Texas Brief to Fifth Circuit - WWH v. Lakey (1)

8/10/2019 Texas Brief to Fifth Circuit - WWH v. Lakey (1)

http://slidepdf.com/reader/full/texas-brief-to-fifth-circuit-wwh-v-lakey-1 1/70

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,doing business as Reproductive Services; Sherwood C. Lynn,

Jr., M.D., on behalf of themselves and their patients; Pamela

J. Richter, D.O., on behalf of themselves and their patients;

Lendol L. Davis, M.D., on behalf of themselves and their patients, Plaintiffs–Appellees–Cross-Appellants ,

v.

David Lakey, M.D., 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–Cross-Appellees

_____________

On Appeal from the United States District Courtfor the Western District of Texas, Austin Division

Case No. 1:14-cv-284-LY _____________

APPELLANTS’ BRIEF _____________

Greg Abbott

Attorney General of Texas

Daniel T. Hodge

First Assistant Attorney General

Office of the Attorney General

P.O. Box 12548 (MC 059)Austin, Texas 78711-2548(512) 936-1700

Jonathan F. Mitchell

Solicitor General

James D. Blacklock

Deputy Attorney General

for Legal Counsel

Beth Klusmann

Michael P. Murphy

Assistant Solicitors General

Counsel for Appellants

Case: 14-50928 Document: 00512824386 Page: 1 Date Filed: 11/03/2014



i

Certificate of Interested Persons

Counsel of record certifies that the following persons and entities as describedin the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcomeof this case. These representations are made in order that the judges of this Court

may evaluate possible disqualification or recusal.

Plaintiffs Plaintiffs’ Counsel

• Whole Woman’s Health

• Austin Women’s Health Center

• Killeen Women’s Health Center

• Nova Health Systems d/b/aReproductive Services

•

Sherwood C. Lynn, Jr., M.D.• Pamela J. Richter, D.O.

• Lendol L. Davis, M.D.

Jan SoiferPatrick J. O’ConnellO’Connell & Soifer LLP

Janet CreppsStephanie TotiEsha BhandariNatasha Lycia Ora BannanDavid P. BrownCenter for Reproductive Rights

J. Alexander LawrenceBetre M. GizawMarissa P. HarrisColic M. O’BrienKiersten A. FletcherMorrison & Foerster LLP

John H. Bucy II

Former Plaintiffs Former Plaintiffs’ Counsel

• Abortion Advantage

• Lamar Robinson, M.D.

Same as Plaintiffs’ Counsel listed above




ii

Defendants Defendants’ Counsel

• David Lakey, M.D., Commissionerof the Texas Department of StateHealth Services

•

Mari Robinson, Executive Directorof the Texas Medical Board

James D. Blacklock Jonathan F. MitchellAndrew S. Oldham

Beth KlusmannPhilip LionbergerMichael P. MurphyAndrew B. StephensEsteban S.M. SotoEnrique VarelaShelley N. DahlbergErika M. KaneOffice of the Attorney General

Former Defendants Former Defendants’ Counsel

• David Escamilla

• Jaime Esparza

• Rene Guerra

•

James E. Nichols

• Susan D. Reed

•

Joe Shannon, Jr.

• Craig Watkins

None

/s/ Jonathan F. Mitchell Jonathan F. Mitchell





iii

Statement Regarding Oral Argument

The Court has set this case for oral argument during the week of January 5,

2015. The State agrees that this case warrants oral argument.




iv

Table of Contents

Certificate of interested persons ............................................................................... i

Statement regarding oral argument ........................................................................ iii

Table of contents ..................................................................................................... iv

Table of authorities ................................................................................................vii

Statement of jurisdiction .......................................................................................... 3

Statement of the issues ............................................................................................. 3

Statement of the case ................................................................................................ 3

I. HB2 and its implementing regulations ................................................. 3

II. The plaintiffs’ first lawsuit against HB2 .............................................. 5

III. The plaintiffs’ second lawsuit against HB2 .......................................... 6

A. The State’s motion to dismiss ................................................... 7

B. The evidence at trial ................................................................. 8

C. The district court’s ruling ........................................................ 13

D. The court of appeals’ stay ........................................................ 16

Summary of argument ............................................................................................ 17

Argument ............................................................................................................... 18

I. Each of the plaintiffs’ claims is barred by res judicata ........................ 18

A. The plaintiffs’ challenges to the admitting-privileges laware barred by res judicata ......................................................... 19

B. The plaintiffs’ challenges to the ASC law are barred byres judicata ............................................................................... 23




v

II. The district court erred by facially invalidating the ASC law ............. 26

A. The ASC requirement survives rational-basis review .............. 27

B. The trial evidence proved that HB2 will not undulyburden a “large fraction” of abortion patients .........................29

C. The district court’s statewide invalidation of the ASCrequirement is precluded by HB2’s severability clause ............ 33

D. The plaintiffs introduced no evidence of the “capacity”of post-HB2 abortion clinics to handle the statewidedemand for abortion ................................................................. 34

E. There is no evidence that the Texas Legislature had anunconstitutional motive in enacting the ASC statute ............... 35

III. The district court erred by refusing to sever each specific ASCrequirement ........................................................................................ 41

IV. The district court erred by enjoining the ASC requirements asapplied to medication abortions ......................................................... 44

V. The district court erred by enjoining the admitting-privilegesrequirement ........................................................................................ 45

A. The district court erred by enjoining the admitting-privileges requirement statewide ............................................. 45

B. The closure of the McAllen clinic will not impose an“undue burden” ...................................................................... 47

C. The closure of the El Paso clinic will not impose an“undue burden” ......................................................................49

D. Even if the closure of the McAllen or El Paso clinicsimposes an “undue burden,” the district court’s remedyis overbroad .............................................................................. 51




vi

VI. The Supreme Court’s order vacating the stay does notundermine the reasoning of the motion panel’s opinion .................... 52

Conclusion ............................................................................................................. 55

Certificate of service ............................................................................................... 56

Certificate of electronic compliance ....................................................................... 57

Certificate of compliance ........................................................................................ 58




vii

Table of Authorities

Cases

Ala. State Fed’n of Labor, Local Union No. 103 v. McAdory,

325 U.S. 450 (1945) ............................................................................................ 32

Allen v. McCurry,449 U.S. 90 (1980) .......................................................................................... 7, 23

Ayotte v. Planned Parenthood of N. New England ,546 U.S. 320 (2006) ........................................................................................... 30

Brockett v. Spokane Arcades, Inc.,472 U.S. 491 (1985) ............................................................................................ 33

Brown v. Felsen,442 U.S. 127 (1979)............................................................................................. 23

Coleman v. Paccar, Inc.,424 U.S. 1301 (1976) ........................................................................................... 52

Fargo Women’s Health Org. v. Schafer ,18 F.3d 526 (8th Cir. 1994) ................................................................................. 51

Flemming v. Nestor ,363 U.S. 603 (1960) ............................................................................................ 36

Frank v. Walker ,No. 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014) ........................................... 53

Gonzales v. Carhart ,550 U.S. 124 (2007) ................................................................ 11, 13, 26, 28, 39, 54

Hernandez v. City of Lafayette ,699 F.2d 734 (5th Cir. 1983) (per curiam) ......................................................... 20

In re Howe ,913 F.2d 1138 (5th Cir. 1990) ............................................................................. 22




viii

In re Southmark Corp.,163 F.3d 925 (5th Cir. 1999) ................................................................................26

Jackson v. DeSoto Parish Sch. Bd.,

585 F.2d 726 (5th Cir. 1978) .............................................................................. 20

Jackson Women’s Health Org. v. Currier ,760 F.3d 448 (5th Cir. 2014) ................................................................... 46, 50, 51

Kansas v. Hendricks ,521 U.S. 346 (1997) ............................................................................................. 36

Leavitt v. Jane L.,518 U.S. 137 (1996) ............................................................................................. 41

Mazurek v. Armstrong ,520 U.S. 968 (1997) (per curiam) .................................................. 2, 36, 38, 39, 54

Nilsen v. City of Moss Point ,701 F.2d 556 (5th Cir. 1983) ........................................................................... 21-22

Petro-Hunt, L.L.C. v. United States ,365 F.3d 395 (5th Cir. 2004) .................................................... 1, 17, 19, 20, 23, 24

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,134 S. Ct. 506 (2013) ................................................................................. 6, 52, 53

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,734 F.3d 406 (5th Cir. 2013) .............................................. 5, 11, 26, 29, 30, 46, 54

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,748 F.3d 583 (5th Cir. 2014) ........................................................................ passim

Planned Parenthood of Se. Pa. v. Casey,505 U.S. 833 (1992) ...................................................... 2, 13, 39, 45, 48, 49, 51, 54

Salahuddin v. Jones ,992 F.2d 447 (2d Cir. 1993) (per curiam) ...........................................................26




ix

Veasey v. Perry,No. 14-41127, 2014 WL 5313516 (5th Cir. Oct. 14, 2014) ................................... 53

Veasey v. Perry,

No. 14A393, 2014 WL 5311490 (U.S. Oct. 18, 2014) .......................................... 53

Whole Woman’s Health v. Lakey,No. 14-50928, 2014 WL 4930907(5th Cir. Oct. 2, 2014) .................................................................................. passim

Wilson v. Lynaugh,878 F.2d 846 (5th Cir. 1989) .............................................................................. 20

Wyoming v. Oklahoma,

502 U.S. 437 (1992) ........................................................................................ 4, 33

Statutes and Rules

28 U.S.C. § 1291 ....................................................................................................... 3

28 U.S.C. § 1331 ....................................................................................................... 3

Tex. Health & Safety Code § 171.0031(a) ................................................................ 3

Tex. Health & Safety Code § 171.044 ...................................................................... 3

Tex. Health & Safety Code § 171.063(a) .................................................................. 3

Tex. Health & Safety Code § 245.004(a)(3) .............................................................9

Tex. Health & Safety Code § 245.010(a) ........................................................... 3, 25

25 Tex. Admin. Code ch. 135.................................................................................. 38

25 Tex. Admin. Code §§ 135.1-135.56 .......................................................... 4, 16, 25

25 Tex. Admin. Code § 135.4 .................................................................................. 4

25 Tex. Admin. Code § 135.5 .................................................................................. 4




x

25 Tex. Admin. Code § 135.5(c) ............................................................................ 42

25 Tex. Admin. Code § 135.9 .................................................................................. 4

25 Tex. Admin. Code § 135.15 ................................................................................. 4

25 Tex. Admin. Code § 135.15(a) .......................................................................... 42

25 Tex. Admin. Code §§ 135.41-135.43 ................................................................... 4

25 Tex. Admin Code §§ 135.51-135.56 ............................................................... 4, 43

25 Tex. Admin. Code § 135.51(a) ..................................................................... 37, 38

25 Tex. Admin. Code § 135.51(a)(1) ....................................................................... 38

25 Tex. Admin. Code § 135.52 ......................................................................... 42, 43

25 Tex. Admin. Code § 135.52(e)(1)(F) ............................................................. 5, 42

25 Tex. Admin. Code § 135.52(e)(1)(H) ............................................................... 42

25 Tex. Admin. Code § 135.52(h)(4) ..................................................................... 42

25 Tex. Admin. Code § 135.52(i)(1)(A) ................................................................. 42

25 Tex. Admin. Code § 139.9 ................................................................................. 41

25 Tex. Admin. Code § 139.9(b) ................................................................... 5, 16, 41

25 Tex. Admin. Code § 139.40 ..................................................................... 5, 16, 25

25 Tex. Admin. Code § 139.56 ............................................................................... 16

Other Authorities

Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1, 2013 Tex. Gen. Laws5013 ...................................................................................................................... 3




xi

David P. Currie, Res Judicata: The Neglected Defense ,45 U. Chi. L. Rev. 317 (1978) .......................................................................... 7, 23

Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts

and the Federal System (5th ed. 2003) .................................................................. 33

HB2 § 10(b) .................................................................................................. 4, 33, 40

Restatement (Second) of Judgments § 24 cmt. c (1982) ....................................... 24

Restatement (Second) of Judgments § 24 cmt. d (1982) ....................................... 24

Restatement (Second) of Judgments § 24, illust. 5-6 (1982) ................................. 24

Senate Comm. on Health & Human Servs., Bill Analysis, Tex. H.B. 2,83d Leg., 2d C.S. (2013) ..................................................................................... 36




1

On March 27, 2014, this court rejected the plaintiffs’ facial challenge to

HB2’s requirement that abortion practitioners hold hospital admitting privi-

leges, as well as their challenge to HB2’s regulations of abortion-inducing

drugs. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,

748 F.3d 583 (5th Cir. 2014) ( Abbott II ). Now the plaintiffs are back with an-

other lawsuit against HB2, this time seeking as-applied relief against the ad-

mitting-privileges law and facial invalidation of HB2’s requirement that li-

censed abortion clinics meet the standards of ambulatory surgical centers

(ASCs). The plaintiffs’ claims fail for multiple independent reasons.

First, the plaintiffs’ claims are barred by res judicata. Each of their claims

could have been brought in their previous lawsuit against HB2, and the

claims in these cases undoubtedly arise from the same “series of connected

transactions.” Petro-Hunt, L.L.C. v. United States , 365 F.3d 395, 395-96 (5th

Cir. 2004). Second, the plaintiffs failed to produce any evidence to support

their claim that HB2 will leave Texas with only seven abortion clinics. Third,

even if this Court were to assume the plaintiffs’ unproven factual assertions,

they come nowhere close to establishing an “undue burden” that justifies

facial invalidation of the ASC requirements. At most, the plaintiffs’ unprov-

en allegations could justify as-applied relief limited to the McAllen and El

Paso areas—the only areas where the closure of abortion clinics would signif-

icantly affect driving distances for patients seeking abortions in Texas.

Finally, the plaintiffs and the district court fundamentally misunderstand

the “undue burden” test. The “undue burden” standard does not permit




2

courts to balance the “burden[s]” of a law against its “medical justifica-

tion.” Once a law passes rational-basis review, the sole remaining question is

whether it imposes a “substantial obstacle” in the path of abortion patients.

See Abbott II , 748 F.3d at 597. This is not a balancing test; it looks exclusively

to the burdens imposed on patients. Whole Woman’s Health v. Lakey, No. 14-

50928, 2014 WL 4930907, at *8 (5th Cir. Oct. 2, 2014) (“[W]e do not bal-

ance the wisdom or effectiveness of a law against the burdens the law impos-

es.”); id., at *9 (“Our only remaining task is to analyze the severity of the

burden the regulation imposes on women’s right to seek abortions.”). If a

law does not impose a “substantial obstacle” in the path of abortion patients,

then it does not matter for undue-burden purposes whether the medical jus-

tification for the law is strong, feeble, or non-existent. See Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 885-86 (1992) (no medical justification re-

quired for 24-hour waiting period); see also Mazurek v. Armstrong , 520 U.S.

968, 973 (1997) (per curiam) (forbidding non-physicians to perform abortions

is not “undue burden,” even though “the only extant study comparing the

complication rates for first-trimester abortions performed by [physician-

assistants] with those … performed by physicians found no significant differ-

ence.”).

In the end, the plaintiffs’ complaints about the alleged “lack of need” for

HB2’s requirements are policy grievances for the legislature to consider.

Under this Court’s precedents, the strength of the State’s interests is rele-

vant only to whether the HB2 survives rational-basis review. See Abbott II ,




3

748 F.3d at 594-95. And the district court correctly found that HB2 is ration-

ally related to patient safety. ROA.2246-47.

Statement of Jurisdiction

The district court entered a final judgment on August 29, 2014.

ROA.2702-05. The State filed a notice of appeal that day. ROA.2706-08.

This Court has jurisdiction under 28 U.S.C. § 1291. The district court’s sub-

ject-matter jurisdiction rests on 28 U.S.C. § 1331.

Statement of the Issues

1. Are the plaintiffs’ claims barred by res judicata?

2. Did the district court err by invalidating HB2’s requirement that abortionsbe performed in ambulatory surgical centers?

3. Did the district court err by invalidating HB2’s requirement that abortionpractitioners hold hospital admitting privileges?

Statement of the Case

I.

HB2 And Its Implementing Regulations

On July 18, 2013, the Governor signed House Bill 2 (HB2).1 HB2 bans

abortion after 20 weeks post-fertilization, requires drug-induced abortions to

follow the FDA’s protocol, requires abortion practitioners to hold hospital

admitting privileges, and requires licensed abortion clinics operating after

September 1, 2014, to meet the standards of ambulatory surgical centers. See

Tex. Health & Safety Code §§ 171.044, 171.063(a), 171.0031(a), 245.010(a).

1 Act of July 12, 2013, 83d Leg., 2d C.S., ch. 1, 2013 Tex. Gen. Laws 5013.




4

HB2’s severability clause requires courts to sever not only the textual

provisions of HB2, but also the statute’s applications to each individual abor-

tion provider. See HB2 § 10(b) (“[E]very provision, section, subsection, sen-

tence, clause, phrase, or word in this Act, and every application of the provi-

sions in this Act , are severable from each other.”) (emphasis added); id. (“All

constitutionally valid applications of this Act shall be severed from any appli-

cations that a court finds to be invalid …”). So if HB2 were to result in an

“undue burden” when applied to some abortion providers, the State’s offi-

cials must sever those applications and continue enforcing HB2’s require-

ments against every provider for whom the law would not result in “undue

burdens.” See Wyoming v. Oklahoma, 502 U.S. 437, 460-61 (1992) (“Severa-

bility clauses may easily be written to provide that if application of a statute

to some classes is found unconstitutional, severance of those classes permits

application to the acceptable classes.”).

The rules for licensed ambulatory surgical centers are codified at 25 Tex-

as Administrative Code §§ 135.1-135.56, and these “ASC rules” long pre-

date HB2. Subchapter A contains the “operating requirements.” These in-

clude a requirement of a “governing body,” a list of “patient rights,” rules

governing medical records, and a requirement of an “organized nursing ser-

vice” supervised by a “qualified registered nurse.” Id. §§ 135.4, 135.5, 135.9,

135.15. Subchapter B has the “fire prevention and safety requirements.” See

id. §§ 135.41-135.43. Finally, subchapter C includes the “physical plant and

construction requirements.” See id. §§ 135.51-.56. Many “physical plant”




5

requirements will not require renovations of existing abortion clinics. Section

135.52(e)(1)(F), for example, requires “[a] liquid or foam soap dispenser …

at each hand washing facility.” But others may require clinics to renovate

their buildings or buy, build, or lease space from a licensed ASC or from an

HB2-compliant abortion clinic.

The rules governing licensed abortion clinics incorporate these “ASC

rules” by reference. See id. § 139.40. Each discrete requirement is severable

from the others. 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.”). So if one “physical plant” re-

quirement imposes an “undue burden” by causing an abortion clinic to

close, the State’s officials must sever that specific requirement, and continue

enforcing the remaining requirements that do not impose “undue burdens.”

II. The Plaintiffs’ First Lawsuit Against HB2

On September 27, 2013, the plaintiffs in this case (along with others not

parties to this lawsuit) filed a lawsuit challenging only the admitting-

privileges law and the regulations of abortion-inducing drugs. They demand-

ed facial, across-the-board invalidation of the admitting-privileges require-

ment, and refused to request—even as a fallback option—an as-applied rem-

edy for abortion practitioners in McAllen or El Paso. The district court fa-

cially invalidated the admitting-privileges requirement, but this Court stayed

that decision pending appeal. See Planned Parenthood of Greater Tex. Surgical

Health Servs. v. Abbott , 734 F.3d 406, 419 (5th Cir. 2013) ( Abbott I ). The Su-




6

preme Court denied the plaintiffs’ motion to vacate the stay. See Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott , 134 S. Ct. 506

(2013). This Court reversed the district court and rejected the facial chal-

lenge to HB2’s admitting-privileges law, along with the challenge to HB2’s

regulations of abortion-inducing drugs. See Abbott II , 748 F.3d at 600, 605.

HB2’s admitting-privileges law was in full effect from November 1, 2013, un-

til August 29, 2014.

III. The Plaintiffs’ Second Lawsuit Against

HB2

On April 2, 2014, the plaintiffs filed a second lawsuit against HB2. This

lawsuit repeats the earlier challenge to the admitting-privileges rule, but

seeks a limited remedy that would enjoin the law as applied to two clinics:

Whole Woman’s Health in McAllen and Reproductive Services in El Paso. It

also challenges the ASC requirements (which were never challenged in the

previous lawsuit), seeking both facial invalidation and (as a fallback) as-

applied relief limited to the McAllen and El Paso clinics. The plaintiffs have

never explained why their earlier lawsuit failed to request as-applied relief

against the admitting-privileges law, or why it failed to challenge the ASC

requirements.2

2 The plaintiffs in this lawsuit are only a subset of the plaintiffs that sued in the earlierHB2 proceeding. Planned Parenthood, the State’s largest abortion provider, is not partic-ipating in this lawsuit, and other providers from the previous lawsuit are absent from thiscase. The plaintiffs’ serial-litigation tactics seem to reflect a division in strategy amongthe State’s abortion providers. Some, such as Planned Parenthood, have acquiesced to theASC rules by building new ASC clinics—perhaps because they view the statewide ASC




7

A.

The State’s Motion To Dismiss

The State moved to dismiss all of the plaintiffs’ claims as barred by res

judicata. See ROA.969-72, 978; see also Allen v. McCurry, 449 U.S. 90, 94

(1980) (“Under res judicata, a final judgment on the merits of an action pre-

cludes the parties or their privies from relitigating issues that were or could

have been raised in that action.”); David P. Currie, Res Judicata: The Ne-

glected Defense , 45 U. Chi. L. Rev. 317 (1978). Even apart from res judicata,

the State argued that the plaintiffs failed to state a claim. ROA.973-80.

The district court granted in part and denied in part the motion to dis-

miss. ROA.2235-49. It rejected the State’s res judicata defense at the Rule

12(b)(6) stage because the plaintiffs alleged “facts that occurred after judg-

ment” in the previous lawsuit. ROA.2241. And it found that the plaintiffs

had sufficiently alleged an undue-burden challenge to the admitting-

privileges and ASC laws. ROA.2243-45, 2247. But the district court rejected

the plaintiffs’ equal-protection, unlawful-delegation, and “arbitrary and un-

reasonable state action” claims—and specifically held that HB2’s admitting-

privileges and ASC laws are rationally related to patient health and safety.

ROA.2246-47 (“There is a rational connection between the admitting-

privileges [and ASC] requirement[s] and the State’s goals.”).

requirement as an opportunity to increase their share of the abortion market. Others, suchas Whole Woman’s Health, are fighting the ASC rules. Whatever the reason behind theplaintiffs’ piecemeal litigation tactics, they cannot surmount res judicata’s prohibition onsuccessive lawsuits. See Section I, infra.




8

B.

The Evidence At Trial

The district court held a four-day trial. The parties stipulated that at least

seven licensed ASCs would offer abortions in Texas after September 1, 2014.

These abortion-performing ASCs would be in Austin, Dallas (two), Fort

Worth, Houston (two), and San Antonio. See ROA.2289-90. The parties also

stipulated that Planned Parenthood planned to open a new abortion-

performing ASC in San Antonio “[a]t an undisclosed date.” ROA.2290. Fi-

nally, the parties stipulated that “[n]o facility licensed by the State of Texas

as an abortion facility currently satisfies the ASC requirement of HB2,” and

“each of these facilities will be prohibited from providing abortion[s]” after

September 1, 2014. ROA.2290.

It is important to emphasize what the stipulation does not entail. The

parties did not stipulate that these seven or eight ASCs would be the only

abortion providers in Texas.3 And the parties did not stipulate that no new

HB2-compliant abortion providers would emerge. Nor did they stipulate that

currently licensed abortion facilities would be unable to provide abortions by

buying, building, or leasing space at a licensed ASC. The parties stipulated

only that currently licensed abortion clinics would be unable to perform abor-

tions at their currently licensed abortion facility. ROA.2290 (“No facility li-

3 The district court incorrectly states that the parties stipulated that these eight clinicswould be the “only” abortion providers in Texas. ROA.2687. The stipulation was care-fully worded to avoid that concession. The State did not stipulate that no new ASC abor-tion clinics would open, and it was the plaintiffs’ burden to prove with evidence thatPlanned Parenthood and other non-party abortion providers would not open any newASCs.




9

censed by the State of Texas as an abortion facility currently satisfies the ASC

requirement of HB2. As a result, each of these facilities will be prohibited

from providing abortion services effective September 1, 2014.”) (emphasis

added).4

The plaintiffs have wanted courts simply to assume that the seven or

eight abortion-performing ASCs mentioned in the stipulation will be the only

abortion providers left in Texas. See Appl. to Vacate Stay of Final J. Pending

Appeal, at 20, Whole Woman’s Health v. Lakey, 14A365 (U.S., filed Oct. 6,

2014) (“[O]nly seven licensed abortion providers remain in Texas.”); Opp.

to Emergency Mot. to Stay Final J. Pending Appeal, at 3-4, Whole Woman’s

Health, No. 14-50928 (“[O]nly seven licensed abortion providers would re-

main in Texas.”). But the plaintiffs bear the burden of proof, and they must

prove (and not simply assert) that only seven abortion providers will remain if

they want this treated as fact. The plaintiffs did not even attempt to prove

that Texas would be left with only seven or eight ASC abortion providers.

Most of the State’s abortion providers were not even parties to this lawsuit.

And the plaintiffs introduced no evidence of whether these non-party abor-

tion providers plan to buy, build, or lease an ASC. In addition, there was tes-

timony that all three plaintiff clinics were considering opening new ASCs if

their lawsuit failed:

4 Abortions in Texas may be performed at any licensed ambulatory surgical center, and itneed not be licensed as an abortion facility to perform abortions. See Tex. Health & SafetyCode § 245.004(a)(3).




10

Q. …You and your wife recently purchased a $1.125 millionbuilding here in Austin in May; is that correct?A. Yes.Q. …It was purchased with the intent to convert it into an ASCthat complies with House Bill 2; is that right?

A. Yes.Q. And you intend for that ASC — when you purchased it, youintended for that ASC to provide abortion services?A. Yes.

ROA.2828:18-2829:2.

Q. And so now Dr. Aquino and Dr. Braid are planning to openthe ambulatory surgical center in San Antonio?A. They hope to be able to do so, yes.

ROA.3006:5-7. See also ROA.3070:11-21, 3072:24-3074:16. There is no evi-

dence that only seven abortion clinics will be left in Texas.

At trial, the plaintiffs presented three theories of “undue burden.” First,

the plaintiffs argued that HB2 would increase driving distances for some pa-

tients (on the unproven assumption that Texas will have only seven ASC

abortion providers). Their expert Daniel Grossman opined that 930,000

women of reproductive age will live more than 150 miles from an abortion-

performing ASC. See ROA.2355; see also ROA.2152, 2689 (adopting Gross-

man’s numbers). Grossman’s “930,000” number is misleadingly large, be-

cause it includes women in Lubbock, Amarillo, and Midland/Odessa—

where the absence of an abortion clinic within 150 miles pre-dates HB2. And

of course, most of these 930,000 women will never seek an abortion.

But no matter how one defines the raw number of patients subjected to

150-mile driving distances, the plaintiffs did not and could not prove that the




11

ASC law would subject a “large fraction” of the State’s abortion patients to

unduly burdensome driving distances. See Gonzales v. Carhart , 550 U.S. 124,

167-68 (2007); Abbott I , 734 F.3d at 414; Abbott II , 748 F.3d at 588-89, 598.

Before HB2 took effect on November 1, 2013, there were abortion providers

in nine Texas cities: Austin, Beaumont, Corpus Christi, Dallas, El Paso, Fort

Worth, McAllen, Houston, and San Antonio. The plaintiffs stipulated that

abortion providers would remain in five of those cities—Austin, Dallas, Fort

Worth, Houston, and San Antonio. Even if one assumes the plaintiffs’ worst-

case scenario, HB2 will cause (at least temporarily) the absence of abortion

providers in only four cities: Beaumont, Corpus Christi, El Paso, and

McAllen. If that imposes unduly burdensome driving distances, it can be

remedied with as-applied relief limited to the providers in those four cities.

See Abbott II , 748 F.3d at 589 (“Even when considering facial invalidation of

a state statute, the court must preserve the valid scope of the provision to the

greatest extent possible.”). The plaintiffs never explained how these alleged

clinic closures could justify statewide injunctive relief.

More importantly, it was undisputed that the vast majority of the State’s

population lives within 150 miles of the ASC abortion clinics in Austin, Dal-

las, Fort Worth, Houston, and San Antonio. The State’s expert, Todd Gib-

erson, testified that at least 83% of Texas women live within 150 miles of

those ASC abortion clinics—and an additional 7% live outside that range for

reasons unrelated to HB2. See ROA.3923-24. Because Abbott II holds that

driving distances of 150 miles or fewer are not an “undue burden,” Abbott II




12

has already decided that at least 90% of Texas women will not encounter an

“undue burden” caused by HB2. See Abbott II , 748 F.3d at 598. And nearly

all of the remaining 10% reside in either El Paso or the Rio Grande Valley,

which can be addressed with as-applied relief rather than statewide invalida-

tion. See ROA.3928. The plaintiffs did not argue in the district court that 10%

(or 17%) could satisfy the “large fraction” test. They simply demanded facial

invalidation without explaining how the “large fraction” test could be satis-

fied.

Second, the plaintiffs suggested that the seven ASC clinics mentioned in

the stipulation would be unable to perform the 68,000 abortions sought an-

nually in Texas. But the plaintiffs introduced no evidence whatsoever of clin-

ic capacity. The plaintiffs did not seek discovery from any of these ASC clin-

ics to determine their capacity, and Whole Woman’s Health introduced no

evidence of the capacity of its ASC in San Antonio. Grossman provided a

bald conjecture that existing ASC abortion providers would be unable to

provide 70,000 abortions annually. See ROA.2353 (“My opinion is that these

existing ASCs as a group will not be able to go from providing approximately

14,000 abortions annually … to providing the 60,000 to 70,000 abortions

that are done each year in Texas …”). But Grossman offered nothing to sup-

port that statement. No data, no research, no interviews, not even hearsay.

See Whole Woman’s Health, 2014 WL 4930907, at *11 (“Grossman’s testi-

mony is ipse dixit and the record lacks any actual evidence regarding the cur-

rent or future capacity of the eight clinics.”).




13

Third, the plaintiffs’ experts complained that the ASC law (in their opin-

ion) did not “enhance the safety” of abortions. That does not have any rele-

vance to the “undue burden” standard; the Supreme Court has upheld

many abortion regulations that were not shown to enhance patient safety. See

Casey, 505 U.S. at 885-87 (upholding 24-hour waiting period); id. at 884-85

(upholding statute requiring licensed physicians, rather than an assistants, to

provide informed-consent information); Gonzales , 550 U.S. at 132-33 (up-

holding partial-birth abortion ban). And in all events, the State’s experts ex-

plained how the State’s ASC law would enhance patient safety. First, surgical

abortion should be performed in a sterile environment because it involves en-

try into the sterile uterus. See ROA.3859-63. The plaintiffs’ experts empha-

sized that the vagina is not sterile, but surgical abortion involves entry into

the vagina and uterus, which is sterile. Second, other procedures requiring

entry into the uterus, such as dilation and curettage, are traditionally per-

formed in ASC or hospital settings for that reason. See ROA.3862-63. Final-

ly, ASCs provide accountability and monitoring mechanisms that ensure pa-

tient safety. See ROA.3865.

C. The District Court’s Ruling

On Friday, August 29, 2014, the district court issued an opinion and final

judgment. The opinion declared the ASC standards facially invalid, but it did

not find or even assert that the ASC law will unduly burden a “large frac-

tion” of abortion patients. The district court also held that the ASC statute




14

was enacted with the “purpose” of imposing an undue burden. See

ROA.2696. But it cited no evidence of the legislature’s motives for enacting

HB2. And the district court declared the ASC standards unconstitutional as

applied to drug-induced abortions, because “any medical justification for the

requirement is at its absolute weakest in comparison with the heavy burden it

imposes.” ROA.2698. Near the end of the opinion, the district court held

that the State may enforce its ASC standards against “currently licensed

ambulatory-surgical-center abortion providers in Texas” and “new abortion

providers that begin offering abortion services after September 1, 2014.”

ROA.2699.

The district-court opinion also held the admitting-privileges law uncon-

stitutional “as applied to the Rio Grande Valley and El Paso clinics.”

ROA.2696. But the opinion concludes with the following paragraph:

However, when the two provisions [ASC and admitting privi-

leges] are considered together, they create a scheme that effectsthe closing of almost all abortion clinics in Texas that were op-erating legally in the fall of 2013. Thus, the overall effect of theprovisions is to create an impermissible obstacle as applied to allwomen seeking a previability abortion. The court will thus en-

join the enforcement of both provisions on the basis that theyact together to create an undue burden on a woman seeking apreviability abortion by restricting access to previously availablelegal facilities.




15

ROA.2701. This appears to invalidate the admitting-privileges law across the

board, or at least as applied to all “previously available legal facilities.”5 But

the plaintiffs had not asked for statewide relief against the admitting-

privileges law; they brought an as-applied challenge that sought relief only

for the McAllen and El Paso clinics.

The final judgment largely tracks the opinion, although there are some

discrepancies. The judgment first declares the ASC statute unconstitutional

“[a]s to all abortion facilities in the State,” with exceptions for previously

licensed ASCs and abortion clinics opening after September 1, 2014. See

ROA.2704. The judgment also declares the ASC statute unconstitutional

“[a]s applied to … medical abortion.” ROA.2704. The judgment then de-

clares the admitting-privileges statute unconstitutional “as applied to Plain-

tiffs Whole Woman’s Health and Sherwood Lynn with respect to the opera-

tion of an abortion facility in McAllen, Texas, and Plaintiffs Nova Health

Systems and Pamela Richter with respect to the operation of an abortion fa-

cility in El Paso, Texas.” ROA.2704.

But then the judgment seems to swallow these caveats, because it goes

on to declare that “the two portions of Texas Health and Safety Code, Sec-

tions 245.010(a) [ASC] and 171.0031(a)(1) [admitting privileges], create an

impermissible obstacle as applied to all women seeking a previability abortion.”

5 It is not clear whether “previously available legal facilities” refers to abortion clinics thatexisted immediately before the district court’s ruling, or immediately before the admit-ting-privileges law took effect, or at any time before the district court’s ruling.




16

ROA.2704 (emphasis added). This appears to block the State from enforcing

the ASC or admitting-privileges statutes against any abortion provider (pre-

sent or future) performing previability abortions—even though opinion’s fi-

nal paragraph says the laws would be blocked only to the extent they “re-

strict[] access to previously available legal facilities.” ROA.2701 (emphasis

added). The judgment concludes by enjoining the defendants from “enforc-

ing the above-listed portions of sections of the Texas Health and Safety Code

to the extent stated herein.” ROA.2704.

The judgment does not mention the administrative regulations that re-

quire abortion clinics to comply with the State’s ASC rules, or the adminis-

trative regulations requiring abortion practitioners to hold hospital-admitting

privileges. See 25 Tex. Admin. Code § 139.40, §§ 135.1-.56 (ASC); see id.

§ 139.56 (admitting privileges). In what appears to be an oversight, the judg-

ment does not declare the regulations unconstitutional or enjoin their en-

forcement. Neither the opinion nor the judgment acknowledges that each

discrete ASC regulation is severable, and the court refused to distinguish or

preserve the ASC requirements that would not cause clinics to close or im-

pose “undue burdens.” See id. § 139.9(b).

D. The Court of Appeals’ Stay

The State appealed and moved for a stay. After oral arguments, a mo-

tions panel of this Court stayed most of the district court’s ruling, finding

numerous errors in the district court’s ruling that made the State likely to




17

succeed on appeal. See Whole Woman’s Health, 2014 WL 4930907. On Octo-

ber 14, 2014, the Supreme Court, in an unexplained order, vacated the stay

in part, leaving in place the decision to stay the district court’s statewide in-

junction against the admitting-privileges law. Whole Woman’s Health, 2014

WL 5148719, at *1.

Summary of Argument

The district court’s judgment should be reversed for numerous inde-

pendent reasons. And because the Supreme Court is likely to review this

case on writ of certiorari, the State respectfully asks this Court to reverse on

each of these independent grounds. That approach will reduce the need for a

remand and insulate this Court’s judgment from reversal in the event that

the Supreme Court disagrees with one or more of its rationales.

First, the plaintiffs’ claims are barred by res judicata. Each of their claims

could have been brought in their previous lawsuit against HB2, and the

claims in these cases unquestionably arise from the same “series of connect-

ed transactions.” Petro-Hunt , 365 F.3d at 395-96.

Second, there are numerous evidentiary failures that doom the plaintiffs’

case. There is no evidence in the record proving that HB2 will leave Texas

with only seven abortion clinics, as the plaintiffs repeatedly claim. Most of

the State’s abortion providers are not even parties to this lawsuit, and the

plaintiffs did not subpoena those providers or produce any evidence showing

that these non-party providers will not buy, build, or lease an ASC abortion

clinic. Nor did the plaintiffs produce any evidence that the seven pre-HB2




18

ASC abortion providers are unable to meet the statewide demand for abor-

tion. They simply assert it without any data and without any testimony from

any employee of those clinics. See Whole Woman’s Health, 2014 WL

4930907, at *10-11. Throughout this litigation, the plaintiffs have wanted

courts to assume factual claims that have not been proven with any record ev-

idence, yet the plaintiffs bear the burden of proof on all disputed questions of

fact. See Abbott II , 748 F.3d at 597.

Third, even if this Court were to assume all of the plaintiffs’ unproven

allegations, they come nowhere close to establishing an “undue burden” that

justifies facial invalidation of the ASC requirements. It is undisputed that the

vast majority of the State’s population (83%) lives within 150 miles of an

ASC abortion clinic, and another 7% lives outside that range for reasons unre-

lated with HB2. At most, the plaintiffs’ factual claims (if assumed to be true)

could justify as-applied relief limited to the McAllen and El Paso areas—the

only areas where the closure of abortion clinics would increase driving dis-

tances for patients seeking abortions in Texas.

Argument

I. Each Of The Plaintiffs’ Claims Is Barred

By Res Judicata

In the first lawsuit against HB2, the plaintiffs could have sought as-

applied relief for the McAllen and El Paso clinics, and they could have chal-

lenged the ASC requirement. They chose not to seek this relief for strategic

reasons—even though the claims arise from the same “series of connected




19

transactions.” Petro-Hunt , 365 F.3d at 395-96. The plaintiffs’ decision to lie

behind the log and spring these claims in a second lawsuit against HB2 is an

unreasonable and vexatious multiplication of judicial proceedings, and the

doctrine of res judicata forbids these serial-litigation tactics.

Res judicata blocks any claims for which: (1) the parties are identical to or

in privity with the parties in a previous lawsuit; (2) the previous lawsuit has

concluded with a final judgment on the merits; (3) the final judgment was

rendered by a court of competent jurisdiction; and (4) the same claim or

cause of action was involved in both lawsuits. Id. at 395. The plaintiffs do not

contest the first three elements of the State’s res judicata defense.6 They de-

ny only that the claims in the first and second lawsuits arise from the same

“series of connected transactions.” Id. at 395-96.

A. The Plaintiffs’ Challenges To The Admitting-PrivilegesLaw Are Barred By Res Judicata

The district court held that the plaintiffs’ serial challenges to the admit-

ting-privileges law do not involve a “series of connected transactions” be-

cause the current lawsuit “relies on facts that occurred after judgment was

rendered in the previous lawsuit and that were not considered by either this

court or the appellate court.” See ROA.2241. The district court noted that

6 Doctors Lynn and Davis were not parties to the earlier proceeding, but they were inprivity with Whole Woman’s Health and Austin Women’s Health Center, which sued ontheir behalf. See Compl. ¶¶ 13-14, Planned Parenthood of Greater Tex. Surgical HealthServs. v. Abbott , No. 1:13-cv-862-LY (W.D. Tex., filed Sept. 27, 2013). And ReproductiveServices is in privity with Dr. Richter, who sued in the initial HB2 lawsuit. Id. ¶ 21.




20

the plaintiffs only recently learned that the McAllen and El Paso physicians

would “ultimately be unable to obtain admitting privileges.” ROA.2242.

The district court also relied on an alleged increase in self-abortion in

McAllen. ROA.2242.

The district court erred by allowing these new allegations to overcome

the State’s res judicata defense. A litigant cannot establish a new “claim” or

“cause of action” simply by alleging new facts that arose after judgment in

the previous lawsuit. The test is whether the claims arise from the same

“transaction” or “series of connected transactions.” Petro-Hunt , 365 F.3d at

395-96. And new factual allegations establish a new “series of connected

transactions” only when the new facts are “significant” and create “new le-

gal conditions.” Hernandez v. City of Lafayette , 699 F.2d 734, 737 (5th Cir.

1983) (per curiam); Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 729 (5th

Cir. 1978); see also Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir. 1989)

(“[F]or new facts to constitute a new cause of action and thus allow a claim

to be relitigated, those facts must be both ‘significant’ and create ‘new legal

conditions.’”) (citation omitted).

The formal rejection of the doctors’ applications for admitting privileges

does not create “new legal conditions” or establish a different “nucleus of

operative fact.” It was uncontested in the first lawsuit that the El Paso and

McAllen doctors lacked admitting privileges and would cease providing

abortions once HB2 took effect. See Compl. ¶ 21, Abbott , 1:13-cv-862-LY

(“Dr. Richter does not have admitting privileges at any hospital, and there-




21

fore if the admitting privileges requirement takes effect, she will be forced to

stop providing abortion[s].”); id. ¶ 13 (“If the admitting privileges require-

ment of the Act is allowed to take effect, WWH will stop providing abortions

[in] McAllen.”); id. ¶ 50. The plaintiffs could have used those uncontested

facts—if combined with proof that closure of the these clinics would impose

an “undue burden”—to seek as-applied relief that would keep those clinics

open until their practitioners secured admitting privileges. The district court

did not consider this as-applied relief because the plaintiffs never asked for

it.7

The rejection of the doctors’ applications does not create “new legal

conditions” because it does not expand the claims or relief that the plaintiffs

could have sought in the initial lawsuit. It would be different if the doctors

had admitting privileges during the first trial, and the hospitals pulled their

privileges after entry of judgment. But the plaintiffs do not deny that their as-

applied claims were ripe in the earlier lawsuit—all they had to do was ask for

an injunction limited to El Paso and McAllen. Instead, the plaintiffs made a

tactical decision to force the courts into an all-or-nothing choice. Res judicata

prohibits them from seeking as-applied relief now. See Nilsen v. City of Moss

7

Judge Higginson suggested that the denial of the physicians’ applications meant that“the availability of abortion services for women living near the McAllen and El Paso clin-ics has concretely changed,” but he did not explain how the availability had changed andit is impossible to see how it could have changed. See Whole Woman’s Health, 2014 WL4930907, at *16 n.1 (Higginson, J., concurring in part and dissenting in part). None of thephysicians at those clinics could perform abortions when the initial lawsuit was brought,and none could perform abortions after their applications were formally denied.




22

Point , 701 F.2d 556, 560 (5th Cir. 1983) (“[O]ne who has a choice of more

than one remedy for a given wrong … may not assert them serially, in suc-

cessive actions, but must advance all at once on pain of bar.” (citation and

footnotes omitted)); In re Howe , 913 F.2d 1138, 1144 n.10 (5th Cir. 1990) (“A

party may not avoid … res judicata by asserting a new theory or a different

remedy.”).8

Finally, even if the plaintiffs’ factual allegations could overcome the

State’s res judicata defense at the Rule 12(b)(6) stage (and they can’t), mere

allegations are insufficient at the final-judgment stage. The district court

made no factual findings relevant to res judicata, and it did not even discuss

res judicata in its opinion. If the plaintiffs want to argue that post-judgment

factual developments create “new legal conditions,” then they must prove

those facts with record evidence and propose specific findings to the district

court. The plaintiffs and the district court appeared to believe that the ruling

on the State’s motion to dismiss (which relied solely on the plaintiffs’ un-

proven allegations ) was enough to carry the day at final judgment. The dis-

trict court needed to make factual findings and explain how those findings

allow the plaintiffs to surmount res judicata.

8 The alleged increase in self-abortions in McAllen is likewise insufficient to establish adifferent “nucleus” of operative facts. The plaintiffs presented no admissible evidence ofthis at trial, and the district court did not make any finding that self-abortion increasedafter the initial HB2 trial. And in all events, this allegation does nothing to address theState’s res judicata defense in El Paso.




23

B.

The Plaintiffs’ Challenges To The ASC Law Are BarredBy Res Judicata

The plaintiffs’ challenges to the ASC requirement are also barred by res

judicata. Res judicata extinguishes not only claims that were actually litigated

and resolved in the initial lawsuit, but also the claims that could have been

brought. See Allen, 449 U.S. at 94 (“[A] final judgment on the merits of an

action precludes the parties or their privies from relitigating issues that were

or could have been raised in that action.”); Brown v. Felsen, 442 U.S. 127, 131

(1979) (“Res judicata prevents litigation of all grounds for, or defenses to,

recovery that were previously available to the parties, regardless of whether

they were asserted or determined in the prior proceeding.”); David P. Cur-

rie, Res Judicata: The Neglected Defense , 45 U. Chi. L. Rev. 317, 325 (1978)

(“[T]o allow a party to advance arguments in a second proceeding that he

could have made in a prior proceeding … imposes unnecessary costs on both

opposing parties and the judicial system.”). So long as the plaintiffs’ ASCclaims arise from the same “series of connected transactions” as the admit-

ting-privileges claims, they cannot bring those claims in this lawsuit. See Pet-

ro-Hunt , 365 F.3d at 395.

The plaintiffs cannot plausibly deny that the challenges to the ASC and

admitting-privileges requirements involve a “series of connected transac-

tions.” These statutory requirements are part of the same law, they were en-

acted at the same time, they were enacted for the same purposes (improving

the standard of care for abortion patients and protecting the lives of the un-




24

born), they are administered by the same state officials, and they are gov-

erned by the same legal standards (the “undue burden” and rational-basis

standards). And the plaintiffs’ legal claims against the State’s officials are the

same: They allege that Lakey and Robinson are violating the constitutional

rights of abortion patients and providers by reducing the availability of abor-

tion. That Lakey and Robinson are using different means to effectuate this

alleged constitutional violation does not allow the plaintiffs to bring piece-

meal challenges in successive lawsuits. If a plaintiff complains that his neigh-

bor is committing a nuisance by keeping pigs in his backyard, and that neigh-

bor commits an additional nuisance by breeding chickens in that same back-

yard, those nuisance claims must be litigated together—even if the claims

rely on different factual evidence. See generally Restatement (Second) of

Judgments § 24, illust. 5-6 (1982); see also Petro-Hunt , 365 F.3d at 396

(“What factual grouping constitutes a ‘transaction,’ and what groupings

constitute a ‘series,’ are to be determined pragmatically, giving weight to

such considerations as whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties’ expectations or business under-

standing or usage.”) (footnote and citation omitted).9

9 See also Restatement (Second) of Judgments § 24 cmt. c (1982) (“That a number of dif-ferent legal theories casting liability on an actor may apply to a given episode does notcreate multiple transactions and hence multiple claims. This remains true although theseveral legal theories depend on different shadings of the facts, or would emphasize dif-ferent elements of the facts, or would call for different measures of liability or differentkinds of relief.”); Restatement (Second) of Judgments § 24 cmt. d (1982) (“When a de-




25

The district court incorrectly claimed that the plaintiffs “could not have

known the extent of the enforcement nor the nature of

the regulations gov-

erning the ambulatory-surgical-center requirement until after judgment in

Planned Parenthood of Greater Texas .” ROA.2242. The statutory ASC re-

quirement is unambiguous: “On and after September 1, 2014, the minimum

standards for an abortion facility must be equivalent to the minimum stand-

ards adopted under Section 243.010 for ambulatory surgical centers.” Tex.

Health & Safety Code § 245.010(a). And the regulations for licensed ASCs

had been codified and published long before HB2 was enacted. 25 Tex. Ad-

min. Code §§ 135.1-.56. The plaintiffs knew exactly what would be required

under the statute; the post-HB2 regulations simply incorporated by refer-

ence these pre-existing ASC rules and applied them to licensed abortion clin-

ics. See id. § 139.40. Neither the district court nor the plaintiffs have argued

that the plaintiffs’ claims against the ASC requirement were unripe at the

time of the initial lawsuit. The plaintiffs could have challenged the ASC law

in the previous lawsuit; they chose not to do so.

Finally, the plaintiffs have provided no explanation (other than games-

manship) for their refusal to bring their ASC claims and as-applied claims

fendant is accused of successive but nearly simultaneous acts, or acts which though oc-curring over a period of time were substantially of the same sort and similarly motivated,fairness to the defendant as well as the public convenience may require that they be dealtwith in the same action. The events constitute but one transaction or a connected se-ries.”).




26

against the admitting-privileges law in the earlier lawsuit. That alone should

lead to a res judicata dismissal. See Salahuddin v. Jones , 992 F.2d 447, 449

(2d Cir. 1993) (per curiam) (“ [R]es judicata is a doctrine founded in part on

the strong public interest in economizing the use of judicial resources by

avoiding relitigation.”); In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.

1999) (“[ R]es judicata . . . bars the litigation of claims that either have been

litigated or should have been raised in an earlier suit.”). The plaintiffs’ fail-

ure to challenge the ASC requirement in the earlier proceeding can be ex-

plained only by a strategic desire to take two bites at the apple and enhance

their odds of drawing at least one favorable appellate panel. Res judicata ex-

ists to deter plaintiffs from splitting their claims in the hope of securing stra-

tegic advantages in litigation.

II. The District Court Erred By FaciallyInvalidating The ASC Law

The district court’s decision to facially invalidate the ASC standards was

unlawful for many reasons.

First, an abortion law cannot be facially invalidated unless the plaintiffs

prove, at an absolute minimum, that it lacks a rational basis or imposes an

undue burden “in a large fraction of relevant cases.” Gonzales , 550 U.S. at

167-68; Abbott I , 734 F.3d at 414; Abbott II , 748 F.3d at 588-89. Yet there is

no finding or claim that HB2 will unduly burden a “large fraction” of Texas

abortion patients. And no such finding from the district court could have

survived appellate review. Unrebutted evidence proved that the vast majori-




27

ty of Texas abortion patients live within 150 miles of Austin, Dallas, Fort

Worth, Houston, or San Antonio—and each of these cities will host at least

one ASC abortion provider. There is no basis for concluding that the ASC

standards impose an “undue burden” on any patient living within reasonable

driving distances of those cities, and there is no way for the plaintiffs to show

that a “large fraction” of patients will encounter undue burdens.

Second, HB2’s severability clause required the court to sever and pre-

serve the ASC rules as applied to clinics in Austin, Fort Worth, Dallas, Hou-

ston, and San Antonio. The plaintiffs stipulated that an ASC abortion pro-

vider would remain available in each of those cities, so the closure of non-

ASC clinics in those cities will not significantly affect driving distances for

any abortion patient.

Third, the plaintiffs failed to produce any evidence suggesting that the

post-HB2 ASC clinics could not handle the statewide demand for abortion,

or that the Legislature enacted HB2 for the “purpose” of imposing an undue

burden.

A. The ASC Requirement Survives Rational-Basis Review

The district court correctly found that the ASC law survives rationality

review. Indeed, the plaintiffs’ witnesses made two crucial concessions that

establish a rational basis for the law. First, Dr. Elizabeth Raymond acknowl-

edged that health-care providers disagree over whether an ASC requirement

would benefit the health and safety of abortion patients:




28

Q. … And you would also agree with me, wouldn’t you, thatthere are at least some health care providers who believe requir-ing a clinic to be an ASC benefits the health and safety of awoman choosing to undergo an abortion? A. It’s my understanding that’s true, yes.

…

Q. You disagree with those health care providers? A. Yes.

See ROA.2941:22-2942:11. When health-care providers and medical experts

disagree over the health-and-safety benefits of a law—and the plaintiffs’ ex-

perts acknowledged the existence of disagreement within the medical com-

munity—the legislature is entitled to resolve that dispute. See Abbott II , 748

F.3d at 593-95; Gonzales , 550 U.S. at 163 (“The Court has given state and

federal legislatures wide discretion to pass legislation in areas where there is

medical and scientific uncertainty.”). Federal courts are not to serve as “the

country’s ex officio medical board with powers to approve or disapprove med-

ical and operative practices and standards throughout the United States.” Id.

at 164 (citation and internal quotation marks omitted).

Second, the plaintiffs acknowledged that abortions performed in ASCs

offer improved pain-management options to patients. Amy Hagstrom Miller

testified that abortions performed in Whole Woman’s Health’s ambulatory

surgical center offer “more robust pain management options” than those

performed in non-ASC abortion clinics. See ROA.3068:18-3069:2 (“We’re

also able to offer more robust pain management options in the ambulatory

surgical center setting.”).




29

Throughout this litigation, the plaintiffs have been careful not to assert

that the ASC law provides no benefit to patients; they instead make the more

limited claim that the law does not “enhance the safety of abortion proce-

dures.” But States are permitted to enact laws that improve the standard of

care available to patients—even if one were to accept the plaintiffs’ hotly

disputed claim that the law would not enhance the “safety” of the proce-

dure. And the law survives rationality review so long as one could rationally

speculate that this law might provide some benefit to patients.

B.

The Trial Evidence Proved That HB2 Will Not UndulyBurden A “Large Fraction” Of Abortion Patients

The district court was careful to avoid claiming that the ASC rules will

unduly burden a “large fraction” of abortion patients. Instead, the opinion

makes vague assertions that a “significant number” of patients will travel

greater distances. See ROA.2689 (“[A] significant number of the reproduc-

tive-age female population of Texas will need to travel considerably further

in order to exercise its right to a legal previability abortion.”) (emphasis add-

ed); see also ROA.2691. That is not a basis on which a court may facially in-

validate an abortion law. Facial invalidation is warranted only when a “large

fraction” of the State’s abortion patients would encounter an undue burden.

This Court could not have made this more clear in Abbott I and Abbott II . See

Abbott I , 734 F.3d at 414 (“The question in a ‘large fraction’ analysis would

be whether the requirement imposes an undue burden on a large fraction of

women in Texas seeking an abortion.”); Abbott II , 748 F.3d at 600 (“[T]he




30

regulation will not affect a significant (much less ‘large’) fraction of such

women.”). The district court carefully avoided this inquiry, opting instead to

replace this Court’s “large fraction” standard with a more plaintiff-friendly

“significant number” test.

The district court was not unaware of the rulings requiring a “large frac-

tion” analysis. Its refusal to apply the required standard stems from the fact

that the trial evidence could not support a finding that a “large fraction” of

the State’s abortion patients would encounter undue burdens. The defend-

ant’s expert, Todd Giberson, presented unrebutted testimony that even un-

der the plaintiffs’ worst-case scenario, at least 83% of Texas women will live

within 150 miles of an ASC abortion clinic—and another 7% live outside that

range for reasons unrelated to HB2. ROA.3923-24. Abbott II holds that driv-

ing distances of 150 miles or fewer are not an “undue burden,” 748 F.3d at

598-99, and that means that at least 90% of Texas women will not encounter

an “undue burden” caused by HB2. 10% does not qualify as a “large frac-

tion.” And facial invalidation is particularly inappropriate because nearly all

of that 10% resides in either El Paso or the Rio Grande Valley, which can be

addressed with as-applied relief rather than statewide invalidation. See

ROA.3928; Abbott I , 734 F.3d at 415; see also Ayotte v. Planned Parenthood of

N. New England , 546 U.S. 320, 329 (2006) (declaring that “the ‘normal rule’

is that ‘partial, rather than facial, invalidation is the required course,’ such

that a ‘statute may ... be declared invalid to the extent that it reaches too far,

but otherwise left intact’”); Abbott II , 748 F.3d at 589 (“Even when consid-




31

ering facial invalidation of a state statute, the court must preserve the valid

scope of the provision to the greatest extent possible.”).

The plaintiffs’ only response to Giberson is to say that 930,000 women

of reproductive age will live outside the 150-mile boundary. ROA.2355; see

also ROA.2152. This 930,000 number is misleadingly high because it in-

cludes women living areas such as Lubbock, Amarillo, and Midland/Odessa,

where the absence of an abortion clinic within 150 miles is not caused by

HB2. See ROA.3923-24. When Grossman’s number is stripped of these pop-

ulations, it amounts to little more than the total number of reproductive-age

women in the El Paso and Rio Grande Valley areas. ROA.3928.10 Thus, there

is no evidence that even a significant number—much less a large fraction—

of women outside those two regions face a substantial obstacle to a previabil-

ity abortion under HB2. Facial invalidation was particularly inappropriate

when there is no evidence of any burdens outside of two discrete regions, and

10 Giberson testified based on 2010 Census block-level data that the total number of re-productive-age Texas women living outside the 150-mile radius of an existing ASC clinicdue to the closure of clinics in McAllen and El Paso is 462,622. See ROA.3928. That isroughly half of Grossman’s 930,000 number. The other half consists almost entirely of (1)the relevant population of the Lubbock-Amarillo-Midland/Odessa areas (227,708), wherethe absence of providers is not caused by HB2; (2) smaller metropolitan areas (33,589);and (3) various far-flung rural areas of the state where the absence of a clinic is not related

to HB2 (111,573). ROA.3928. The remainder is 94,508. Excluding the Laredo area(56,379), which lies just outside the 150-mile range but has quick access to San Antoniovia Interstate 35, yields an even smaller remainder, nearly all of which is attributable tothe fact that Grossman’s starting point (930,000 outside 150 miles) is slightly higher thanGiberson’s (891,888 outside 150 miles). Thus, the plaintiffs’ “930,000” number consistsalmost entirely of the populations of El Paso, the Rio Grande Valley, and areas where noone has alleged that the absence of a clinic is caused by HB2.




32

the alleged burdens in those two regions could be addressed by as-applied re-

lief. See Ala. State Fed’n of Labor, Local Union No. 103 v. McAdory , 325 U.S.

450, 465 (1945) (“When a statute is assailed as unconstitutional we are

bound to assume the existence of any state of facts which would sustain the

statute in whole or in part.”).

Following the plaintiffs’ lead, the district court eschewed any “large

fraction” analysis and relied on what it described as a “significant number”

of patients who will encounter greater driving distances. ROA.2689, 2691.

But a law cannot be facially invalidated unless the plaintiffs prove an undue

burden on a “large fraction” of the State’s abortion patients—not a large (or

“significant”) raw number. The plaintiffs and the district court gave up on

trying to prove a “large fraction” in the face of Giberson’s undisputed tes-

timony. That compelled a judgment for the State on the facial challenge.11

11 The district court inexplicably claimed to find more “indicia of reliability” in Gross-man’s numbers than Giberson’s. ROA.2689. The court made this finding despite theplaintiffs’ failure to seriously dispute Giberson’s calculations and despite the fact thatGrossman’s and Giberson’s numbers are not materially in conflict. Compare ROA.2355-56 (estimating that 930,000 “women of reproductive age in Texas” would live “morethan 150 miles from a clinic providing abortion in Texas”) with ROA.3928 (estimatingthat 891,888 Texas women aged 15-44 would live 150 miles from an abortion clinic). Gib-erson used census-block level analysis normally used for redistricting purposes to deter-

mine with precision the number of residents within 150 miles of the relevant clinic ad-dresses. ROA.3923. Grossman’s analysis employed county-wide calculations of affectedpopulations, which is far less precise than census-block calculations employed by Giber-son. ROA.2354, 2358. The numbers ended up being similar. The difference betweenGrossman’s number (930,000) and Giberson’s number (891,888) is 38,112, whichamounts to .72% of reproductive-age Texas women. Thus, substituting Grossman’s num-bers for Giberson’s adds less than 1% to the alleged fraction outside the 150-mile range.




33

C.

The District Court’s Statewide Invalidation Of TheASC Requirement Is Precluded By HB2’s SeverabilityClause

The district court’s statewide relief is also precluded by HB2’s “com-

prehensive and careful severability provision,” Abbott II , 748 F.3d at 589,

which requires courts to sever the statute’s applications to individual abor-

tion providers. See HB2 § 10(b); Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 501 & n.14 (1985) (enforcing an application-severability requirement in a

statute that contained an overbroad definition of prurience, and holding that

“facial invalidation of the statute was . . . improvident”); Wyoming , 502 U.S.

at 460-61 (“Severability clauses may easily be written to provide that if ap-

plication of a statute to some classes is found unconstitutional, severance of

those classes permits application to the acceptable classes.”); Richard H.

Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal Sys-

tem 180-84 (5th ed. 2003) (“The notion that statutes are typically ‘separa-

ble’ or ‘severable,’ and that invalid applications can somehow be severed

from valid applications without invalidating the statute as a whole, is deeply

rooted in American constitutional law.”).

The district court was obligated to sever and leave in place any applica-

tions of HB2 that were not proven to impose an “undue burden” on abor-

tion patients. The plaintiffs produced no evidence that the closure of non-

ASC abortion clinics in the Austin, Fort Worth, Dallas, Houston, or San An-

tonio areas would impose an “undue burden” on patients in those cities, and




34

the closures of those clinics cannot contribute to increased driving distances

when ASC clinics remain available in those cities.

D. The Plaintiffs Introduced No Evidence Of The“Capacity” Of Post-HB2 Abortion Clinics To HandleThe Statewide Demand For Abortion

The district court suggests (although it did not find) that clinic closures

may leave the remaining providers unable to handle the statewide demand

for abortion. ROA.2691. But the plaintiffs presented no evidence that the

seven or eight stipulated ASC abortion clinics lack the capacity to handle the

statewide demand—or the demand in their areas of the State. And they did

not even propose a finding of fact to this effect. ROA.2137-53. Yet findings or

suggestions of insufficient capacity must be based on trial evidence, not con-

jecture. Abbott II , 748 F.3d at 604 (explaining that courts “must base deci-

sions on facts, not hypothesis and speculation”).

Without citing any evidence (because there was none), the district court

simply asserted that it “stretches credulity” to think that the seven ASC

clinics could handle statewide demand. ROA.2691. That improperly shifted

the burden of proof to the State. See Abbott II , 748 F.3d at 597 (“[T]he bur-

den of proving the unconstitutionality of abortion regulations falls squarely

on the plaintiffs.”). The plaintiffs bore the burden to prove the capacity of

the remaining clinics, and they did not even attempt to carry that burden.

Furthermore, HB2’s severability clause required the plaintiffs to prove that




35

the remaining ASC clinics in each city (Austin, Dallas, Fort Worth, Houston,

and San Antonio) would be unable to handle the local demand in those areas.

The plaintiffs’ own evidence belies any suggestion that seven ASC clin-

ics cannot handle the statewide demand for abortion. The plaintiffs’ wit-

nesses testified that a surgical abortion takes 2-10 minutes, and it takes only

14-16 minutes to perform an abortion and prepare the operating room for the

next patient. See ROA.2449; ROA.2890:11-13. That is the only evidence in

this record bearing on clinic capacity, and it refutes any suggestion that seven

ASC clinics (many of which have multiple operating rooms) lack the capacity

to perform the roughly 68,000 abortions sought annually in Texas.

ROA.2351 (noting number of abortions in 2012).

The issue of clinic capacity requires evidence on many questions: Can

the ASC clinics expand their hours? Can they employ doctors who formerly

worked at now-closed non-ASC clinics? Could they use the increased reve-

nue to expand their capacity? Will new ASC clinics open? The plaintiffs bear

the burden of producing evidence on each of these questions. They made no

attempt to do so.

E. There Is No Evidence That The Texas Legislature HadAn Unconstitutional Motive In Enacting The ASCStatute

The district court held that the Texas legislature enacted the ASC stat-

ute for the “purpose” of imposing an undue burden on abortion patients, but

there are no findings or evidence to support that conclusion. The legisla-




36

ture’s stated purpose in enacting HB2 was to improve the standard of care

for abortion patients. See, e.g., Senate Comm. on Health & Human Servs.,

Bill Analysis, Tex. H.B. 2, 83d Leg., 2d C.S. (2013) (“H.B. 2 seeks to in-

crease the health and safety” of abortion patients and to provide them with

“the highest standard of health care”). Courts are not permitted to second-

guess a legislature’s stated purposes absent clear and compelling evidence to

the contrary. See Kansas v. Hendricks , 521 U.S. 346, 361 (1997) (“[W]e ordi-

narily defer to the legislature’s stated intent.”); Flemming v. Nestor , 363 U.S.

603, 617 (1960) (“[O]nly the clearest proof could suffice to establish the un-

constitutionality of a statute on [the] ground [of improper legislative mo-

tive].”). Here, there is zero evidence—let alone “clear[] proof”—that the

purpose for enacting HB2 was anything other than the purpose stated by the

Legislature.

The district court’s claim that the ASC requirement “was intended to

close existing licensed abortion clinics” is refuted by the fact that HB2 gave

abortion clinics a 13-month grace period to conform to the ASC rules. The

legislature would not have provided this allowance if its purpose was to close

clinics, as the district court claimed. And not a single witness testified about

the motivations of any member of the legislature. No expert opined that the

legislature had acted with the purpose of imposing unconstitutional “undue

burdens” on abortion patients, and no fact witness testified about any legisla-

tive communications or statements that might reveal a constitutionally im-

permissible motive. As in Mazurek , 520 U.S. at 972, “[o]ne searches the




37

[district court’s] opinion in vain for any mention of any evidence suggesting

an unlawful motive on the part of the [Texas] Legislature.”

The district court thought it could infer an unconstitutional purpose

from the DSHS’s alleged decision to deny “grandfathering” or “waivers” to

previously existing clinics; the district court declared that this subjected

abortion clinics to “disparate and arbitrary treatment.” ROA.2696. But the

claim that the State has discriminated against abortion clinics by refusing to

“grandfather” pre-existing clinics from the ASC requirements is demon-

strably incorrect. See ROA.2696. Abortion clinics are treated no differently

from any other medical building seeking to be licensed as an ASC, and no

medical building in Texas gets exempted from an ASC licensing requirement

because it happened to be in use before it sought to obtain an ASC license.

There is one provision of the Texas Administrative Code that exempts previ-

ously licensed ASCs from complying with changes to the ASC construction

requirements adopted on June 18, 2009. See 25 Tex. Admin. Code

§ 135.51(a). But this grandfathering provision applies equally to abortion-

clinic ASCs and non-abortion ASCs—so long as those abortion clinics were

licensed as ASCs before June 18, 2009. The State does not require previously

licensed ASCs to tear down their previously approved buildings and construct

new ones whenever the State tweaks provisions in the ASC building code.

And the State has exempted the abortion clinics that obtained ASC licenses

before June 18, 2009, from the 2009 construction requirements—just as it




38

exempts every other previously licensed ASC in the State from those re-

quirements.12

At the same time, every building in Texas (including abortion clinics) that

seeks to be licensed as an ASC after June 18, 2009, must comply with the

post-2009 requirements. The State never exempts a building from its ASC

requirements simply because it was used for medical purposes before it

sought an ASC license. For the district court to assert that the State must ex-

empt pre-existing abortion clinics—when no such allowance is extended to

any other building seeking to become licensed as ASC—is untenable. And it

is surely wrong for the court to accuse the State of “disparate and arbitrary

treatment” when the State treats abortion clinics exactly the same as any

other building seeking licensure as an ASC. The “disparate and arbitrary

treatment” accusation is clearly erroneous and cannot support an unconsti-

tutional-purpose finding. Whole Woman’s Health, 2014 WL 4930907, at *7

(“[W]e agree with the State that ambulatory surgical centers providing abor-

tions are not treated differently from other ambulatory surgical centers.”).13

12 DSHS did not incorporate 25 Texas Administrative Code § 135.51(a) into the abortion-facility regulations because those regulations apply only to licensed abortion clinics thatmust now meet ASC standards. Abortion clinics licensed as ASCs are directly governedby the ASC rules in 25 Texas Administrative Code ch. 135 and fully subject to section135.51(a)(1)’s exemption.

13 And in any event, this alleged arbitrary treatment was a post-enactment decision of theDepartment of State Health Services, not the Texas Legislature. There is no basis onwhich to infer a pre-enactment Legislative motive from the post-enactment behavior of aregulatory agency that is not subject to the day-to-day oversight of the Legislature. See

Mazurek , 520 U.S. at 972 (demanding proof of legislative motive to sustain purpose chal-lenge to abortion statute).




39

The district court also thought that the “dearth of credible evidence”

that abortions in ASCs have “better patient health outcomes” was evidence

of unconstitutional purpose. That line of argument was squarely rejected

Mazurek , which the district court did not cite:

Respondents claim … that the Montana law must have had aninvalid purpose because “all health evidence contradicts theclaim that there is any health basis” for the law. … Respondentscontend that “the only extant study comparing the complica-tion rates for first-trimester abortions performed by [physician-assistants] with those for first-trimester abortions performed byphysicians found no significant difference.” … But this line ofargument is squarely foreclosed by Casey itself. In the course ofupholding the physician-only requirement at issue in that case,we emphasized that “[o]ur cases reflect the fact that the Consti-tution gives the States broad latitude to decide that particularfunctions may be performed only by licensed professionals, evenif an objective assessment might suggest that those same tasks couldbe performed by others.” 505 U.S., at 885 (emphasis added).

520 U.S. at 973. So too here. A State may conclude that abortions should be

performed only in licensed ASCs, even if an “objective assessment might

suggest” that non-ASCs are also up to the task. The district court’s disa-

greement with the legislature’s policy judgment is not grounds for an uncon-

stitutional-purpose finding, any more than it was in Mazurek . Federal courts

are not to act “the country’s ex officio medical board with powers to approve

or disapprove medical and operative practices and standards throughout the

United States.” Gonzales , 550 U.S. at 164. And even if the district court were

correct to note the “dearth of credible evidence” on the medical benefits of

an ASC requirement, the legislature may still have believed in good faith that




40

the ASC law would improve the standard of care. The plaintiffs bore the

burden of producing “the clearest proof” to the contrary, and they produced

no evidence on this score.14

Finally, HB2’s severability clause refutes any possible claim of unconsti-

tutional legislative purpose. The legislature specifically provided that HB2

would be enforced only in situations where the law would not impose an

“undue burden” on abortion patients:

All constitutionally valid applications of this Act shall be sev-ered from any applications that a court finds to be invalid, leav-ing the valid applications in force, because it is the legislature’sintent and priority that the valid applications be allowed tostand alone. … [T]he applications that do not present an undueburden shall be severed from the remaining provisions and shallremain in force, and shall be treated as if the legislature had en-acted a statute limited to the persons, group of persons, or cir-cumstances for which the statute’s application does not presentan undue burden.

HB2 § 10(b). The Texas legislature could not have had the “purpose” of

imposing an undue burden when the statute specifically requires the sever-

ance and non-enforcement of any applications that would result in an undue

burden.

14 The arguments from the State’s lawyers concerning the availability of abortions in New

Mexico have nothing to do with the legislature’s purpose in enacting HB2. See ROA.2696-97. The State’s lawyers must defend the law and present all reasonable arguments againstthe plaintiffs’ “undue burden” claims. It is not tenable for the district court to use an ar-gument in the State’s brief—written more than a year after HB2 was enacted—as evi-dence of the legislature’s “true purpose” in enacting HB2.




41

III.

The District Court Erred By Refusing To

Sever Each Specific ASC Requirement

The district court’s invalidation of the ASC standards should be re-

versed for an additional reason: the district court refused to enforce the sev-

erability requirements of 25 Texas Administrative Code § 139.9. The State’s

ASC regulations impose hundreds of different requirements, each of which

is severable from the others:

Consistent with the intent of the Legislature, the department in-tends, that with respect to the application of this chapter to eachwoman who seeks or obtains services from a facility licensed

under this chapter, every provision, section, subsection, sen-tence, clause, phrase, or word in this chapter and each applica-tion of the provisions of this chapter remain severable …

25 Tex. Admin. Code § 139.9(b). Yet the district court (and the plaintiffs)

refused to acknowledge this severability requirement, and insisted on treat-

ing the State’s ASC rules as a non-severable package that stands or falls to-

gether. This was error. Federal courts must enforce severability clauses instate abortion provisions. See Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996)

(per curiam) (“Severability is of course a matter of state law.”); Abbott II ,

748 F.3d at 589 (“Federal courts are bound to apply state law severability

provisions.”) (citation omitted). Section 139.9 required the court to limit its

relief to the specific ASC requirements that would cause abortion clinics to

close and impose an “undue burden” on abortion patients.

It was indefensible for the district court to enjoin the State from enforc-

ing all of its ambulatory-surgical-center rules. The plaintiffs complained




42

about only two of the ASC rules: the building-design requirements in section

135.52, and the nursing-staff requirements in section 135.15(a). See

ROA.2590 (“It is the construction and nursing requirements that form the

basis of Plaintiffs’ challenge.”). The plaintiffs admitted that most of the re-

maining ASC standards were “comparable to” or less stringent than existing

abortion-clinic regulations. See ROA.2589-90. And many ASC requirements

are entirely benign and cannot plausibly be characterized as “undue bur-

dend.” See, e.g., 25 Tex. Admin. Code § 135.5(c) (protections for patient

medical records); id. § 135.52(e)(1)(F) (requiring “[a] liquid or foam soap

dispenser” at “each hand-washing facility.”); id. § 135.52(e)(1)(H) (requir-

ing signs “to identify [restrooms] for public, staff, or patient use”); id.

§ 135.52(h)(4) (prohibiting asbestos-tainted insulation); id. § 135.52(i)(1)(A)

(“All fixtures, switches, [and] sockets … shall be maintained in a safe and

working condition”).

The plaintiffs did not allege or prove that any ASC rule other than sec-

tion 135.52 would cause any abortion clinic to close. And they did not pro-

duce evidence that their clinics are unable to comply with the remaining

ASC requirements—including the nursing-staff requirements. Amy Hag-

strom Miller testified that Whole Woman’s Health’s clinics do not meet

“ASC construction standards,” but she never said that her clinics cannot

comply with the nursing-staff requirements, the fire-safety requirements, or

the “operating requirements.” ROA.2472. And the district court did not

make any findings that these requirements will close any abortion clinic or




43

impose an “undue burden.” Its opinion discussed only the building and con-

struction requirements. ROA.2689 (stating that the ASC requirement forces

clinics to meet “enhanced standards for new construction”); see also Whole

Woman’s Health, 2014 WL 4930907, at *16 (Higginson, J., concurring in part

and dissenting in part) (“I agree with a stay to allow enforcement of the op-

erational requirements of the [ASC] provision because the district court only

evaluated the burdens imposed by the provision’s physical plant require-

ments.”).

The plaintiffs have stubbornly refused to identify the specific subparts of

section 135.52 that will cause their clinics to close—even though they

acknowledge that some requirements of section 135.52 do not impose an

“undue burden.” See Opp. to Emergency Mot. to Stay Final J. Pending Ap-

peal, at 28, Whole Woman’s Health v. Lakey, No. 14-50928. The plaintiffs ap-

pear to be hoping that this Court will grant an overbroad remedy—perhaps

an injunction against all of section 135.52, or an injunction against all of the

“physical plant” requirements in sections 135.51-135.56, or even an injunc-

tion against all of the ASC requirements—simply because the plaintiffs re-

fuse to assist the Court by identifying the specific “subsections, sentences,

clauses, phrases, or words” in section 135.52 that will cause their clinics to

close. It is not acceptable for the plaintiffs to continue in this state of denial.

If they do not identify the specific requirements of section 135.52 that will

close their clinics, and cite trial evidence proving that these requirements

will cause these closures, then the Court should reject their entire challenge




44

to the ASC rules on the ground that they failed to carry their burden of

proof.

IV. The District Court Erred By Enjoining

The ASC Requirements As Applied ToMedication Abortions

The district court also enjoined the ASC standards as applied to medica-

tion abortions. Its entire rationale consists of this conclusory sentence:

“[A]ny medical justification for the requirement is at its absolute weakest in

comparison with the heavy burden it imposes.” ROA.2698. That is not a ba-

sis on which a court may enjoin a state abortion law.

The “undue burden” test does not permit courts to balance the “bur-

den[s]” of a law against its “medical justification.” Under this Court’s prec-

edents, the strength of the State’s interests is relevant only to whether the

ASC law survives rational-basis review. See Abbott II , 748 F.3d at 594-95.

The district court found that the law is rationally related to patient safety(even as applied to medication abortion). ROA.2246-47. The State is not re-

quired to show that, in addition to satisfying rational-basis review, its abor-

tion regulations “further[] a valid state interest,” Opp. To Emergency Mot.

to Stay Final J. Pending Appeal, at 15, Whole Woman’s Health, No 14-50928;

its law needs only to have a rational basis and avoid creating “undue” bur-

dens. Abbott II , 748 F.3d at 590. If the law has a rational basis, then the law

may impose obstacles and burdens—so long as the obstacles do not rise to

the level of “substantial” and the burdens do not rise to the level of “un-




45

due.” See Casey, 505 U.S. at 885-86, 899; Abbott II , 748 F.3d at 590. The dis-

trict court struck down the ASC laws as applied to medication abortion simp-

ly because it deemed the law medically unjustified; that is not a basis on

which to enjoin an abortion law. See Whole Woman’s Health, 2014 WL

4930907, at *15 (“[O]ur circuit does not incorporate a balancing analysis into

the undue burden inquiry.”).

V.

The District Court Erred By Enjoining

The Admitting-Privileges Requirement

The plaintiffs’ challenges to the admitting-privileges law are barred by

res judicata. See Section I. But even apart from res judicata, the plaintiffs’ ev-

idence falls far short of establishing an “undue burden” on patients in

McAllen or El Paso.

A.

The District Court Erred By Enjoining The Admitting-Privileges Requirement Statewide

The plaintiffs sought only as-applied relief against the State’s admitting-

privileges law, limited to two abortion clinics: one in El Paso, and one in

McAllen. ROA.68-70. Remarkably, the district court not only enjoined the

State from enforcing the admitting-privileges law against those two clinics, it

also enjoined the admitting-privileges law statewide. ROA.2704. The district

court took this step even though the plaintiffs never asked for this relief, and

even though the parties never briefed or argued whether this relief was ap-

propriate or permissible. By granting statewide relief that no party had re-

quested, the district court effectively reinstated its original judgment from




46

October 28, 2013—the judgment that panels of this Court unanimously

stayed (and unanimously reversed) in Abbott I and Abbott II .

The district court’s actions were indefensible. First, the plaintiffs never

asked for statewide injunctive relief against the admitting-privileges law, and

courts may not facially invalidate a statute when a litigant brings only an as-

applied challenge. See Jackson Women’s Health Org. v. Currier , 760 F.3d 448,

458 (5th Cir. 2014). Second, the plaintiffs could not have sought facial inval-

idation because that would be barred by res judicata. The plaintiffs have al-

ready litigated and lost their facial challenge to HB2’s admitting-privileges

law. See Abbott II , 748 F.3d at 599-600. The district court cannot give them a

second bite at the apple by sua sponte enjoining the admitting-privileges law

statewide. Third, the district court did not explain how this remedy could be

permissible under Abbott I and Abbott II . Each of those rulings held unequiv-

ocally that the admitting-privileges law could not be facially invalidated—

and that no abortion law can be enjoined on a statewide basis absent proof

that the law would unduly burden a “large fraction” of abortion patients. Yet

the district court thought it could facially invalidate HB2’s admitting-

privileges law without discussing Abbott I and Abbott II —and without men-

tioning the “large fraction” test that must be satisfied before an abortion law

can be enjoined statewide.




47

B.

The Closure Of The McAllen Clinic Will Not ImposeAn “Undue Burden”

The McAllen clinic ceased offering abortions on November 1, 2013.

ROA.2468. During the nine months between November 1, 2013, and the

start of trial on August 4, 2014, patients in the Rio Grande Valley had to seek

abortions elsewhere. Yet the plaintiffs did not produce any evidence that any

patient in the Rio Grande Valley was unable to obtain an abortion during that

nine-month window—or that any patient encountered “substantial obsta-

cles” in doing so. Amy Hagstrom Miller provided vague, hearsay anecdotes

about patients who declined referrals to Whole Woman’s Health’s San An-

tonio clinic. See ROA.2471. But Hagstrom Miller does not know (and did not

testify) whether these unnamed patients obtained abortions in Corpus Chris-

ti or Houston or elsewhere, nor does she have any knowledge of whether

they encountered substantial obstacles in those efforts.

What’s more, the plaintiffs acknowledged that patients from the RioGrande Valley successfully obtained abortions in Corpus Christi, San Anto-

nio, and Houston between November 2013 and April 2014. See ROA.2352.

The plaintiffs and their experts—who had every incentive to uncover a sin-

gle patient who was unable to obtain an abortion on account of HB2—were

unable to identify any patient who experienced a “substantial obstacle” due

to the closure of the McAllen clinic.15 And no abortion patient from the Rio

15 Grossman testified that he interviewed 20 women who were turned away from clinicsunable to perform abortions on account of HB2. 18 of those 20 successfully obtained abor-tions at other clinics. Grossman testified that “there were two women who did not obtainthe abortion,” and he “believe[d]” that one was from the Rio Grande Valley. But he did




48

Grande Valley testified that the closure of the McAllen clinic presented any

hardships in the nine-month period between November 1, 2013, and August

4, 2014.

The motions panel correctly relied on Casey to conclude that a 250-mile

trip from the Rio Grande Valley to San Antonio is not an “undue burden.”

See Whole Woman’s Health, 2014 WL 4930907, at *13 (“Considering that

Casey upheld travel times of six hours (increases of three hours) and that

women in the Rio Grande Valley traveling to San Antonio have less total

travel time than women affected by the Pennsylvania law in Casey, the State

has a strong likelihood of success on its appeal of the injunctions of both re-

quirements as applied to the McAllen clinic.”). The plaintiffs try to get

around Casey by claiming that patients in the Rio Grande Valley face “eco-

nomic disadvantage,” but there was no evidence that any patient in the Rio

Grande encountered a “substantial obstacle” in seeking abortions in other

cities while the McAllen clinic was closed. Nor have the plaintiffs proven

that patients in the Rio Grande Valley (or El Paso) are unable to obtain fi-

nancial assistance from outside sources.16 Vague allusions to “economic dis-

not say whether those two women were unable to obtain an abortion or simply changedtheir minds and decided not to obtain one. ROA.2845:23-2847:3.

16 Many entities provide resources to abortion patients of limited means, including theLilith Fund (http://www.lilithfund.org/), the National Network of Abortion Funds(http://www.fundabortionnow.org/), the Third Wave Foundation(http://thirdwavefund.org/index.html), and Planned Parenthood(http://www.plannedparenthood.org/planned-parenthood-greater-texas/newsroom/press-releases/building-our-future-fund). The plaintiffs want this Court to assume thatthere are no resources available for indigent patients. But they produced no evidence to




49

advantage” are not sufficient to distinguish Casey—especially when the

plaintiffs have no evidence that the nine-month closure of the McAllen clinic

imposed “substantial obstacles” in the path of a single abortion patient.

Finally, the plaintiffs did not prove that no new HB2-compliant abortion

providers will emerge in the Rio Grande Valley (or El Paso). Planned

Parenthood, the State’s leading abortion provider, is not a party to this law-

suit, and the plaintiffs failed to produce any evidence that Planned

Parenthood (or any other provider) will open a new ASC clinic in the Rio

Grande Valley or in El Paso. The courts are not privy to Planned

Parenthood’s future projects, and the plaintiffs did not subpoena Planned

Parenthood’s officials to come into court and testify that they would not

open an ASC clinic in McAllen or El Paso.

C. The Closure Of The El Paso Clinic Will Not Impose An“Undue Burden”

The plaintiffs have likewise failed to prove that the closure of Reproduc-

tive Services will unduly burden abortion patients in El Paso. It is undisputed

that abortion patients in El Paso will have a choice after HB2 takes full effect:

either travel to San Antonio (or another city hundreds of miles away) or

travel to Santa Teresa, New Mexico—to a clinic less than one mile from the

Texas–New Mexico border and only 12 miles from Reproductive Services in

support that assumption, and the plaintiffs bear the burden of proving that third-party re-sources are unavailable to patients in the Rio Grande Valley.




50

El Paso. Theard Dep. Excerpts 72:8-74:2, 74:5-13, 79:10-16. This choice does

not “unduly burden” El Paso abortion patients.

The plaintiffs believe that Jackson forbids this Court to consider the

availability of abortions in Santa Teresa. But Jackson made clear that its hold-

ing was limited to the facts of that case, including the fact that Mississippi’s

law would close the only remaining abortion clinic in the State. At the end of

its opinion, the Court explained:

Nothing in this opinion should be read to hold that any law orregulation that has the effect of closing all abortion clinics in astate would inevitably fail the undue burden analysis. . . . Here,we hold only that JWHO has demonstrated a substantial likeli-hood of proving that H.B. 1390, on this record and as applied tothe plaintiffs in this case, imposes an undue burden on a wom-an’s right to choose an abortion. In reaching this determination,we look to the entire record and factual context in which the law oper-ates , including, but not limited to, the statutory provision inquestion, the Clinic’s status as the sole abortion clinic in Mississip-

pi , the ability of the Clinic to comply with H.B. 1390, Dr. Par-

ker’s and Dr. Doe’s efforts to obtain admitting privileges, thereasons cited by the hospitals for denying admitting privileges toDr. Parker and Dr. Doe, the absence of a Mississippi law pro-hibiting hospitals from discriminating against physicians whoperform abortions when granting admitting privileges, and thenature and process of the admitting-privileges determination.

Jackson Women’s Health Org., 760 F.3d at 458 (emphasis added). If HB2

would close every abortion clinic in Texas, then Jackson would preclude

Texas from relying on the availability of abortions in Santa Teresa. A State

cannot shut down every in-state abortion clinic and force all of its residents

to obtain abortions out-of-state. But when a State’s regulations allow abor-




51

tion to remain available within the State, there is no reason to ignore the

availability of abortions at a location only 15 minutes from El Paso. This is

particularly true in an as-applied challenge that focuses on the availability of

abortion in a city that is part of a cross-border metropolitan area.

Even if this Court were to disregard the abortion clinic in Santa Teresa,

the plaintiffs’ theory of undue burden rests entirely on driving distances, and

“Casey counsels against striking down a statute solely because women may

have to travel long distances to obtain abortions.” Abbott II , 748 F.3d at 598;

see also Jackson Women’s Health Org., 760 F.3d at 455 (“JWHO does not ar-

gue that the distances involved alone impose an undue burden. Nor could it

in the light of Abbott .”); Fargo Women’s Health Org. v. Schafer , 18 F.3d 526,

533 (8th Cir. 1994) (upholding 24-hour waiting period and holding that

“[w]e do not believe a … single trip, whatever the distance to the medical facili-

ty, create[s] an undue burden”) (emphasis added). And the plaintiffs have

not proven that abortion patients will be unable to travel to San Antonio, par-

ticularly given the availability of outside resources to assist them.

D. Even If The Closure Of The McAllen Or El Paso ClinicsImposes An “Undue Burden,” The District Court’sRemedy Is Overbroad

The as-applied relief awarded for the El Paso and McAllen clinics is

overbroad because it purports to grant those clinics permanent relief from

HB2’s admitting-privileges law—even if an HB2-compliant abortion provid-

er begins offering services in those cities. Abortion patients, however, will no




52

longer face an “undue burden” from the closure of the El Paso or McAllen

clinic if an HB2-compliant clinic becomes available in those locations. Even

if the Court believes that closure of those clinics imposes an “undue bur-

den,” it should modify the district court’s judgment so that its injunction

expires once an HB2-compliant abortion provider emerges in the relevant

area. The plaintiffs are not entitled to an injunction authorizing them to dis-

regard HB2 forever.

VI. The Supreme Court’s Order Vacating The

Stay Does Not Undermine The Reasoning

Of The Motion Panel’s Opinion

The plaintiffs may try to characterize the Supreme Court’s order as evi-

dence that the justices rejected the motion panel’s application of the “undue

burden” test—or even that they thought the motion panel was “demonstra-

bly wrong” in its analysis. See Coleman v. Paccar, Inc., 424 U.S. 1301, 1304

(1976) (Rehnquist, J., in chambers). Any such suggestion would be baseless.First, four of the justices have shown that they are willing to vacate stays

in abortion cases regardless of whether the court of appeals was “demon-

strably wrong in its application of accepted standards.” In Planned

Parenthood of Greater Texas Surgical Health Services. v. Abbott , Justices Gins-

burg, Breyer, Sotomayor, and Kagan argued that the stay issued by this

Court should be vacated even though they conceded that “the underlying le-

gal question—whether the new Texas statute is constitutional—is a difficult

question.” 134 S. Ct. 506, 509 (2013) (Breyer, J., dissenting). Indeed, their




53

dissent did not even argue that this Court had misapplied the undue-burden

standard; it contended only that the “status quo” should be maintained

while the appeal proceeds. Id. And they did not dispute Justice Scalia’s criti-

cism that they had failed even to assert that the stay issued by this court was

“demonstrably wrong,” or that they had embraced a “special ‘status quo’

standard for laws affecting abortion.” Id. at 507.

Second, the Supreme Court has shown that it is willing to vacate stays

solely to preserve the status quo pending appeal. In Frank v. Walker , No.

14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014), the justices vacated a stay

that allowed Wisconsin’s voter-identification law to take effect shortly before

the November 2014 elections. Yet the court refused to vacate a similar stay

issued by this Court in Veasey v. Perry, No. 14A393, 2014 WL 5311490 (U.S.

Oct. 18, 2014), which had allowed Texas’s voter-identification law to take

effect before that same election. The only way to explain the contrary out-

comes in Frank and Veasey is that Texas’s law had already used for eighteen

months (and three elections) before November 2014, while Wisconsin’s law

had never taken effect until the Seventh Circuit’s ruling two months before

the scheduled election. See Veasey v. Perry, No. 14-41127, 2014 WL 5313516,

at *5 (5th Cir. Oct. 14, 2014) (Costa, J., concurring). The vacatur in Frank

cannot reflect disagreement with the Seventh Circuit’s analysis of the merits

of the law; otherwise the justices would have vacated the stay in Veasey as

well.




54

Finally, even if the justices did disagree with the motion panel’s analysis

of the merits, the order vacating the stay does not and cannot overrule the

binding precedent of this Court in Abbott I and Abbott II —nor can it overrule

the Supreme Court’s binding pronouncements in Gonzales , Mazurek , and

Casey. The motions panel faithfully applied those authorities, and its analysis

of the merits is unassailable. Even if one were to think that the Supreme

Court’s order portends disagreement with the motion panel’s reasoning, it

cannot absolve this Court of the responsibility to follow its previous abortion

pronouncements.




55

Conclusion

The judgment of the district court should be reversed.

Respectfully submitted.

Greg Abbott

Attorney General of Texas

Daniel T. Hodge

First Assistant Attorney General


Solicitor General

James D. Blacklock

Deputy Attorney General for Legal Counsel

Beth KlusmannMichael P. Murphy

Assistant Solicitors General

Office of the Attorney General

P.O. Box 12548 (MC 059)Austin, Texas 78711-2548(512) 936-1700





56

Certificate of Service

I certify that this document has been filed with the clerk of the court andserved by ECF or electronic mail on November 3, 2014, upon:

Jan SoiferTexas Bar No. 18824530Patrick J. O’ConnellTexas Bar No. 15179900O’Connell & Soifer LLP98 San Jacinto Blvd., Ste. 540Austin, Texas 78701(512) 583-0451 (JS phone)(512) 852-5918 (PJO phone)

[email protected]@oconnellsoifer.com

John H. Bucy, IITexas Bar No. 033115006633 Highway 290 East, Suite 104Austin, TX 78723-1157(512) 291-6505

[email protected]

Stephanie TotiEsha BhandariNatasha Lycia Ora BannanDavid P. BrownCenter for Reproductive Rights

120 Wall Street, 14th FloorNew York, NY 10005(917) 637-3684 (ST phone)(917) 637-3659 (EB phone)(917) 637-3784 (NLOB phone)[email protected]@[email protected]@reprorights.org

J. Alexander LawrenceMorrison & Foerster LLP

250 W. 55th StreetNew York, NY 10019(212) 336-8638(212) 468-7900 (fax)[email protected]

Betre M. Gizaw

Marissa P. HarrisMorrison & Foerster LLP

2000 Pennsylvania Ave., NW, Suite6000Washington, DC 20006-1888(202) 887-8744(202) 887-0763 (fax)[email protected]

Colin M. O’BrienMorrison & Foerster LLP

370 17th Street, Suite 5200Denver, CO 80202(303) 592-2252(303) [email protected]

/s/ Jonathan F. Mitchell Jonathan F. Mitchell Counsel for Appellants




57

Certificate of Electronic Compliance

Counsel also certifies that on November 3, 2014, this brief was transmit-ted to Mr. Lyle W. Cayce, Clerk of the United States Court of Appeals forthe Fifth Circuit, via the court’s CM/ECF document filing system,

https://ecf.ca5.uscourts.gov/.Counsel further certifies that: (1) required privacy redactions have beenmade, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy ofthe paper document, 5th Cir. R. 25.2.1; and (3) the document has beenscanned with the most recent version of Symantec Endpoint Protection andis free of viruses.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell Counsel for Appellants




Certificate of Compliance

With Type-Volume Limitation, Typeface Requirements,and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B) because:

[ X ] this brief contains 13,960 words, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state thenumber of] lines of text, excluding the parts of the brief exempted by Fed. R.App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ X ] this brief has been prepared in a proportionally spaced typefaceusing Microsoft Word for Mac, version 12 in Equity Text B 14-point typeface, or

[ ] this brief has been prepared in a monospaced typeface using

[state name and version of word processing program] with [state number ofcharacters per inch and name of type style].



Dated: November 3, 2014


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