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Usca5 Texas Pp

Usca5 Texas Pp

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Published by Abby Ohlheiser
pp/texas
pp/texas

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Published by: Abby Ohlheiser on Mar 27, 2014
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03/28/2014

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 13-51008 PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE; PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES; WHOLE WOMAN'S HEALTH; AUSTIN WOMEN'S HEALTH CENTER; KILLEEN WOMEN'S HEALTH CENTER; SOUTHWESTERN WOMEN'S SURGERY CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET WOMEN'S CLINIC; HOUSTON WOMEN'S CLINIC, each on behalf of itself, its patients and physicians; ALAN BRAID, M.D.; LAMAR ROBINSON, M.D.; PAMELA J. RICHTER, D.o., each on behalf of themselves and their patients; PLANNED PARENTHOOD WOMEN'S HEALTH CENTER, Plaintiffs - Appellees v.  ATTORNEY GENERAL GREGORY ABBOTT; DAVID LAKEY, M.D.; MARI ROBINSON, Executive Director of the Texas Medical Board, Defendants - Appellants  Appeal from the United States District Court for the Western District of Texas Before JONES, ELROD, and HAYNES, Circuit Judges. EDITH H. JONES, Circuit Judge: Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively “Planned Parenthood”) sued the Attorney General of Texas and other individuals (collectively “the State”), seeking to enforce their rights and those of patients for declaratory judgment and to enjoin two provisions of 2013 Texas House Bill
United States Court of Appeals Fifth Circuit
FILED
March 27, 2014 Lyle W. Cayce Clerk
Case: 13-51008 Document: 00512576152 Page: 1 Date Filed: 03/27/2014
 
No. 13-51008 No. 2 (“H.B. 2”) pertaining to the regulation of surgical abortions and abortion– inducing drugs.
1
 The district court held that parts of both provisions were unconstitutional and granted, in substantial part, the requested injunctive relief. A motions panel of this court granted a stay pending appeal, and the Supreme Court upheld the stay. We conclude that both of the challenged provisions are constitutional and therefore reverse and render judgment, with one exception, for the State.
I.
 
Background
Passed on July 12, 2013, H.B. 2 contains two provisions that Planned Parenthood contends are unconstitutional. The first requires that a physician performing or inducing an abortion have admitting privileges on the date of the abortion at a hospital no more than thirty miles from the location where the abortion is provided.
2
 The second mandates that the administration of abortion–inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA), with limited exceptions.
3
 We follow the parties in referring to drug–induced abortions, as distinguished from surgical abortions, as “medication abortions.”
4
 
1
 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1-12, 2013 Tex. Sess. Law Serv. 4795-802 (West) (codified at T
EX
.
 
H
EALTH
&
 
S
 AFETY
C
ODE
§§ 171.0031, 171.041-048, 171.061-064, & amending § 245.010.011; T
EX
.
 
O
CC
.
 
C
ODE
 
amending §§ 164.052 & 164.055).
2
 T
EX
.
 
H
EALTH
&
 
S
 AFETY
C
ODE
§ 171.0031(a)(1). Section 171.0031(b) criminalizes a physician’s failure to comply with Section 171.0031(a)(1).
3
 
Id.
 § 171.063(a);
 Planned Parenthood of Greater Tex. Surgical Health Servs. v.  Abbott
, 951 F. Supp. 2d 891, 905 (W.D. Tex. 2013).
4
 Along with Texas, five other states have recently passed laws substantially similar to the provisions at issue here, which have also been challenged in federal courts. In each of these cases, the district court enjoined all or part of the law pending trial on the merits.
Jackson Women's Health Org. v. Currier
, 940 F. Supp. 2d 416 (S.D. Miss. 2013) (admitting privileges);
 Planned Parenthood Se., Inc. v. Bentley
, 951 F.Supp.2d 1280 (M.D. Ala. 2013) (admitting privileges);
MBK Mgmt. Corp. v. Burdick
, 954 F. Supp. 2d 900 (D. N.D. 2013) (admitting privileges);
 Planned Parenthood of Wis., Inc. v. Van Hollen
, No. 13–CV–465– WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (admitting privileges);
 Planned  Parenthood Sw. Ohio Region v. DeWine
, No. 1:04-CV-493; 2011 WL 9158009 (S.D. Ohio May 23, 2011) (medication abortion). Four of these cases— 
 Bentley, Burdick, Van Hollen
, and
2
Case: 13-51008 Document: 00512576152 Page: 2 Date Filed: 03/27/2014
 
No. 13-51008 Planned Parenthood presented four grounds to the district court for invalidating the hospital admitting privileges requirement: violation of patients’ substantive due process rights, violation of physicians’ procedural due process rights, unlawful delegation of authority to hospitals, and vagueness.  As to the medication abortion regulation, Planned Parenthood argued that it also violated patients’ substantive due process rights and was unconstitutionally vague. Faced with a pleading filed only days before H.B. 2 was to become effective, the district court consolidated the preliminary injunction and merits hearings. Waiving a jury trial, the parties consented to a bench proceeding in which Planned Parenthood presented a few witnesses and both sides offered numerous affidavits. On October 28, 2013, five days after the conclusion of the trial, the district court issued an opinion that would permanently enjoin the admitting–privileges provision and partially enjoin the medication abortion regulation. The State noted its appeal and moved for an emergency stay of the district court’s order. Within forty-eight hours, on October 31, this court responded to the parties’ briefing and held that the State made a substantial showing of its likelihood of success on the merits of the admitting privileges requirement, and that it demonstrated likely success as to part of the district court’s hand–crafted “health of the mother” exception to the medication
 DeWine
 —are pending before the district court. The Seventh Circuit issued an extensive opinion affirming the preliminary injunction in
Van Hollen
.
 Parenthood of Wisconsin, Inc. v. Van Hollen,
738 F.3d 786 (7th Cir. 2013), discussed
infra
. Additionally, the Sixth Circuit affirmed summary judgment for the State in
 DeWine
on three of the four claims, though the issue of whether the State's regulation of medication abortion burdens a woman's right to health and life under the Fourteenth Amendment has been held for trial.
 Planned  Parenthood Sw. Ohio Region v. DeWine
, 696 F.3d 490 (6th Cir. 2012). The preliminary injunction entered by the district court in
Currier
 has been stayed pending its appeal before this court.
Jackson Women’s Health Org. v. Currier,
No. 13-60599, (5th Cir., filed Aug. 27, 2013).
 3
Case: 13-51008 Document: 00512576152 Page: 3 Date Filed: 03/27/2014

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