Filed: Oct. 13, 2020
Latest Update: Oct. 14, 2020
Summary: Case: 17-51060 Document: 00515600326 Page: 1 Date Filed: 10/13/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 13, 2020 No. 17-51060 Lyle W. Cayce Clerk Whole Woman's Health, On Behalf of Itself, Its Staff, Physicians and Patients; Planned Parenthood Center for Choice, On Behalf of Itself, Its Staff, Physicians, and Patients; Planned Parenthood of Greater Texas Surgical Health Services, On Behalf of Itself, Its Staff, Physician
Summary: Case: 17-51060 Document: 00515600326 Page: 1 Date Filed: 10/13/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 13, 2020 No. 17-51060 Lyle W. Cayce Clerk Whole Woman's Health, On Behalf of Itself, Its Staff, Physicians and Patients; Planned Parenthood Center for Choice, On Behalf of Itself, Its Staff, Physicians, and Patients; Planned Parenthood of Greater Texas Surgical Health Services, On Behalf of Itself, Its Staff, Physicians..
More
Case: 17-51060 Document: 00515600326 Page: 1 Date Filed: 10/13/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2020
No. 17-51060 Lyle W. Cayce
Clerk
Whole Woman's Health, On Behalf of Itself, Its Staff,
Physicians and Patients; Planned Parenthood Center
for Choice, On Behalf of Itself, Its Staff, Physicians, and
Patients; Planned Parenthood of Greater Texas
Surgical Health Services, On Behalf of Itself, Its Staff,
Physicians, and Patients; Planned Parenthood South
Texas Surgical Center, On Behalf of Itself, Its Staff,
Physicians, and Patients; Alamo City Surgery Center,
P.L.L.C., On Behalf of Itself, Its Staff, Physicians, and
Patients, doing business as Alamo Women's Reproductive
Services; Southwestern Women's Surgery Center, On
Behalf of Itself, Its Staff, Physicians, and Patients; Curtis
Boyd, M.D., On His Own Behalf and On Behalf of His
Patients; Jane Doe, M.D., M.A.S., On Her Own Behalf
and On Behalf of Her Patients; Bhavik Kumar, M.D.,
M.P.H., On His Own Behalf and On Behalf of His
Patients; Alan Braid, , M.D., On His Own Behalf and On
Behalf of His Patients; Robin Wallace, M.D., M.A.S., On
Her Own Behalf and On Behalf of Her Patients,
Plaintiffs—Appellees,
versus
Ken Paxton, Attorney General of Texas, In His Official
Capacity; Sharen Wilson, Criminal District Attorney
for Tarrant County, In Her Official Capacity; Barry
Johnson, Criminal District Attorney for McLennan
County, In His Official Capacity,
Defendants—Appellants.
Case: 17-51060 Document: 00515600326 Page: 2 Date Filed: 10/13/2020
No. 17-51060
Appeal from the United States District Court
for the Western District of Texas,
USDC No. 1:17-CV-690
Before Stewart, Dennis, and Willett, Circuit Judges. 1
James L. Dennis, Circuit Judge:
This appeal concerns the constitutionality of Texas Senate Bill 8
(“SB8” or “the Act”), a statute that requires a woman to undergo an
additional and medically unnecessary procedure to cause fetal demise before
she may obtain a dilation and evacuation (D&E) abortion, the safest and most
common method of second trimester abortions. A number of licensed
abortion clinics and physicians that provide abortion care services challenged
that law, arguing that it would impose an undue burden on a woman’s right
to obtain an abortion before fetal viability in violation of the Fourteenth
Amendment’s Due Process clause. The district court agreed, declared the
Act facially unconstitutional, and permanently enjoined its enforcement.
The State appealed. Because SB8 unduly burdens a woman’s
constitutionally-protected right to obtain a previability abortion, we
AFFIRM.
I.
In Texas and nationwide, a D&E abortion is the most common
method of abortion after the first 15 weeks of pregnancy, as measured from a
woman’s last menstrual period (LMP). 2 As its name suggests, D&E is a two-
1
Judge Willett dissents and will file a forthcoming dissenting opinion.
2
The gestational age of a fetus is measured by the time elapsed since the woman’s
last menstrual period (LMP). A woman’s pregnancy is also commonly separated into three
trimesters. The first trimester runs from the first through twelfth week and the second
trimester runs from the thirteenth through twenty-sixth week. See Stenberg v. Carhart, 530
U.S. 914, 923-25 (2000). The third trimester begins the twenty-seventh week and
continues through the end of the pregnancy.
2
Case: 17-51060 Document: 00515600326 Page: 3 Date Filed: 10/13/2020
No. 17-51060
step procedure. First, in the dilation stage, a physician dilates a woman’s
cervix. Second, during the evacuation stage, the physician uses a
combination of suction, forceps, or other instruments to remove the fetus
through the dilated cervical opening. Because at 15 weeks LMP the fetus is
larger than the dilated cervical opening, the fetal tissue usually separates as
the physician moves it through the cervix, resulting in fetal demise. This
stage takes approximately ten minutes.
On May 26, 2017, the Texas legislature enacted the abortion
regulation SB8. 3 See Act of May 26, 2017, 85th Leg. R.S., ch. 441, § 6, 2017
Tex. Gen. Laws 1164, 1165–67 (eff. Sept. 1, 2017) (codified as TEX. HEALTH
& SAFETY CODE §§ 171.151–.154). Relevant here, the Act states:
A person may not intentionally perform a dismemberment
abortion unless the dismemberment abortion is necessary in a
medical emergency. 4
Id. § 171.152. A “dismemberment abortion” is defined as:
an abortion in which a person, with the purpose of causing the
death of an unborn child, dismembers the living unborn child
and extracts the unborn child one piece at a time from the
uterus through the use of clamps, grasping forceps, tongs,
scissors, or a similar instrument that, through the convergence
of two rigid levers, slices, crushes, or grasps, or performs any
3
The statute also contains other abortion-related regulations, including requiring
fetal burial. This appeal pertains only to the law’s provision concerning the D&E
procedure.
4
A “medical emergency” is defined as:
life-threatening physical condition aggravated by, caused by, or arising
from a pregnancy that, as certified by a physician, places the woman in
danger of death or a serious risk of substantial impairment of a major bodily
function unless an abortion is performed.
Id. § 171.002.
3
Case: 17-51060 Document: 00515600326 Page: 4 Date Filed: 10/13/2020
No. 17-51060
combination of those actions on, a piece of a the unborn child’s
body to cut or rip the piece from the body.
Id. § 171.151. Though SB8 does not use the term “dilation and evacuation”
or “D&E,” the parties do not dispute that the Act applies to a D&E abortion.
Because fetal tissue separates as a physician removes it from the uterus
during the D&E procedure, SB8 prohibits such abortions unless the
physician first ensures fetal demise in utero—an invasive, additional step that
is not part of the D&E procedure. The Act thus requires an abortion provider
performing a D&E to carry out an extra, otherwise unnecessary procedure in
the woman’s body to bring about fetal demise. A medical provider who fails
to comply with the law is subject to criminal penalties. See
id. § 171.153.
Plaintiffs are eight licensed abortion clinics and three abortion
providers who challenged SB8 in federal court, contending that it places an
undue burden on a woman seeking a previability abortion. Defendants are
Texas law enforcement officers acting in their official capacity (collectively,
“the State”). They respond that the Act does not impermissibly restrict
abortion access because there are procedures that cause fetal death in utero
that must be used in addition to D&E to ensure an SB8-compliant abortion.
Plaintiffs in rebuttal argue that the additional procedures place a substantial
obstacle to a woman’s right to a second trimester D&E abortion.
In August 2017, the district court granted a temporary restraining
order enjoining the law’s enforcement. The parties then agreed to forego a
decision on a preliminary injunction and proceed instead to a trial on the
merits. In November 2017, the court held a five-day bench trial during which
it heard testimony from nineteen witnesses, including both sides’ medical
experts. Later that month, the court issued extensive findings of fact and
concluded that SB8 imposed an undue burden on a large fraction of Texas
women seeking a D&E abortion after 15 weeks LMP. Accordingly, the
4
Case: 17-51060 Document: 00515600326 Page: 5 Date Filed: 10/13/2020
No. 17-51060
district court declared SB8 facially unconstitutional and permanently
enjoined its enforcement. Defendants timely appealed. 5
II.
We review the district court’s decision to permanently enjoin
enforcement of SB8 for abuse of discretion. See Jackson Women’s Health Org.
v. Dobbs, 945 F.3d 265, 270 (5th Cir. 2019). The court’s underlying
conclusions of law are reviewed de novo. Guzman v. Hacienda Records &
Recording Studio, Inc.,
808 F.3d 1031, 1036 (5th Cir. 2015). Its findings of fact,
on the other hand, are reviewed for clear error. Anderson v. City of Bessemer
City, N.C.,
470 U.S. 564, 573 (1985). “If the district court’s account of the
evidence is plausible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently. Where there
are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.”
Id. at 573-74. And “[w]hen findings are
based on determinations regarding the credibility of witnesses, [Federal]
Rule [of Civil Procedure] 52(a) demands even greater deference to the trial
court’s findings; for only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.”
Id. at 575.
5
Oral argument was held in November 2018. In March 2019, the court held this
case in abeyance pending the Supreme Court’s resolution of June Medical Servs. L.L.C. v.
Russo,
140 S. Ct. 2103 (2020). Following the Court’s decision in June Medical, we ordered
supplemental briefing from the parties on the effect, if any, of that case on this appeal. In
addition, the State moved for a stay of the district court’s injunction pending appeal. A
two-member majority of this panel denied the motion with one panelist in dissent. See
Whole Woman’s Health v. Paxton,
972 F.3d 649 (2020).
5
Case: 17-51060 Document: 00515600326 Page: 6 Date Filed: 10/13/2020
No. 17-51060
III.
Since the Supreme Court’s landmark decision nearly fifty years ago in
Roe v. Wade, 410 U.S. 113 (1973), it has been clear that the Fourteenth
Amendment guarantees a woman’s right to choose to undergo a previability
abortion. See Roe v. Wade,
410 U.S. 113 (1973). Two decades after Roe, in
Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 846 (1992)
(plurality opinion), the Court reaffirmed Roe’s “essential holding,” further
dividing it into a three-part legal framework:
First is a recognition of the right of the woman to choose to
have an abortion before [fetal] viability and to obtain it without
undue interference from the State. Before viability, the State’s
interests are not strong enough to support a prohibition of abor-
tion or the imposition of a substantial obstacle to the woman’s
effective right to elect the procedure. Second is a confirmation
of the State’s power to restrict abortions after fetal viability, if
the law contains exceptions for pregnancies which endanger
the woman’s life or health. And third is the principle that the
State has legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the fetus
that may become a child.
Casey, then, “struck a balance.” Gonzales v. Carhart, 550 U.S. 124, 146
(2007). It protected, on the one hand, a woman’s right to “mak[e] the ulti-
mate decision to terminate her pregnancy.”
Casey, 505 U.S. at 879. On the
other hand, it recognized that the state may enact previability regulations de-
signed “to further the health or safety of a woman seeking an abortion” or
“to express profound respect for the life of the unborn” so long as those reg-
ulations do not create “a substantial obstacle to the woman’s exercise of the
right to choose.”
Id. at 877-78. The State asserts here that SB8 advances its
interests in “protecting unborn life” and promoting the integrity and ethics
of the medical profession. The Court has acknowledged that “[t]he [state]
may use its voice and its regulatory authority to show its profound respect for
6
Case: 17-51060 Document: 00515600326 Page: 7 Date Filed: 10/13/2020
No. 17-51060
the life within the woman.” Gonzales, 550 U.S. at 157. And “[t]here can be
no doubt the [state] has an interest in protecting the integrity and ethics of
the medical profession.”
Id. (internal quotation marks omitted).
However, even when a state statute “furthers the interest in potential
life or some other valid state interest,” that statute “cannot be considered a
permissible means of serving its legitimate ends” if it erects a “substantial
obstacle in the path of a woman’s choice.” Casey, 505 U.S. at 877. The
“shorthand” for a substantial obstacle is an undue burden.
Id. Just a few
years ago in Whole Woman’s Health v. Hellerstedt, the Court confirmed that
the undue burden “rule announced in Casey . . . requires that courts consider
the burdens a law imposes on abortion access together with the benefits those
laws confer.”
136 S. Ct. 2292, 2309 (2016) (citing the Casey Court’s balanc-
ing of a law’s benefits against its burdens).
The Supreme Court issued its most recent ruling explaining and ap-
plying the undue burden last Term in June Medical Services, L.L.C. v. Russo,
140 S. Ct. 2103, 2114 (2020). In that case, a 4-1-4 Court invalidated a Loui-
siana law that imposed an admitting-privileges requirement on abortion pro-
viders because the law imposed an undue burden on a woman’s right to ob-
tain an abortion.
Id. at 2112-13. The four Justice plurality applied the balanc-
ing approach elucidated in Whole Woman’s Health, weighing the statute’s as-
serted benefits against its burdens. See
id. at 2121-32. In a solo opinion con-
curring in the judgment, Chief Justice Roberts rejected the balancing test,
stating that the undue burden test requires looking only to the burdens of an
abortion regulation. See
id. at 2136-37 (Roberts, C.J., concurring in the judg-
ment). The dissenters also repudiated Whole Woman’s Health’s “cost-ben-
efit standard.” See
id. at 2182 (Kavanaugh, J., dissenting) (observing that the
dissenters and concurrence disavowed the balancing test).
The parties dispute June Medical’s import. In supplemental briefing
ordered after that decision, the State contends that because Chief Justice
7
Case: 17-51060 Document: 00515600326 Page: 8 Date Filed: 10/13/2020
No. 17-51060
Robert’s concurrence is the narrowest opinion necessary to June Medical’s
overall holding invalidating the Louisiana law, it thus provides the controlling
formulation of the undue burden test. Conversely, Plaintiffs maintain that
the Court’s split decision supplies no such precedential rule on the undue
burden test and therefore Whole Woman’s Health’s balancing test still gov-
erns.
For reasons provided more fully in our order denying the State’s stay
motion, we agree with Plaintiffs. See Whole Woman’s Health, 972 F.3d at 652-
53. In brief, the issue turns on application of the rule in Marks v. United
States,
430 U.S. 188 (1977). “Ordinarily, ‘[w]hen a fragmented Court de-
cides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as the position taken by
those Members who concurred in the judgment[ ] on the narrowest
grounds.’” United States v. Duron-Caldera,
737 F.3d 988, 994 n.4 (5th Cir.
2013) (first alteration in original) (quoting
Marks, 430 U.S. at 193)). Marks
makes clear that the views of dissenting Justices are irrelevant to determining
the holding of the Court. Moreover, we have held that the Marks “principle
. . . is only workable where there is some ‘common denominator upon which
all of the justices of the majority can agree.’”
Id. (quoting United States v.
Eckford,
910 F.2d 216, 219 n.8 (5th Cir. 1990)). And when a concurrence does
not share a “common denominator” with, or cannot “be viewed as a logical
subset of,” a plurality’s opinion, it “does not provide a controlling rule” that
establishes or overrules precedent.
Id.
In June Medical, four dissenters agreed with the rule of decision advo-
cated by the Chief Justice, but because they did not concur in or contribute
in any respect to the judgment, but instead dissented therefrom, their votes
cannot be counted as forming a holding of the Court. Further, though the
plurality and concurrence shared an overall conclusion that the challenged
statute constituted an undue burden, they disagreed on how to frame and
8
Case: 17-51060 Document: 00515600326 Page: 9 Date Filed: 10/13/2020
No. 17-51060
apply the undue burden test that led to that determination. Specifically, they
disputed whether the test requires a comparative analysis or concerns only a
law’s burdens without regard to its asserted benefits. Compare 140 S. Ct. at
2132 (plurality opinion), with
id. at 2141-42 (Roberts, C.J., concurring in the
judgment). In this case, the concurrence cannot “be viewed as a logical sub-
set of the” plurality’s opinion.
Duron-Caldera, 737 F.3d at 994 n.4. That is
because accounting only for a law’s burdens renders it impossible to perform
a balancing test, which necessarily entails weighing two sides against each
other. In other words, the plurality’s and concurrence’s descriptions of the
undue burden test are not logically compatible, and June Medical thus does
not furnish a controlling rule of law on how a court is to perform that analysis.
See id.; see also
Eckford, 910 F.2d at 219 n.8. Instead, Whole Woman’s Health’s
articulation of the undue burden test as requiring balancing a law’s benefits
against its burdens retains its precedential force. 6
See 136 S. Ct. at 2309.
The State claims, however, that Whole Woman’s Health’s balancing
test is limited to health-related regulations and does not apply when, as here,
it invokes its legitimate interest in promoting respect for unborn life. True,
6
The Eighth Circuit has come to a contrary conclusion, holding that Chief Justice
Robert’s separate opinion in June Medical is controlling because his vote was necessary to
enjoining Louisiana’s admitting-privileges law. See Hopkins v. Jegley, 968 F.3d 912, 915
(8th Cir. 2020). Though the Eighth Circuit cited Marks, it did not provide any
interpretation of the Marks rule. We, however, are bound to apply our Circuit’s
construction of Marks, which entails determining whether the concurrence shares a
common denominator with or can be viewed as a logical subset of the plurality opinion. See
Duron-Caldera, 737 F.3d at 994 n.4.;
Eckford, 910 F.2d at 219 n. 8. Because the Eighth
Circuit did not mention—let alone apply—such an analysis, its holding is not persuasive
and does not affect our decision. Further, the Eight Circuit observed that, when the views
of Chief Justice Roberts and the dissenters were combined, a total of five Justices rejected
the balancing test articulated in Whole Woman’s Health. But by definition, dissenters do
not concur in the judgment of the court but dissent therefrom; therefore, they are not
members “who concurred in the judgment,” and their views cannot be considered in
determining the Court’s holding.
Marks, 430 U.S. at 193.
9
Case: 17-51060 Document: 00515600326 Page: 10 Date Filed: 10/13/2020
No. 17-51060
Whole Woman’s Health considered statutes that purportedly protected
women’s health. See id. at 2310. But the balancing test dates back to Casey,
and neither it nor Whole Woman’s Health suggest that the undue burden
standard changes based on the kind of state interest asserted. To the con-
trary, the Court’s cases describe a unitary standard that applies regardless of
the type of a state’s claimed interests. See, e.g.,
Casey, 505 U.S. at 877 (“[A]
statute which, while furthering the interest in potential life or some other valid
state interest, has the effect of placing a substantial obstacle in the path of a
woman’s choice cannot be considered a permissible means of serving its le-
gitimate ends.”). In Casey, for example, the Court applied the same undue
burden standard to all of the regulations it reviewed, including parental and
spousal consent provisions that were designed to further the state’s interest
in potential life. See
id. at 898-99; Whole Woman’s
Health, 136 S. Ct. at 2309
(expressly stating that Casey performed a “balancing” test with respect to
both of these provisions). It is unsurprising, then, that the State’s argument
that the undue burden changes based on the state interest asserted has been
rejected by every other court that has considered the issue. See, e.g., EMW
Women’s Surgical Ctr. P.S.C. v. Friedlander,
960 F.3d 785, 796 (6th Cir. 2020)
(“Like other courts presented with this argument, we find it unpersua-
sive.”); W. Ala. Women’s Ctr. v. Williamson,
900 F.3d 1310, 1326 (11th Cir.
2018) (“The State cites no support for the proposition that a different ver-
sion of the undue burden test applies to a law regulating abortion facilities.”).
The State’s argument in favor of creating an additional, novel undue burden
test is inconsistent with the Supreme Court’s cases, and we therefore dismiss
it. See
Casey, 505 U.S. at 898-99; Whole Woman’s
Health, 136 S. Ct. at 2309.
We proceed, then, to apply to SB8 the undue burden test in accord-
ance with how it was explained and performed in Whole Woman’s Health.
10
Case: 17-51060 Document: 00515600326 Page: 11 Date Filed: 10/13/2020
No. 17-51060
IV.
An undue burden, we reiterate, exists when “a state regulation has the
purpose or effect of placing a substantial obstacle in the path of a woman seek-
ing an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. We first note
that, despite a law’s possible benefits, the Supreme Court has repeatedly de-
termined that a statute that would effectively ban the safest, most common
method of second trimester abortion imposes an undue burden. See, e.g.,
Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52, 77-79 (1976) (in-
validating a law that barred the then-“most commonly used” method of sec-
ond trimester abortion); Stenberg v. Carhart,
530 U.S. 914, 938-39, 945-46
(2000) (holding unconstitutional a state law that, though it aimed to ban the
“D&X” abortion procedure, 7 was written so broadly that it prohibited D&E
abortions, too, which were “the most commonly used method for performing
previability second trimester abortions”); Gonzales v. Carhart,
550 U.S. 124,
153, 165 (2007) (holding that the federal “Partial-Birth Abortion Act,” 18
U.S.C. § 1531, which banned the D&X procedure, did “not construct a sub-
stantial obstacle to the abortion right,” because the D&E procedure—the
“most commonly used and generally accepted method” of second trimester
abortions—remained available). Thus, if SB8 amounts to a prohibition on
the D&E procedure, then it necessarily creates an undue burden on a
woman’s “effective right” to choose a previability abortion.
Casey, 505 U.S.
at 846.
The State insists that SB8 does not constitute an undue burden be-
cause several “alternative methods” of causing fetal demise are available and
7
The D&X procedure, also known as intact D&E, involves dilating the cervix
enough to remove the fetus intact. This procedure is banned under the Federal Partial-
Birth Abortion Ban Act of 2003, unless fetal demise is induced before the procedure. See
18 U.S.C. § 1531; Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding federal partial-birth
abortion ban).
11
Case: 17-51060 Document: 00515600326 Page: 12 Date Filed: 10/13/2020
No. 17-51060
safe. Sister Circuits that have addressed challenges to substantially similar
fetal demise statutes have determined that the methods of fetal demise that
the State proposes here are not safe, effective, or available. See EMW
Women’s Surgical Ctr. P.S.C., 960 F.3d at 807-08; W. Ala. Women’s
Ctr., 900
F.3d at 1324-28; see also Glossip v. Gross,
576 U.S. 863, 882 (2015) (“Our re-
view is even more deferential where, as here, multiple trial courts have
reached the same finding, and multiple appellate courts have affirmed those
findings.”). Those courts thus held that the statutes at issue imposed an un-
due burden. Although we ultimately reach the same conclusion about SB8
based on our independent analysis, the holdings of other Circuits bolster our
confidence that SB8 sets a substantial obstacle in the path of women seeking
abortions.
Before examining the district court’s findings on the State’s proffered
methods of fetal demise, we observe that there is a “fundamental flaw” in
the State’s description of these procedures as “alternatives.” EMW
Women’s Surgical Ctr. P.S.C., 960 F.3d at 798. “Fetal-demise procedures
are not, by definition, alternative procedures,” because a patient who endures
such a procedure “must still undergo the entirety of a standard D&E. In-
stead, fetal-demise procedures are additional procedures. Additional proce-
dures, by nature, expose patients to additional risks and burdens. No party
argues that these procedures are necessary or provide any medical benefit to
the patient.” Id.; see also, e.g.,
Danforth, 428 U.S. at 78-79 (invalidating an
abortion restriction that “force[d] a woman and her physician to terminate
her pregnancy by methods more dangerous to her health than the method
outlawed”); W. Ala. Women’s
Ctr., 900 F.3d at 1326 (noting the State’s con-
cession that fetal demise procedures “would always impose some increased
health risks on women”); Planned Parenthood of Cent. N.J. v. Verniero, 41 F.
Supp. 2d 478, 500 (D.N.J. 1998), aff’d sub nom. Planned Parenthood of Cent.
N.J. v. Farmer,
220 F.3d 127 (3d Cir. 2000) (“By relegating physicians to the
12
Case: 17-51060 Document: 00515600326 Page: 13 Date Filed: 10/13/2020
No. 17-51060
performance of more risk-laden abortion procedures, the Act imposes an un-
due burden on the woman’s constitutional right to terminate her preg-
nancy.”).
A.
With this background, we address the three additional procedures the
State proposes for causing fetal demise in utero: (1) injecting digoxin into the
fetus or amniotic fluid; (2) injecting potassium chloride directly into the fetal
heart; and (3) transecting the umbilical-cord. The district court found each
of these methods to be unfeasible.
1.
The first procedure for causing in utero fetal demise that the district
court considered was injection of the chemical digoxin into the fetus or am-
niotic fluid. This method requires a physician to insert a surgical needle ap-
proximately four inches in length through the patient’s skin, abdomen, and
uterine muscle, all without the aid of anesthesia. It is painful and invasive.
Generally, physicians wait twenty-four hours after the injection before at-
tempting the evacuation phase of a D&E, thereby requiring a patient to make
an additional trip to the clinic one day before her appointment for the D&E
procedure. Digoxin, moreover, fails to induce fetal demise about 5-10% of the
time, with its effectiveness dependent on variables such as uterine and fetal
positioning.
The district court observed that most studies in the record concerning
digoxin injections focus on pregnancies at or after 18 weeks LMP, with only
a few studies including cases at 17 weeks LMP. No study considered the ef-
ficacy, dosage, or safety of injecting digoxin into women before 17 weeks
LMP. In light of this, the district court found that requiring digoxin injections
before 18 weeks of pregnancy would subject women to an arguably experi-
mental procedure without any counterbalancing benefits. And even when
administered successfully after 18 weeks LMP, digoxin injections carry
13
Case: 17-51060 Document: 00515600326 Page: 14 Date Filed: 10/13/2020
No. 17-51060
significant health risks as compared to a D&E procedure performed before
fetal demise is ensured, including a heightened risk of infection, hospitaliza-
tion, and extramural delivery—the unexpected and spontaneous expulsion of
the fetus from the uterus while the woman is outside of a clinical setting and
without the aid of a medical professional.
Based on the pain and invasiveness of the procedure, the delay in care
and logistical difficulties it necessitates, its unreliability, the unknown risks
for women before 18 weeks LMP, and the risk of complication, the court
found that digoxin is not a safe and viable method of inducing fetal demise
before the evacuation phase of a D&E abortion.
The State challenges these findings, claiming that digoxin injections
are unquestionably safe. The State essentially asks us to relitigate the district
court’s factual findings. But as an appellate court, even if we disagreed with
the findings below, we cannot reverse them so long as they are based on one
of two “permissible views of the evidence.” Anderson, 470 U.S. at 573. The
district court’s findings satisfy this standard. The record evidence shows
that digoxin injections indeed carry health risks for the pregnant woman, in-
cluding a study demonstrating that digoxin injections are six times more
likely to result in hospitalization as compared to injection with a placebo. The
dangers of the procedure were further corroborated by the testimony of ex-
pert witnesses. See
Guzman, 808 F.3d at 1036. In short, we see no error,
clear or otherwise, in the district court’s determination that digoxin injec-
tions are not a safe and feasible method of inducing fetal demise.
2.
Next, the district court assessed inducing fetal demise in utero through
injections of potassium chloride. The procedure requires inserting a long
surgical needle through a woman’s abdomen and uterine muscles and into
the fetal heart. Because at 15 weeks LMP the fetal heart is very small—the
14
Case: 17-51060 Document: 00515600326 Page: 15 Date Filed: 10/13/2020
No. 17-51060
size of a dime—the procedure demands great technical skill on the part of the
provider. For the patient, the procedure is painful and invasive.
The injections are also exceeding rare because they carry severe risks
for a woman; complications, including death, can result if the solution is in-
jected in the wrong place. Because of the risks inherent with transabdominal
injections, this procedure increases the risk of uterine perforation and infec-
tion. And no study exists on the efficacy or safety of the injection when ad-
ministered before the evacuation phase of a D&E. The court thus deter-
mined that potassium chloride injections are an unnecessary and potentially
harmful medical procedure with no counterbalancing medical benefit for
women.
The court also explained that the training necessary to perform the
procedure is generally available only to subspecialists in the field of high-risk
obstetrics called maternal-fetal medicine. It would be “virtually impossible,”
the court found, for all physicians at abortion clinics in Texas to receive the
requisite training in order for the procedure to be a meaningfully available
method of fetal demise. Considering this evidence, the court found that po-
tassium chloride injections are not a safe and workable method of inducing
fetal demise.
Again, the State takes issue with the district court’s findings. In par-
ticular, the State cites the testimony of a maternal-fetal medicine specialist,
Dr. Berry, who has used potassium chloride to cause fetal demise. That one
physician in a highly-skilled subspecialty may be able to perform the proce-
dure does nothing to refute the district court’s findings that, as a practical
matter, there are not a sufficient number of physicians trained in the proce-
dure to make it meaningfully available. Nor does it bear on the district court’s
finding—of which it noted there was “no credible dispute”—that the proce-
dure carries severe risks. And it is undisputed that the procedure carries no
15
Case: 17-51060 Document: 00515600326 Page: 16 Date Filed: 10/13/2020
No. 17-51060
medical benefit for female patients. On this record, we cannot say that the
district court’s findings are “implausible.” Anderson, 470 U.S. at 573.
3.
Last, the court reviewed the State’s contention that umbilical cord
transection is a viable method of inducing fetal demise. To perform this pro-
cedure, the physician dilates a woman’s cervix such that instruments can be
passed through to transect the cord. Guided by ultrasound, the physician
then punctures the amniotic membrane, inserts an instrument into the
uterus, grasps the umbilical cord, and cuts the cord with a separate instru-
ment. The physician then waits for fetal heart activity to cease—usually
within ten minutes—and then performs the evacuation phase of the D&E
procedure.
The court found that this procedure is not a safe and feasible method
of fetal demise for four reasons. First, the procedure is very difficult to per-
form, particularly if the umbilical cord is blocked by the fetus. Second, the
court found that a lack of research on the risks associated with the procedure
renders it essentially experimental. Third, cord transection carries signifi-
cant health risk to the patient, including blood loss, infection, and injury to
the uterus. A physician practicing in an outpatient clinic does not have access
to blood services for patients at risk of serious blood loss. Fourth, there is
insufficient training available to physicians on how to conduct the procedure.
The State also disagrees with these findings, noting that some of the
abortion clinics’ physicians have performed the procedure. Again though,
this observation does not meaningfully address whether the district court’s
account of the evidence is not “plausible in the light of the record.”
16
Case: 17-51060 Document: 00515600326 Page: 17 Date Filed: 10/13/2020
No. 17-51060
Anderson, 470 U.S. at 575. We are not persuaded that the court below com-
mitted clear error. 8
4.
We summarize the court’s overall findings regarding the effect of SB8.
Under the statute, all women seeking a second trimester abortion starting at
15 weeks LMP would be required to endure a medically unnecessary and in-
vasive additional procedure that provides no health benefit. The law in-
creases the duration of what otherwise is a one-day D&E procedure. For
most women, the length of the procedure would increase from one day to
two, adding to the costs associated with travel, lodging, time away from work,
and child care. This delay would be particularly burdensome for low-income
women, many of whom must wait until the second trimester to seek an abor-
tion because of the time needed to obtain funds to pay for the procedure.
SB8 also forces abortion providers to act contrary to their medical
judgment and the best interest of their patient by conducting a medical pro-
cedure that delivers no benefit to the woman. And without substantial addi-
tional training, the State’s proposed fetal-demise methods are not feasible for
any physician other than subspecialists in the high-risk field of maternal-fetal
medicine.
B.
Under Whole Woman’s Health, having reviewed SB8’s burdens, we
next consider its asserted benefits. First, the State claims that, even if a bal-
ancing test applies, SB8 advances its interest in respecting unborn life by pro-
tecting it from what the State describes as “the brutality of being
8
The State asserts that suction could be performed before 17 weeks LMP,
contending that the district court overlooked this procedure. The court, however, found
“adding any additional step to an otherwise safe and commonly used procedure” in of itself
led to the conclusion that the State had erected a substantial obstacle in the path of a woman
seeking a previability abortion.
17
Case: 17-51060 Document: 00515600326 Page: 18 Date Filed: 10/13/2020
No. 17-51060
dismembered alive.” The district court observed that the D&E procedure is
“graphic” but did not make any clear findings whether SB8 furthers the
State’s interest in promoting respect for potential human life. We note that
SB8 does not purport to actually prevent the D&E procedure but instead has
the effect of requiring invasive procedures to bring about fetal demise before
the D&E is performed. Because some may sincerely believe that requiring
fetal demise before the D&E procedure advances respect for potential life,
we assume without deciding that SB8 provides a limited benefit in this re-
spect. See EMW Women’s Surgical Ctr., 960 F.3d at 807.
Second, the State asserts that SB8 advances its interest in ensuring
integrity and ethics in the medical profession. However, the Act confers no
medical benefit for women patients while forcing them to undergo unneces-
sary, painful, invasive, and even experimental procedures. Like the district
court, we are “unaware of any other medical context that requires a doctor—
in contravention of the doctor’s medical judgment and the best interests of
the patient—to conduct a medical procedure that delivers no benefit to the
[patient].” Whatever SB8 arguably may do to advance the State’s interest in
the medical profession is negated by the Act’s forcing of physicians to act
contrary to what is best in their medical judgment for their patients.
Third, the State contends that by requiring fetal demise in utero, SB8
serves its interest in having patients be informed about the procedures they
are to undergo. It claims that Plaintiffs’ consent forms do not explain in suf-
ficiently graphic terms what happens to a fetus during a D&E procedure per-
formed before fetal demise and that, by banning such a practice, women will
no longer be able to choose this procedure based on a supposed lack of infor-
mation as to what it entails. But the State’s argument that SB8 ensures
women are informed about how fetal demise occurs is wholly undermined by
the fact that the statute does not require that women receive information on
18
Case: 17-51060 Document: 00515600326 Page: 19 Date Filed: 10/13/2020
No. 17-51060
how fetal demise occurs during any of the State’s proposed additional proce-
dures to cause fetal demise in utero.
Fourth, the State claims that the Act will promote its interest in align-
ing its laws with those of the international community. That the district court
did not discuss this as one of the State’s interests is understandable because
the Supreme Court itself has never identified this as a valid interest to be
considered as part of the undue burden analysis. Moreover, the State’s com-
parative law expert acknowledged that most countries that prohibit second
trimester abortions actually ban abortion outright and evidently lack consti-
tutional safeguards for women’s reproductive freedoms. Aligning the State’s
abortion law with that of foreign nations whose reproductive rights laws con-
flict with the dictates of our Constitution does not serve a valid state interest. 9
Fifth, the State contends that the law promotes its interest in prevent-
ing fetal pain. We find little merit in this argument. Major medical organiza-
tions, including the American Medical Association, the American College of
Obstetricians and Gynecologists, and the Royal College of Obstetricians and
Gynecologists, have concluded that fetal pain is not even possible before at
least 24 weeks LMP. Offering a less mainstream view, the State’s expert, Dr.
Malloy, testified that in her opinion a fetus can feel pain at 22 weeks LMP.
But even if Dr. Malloy’s opinion were credited, Plaintiffs do not perform
abortions at this late time of gestation, and Texas already bans abortion after
22 weeks LMP except in extremely limited circumstances. See TEX. HEALTH
& SAFETY CODE §§ 171.041-46. Further, the State has not adduced evidence
9
The foregoing should not be construed to suggest that comparative-law
perspective cannot serves useful and important functions. Indeed, we readily acknowledge
that it can. See, e.g., Atkins v. Virginia. Texas, 539 U.S. 304, 316 n.21 (citing international
consensus against executing the “mentally retarded”). Here though, the State attempts to
use foreign law in an invalid way by asserting that it has an interest in adjusting its laws to
more closely reflect those of nations whose laws are incompatible with our fundamental
charter.
19
Case: 17-51060 Document: 00515600326 Page: 20 Date Filed: 10/13/2020
No. 17-51060
that requiring doctors to induce fetal demise in utero would be more likely to
prevent any purported fetal pain than permitting the D&E procedure without
first ensuring fetal demise. The State thus has not demonstrated that SB8
actually advances any interest in preventing fetal pain.
C.
Weighing SB8’s significant burdens upon female patients against its
nonexistent health benefits and any other limited benefits it may actually con-
fer, it is clear that the law places a “substantial obstacle in the path of a
woman seeking” a previability abortion. 10 Casey, 505 U.S. at 877. Based on
the district court’s findings—which are not clearly erroneous and to which
we therefore must defer—the procedures proposed by the State to ensure
compliance with SB8 are themselves substantial obstacles to D&E abortions,
a procedure whose availability the Supreme Court has continually cited as
essential to guaranteeing women’s right to abortion care. See
Stenberg, 530
U.S. at 938-39, 945-46 (2000);
Gonzales, 550 U.S. at 153, 165. SB8, then,
results in severe burdens as it would effectively prohibit the most common
and safest method of abortions in Texas after 15 weeks LMP. And it would
inflict a special hardship on low-income women who are often unable to ob-
tain an abortion until this point in their pregnancy. On the other end of the
scale are the State’s interests advanced by SB8, which are minimal at most.
We thus conclude that SB8’s burdens substantially outweigh its benefits.
The law therefore constitutes an undue burden on a woman’s right to obtain
10
The State objects to the district court’s comment that an obstacle is substantial
if it is “of substance.” The State contends that this is an incorrectly lax description of the
substantial-obstacle test. We need not pass on the district court’s objected to single remark
because it was not necessary to or employed in the district court’s decision applying correct
legal principles to plausible and permissible factual findings based on the record in this case.
20
Case: 17-51060 Document: 00515600326 Page: 21 Date Filed: 10/13/2020
No. 17-51060
a previability abortion and violates the Fourteenth Amendment. See id. at
877.
V.
The State next contends that the district court erred in granting facial
relief. “[A]n abortion restriction is facially invalid if in a large fraction of the
cases in which it is relevant, it will operate as a substantial obstacle.” Jackson
Women’s Health
Org., 945 F.3d at 275-76 (internal quotation marks omitted).
“The relevant denominator” in this analysis consists of the class of “women
for whom the provision is an actual rather than an irrelevant restriction.”
Id.
(internal quotation marks omitted). That category is narrower “than all
women, pregnant women, or even women seeking abortions identified by the
State.”
Id. (internal quotation marks omitted). The district court deter-
mined that because SB8 affects every second trimester D&E procedure in
Texas, the class of women for whom SB8 is a relevant restriction is all women
between 15-20 weeks LMP who seek an outpatient second trimester D&E
abortion. We agree. And the State does not contend otherwise.
We turn, then, to the numerator in this fraction: the portion of women
seeking a D&E procedure between 15-20 weeks LMP for whom SB8 is a sub-
stantial obstacle. See id. SB8 compels all women seeking a D&E abortion
during this gestational period to undergo an additional and otherwise unnec-
essary procedure to induce fetal demise. The procedures are dangerous,
painful, invasive, and potentially experimental. And they expose all women
to heightened risks of adverse health consequences, while offering no corre-
sponding health benefit. Taken together, these burdens are substantial, ex-
ceed any minimal benefits from the law, and thus are undue. And because
SB8 would subject all women seeking a D&E abortion after 15 weeks LMP to
these undue burdens, SB8 operates as a substantial obstacle in a large fraction
of cases in which it is relevant. See Jackson Women’s Health
Org., 945 F.3d at
21
Case: 17-51060 Document: 00515600326 Page: 22 Date Filed: 10/13/2020
No. 17-51060
275-76. Indeed, the law imposes an undue burden on every Texas woman for
whom it is an actual, rather than irrelevant, restriction.
In an effort to salvage SB8, the State argues that we should limit the
scope of injunctive relief by enjoining only the law’s unconstitutional appli-
cations while leaving intact its purportedly constitutional applications. We
reject this argument for several reasons. First, as explained, the district court
properly exercised its discretion in granting facial relief. Second, “it is not
our role to rewrite an unconstitutional statute.” Jackson Women’s Health
Org., 945 F.3d at 277 n.50 (quoting United States v. Stevens,
559 U.S. 460, 481
(2010)); see also Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320,
330 (2006) (“[M]indful that our constitutional mandate and institutional
competence are limited, we restrain ourselves from rewriting state law to
conform it to constitutional requirements[.]” (cleaned up)). Third, “we are
without power to adopt a narrowing construction of a state statute unless
such a construction is reasonable and readily apparent.”
Stenberg, 530 U.S.
at 944 (internal quotation marks omitted). The State offers no such construc-
tion, and we think no such construction is possible because, as explained in
our large-fraction analysis, SB8 operates as an undue burden in all of its ap-
plications where it is a relevant restriction.
VI.
For these reasons, we AFFIRM the judgment of district court.
22
