790 F.3d 563 (5th Cir. 2015), 14-50928, Whole Woman's Health v. Cole

Docket Nº:14-50928
Citation:790 F.3d 563
Opinion Judge:PER CURIAM:
Party Name: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 behalf of themselves and their patien
Attorney:For Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Nova Health Systems, SHERWOOD C. LYNN, JR., Medical Doctor, On behalf of themselves and their patients, PAMELA J. RICHTER, D.O., On behalf of themselves and their patients, LENDOL L. DAVIS, Medical Doctor, On b...
Judge Panel:Before PRADO, ELROD, and HAYNES, Circuit Judges.
Case Date:June 09, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Texas abortion providers filed suit against the State seeking declaratory and injunctive relief against the enforcement of amendments to Texas's law regulating abortions. At issue is H.B. 2’s physician admitting privileges requirement as applied to a McAllen and an El Paso abortion facility, as well as H.B. 2’s requirement that abortion facilities satisfy the standards set for ambulatory surgical centers (ASC) facially and as applied to the McAllen and El Paso abortion... (see full summary)

 
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790 F.3d 563 (5th Cir. 2015)

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 behalf of themselves and their patients, Plaintiffs-Appellees -- Cross-Appellants

v.

KIRK COLE, M.D., Commissioner of the Texas Department of State Health Services, in his Official Capacity; MARI ROBINSON, Executive Director of the Texas Medical Board, in her Official Capacity, Defendants-Appellants -- Cross-Appellees

No. 14-50928

United States Court of Appeals, Fifth Circuit

June 9, 2015

Page 564

[Copyrighted Material Omitted]

Page 565

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

For Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Nova Health Systems, SHERWOOD C. LYNN, JR., Medical Doctor, On behalf of themselves and their patients, PAMELA J. RICHTER, D.O., On behalf of themselves and their patients, LENDOL L. DAVIS, Medical Doctor, On behalf of themselves an their patients, Plaintiffs - Appellees Cross-Appellants: Stephanie Toti, Esq., Staff Attorney, David Patrick Brown, Center For Reproductive Rights, U.S. Legal Program, New York, NY; Esha Bhandari, Center for Reproductive Rights, Immigrants' Rights Project, New York, NY; Betre Mussie Gizaw, Morrison & Foerster, Washington, DC; Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY; Patrick J. O'Connell, O'Connell & Soifer, L.L.P., Austin, TX; Jan Soifer, O'Connell & Soifer, L.L.P., Austin, TX.

For KIRK COLE, Medical Doctor, Commissioner of the Texas Department of State Health Services, in his Official Capacity, MARI ROBINSON, Executive Director of the Texas Medical Board, in her Official Capacity, Defendants - Appellant Cross-Appellees: Scott A. Keller, Solicitor, Office of the Solicitor General for the State of Texas, Austin, TX; James Davis Blacklock, Senior Counsel, Office of General Counsel for the Governor of Texas, Austin, TX; Beth Ellen Klusmann, Esq., Office of the Attorney General, Office of the Solicitor General, Austin, TX; Michael P. Murphy, Office of the Attorney General, Office of the Solicitor General, Austin, TX; Andrew S. Oldham, Deputy General Counsels, Office of the Attorney General, Office of the Solicitor General, Austin, TX.

For American Center For Law And Justice, Houston Coalition For Life, Amici Curiae: Walter Martin Weber, Stuart J. Roth, American Center for Law & Justice, Washington, DC; CeCe Heil, Jay A. Sekulow, Esq., American Center for Law & Justice, Virginia Beach, VA.

For John Carona, Bob Deuell, Craig Estes, Kelly Hancock, Robert Nichols, Charles Perry, Charles Schwertner, M.D., Kel Seliger, Larry Taylor, Trent Ashby, Jimmie Don Aycock, Cecil Bell, Jr., Dwayne Bohac, Cindy Burkett, Angie Chen-Button, Travis Paul Clardy, Myra Crownover, Tony Dale, Dan Flynn, John Frullo, Linda Harper-Brown, Todd Hunter, Jason Isaac, Kyle Kacal, James Keffer, John Keumpel, Philip King, Matt Krause, Lyle Larson, Jeff Leach, Jodie Laubenberg, Geanie Morrison, Douglas Miller, Rick Miller, Chris Paddie, Debbie Riddle, Kenneth Sheets, David Simpson, Ron Simmons, John Smithee, Drew Springer, James White, Paul Workman, John M. Zerwas, M.D., Amici Curiae: Mailee Rebecca Smith, Esq., Americans United for Life, Washington, DC.

For Alliance Defending Freedom, Amicus Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC.

For American Association of Pro-Life Obstetricians & Gynecologists, Donna Harrison, M.D., Heidi Group, And Then There Were None, Abby Kristen Johnson, Life Legal Defense Foundation, Amici Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA; Gregory R. Terra, Texas Center for Defense of Life, Georgetown, TX.

For Texas Center For Defense of Life, Amicus Curiae: Michael J. Norton, Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA.

For Carol Everett, Amicus Curiae: Steven H. Aden, Catherine Glenn Foster, Alliance Defending Freedom, Washington, DC; Stephen Daniel Casey, Esq., Attorney, Casey Law Office, P.C., Round Rock, TX; Natalie Lynn Decker, Alliance Defending Freedom, Greenwood Village, CO; Catherine Wynne Short, Life Legal Defense Foundation, Ojai, CA; Gregory R. Terra, Texas Center for Defense of Life, Georgetown, TX.

For Women Injured by Abortion, Dawn Milberger, Amici Curiae: Allan Edward Parker Jr., Justice Foundation, San Antonio, TX.

For Charles Anderson, Dennis Bonnen, Greg Bonnen, Giovanni Capriglione, John E. Davis, Pat Fallon, Allen Fletcher, James Frank, Bryan Hughes, Stephanie Klick, George Lavender, Jim Murphy, John Otto, Tan Parker, Larry Phillips, Jim Pitts, Scott Sanford, Matt Schaefer, Jonathan Stickland, Ed Thompson, Steve Toth, Scott Turner, Bill Zedler, Rodney Anderson, Wayne Faircloth, Mark Keough, Brooks Landgraf, Dade Phelan, Matt Rinaldi, Mike Schofield, Matt Shaheen, Stuart Spitzer, Molly S. White, John Wray, Brian Birdwell, Donna Campbell, Brandon Creighton, Troy Fraser, Glenn Hegar, Jr., Eddie Lucio, Jr., Jane Nelson, Bob Hall, Don Huffines, Texas Eagle Forum, Association of American Physicians & Surgeons, Incorporated, Texas Right to Life, Eagle Forum Education And Legal Defense Fund, Van Taylor, Amici Curiae: Lawrence John Joseph, Washington, DC.

For Planned Parenthood Center For Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Amici Curiae: Carrie Yvette Flaxman, Planned Parenthood Federation of America, Washington, DC.

For American College of Obstetricians And Gynecologists, American Medical Association, Amici Curiae: Kimberly A. Parker, WilmerHale, Washington, DC.

Before PRADO, ELROD, and HAYNES, Circuit Judges.

OPINION

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PER CURIAM:

Plaintiffs, Texas abortion providers, sued State of Texas officials (" the State" )1 seeking declaratory and injunctive relief against the enforcement of recent amendments to Texas's law regulating abortions. See 2013 Texas House Bill No. 2 (" H.B. 2" ).2 Plaintiffs challenge H.B. 2's physician admitting privileges requirement as applied to a McAllen and an El Paso abortion facility. Plaintiffs also challenge H.B. 2's requirement that abortion facilities satisfy the standards set for ambulatory surgical centers facially and as applied to the McAllen and El Paso abortion facilities.

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The district court enjoined enforcement of both requirements " as applied to all women seeking a previability abortion," and as applied to the McAllen and El Paso abortion facilities. Whole Woman's Health v. Lakey, 46 F.Supp.3d 673, 676 (W.D. Tex. 2014) (emphasis added). The State appeals the entry of declaratory and injunctive relief.3 Plaintiffs cross-appeal the dismissal of their additional equal-protection and unlawful-delegation claims.

After carefully considering the record in light of the parties' extensive written and oral arguments, we AFFIRM the district court's dismissal of the Plaintiffs' equal-protection and unlawful-delegation claims, AFFIRM in part and MODIFY in part the district court's injunction of the admitting privileges and ASC requirements as applied to McAllen, VACATE the district court's injunction of the admitting privileges requirement as applied to " all women seeking a previability abortion," and REVERSE the district court's facial injunction of the ASC requirement, injunction of the ASC requirement in the context of medication abortion, and injunction of the admitting privileges and ASC requirements as applied to El Paso.

In plain terms, H.B. 2 and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court's injunction of the ASC requirement as applied to the Whole Woman's Health abortion facility in McAllen, Texas, and to uphold the district court's injunction of the admitting privileges requirement as applied to Dr. Lynn when he is working at the McAllen facility.

I. Jurisprudential Background

So that our decision may benefit from a full understanding of the pertinent historical and jurisprudential context, we begin by reviewing the regulation of abortion and related Supreme Court cases.

A . Roe v. Wade

The Supreme Court's modern abortion jurisprudence began in 1973 with the landmark case Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). As with the case before us, Roe dealt with a challenge to Texas's regulation of abortion. Texas's penal code made it a crime punishable by imprisonment to procure or attempt to procure an abortion unless medically necessary to save the life of the mother. Id. at 117-18 & n.1. Unlike the law presently challenged, the Texas law was not of recent vintage. First enacted in 1854 with few substantial modifications, it was a century old at the time of Roe. See id. at 116, 119. Nor was Texas's law unique; a majority of the states had similar laws. See id. at 116, 118 & n.2.

Reviewing Texas's statute against a backdrop of varying...

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