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In the United States District Court for the Western District of Texas Austin Division

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In the United States District Court for the Western District of Texas Austin Division Case 1:18-cv-00500-LY Document 31-1 Filed 08/27/18 Page 1 of 88 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION WHOLE WOMAN’S HEALTH § ALLIANCE, et al., § § Plaintiffs, § Civil Action No. 1:18-cv-00500-LY § v. § § KEN PAXTON, et al., § § Defendants. § § 1 DEFENDANTS’0F MOTION TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6) 1 Defendants Ken Paxton, Attorney General of Texas; Cecile Young, Acting Ex- ecutive Commissioner of the Texas Health & Human Services Commission; John W. Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services; and Scott Freshour, Interim Executive Director of the Texas Medical Board, jointly file this Motion in their official capacities. Case 1:18-cv-00500-LY Document 31-1 Filed 08/27/18 Page 2 of 88 TABLE OF CONTENTS Page Index of Authorities ...................................................................................................... iii Introduction ................................................................................................................... 1 Statement of Facts ......................................................................................................... 1 I. The Court Lacks Subject-Matter Jurisdiction. ...................................................... 5 A. Plaintiffs lack standing to bring a substantive due process claim. ............... 7 1. The Provider Plaintiffs do not have standing to assert claims on behalf of their patients. ............................................................................ 8 2. The Fund Plaintiffs lack standing on behalf of their “clients.” ........... 13 3. Plaintiffs lack standing as abortion providers or abortion funders under the substantive due process clause. .............................. 14 4. Alternatively, Plaintiffs cannot satisfy the Article III requirements of injury-in-fact, traceability, and redressability, and lack standing for that additional reason. ....................................... 16 5. Plaintiffs lack standing to challenge nearly all of Texas’s abortion-related laws and regulations collectively. .............................. 19 B. Plaintiffs lack standing to bring their equal protection claim. .................... 23 C. Plaintiffs’ challenges to criminal, civil, and administrative penalty provisions are unripe. .................................................................................... 24 D. The Court lacks jurisdiction over Plaintiffs’ vagueness and unconstitutional conditions claims against State Defendants. ................... 27 II. Plaintiffs Failed to State a Claim Against the State Defendants. ..................... 27 A. Plaintiffs failed to state a claim against Defendant Hellerstedt ................. 28 B. Plaintiffs failed to state a substantive due process claim. ........................... 29 1. “Collective” Undue Burden .................................................................... 33 2. Regulation of Abortion Providers and Clinics ....................................... 36 a. Physician-Only Requirement .......................................................... 36 b. Facility-Licensure Requirements ................................................... 38 c. ASC Requirement ............................................................................ 43 d. Reporting requirements .................................................................. 44 3. Medication Abortion ............................................................................... 45 a. Dosage and administration restrictions ......................................... 45 b. Physician examination requirement .............................................. 46 Case 1:18-cv-00500-LY Document 31-1 Filed 08/27/18 Page 3 of 88 c. Manufacturer’s label distribution requirement ............................. 47 d. Follow-up visit requirement ........................................................... 48 e. Telemedicine and Telehealth Restriction ....................................... 49 4. Information requirements ...................................................................... 50 a. State-mandated information .......................................................... 51 b. State printed-materials requirement ............................................. 53 c. Ultrasound requirement ................................................................. 54 d. Waiting period requirement ........................................................... 56 e. Procedural requirements ................................................................ 57 5. Parental Involvement Laws ................................................................... 58 a. Notice and waiting period ............................................................... 59 b. Identification ................................................................................... 60 c. Consent ............................................................................................ 61 d. Procedural Requirements ............................................................... 62 e. Reporting requirements .................................................................. 67 6. Criminal Penalties ................................................................................. 67 C. Plaintiffs failed to state an equal-protection claim. ..................................... 68 D. Plaintiffs failed to state a free-speech claim. ............................................... 70 Conclusion .................................................................................................................... 73 Certificate of Service .................................................................................................... 75 ii Case 1:18-cv-00500-LY Document 31-1 Filed 08/27/18 Page 4 of 88 INDEX OF AUTHORITIES Page(s) Cases Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ................................................................................................ 15 AIDS Healthcare Found., Inc. v. City of Baton Rouge/Par. of E. Baton Rouge, No. CV 17-00229-BAJ-RLB, 2017 WL 2899689 (M.D. La. July 7, 2017) ........................................................................................... 11 Allen v. Wright, 468 U.S. 737 (1984) ................................................................................................ 22 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 28, 31 Ass’n for Retarded Citizens of Dall. v. Dall. Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994) .................................................................................... 16 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983) ................................................................................................ 33 Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006) ............................................................................................ 4, 59 Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992) .............................................................................. 35, 57 Barnes v. State of Miss., 992 F.2d 1335 (5th Cir. 1993) ............................................................................ 5, 35 Barrera–Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996) ...................................................................................... 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................ 28, 31, 32, 43, 70 Bellotti v. Baird, 443 U.S. 622 (1979) ................................................................................................ 50 Calzone v. Hawley, 866 F.3d 866 (8th Cir. 2017) .................................................................................. 62 Canfield Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745 (5th Cir. 1988) ............................................................................. 10-11 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) ................................................................................................ 13 iii Case 1:18-cv-00500-LY Document 31-1 Filed 08/27/18 Page 5 of 88 Choice Inc. of Tex. v. Greenstein, 691 F.3d 710 (5th Cir. 2012) ...................................................................... 25, 26, 27 City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983) .................................................................................... 37, 51, 54 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ............................................................................................ 6, 17 Colautti v. Franklin, 439 U.S. 379 (1979) ................................................................................................ 51 Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam) ............................................................................... 37 Crawford v. Marion Cty. Elec. Bd., 553 U.S. 181 (2008) ................................................................................................ 61 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .................................................................................... 19, 21, 22 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) .............................................................................................. 10, 13 FCC v. Beach Commc’ns,
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