Planned Parenthood of Greater Tex. Surgical Health Servs. v. Attorney Gen. Gregory Abbott

• Decision Date: 27 March 2014
• Docket Number: No. 13–51008.,13–51008.
• Citation: 748 F.3d 583
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

748 F.3d 583

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.

Limited on Constitutional Grounds

V.T.C.A., Health & Safety Code § 171.0031(a)(1).

Negative Treatment Reconsidered

V.T.C.A., Health & Safety Code §§ 171.063, 171.064.

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, Rebecca L. Robertson, Attorney Houston, TX, Janet Crepps, Center for Reproductive Rights, Simpsonville, SC, Esha Bhandari, Center for Reproductive Rights, Brigitte Adrienne Amiri, Senior Attorney, Renee Paradis American Civil Liberties Union Foundation of New York New York, NY, for Plaintiffs–Appellees.

Jonathan F. Mitchell, Solicitor General, Office of the Solicitor General for the State of Texas, 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 Defendants–Appellants.

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

Before JONES, ELROD, and HAYNES, Circuit Judges.

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 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 consolidated the preliminary injunction and merits hearings. Waiving a jury trial, the parties consented to a bench proceeding in which Planned Parenthood presented a few witnesses and both sides offered numerous affidavits. On October 28, 2013, five days after the conclusion of the trial, the district court issued an opinion that would permanently enjoin the admitting-privileges provision and partially enjoin the medication abortion regulation.

The State noted its appeal and moved for an emergency stay of the district court's order. Within forty-eight hours, on October 31, this court responded to the parties' briefing and held that the State made a substantial showing of its likelihood of success on the merits of the admitting privileges requirement, and that it demonstrated likely success as to part of the district court's hand-crafted “health of the mother” exception to the medication abortion regulation. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 416, 418 (5th Cir.2013). Finding the other requirements for a stay pending appeal to be satisfied, the court of appeals stayed the district court's judgment in part. Id. at 419. The appeal was expedited for this court's full consideration of the merits. Id.

Planned Parenthood appealed to the Supreme Court for emergency relief. ⁵ In a five-four decision, with writings on both sides, the Court refused to vacate this court's stay. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, ––– U.S. ––––, 134 S.Ct. 506, 187 L.Ed.2d 465 (2013).

In this appeal, the State maintains that the district court erred in four respects: granting standing to abortion providers to assert physicians' and patients' rights vis-a-vis the issues raised; facially invalidating the admitting-privileges regulation; creating a “broad and vague ‘health’ exception” to the medication abortion regulations; and enforcing an injunction beyond the rights of the plaintiffs in this case. We address these issues in turn.

II. Preliminary Issues

A. Standards of Review

At the outset, we are confronted by the district court's pre-enforcement facial invalidation of these state law provisions in toto. Standard principles of constitutional adjudication require courts to engage in facial invalidation only if no possible application of the challenged law would be constitutional. See Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir.2013) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). This court applied the principle in Barnes v. Mississippi when construing a Mississippi abortion statute. 992 F.2d 1335, 1342 (5th Cir.1993). However, whether the Supreme Court applies this rule in the same way in abortion cases as in others is uncertain. In Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), the Court noted the implication in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), that an abortion-regulating statute would fail constitutional muster if it erected an undue burden on women's decisions to choose abortion in a “large fraction” of cases. As in the stay opinion, we will apply the “large fraction” nomenclature for the sake of argument only, withoutcasting doubt on the general rule. Cf. Abbott, 734 F.3d at 414.

To assess the court's rendition of injunctive relief, we review its legal conclusions de novo, factfindings for clear error, and the ultimate decision to enjoin enforcement of H.B. 2 for abuse of discretion. Voting for Am., 732 F.3d at 386.

We also must consider the proper place of H.B. 2's comprehensive and careful severability provision, to which the district court barely referred. Federal courts are bound to apply state law severability provisions. Leavitt v. Jane L., 518 U.S. 137, 138–39, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996). Even when considering facial invalidation of a state statute, the court must preserve the valid scope of the provision to the greatest extent possible. Later as-applied challenges can always deal with subsequent, concrete constitutional issues.

B. Standing

The district court ruled perfunctorily that abortion providers have never been denied standing to assert the rights of patients. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 897 (W.D.Tex.2013). The rule for third-party standing requires the named plaintiff to have suffered an injury in fact and to share a “close” relationship with third-parties who face an obstacle inhibiting them from bringing the claim on their own behalf. Kowalski v. Tesmer, 543 U.S. 125, 129–30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). Here, the requirements for third-party standing are met in relation to the claims asserted by the physician-plaintiffs on behalf of their patients because (1) the physicians face potential administrative and criminal penalties for failing to comply with H.B. 2,⁶ (2) doctors who perform abortions share a sufficiently close relationship with their patients,⁷ and (3) a pregnant woman seeking to assert her right to abortion faces obvious hindrances in timely now bringing a lawsuit to fruition.⁸ Because the physician-plaintiffs have third-party standing to assert the rights of their patients in this litigation, as well as standing to assert their own rights,⁹ we need not consider the issue of standing as it relates to the remaining plaintiffs. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Allandale Neighborhood Ass'n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258, 263 (5th Cir.1988).

C. Substantive Due Process Standard

A trio of widely-known Supreme Court decisions provides the framework for rulingon the constitutionality of H.B. 2. In Roe v. Wade, the Court held that the Fourteenth Amendment's concept of personal liberty encompasses a woman's right to end a pregnancy by...