NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–274
_________________
WHOLE WOMAN’S HEALTH, et al., PETITIONERS
v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE
HEALTH SERVICES, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 27, 2016]
Justice Breyer delivered the opinion of the
Court.
In
Planned Parenthood of Southeastern Pa.
v.
Casey, 505 U. S. 833, 878 (1992) , a plurality of
the Court con-cluded that there “exists” an “undue burden” on a
woman’s right to decide to have an abortion, and consequently a
provision of law is constitutionally invalid, if the “
purpose or
effect” of the provision “
is to place a substantial
obstacle in the path of a woman seeking an abortion before the
fetus attains viability.” (Emphasis added.) The plurality added
that “[u]nnecessary health regulations that have the purpose or
effect of presenting a substantial obstacle to a woman seeking an
abortion impose an undue burden on the right.”
Ibid.
We must here decide whether two provisions of
Texas’ House Bill 2 violate the Federal Constitution as
inter-preted in
Casey. The first provision, which we shall
call the
“admitting-privileges requirement,” says that
“[a] physician performing or inducing an
abortion . . . must, on the date the abortion is
performed or induced, have active admitting privileges at a
hospital that . . . is located not further than 30 miles
from the location at which the abortion is performed or induced.”
Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp.
2015).
This provision amended Texas law that had
previously required an abortion facility to maintain a written
protocol “for managing medical emergencies and the transfer of
patients requiring further emergency care to a hospital.” 38 Tex.
Reg. 6546 (2013).
The second provision, which we shall call the
“
surgical-center requirement,” says that
“the minimum standards for an abortion
facility must be equivalent to the minimum standards adopted under
[the Texas Health and Safety Code section] for ambulatory surgical
centers.” Tex. Health & Safety Code Ann. §245.010(a).
We conclude that neither of these provisions
offers medical benefits sufficient to justify the burdens upon
access that each imposes. Each places a substantial obstacle in the
path of women seeking a previability abortion, each constitutes an
undue burden on abortion access,
Casey,
supra, at 878
(plurality opinion), and each violates the Federal Constitution.
Amdt. 14, §1.
I
A
In July 2013, the Texas Legislature enacted
House Bill 2 (H. B. 2 or Act). In September (before the
new law took effect), a group of Texas abortion providers filed an
action in Federal District Court seeking facial invalidation ofthe
law’s admitting-privileges provision. In late October, the District
Court granted the injunction.
Planned Parenthood of Greater Tex.
Surgical Health Servs. v.
Abbott, 951
F. Supp. 2d 891, 901 (WD Tex. 2013). But three days
later, the Fifth Circuit vacated the injunction,thereby permitting
the provision to take effect.
Planned Parenthood of Greater Tex.
Surgical Health Servs. v.
Abbott, 734 F. 3d 406,
419 (2013).
The Fifth Circuit subsequently upheld the
provision, and set forth its reasons in an opinion released late
the following March. In that opinion, the Fifth Circuit pointed to
evidence introduced in the District Court the previous October. It
noted that Texas had offered evidence designed to show that the
admitting-privileges requirement “will reduce the delay in
treatment and decrease health risk for abortion patients with
critical complications,” and that it would “ ‘screen out’
untrained or incompetent abortion providers.”
Planned Parenthood
of Greater Tex. Surgical Health Servs. v.
Abbott, 748
F. 3d 583, 592 (2014) (
Abbott). The opinion also
explained that the plaintiffs had not provided sufficient evidence
“that abortion practitioners will likely be unable to comply with
the privileges requirement.”
Id., at 598. The court said
that all “of the major Texas cities, including Austin, Corpus
Christi, Dallas, El Paso, Houston, and San Antonio,” would
“continue to have multiple clinics where many physicians will have
or obtain hospital admitting privileges.”
Ibid. The
Abbott plaintiffs did not file a petition for certiorari in
this Court.
B
On April 6, one week after the Fifth Circuit’s
decision, petitioners, a group of abortion providers (many of whom
were plaintiffs in the previous lawsuit), filed the present lawsuit
in Federal District Court. They sought an injunction preventing
enforcement of the admitting-privileges provision as applied to
physicians at two abortion facilities, one operated by Whole
Woman’s Health in McAllen and the other operated by Nova Health
Systems in El Paso. They also sought an injunction prohibiting
enforcement of the surgical-center provision anywhere in Texas.
They claimed that the admitting-privileges provision and the
surgical-center provision violated the Constitution’s Fourteenth
Amendment, as interpreted in
Casey.
The District Court subsequently received
stipulations from the parties and depositions from the parties’
experts. The court conducted a 4-day bench trial. It heard, among
other testimony, the opinions from expert witnesses for both sides.
On the basis of the stipulations, deposi-tions, and testimony, that
court reached the following conclusions:
1. Of Texas’ population of more than 25 million
people, “approximately 5.4 million” are “women” of “reproductive
age,” living within a geographical area of “nearly 280,000 square
miles.”
Whole Woman’s Health v.
Lakey, 46
F. Supp. 3d 673, 681 (2014); see App. 244.
2. “In recent years, the number of abortions
reported in Texas has stayed fairly consistent at approximately
15–16% of the reported pregnancy rate, for a total number of
approximately 60,000–72,000 legal abortions performed annually.” 46
F. Supp. 3d, at 681; see App. 238.
3. Prior to the enactment of H. B. 2,
there were more than 40 licensed abortion facilities in Texas,
which “number dropped by almost half leading up to and in thewake
of enforcement of the admitting-privileges requirement that went
into effect in late-October 2013.” 46 F. Supp. 3d, at
681; App. 228–231.
4. If the surgical-center provision were allowed
to take effect, the number of abortion facilities, after September
1, 2014, would be reduced further, so that “only seven fa-cilities
and a potential eighth will exist in Texas.” 46
F. Supp. 3d, at 680; App. 182–183.
5. Abortion facilities “will remain only in
Houston, Austin, San Antonio, and the Dallas/Fort Worth
metropolitan region.” 46 F. Supp. 3d, at 681; App.
229–230. These include “one facility in Austin, two in Dallas, one
in Fort Worth, two in Houston, and either one or two in San
Antonio.” 46 F. Supp. 3d, at 680; App. 229–230.
6. “Based on historical data pertaining to
Texas’s average number of abortions, and assuming perfectly equal
distribution among the remaining seven or eight providers, this
would result in each facility serving between 7,500 and 10,000
patients per year. Accounting for the seasonal variations in
pregnancy rates and a slightly unequal distribution of patients at
each clinic, it is foreseeable that over 1,200 women per month
could be vying for counseling, appointments, and follow-up visits
at some of these facilities.” 46 F. Supp. 3d, at 682; cf.
App. 238.
7. The suggestion “that these seven or eight
providers could meet the demand of the entire state stretches
credulity.” 46 F. Supp. 3d, at 682; see App. 238.
8. “Between November 1, 2012 and May 1, 2014,”
that is, before and after enforcement of the admitting-privileges
requirement, “the decrease in geographical distribution of abortion
facilities” has meant that the number of women of reproductive age
living more than 50 miles from a clinic has doubled (from 800,000
to over 1.6 million); those living more than 100 miles has
increased by 150% (from 400,000 to 1 million); those living more
than 150 miles has increased by more than 350% (from 86,000 to
400,000); and those living more than 200 miles has increased by
about 2,800% (from 10,000 to 290,000). After September 2014, should
the surgical-center requirement go into effect, the number of women
of reproductive age living significant distances from an abortion
provider will increase as follows: 2 million women of reproductive
age will live more than 50 miles from an abortion provider; 1.3
million will live more than 100 miles from an abortion provider;
900,000 will live more than 150 miles from an abortion provider;
and 750,000 more than 200 miles from an abortion provider. 46
F. Supp. 3d, at 681–682; App. 238–242.
9. The “two requirements erect a particularly
high barrier for poor, rural, or disadvantaged women.” 46
F. Supp. 3d, at 683; cf. App. 363–370.
10. “The great weight of evidence demonstrates
that, before the act’s passage, abortion in Texas was extremely
safe with particularly low rates of serious complications and
virtually no deaths occurring on account of the procedure.” 46
F. Supp. 3d, at 684; see,
e.g., App. 257–259, 538;
see also
id., at 200–202, 253–257.
11. “Abortion, as regulated by the State before
the enactment of House Bill 2, has been shown to be much safer, in
terms of minor and serious complications, than many common medical
procedures not subject to such intense regulation and scrutiny.” 46
F. Supp. 3d, at 684; see,
e.g., App. 223–224
(describing risks in colonoscopies), 254 (discussing risks in
vasectomy and endometrial biopsy, among others), 275–277
(discussing complication rate in plastic surgery).
12. “Additionally, risks are not appreciably
lowered for patients who undergo abortions at ambulatory surgical
centers as compared to nonsurgical-center facilities.” 46
F. Supp. 3d, at 684; App. 202–206, 257–259.
13. “[W]omen will not obtain better care or
experience more frequent positive outcomes at an ambulatory
surgical center as compared to a previously licensed facility.” 46
F. Supp. 3d, at 684; App. 202–206.
14. “[T]here are 433 licensed ambulatory
surgical centers in Texas,” of which “336 . . . are
apparently either ‘grandfathered’ or enjo[y] the benefit of a
waiver of some or all” of the surgical-center “requirements.” 46
F. Supp. 3d, at 680–681; App. 184.
15. The “cost of coming into compliance” with
thesurgical-center requirement “for existing clinics is
significant,” “undisputedly approach[ing] 1 million dollars,” and
“most likely exceed[ing] 1.5 million dollars,” with “[s]ome
. . . clinics” unable to “comply due to physical size
limitations of their sites.” 46 F. Supp. 3d, at 682. The
“cost of acquiring land and constructing a new compliant clinic
will likely exceed three million dollars.”
Ibid.
On the basis of these and other related
findings, the District Court determined that the surgical-center
requirement “imposes an undue burden on the right of women
throughout Texas to seek a previability abortion,” and that the
“admitting-privileges requirement, . . . in conjunction
with the ambulatory-surgical-center requirement, imposes an undue
burden on the right of women in the Rio Grande Valley, El Paso, and
West Texas to seek a previability abortion.”
Id., at 687.
The District Court concluded that the “two provisions” would cause
“the closing of almost all abortion clinics in Texas that were
operating legally in the fall of 2013,” and thereby create a
constitutionally “impermissible obstacle as applied to all women
seeking a previability abortion” by “restricting access to
previously available legal facilities.”
Id., at 687–688. On
August 29, 2014, the court enjoined the enforcement of the two
provisions.
Ibid.
C
On October 2, 2014, at Texas’ request, the
Court of Appeals stayed the District Court’s injunction.
Whole
Woman’s Health v.
Lakey, 769 F. 3d 285, 305. Within
the next two weeks, this Court vacated the Court of Appeals’ stay
(in substantial part) thereby leaving in effect the District
Court’s injunction against enforcement of the surgical-center
provision and its injunction against enforcement of the
admitting-privileges requirement as applied to the McAllen and El
Paso clinics.
Whole Woman’s Health v.
Lakey, 574
U. S. ___ (2014). The Court of Appeals then heard Texas’
appeal.
On June 9, 2015, the Court of Appeals reversed
the District Court on the merits. With minor exceptions, it found
both provisions constitutional and allowed them to take effect.
Whole Women’s Health v.
Cole, 790 F. 3d 563, 567
(
per curiam), modified, 790 F. 3d 598 (CA5 2015).
Because the Court of Appeals’ decision rests upon alternative
grounds and fact-related considerations, we set forth its basic
reasoning in some detail. The Court of Appeals concluded:
• The District Court was wrong to hold the
admitting-privileges requirement unconstitutional because (except
for the clinics in McAllen and El Paso) the providers had not asked
them to do so, and principles of res judicata barred relief.
Id., at 580–583.
• Because the providers could have brought their
constitutional challenge to the surgical-center provision in their
earlier lawsuit, principles of res judicata also barred that claim.
Id., at 581–583.
• In any event, a state law “regulating
previability abortion is constitutional if: (1) it does not have
the purpose or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus; and (2) it is
reasonably related to (or designed to further) a legitimate state
interest.”
Id., at 572.
• “[B]oth the admitting privileges requirement
and” the surgical-center requirement “were rationally related to a
legitimate state interest,” namely, “rais[ing] the standard and
quality of care for women seeking abortions and . . .
protect[ing] the health and welfare of women seeking abortions.”
Id., at 584.
• The “[p]laintiffs” failed “to proffer
competent evidence contradicting the legislature’s statement of a
legitimate purpose.”
Id., at 585.
• “[T]he district court erred by substituting
its own judgment [as to the provisions’ effects] for that of the
legislature, albeit . . . in the name of the undue burden
inquiry.”
Id., at 587.
• Holding the provisions unconstitutional on
their face is improper because the plaintiffs had failed to show
that either of the provisions “imposes an undue burden on a large
fraction of women.”
Id., at 590.
• The District Court erred in finding that, if
the surgical-center requirement takes effect, there will be too few
abortion providers in Texas to meet the demand. That factual
determination was based upon the finding of one of plaintiffs’
expert witnesses (Dr. Grossman) that abortion providers in Texas
“ ‘will not be able to go from providing approximately 14,000
abortions annually, as they currently are, to providing the 60,000
to 70,000 abortions that are done each year in Texas once
all’ ” of the clinics failing to meet the surgical-center
requirement “ ‘are forced to close.’ ”
Id., at
589–590. But Dr. Grossman’s opinion is (in the Court of Appeals’
view) “ ‘
ipse dixit’ ”; the “ ‘record lacks
any actual evidence regarding the current or future capacity of the
eight clinics’ ”; and there is no “evidence in the record
that” the providers that currently meet the surgical-center
requirement “are operating at full capacity or that they cannot
increase capacity.”
Ibid.
For these and related reasons, the Court of
Appeals reversed the District Court’s holding that the
admitting-privileges requirement is unconstitutional and its
holding that the surgical-center requirement is unconstitutional.
The Court of Appeals upheld in part the District Court’s more
specific holding that the requirements are unconstitutional as
applied to the McAllen facility and Dr. Lynn (a doctor at that
facility), but it reversed the District Court’s holding that the
surgical-center requirement is unconstitutional as applied to the
facility in El Paso. In respect to this last claim, the Court of
Appeals said that women in El Paso wishing to have an abortion
could use abortion providers in nearby New Mexico.
II
Before turning to the constitutional question,
we must consider the Court of Appeals’ procedural grounds for
holding that (but for the challenge to the provisions of
H. B. 2 as applied to McAllen and El Paso) petitioners
were barred from bringing their constitutional challenges.
A
Claim Preclusion—Admitting-Privileges
Requirement
The Court of Appeals held that there could be
no facial challenge to the admitting-privileges requirement.
Because several of the petitioners here had previously brought an
unsuccessful facial challenge to that requirement (namely,
Abbott, 748 F. 3d, at 605; see
supra, at 2–3),
the Court of Appeals thought that “the principle of res judicata”
applied. 790 F. 3d, at 581. The Court of Appeals also held
that res judicata prevented the District Court from granting facial
relief to petitioners, concluding that it was improper to “facially
invalidat[e] the admitting privileges requirement,” because to do
so would “gran[t] more relief than anyone requested or briefed.”
Id., at 580. We hold that res judicata neither bars
petitioners’ challenges to the admitting-privileges requirement nor
prevents us from awarding facial relief.
For one thing, to the extent that the Court of
Appeals concluded that the principle of res judicata bars any
facial challenge to the admitting-privileges requirement, see
ibid., the court misconstrued petitioners’ claims.
Petitioners did not bring a facial challenge to the
admitting-privileges requirement in this case but instead
challenged that requirement as applied to the clinics in McAllen
and El Paso. The question is whether res judicata bars petitioners’
particular as-applied claims. On this point, the Court of Appeals
concluded that res judicata was no bar, see 790 F. 3d
,
at 592, and we agree.
The doctrine of claim preclusion (the
here-relevant aspect of res judicata) prohibits “successive
litigation of the very same claim” by the same parties.
New
Hampshire v.
Maine, 532 U. S. 742, 748 (2001) .
Petitioners’ postenforcement as-applied challenge is not “the very
same claim” as their preenforcement facial challenge. The
Restatement of Judgments notes that development of new material
facts can mean that a new case and an otherwise similar previous
case do not present the same claim. See Restatement (Second) of
Judgments §24, Comment
f (1980) (“Material operative facts
occurring after the decision of an action with respect to the same
subject matter may in themselves, or taken in conjunction with the
antecedent facts, comprise a transaction which may be made the
basis of a second action not precluded by the first”); cf.
id., §20(2) (“A valid and final personal judgment for the
defendant, which rests on the prematurity of the action or on the
plaintiff’s failure to satisfy a precondition to suit, does not bar
another action by the plaintiff instituted after the claim has
matured, or the precondition has been satisfied”);
id., §20,
Comment
k (discussing relationship of this rule with §24,
Comment
f ). The Courts of Appeals have used similar
rules to determine the contours of a new claim for purposes of
preclusion. See,
e.g., Morgan v.
Covington, 648
F. 3d 172, 178 (CA3 2011) (“[R]es judicata does not bar claims
that are predicated on events that postdate the filing of the
initial complaint”);
Ellis v.
CCA of Tenn. LLC, 650
F. 3d 640, 652 (CA7 2011);
Bank of N. Y. v.
First Millennium, Inc., 607 F. 3d 905, 919 (CA2 2010);
Smith v.
Potter, 513 F. 3d 781, 783 (CA7 2008);
Rawe v.
Liberty Mut. Fire Ins. Co., 462 F. 3d
521, 529 (CA6 2006);
Manning v.
Auburn, 953
F. 2d 1355, 1360 (CA11 1992). The Restatement adds that, where
“important human values—such as the lawfulness of continuing
personal disability or restraint—are at stake, even a slight change
of circumstances may afford a sufficient basis for concluding that
a second action may be brought.” §24, Comment
f; see
Bucklew v.
Lombardi, 783 F. 3d 1120, 1127 (CA8
2015) (allowing as-applied challenge to exe-cution method to
proceed notwithstanding prior facial challenge).
We find this approach persuasive. Imagine a
group of prisoners who claim that they are being forced to drink
contaminated water. These prisoners file suit against the facility
where they are incarcerated. If at first their suit is dismissed
because a court does not believe that the harm would be severe
enough to be unconstitutional, it would make no sense to prevent
the same prisoners from bringing a later suit if time and
experience eventually showed that prisoners were dying from
contaminated water. Such circumstances would give rise to a new
claim that the prisoners’ treatment violates the Constitution.
Factual developments may show that constitutional harm, which
seemed too remote or speculative to afford relief at the time of an
earlier suit, was in fact indisputable. In our view, such changed
circumstances will give rise to a new constitutional claim. This
approach is sensible, and it is consistent with our precedent. See
Abie State Bank v.
Bryan, 282 U. S. 765, 772
(1931) (where “suit was brought immediately upon the enactment of
the law,” “decision sustaining the law cannot be regarded as
precluding a subsequent suit for the purpose of testing [its]
validity . . . in the lights of the later actual
experience”); cf.
Lawlor v.
National Screen Service
Corp., 349 U. S. 322, 328 (1955) (judgment that “precludes
recovery on claims arising prior to its entry” nonetheless “cannot
be given the effect of extinguishing claims which did not even then
exist”);
United States v.
Carolene Products Co., 304
U. S. 144, 153 (1938) (“[T]he constitutionality of a statute
predicated upon the existence of a particular state of facts may be
challenged by showing to the court that those facts have ceased to
exist”);
Nashville, C. & St. L. R. Co. v.
Walters, 294 U. S. 405, 415 (1935) (“A statute valid as
to one set of facts may be invalid as to another. A statute valid
when enacted may become invalid by change in the conditions to
which it is applied” (footnote omitted));
Third Nat. Bank of
Louisville v.
Stone 174 U. S. 432, 434 (1899) (“A
question cannot be held to have been adjudged before an issue on
the subject could possibly have arisen”). Justice Alito’s
dissenting opinion is simply wrong that changed circumstances
showing that a challenged law has an unconstitutional effect can
never give rise to a new claim. See
post, at 14–15
(hereinafter the dissent).
Changed circumstances of this kind are why the
claim presented in
Abbott is not the same claim as
petitioners’ claim here. The claims in both
Abbott and the
present case involve “important human values.” Restatement (Second)
of Judgments §24, Comment
f. We are concerned with
H. B. 2’s “effect . . . on women seeking
abortions.”
Post, at 30 (Alito, J., dissenting). And that
effect has changed dramatically since petitioners filed their first
lawsuit.
Abbott rested on facts and evidence presented to
the District Court in October 2013. 748 F. 3d, at 599,
n. 14 (declining to “consider any arguments” based on
“developments since the conclusion of the bench trial”).
Petitioners’ claim in this case rests in significant part upon
later, concrete factual developments. Those developments matter.
The
Abbott plaintiffs brought their facial challenge to the
admitting-privileges requirement
prior to its
enforcement—before many abortion clinics had closed and while
it was still unclear how many clinics would be affected. Here,
petitioners bring an as-applied challenge to the requirement
after its enforcement—and after a large number of clinics
have in fact closed. The postenforcement consequences of
H. B. 2 were unknowable before it went into effect. The
Abbott court itself recognized that “[l]ater as-applied
challenges can always deal with subsequent, concrete constitutional
issues.”
Id., at 589. And the Court of Appeals in this case
properly decided that new evidence presented by petitioners had
given rise to a new claim and that petitioners’ as-applied
challenges are not precluded. See 790 F. 3d, at 591 (“We now
know with certainty that the non-[surgical-center] abortion
facilities have actually closed and physicians have been unable to
obtain admitting privileges after diligent effort”).
When individuals claim that a particular statute
will produce serious constitutionally relevant adverse consequences
before they have occurred—and when the courts doubt their likely
occurrence—the factual difference that those adverse consequences
have in fact occurred can make all the difference. Compare
the Fifth Circuit’s opinion in the earlier case,
Abbott,
supra, at 598 (“All of the major Texas cities . . .
continue to have multiple clinics where many physicians will have
or obtain hospital admitting privileges”), with the facts found in
this case, 46 F. Supp. 3d, at 680 (the two provisions
will leave Texas with seven or eight clinics). The challenge
brought in this case and the one in
Abbott are not the “very
same claim,” and the doctrine of claim preclusion consequently
doesnot bar a new challenge to the constitutionality of the
admitting-privileges requirement.
New Hampshire v.
Maine, 532 U. S., at 748. That the litigants in
Abbott did not seek review in this Court, as the dissent
suggests they should have done, see
post, at 10, does not
prevent them from seeking review of new claims that have arisen
after
Abbott was decided. In sum, the Restatement, cases
from the Courts of Appeals, our own precedent, and simple logic
combine to convince us that res judicata does not bar this
claim.
The Court of Appeals also concluded that the
award of facial
relief was precluded by principles of res
judicata. 790 F. 3d, at 581. The court concluded that the
District Court should not have “granted more relief than anyone
requested or briefed.”
Id., at 580. But in addition to
asking for as-applied relief, petitioners asked for “such other and
further relief as the Court may deem just, proper, and equitable.”
App. 167. Their evidence and argu-ments convinced the District
Court that the provision was unconstitutional across the board. The
Federal Rules of Civil Procedure state that (with an exception not
relevant here) a “final judgment should grant the relief to which
each party is entitled, even if the party has not demanded that
relief in its pleadings.” Rule 54(c). And we have held that, if the
arguments and evidence show that a statutory provision is
unconstitutional on its face, an injunction prohibiting its
enforcement is “proper.”
Citizens United v.
Federal
Election Comm’n, 558 U. S. 310, 333 (2010) ; see
ibid. (in “the exercise of its judicial responsibility” it
may be “necessary . . . for the Court to consider the
facial validity” of a statute, even though a facial challenge was
not brought); cf. Fallon, As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000)
(“[O]nce a case is brought, no general categorical line bars a
court from making broader pronouncements of invalidity in properly
‘as-applied’ cases”). Nothing prevents this Court from awarding
facial relief as the appropriate rem-edy for petitioners’
as-applied claims.
B
Claim Preclusion—Surgical-Center
Requirement
The Court of Appeals also held that claim
preclusion barred petitioners from contending that the
surgical-center requirement is unconstitutional. 790 F. 3d, at
583. Although it recognized that petitioners did not bring this
claim in
Abbott, it believed that they should have done so.
The court explained that petitioners’ constitutional challenge to
the surgical-center requirement and the chal-lenge to the
admitting-privileges requirement mounted in
Abbott
“arise from the same ‘transactio[n] or
series of connected transactions.’ . . . The challenges
involve the same parties and abortion facilities; the challenges
are governed by the same legal standards; the provisions at issue
were enacted at the same time as part of the same act; the
provisions were motivated by a common purpose; the provisions are
administered by the same state officials; and the challenges form a
convenient trial unit because they rely on a common nucleus of
operative facts.” 790 F. 3d, at 581.
For all these reasons, the Court of Appeals held
petitioners’ challenge to H. B. 2’s surgical-center
requirement was precluded.
The Court of Appeals failed, however, to take
account of meaningful differences. The surgical-center provision
and the admitting-privileges provision are separate, distinct
provisions of H. B. 2. They set forth two different,
independent requirements with different enforcement dates. This
Court has never suggested that challenges to two different
statutory provisions that serve two different functions must be
brought in a single suit. And lower courts normally treat
challenges to distinct regulatory requirements as “separate
claims,” even when they are part of one overarching “[g]overnment
regulatory scheme.” 18 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure §4408, p. 52 (2d ed. 2002,
Supp. 2015); see
Hamilton’s Bogarts,
Inc. v.
Michigan, 501 F. 3d 644, 650 (CA6 2007).
That approach makes sense. The opposite approach
adopted by the Court of Appeals would require treating every
statutory enactment as a single transaction which a given party
would only be able to challenge one time, in one lawsuit, in order
to avoid the effects of claim preclusion. Such a rule would
encourage a kitchen-sink approach to any litigation challenging the
validity of statutes. That outcome is less than optimal—not only
for litigants, but for courts.
There are other good reasons why petitioners
should not have had to bring their challenge to the surgical-center
provision at the same time they brought their first suit. The
statute gave the Texas Department of State Health Services
authority to make rules implementing the surgical-center
requirement. H. B. 2, §11(a), App. to Pet. forCert. 201a.
At the time petitioners filed
Abbott, that state agency had
not yet issued any such rules. Cf.
EPA v.
Brown, 431
U. S. 99, 104 (1977) (
per curiam); 13B Wright,
supra, §3532.6, at 629 (3d ed. 2008) (most courts will not
“undertake review before rules have been adopted”);
Natural
Resources Defense Council, Inc. v.
EPA, 859 F. 2d
156, 204 (CADC 1988).
Further, petitioners might well have expected
that those rules when issued would contain provisions
grandfathering some then-existing abortion facilities and granting
full or partial waivers to others. After all, more than three
quarters of non-abortion-related surgical centers had benefited
from that kind of provision. See 46 F. Supp. 3d, at
680–681 (336 of 433 existing Texas surgical centers have been
grandfathered or otherwise enjoy a waiver of some of the
surgical-center requirements); see also App. 299–302, 443–447,
468–469.
Finally, the relevant factual circumstances
changed between
Abbott and the present lawsuit, as we
previously described. See
supra, at 14–15.
The dissent musters only one counterargument.
According to the dissent, if statutory provisions “impos[e] the
same kind of burden . . . on the same kind of right” and
have mutually reinforcing effects, “it is evident that” they are
“part of the same transaction” and must be challenged together.
Post, at 20, 22. But for the word “evident,” the dissent
points to no support for this conclusion, and we find it
unconvincing. Statutes are often voluminous, with many related, yet
distinct, provisions. Plaintiffs, in order to preserve their
claims, need not challenge each such provision of, say, the USA
PATRIOT Act, the Bipartisan Campaign Reform Act of 2002, the
National Labor Relations Act, the Clean Water Act, the
Antiterrorism and Effective Death Penalty Act of 1996, or the
Patient Protection and Affordable Care Act in their first
lawsuit.
For all of these reasons, we hold that the
petitioners did not have to bring their challenge to the
surgical-center provision when they challenged the
admitting-privileges provision in
Abbott. We accordingly
hold that the doctrine of claim preclusion does not prevent them
from bringing that challenge now.
* * *
None of petitioners’ claims are barred by res
judicata. Five experts in civil procedure argued, in a brief
supporting petitioners’ request for certiorari, that “the panel’s
procedural ruling is so clearly incorrect” that there was no reason
to decline review. Brief for Professor Michael Dorf et al. as
Amici Curiae 22. For all of the reasons described above, we
agree that the Court of Appeals’ procedural ruling was incorrect.
We consequently proceed to consider the merits of petitioners’
claims.
III
Undue Burden—Legal Standard
We begin with the standard, as described in
Casey. We recognize that the “State has a legitimate
interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure maximum
safety for the patient.”
Roe v.
Wade, 410 U. S.
113, 150 (1973) . But, we added, “a statute which, while furthering
[a] 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 legitimate ends.”
Casey,
505 U. S., at 877 (plurality opinion). Moreover,
“[u]nnecessary health regulations that have the purpose or effect
of presenting a substantial obstacle to a woman seeking an abortion
impose an undue burden on the right.”
Id., at 878.
The Court of Appeals wrote that a state law is
“constitutional if: (1) it does not have the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus; and (2) it is reasonably related to
(or designed to further) a legitimate state interest.” 790
F. 3d, at 572. The Court of Appeals went on to hold that “the
district court erred by substituting its own judgment for that of
the legislature” when it conducted its “undue burden inquiry,” in
part because “medical uncertainty underlying a statute is for
resolution by legislatures, not the courts.”
Id., at 587
(citing
Gonzales v.
Carhart, 550 U. S. 124, 163
(2007) ).
The Court of Appeals’ articulation of the
relevant standard is incorrect. The first part of the Court of
Appeals’ test may be read to imply that a district court should not
consider the existence or nonexistence of medical benefits when
considering whether a regulation of abortion constitutes an undue
burden. The rule announced in
Casey, however, requires that
courts consider the burdens a law imposes on abortion access
together with the benefits those laws confer. See 505 U. S.,
at 887–898 (opinion of the Court) (performing this balancing with
respect to a spousal notification provision);
id., at
899–901 (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (same
balancing with respect to a parental notification provision). And
the second part of the test is wrong to equate the judicial review
applicable to the regulation of a constitutionally protected
personal liberty with the less strict review applicable where, for
example, economic legislation is at issue. See,
e.g.,
Williamson v.
Lee Optical of Okla., Inc., 348 U. S.
483, 491 (1955) . The Court of Appeals’ approach simply does not
match the standard that this Court laid out in
Casey, which
asks courts to consider whether any burden imposed on abortion
access is “undue.”
The statement that legislatures, and not courts,
must resolve questions of medical uncertainty is also inconsistent
with this Court’s case law. Instead, the Court, when determining
the constitutionality of laws regulating abortion procedures, has
placed considerable weight upon evidence and argument presented in
judicial proceedings. In
Casey, for example, we relied
heavily on the District Court’s factual findings and the
research-based submissions of
amici in declaring a portion
of the law at issue unconstitutional. 505 U. S., at 888–894
(opinion of the Court) (discussing evidence related to the
prevalence of spousal abuse in determining that a spousal
notification provision erected an undue burden to abortion access).
And, in
Gonzales the Court, while pointing out that we must
review legislative “factfinding under a deferential standard,”
added that we must not “place dispositive weight” on those
“findings.” 550 U. S., at 165.
Gonzales went on to
point out that the “
Court retains an independent constitutional
duty to review factual findings where constitutional rights are at
stake.”
Ibid. (emphasis added). Although there we upheld
a statute regulating abortion, we did not do so solely on the basis
of legislative findings explicitly set forth in the statute, noting
that “evidence presented in the District Courts contradicts” some
of the legislative findings.
Id., at 166. In these
circumstances, we said, “[u]ncritical deference to Congress’
factual findings . . . is inappropriate.”
Ibid.
Unlike in
Gonzales, the relevant statute
here does not set forth any legislative findings. Rather, one is
left to infer that the legislature sought to further a
constitutionally acceptable objective (namely, protecting women’s
health).
Id., at 149–150. For a district court to give
significant weight to evidence in the judicial record in these
circumstances is consistent with this Court’s case law. As we shall
describe, the District Court did so here. It did not simply
substitute its own judgment for that of the legislature. It
considered the evidence in the record—including expert evidence,
presented in stipulations, depositions, and testimony. It then
weighed the asserted benefits against the burdens. We hold that, in
so doing, the District Court applied the correct legal
standard.
IV
Undue Burden—Admitting-Privileges
Requirement
Turning to the lower courts’ evaluation of the
evidence, we first consider the admitting-privileges requirement.
Before the enactment of H. B. 2, doctors who provided
abortions were required to “have admitting privileges
or
have a working arrangement with a physician(s) who has admitting
privileges at a local hospital in order to ensure the necessary
back up for medical complications.” Tex. Admin. Code, tit. 25,
§139.56 (2009) (emphasis added). The new law changed this
requirement by requiring that a “physician performing or inducing
an abortion . . . must, on the date the abortion is
performed or induced, have active admitting privileges at a
hospital that . . . is located not further than 30 miles
from the location at which the abortion is performed or induced.”
Tex. Health & Safety Code Ann. §171.0031(a). The District Court
held that the legislative change imposed an “undue burden” on a
woman’s right to have an abortion. We conclude that there is
adequate legal and factual support for the District Court’s
conclusion.
The purpose of the admitting-privileges
requirement is to help ensure that women have easy access to a
hospital should complications arise during an abortion procedure.
Brief for Respondents 32–37. But the District Court found that it
brought about no such health-related benefit. The court found that
“[t]he great weight of evidence demonstrates that, before the act’s
passage, abortion in Texas was extremely safe with particularly low
rates of serious complications and virtually no deaths occurring on
account of the procedure.” 46 F. Supp. 3d, at 684. Thus,
there was no significant health-related problem that the new law
helped to cure.
The evidence upon which the court based this
conclusion included, among other things:
• A collection of at least five peer-reviewed
studies on abortion complications in the first trimester, showing
that the highest rate of major complications—including those
complications requiring hospital admission—was less than
one-quarter of 1%. See App. 269–270.
• Figures in three peer-reviewed studies showing
that the highest complication rate found for the much rarer second
trimester abortion was less than one-half of 1% (0.45% or about 1
out of about 200).
Id., at 270.
• Expert testimony to the effect that
complications rarely require hospital admission, much less
immediate transfer to a hospital from an outpatient clinic.
Id., at 266–267 (citing a study of complications occurring
within six weeks after 54,911 abortions that had been paid for by
the fee-for-service California Medicaid Program finding that the
incidence of complications was 2.1%, the incidence of complications
requiring hospital admission was 0.23%, and that of the 54,911
abortion patients included in the study, only 15 required immediate
transfer to the hospital on the day of the abortion).
• Expert testimony stating that “it is extremely
unlikely that a patient will experience a serious complication at
the clinic that requires emergent hospitalization” and “in the rare
case in which [one does], the quality of care that the patient
receives is not affected by whether the abortion provider has
admitting privileges at the hospital.”
Id., at 381.
• Expert testimony stating that in respect to
surgical abortion patients who do suffer complications requiring
hospitalization, most of these complications occur in the days
after the abortion, not on the spot. See
id., at 382; see
also
id., at 267.
• Expert testimony stating that a delay before
the onset of complications is also expected for medical abortions,
as “abortifacient drugs take time to exert their effects, and thus
the abortion itself almost always occurs after the patient has left
the abortion facility.”
Id., at 278.
• Some experts added that, if a patient needs a
hospital in the day or week following her abortion, she will likely
seek medical attention at the hospital nearest her home. See,
e.g., id., at 153.
We have found nothing in Texas’ record evidence
that shows that, compared to prior law (which required a “working
arrangement” with a doctor with admitting privileges), the new law
advanced Texas’ legitimate interest in protecting women’s
health.
We add that, when directly asked at oral
argument whether Texas knew of a single instance in which the new
requirement would have helped even one woman obtain better
treatment, Texas admitted that there was no evidence in the record
of such a case. See Tr. of Oral Arg. 47. This answer is consistent
with the findings of the other Federal District Courts that have
considered the health benefits of other States’ similar
admitting-privileges laws. See
Planned Parenthood of Wis.,
Inc. v.
Van Hollen, 94 F. Supp. 3d 949, 953
(WD Wis. 2015), aff’d
sub nom.
Planned Parenthood of
Wis., Inc. v.
Schimel, 806 F. 3d 908 (CA7 2015);
Planned Parenthood Southeast, Inc. v.
Strange, 33
F. Supp. 3d 1330, 1378 (MD Ala. 2014).
At the same time, the record evidence indicates
that the admitting-privileges requirement places a “substantial
obstacle in the path of a woman’s choice.”
Casey, 505
U. S., at 877 (plurality opinion). The District Court found,
as of the time the admitting-privileges requirement began to be
enforced, the number of facilities providing abortions dropped in
half, from about 40 to about 20. 46 F. Supp. 3d, at 681.
Eight abortion clinics closed in the months leading up to the
requirement’s effective date. See App. 229–230; cf. Brief for
Planned Parenthood Federation of America et al. as
Amici
Curiae 14 (noting that abortion facilities in Waco, San Angelo,
and Midland no longer operate because Planned Parenthood is “unable
to find local physicians in those communities with privileges who
are willing to provide abortions due to the size of those
communities and the hostility that abortion providers face”).
Eleven more closed on the day the admitting-privileges requirement
took effect. See App. 229–230; Tr. of Oral Arg. 58.
Other evidence helps to explain why the new
requirement led to the closure of clinics. We read that other
evidence in light of a brief filed in this Court by the Soci-ety of
Hospital Medicine. That brief describes the undisputed general fact
that “hospitals often condition admitting privileges on reaching a
certain number of admissions per year.” Brief for Society of
Hospital Medicine et al. as
Amici Curiae 11. Returning to
the District Court record, we note that, in direct testimony, the
president of Nova Health Systems, implicitly relying on this
general fact, pointed out that it would be difficult for doctors
regularly performing abortions at the El Paso clinic to obtain
admitting privileges at nearby hospitals because “[d]uring the past
10 years, over 17,000 abortion procedures were performed at the El
Paso clinic [and n]ot a single one of those patients had to be
transferred to a hospital for emergency treatment, much less
admitted to the hospital.” App. 730. In a word, doctors would be
unable to maintain admitting privileges or obtain those privileges
for the future, because the fact that abortions are so safe meant
that providers were unlikely to have any patients to admit.
Other
amicus briefs filed here set forth
without dispute other common prerequisites to obtaining admitting
privileges that have nothing to do with ability to perform medical
procedures. See Brief for Medical Staff Professionals as
Amici
Curiae 20–25 (listing, for example, requirements that an
applicant has treated a high number of patients in the hospital
setting in the past year, clinical data requirements, residency
requirements, and other discretionary factors); see also Brief for
American College of Obstetricians and Gynecologists et al. as
Amici Curiae 16 (ACOG Brief) (“[S]ome academic hospitals
will only allow medical staff membership for clinicians who also
. . . accept faculty appointments”). Again, returning to
the District Court record, we note that Dr. Lynn of the McAllen
clinic, a veteran obstetrics and gynecology doctor who estimates
that he has delivered over 15,000 babies in his 38 years in
practice was unable to get admitting privileges at any of the seven
hospitals within 30 miles of his clinic. App. 390–394. He was
refused admitting privileges at a nearby hospital for reasons, as
the hospital wrote, “not based on clinical competence
considerations.”
Id., at 393–394 (emphasis deleted). The
admitting-privileges requirement does not serve any relevant
credentialing function.
In our view, the record contains sufficient
evidence that the admitting-privileges requirement led to the
closure of half of Texas’ clinics, or thereabouts. Those closures
meant fewer doctors, longer waiting times, and increased crowding.
Record evidence also supports the finding that after the
admitting-privileges provision went into effect, the “number of
women of reproductive age living in a county . . . more
than 150 miles from a provider increased from approximately 86,000
to 400,000 . . . and the number of women living in a
county more than 200 miles from a provider from approximately
10,000 to 290,000.” 46 F. Supp. 3d, at 681. We recognize that
increased driving distances do not always constitute an “undue
burden.” See
Casey, 505 U. S., at 885–887 (joint
opinion of O’Connor, Kennedy, and Souter, JJ.). But here, those
increases are but one additional burden, which, when taken together
with others that the closings brought about, and when viewed in
light of the virtual absence of any health benefit, lead us to
conclude that the record adequately supports the District Court’s
“undue burden” conclusion. Cf.
id., at 895 (opinion of the
Court) (finding burden “undue” when requirement places “substantial
obstacle to a woman’s choice” in “a large fraction of the cases in
which” it “is relevant”).
The dissent’s only argument why these clinic
closures, as well as the ones discussed in Part V,
infra,
may not have imposed an undue burden is this: Although
“H. B. 2 caused the closure of
some clinics,”
post, at 26 (emphasis added), other clinics may have closed
for other reasons (so we should not “actually count” the burdens
resulting from those closures against H. B. 2),
post, at 30–31. But petitioners satisfied their burden to
present evidence of causation by presenting direct testimony as
well as plausible inferences to be drawn from the timing of the
clinic closures. App. 182–183, 228–231. The District Court credited
that evidence and concluded from it that H. B. 2 in
factled to the clinic closures. 46 F. Supp. 3d, at 680–681.
The dissent’s speculation that perhaps other evidence, not
presented at trial or credited by the District Court, might have
shown that some clinics closed for unrelated reasons does not
provide sufficient ground to disturb the District Court’s factual
finding on that issue.
In the same breath, the dissent suggests that
one benefit of H. B. 2’s requirements would be that they
might “force unsafe facilities to shut down.”
Post, at 26.
To support that assertion, the dissent points to the Kermit Gosnell
scandal. Gosnell, a physician in Pennsylvania, was convicted of
first-degree murder and manslaughter. He “staffed his facility with
unlicensed and indifferent workers, and then let them practice
medicine unsupervised” and had “[d]irty facilities; unsanitary
instruments; an absence of functioning monitoring and resuscitation
equipment; the use of cheap, but dangerous, drugs; illegal
procedures; and inadequate emergency access for when things
inevitably went wrong.” Report of Grand Juryin No. 0009901–2008
(1st Jud. Dist. Pa., Jan. 14,2011), p. 24, online at
http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf
(as last visited June 24, 2016). Gosnell’s behavior was terribly
wrong. But there is no reason to believe that an extra layerof
regulation would have affected that behavior. Deter-mined
wrongdoers, already ignoring existing stat-utes and safety
measures, are unlikely to be convinced to adopt safe practices by a
new overlay of regulations. Regardless, Gosnell’s deplorable crimes
could escape detection only because his facility went uninspected
for more than 15 years.
Id., at 20. Pre-existing Texas law
already contained numerous detailed regulations covering abortion
facilities, including a requirement that facilities be inspected at
least annually. See
infra, at 28 (describing those
regulations). The record contains nothing to suggest that
H. B. 2 would be more effective than pre-existing Texas
law at deterring wrongdoers like Gosnell from criminal
behavior.
V
Undue Burden—Surgical-Center Requirement
The second challenged provision of Texas’ new
law sets forth the surgical-center requirement. Prior to enactment
of the new requirement, Texas law required abortion facilities to
meet a host of health and safety requirements. Under those
pre-existing laws, facilities were subject to annual reporting and
recordkeeping requirements, see Tex. Admin. Code, tit. 25, §§139.4,
139.5, 139.55, 139.58; a quality assurance program, see §139.8;
personnel policies and staffing requirements, see §§139.43, 139.46;
physical and environmental requirements, see §139.48; infection
control standards, see §139.49; disclosure requirements, see
§139.50; patient-rights standards, see §139.51; and medical- and
clinical-services standards, see §139.53, including anesthesia
standards, see §139.59. These requirements are policed by random
and announced inspections, at least annually, see §§139.23, 139.31;
Tex. Health & Safety Code Ann. §245.006(a) (West 2010), as well
as administrative penalties, injunctions, civil penalties,and
criminal penalties for certain violations, see Tex. Admin. Code,
tit. 25, §139.33; Tex. Health & Safety Code Ann. §245.011
(criminal penalties for certain reporting violations).
H. B. 2 added the requirement that an
“abortion facility” meet the “minimum standards . . . for
ambulatory surgical centers” under Texas law. §245.010(a) (West
Cum. Supp. 2015). The surgical-center regulations include, among
other things, detailed specifications relating to the size of the
nursing staff, building dimensions, and other building
requirements. The nursing staff must comprise at least “an adequate
number of [registered nurses] on duty to meet the following minimum
staff requirements: director of the department (or designee), and
supervisory and staff personnel for each service area to assure the
immediate availability of [a registered nurse] for emergency care
or for any patient when needed,” Tex. Admin. Code, tit. 25,
§135.15(a)(3) (2016), as well as “a second individual on duty on
the premises who is trained and currently certified in basic
cardiac life support until all patients have been discharged from
the facility” for facilities that provide moderate sedation, such
as most abortion facilities, §135.15(b)(2)(A). Facilities must
include a full surgical suite with an operating room that has “a
clear floor area of at least 240 square feet” in which “[t]he
minimum clear dimension between built-in cabinets, counters, and
shelves shall be 14 feet.” §135.52(d)(15)(A). There must be a
preoperative patient holding room and a postoperative recovery
suite. The former “shall be provided and arranged in a one-way
traffic pattern so that patients entering from outside the surgical
suite can change, gown, and move directly into the restricted
corridor of the surgical suite,” §135.52(d)(10)(A), and the latter
“shall be arranged to provide a one-way traffic pattern from the
restricted surgical corridor to the postoperative recovery suite,
and then to the extended observation rooms or discharge,”
§135.52(d)(9)(A). Surgical centers must meet numerous other spatial
requirements, see generally §135.52, including specific corridor
widths, §135.52(e)(1)(B)(iii). Surgical centers must also have an
advanced heating, ventilation, and air conditioning system,
§135.52(g)(5), and must satisfy particular piping system and
plumbing requirements, §135.52(h). Dozens of other sections list
additional requirements that apply to surgical centers. See
generally §§135.1–135.56.
There is considerable evidence in the record
supporting the District Court’s findings indicating that the
statutory provision requiring all abortion facilities to meet all
surgical-center standards does not benefit patients and is not
necessary. The District Court found that “risks are not appreciably
lowered for patients who undergo abortions at ambulatory surgical
centers as compared to nonsurgical-center facilities.” 46
F. Supp. 3d, at 684. The court added that women “will not
obtain better care or experience more frequent positive outcomes at
an ambulatory surgical center as compared to a previously licensed
facility.”
Ibid. And these findings are well supported.
The record makes clear that the surgical-center
requirement provides no benefit when complications arise in the
context of an abortion produced through medication. That is
because, in such a case, complications would almost always arise
only after the patient has left the facil-ity. See
supra, at
23; App. 278. The record also contains evidence indicating that
abortions taking place in an abortion facility are safe—indeed,
safer than numerous procedures that take place outside hospitals
and to which Texas does not apply its surgical-center requirements.
See,
e.g.,
id., at 223–224, 254, 275–279. The total
number of deaths in Texas from abortions was five in the period
from 2001 to 2012, or about one every two years (that is to say,
one out of about 120,000 to 144,000 abortions).
Id., at 272.
Nationwide, childbirth is 14 times more likely than abortion to
result in death,
ibid., but Texas law allows a midwife to
oversee childbirth in the patient’s own home. Colonoscopy, a
procedure that typically takes place outside a hospital (or
surgical center) setting, has a mortality rate 10 times higher than
an abortion.
Id., at 276–277; see ACOG Brief 15 (the
mortality rate for liposuction, another outpatient procedure, is 28
times higher than the mortal-ity rate for abortion). Medical
treatment after an incomplete miscarriage often involves a
procedure identical to that involved in a nonmedical abortion, but
it often takes place outside a hospital or surgical center. App.
254; see ACOG Brief 14 (same). And Texas partly or wholly
grandfathers (or waives in whole or in part the surgical-center
requirement for) about two-thirds of the facilities to which the
surgical-center standards apply. But it neither grandfathers nor
provides waivers for any of the facilities that perform abortions.
46 F. Supp. 3d, at 680–681; see App. 184. These facts
indicate that the surgical-center provision imposes “a requirement
that simply is not based on differences” between abortion and other
surgical procedures “that are reasonably related to” preserving
women’s health, the asserted “purpos[e] of the Act in which it is
found.”
Doe, 410 U. S., at 194 (quoting
Morey v.
Doud, 354 U. S. 457, 465 (1957) ; internal quotation
marks omitted).
Moreover, many surgical-center requirements are
inappropriate as applied to surgical abortions. Requiring scrub
facilities; maintaining a one-way traffic pattern through the
facility; having ceiling, wall, and floor fin-ishes; separating
soiled utility and sterilization rooms; and regulating air
pressure, filtration, and humidity control can help reduce
infection where doctors conduct procedures that penetrate the skin.
App. 304. But abortions typically involve either the administration
of medicines or procedures performed through the natural opening of
the birth canal, which is itself not sterile. See
id., at
302–303. Nor do provisions designed to safeguard heavily sedated
patients (unable to help themselves) during fire emergencies, see
Tex. Admin. Code, tit. 25, §135.41; App. 304, provide any help to
abortion patients, as abortion facilities do not use general
anesthesia or deep sedation,
id., at 304–305. Further, since
the few instances in which serious complications do arise following
an abortion almost always require hospitalization, not treatment at
a surgical center,
id., at 255–256, surgical-center
standards will not help in those instances either.
The upshot is that this record evidence, along
with the absence of any evidence to the contrary, provides ample
support for the District Court’s conclusion that “[m]any of the
building standards mandated by the act and its implementing rules
have such a tangential relationship to patient safety in the
context of abortion as to be nearly arbitrary.” 46
F. Supp. 3d, at 684. That conclusion, along with the
supporting evidence, provides sufficient support for the more
general conclusion that the surgical-center requirement “will not
[provide] better care or . . . more frequent positive
outcomes.”
Ibid. The record evidence thus supports the
ultimate legal conclusion that thesurgical-center requirement is
not necessary.
At the same time, the record provides adequate
evidentiary support for the District Court’s conclusion that the
surgical-center requirement places a substantial obstacle in the
path of women seeking an abortion. The parties stipulated that the
requirement would further reduce the number of abortion facilities
available to seven or eight facilities, located in Houston, Austin,
San Antonio, and Dallas/Fort Worth. See App. 182–183. In the
District Court’s view, the proposition that these “seven or eight
providers could meet the demand of the entire State stretches
credulity.” 46 F. Supp. 3d, at 682. We take this
statement as a finding that these few facilities could not “meet”
that “demand.”
The Court of Appeals held that this finding was
“clearly erroneous.” 790 F. 3d, at 590. It wrote that the
finding rested upon the “ ‘
ipse dixit’ ” of one
expert, Dr. Grossman, and that there was no evidence that the
current surgical centers (
i.e., the seven or eight) are
operating at full capacity or could not increase capacity.
Ibid. Unlike the Court of Appeals, however, we hold that the
record provides adequate support for the District Court’s
finding.
For one thing, the record contains charts and
oral testimony by Dr. Grossman, who said that, as a result of the
surgical-center requirement, the number of abortions that the
clinics would have to provide would rise from “ ‘14,000
abortions annually’ ” to “ ‘60,000 to 70,000’ ”—an
increase by a factor of about five.
Id., at 589–590. The
District Court credited Dr. Grossman as an expert witness. See 46
F. Supp. 3d, at 678–679, n. 1;
id., at 681,
n. 4 (finding “indicia of reliability” in Dr. Grossman’s
conclusions). The Federal Rules of Evidence state that an expert
may testify in the “form of an opinion” as long as that opinion
rests upon “sufficient facts or data” and “reliable principles and
methods.” Rule 702
. In this case Dr. Grossman’s opinion
rested upon his participation, along with other university
researchers, in research that tracked “the number of open
facilities providing abortion care in the state by . . .
requesting information from the Texas Department of State Health
Services . . . [, t]hrough interviews with clinic
staff[,] and review of publicly available information.” App. 227.
The District Court acted within its legal authority in determining
that Dr. Grossman’s testimony was admissible. See Fed. Rule Evid.
702; see also
Daubert v.
Merrell Dow Pharmaceuticals,
Inc., 509 U. S. 579, 589 (1993) (“[U]nder the Rules the
trial judge must ensure that any and all [expert] evidence admitted
is not only relevant, but reliable”); 29 C. Wright & V. Gold,
Federal Practice and Procedure: Evidence §6266, p. 302 (2016)
(“Rule 702 impose[s] on the trial judge additional responsibility
to determine whether that [expert] testimony is likely to promote
accurate factfinding”).
For another thing, common sense suggests that,
more often than not, a physical facility that satisfies a certain
physical demand will not be able to meet five times that demand
without expanding or otherwise incurring significant costs. Suppose
that we know only that a certain grocery store serves 200 customers
per week, that a certain apartment building provides apartments for
200 families, that a certain train station welcomes 200 trains per
day. While it is conceivable that the store, the apartment
building, or the train station could just as easily provide for
1,000 customers, families, or trains at no significant additional
cost, crowding, or delay, most of us would find this possibility
highly improbable. The dissent takes issue with this general,
intuitive point by arguing that many places operate below capacity
and that in any event, facilities could simply hire additional
providers. See
post, at 32. We disagree that, according to
common sense, medical facilities, well known for their wait times,
operate below capacity as a general matter. And the fact that so
many facilities were forced to close by the admitting-privileges
requirement means that hiring more physi-cians would not be quite
as simple as the dissent suggests. Courts are free to base their
findings on commonsense inferences drawn from the evidence. And
that is what the District Court did here.
The dissent now seeks to discredit Dr. Grossman
by pointing out that a preliminary prediction he made in his
testimony in
Abbott about the effect of the
admitting-privileges requirement on capacity was not borne out
after that provision went into effect. See
post, at 31,
n. 22. If every expert who overestimated or underestimated any
figure could not be credited, courts would struggle to find expert
assistance. Moreover, making a hypothesis—and then attempting to
verify that hypothesis with further studies, as Dr. Grossman did—is
not irresponsible. It is an essential element of the scientific
method. The District Court’s decision to credit Dr. Grossman’s
testimony was sound, particularly given that Texas provided no
credible experts to rebut it. See 46 F. Supp. 3d, at 680,
n. 3 (declining to credit Texas’ expert witnesses, in part
because Vincent Rue, a nonphysician consultant for Texas, had
exercised “considerable editorial and discretionary control over
the contents of the experts’ reports”).
Texas suggests that the seven or eight remaining
clinics could expand sufficiently to provide abortions for the
60,000 to 72,000 Texas women who sought them each year. Because
petitioners had satisfied their burden, the obligation was on
Texas, if it could, to present evidence rebutting that issue to the
District Court. Texas admitted that it presented no such evidence.
Tr. of Oral Arg. 46. Instead, Texas argued before this Court that
one new clinic now serves 9,000 women annually.
Ibid. In
addition to being outside the record, that example is not
representative. The clinic to which Texas referred apparently cost
$26 million to construct—a fact that even more clearly demonstrates
that requiring seven or eight clinics to serve five times their
usual number of patients does indeed represent an undue burden on
abortion access. See Planned Parenthood Debuts New Building: Its
$26 Million Center in Houston is Largest of Its Kind in
U. S
., Houston Chronicle, May 21, 2010, p. B1.
Attempting to provide the evidence that Texas
did not, the dissent points to an exhibit submitted in
Abbott showing that three Texas surgical centers, two in
Dallas as well as the $26-million facility in Houston, are each
capable of serving an average of 7,000 patients per year. See
post, at 33–35. That “average” is misleading. In addition to
including the Houston clinic, which does not represent most
facilities, it is underinclusive. It ignores the evidence as to the
Whole Woman’s Health surgical-center facility in San Antonio, the
capacity of which is described as “severely limited.” The exhibit
does nothing to rebut the commonsense inference that the dramatic
decline in the number of available facilities will cause a
shortfall in capacity should H. B. 2 go into effect. And
facilities that were still operating after the effective date of
the admitting-privileges provision were not able to accommodate
increased demand. See App. 238; Tr. of Oral Arg. 30–31; Brief for
National Abortion Federation et al. as
Amici Curiae 17–20
(citing clinics’ experiences since theadmitting-privileges
requirement went into effect of 3-week wait times, staff burnout,
and waiting rooms so full, patients had to sit on the floor or wait
outside).
More fundamentally, in the face of no threat to
women’s health, Texas seeks to force women to travel long distances
to get abortions in crammed-to-capacity superfacilities. Patients
seeking these services are less likely to get the kind of
individualized attention, serious conversation, and emotional
support that doctors at less taxed facilities may have offered.
Healthcare facilities and medical professionals are not fungible
commodities. Surgical centers attempting to accommodate sudden,
vastly increased demand, see 46 F. Supp. 3d, at 682, may
find that quality of care declines. Another commonsense inference
that the District Court made is that these effects would be harmful
to, not supportive of, women’s health. See
id., at
682–683.
Finally, the District Court found that the costs
that a currently licensed abortion facility would have to incur to
meet the surgical-center requirements were considerable, ranging
from $1 million per facility (for facilities with adequate space)
to $3 million per facility (where additional land must be
purchased).
Id., at 682. This evidence supports the
conclusion that more surgical centers will not soon fill the gap
when licensed facilities are forced to close.
We agree with the District Court that the
surgical-center requirement, like the admitting-privileges
requirement, provides few, if any, health benefits for women, poses
a substantial obstacle to women seeking abortions, and constitutes
an “undue burden” on their constitutional right to do so.
VI
We consider three additional arguments that
Texas makes and deem none persuasive.
First, Texas argues that facial invalidation of
both challenged provisions is precluded by H. B. 2’s
severability clause. See Brief for Respondents 50–52. The
severability clause says that “every provision, section,
subsection, sentence, clause, phrase, or word in this Act, and
every application of the provision in this Act, are severable from
each other.” H. B. 2, §10(b), App. to Pet. for Cert.
200a. It further provides that if “any application of any provision
in this Act to any person, group of persons, or circumstances is
found by a court to be invalid, the remaining applications of that
provision to all other persons and circumstances shall be severed
and may not be affected.”
Ibid. That language, Texas argues,
means that facial invalidation of parts of the statute is not an
option; instead, it says, the severability clause mandates a more
narrowly tailored judicial remedy. But the challenged provisions of
H. B. 2 close most of the abortion facilities in Texas
and place added stress on those facilities able to remain open.
They vastly increase the obstacles confronting women seeking
abortions in Texas without providing any benefit to women’s health
capable of withstanding any meaningful scrutiny. The provisions are
unconstitutional on their face: Including a severability provision
in the law does not change that conclusion.
Severability clauses, it is true, do express the
enacting legislature’s preference for a narrow judicial remedy. As
a general matter, we attempt to honor that preference. But our
cases have never required us to proceed application by conceivable
application when confronted with a facially unconstitutional
statutory provision. “We have held that a severability clause is an
aid merely; not an inexorable command.”
Reno v.
American
Civil Liberties Union, 521 U. S. 844 –885, n. 49
(1997) (internal quotation marks omitted). Indeed, if a
severability clause could impose such a requirement on courts,
legislatures would easily be able to insulate unconstitutional
statutes from most facial review. See
ibid. (“It would
certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts
to step inside and say who could be rightfully detained, and who
should be set at large. This would, to some extent, substitute the
judicial for the legislative department of the government”
(internal quotation marks omitted)). A severability clause is not
grounds for a court to “devise a judicial remedy that . . .
entail[s] quintessentially legislative work.”
Ayotte v.
Planned Parenthood of Northern New Eng., 546 U. S. 320,
329 (2006) . Such an approach would inflict enormous costs on both
courts and litigants, who would be required to proceed in this
manner whenever a single application of a law might be valid. We
reject Texas’ invitation to pave the way for legislatures to
immunize their statutes from facial review.
Texas similarly argues that instead of finding
the entire surgical-center provision unconstitutional, we should
invalidate (as applied to abortion clinics) only those spe-cific
surgical-center regulations that unduly burden the pro-vision of
abortions, while leaving in place other surgical-center regulations
(for example, the reader could pickany of the various examples
provided by the dissent, see
post, at 42–43). See Brief for
Respondents 52–53. As we have explained, Texas’ attempt to broadly
draft a requirement to sever “applications” does not require us to
proceed in piecemeal fashion when we have found the statutory
provisions at issue facially unconstitutional.
Nor is that approach to the regulations even
required by H. B. 2 itself. The statute was meant to
require abortion facilities to meet the integrated surgical-center
standards—not some subset thereof. The severability clause refers
to severing applications of words and phrases
in the Act,
such as the surgical-center requirement as a whole. See H. B.
2, §4, App. to Pet. for Cert. 194a. It does not say that courts
should go through the individual components of the different,
surgical-center statute, let alone the individual
regulations governing surgical centers to see whether those
requirements are severable from each other as applied to abortion
facilities. Facilities subject to some subset of those regulations
do not qualify as surgical centers. And the risk of harm caused by
inconsistent application of only a fraction of interconnected
regulations counsels against doing so.
Second, Texas claims that the provisions at
issue here do not impose a substantial obstacle because the women
affected by those laws are not a “large fraction” of Texan women
“of reproductive age,” which Texas reads
Casey to have
required. See Brief for Respondents 45, 48. But
Casey used
the language “large fraction” to refer to “a large fraction of
cases in which [the provision at issue] is
relevant,” a
class narrower than “all women,” “pregnant women,” or even “the
class of
women seeking abortions identified by the State.”
505 U. S., at 894–895 (opinion of the Court) (emphasis added).
Here, as in
Casey, the relevant denominator is “those
[women] for whom [the provision] is an actual rather than an
irrelevant restriction.”
Id., at 895.
Third, Texas looks for support to
Simopoulos v.
Virginia, 462 U. S. 506 (1983) , a
case in which this Court uphelda surgical-center requirement as
applied to second-trimester abortions. This case, however, unlike
Simopoulos, involves restrictions applicable to all
abortions, not simply to those that take place during the second
trimester. Most abortions in Texas occur in the first trimester,
not the second. App. 236. More importantly, in
Casey we
discarded the trimester framework, and we now use “viability” as
the relevant point at which a State may begin limiting women’s
access to abortion for reasons unrelated to maternal health. 505
U. S., at 878 (plurality opinion). Because the second
trimester includes time that is both previability and
postviability,
Simopoulos cannot provide clear guidance.
Further, the Court in
Simopoulos found that the petitioner
in that case, unlike petitioners here, had waived any argument that
the regulation did not significantly help protect women’s health.
462 U. S., at 517.
* * *
For these reasons the judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.