748 F.3d 583 (5th Cir. 2014), 13-51008, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott

Docket Nº:13-51008
Citation:748 F.3d 583
Opinion Judge:EDITH H. JONES, Circuit Judge:
Party Name:PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC
Attorney:For Planned Parenthood of Greater Texas Surgical Health Services, Plaintiff - Appellee: Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC; Alice Clapman, Planned Parenthood Federation of America, Washington, DC Roger James George Jr., George Brothers Kincaid & Horton, L...
Judge Panel:Before JONES, ELROD, and HAYNES, Circuit Judges.
Case Date:March 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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748 F.3d 583 (5th Cir. 2014)

PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC, each on behalf of itself, its patients and physicians; ALAN BRAID, M.D.; LAMAR ROBINSON, M.D.; PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients; PLANNED PARENTHOOD WOMEN'S HEALTH CENTER, Plaintiffs - Appellees

v.

ATTORNEY GENERAL GREGORY ABBOTT; DAVID LAKEY, M.D.; MARI ROBINSON, Executive Director of the Texas Medical Board, Defendants - Appellants

No. 13-51008

United States Court of Appeals, Fifth Circuit

March 27, 2014

As Revised, March 28, 2014.

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[Copyrighted Material Omitted]

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

For Planned Parenthood of Greater Texas Surgical Health Services, Plaintiff - Appellee: Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC; Alice Clapman, Planned Parenthood Federation of America, Washington, DC Roger James George Jr., George Brothers Kincaid & Horton, L.L.P., Austin, TX; Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Planned Parenthood Center For Choice, Planned Parenthood Sexual Healthcare Services, Planned Parenthood Women's Health Center, Plaintiff - Appellees: Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC; Alice Clapman, Planned Parenthood Federation of America, Washington, DC; Roger James George Jr., George Brothers Kincaid & Horton, L.L.P., Austin, TX; Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, West Side Clinic, Incorporated, Alan Braid, M.D., PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients, Lamar Robinson, M.D., Plaintiff - Appellees: Janet Crepps, Center for Reproductive Rights, Simpsonville, SC; Esha Bhandari, Center for Reproductive Rights, New York, NY; Roger James George Jr., George Brothers Kincaid & Horton, L.L.P., Austin, TX; Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Southwestern Women's Surgery Center, Plaintiff - Appellee: Janet Crepps, Center for Reproductive Rights, Simpsonville, SC; Brigitte Adrienne Amiri, American Civil Liberties Union Foundation, New York, NY; Esha Bhandari, Center for Reproductive Rights, New York, NY; Roger James George Jr., George Brothers Kincaid & Horton, L.L.P. Austin, TX; Renee Paradis, American Civil Liberties Union Foundation, New York, NY; Rebecca L. Robertson, Houston, TX; Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Routh Street Women's Clinic, HOUSTON WOMEN'S CLINIC, each on behalf of itself, its patients and physicians, Plaintiff - Appellees: Rebecca L. Robertson, Houston, TX; Brigitte Adrienne Amiri, American Civil Liberties Union Foundation, New York, NY; Roger James George Jr., George Brothers Kincaid & Horton, L.L.P., Austin, TX; Renee Paradis, American Civil Liberties Union Foundation, New York, NY; Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Attorney General Gregory Abbott, David Lakey, M.D., MARI ROBINSON, Executive Director of the Texas Medical Board, Defendant - Appellants: Jonathan F. Mitchell, Office of the Solicitor General, Austin, TX; Arthur Cleveland D'Andrea, Office of the Attorney General, Austin, TX; Beth Ellen Klusmann, Office of the Attorney General, Austin, TX; Andrew S. Oldham, Office of the Attorney General, Austin, TX.

For American Association of Pro-Life Obstetricians & Gynecologists, Christian Medical Association, Catholic Medical Association, Physicians For Life, National Association of Pro Life Nurses, National Catholic Bioethics Center, National Association of Catholic Nurses, Amicus Curiae: Mailee Rebecca Smith, Americans United for Life, Washington, DC.

For Texas Alliance For Life Trust Fund, Texas Center For Defense of Life, Amicus Curiae: Stephen Daniel Casey, Casey Law Office, P.C., Round Rock, TX.

For Lieutenant Governor David Dewhurst, CHARLES ANDERSON, Texas State Representative, CECIL BELL, JR., Texas State Representative, DWAYNE BOHAC, Texas State Representative, DENNIS BONNEN, Texas State Representative, GREG BONNEN, M.D., Texas State Representative, CINDY BURKETT, Texas State Representative, BILL CALLEGARI, Texas State Representative, GIOVANNI CAPRIGLIONE, Texas State Representative, TONY DALE, Texas State Representative, JOHN E. DAVIS, Texas State Representative, GARY ELKINS, Texas State Representative, PAT FALLON, Texas State Representative, ALLEN FLETCHER, Texas State Representative, DAN FLYNN, Texas State Representative, JAMES FRANK, Texas State Representative, CRAIG GOLDMAN, Texas State Representative, LINDA HARPER-BROWN, Texas State Representative, BRYAN HUGHES, Texas State Representative, JASON ISAAC, Texas State Representative, PHILIP KING, Texas State Representative, STEPHANIE KLICK, Texas State Representative, MATT KRAUSE, Texas State Representative, JODIE LAUBENBERG, Texas State Representative, GEORGE LAVENDER, Texas State Representative, JEFF LEACH, Texas State Representative, RICK MILLER, Texas State Representative, JIM MURPHY, Texas State Representative, JOHN OTTO, Texas State Representative, CHRIS PADDIE, Texas State Representative, TAN PARKER, Texas State Representative, CHARLES PERRY, Texas State Representative, LARRY PHILLIPS, Texas State Representative, JIM PITTS, Texas State Representative, SCOTT SANFORD, Texas State Representative, MATT SCHAEFER, Texas State Representative, RON SIMMONS, Texas State Representative, DAVID SIMPSON, Texas State Representative, JOHN T. SMITHEE, Texas State Representative, DREW SPRINGER, Texas State Representative, JONATHAN STICKLAND, Texas State Representative, VAN TAYLOR, Texas State Representative, ED THOMPSON, Texas State Representative, STEVE TOTH, Texas State Representative, SCOTT TURNER, Texas State Representative, JAMES WHITE, Texas State Representative, PAUL WORKMAN, Texas State Representative, BILL ZEDLER, Texas State Representative, BRIAN BIRDWELL, Texas State Senator, DONNA CAMPBELL, Texas State Senator, JOHN CARONA, Texas State Senator, BOB DEUELL, Texas State Senator, CRAIG ESTES, Texas State Senator, TONY FRASER, Texas State Senator, KELLY HANCOCK, Texas State Senator, GLENN HEGAR, JR., Texas State Senator, EDDIE LUCIO, JR., Texas State Senator, JANE NELSON, Texas State Senator, ROBERT NICHOLS, Texas State Senator, DAN PATRICK, Texas State Senator, KEN PAXTON, Texas State Senator, LARRY TAYLOR, Texas State Senator, Texas Eagle Forum, Association of American Physicians & Surgeons, Incorporated, Texas Right to Life, Eagle Forum Education And Legal Defense Fund, Amicus Curiae: Lawrence John Joseph, Washington, DC.

Daniel Hugh Branch Amicus Curiae, Pro se, Winstead, P.C., Dallas, TX.

For Alliance Defending Freedom, Bioethics Defense Fund, Family Research Council, Amicus Curiae: Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC.

For American College of Obstetricians And Gynecologists, American Medical Association, Amicus Curiae: Kimberly A. Parker Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, DC; Skye Lynn Perryman, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, DC.

Before JONES, ELROD, and HAYNES, Circuit Judges.

OPINION

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EDITH H. JONES, Circuit Judge:

Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively " Planned Parenthood" ) sued the Attorney General of Texas and other individuals (collectively " the State" ), seeking to enforce their rights and those of patients for declaratory judgment and to enjoin two provisions of 2013 Texas House Bill No. 2 (" H.B. 2" ) pertaining to the regulation of surgical abortions and

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abortion--inducing drugs.1 The district court held that parts of both provisions were unconstitutional and granted, in substantial part, the requested injunctive relief. A motions panel of this court granted a stay pending appeal, and the Supreme Court upheld the stay. We conclude that both of the challenged provisions are constitutional and therefore reverse and render judgment, with one exception, for the State.

I. Background

Passed on July 12, 2013, H.B. 2 contains two provisions that Planned Parenthood contends are unconstitutional. The first requires that a physician performing or inducing an abortion have admitting privileges on the date of the abortion at a hospital no more than thirty miles from the location where the abortion is provided.2 The second mandates that the administration of abortion--inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA), with limited exceptions.3 We follow the parties in referring to drug--induced abortions, as distinguished from surgical abortions, as " medication abortions." 4

Planned Parenthood presented four grounds to the district court for invalidating the hospital admitting privileges requirement: violation of patients' substantive due process rights, violation of physicians' procedural due process rights, unlawful delegation of authority to hospitals, and vagueness. As to the medication abortion regulation, Planned Parenthood argued that it also violated patients' substantive due process rights and was unconstitutionally vague. Faced with a pleading filed only days before H.B. 2 was to become effective, the district court...

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