769 F.3d 330 (5th Cir. 2014), 13-51008, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott

Docket Nº:13-51008
Citation:769 F.3d 330
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, PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES, PLANNED PARENTHOOD WOMEN'S HEALTH CENTER, Plaintiffs - Appellees: Helene T. Krasnoff, Alice Clapman, Planned Parenthood Federation of America, Was...
Judge Panel:Before JONES, ELROD, and HAYNES, Circuit Judges, UNITED STATES CIRCUIT JUDGE. JAMES L. DENNIS, Circuit Judge, dissenting. JAMES L. DENNIS, Circuit Judge, dissenting:
Case Date:October 09, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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769 F.3d 330 (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

October 9, 2014

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

For PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES, PLANNED PARENTHOOD WOMEN'S HEALTH CENTER, Plaintiffs - Appellees: Helene T. Krasnoff, Alice Clapman, Planned Parenthood Federation of America, Washington, DC; Roger James George, Jr., Trial Attorney, 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., LAMAR ROBINSON, M.D., PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients, Plaintiffs - Appellees: Janet Crepps, Simpsonville, SC; Esha Bhandari, Immigrants' Rights Project, New York, NY; Roger James George, Jr., Trial Attorney, Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For SOUTHWESTERN WOMEN'S SURGERY CENTER, Plaintiff - Appellee: Janet Crepps, Simpsonville, SC; Brigitte Adrienne Amiri, Senior Attorney, Renee Paradis, American Civil Liberties Union Foundation of New York, New York, NY; Esha Bhandari, Immigrants' Rights Project, New York, NY; Roger James George, Jr., Trial Attorney, Elizabeth Rose von Kreisler, George Brothers Kincaid & Horton, L.L.P., Austin, TX; Rebecca L. Robertson, Attorney, Houston, TX.

For ROUTH STREET WOMEN'S CLINIC, HOUSTON WOMEN'S CLINIC, each on behalf of itself, its patients and physicians, Plaintiffs - Appellees: Rebecca L. Robertson, Attorney, Houston, TX; Brigitte Adrienne Amiri, Senior Attorney, Renee Paradis, American Civil Liberties Union Foundation of New York, New York, NY; Roger James George, Jr., Trial Attorney, 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, Defendants - Appellants: Jonathan F. Mitchell, Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX; Arthur Cleveland D'Andrea, Beth Ellen Klusmann, Esq., Andrew S. Oldham, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor 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, Amici Curiae: Mailee Rebecca Smith, Esq., Americans United for Life, Washington, DC.

For TEXAS ALLIANCE FOR LIFE TRUST FUND, TEXAS CENTER FOR DEFENSE OF LIFE, Amici Curiae: Stephen Daniel Casey, Esq., Attorney, 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, Amici Curiae: Lawrence John Joseph, Washington, DC.

DANIEL HUGH BRANCH, Amicus Curiae, Pro se, Dallas, TX.

For DANIEL HUGH BRANCH, BIOETHICS DEFENSE FUND, FAMILY RESEARCH COUNCIL, Amici Curiae: Catherine Glenn Foster, Washington, DC.

For AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, AMERICAN MEDICAL ASSOCIATION, Amici Curiae: Kimberly A. Parker, Skye Lynn Perryman, Esq., Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, DC.

Before JONES, ELROD, and HAYNES, Circuit Judges, UNITED STATES CIRCUIT JUDGE. JAMES L. DENNIS, Circuit Judge, dissenting.

OPINION

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ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion March 27, 2014, 748 F.3d 583)

EDITH H. JONES, Circuit Judge:

The Petition for Rehearing is DENIED. Judge Dennis dissents from the court's denial of rehearing en banc and his dissent is attached.

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.

In the en banc poll, 3 judges voted in favor of rehearing (Judges Dennis, Graves, and Costa) and 12 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod, Southwick, Haynes, and Higginson).

DISSENT

JAMES L. DENNIS, Circuit Judge, dissenting:

I respectfully but emphatically dissent from the court's refusal to rehear this case en banc. In upholding Texas's unconstitutional admitting-privileges requirement for abortion providers and medication-abortion restrictions, the panel opinion flouts the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833,

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112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), by refusing to apply the undue burden standard expressly required by Casey. Instead, the panel applied what effectively amounts to a rational-basis test--a standard rejected by Casey --under the guise of applying the undue burden standard. The panel's assertion that it applies Casey is false because it does not assess the strength of the state's justifications for the restrictive abortion laws or weigh them against the obstacles the laws place in the path of women seeking abortions, as required by Casey. A correct application of the Casey undue burden standard would require that the admitting-privileges provision and medication-abortion restrictions be stricken as undue burdens because the significant obstacles those legal restrictions place in the way of women's rights to previability abortions clearly outweigh the strength of their purported justifications.

If not overruled, the panel's sham undue burden test will continue to exert its precedential force in courts' review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi. See Jackson Women's Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014); Whole Woman's Health v. Lakey, No. 1:14-CV-284-LY, 2014 WL 4346480 (W.D. Tex. Aug. 29, 2014); June Med. Servs., LLC v. Caldwell, No. 3:14-CV-525-JWD-RLB, 2014 WL 4296679 (M.D. La. Aug. 31, 2014). Moreover, the panel opinion deepens a circuit split,1 and has been criticized by other federal courts. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014) (" We conclude that Abbott. . . [is]...

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