic to close. See 25 Tex. 0 Health & Safety Code § 171.012(a)(4). Docket no. Abbott II, 748 F.3d at 602. %%EOF 11. The district court did not cite to record evidence or make any findings to support its conclusion that the ambulatory surgical center provision imposes an undue burden as applied to medication abortions.25 Indeed, at oral argument, Plaintiffs could not identify any findings in the district court's opinion supporting the conclusion that the ambulatory surgical center provision imposed an undue burden as applied to medication abortion. In Abbott II-in contrast to the district court's factual findings in this case-our court concluded that there had been “no showing whatsoever that any woman [would] lack reasonable access to a clinic within Texas.” Id. In view of H.B. In denying the stay of the medication abortion provision, we noted that “we do not prejudge the outcome of these issues on appeal. This is also the approach that our circuit used in Abbott II. 15-274 . The Fifth Circuit goes on to explain that, in this second case, which is titled Whole Woman’s Health v. Lakey, the plaintiffs “challenge the admitting privileges requirement, this time not on its face, but as applied to two specific clinics. Whole Woman’s Health v. Lakey, 769 F.3d 285, 305 (5th Cir. We are also Black women, and Black mothers. at 14–15 (“The court concludes that it is unlikely that the stated goal of the requirement—improving women's health—will actually come to pass.”). On cross-examination in this case, Dr. Grossman admitted that his colleague's earlier predictions proved to be inaccurate. Plaintiffs also had the burden, which they failed to meet, of showing that clinics in San Antonio and other nearby cities would be unable to manage the additional demand for abortions caused by closures. 2. To the extent the district court concluded that the ambulatory surgical center provision had an improper purpose as applied to medication abortion, we have already rejected that argument for the reasons stated above. Indeed, Casey permitted even greater travel distances, as it upheld a 24–hour waiting period that doubled driving times, increasing the drive for some women from three hours to six hours.22 See id. at 457 (“Consistent with Gaines, we hold that the proper formulation of the undue burden analysis focuses solely on the effects within the regulating state—here, Mississippi.”). “[P]laintiffs bore the burden of attacking the State's purpose here,” and the State has shown a strong likelihood that Plaintiffs failed to meet that burden. Besides its view of the above regulation, the district court cited no record evidence to support its determination that the ambulatory surgical center provision was enacted for the purpose of imposing an undue burden on women seeking abortions, nor did it make any factual finding regarding an improper purpose. Whole Woman’s Health v. Lakey, 2014 WL 4930907 (5th Cir. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (“[W]e ordinarily defer to the legislature's stated intent.”); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (“[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the] ground of [improper legislative motive].”). at 13. Microsoft Edge. Whole Woman’s Health, et al., to assist the Court by 1 Amici have received written consent from all parties to submit this brief. While Plaintiffs made these as-applied challenges, the district court did not directly address them in either the declarations section of its final judgment or the conclusion of its opinion.10 However, the district court indicated in the introductory parts of its opinion and judgment that it intended to do so. See id. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)). Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (noting that the purpose and effect of undue burden are two different inquiries and there must be “some evidence of that improper purpose”); Abbott II, 748 F.3d at 597 (“[T]he plaintiffs offered no evidence implying that the State enacted the admitting privileges provision in order to limit abortions․ There is thus no basis for a finding of impermissible purpose under Casey.”). Health Law Immigration Law Injury Law Insurance Law Intellectual Property International Law International Trade Internet Law Juvenile Law Labor & Employment Law Landlord - Tenant Legal Ethics Medical Malpractice Mergers & Acquisitions Military Law Native American Law Non-Profit Corporations Patents Personal Injury Products Liability Professional … We now evaluate whether the State has shown a likelihood of success on the merits of whether the ambulatory surgical center provision “has the effect of imposing an unconstitutional burden” sufficient to justify a facial invalidation. Woman’s Health, filed a case against Texas’s commissioner for the Department of State Health Services, David Lakey. filed. In that case, we narrowed the injunction in the judgment. The evidence does indicate, without specificity, that by requiring all abortion clinics to meet the minimum standards of ambulatory surgical centers, the overall cost of accessing an abortion provider will likely increase. was a named plaintiff in Abbott and was originally a named plaintiff in this case. 2 with a final vote of 19–11.5. see also Whole Woman’s Health v. Lakey. Stay up-to-date with FindLaw's newsletter for legal professionals. H .B. See Restatement (Second) of Judgments § 24, cmt. Admin. The district court's failure to apply the “large fraction” test, and its reliance on its own balancing of the State's justifications against the burdens imposed by the law, weigh in favor of the State's strong likelihood of success on the merits. Moreover, the district court's approach ratchets up rational basis review into a pseudo-strict-scrutiny approach by examining whether the law advances the State's asserted purpose.11 Under our precedent, we have no authority by which to turn rational basis into strict scrutiny under the guise of the undue burden inquiry. As we observed in Abbott I, the State of Texas has an “interest in protecting the health of women who undergo abortion procedures.” 734 F.3d at 413; see also Carhart, 550 U.S. at 157 (“There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession.” (internal quotation marks omitted)). The ambulatory surgical center provision applies to all clinics performing abortions. Indeed, at the merits stage, we concluded that the statute regulating medication abortions did not facially require a court-imposed exception. After hearing conflicting expert testimony, the district court found that “abortion in Texas [is] extremely safe with particularly low rates of serious complications,” and further found that “risks are not appreciably lowered for patients who undergo abortion at ambulatory surgical centers.” The denial of a stay would preserve this status quo pending our court's ultimate decision on the correctness of the district court's ruling. Next, the district court found that if the ASC provision goes into effect, 900,000 women will live more than 150 miles from an abortion clinic; 750,000 women will live more than 200 miles from a clinic; and some women will live as far as 500 miles or more from a clinic. In earlier abortion cases, the Court used the “no set of circumstances” approach. Commodity Options Corp., 434 U.S. 1316, 1320 (1977). The Texas Legislature's stated purpose was to improve patient safety. amending §§ 164.052 & 164.055). As in Abbott I, the State has made a strong showing of likelihood of success on the merits of its appeal as to all of the district court's injunctions except for the injunction of the physical plant requirements of the ambulatory surgical center provision as applied to the clinic in El Paso. Required to prove that the district court 's injunction of the district court conclusion! To create a brutally effective system of abortion regulation ” that is unconstitutional 5PM FRI – 9AM to FRI! Currier, 760 F.3d at 450–51 ( evaluating the impact of H.B clinics alone lack capacity... From El Paso clinic to close requirement is directly aligned with the State initially filed a Notice of Dismissal! Law against the burdens the law is unconstitutional as applied to the ambulatory surgical center provision general rule general. Requirement of H.B 10 2014: Reply of applicant Whole Woman ’ s newsletters, including our terms of apply... Stay the permanent injunction, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, (. Request for a stay of final judgment pending on Health & Human Servs., bill analysis, Tex final! 589 ; see also Jackson women 's Health v. Lakey was an undue balancing!, Inc. v. Webster, 871 F.2d 1377 ( 8th Cir.1994 ) ( 8th Cir.1994 ) 3, WL... Recognized that there are 5.4 million women of reproductive age in Texas at 2 ( W.D.Tex amendments to 's! Dr. Pamela J. Richter challenge the requirement as applied to medication abortions ) the plaintiff to recover more than is. Two public hearings to construe the panel in Abbott II, 748 F.3d at 597 ; see also Planned of... 245.010–.011 ; Tex WL 4930907 ( 5th Cir.2014 ) emergency motion to stay part. A Legislature 's stated purpose was to improve patient safety judgment are unclear Plaintiffs ’,... Texas Department of State Health Services, David Lakey, 135 S. Ct. (. 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On women throughout Texas. ” ), - CV-284-LY, 2014 WL 4346480 at 7–8...
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