Whole Woman's Health v. Paxton

• Decision Date: 18 August 2021
• Docket Number: No. 17-51060,17-51060
• Citation: 10 F.4th 430
• Parties: WHOLE WOMAN'S HEALTH, on behalf of itself, its staff, physicians and patients; Planned Parenthood Center for Choice, on behalf of itself, its staff, physicians, and patients; Planned Parenthood of Greater Texas Surgical Health Services, on behalf of itself, its staff, physicians, and patients; Planned Parenthood South Texas Surgical Center,on behalf of itself, its staff, physicians, and patients; Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff, physicians, and patients, doing business as Alamo Women's Reproductive Services; Southwestern Women's Surgery Center, on behalf of itself, its staff, physicians, and patients; Curtis Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe, M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients; Alan Braid, M.D., on his own behalf and on behalf of his patients; Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her patients, Plaintiffs—Appellees, v. Ken PAXTON, Attorney General of Texas, in his official capacity; Sharen Wilson, Criminal District Attorney for Tarrant County, in her official capacity; Barry Johnson, Criminal District Attorney for McLennan County, in his official capacity, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

10 F.4th 430

WHOLE WOMAN'S HEALTH, on behalf of itself, its staff, physicians and patients; Planned Parenthood Center for Choice, on behalf of itself, its staff, physicians, and patients; Planned Parenthood of Greater Texas Surgical Health Services, on behalf of itself, its staff, physicians, and patients; Planned Parenthood South Texas Surgical Center,on behalf of itself, its staff, physicians, and patients; Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff, physicians, and patients, doing business as Alamo Women's Reproductive Services; Southwestern Women's Surgery Center, on behalf of itself, its staff, physicians, and patients; Curtis Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe, M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients; Alan Braid, M.D., on his own behalf and on behalf of his patients; Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her patients, Plaintiffs—Appellees,

v.Ken PAXTON, Attorney General of Texas, in his official capacity; Sharen Wilson, Criminal District Attorney for Tarrant County, in her official capacity; Barry Johnson, Criminal District Attorney for McLennan County, in his official capacity, Defendants—Appellants.

No. 17-51060

United States Court of Appeals, Fifth Circuit.

FILED August 18, 2021

Julie Rikelman, Esq., Molly Rose Duane, Rabia Muqaddam, Esq., Jiaman Wang, Center for Reproductive Rights, U.S. Litigation, New York, NY, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, for Plaintiff - Appellee Whole Woman's Health.

Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, for Plaintiffs - Appellees Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, and Planned Parenthood South Texas Surgical Center.

Julie Rikelman, Esq., Molly Rose Duane, Rabia Muqaddam, Esq., Jiaman Wang, Center for Reproductive Rights, U.S. Litigation, New York, NY, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, for Plaintiffs - Appellees Alamo City Surgery Center, P.L.L.C., Southwestern Women's Surgery Center, Bhavik Kumar, M.D., M.P.H., Alan Braid, M.D., and Robin Wallace, M.D., M.A.S.

Molly Rose Duane, Rabia Muqaddam, Esq., Jiaman Wang, Center for Reproductive Rights, U.S. Litigation, New York, NY, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, New York, NY, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell, P.L.L.C., Austin, TX, for Plaintiffs - Appellees Curtis Boyd, M.D., and Jane Doe, M.D., M.A.S.

Beth Ellen Klusmann, Esq., Office of the Attorney General for the State of Texas, Austin, TX, Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendant - Appellant Ken Paxton.

Christopher D. Hilton, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants - Appellants Sharen Wilson and Barry Johnson.

Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund.

Elissa Graves, Alliance Defending Freedom, Scottsdale, AZ, for Amicus Curiae Alliance Defending Freedom.

Herbert W. Titus, Esq., Vienna, VA, for Amici Curiae Conservative Legal Defense and Education Fund, Eleanor McCullen, Pro-Life Legal Defense Fund, Transforming Word Ministries, Pass the Salt Ministries, and Restoring Liberty Action Committee.

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Amici Curiae Jeffrey Martin Landry, Esq., Steve Marshall, Mark Brnovich, Leslie Rutledge, Pamela Jo Bondi, Christopher M. Carr, Lawrence G. Wasden, Curtis T. Hill, Jr., Derek Schmidt, Governor Matthew Bevin, Governor Paul LePage, Governor Tate Reeves, Joshua D. Hawley, Timothy C. Fox, Doug Peterson, Adam Paul Laxalt, Wayne Stenehjem, Michael DeWine, Mike Hunter, Alan Wilson, Marty Jackley, Sean D. Reyes, Patrick Morrisey, Brad D. Schimel, State of Louisiana, State of Alabama, State of Alaska, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Kentucky, State of Mississippi, State of Missouri, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of Tennessee, State of Utah, State of West Virginia, State of Colorado, State of Maine, State of Michigan, State of Minnesota, State of Nevada, State of New Mexico, State of Rhode Island.

Janice Mac Avoy, Alexis Casamassima, Fried, Frank, Harris, Shriver & Jacobson, L.L.P., New York, NY, for Amici Curiae American College of Obstetricians and Gynecologists and American Medical Association.

Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Washington, DC, for Amicus Curiae International and Comparative Law Scholars.

Stuart Sarnoff, O'Melveny & Myers, L.L.P., New York, NY, for Amicus Curiae Biomedical Ethicists.

Joseph Spadola, New York State, Office of the Attorney General, Albany, NY, for Amici Curiae State of New York, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Maryland, State of Massachusetts, State of New Jersey, State of Oregon, State of Pennsylvania, State of Vermont, State of Virginia, State of Washington, and State of District of Columbia.

Elaine Goldenberg, Munger, Tolles & Olson, L.L.P., Washington, DC, for Amici Curiae Lee C. Bollinger, Erwin Chemerinsky, Walter Dellinger, Michael C. Dorf, Daniel Farber, Joanna Grossman, Pamela S. Karlan, Leah Litman, Gillian Metzger, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence H. Tribe, and Mary Ziegler.

Before Owen, Chief Judge, and Jones, Smith, Stewart, Dennis, Elrod, Haynes, Graves, Higginson, Costa, Willett, Ho, Engelhardt, and Wilson, Circuit Judges.^*

Jennifer Walker Elrod and Don R. Willett, Circuit Judges, joined by Owen, Chief Judge, and Jones, Smith, Haynes, Ho, Engelhardt, and Wilson, Circuit Judges:^**

We must decide whether the district court erred in permanently enjoining Texas's Senate Bill 8 (SB8), which prohibits a particular type of dilation and evacuation (D&E) abortion method. SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods.

The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions. But viewing SB8 through a binary framework—that either D&Es can be done only by live dismemberment or else women cannot receive abortions in the second trimester—is to accept a false dichotomy. Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use. In permanently enjoining SB8, the district court committed numerous, reversible legal and factual errors: applying the wrong test to assess SB8, disregarding and misreading the Supreme Court's precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart , and bungling the large-fraction analysis. Accordingly, we VACATE the district court's permanent injunction.

Moreover, remanding to the district court would be futile here because the record permits only one conclusion. The plaintiffs have failed to carry their heavy burden of proving that SB8 would impose an undue burden on a large fraction of women. We REVERSE and RENDER.

I.

Dilation and evacuation is an abortion method commonly used after the beginning of the 15th week. It begins with the dilation phase, which is lengthy and can take two or even three days to complete. First, the woman is given the option of conscious sedation and then is administered medication for dilation. If medication cannot alone cause sufficient dilation, the doctor injects a local anesthetic directly into the woman's cervix. After the cervix has been numbed, the doctor inserts osmotic dilators into the cervical canal, which absorb liquid and expand to allow the removal of the fetus and placenta. Starting around 18 weeks gestation, this expansion process normally happens overnight, requiring the woman to come back the next day for the rest of the abortion procedure.

Once sufficient dilation has occurred, the second phase begins and the doctor evacuates (removes) the fetus. Doctors use three main evacuation methods: (1) the suction method alone to terminate, separate, and remove the fetus; (2) suction and forceps together to terminate, separate, and remove the fetus; or (3) various fetal-death techniques (e.g. , digoxin

injections) to terminate the fetus before using forceps (sometimes combined with suction) to separate and remove the fetus. Unlike the dilation phase, evacuation is relatively brief and can be done in "a few minutes."

In 2017, the Texas legislature enacted SB8, which allows any abortion accomplished by dilation and suction alone (the first method) or accomplished by fetal death caused without forceps followed by evacuation with forceps (the third method), but regulates the second method by prohibiting a doctor from using forceps to separate the fetal tissue and thereby terminate the fetus via live dismemberment.¹ SB8 states:

A person may not intentionally perform a dismemberment abortion unless the

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