Whole Woman's Health v. Paxton
| Decision Date | 13 October 2020 |
| Docket Number | No. 17-51060,17-51060 |
| Citation | 978 F.3d 896 |
| 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, Physician, 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.S., 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 |
Julie Rikelman, Esq., Rabia Muqaddam, Esq., Travis Tu, Senior Counsel, Center for Reproductive Rights, U.S. Litigation, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, 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, On Behalf of Itself, Its Staff, Physicians and Patients.
Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, 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, 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.
Julie Rikelman, Esq., Rabia Muqaddam, Esq., Travis Tu, Senior Counsel, Center for Reproductive Rights, U.S. Litigation, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, 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., 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, 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.
Rabia Muqaddam, Esq., Travis Tu, Senior Counsel, Center for Reproductive Rights, U.S. Litigation, Melissa Ann Cohen, Esq., Planned Parenthood Federation of America, Molly Rose Duane, Center for Reproductive Rights, U.S. Legal Program, 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., 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,
Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendant-Appellant Ken Paxton, Attorney General of Texas, In His Official Capacity.
Christopher D. Hilton, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendant-Appellant Sharen Wilson, Criminal District Attorney for Tarrant County, In Her Official Capacity, Barry Johnson, Criminal District Attorney for McLennan County, In His Official Capacity.
Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund.
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, Restoring Liberty Action Committee.
Elizabeth Baker Murrill, Esq., Assistant Attorney, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Amici Curiae Jeffrey Martin Landry, Esq., Attorney General of Louisiana, Steve Marshall, Attorney General of Alabama, Mark Brnovich, Attorney General of Arizona, Leslie Rutledge, Attorney General of Arkansas, Pamela Jo Bondi, Attorney General of Florida, Lawrence G. Wasden, Attorney General of Idaho, Curtis T. Hill, Jr., Attorney General of Indiana, Derek Schmidt, Attorney General of Kansas, Governor Matthew Bevin, The Commonwealth of Kentucky, Governor Paul LePage, The State of Maine, Governor Tate Reeves, State of Mississippi, Joshua D. Hawley, Attorney General of Missouri, Timothy C. Fox, Attorney General of Montana, Doug Peterson, Attorney General of Nebraska, Adam Paul Laxalt, Attorney General of Nevada, Wayne Stenehjem, Attorney General of North Dakota, Michael DeWine, Attorney General of Ohio, Mike Hunter, Attorney General of Oklahoma, Alan Wilson, Attorney General of South Carolina, Marty Jackley, Attorney General of South Dakota, Sean D. Reyes, Attorney General of Utah, Patrick Morrisey, Attorney General of West Virginia, Brad D. Schimel, Attorney General of Wisconsin.
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, 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.
Ester Murdukhayeva, Office of the Attorney General for the State of New York, New York, 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, 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, Mary Ziegler.
Before Stewart, Dennis, and Willett, Circuit Judges.
This appeal concerns the constitutionality of Texas Senate Bill 8 ("SB8" or "the Act"), a statute that requires a woman to undergo an additional and medically unnecessary procedure to cause fetal demise before she may obtain a dilation and evacuation (D&E) abortion, the safest and most common method of second trimester abortions
. A number of licensed abortion clinics and physicians that provide abortion care services challenged that law, arguing that it would impose an undue burden on a woman's right to obtain an abortion before fetal viability in violation of the Fourteenth Amendment's Due Process clause. The district court agreed, declared the Act facially unconstitutional, and permanently enjoined its enforcement. The State appealed. Because SB8 unduly burdens a woman's constitutionally-protected right to obtain a previability abortion, we AFFIRM.
In Texas and nationwide, a D&E abortion is the most common method of abortion after the first 15 weeks of pregnancy, as measured from a woman's last menstrual period (LMP).1 As its name suggests, D&E is a two-step procedure. First, in the dilation stage, a physician dilates a woman's cervix. Second, during the evacuation stage, the physician uses a combination of suction, forceps, or other instruments to remove the fetus through the dilated cervical opening. Because at 15 weeks LMP the fetus is larger than the dilated cervical opening, the fetal tissue usually separates as the physician moves it through the cervix, resulting in fetal demise. This stage takes approximately ten minutes.
On May 26, 2017, the Texas legislature enacted the abortion regulation SB8.2 See Act of May 26, 2017, 85th Leg. R.S., ch. 441, § 6, 2017 Tex. Gen. Laws 1164, 1165–67 (eff. Sept. 1, 2017) (codified as TEX. HEALTH & SAFETY CODE §§ 171.151 –.154). Relevant here, the Act states:
A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.3
Id. § 171.152. A "dismemberment abortion" is defined as:
an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child's body to cut or rip the piece from the body.
Id. § 171.151. Though SB8 does not use the term "dilation and evacuation" or "D&E," the parties do not dispute that the Act applies to a D&E abortion. Because fetal tissue separates as a physician removes it from...
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