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 Alito, with whom The Chief Justice and
Justice Thomas join, dissenting.
The constitutionality of laws regulating
abortion is one of the most controversial issues in American law,
but this case does not require us to delve into that contentious
dispute. Instead, the dispositive issue here concerns a workaday
question that can arise in any case no matter the subject, namely,
whether the present case is barred by res judicata. As a court of
law, we have an obligation to apply such rules in a neutral fashion
in all cases, regardless of the subject of the suit. If anything,
when a case involves a controversial issue, we should be especially
careful to be scrupulously neutral in applying such rules.
The Court has not done so here. On the contrary,
determined to strike down two provisions of a new Texas abortion
statute in all of their applications, the Court simply disregards
basic rules that apply in all other cases.
Here is the worst example. Shortly after Texas
enacted House Bill 2 (H. B. 2) in 2013, the petitioners in
this case brought suit, claiming, among other things, that a
provision of the new law requiring a physician performing an
abortion to have admitting privileges at a nearby hospital is
“facially” unconstitutional and thus totally unenforce-able.
Petitioners had a fair opportunity to make their case, but they
lost on the merits in the United States Court of Appeals for the
Fifth Circuit, and they chose not to petition this Court for
review. The judgment against them became final.
Planned
Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott, 951 F. Supp. 2d 891 (WD Tex. 2013), aff’d
in part and rev’d in part, 748 F. 3d 583 (CA5 2014)
(
Abbott).
Under the rules that apply in regular cases,
petitioners could not relitigate the exact same claim in a second
suit. As we have said, “a losing litigant deserves no rematch after
a defeat fairly suffered, in adversarial proceedings, on an issue
identical in substance to the one he subsequently seeks to raise.”
Astoria Fed. Sav. & Loan Assn. v.
Solimino, 501
U. S. 104, 107 (1991) .
In this abortion case, however, that rule is
disregarded. The Court awards a victory to petitioners on the very
claim that they unsuccessfully pressed in the earlier case. The
Court does this even though petitioners, undoubtedly realizing that
a rematch would not be allowed, did not presume to include such a
claim in their complaint. The Court favors petitioners with a
victory that they did not have the audacity to seek.
Here is one more example: the Court’s treatment
of H. B. 2’s “severability clause.” When part of a statute is
held to be unconstitutional, the question arises whether other
parts of the statute must also go. If a statute says that
provisions found to be unconstitutional can be severed from the
rest of the statute, the valid provisions are allowed to stand.
H. B. 2 contains what must surely be the most emphatic
severability clause ever written. This clause says that every
single word of the statute and every possible application of its
provisions is severable. But despite this language, the Court holds
that no part of the challenged provisions and no application of any
part of them can be saved. Provisions that are indisputably
constitutional—for example, provisions that require facilities
performing abortions to follow basic fire safety measures—are
stricken from the books. There is no possible justification for
this collateral damage.
The Court’s patent refusal to apply
well-established law in a neutral way is indefensible and will
undermine public confidence in the Court as a fair and neutral
arbiter.
I
Res judicata—or, to use the more modern
terminology, “claim preclusion”—is a bedrock principle of our legal
system. As we said many years ago, “[p]ublic policy dictates that
there be an end of litigation[,] that those who have contested an
issue shall be bound by the result of the contest, and that matters
once tried shall be considered forever settled as between the
parties.”
Baldwin v.
Iowa State Traveling Men’s
Assn., 283 U. S. 522, 525 (1931) . This doctrine “is
central to the purpose for which civil courts have been
established, the conclusive resolution of disputes within their
jurisdictions. . . . To preclude parties from
contesting matters that they have had a full and fair opportunity
to litigate protects their adversaries from the expense and
vexation attending multiple lawsuits, conserves judicial resources,
and fosters reliance on judicial action by minimizing the
possibility of inconsistent decisions.”
Montana v.
United
States, 440 U. S. 147 –154 (1979). These are “vital public
interests” that should be “ ‘cordially regarded and
enforced.’ ”
Federated Department Stores, Inc. v.
Moitie, 452 U. S. 394, 401 (1981) .
The basic rule of preclusion is well known and
has been frequently stated in our opinions. Litigation of a “cause
of action” or “claim” is barred if (1) the same (or a closely
related) party (2) brought a prior suit asserting the same cause of
action or claim, (3) the prior case was adjudicated by a court of
competent jurisdiction and (4) was decided on the merits, (5) a
final judgment was entered, and (6) there is no ground, such as
fraud, to invalidate the prior judgment. See
Montana,
supra, at 153;
Commissioner v.
Sunnen, 333
U. S. 591, 597 (1948) ;
Cromwell v.
County of
Sac, 94 U. S. 351 –353 (1877).
A
I turn first to the application of this rule
to petitioners’ claim that H. B. 2’s admitting privileges
requirement is facially unconstitutional.
Here, all the elements set out above are easily
satisfied based on
Abbott, the 2013 case to which I
previously referred. That case (1) was brought by a group of
plaintiffs that included petitioners in the present case, (2)
asserted the same cause of action or claim, namely, a facial
challenge to the constitutionality of H. B. 2’s admitting
privileges requirement, (3) was adjudicated by courts of competent
jurisdiction, (4) was decided on the merits, (5) resulted in the
entry of a final judgment against petitioners, and (6) was not
otherwise subject to invalidation. All of this is clear, and that
is undoubtedly why petitioners’ attorneys did not even include a
facial attack on the admitting privileges requirement in their
complaint in this case. To have done so would have risked sanctions
for misconduct. See
Robinson v.
National Cash Register
Co., 808 F. 2d 1119, 1131 (CA5 1987) (a party’s
“persistence in litigating [a claim] when res judicata clearly
barred the suit violated rule 11”);
McLaughlin v.
Bradlee, 602 F. Supp. 1412, 1417 (DC 1985) (“It is
especially appropriate to impose sanctions in situations where the
doctrines of
res judicata and collateral estoppel plainly
preclude relitigation of the suit”).
Of the elements set out above, the Court
disputes only one. The Court concludes that petitioners’ prior
facial attack on the admitting privileges requirement and their
current facial attack on that same requirement are somehow not the
same cause of action or claim. But that conclusion is unsupported
by authority and plainly wrong.
B
Although the scope of a cause of action or
claim for purposes of res judicata is hardly a new question, courts
and scholars have struggled to settle upon a definition.[
1] But the outcome of the present case
does not depend upon the selection of the proper definition from
among those adopted or recommended over the years because the
majority’s holding is not supported by any of them.
In
Baltimore S. S. Co. v.
Phillips, 274 U. S. 316 (1927) , we defined a cause of
action as an “actionable wrong.”
Id., at 321; see also
ibid. (“A cause of action does not consist of facts, but of
the unlawful violation of a right which the facts show”). On this
understanding, the two claims at issue here are indisputably the
same.
The same result is dictated by the rule
recommended by the American Law Institute (ALI) in the first
Restatement of Judgments, issued in 1942. Section 61 of the first
Restatement explains when a claim asserted by a plaintiff in a
second suit is the same for preclusion purposes as a claim that the
plaintiff unsuccessfully litigated in a prior case. Under that
provision, “the plaintiff is precluded from subsequently
maintaining a second action based upon the same transaction, if the
evidence needed to sustain the second action would have sustained
the first action.” Restatement of Judgments §61. There is no doubt
that this rule is satisfied here.
The second Restatement of Judgments, issued by
the ALI in 1982, adopted a new approach for determining the scope
of a cause of action or claim. In
Nevada v.
United
States, 463 U. S. 110 (1983) , we noted that the two
Restatements differ in this regard, but we had no need to determine
which was correct.
Id., at 130–131, and n. 12. Here,
the majority simply assumes that we should follow the second
Restatement even though that Restatement—on the Court’s reading, at
least—leads to a conclusion that differs from the conclusion
clearly dictated by the first Restatement.
If the second Restatement actually supported the
majority’s holding, the Court would surely be obligated to explain
why it chose to follow the second Restatement’s approach. But here,
as in
Nevada,
supra, at 130–131, application of the
rule set out in the second Restatement does not change the result.
While the Court relies almost entirely on a comment to one section
of the second Restatement, the Court ignores the fact that a
straightforward application of the provisions of that Restatement
leads to the conclusion that petitioners’ two facial challenges to
the admitting privileges requirement constitute a single claim.
Section 19 of the second Restatement sets out
the general claim-preclusion rule that applies in a case like the
one before us: “A valid and final personal judgment rendered in
favor of the defendant bars another action by the plaintiff on the
same claim.” Section 24(1) then explains the scope of the “claim”
that is extinguished: It “includes all rights of the plaintiff to
remedies against the defendant with respect to all or any part of
the transaction, or series of connected transactions, out of which
the action arose.” Section 24’s Comment
b, in turn, fleshes
out the key term “transaction,” which it defines as “a natural
grouping or common nucleus of operative facts.” Whether a
collection of events constitutes a single transaction is said to
depend on “their relatedness in time, space, origin, or motivation,
and whether, taken together, they form a convenient unit for trial
purposes.”
Ibid.
Both the claim asserted in petitioners’ first
suit and the claim now revived by the Court involve the same
“nucleus of operative facts.” Indeed, they involve the very same
“operative facts,” namely, the enactment of the admitting
privileges requirement, which, according to the theory underlying
petitioners’ facial claims, would inevitably have the effect of
causing abortion clinics to close. This is what petitioners needed
to show—and what they attempted to show in their first facial
attack: not that the admit-ting privileges requirement had
already imposed a substantial burden on the right of Texas
women to obtain abortions, but only that it
would have that
effect once clinics were able to assess whether they could
practicably comply.
The Court’s decision in
Planned Parenthood of
Southeastern Pa. v.
Casey, 505 U. S. 833 (1992) ,
makes that clear.
Casey held that Pennsylvania’s spousal
notification requirement was facially unconstitutional even though
that provision had been enjoined prior to enforcement. See
id., at 845. And the Court struck down the provision because
it “
will impose a substantial obstacle.”
Id.,
at 893–894 (emphasis added). See also
id., at 893 (“The
spousal notification requirement
is thus likely to prevent a
significant number of women from obtaining an abortion” (emphasis
added));
id., at 894 (Women “
are likely to be
deterred from procuring an abortion” (emphasis added)).
Consistent with this understanding, what
petitioners tried to show in their first case was that the
admitting privileges requirement would cause clinics to close. They
claimed that their evidence showed that “at least one-third of the
State’s licensed providers
would stop providing abortions
once the privileges requirement took effect.”[
2] Agreeing with petitioners, the District Court
enjoined enforcement of the requirement on the ground that “there
will be abortion clinics
that will close.”
Abbott, 951 F. Supp. 2d, at 900 (emphasis added).
The Fifth Circuit found that petitioners’ evidence of likely effect
was insufficient, stating that petitioners failed to prove that
“any woman
will lack reasonable access to a clinic within
Texas.”
Abbott, 748 F. 3d, at 598 (some emphasis added;
some emphasis deleted). The correctness of that holding is
irrelevant for present purposes. What matters is that the
“operative fact” in the prior case was the enactment of the
admitting privileges requirement, and that is precisely the same
operative fact underlying petitioners’ facial attack in the case
now before us.[
3]
C
In light of this body of authority, how can
the Court maintain that the first and second facial claims are
really two different claims? The Court’s first argument is that
petitioners did not bring two facial claims because their complaint
in the present case sought only as-applied relief and it was the
District Court, not petitioners, who injected the issue of facial
relief into the case.
Ante, at 11. (After the District Court
gave them statewide relief, petitioners happily accepted the gift
and now present their challenge as a facial one. See Reply Brief
24–25 (“[F]acial invalidation is the only way to ensure that the
Texas requirements do not extinguish women’s liberty”).) The thrust
of the Court’s argument is that a trial judge can circumvent the
rules of claim preclusion by granting a plaintiff relief on a claim
that the plaintiff is barred from relitigating. Not surprisingly,
the Court musters no authority for this proposition, which would
undermine the interests that the doctrine of claim preclusion is
designed to serve. A “fundamental precept of common-law
adjudication is that an issue once determined by a competent court
is conclusive.”
Arizona v.
California, 460 U. S.
605, 619 (1983) . This interest in finality is equally offended
regardless of whether the precluded claim is included in a
complaint or inserted into the case by a judge.[
4]
Another argument tossed off by the Court is that
the judgment on the admitting privileges claim in the first case
does not have preclusive effect because it was based on “ ‘the
prematurity of the action.’ ” See
ante, at 11–12
(quoting Restatement (Second) of Judgments §20(2)). But this
argument grossly mischaracterizes the basis for the judgment in the
first case. The Court of Appeals did not hold that the facial
challenge was premature. It held that the evidence petitioners
offered was insufficient. See
Abbott, 748 F. 3d, at
598–599; see also n. 9,
infra. Petitioners could have
sought review in this Court, but elected not to do so.
This brings me to the Court’s main argument—that
the second facial challenge is a different claim because of
“changed circumstances.” What the Court means by this is that
petitioners now have better evidence than they did at the time of
the first case with respect to the number of clinics that would
have to close as a result of the admitting privileges requirement.
This argument is contrary to a cardinal rule of res judicata,
namely, that a plaintiff who loses in a first case cannot later
bring the same case sim-ply because it has now gathered better
evidence. Claim preclusion does not contain a “better evidence”
exception. See,
e.g.,
Torres v.
Shalala, 48
F. 3d 887, 894 (CA5 1995) (“If simply submitting new evidence
rendered a prior decision factually distinct,
res judicata
would cease to exist”);
Geiger v.
Foley Hoag LLP
Retirement Plan, 521 F. 3d 60, 66 (CA1 2008) (Claim
preclusion “applies even if the litigant is prepared to present
different evidence . . . in the second action”);
Saylor v.
United States, 315 F. 3d 664, 668 (CA6
2003) (“The fact that . . . new evidence might change the
outcome of the case does not affect application of claim preclusion
doctrine”);
International Union of Operating Engineers-Employers
Constr. Industry Pension, Welfare and Training Trust Funds v.
Karr, 994 F. 2d 1426, 1430 (CA9 1993) (“The fact that
some different evidence may be presented in this action
. . . , however, does not defeat the bar of res
judicata”); Restatement (Second) of Judgments §25, Comment
b
(“A mere shift in the evidence offered to support a ground held
unproved in a prior action will not suffice to make a new claim
avoiding the preclusive effect of the judgment”); 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §4403,
p. 33 (2d ed. 2002) (Wright & Miller) (Res judicata
“ordinarily applies despite the availability of new evidence”);
Restatement of Judgments §1, Comment
b (The ordinary rules
of claim preclusion apply “although the party against whom a
judgment is rendered is later in a position to produce better
evidence so that he would be successful in a second action”).
In an effort to get around this hornbook rule,
the Court cites a potpourri of our decisions that have no bearing
on the question at issue. Some are not even about res
judicata.[
5] And the cases that
do concern res judicata,
Abie State Bank v.
Bryan,
282 U. S. 765, 772 (1931) ,
Lawlor v.
National
Screen Service Corp., 349 U. S. 322, 328 (1955) , and
Third Nat. Bank of Louisville v.
Stone, 174
U. S. 432, 434 (1899) , endorse the unremarkable proposition
that a prior judgment does not preclude new claims based on acts
occurring after the time of the first judgment.[
6] But petitioners’ second facial challenge is not
based on new acts postdating the first suit. Rather, it is based on
the same underlying act, the enactment of H. B. 2, which
allegedly posed an undue burden.
I come now to the authority on which the Court
chiefly relies, Comment
f to §24 of the second Restatement.
This is how it reads:
“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. See
Illustrations 10–12. Where important human values—such as the
lawfulness of a 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.” (Emphasis added.)
As the word I have highlighted—“may”—should make
clear, this comment does not say that “[m]aterial operative facts
occurring after the decision of an action” always or even usually
form “the basis of a second action not precluded by the first.”
Rather, the comment takes the view that this “may” be so. Accord,
ante, at 11 (“[D]evelopment of new material facts
can
mean that a new case and an otherwise similar previous case do not
present the same claim” (emphasis added)). The question, then, is
when the development of new material facts should lead to
this conclusion. And there are strong reasons to conclude this
should be a very narrow exception indeed. Otherwise, this
statement, relegated to a mere comment, would revolutionize the
rules of claim preclusion—by permitting a party to relitigate a
lost claim whenever it obtains better evidence. Comment
f
was surely not meant to upend this fundamental rule.
What the comment undoubtedly means is far more
modest—only that in a few, limited circumstances the development of
new material facts should (in the opinion of the ALI) permit
relitigation. What are these circumstances? Section 24 includes
three illustrative examples in the form of hypothetical cases, and
none resembles the present case.
In the first hypothetical case, the subsequent
suit is based on new events that provide a basis for relief under a
different legal theory. Restatement (Second) of Judgments §24,
Illustration 10.
In the second case, a father who lost a prior
child cus-tody case brings a second action challenging his wife’s
fit-ness as a mother based on “subsequent experience,” which I take
to mean subsequent conduct by the mother.
Id., Illustration
11. This illustration is expressly linked to a determination of a
person’s “status”—and not even status in general, but a particular
status, fitness as a parent, that the law recognizes as changeable.
See Reporter’s Note,
id., §24, Comment
f
(Illustration 11 “exemplifies the effect of changed circumstances
in an action relating to status”)
.
In the final example, the government loses a
civil antitrust conspiracy case but then brings a second civil
antitrust conspiracy case based on new conspiratorial acts. The
illustration does not suggest that the legality of acts predating
the end of the first case is actionable in the second case, only
that the subsequent acts give rise to a new claim and that proof of
earlier acts may be admitted as evidence to explain the
significance of the later acts.
Id., Illustration 12.
The present claim is not similar to any of these
illustrations. It does not involve a claim based on postjudgment
acts and a new legal theory. It does not ask us to adjudicate a
person’s status. And it does not involve a continuing course of
conduct to be proved by the State’s new acts.
The final illustration actually undermines the
Court’s holding. The Reporter’s Note links this illustration to a
Fifth Circuit case,
Exhibitors Poster Exchange, Inc. v.
National Screen Service Corp., 421 F. 2d 1313 (1970). In
that case, the court distinguished between truly postjudgment acts
and “acts which have been completed [prior to the previous
judgment] except for their consequences.”
Id., at 1318. Only
postjudgment acts—and not postjudgment consequences—the Fifth
Circuit held, can give rise to a new cause of action. See
ibid.[
7]
Here, the Court does not rely on any new acts
performed by the State of Texas after the end of the first case.
Instead, the Court relies solely on what it takes to be new
consequences, the closing of additional clinics, that are said to
have resulted from the enactment of H. B. 2.
D
For these reasons, what the Court has done
here is to create an entirely new exception to the rule that a
losing plaintiff cannot relitigate a claim just because it now has
new and better evidence. As best I can tell, the Court’s new rule
must be something like this: If a plaintiff initially loses because
it failed to provide adequate proof that a challenged law will have
an unconstitutional effect and if subsequent developments tend to
show that the law will in fact have those effects, the plaintiff
may relitigate the same claim. Such a rule would be unprecedented,
and I am unsure of its wisdom, but I am certain of this: There is
no possible justification for such a rule unless the plaintiff, at
the time of the first case, could not have reasonably shown what
the effects of the law would be. And that is not the situation in
this case.
1
The Court does not contend that petitioners,
at the time of the first case, could not have gathered and provided
evidence that was sufficient to show that the admitting privileges
requirement
would cause a sufficient number of clinic
closures. Instead, the Court attempts to argue that petitioners
could not have shown at that time that a sufficient number of
clinics
had already closed. As I have explained, that is not
what petitioners need to show or what they attempted to prove.
Moreover, the Court is also wrong in its
understanding of petitioners’ proof in the first case. In support
of its holding that the admitting privileges requirement now
“places a ‘substantial obstacle in the path of a woman’s
choice,’ ” the Court relies on two facts: “Eight abortion
clinics closed in the months leading up to the requirement’s
effective date” and “[e]leven more closed on the day the
admitting-privileges requirement took effect.”
Ante, at 24.
But petitioners put on evidence addressing exactly this issue in
their first trial. They apparently surveyed 27 of the 36 abortion
clinics they identified in the State, including all 24 of the
clinics owned by them or their coplaintiffs, to find out what
impact the requirement would have on clinic operations. See
Appendix,
infra (App. K to Emergency Application To Vacate
Stay in
Planned Parenthood of Greater Tex. Surgical Health
Servs. v.
Abbott, O. T. 2013, No. 13A452, Plaintiffs’
Trial Exh. 46).
That survey claimed to show that the admitting
privileges requirement would cause 15 clinics to close.[
8] See
ibid. The Fifth Circuit
had that evidence before it, and did not refuse to consider
it.[
9] If that evidence was
sufficient to show that the admitting privileges rule created an
unlawful impediment to abortion access (and the District Court
indeed thought it sufficient), then the decision of the Fifth
Circuit in the first case was wrong as a matter of law. Petitioners
could have asked us to review that decision, but they chose not to
do so. A tactical decision of that nature has consequences. While
it does not mean that the admitting privileges requirement is
immune to a facial challenge, it does mean that these petitioners
and the other plaintiffs in the first case cannot mount such a
claim.
2
Even if the Court thinks that petitioners’
evidence in the first case was insufficient, the Court does not
claim that petitioners, with reasonable effort, could not have
gathered sufficient evidence to show with some degree of accuracy
what the effects of the admitting privileges requirement would be.
As I have just explained, in their first trial petitioners
introduced a survey of 27 abortion clinics indicating that 15 would
close because of the admitting privileges requirement. The Court
does not identify what additional evidence petitioners needed but
were unable to gather. There is simply no reason why petitioners
should be allowed to relitigate their facial claim.
E
So far, I have discussed only the first of the
two sentences in Comment
f, but the Court also relies on the
second sentence. I reiterate what that second sentence says:
“Where important human values—such as the
lawfulness of a 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.” Restatement (Second) of Judgments §24, Comment
f.
The second Restatement offers no judicial
support whatsoever for this suggestion, and thus the comment “must
be regarded as a proposal for change rather than a restatement of
existing doctrine, since the commentary refers to not a single
case, of this or any other United States court.”
United
States v.
Stuart, 489 U. S. 353, 375 (1989)
(Scalia, J., concurring in judgment). The sentence also sits in
considerable tension with our decisions stating that res judicata
must be applied uniformly and without regard to what a court may
think is just in a particular case. See,
e.g.,
Moitie, 452 U. S., at 401 (“The doctrine of res
judicata serves vital public interests beyond any individual
judge’s ad hoc determination of the equities in a particular
case”). Not only did this sentence seemingly come out of nowhere,
but it appears that no subsequent court has relied on this sentence
as a ground for decision. And while a few decisions have cited the
“important human values” language, those cases invariably involve
the relitigation of personal status determinations, as discussed in
Comment
f’s Illustration 11. See,
e.g., People
ex rel. Leonard HH. v.
Nixon, 148
App. Div. 2d 75, 79–80, 543 N. Y. S. 2d
998, 1001 (1989) (“[B]y its very nature, litigation concerning the
status of a person’s mental capacity does not lend itself to
strict application of res judicata on a transactional analysis
basis”).[
10]
* * *
In sum, the Court’s holding that petitioners’
second facial challenge to the admitting privileges requirement is
not barred by claim preclusion is not supported by any of our cases
or any body of lower court precedent; is contrary to the bedrock
rule that a party cannot relitigate a claim simply because the
party has obtained new and better evidence; is contrary to the
first Restatement of Judgments and the actual rules of the second
Restatement of Judgment; and is purportedly based largely on a
single comment in the second Restatement, but does not even
represent a sensible reading of that comment. In a regular case, an
attempt by petitioners to relitigate their previously unsuccessful
facial challenge to the admitting privileges requirement would have
been rejected out of hand—indeed, might have resulted in the
imposition of sanctions under Federal Rule of Civil Procedure 11.
No court would even think of reviving such a claim on its own. But
in this abortion case, ordinary rules of law—and fairness—are
suspended.
II
A
I now turn to the application of principles of
claim preclusion to a claim that petitioners did include in their
second complaint, namely, their facial challenge to the requirement
in H. B. 2 that abortion clinics comply with the rules that
govern ambulatory surgical centers (ASCs). As we have said many
times, the doctrine of claim preclusion not only bars the
relitigation of previously litigated claims; it can also bar claims
that are closely related to the claims unsuccessfully litigated in
a prior case. See
Moitie,
supra, at 398;
Montana, 440 U. S., at 153.
As just discussed, the Court’s holding on the
admitting privileges issue is based largely on a comment to §24 of
the second Restatement, and therefore one might think that
consistency would dictate an examination of what §24 has to say on
the question whether the ASC challenge should be barred. But
consistency is not the Court’s watchword here.
Section 24 sets out the general rule regarding
the “ ‘[s]plitting’ ” of claims. This is the rule that
determines when the barring of a claim that was previously
litigated unsuccessfully also extinguishes a claim that the
plaintiff could have but did not bring in the first case. Section
24(1) states that the new claim is barred if it is “any part of the
transaction, or series of connected transactions, out of which the
action arose.”
Here, it is evident that petitioners’ challenges
to the admitting privileges requirement and the ASC requirement are
part of the same transaction or series of connected transactions.
If, as I believe, the “transaction” is the enactment of H. B.
2, then the two facial claims are part of the very same
transaction. And the same is true even if the likely or actual
effects of the two provisions constitute the relevant transactions.
Petitioners argue that the admitting privileges requirement and the
ASC requirements
combined have the effect of
unconstitutionally restricting access to abortions. Their brief
repeatedly refers to the collective effect of the “requirements.”
Brief for Petitioners 40, 41, 42, 43, 44. They describe the
admitting privileges and ASC requirements as delivering a “one-two
punch.”
Id., at 40. They make no effort whatsoever to
separate the effects of the two provisions.
B
The Court nevertheless holds that there are
two “meaningful differences” that justify a departure from the
general rule against splitting claims.
Ante, at 16. Neither
has merit.
1
First, pointing to a statement in a pocket
part to a treatise, the Court says that “courts normally treat
challenges to distinct regulatory requirements as ‘separate
claims,’ even when they are part of one overarching ‘[g]overnment
regulatory scheme.’ ”
Ante, at 16–17 (quoting 18 Wright
& Miller §4408, at 54 (2d ed. 2002, Supp. 2016)). As support
for this statement, the treatise cites one case,
Hamilton’s
Bogarts, Inc. v.
Michigan, 501 F. 3d 644, 650 (CA6
2007). Even if these authorities supported the rule invoked by the
Court (and the Court points to no other authorities), they would
hardly be sufficient to show that “courts normally” proceed in
accordance with the Court’s rule. But in fact neither the treatise
nor the Sixth Circuit decision actually supports the Court’s
rule.
What the treatise says is the following:
“Government
regulatory schemes
provide regular examples of circumstances in which regulation of a
single business by many different provisions
should lead to
recognition of separate claims when the business challenges
different regulations.” 18 Wright & Miller §4408, at 54
(emphasis added).
Thus, the treatise expresses a view about what
the law “should” be; it does not purport to state what courts
“normally” do. And the recommendation of the treatise authors
concerns different provisions of a “regulatory scheme,” which often
embodies an accumulation of legislative enactments. Petitioners
challenge two provisions of one law, not just two provisions of a
regulatory scheme.
The Sixth Circuit decision is even further
afield. In that case, the plaintiff had previously lost a case
challenging one rule of a state liquor control commission. 501
F. 3d, at 649–650. On the question whether the final judgment
in that case barred a subsequent claim attacking another rule, the
court held that the latter claim was “likely” not barred because,
“although [the first rule] was challenged in the first lawsuit,
[the other rule] was not,” and “[t]he state has not argued or made
any showing that [the party] should also have challenged [the other
rule] at the time.”
Id., at 650. To say that these
authorities providemeager support for the Court’s reasoning would
be an exaggeration.
Beyond these paltry authorities, the Court adds
only the argument that we should not “encourage a kitchen-sink
approach to any litigation challenging the validity of statutes.”
Ante, at 17. I agree—but that is not the situation in this
case. The two claims here are very closely related. They are two
parts of the same bill. They both impose new requirements on
abortion clinics. They are justified by the State on the same
ground, protection of the safety of women seeking abortions. They
are both challenged as imposing the same kind of burden (impaired
access to clinics) on the same kind of right (the right to
abortion, as announced in
Roe v.
Wade, 410 U. S.
113 (1973) , and
Casey, 505 U. S. 833 ). And
petitioners attack the two provisions as a package. According to
petitioners, the two provisions were both enacted for the same
illegitimate purpose—to close down Texas abortion clinics. See
Brief for Petitioners 35–36. And as noted, petitioners rely on the
combined effect of the two requirements. Petitioners have made
little effort to identify the clinics that closed as a result of
each requirement but instead aggregate the two requirements’
effects.
For these reasons, the two challenges “form a
convenient trial unit.” Restatement (Second) of Judgments
§24(2)
. In fact, for a trial court to accurately identify
the effect of each provision it would also need to identify the
effect of the other provision. Cf.
infra, at 30.
2
Second, the Court claims that, at the time
when petitioners filed their complaint in the first case, they
could not have known whether future rules implementing the surgical
center requirement would provide an exemption for existing abortion
clinics.
Ante, at 17. This argument is deeply flawed.
“Where the inevitability of the operation of a
statute against certain individuals is patent, it is irrelevant to
the existence of a justiciable controversy that there will be a
time delay before the disputed provisions will come into effect.”
Regional Rail Reorganization Act Cases, 419 U. S. 102,
143 (1974) . And here, there was never any real chance that the
Texas Department of State Health Services would exempt existing
abortion clinics from all the ASC requirements. As the Court of
Appeals wrote, “it is abundantly clear from H. B. 2 that all
abortion facilities must meet the standards already promulgated for
ASCs.”
Whole Woman’s Health v.
Cole, 790 F. 3d
563, 583 (2015) (
per curiam) (case below). See Tex. Health
& Safety Code Ann. §245.010(a) (West Cum. Supp. 2015) (Rules
implementing H. B. 2 “must contain minimum standards
. . . for an abortion facility [that are] equivalent to
the minimum standards . . . for ambulatory surgical
centers”). There is no apparent basis for the argument that
H. B. 2 permitted the state health department to grant blanket
exemptions.
Whether there was any real likelihood that
clinics would be exempted from
particular ASC requirements
is irrelevant because both petitioners and the Court view the ASC
requirements as an indivisible whole. Petitioners told the Fifth
Circuit in unequivocal terms that they were “challeng[ing]
H. B. 2 broadly, with no effort whatsoever to parse out
specific aspects of the ASC requirement that they f[ou]nd onerous
or otherwise infirm.” 790 F. 3d, at 582. Similarly, the
majority views all the ASC provisions as an indivisible whole. See
ante, at 38 (“The statute was meant to require abortion
facilities to meet the integrated surgical-center standards—not
some subset thereof”). On this view, petitioners had no reason to
wait to see whether the Department of State Health Services might
exempt them from some of the ASC rules. Even if exemptions from
some of the ASC rules had been granted, petitioners and the
majority would still maintain that the provision of H. B. 2
making the ASC rules applicable to abortion facilities is facially
unconstitutional. Thus, exemption from some of the ASC requirements
would be entirely inconsequential. The Court has no response to
this point. See
ante, at 17.
For these reasons, petitioners’ facial attack on
the ASC requirements, like their facial attack on the admitting
privileges rule, is precluded.
III
Even if res judicata did not bar either facial
claim, a sweeping, statewide injunction against the enforcement of
the admitting privileges and ASC requirements would still be
unjustified. Petitioners in this case are abortion clinics and
physicians who perform abortions. If they were sim-ply asserting a
constitutional right to conduct a business or to practice a
profession without unnecessary state regulation, they would have
little chance of success. See,
e.g., Williamson v.
Lee
Optical of Okla., Inc., 348 U. S. 483 (1955) . Under our
abortion cases, however, they are permitted to rely on the right of
the abortion patients they serve. See
Doe v.
Bolton,
410 U. S. 179, 188 (1973) ; but see
ante, at 2–5
(Thomas, J., dissenting).
Thus, what matters for present purposes is not
the effect of the H. B. 2 provisions on petitioners but the
effect on their patients. Under our cases, petitioners must show
that the admitting privileges and ASC requirements impose an “undue
burden” on women seeking abortions.
Gonzales v.
Carhart, 550 U. S. 124, 146 (2007) . And in order to
obtain the sweeping relief they seek—facial invalidation of those
provisions—they must show, at a minimum, that these provisions have
an unconstitutional impact on at least a “large fraction” of Texas
women of reproductive age.[
11]
Id., at 167–168. Such a situation could result
if the clinics able to comply with the new requirements either
lacked the requisite overall capacity or were located too far away
to serve a “large fraction” of the women in question.
Petitioners did not make that showing. Instead
of offering direct evidence, they relied on two crude inferences.
First, they pointed to the number of abortion clinics that closed
after the enactment of H. B. 2, and asked that it be inferred
that all these closures resulted from the two challenged
provisions. See Brief for Petitioners 23–24. They made little
effort to show why particular clinics closed. Second, they pointed
to the number of abortions performed annually at ASCs before
H. B. 2 took effect and, because this figure is well below the
total number of abortions performed each year in the State, they
asked that it be inferred that ASC-compliant clinics could not meet
the demands of women in the State. See App. 237–238. Petitioners
failed to provide any evidence of the actual capac-ity of the
facilities that would be available to perform abortions in
compliance with the new law—even though they provided this type of
evidence in their first case to the District Court at trial and
then to this Court in their application for interim injunctive
relief. Appendix,
infra.
A
I do not dispute the fact that H. B. 2
caused the closure of some clinics. Indeed, it seems clear that
H. B. 2 was intended to force unsafe facilities to shut down.
The law was one of many enacted by States in the wake of the Kermit
Gosnell scandal, in which a physician who ran an abortion clinic in
Philadelphia was convicted for the first-degree murder of three
infants who were born alive and for the manslaughter of a patient.
Gosnell had not been actively supervised by state or local
authorities or by his peers, and the Philadelphia grand jury that
investigated the case recommended that the Commonwealth adopt a law
requiring abortion clinics to comply with the same regulations as
ASCs.[
12] If Pennsylvania
had had such a requirement in force, the Gosnell facility may have
been shut down before his crimes. And if there were any similarly
unsafe facilities in Texas, H. B. 2 was clearly in-tended to put
them out of business.[
13]
While there can be no doubt that H. B. 2 caused
some clinics to cease operation, the absence of proof regarding the
reasons for particular closures is a problem because some clinics
have or may have closed for at least four reasons other than the
two H. B. 2 requirements at issue here. These are:
1.
H. B. 2’s restriction on medication
abortion. In their first case, petitioners challenged the
provision of H. B. 2 that regulates medication abortion, but
that part of the statute was upheld by the Fifth Circuit and not
relitigated in this case. The record in this case indicates that in
the first six months after this restriction took effect, the number
of medication abortions dropped by 6,957 (compared to the same
period the previous year). App. 236.
2.
Withdrawal of Texas family
planning funds. In 2011, Texas passed a law preventing family
planning grants to providers that perform abortions and their
affiliates. In the first case, petitioners’ expert admitted that
some clinics closed “as a result of the defunding,”[
14] and as discussed below, this withdrawal
appears specifically to have caused multiple clinic closures in
West Texas. See
infra, at 29, and n. 18.
3.
The nationwide decline in abortion
demand. Petitioners’ expert testimony relies[
15] on a study from the Guttmacher
Institute which concludes that “ ‘[t]he national abortion rate
has resumed its decline, and
no evidence was found that the
overall drop in abortion incidence was related to the decrease in
providers or to restrictions implemented between 2008 and
2011.’ ” App. 1117 (direct testimony of Dr. Peter
Uhlenberg) (quoting R. Jones & J. Jerman, Abortion Incidence
and Service Availability In the United States, 2011, 46
Perspectives on Sexual and Reproductive Health 3 (2014); emphasis
in testimony). Consistent with that trend, “[t]he number of
abortions to residents of Texas declined by 4,956 between 2010 and
2011 and by 3,905 between 2011 and 2012.” App. 1118.
4.
Physician retirement (or other localized
factors). Like everyone else, most physicians eventually
retire, and the retirement of a physician who performs abortions
can cause the closing of a clinic or a reduction in the number of
abortions that a clinic can perform. When this happens, the closure
of the clinic or the reduction in capacity cannot be attributed to
H. B. 2 unless it is shown that the retirement was caused by
the admitting privileges or surgical center requirements as opposed
to age or some other factor.
At least nine Texas clinics may have ceased
performing abortions (or reduced capacity) for one or more of the
reasons having nothing to do with the provisions challenged here.
For example, in their first case, petitioners alleged that the
medication-abortion restriction would cause at least three
medication-only abortion clinics to cease performing
abortions,[
16] and they
predicted that “[o]ther facilities that offer both surgical and
medication abortion will be unable to offer medication
abortion,”[
17] presumably
reducing their capacity. It also appears that several clinics
(including most of the clinics operating in West Texas, apart from
El Paso) closed in response to the unrelated law restricting the
provision of family planning funds.[
18] And there is reason to question whether at least two
closures (one in Corpus Christi and one in Houston) may have been
prompted by physician retirements.[
19]
Neither petitioners nor the District Court
properly addressed these complexities in assessing causation—and
for no good reason. The total number of abortion clinics in the
State was not large. Petitioners could have put on evidence (as
they did for 27 individual clinics in their first case, see
Appendix,
infra) about the challenged provisions’ role in
causing the closure of each clinic,[
20] and the court could have made a factual finding as to
the cause of each closure.
Precise findings are important because the key
issue here is not the number or percentage of clinics affected, but
the effect of the closures on women seeking abortions,
i.e.,
on the capacity and geographic distribution of clinics used by
those women. To the extent that clinics closed (or experienced a
reduction in capacity) for any reason unrelated to the challenged
provisions of H. B. 2, the corresponding burden on abortion
access may not be factored into the access analysis. Because there
was ample reason to believe that some closures were caused by these
other factors,the District Court’s failure to ascertain the reasons
for clinic closures means that, on the record before us, there is
no way to tell which closures actually count. Petitioners—who, as
plaintiffs, bore the burden of proof—cannot simply point to
temporal correlation and call it causation.
B
Even if the District Court had properly
filtered out immaterial closures, its analysis would have been
incomplete for a second reason. Petitioners offered scant evidence
on the capacity of the clinics that are able to comply with the
admitting privileges and ASC requirements, or on those clinics’
geographic distribution. Reviewing the evidence in the record, it
is far from clear that there has been a material impact on access
to abortion.
On clinic capacity, the Court relies on
petitioners’ expert Dr. Grossman, who compared the number of
abortions performed at Texas ASCs before the enactment of
H. B. 2 (about 14,000 per year) with the total number of
abortions per year in the State (between 60,000–70,000 per year).
Ante, at 32–33.[
21]
Applying what the Court terms “common sense,” the Court infers that
the ASCs that performed abortions at the time of H. B. 2’s
enactment lacked the capacity to perform all the abortions sought
by women in Texas.
The Court’s inference has obvious limitations.
First, it is not unassailable “common sense” to hold that current
utilization equals capacity; if all we know about a grocery store
is that it currently serves 200 customers per week,
ante, at
33, that fact alone does not tell us whether it is an overcrowded
minimart or a practically empty supermarket. Faced with increased
demand, ASCs could potentially increase the number of abortions
performed without prohibitively expensive changes. Among other
things, they might hire more physicians who perform
abortions,[
22] utilize their
facilities more intensively or efficiently, or shift the mix of
services provided. Second, what matters for present purposes is not
the capacity of just those ASCs that performed abortions prior to
the enactment of H. B. 2 but the capacity of those that would
be available to perform abortions after the statute took effect.
And since the enactment of H. B. 2, the number of ASCs
performing abortions has increased by 50%—from six in 2012 to nine
today.[
23]
The most serious problem with the Court’s
reasoning is that its conclusion is belied by petitioners’ own
submissions to this Court. In the first case, when petitioners
asked this Court to vacate the Fifth Circuit’s stay of the District
Court’s injunction of the admitting privileges requirement pending
appeal, they submitted a chart previously provided in the District
Court that detailed the capacity of abortion clinics after the
admitting privileges requirement was to take effect.[
24] This chart is included as an Appendix
to this opinion.[
25] Three
of the facilities listed on the chart were ASCs, and their capacity
was shown as follows:
Southwestern Women’s Surgery Center in Dallas
was said to have the capacity for 5,720 abortions a year (110 per
week);
Planned Parenthood Surgical Health Services
Center in Dallas was said to have the capacity for 6,240 abortions
a year (120 per week); and
Planned Parenthood Center for Choice in Houston
was said to have the capacity for 9,100 abortions a year (175 per
week).[
26] See Appendix,
infra.
The average capacity of these three ASCs was
7,020 abortions per year.[
27] If the nine ASCs now performing abortions in Texas
have the same average capacity, they have a total capacity of
63,180. Add in the assumed capacity for two other clinics that are
operating pursuant to the judgment of the Fifth Circuit (over 3,100
abortions per year),[
28] and
the total for the State is 66,280 abortions per year. That is
comparable to the 68,298 total abortions performed in Texas in
2012, the year before H. B. 2 was enacted, App. 236,[
29] and well in excess of the
abortion rate one would expect—59,070—if subtracting the apparent
impact of the medication abortion restriction, see n. 21,
supra.
To be clear, I do not vouch for the accuracy of
this calculation. It might be too high or too low. The important
point is that petitioners put on evidence of actual clinic capacity
in their earlier case, and there is no apparent reason why they
could not have done the same here. Indeed, the Court asserts that,
after the admitting privileges requirement took effect, clinics
“were not able to accommodate increased demand,”
ante, at
35, but petitioners’ own evidence suggested that the requirement
had
no effect on capacity, see n. 21,
supra. On this
point, like the question of the reason for clinic closures,
petitioners did not discharge their burden, and the District Court
did not engage in the type of analysis that should have been
conducted before enjoining an important state law.
So much for capacity. The other[
30] potential obstacle to abortion access
is the distribution of facilities throughout the State. This might
occur if the two challenged H. B. 2 requirements, by causing
the closure of clinics in some rural areas, led to a situation in
which a “large fraction”[
31]
of women of reproductive age live too far away from any open
clinic. Based on the Court’s holding in
Planned Parenthood of
Southeastern Pa. v.
Casey, 505 U. S. 833 , it
appears that the need to travel up to 150 miles is not an undue
burden,[
32] and the evidence
in this case shows that if the only clinics in the State were those
that would have remained open if the judgment of the Fifth Circuit
had not been enjoined, roughly 95% of the women of reproductive age
in the State would live within 150 miles of an open facility (or
lived outside that range before H. B. 2).[
33] Because the record does not show why
particular facilities closed, the real figure may be even higher
than 95%.
We should decline to hold that these statistics
justify the facial invalidation of the H. B. 2 requirements.
The possibility that the admitting privileges requirement
might have caused a closure in Lubbock is no reason to issue
a facial injunction exempting Houston clinics from that
requirement. I do not dismiss the situation of those women who
would no longer live within 150 miles of a clinic as a result of
H. B. 2. But under current doctrine such localized problems
can be addressed by narrow as-applied challenges.
IV
Even if the Court were right to hold that res
judicata does not bar this suit and that H. B. 2 imposes an
undue burden on abortion access—it is, in fact, wrong on both
counts—it is still wrong to conclude that the admitting privileges
and surgical center provisions must be enjoined in their entirety.
H. B. 2 has an extraordinarily broad severability clause that
must be considered before enjoining any portion or application of
the law. Both challenged provisions should survive in substantial
part if the Court faithfully applies that clause. Regrettably, it
enjoins both in full, heedless of the (controlling) intent of the
state legislature. Cf.
Leavitt v.
Jane L., 518
U. S. 137, 139 (1996) (
per curiam) (“Severability is of
course a matter of state law”).
A
Applying H. B. 2’s severability clause to
the admitting privileges requirement is easy. Simply put, the
requirement must be upheld in every city in which its application
does not pose an undue burden. It surely does not pose that burden
anywhere in the eastern half of the State, where most Texans live
and where virtually no woman of reproductive age lives more than
150 miles from an open clinic. See App. 242, 244 (petitioners’
expert testimony that 82.5% of Texas women of reproductive age live
within 150 miles of open clinics in Austin, Dallas, Fort Worth,
Houston, and San Antonio). (Unfortunately, the Court does not
address the State’s argument to this effect. See Brief for
Respondents 51.) And petitioners would need to show that the
requirement caused specific West Texas clinics to close (but see
supra, at 29, and n. 18) before they could be entitled to an
injunction tailored to address those closures.
B
Applying severability to the surgical center
requirement calls for the identification of the particular
provisions of the ASC regulations that result in the imposition of
an undue burden. These regulations are lengthy and detailed, and
while compliance with some might be expensive, compliance with many
others would not. And many serve important health and safety
purposes. Thus, the surgical center requirements cannot be judged
as a package. But the District Court nevertheless held that all the
surgical center requirements are unconstitutional in all cases, and
the Court sustains this holding on grounds that are hard to take
seriously.
When the Texas Legislature passed H. B. 2,
it left no doubt about its intent on the question of severability.
It included a provision mandating the greatest degree of
severability possible. The full provision is reproduced
below,[
34] but it is enough
to note that under this provision “every provision, section,
subsection, sentence, clause, phrase, or word in this Act, and
every application of the provisions in this Act, are severable from
each other.” H. B. 2, §10(b), App. to Pet. for Cert. 200a. And
to drive home the point about the severability of applications of
the law, the provision adds:
“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. All constitutionally valid applications of
this Act shall be severed from any applications that a court finds
to be invalid, leaving the valid applications in force, because it
is the legislature’s intent and priority that the valid
applications be allowed to stand alone.”
Ibid.
This provision indisputably requires that all
surgical center regulations that are not themselves
unconstitutional be left standing. Requiring an abortion facility
to com-ply with any provision of the regulations applicable to
surgical centers is an “application of the provision” of H. B.
2 that requires abortion clinics to meet surgical center standards.
Therefore, if some such applications are unconstitutional, the
severability clause plainly requires that those applications be
severed and that the rest be left intact.
How can the Court possibly escape this painfully
obvious conclusion? Its main argument is that it need not honor the
severability provision because doing so would be too burdensome.
See
ante, at 38. This is a remarkable argument.
Under the Supremacy Clause, federal courts may
strike down state laws that violate the Constitution or conflict
with federal statutes, Art. VI, cl. 2, but in exercising this
power, federal courts must take great care. The power to invalidate
a state law implicates sensitive federal-state relations. Federal
courts have no authority to carpet-bomb state laws, knocking out
provisions that are per-fectly consistent with federal law, just
because it would be too much bother to separate them from
unconstitutional provisions.
In any event, it should not have been hard in
this case for the District Court to separate any bad provisions
from the good. Petitioners should have identified the particular
provisions that would entail what they regard as an undue expense,
and the District Court could have then concentrated its analysis on
those provisions. In fact, petitioners
did do this in their
trial brief, Doc. 185, p. 8 in
Lakey (Aug. 12, 2014)
(“It is the construction and nursing requirements that form the
basis of Plaintiffs’ challenge”), but they changed their position
once the District Court awarded blanket relief, see 790 F. 3d,
at 582 (petitioners told the Fifth Circuit that they “challenge
H. B. 2 broadly, with no effort whatsoever to parse out
specific aspects of the ASC requirement that they find onerous or
otherwise infirm”). In its own review of the ASC requirement, in
fact, the Court follows petitioners’ original playbook and focuses
on the construction and nursing requirements as well. See
ante, at 28–29 (detailed walkthrough of Tex. Admin. Code,
tit. 25, §§135.15 (2016) (nursing), 135.52 (construction)). I do
not see how it “would inflict enormous costs on both courts and
litigants,”
ante, at 38, to single out the ASC regulations
that this Court and petitioners have both targeted as the core of
the challenge.
By forgoing severability, the Court strikes down
numerous provisions that could not plausibly impose an undue
burden. For example, surgical center patients must “be treated with
respect, consideration, and dignity.” Tex. Admin. Code, tit. 25,
§135.5(a). That’s now enjoined. Patients may not be given
misleading “advertising regarding the competence and/or
capabilities of the organization.” §135.5(g). Enjoined. Centers
must maintain fire alarm and emergency communications systems,
§§135.41(d), 135.42(e), and eliminate “[h]azards that might lead to
slipping, falling, electrical shock, burns, poisoning, or other
trauma,” §135.10(b). Enjoined and enjoined. When a center is being
remodeled while still in use, “[t]emporary sound barriers shall be
provided where intense, prolonged construction noises will disturb
patients or staff in the occupied portions of the building.”
§135.51(b)(3)(B)(vi). Enjoined. Centers must develop and enforce
policies concerning teaching and publishing by staff. §§135.16(a),
(c). Enjoined. They must obtain informed consent before doing
research on patients. §135.17(e). Enjoined. And each center “shall
develop, im-plement[,] and maintain an effective, ongoing,
organization-wide, data driven patient safety program.” §135.27(b).
Also enjoined. These are but a few of the innocuous requirements
that the Court invalidates with nary a wave of the hand.
Any responsible application of the H. B. 2
severability provision would leave much of the law intact. At a
minimum, both of the requirements challenged here should be held
constitutional as applied to clinics in any Texas city that will
have a surgical center providing abortions (
i.e., those
areas in which there cannot possibly have been an undue burden on
abortion access). Moreover, as even the District Court found, the
surgical center requirement is clearly constitutional as to new
abortion facilities and facilities already licensed as surgical
centers.
Whole Woman’s Health v.
Lakey, 46
F. Supp. 3d 673, 676 (WD Tex. 2014). And we should uphold
every application of every surgical center regulation that does not
pose an undue burden—at the very least, all of the regulations as
to which petitioners have never made a specific complaint supported
by specific evidence. The Court’s wholesale refusal to engage in
the required severability analysis here revives the “antagonistic
‘canon of construction under which in cases involving abortion, a
permissible reading of a statute is to be avoided at all
costs.’ ”
Gonzales, 550 U. S., at 153–154 (quoting
Stenberg v.
Carhart, 530 U. S. 914, 977 (2000)
(Kennedy, J., dissenting); some internal quotation marks
omitted).
If the Court is unwilling to undertake the
careful severability analysis required, that is no reason to strike
down all applications of the challenged provisions. The proper
course would be to remand to the lower courts for a remedy tailored
to the specific facts shown in this case, to “try to limit the
solution to the problem.”
Ayotte v.
Planned Parenthood of
Northern New Eng., 546 U. S. 320, 328 (2006) .
V
When we decide cases on particularly
controversial issues, we should take special care to apply settled
procedural rules in a neutral manner. The Court has not done that
here.
I therefore respectfully dissent.
APPENDIX
App. K to Emergency Application To Vacate Stay
in O. T. 2013, No. 13A452, Plaintiffs’ Trial Exh. 46