Texas Med. Providers Performing Abortion Servs. v. Lakey

• Citation: 667 F.3d 570
• Decision Date: 10 January 2012
• Docket Number: No. 11–50814.,11–50814.
• Parties: TEXAS MEDICAL PROVIDERS PERFORMING ABORTION SERVICES, a class represented by Metropolitan OBGYN, P.A.; on behalf of itself and its patients seeking abortions, doing business as Reproductive Services of San Antonio; Alan Braid, on behalf of himself and his patients seeking abortions, Plaintiffs–Appellees, v. David LAKEY, 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.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

667 F.3d 570

TEXAS MEDICAL PROVIDERS PERFORMING ABORTION SERVICES, a class represented by Metropolitan OBGYN, P.A.; on behalf of itself and its patients seeking abortions, doing business as Reproductive Services of San Antonio; Alan Braid, on behalf of himself and his patients seeking abortions, Plaintiffs–Appellees,

v.David LAKEY, 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.

No. 11–50814.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 2012.

Julie Rikelman (argued), Bonnie Scott Jones, Center for Reproductive Rights, U.S. Legal Program, Joseph Alexander Lawrence, Jamie A. Levitt, Morrison & Foerster, L.L.P., New York City, Richard Alan Grigg, Spivey & Grigg, L.L.P., Austin, TX, Susan Lea Hays, Godwin Ronquillo, P.C., Dallas, TX, for Plaintiffs–Appellees.

Jonathan Franklin Mitchell, Sol. (argued), Arthur Cleveland D'Andrea, Office of the Sol. Gen. for the State of Texas, Austin, TX, for Defendants–Appellants.

Andrew Layton Schlafly, Far Hills, NJ, Paul Benjamin Linton, Northbrook, IL, Jeffrey Carl Mateer, Gen. Counsel, Liberty Legal Institute, Plano, TX, Walter Martin Weber, American Center for Law & Justice, Samuel Brown Casey, Gen. Counsel, Washington, DC, Allan Edward Parker, Jr., Justice Foundation, San Antonio, TX, Kathleen A. Cassidy Goodman, Law Office of Kathleen Cassidy Goodman, Helotes, TX, Gary G. Kreep, United States Justice Foundation, Ramona, CA, for Amici Curiae.Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

Physicians and abortion providers—collectively representing all similarly situated Texas Medical Providers Performing Abortion Services (“TMPPAS”)—sued the Commissioner of the Texas Department of State Health Services and the Executive Director of the Texas Medical Board (collectively “the State”) under 42 U.S.C. § 1983 for declaratory and injunctive relief against alleged constitutional violations resulting from the newly-enacted Texas House Bill 15 (“the Act”), an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg. Reg. Sess. (Tex.2011). The district court granted a preliminary injunction against four provisions for violating the First Amendment and three others for unconstitutional vagueness. We conclude, contrary to the district court, that Appellees failed to establish a substantial likelihood of success on any of the claims on which the injunction was granted, and therefore VACATE the preliminary injunction. For the sake of judicial efficiency, any further appeals in this matter will be heard by this panel.

Background

H.B. 15, passed in May 2011, substantially amended the 2003 Texas Woman's Right to Know Act (“WRKA”). The amendments challenged here are intended to strengthen the informed consent of women who choose to undergo abortions. The amendments require the physician “who is to perform an abortion” to perform and display a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. Tex. Health & Safety Code § 171.012(a)(4). A woman may decline to view the images or hear the heartbeat, § 171.0122(b), (c), but she may decline to receive an explanation of the sonogram images only on certification that her pregnancy falls into one of three statutory exceptions. Id. at § 171.0122(d).

Any woman seeking an abortion must also complete a form indicating that she has received the required materials, understands her right to view the requisite images and hear the heart auscultation, and chooses to receive an abortion. § 171.012(a)(5). The physician who is to perform the abortion must maintain a copy of this form, generally for seven years. Id. at § 171.0121(b)(1)-(2).

If a woman ultimately chooses not to receive an abortion, the physician must provide her with a publication discussing how to establish paternity and secure child support. § 171.0123.

Finally, the Act amended the Texas Occupations Code to deny or revoke a physician's license for violating these provisions. Tex. Occ.Code § 164.055(a). The Act went into effect on September 1, 2011, and was scheduled to apply to abortions after October 1, 2011.

Appellees filed suit on June 13, requesting a preliminary injunction shortly thereafter. Following extensive briefing, the district court preliminarily enjoined the disclosure provisions of the Act described above on the ground that they “compel speech” in violation of the First Amendment. The district court partially enjoined three other sections of the Act as void for vagueness: the phrase “the physician who is to perform the abortion,” certain situations in which the district court viewed the obligations of the physician and the rights of the pregnant woman as conflicting, and enforcement of the Act against physicians for failing to provide informational materials when they do not know that a woman elected not to have an abortion.

The State promptly appealed and sought a stay pending appeal, which the district court denied. A motions panel of this court carried with the case the motion to stay enforcement of the preliminary injunction, but also ordered expedited briefing and oral argument.

Stay of Appellate Review

Appellees urge this court to defer ruling on the preliminary injunction because the district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment. It is contended that our ruling on this interlocutory matter would become moot if the district court enters final judgment first, and that the district court will resolve issues not raised or decided at the preliminary phase. We decline to defer. First, this ruling will offer guidance to the district court, which is particularly important given our different view of the case. Second, the unresolved issues below are of secondary importance. Third, Appellees do not assert that fact issues pertinent to our ruling remain insufficiently developed.

Standard of Review

“To be entitled to a preliminary injunction, the applicant [s] must show (1) a substantial likelihood that [they] will prevail on the merits, (2) a substantial threat that [they] will suffer irreparable injury if the injunction is not granted, (3) [their] substantial injury outweighs the threatened harm to the party whom [they] seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Bluefield Water Ass'n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252–53 (5th Cir.2009) (internal citation omitted). “We have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion on all four requirements.’ ” Id. (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir.2003)). An “absence of likelihood of success on the merits is sufficient to make the district court's grant of a preliminary injunction improvident as a matter of law.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir.2003). We review legal conclusions made with respect to a preliminary injunction grant de novo. Bluefield Water Ass'n, 577 F.3d at 253.

Discussion

I. First Amendment

Appellees contend that H.B. 15 abridges their First Amendment rights by compelling the physician to take and display to the woman sonogram images of her fetus, make audible its heartbeat, and explain to her the results of both exams. This information, they contend, is the state's “ideological message” concerning the fetal life that serves no medical purpose, and indeed no other purpose than to discourage the abortion. Requiring the woman to certify the physician's compliance with these procedures also allegedly violates her right “not to speak.” In fashioning their First Amendment compelled speech arguments, which the district court largely accepted, Appellees must confront the Supreme Court's holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), that reaffirmed a woman's substantive due process right to terminate a pregnancy but also upheld an informed-consent statute over precisely the same “compelled speech” challenges made here. Following Casey, an en banc decision of the Eighth Circuit has also upheld against a compelled speech attack another informed consent provision regulating abortion providers. Planned Parenthood Minnesota, et al. v. Rounds, 653 F.3d 662 (8th Cir.2011).¹ We begin this analysis with Casey.

The law at issue in Casey required an abortion provider to inform the mother of the relevant health risks to her and the “probable gestational age of the unborn child.” Casey, 505 U.S. at 881, 112 S.Ct. at 2822. The woman also had to certify in writing that she had received this information and had been informed by the doctor of the availability of various printed materials “describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion.”² Id. Planned Parenthood contended that all of these disclosures operate to discourage abortion and, by compelling the doctor to deliver them, violated the physician's First Amendment free-speech rights. Planned Parenthood urged application of the strict scrutiny test governing certain First Amendment speech rights. See Brief of Petitioners, 1992 WL 551419, at *54.

The Casey plurality's opinion concluded that such provisions, entailing “the giving of truthful, nonmisleading information” which is “relevant ......