248 F.3d 411 (5th Cir. 2001), 00-20037, Women's Med. Ctr. Northwest Houston v Bell

Docket Nº:00-20037
Citation:248 F.3d 411
Party Name:WOMEN'S MEDICAL CENTER OF NORTHWEST HOUSTON; ROBERT P. KAMINSKY, M.D., on behalf of themselves and the patients they serve; DENTON HEALTH SERVICES FOR WOMEN; AUSTIN WOMEN'S HEALTH CENTER, P.A.; LAMAR ROBINSON, M.D.; FRED W. HANSEN, M.D.; L. TAD DAVIS, M.D.; MARY E. SMITH, M.D., Plaintiffs-Appellees, v. DR. CHARLES E. BELL, Acting Texas Commissioner
Case Date:April 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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248 F.3d 411 (5th Cir. 2001)



DR. CHARLES E. BELL, Acting Texas Commissioner of Health; JOHN CORNYN, Texas Attorney General, Defendants-Appellants.

No. 00-20037

United States Court of Appeals, Fifth Circuit

April 13, 2001

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas.

Before WIENER and STEWART, Circuit Judges, and SMITH,[*] District Judge.

WIENER, Circuit Judge:

Plaintiffs-Appellees ("the plaintiffs") filed suit to challenge recent amendments to Texas law that for the first time require them to license their medical offices as abortion facilities. The district court entered a preliminary injunction against enforcement of the amendments, concluding that they violate the plaintiffs' equal protection rights. The court's injunction also prohibits enforcement of three companion regulations that were found to be unconstitutionally vague. We reverse the district court's injunction of enforcement of the amendments grounded in equal protection, but affirm the court's injunction prohibiting enforcement of the regulations grounded in unconstitutional vagueness.



The plaintiffs are Texas physicians who brought this action on behalf of themselves and their patients pursuant to 42 U.S.C.

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§ 1983. They challenge the constitutionality of 1999 amendments that require them to comply with the Texas Abortion Facility Reporting and Licensing Act, which dates to 1985.1 The amendments changed the threshold for facilities that must be licensed from those "used primarily for the purpose of performing abortions" ---- that is, where at least 51 percent of patients treated in a calendar year receive abortions ---- to those in which more than 300 abortions are performed in any twelve-month period. Facilities in which fewer abortions are performed remain exempt from the licensing requirements.

The record in this case reveals that as of 1999, Texas had between 51 and 59 non-hospital abortion providers, comprising: (a) 31 licensed abortion facilities; (b) a single-digit "handful" of physicians providing fewer than ten abortions per year in their offices; (c) seven physicians performing more than ten but fewer than 300 abortions per year in their offices; and (d) twelve physicians, or some 20 percent of the total, who for the first time would be required to be licensed as a result of the amendments because each provides more than 300 abortions per year (the new threshold) in their offices, even though in each of these offices abortion patients constitute less than 51 percent of all patients treated (the old threshold). Four of these twelve physicians are the plaintiffs in this case.2

To summarize briefly several of the principal requirements of the amended Abortion Facility Reporting and Licensing Act and its regulations, a licensed abortion facility must:

• Prominently post its license and provide each woman who initially consults the facility with a written statement about a toll-free telephone number maintained by the Texas Department of Health, which patients can call for information about a facility's license status, inspection violations, and penalties or other discipline imposed against it.

• Maintain a written Quality Assurance program, implemented by a Quality Assurance committee of at least four members, including a physician and a nurse, who must meet at least quarterly.3

• Develop a written staff orientation and training program and written infection control policies and procedures.4

• Be subject to annual and surprise on-site surveys by state inspectors.

• Employ staff with specific qualifications, including a physician and a registered nurse or licensed vocational nurse.

In addition, a physician applying for a license must provide personal information, including his home address, Social Security number, date of birth, driver's license number, and Texas physician license number. The initial licensing fee is $1,000, the first annual fee is $1,500, and the annual renewal fee is $2,500. Under the 1999 amendments, operation of an abortion facility without a license is a Class A misdemeanor,

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punishable by a jail sentence of up to one year and a fine of up to $4,000, or both. Civil and administrative penalties of $100 to $2,500 per day also may be assessed for violations of the statute and regulations.

The practices of the plaintiff physicians vary, but as a group they administer their offices less formally than the regulations require. They insist that many of the administrative mandates in the 1999 amendments are unnecessary to their practices. Some plaintiffs testified that they will have to charge their abortion patients as much as $100 more per procedure to cover the expenses associated with meeting the licensing requirements. The plaintiffs testified that they believe their private-office setting offers patients greater confidentiality, fewer confrontations with protesters, and a more personalized, supportive atmosphere than do abortion clinic settings. Some also objected to the rule that they must prominently display their abortion facility licenses at their offices, fearing that will offend some obstetrical and male patients and thereby damage their practices.

The only plaintiff who testified that he will stop performing abortions in his private office altogether rather than seek a license is Dr. Fred Hansen, an obstetrician/gynecologist with a private gynecology practice in Austin who performs approximately 950 to 1,050 abortions per year. Abortion is one of many gynecological procedures Dr. Hansen provides to his patients. Nearly all of his abortion patients are referred to him by other physicians, many for medically indicated abortions resulting from profound fetal defects discovered in wanted pregnancies after the fifteenth week. Dr. Hansen testified that he is the only physician in Austin who provides abortions in a private office after the fifteenth week of pregnancy. His staff consists of one part-time and three full-time employees. Dr. Hansen expressed the belief that if he were to seek licensing and comply with the continuing requirements of licensing, patient care would suffer as a result of his and his staff's spending additional time on unnecessary administrative tasks.

Evidence heard by the district court regarding the Legislature's purpose in enacting the 1999 amendments reflects that state Sen. Chris Harris filed a Senate bill that would have required all physicians performing more than 10 abortions per year to become licensed. Sen. Harris stated that he was motivated by ongoing concerns about abortion safety, and by data that he interpreted as showing that some physicians were performing large numbers of abortions but escaping the licensing act through the 51 percent "loophole."5 Sen. Harris stated that he did not want to limit abortion rights, but did want to protect the health and safety of women receiving abortions.

Among those testifying in opposition to the bill was Peggy Romberg, executive director of the Texas Family Planning Association, who stated that she opposed the bill's 10-abortion trigger. In response to questioning by Sen. Harris, she stated that "my bottom ceiling would be about 300, of OB/GYN that provides abortion services that would be essentially about one a working day." Ms. Romberg told Sen. Harris that the number 300 would be "more acceptable" to the abortion rights community than setting the threshold at ten, and later said she suggested the number

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300 as a "political compromise" with no medical, health, or safety basis.

Sen. Harris's bill did not pass, but similar language regulating physicians who perform 300 or more abortions per year was added by Rep. Leticia Van de Putte to a lengthy House bill dealing with general health department matters. That bill was adopted by both chambers and took effect September 1, 1999. Previously exempt physicians were not required to be licensed until Jan. 1, 2000. Rep. Van de Putte, who characterizes herself as "adamantly pro-choice," testified that she discussed the number 300 with pro-choice advocates and heard no objections.6 She sought "a number that would not preclude access for women in this state to seek that procedure, but keeping in mind that we wanted to have as our goal [the] health and safety of the women." Rep. Van de Putte also testified that she was influenced in supporting the bill by twenty years of experience as a practicing pharmacist, during which she counseled and dispensed medication to abortion patients.7

Following a two-day hearing, the district court granted the plaintiffs' motion for preliminary injunction barring the defendants from enforcing the 1999 amendments or the three challenged regulations pending a full review of the case on the merits. The court found that the plaintiffs had shown a substantial likelihood of success with respect to their claims that the amendments violate their equal protection rights and are unconstitutionally vague, but not on the claim that the amendments violate the due process rights of the plaintiffs' patients.

More specifically, the court found that, under Planned Parenthood of Southeastern Pennsylvania v. Casey,8 the plaintiffs had not shown a substantial likelihood of success on the merits of their claim that the 1999 amendments...

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