Planned Parenthood of Greater Tex. Surgical Health Servs., Planned Parenthood Ctr. for Choice, Planned Parenthood Sexual Healthcare Servs., Planned Parenthood Women's Health Ctr., Whole Woman's Health, Austin Women's Health Ctr. Killeen Health Ctr., Sw. Women's Surgery Ctr., W. Side Clinic, Inc. v. Abbott

Decision Date28 October 2013
Docket NumberCause No. 1:13–CV–862–LY.
Citation951 F.Supp.2d 891
PartiesPLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, Planned Parenthood Center for Choice, Planned Parenthood Sexual Healthcare Services, Planned Parenthood Women's Health Center, Whole Woman's Health, Austin Women's Health Center Killeen Health Center, Southwestern Women's Surgery Center, West Side Clinic, Inc., 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, Plaintiffs, v. Gregory ABBOTT, Attorney General of Texas; David Lakey, M.D., Commissioner of the Texas Department of State Health Services; and Mari Robinson, Executive Director of the Texas Medical Board, Defendants.
CourtU.S. District Court — Western District of Texas

OPINION TEXT STARTS HERE

Held Unconstitutional

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

Unconstitutional as Applied

V.T.C.A., Health & Safety Code §§ 171.063, (a)(2), (b-f), 171.064.

Alice Clapman, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, Elizabeth Rose Von Kreisler, R. James George, Jr., Rico Reyes, George Brothers Kincaid & Horton, LLP, Austin, TX, Brigitte Amiri, Renee Paradis, American Civil Liberties Union Foundation Reproductive Freedom Project, Esha Bhandari, Janet Crepps, Jennifer Sokoler, New York, NY, Rebecca L. Robertson, American Civil Liberties Union of Texas, Houston, TX, for Plaintiffs.

Andrew S. Oldham, Beth Klusmann, Gunnar P. Seaquist, John B. Scott, Jonathan F. Mitchell, Michael P. Murphy, Philip A. Lionberger, Office of the Attorney General, Arthur C. D'Andrea, Assistant Solicitor General, Austin, TX, for Defendants.

MEMORANDUM OPINION INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEE YEAKEL, District Judge.

The Second Called Session of the 83rd Texas Legislature passed [an act] relating to the regulation of abortion procedures, providers, and facilities [and] providing penalties.” Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1–12, 2013 Tex. Sess. Law Serv. 4795–4802 (to be codified at Tex. Health & Safety Code §§ 171.0031, 171.041–048, 171.061–064, & amending §§ 245.010–.011; Tex. Occ.Code amending §§ 164.052 & 164.055) (“House Bill 2” or the “act”). The Texas Governor approved the act, and, as pertinent here, the act takes effect October 29, 2013.

Plaintiffs Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, Planned Parenthood Sexual Healthcare Services, Planned Parenthood Women's Health Center, Whole Woman's Health, Austin Women's Health, Austin Women's Health Center, Killeen Women's Health Center, Southwestern Women's Surgery Center, West Side Clinic, Inc., Routh Street Women's Clinic, Houston Women's Clinic, Alan Braid, M.D., Lamar Robinson, M.D., and Pamela Richter, D.O., all providers of abortion services, bring this action on behalf of themselves, their physicians, and their patients, complaining that certain provisions of the act should be declared unconstitutional.1

Planned Parenthood also seeks a permanent injunction, enjoining Gregory Abbott, Attorney General of Texas, David Lakey, M.D., Commissioner of the Texas Department of State Health Services, and Mari Robinson, Executive Director of the Texas Medical Board (collectively, the State), from enforcing those provisions of the act.2

Planned Parenthood asserts that two provisions of the act fail constitutional review and must be held unenforceable—those that mandate that a physician performing or inducing an abortion “must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is not further than 30 miles from the location of the abortion” and those that place restrictions on medication abortions.

Today there is no issue that divides the people of this country more than abortion. It is the most divisive issue to face this country since slavery. When compared with the intensity, emotion, and depth of feeling expressed with regard to abortion, the recent arguments on affordable healthcare, increasing the debt ceiling, and closing the government retreat to near oblivion. Sincere and caring persons of good will are found on both sides of the issue, but neither side will ever change the position of the other. Legislatures and courts will continue to be confounded by the issue for the foreseeable future. No ruling of this court will sway the opinion regarding abortion held by anyone. And, indeed, that is not the role of this court. The court may not and will not decide whether there should be abortions in Texas. This court is charged only with determining whether certain provisions of House Bill 2 are consistent with the Constitution of the United States under existing Supreme Court precedent.

Although the Texas Legislature passed House Bill 2 July 12 and had debated the act at length during the legislature's First Called Session, thus making the act's provisions well known, Planned Parenthood waited until September 26 to challenge the act. Due to the importance of the issues and the public interest in the act, and because the challenged provisions of House Bill 2 take effect October 29, this court determined to dispense with hearing Planned Parenthood's request for a preliminary injunction and consolidated that request with trial on the merits. Fed.R.Civ.P. 65(a)(2). The parties in open court waived a jury trial.

Three established principles govern this court's consideration of House Bill 2: (1) Before fetal viability, a woman has a right to terminate her pregnancy. (2) A law designed to further the State's interest in fetal life which imposes an undue burden on a woman's decision before fetal viability is unconstitutional. A state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus is an undue burden. (3) After fetal viability, the State, in promoting its interest in the potentiality of human life, may regulate or proscribe abortion, except where it is necessary for the preservation of the life or health of the mother. Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (internal citations and quotations omitted) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Roe v. Wade, 410 U.S. 113, 164–65, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)).

Having carefully considered the parties' briefing, stipulations, exhibits, trial testimony, arguments of counsel, and the applicable law 3, the court concludes: (1) the act's admitting-privileges provision is withouta rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, and (2) the act's provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. In so deciding, the court makes the following findings of fact and conclusions of law.4

I. STANDING

At the threshold, the State challenges Planned Parenthood's standing to bring this action. [T]he term standing subsumes a blend of constitutional requirements and prudential considerations.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). To meet the constitutional requirements, a plaintiff must have suffered an injury in fact caused by the challenged government conduct and likely to be redressed by the relief sought. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In addition to the constitutional requirements, the Supreme Court also has applied certain prudential principles in determining whether litigants have standing. Valley Forge Christian Coll., 454 U.S. at 474–75, 102 S.Ct. 752;see also Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1176 (5th Cir.1993). A plaintiff must assert his legal rights and interests, and his complaint must fall within “the zone of interests” to be protected or regulated by the statute or constitutional guarantee in question. Valley Forge Christian Coll., 454 U.S. at 474–75, 102 S.Ct. 752.

The Supreme Court has consistently reviewed the substance of constitutional challenges to abortion-related statutes without specifically addressing a plaintiff's standing. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007); Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). That abortion providers may raise constitutional challenges to state statutes that seek to regulate abortions is now so well established in our jurisprudence it is axiomatic.

The court concludes that Planned Parenthood has standing to assert the claims alleged in this action.

II. ADMITTING PRIVILEGES

Planned Parenthood attacks certain provisions of Section 2 of the act, which assess a criminal penalty against a physician performing an abortion who does not have certain hospital admitting privileges. Section 2 would amend the Texas Health & Safety Code to provide a new Section 171.0031. Although pleaded somewhat generally, the court construes Planned Parenthood to assert that the proposed code provision Section 171.0031(a)(1) fails constitutional review. The provision provides that a physician performing or inducing an abortion:

(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:

(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and

(B) provides obstetrical or gynecological health care services....

Planned Parenthood also objects to...

To continue reading

Request your trial
24 cases
  • Whole Woman's Health v. Cole
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 9, 2015
    ...the district court granted relief to the plaintiffs in part, see Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 909 (W.D.Tex.2013), and we first granted a stay, see Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I ), 734 ......
  • Whole Woman's Health v. Hellerstedt
    • United States
    • United States Supreme Court
    • June 27, 2016
    ...In late October, the District Court granted the injunction. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 901 (W.D.Tex.2013). But three days later, the Fifth Circuit vacated the injunction, thereby permitting the provision to take effect. Planned Pa......
  • De Leon v. Perry, Cause No. SA–13–CA–00982–OLG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 26, 2014
    ...have their out-of-state same-sex marriage recognized in Texas. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 901 (W.D.Tex.2013) (enjoining enforcement of a provision that required abortion providers to have hospital privileges within thirty mile......
  • Tex. v. Becerra
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • August 23, 2022
    ...constitutionality of admitting privileges for abortion clinics); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 899-900 (W.D. Tex. 2013) (same), rev'd in part, 748 F.3d 583 (5th Cir. 2014). Even in these cases, however, it is far from clear that cour......
  • Request a trial to view additional results
2 firm's commentaries
  • Dobbs Would Likely Have Significant Impacts On Drug And Device Companies
    • United States
    • LexBlog United States
    • June 2, 2022
    ...use and an Oklahoma statute on all use. In discussing Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 951 F. Supp. 2d 891 (W. D. Tex. 2013), we focused on the court’s endorsement of the “off-label protocol” for RU-486 (mifepristone), which was approved as an abortifa......
  • Dobbs Would Likely Have Significant Impacts On Drug And Device Companies
    • United States
    • LexBlog United States
    • June 2, 2022
    ...use and an Oklahoma statute on all use. In discussing Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 951 F. Supp. 2d 891 (W. D. Tex. 2013), we focused on the court’s endorsement of the “off-label protocol” for RU-486 (mifepristone), which was approved as an abortifa......
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT