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In the United States Court of Appeals for the Fifth Circuit ______

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In the United States Court of Appeals for the Fifth Circuit ______ Case: 14-50928 Document: 00512752359 Page: 1 Date Filed: 08/31/2014 No. 14-50928 In the United States Court of Appeals for the Fifth Circuit _____________ Whole Woman’s Health; Austin Women’s Health Center; Killeen Women’s Health Center; Nova Health Systems d/b/a Reproductive Services; Sherwood C. Lynn, Jr., M.D.; Pamela J. Richter, D.O.; and Lendol L. Davis, M.D., on behalf of themselves and their patients, Plaintiffs-Appellees, v. David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board, Defendants-Appellants. _____________ On Appeal from the United States District Court for the Western District of Texas, Austin Division Case No. 1:14-cv-284-LY _____________ Emergency Motion To Stay Final Judgment Pending Appeal And Motion For Expedited Consideration _____________ Greg Abbott Jonathan F. Mitchell Attorney General of Texas Solicitor General Daniel T. Hodge James D. Blacklock First Assistant Attorney General Deputy Attorney General for Legal Counsel Office of the Attorney General P.O. Box 12548 (MC 059) Beth Klusmann Austin, Texas 78711-2548 Michael P. Murphy (512) 936-1700 Assistant Solicitors General Counsel for Appellants Case: 14-50928 Document: 00512752359 Page: 2 Date Filed: 08/31/2014 Nature of Emergency At 4:45 P.M. on Friday—three days before the law was to take effect—the dis- trict court enjoined multiple provisions of Texas House Bill 2 in a sweeping order that fails to recognize or apply the binding precedents of this Court and the Su- preme Court. Without so much as mentioning the “large fraction” standard that applies in this Circuit to pre-enforcement facial challenges to abortion regulations, the district court’s judgment facially invalidates HB2’s requirement that abortion clinics meet the regulatory standards for ambulatory surgical centers. The court al- so blocked HB 2’s admitting-privileges requirement—previously upheld by this Court—as applied to the plaintiff abortion clinics. Beyond that, the court’s judg- ment seems to bar enforcement of the admitting-privileges requirement of HB 2 on a statewide basis, even though the plaintiffs did not ask for this relief and could not plausibly have asked for it after this court’s decision in Planned Parenthood of Great- er Texas Surgical Health Services v. Abbott, 748 F.3d 583 (5th Cir. 2014) (Abbott II), which overturned the district court’s previous statewide injunction against the ad- mitting-privileges law. In holding these provisions unconstitutional, the district court failed even to mention (much less follow) precedent from the Supreme Court and this Court re- garding the applicable legal test for facial challenges to abortion regulations—the “large fraction” test. In its place, the district court substituted its own “significant number” test, which has no basis in existing law. The district court also refused to apply this Court’s recent holding that travel distances of 150 miles do not consti- i Case: 14-50928 Document: 00512752359 Page: 3 Date Filed: 08/31/2014 tute an undue burden. See Abbott II, 748 F.3d at 599. And in contravention of the Supreme Court’s instructions in Mazurek v. Armstrong, 520 U.S. 968 (1997), the district court purported to find an improper legislative purpose based not on the actions or statements of legislators (of which there was no evidence at trial), but on legal positions taken by the State’s counsel in litigation and rules adopted by an ex- ecutive-branch state agency. All of these precedents were cited repeatedly by the State, yet the district court failed to follow any of them. This Court should not countenance the district court’s failure to recognize and apply the law of the Supreme Court and this circuit. Allowing this judgment to re- main in effect pending appeal would not only perpetuate legal error—it would give effect, even if only for a short time, to a lower court’s decision to ignore the prece- dent of this Court and the Supreme Court. The judgment should be stayed imme- diately pending appeal. * * * On July 18, 2013, the Governor signed into law House Bill 2 (HB2).1 HB2 con- tains four provisions regulating abortions: it bans abortion after 20 weeks post- fertilization, requires drug-induced abortions to follow the protocol established by the FDA, requires abortion practitioners to hold admitting privileges at a hospital within 30 miles of where the abortion is performed, and requires abortion clinics operating after September 1, 2014, to meet the standards of ambulatory surgical centers (ASCs). HB2 includes a “comprehensive and careful severability provi- 1 Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1, 2013 Tex. Gen. Laws 4795. ii Case: 14-50928 Document: 00512752359 Page: 4 Date Filed: 08/31/2014 sion,” Abbott II, 748 F.3d at 589, which requires reviewing courts to sever not only the textual provisions of HB2, but also the statute’s applications to individual abor- tion providers and patients. See HB2, § 10(b). HB2 was scheduled to take effect on October 29, 2013. On September 27, 2013, the plaintiffs filed a lawsuit that challenged only the admitting-privileges requirement and the regulations of abortion-inducing drugs. The plaintiffs demanded total, across-the-board invalidation of the admitting- privileges requirement, and declined to request a more limited remedy that would enjoin the admitting-privileges law only as applied to abortion practitioners who could prove that the law would impose an “undue burden” on their patients. The district court enjoined the admitting-privileges requirement across the board, but a motions panel stayed that decision pending appeal. See Planned Parenthood of Great- er Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (Abbott I). The merits panel reversed the district court, rejecting the plaintiffs’ facial chal- lenge to HB2’s admitting-privileges requirement. See Abbott II, 748 F.3d at 600. On April 2, 2014, the plaintiffs filed a second lawsuit that renews their chal- lenge to the admitting-privileges rule. This time the plaintiffs sought only a limited remedy that would enjoin the admitting-privileges law as applied to two abortion clinics: Whole Woman’s Health in McAllen and Reproductive Services in El Paso. The current lawsuit also challenges HB2’s ambulatory-surgical-center require- ments (which the plaintiffs never challenged in the previous lawsuit), seeking both iii Case: 14-50928 Document: 00512752359 Page: 5 Date Filed: 08/31/2014 facial invalidation and, as a fallback option, as-applied relief limited to the McAllen and El Paso clinics. The State’s ambulatory-surgical-center rules (ASC rules) are codified at 25 Texas Administrative Code §§ 135.1-135.56, and they comprise many different types of regulations, all of which are severable from each other. See id. § 139.9(b) (“[E]very provision, section, subsection, sentence, clause, phrase, or word in this chapter and each application of the provisions of this chapter remain severable from every other provision, section, subsection, sentence, clause, phrase, word, or application of this chapter.”). The district court held a four-day trial on August 4–7, 2014. The parties stipu- lated that at least seven abortion clinics would meet the State’s ASC requirements and remain open after September 1, 2014, and further stipulated that Planned Parenthood intended to open a new ASC abortion clinic in San Antonio. See Joint Stip. to Facts (doc. 154) ¶¶ 1-3. The parties did not stipulate that these would be the only abortion clinics operating in Texas after September 1, and they did not stipulate that no other abortion clinic ASCs would emerge before or after Septem- ber 1.2 But the plaintiffs have litigated their case on the assumption that these eight facilities will be the only remaining abortion clinics in Texas. 2 The district court’s opinion incorrectly states that the parties stipulated that these eight clinics would be the “only” clinics in the State. Mem. Op. (doc. 198) 7. The stipulation was carefully worded to avoid that concession. The State did not stipulate that no new ASC abortion clinics would open before or after September 1, 2014, and it was the plaintiffs’ burden to prove with evi- dence that Planned Parenthood and other abortion providers who are not parties to this lawsuit would not be opening any new ASC clinics in Texas. The plaintiffs provided no evidence of this. iv Case: 14-50928 Document: 00512752359 Page: 6 Date Filed: 08/31/2014 At trial, the plaintiffs tried to establish an “undue burden” by arguing that the ASC law would increase driving distances for some abortion patients. Their expert Daniel Grossman opined that 930,000 women of reproductive age will live more than 150 miles from an abortion clinic after the ASC rules take effect. See Gross- man Direct (doc. 163), at ¶ 23; see also Plfs.’ Proposed Findings of Fact and Con- clusions of Law (doc. 136), FOF ¶ 66; see also Mem Op. 9 (adopting Grossman’s numbers).3 But the plaintiffs encountered an insurmountable obstacle in their quest for facial invalidation of the ASC law: They could not prove that the ASC law would subject a “large fraction” of the State’s abortion patients to unduly burden- some driving distances—and the Supreme Court (and this Court) have repeatedly held that an abortion regulation cannot be facially invalidated unless it imposes an undue burden “in a large fraction of relevant cases.” Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007); see also Abbott II, 748 F.3d at 588-89, 591, 598; Abbott I, 734 F.3d at 414. The defendants presented unrebutted expert testimony that that 83% of Texas women would live within 150 miles of an ASC abortion clinic—and an ad- ditional 6–7% live outside that range for reasons unrelated to HB2.
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