Case: 13-51008 Document: 00512423021 Page: 1 Date Filed: 10/29/2013 No. 13-51008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH SERVICES, PLANNED PARENTHOOD CENTER FOR CHOICE, PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES, PLANNED PARENTHOOD WOMEN’S HEALTH CENTER, WHOLE WOMAN’S HEALTH, AUSTIN WOMEN’S HEALTH CENTER, KILLEEN WOMEN’S HEALTH CENTER, SOUTHWESTERN WOMEN’S SURGERY CENTER, WEST SIDE CLINIC, INC., ROUTH STREET WOMEN’S CLINIC, HOUSTON WOMEN’S CLINIC, each on behalf of itself, its patients and physicians, ALAN BRAID, M.D., LAMAR ROBINSON, M.D., PAMELA J. RICHTER, D.O., each on behalf of themselves and their patients, Plaintiffs-Appellees, v. GREGORY ABBOTT, Attorney General of Texas; DAVID LAKEY, M.D., Commissioner of the Texas Department of State Health Services; MARI ROBINSON, Executive Director of the Texas Medical Board; in their official capacities, Defendants-Appellants. On Appeal from the United States District Court for the Western District of Texas, Austin Division Case No. 1:13-cv-00862-LY OPPOSITION TO EMERGENCY MOTION TO STAY PERMANENT INJUNCTION PENDING APPEAL R. Jim George Elizabeth von Kreisler George Brothers Kincaid & Horton LLP 1100 Norwood Tower 114 West 7th Street Austin, TX 78701 October 29, 2013 Janet Crepps Esha Bhandari Jennifer Sokoler Center for Reproductive Rights 120 Wall Street, 14th Floor New York, NY 10005 Attorneys for Plaintiffs-Appellees (complete list of counsel follows) Case: 13-51008 Document: 00512423021 Page: 2 Date Filed: 10/29/2013 R. James George, Jr. Janet Crepps Elizabeth von Kreisler Esha Bhandari George Brothers Kincaid & Horton Jennifer Sokoler LLP Center for Reproductive Rights 1100 Norwood Tower 120 Wall Street, 14th Floor 114 West 7th Street New York, NY 10005 Austin, TX 78701 (864) 962-8519 (Janet Crepps) (512) 495-1400 (917) 637-3600 (Bhandari & Sokoler) (512) 499-0094 jcrepps@reprorights.org jgeorge@gbkh.com ebhandari@reprorights.org evonkreisler@gbkh.com jsokoler@reprorights.org Attorneys for Plaintiffs-Appellees Whole Woman’s Health, Austin Women’s Health Center, Killeen Women’s Health Center, Southwestern Women’s Surgery Helene T. Krasnoff Center, West Side Clinic, Inc., Alan Alice Clapman Braid, M.D., Lamar Robinson, M.D., Planned Parenthood Federation of and Pamela J. Richter, D.O. America 1110 Vermont Avenue, N.W., Suite Brigitte Amiri 300 Renée Paradis Washington, D.C. 20005 American Civil Liberties Union Foundation (202) 973-4800 Reproductive Freedom Project helene.krasnoff@ppfa.org 125 Broad Street, 18th Floor alice.clapman@ppfa.org New York, NY 10004 (212) 519-7897 Attorneys for Planned Parenthood bamiri@aclu.org Plaintiffs-Appellees rparadis@aclu.org Attorneys for all Plaintiffs-Appellees Rebecca L. Robertson American Civil Liberties Union of Texas 1500 McGowen Street, Suite 250 Houston, TX 77004 (713) 942-8146 rrobertson@aclutx.org Attorneys for Plaintiffs-Appellees Routh Street Women’s Clinic, Houston Women’s Clinic, and Southwestern Women’s Surgery Center i Case: 13-51008 Document: 00512423021 Page: 3 Date Filed: 10/29/2013 CERTIFICATE OF INTERESTED PERSONS Planned Parenthood, et al. v. Abbott, et al., No. 13-51008 The undersigned counsel of record certifies that the following listed persons and entities, as described in the fourth sentence of Rule 28.2.1, have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. - Planned Parenthood of Greater Texas Surgical Health Services, Plaintiff-Appellee - Planned Parenthood Center for Choice, Plaintiff-Appellee - Planned Parenthood Sexual Healthcare Services, Plaintiff-Appellee - Planned Parenthood Women’s Health Center, Plaintiff-Appellee - Whole Woman’s Health, Plaintiff-Appellee - Austin Women’s Health Center, Plaintiff-Appellee - Killeen Women’s Health Center, Plaintiff-Appellee - Southwestern Women’s Surgery Center, Plaintiff-Appellee - West Side Clinic, Inc., Plaintiff-Appellee - Routh Street Women’s Clinic, Plaintiff-Appellee - Houston Women’s Clinic, Plaintiff-Appellee - Alan Braid, M.D., Plaintiff-Appellee - Lamar Robinson, M.D., Plaintiff-Appellee - Pamela J. Richter, D.O., Plaintiff-Appellee - R. James George, Jr., Elizabeth von Kreisler, Rico Reyes, Janet Crepps, Esha Bhandari, Jennifer Sokoler, Helene T. Krasnoff, Alice Clapman, Brigitte Amiri, Renée Paradis, Rebecca L. Robertson, Counsel for Plaintiffs-Appellees in the District Court - Gregory Abbott, Attorney General of Texas, Defendant-Appellant - David Lakey, M.D., Commissioner of the Texas Department of State Health Services, Defendant-Appellant ii Case: 13-51008 Document: 00512423021 Page: 4 Date Filed: 10/29/2013 - Mari Robinson, Executive Director of the Texas Medical Board, Defendant-Appellant - David Escamilla, County Attorney for Travis County; Craig Watkins, Criminal District Attorney for Dallas County; Devon Anderson, District Attorney for Harris County; Matthew Powell, Director of the Lubbock County Criminal District Attorney's Office; James E. Nichols, County Attorney for Bell County; Joe Shannon, Jr., Criminal District Attorney for Tarrant County; René Guerra, Criminal District Attorney for Hidalgo County; Susan D. Reed, Criminal District Attorney for Bexar County; Abelino Reyna, Criminal District Attorney for El Paso County; Jaime Esparza, District Attorney for El Paso County, Defendants in the District Court dismissed from this action upon the stipulation of the parties; - Jonathan F. Mitchell, Andrew S. Oldham, Arthur C. D’Andrea, Beth Klusmann, Gunnar P. Seaquist, John B. Scott, Lawrence J. Joseph, Michael P. Murphy, Philip A. Lionberger, Counsel for DefendantsAppellants in the District Court /s/ Janet Crepps Janet Crepps Attorney for Plaintiffs-Appellees iii Case: 13-51008 Document: 00512423021 Page: 5 Date Filed: 10/29/2013 INTRODUCTION On October 28, 2013, following a bench trial, the District Court issued a Memorandum Opinion Incorporating Findings of Fact and Conclusions of Law (the “Order”) partially in Plaintiffs-Appellees’ (“Plaintiffs”) favor. The District Court permanently enjoined the requirement of 2013 Texas House Bill No. 2 (“the Act”), scheduled to take effect on October 29, 2013, that physicians who perform abortions have admitting privileges at a hospital within 30 miles of the location of the abortion (the “admitting privileges requirement”). It properly concluded that this requirement has no rational relationship to patient care and imposes an undue burden on Plaintiffs’ patients’ right to seek an abortion because it would immediately cause one-third of Texas abortion providers to stop providing that care, completely eliminating abortion access in Lubbock, Waco, Killeen, Harlingen, McAllen, and Fort Worth and reducing services in other cities, resulting in one in three woman who seek abortion being prevented from accessing that care. The Order also mostly rejected Plaintiffs’ challenge to the Act’s requirement that medication abortion be administered only according to the protocol on the Food and Drug Administration’s Final Printed Label (“FPL”) (the “medication abortion restrictions”), which will take effect today. However, it provided a limited injunction to protect the health of those women with gestational ages 50 through 63 days after the first day of their last menstrual period (“LMP”) for whom surgical 1 Case: 13-51008 Document: 00512423021 Page: 6 Date Filed: 10/29/2013 abortion presents a significant health risk. 1 Appellants-Defendants (“the State”) have now asked this Court to stay the District Court’s well reasoned and limited injunction and to rush this case through appeal, but they have failed completely to provide any exceptional or emergency circumstances that necessitate this “extraordinary remedy.” Belcher v. Birmingham Trust Nat’l Bank, 395 F.2d 685, 685 (5th Cir. 1968) (denying stay pending appeal). To the contrary, the limited injunction issued by the District Court allows most of the Act to take effect, enjoins only those provisions and applications that numerous other courts have also ruled likely unconstitutional, and protects Plaintiffs’ patients from irreparable harm. The State’s motion should be denied. ARGUMENT As noted above, a stay should be granted only “in exceptional cases,” and only where there “is great likelihood, approaching near certainty, that [the moving party] will prevail when [the] case finally comes to be heard on the merits.” Greene v. Fair, 314 F.2d 200, 202 (5th Cir. 1963) (denying motion for stay). In considering whether to grant a stay, “a court considers four factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested 1 Numerous other provisions of the Act will also take effect today as they were not challenged by Plaintiffs at all. 2 Case: 13-51008 Document: 00512423021 Page: 7 Date Filed: 10/29/2013 in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987). And the burden of establishing the need for a stay rests with the State, which it has not met here. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). I. THE STATE IS UNLIKELY TO SUCCEED ON THE MERITS A. The State Has Not Met Its Burden of Showing a Strong Likelihood of Success on the Privileges Claim. The District Court properly concluded that “the act’s admitting privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” Order at 4 (emphasis added); see also id. at 10-11. These conclusions are based on extensive findings of fact that are well-supported by the record, and which will not be overturned on appeal absent clear error. Samson v. Apollo Resources, Inc., 242 F.3d 629, 632 (5th Cir.2001) (“Findings of fact made pursuant to a Rule 52(c) judgment are reviewed only for clear error.”). Either of these holdings is enough to support the permanent injunction, and the State is unlikely to prevail on its appeal. The District Court correctly held that the admitting privileges requirement fails because it has “no rational relationship to improved patient care.” Order at 11. Contrary to its arguments, the State bears the burden of proving that the admitting privileges requirement actually advances its interest in maternal health, and because the Act burdens constitutionally protected conduct, that burden is 3 Case: 13-51008 Document: 00512423021 Page: 8 Date Filed: 10/29/2013 heightened, and not, as the State would have it, de minimus. Accepting the State’s argument that it bears no burden (beyond simply “imagining” an reason for the law, St.’s Br. at 3) would be wholly inconsistent with the status of a woman’s right to choose as a fundamental right, which is plainly subject to heightened constitutional protection. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 834, 851 (1992) (the “decision whether to bear or beget a child” is one of those “fundamental[]” choices that is “central to the liberty protected by the Fourteenth Amendment”). Thus, when a state purports to regulate abortion in the interest of women’s health, it is the state’s burden to prove that such regulations actually advance that interest and the court must look at the extent to which the state can demonstrate that the restriction is: (1) tailored to advance the purported state interest; and (2) consistent with accepted medical practice. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 431 (1983) (“If a State . . . undertakes to regulate the performance of abortions . . . the health standards adopted must be legitimately related to the objective the State seeks to accomplish.”) (citation and quotation omitted), rev’d on other grounds, Casey, 505 U.S. 833; Akron, 462 U.S. at 430 (“the decisive factor” in upholding recordkeeping and informed consent regulations in Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976), was that “the State met its burden of demonstrating that these regulations furthered important 4 Case: 13-51008 Document: 00512423021 Page: 9 Date Filed: 10/29/2013 health-related State concerns”); Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL 3989238, at *12 (W.D. Wis. Aug. 2, 2013) (“[T]he burden falls on the State to demonstrate that the regulation is ‘reasonably related’ to a legitimate state interest.”). Moreover, even under rational basis review, the State misstates the standard. Citing FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), it asserts that a court is “forbidden” from considering factual evidence, but the Beach Court made clear that even if a state meets its burden of providing a “plausible” reason for its legislative choice (which need not be “supported by evidence or empirical data”), opponents of a law could nonetheless attempt to “negative” the bases offered by the state. Id. at 315. Nowhere does the Court say that a court is forbidden from considering evidence when deciding whether a state’s offered rationales are conceivable or plausible. Indeed, if the State’s proposed standard were applied, courts would decide all rational basis challenges as pure questions of law, and would never have reason to consider record evidence, which is plainly not what occurs. See, e.g., Stefanoff v. Hays County, 154 F.3d 523, 526 and n. 1 (5th Cir. 1998) (rejecting state policy of denying “good time” credit to inmates sentenced by juries on rational basis grounds, in part because “nothing in th[e] record” supported the state’s “conjecture” that juries do not consider the possibility of early release”). Here, the District Court properly concluded that the State had failed to 5 Case: 13-51008 Document: 00512423021 Page: 10 Date Filed: 10/29/2013 establish that the admitting privileges requirement is even rationally related to its asserted interest in maternal health. Specifically, the District Court found no evidence to support the State’s assertions that the requirement would lead to more effective management of complications, a reduction in medical errors, or improved continuity of care. Order at 9-10. Based on the evidence before it, the District Court found that admitting privileges “make no difference in the quality of care received by an abortion patient in the emergency room.” Id. at 10. As to the State’s asserted interest in ensuring improved communication between health care providers, the court found, based on the record evidence, that the State “provide[d] no evidence of correlation between admitting privileges and improved communication with patient handoff or that a communication problem actually exists between abortion providers and emergency-room physicians.” Id. at 10. It therefore concluded that “whether an abortion provider has privileges does nothing to further the interest of patient care by improving communication.” Id. It also found that the privileges requirement does not impact the timeliness of patient care in the emergency room, nor does it address issues of patient abandonment, hospital costs, or accountability. Id. at 10-11. In addition to finding that the admitting privileges requirement lacks a rational basis, the District Court also determined that it is unconstitutional because it places a substantial obstacle in the path of women seeking abortions. The State, 6 Case: 13-51008 Document: 00512423021 Page: 11 Date Filed: 10/29/2013 in arguing that this conclusion is unsupported, ignores the voluminous record evidence that establishes that literally thousands of women will be denied abortions as a result of enforcement of the privileges requirement. The unrebutted record testimony demonstrates that unless the admitting privileges requirement remains enjoined, 13 health facilities in Texas – more than one-third of those currently providing abortions – will forced to immediately stop providing that care. Tr. Vol. 2, 13:2-5; Declaration of James Potter at ¶ 6.2 See also Order at 11 (the evidence establishes that as a result of the admitting privileges requirement “there will be abortion clinics that will close”); id. (noting that it is unlikely that any clinics that close would be able to reopen later, given the difficulties of acquiring admitting privileges for abortion providers). As a result, more than 22,000 women will no longer be able to access abortion due to the shortfall in capacity among remaining providers. Tr. Vol. 1 181: 18-22; Potter Dec. ¶ 7. 3 The availability of abortions 2 Those clinics include facilities located in Lubbock (Martinez Dec. at ¶ 7), Waco (Jordan Dec. ¶ 1), three in Fort Worth (including an ASC) (Jordan Dec. ¶ 1 and Amy Hagstrom Miller Trial Testimony, Vol. 2, 150:25-151:3), Killeen (Complaint at ¶ 14), McAllen (Amy Hagstrom Miller Trial Testimony, Vol. 2, 150:25-151:3), Harlingen (id. at 152:9), El Paso (id. at 152:10), two in San Antonio (an ASC and an abortion facility, id. at 150:25-151:3), and an ASC in Austin (Jordan Dec. ¶ 1). 3 The State mischaracterizes Dr. Potter’s expert analysis and the reliability of the evidence he produced. Motion at 6 n.1. Dr. Potter has extensive experience in demography. Trans. Vo. 2, 175-177; Decl. of Dr. Joseph E. Potter at 1. The State raised no objection to his testifying as an expert in demography, which the District Court allowed him to do. Trans. II-180-181. And his testimony shows that he appropriately gathered data from all clinics in Texas (including Plaintiffs) in order 7 Case: 13-51008 Document: 00512423021 Page: 12 Date Filed: 10/29/2013 after 15 weeks will also be drastically reduced because those procedures must be performed in an ASC and two out of six ASCs providing abortions do not have privileges for their providers, and of the remaining 4, one will have very limited capacity, requiring women who need abortions after 15 weeks to travel to Houston or Dallas. See footnote 2, supra. In addition, over one in twelve women, more than double the current number, will have to travel 100 miles or more, and due to the closing of the facility in Lubbock, some women will have to travel 350 miles to obtain an abortion. Tr. Vol. 1 186: 7-17. Potter Decl. ¶ 6; Martinez Decl. ¶ 4. The District Court noted in particular that “24 counties in the Rio Grande Valley would be left with no abortion provider.” While the State dismisses the 150 miles that these women would have to travel in order to obtain abortion care, and also the 350 miles faced by women in the panhandle, State’s Br. at 4-6, the evidence establishes that these travel burdens will preclude many women from obtaining abortions. Tr. Vol. 2 at 40:20-41:4 (Ferrigno); Martinez Dec. ¶¶ 4, 11. Accord Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 542 (9th Cir. 2004) (fact-finder could conclude that “limiting the supply of abortion providers” in the state “imposes a substantial obstacle”). As the District Court noted, it was not the first to look at similar facts and conclude that an admitting privileges requirement is likely unconstitutional. In the to conduct an independent analysis, using accepted techniques of demography, to determine where and how many women would lose access to abortion. 8 Case: 13-51008 Document: 00512423021 Page: 13 Date Filed: 10/29/2013 past two years alone, several other courts evaluating similar laws “have reached similar conclusions.” Order at 13, n. 9 (citing Planned Parenthood Se., Inc. v. Bentley, 2013 WL 3287109, at *7 (M.D. Ala. June 28, 2013) (granting temporary restraining order where admitting privileges requirement would close three of five clinics in Alabama); Jackson Womens’ Health Org. v. Currier, No. 3:12-CV-436DPJ-FKB, 2013 WL 162365, at *5 (S.D. Miss. Apr. 15, 2013) (granting preliminary injunction after finding undue burden when state’s admitting privileges requirement would close only known abortion provider in Mississippi); Planned Parenthood of Wis., Inc. v. Van Hollen, 2013 WL 3989238, at *16 (W.D. Wis. July 8, 2013)). The State’s attempt to discount these decisions because they were decided on preliminary injunctions does nothing to undermine reasoning of those courts. Its reliance on Women’s Health Ctr. of W. County Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989), is also misplaced because the law at issue merely required admitting privileges anywhere in the United States, not at a local hospital. Moreover, the District Court’s findings and conclusions are supported by this Court’s ruling that laws, like the privileges requirement, that force “a substantial portion of a state’s abortion providers to stop offering such procedures creates a substantial obstacle to a woman’s right to have a pre-viability abortion, thus constituting an undue burden under Casey.” Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999 (citation omitted), rev’d en banc on other grounds, 244 F.3d 9 Case: 13-51008 Document: 00512423021 Page: 14 Date Filed: 10/29/2013 405 (5th Cir. 2001). As a result, the State is unlikely to succeed in its appeal of district court’s conclusions that the admitting privileges requirement is unsupported by any rational basis and imposes an undue burden on a woman’s right to choose abortion. B. The State Has Not Made a Strong Showing on Their Severability and Facial Challenge Arguments. The State has not made a strong showing that the District Court’s invalidation of the admitting privileges requirement was improper. The State treats the presence of a severability clause as dispositive of whether a court can sever unconstitutional applications of a law, but it is not. As the Court held in Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006), even when a challenged law has a severability clause, it is not conclusive; courts must still conduct an independent analysis of whether any part of the law can stand after a constitutional violation has been found. 4 See id. at 330-31; see also Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 798-800 (Tex. App.–Austin 2008, no pet.) (conducting independent analysis of whether severance was possible without rewriting statute). Moreover, judicially “writing in” a medical emergency exception to the law 4 The State is wrong in claiming that the other admitting privileges laws preliminarily enjoined by other courts lacked a severability clause. To the contrary, one is present in Alabama’s admitting privileges law. Ala. H.B. 57, section 18. 10 Case: 13-51008 Document: 00512423021 Page: 15 Date Filed: 10/29/2013 challenged in Ayotte would have been feasible there because the Court had “long upheld state parental involvement statutes like the Act,” and “only a few applications . . . would present a constitutional problem.” Id. at 327, 331. Indeed, that is what the District Court did here with respect to the medication abortion restrictions. But, as to the privileges requirement, there is no well-established federal law upholding such a requirement—to the contrary, these provisions have been struck down by other courts. See Section 1.A., supra. And the admitting privileges requirement presents many unconstitutional applications. Id. The Ayotte Court also counseled against judicial rewriting of statutes “where line-drawing is inherently complex.” Ayotte, 546 U.S. at 330. Contrary to the State’s argument, there is no feasible way to carve out the unconstitutional applications of the privileges requirement. Exempting the McAllen and Lubbock health centers from the law, as it seems to suggest, may alleviate the travel burdens for some women, but it would do nothing to solve the problem of too few providers in the state having privileges in order to meet the needs of all the women seeking abortion in the state. Plaintiffs’ undisputed evidence demonstrated that the remaining providers could not absorb the volume and therefore, partial relief would not remedy the constitutional violation. See Section I.A, supra. Moreover, the State’s severability arguments are in direct tension with its claim that Plaintiffs are not entitled to any relief unless they show that the law is 11 Case: 13-51008 Document: 00512423021 Page: 16 Date Filed: 10/29/2013 unconstitutional in all of its applications. As discussed above, Ayotte stands for the proposition that if a plaintiff shows some constitutional defect – even a small one as in Ayotte – she is entitled to some relief. Alternatively, a plaintiff challenging an abortion restriction can obtain facial invalidation if she shows that the law is unconstitutional for a “large fraction” of women. Casey, 505 U.S. at 894. Contrary to the State’s claim that this Court has settled the matter of whether the “large fraction” test applies in abortion cases, this Court has taken contradictory positions on the matter. See, e.g., Sojourner T. v. Edwards, 974 F.2d 27, 30 (1992) (applying Casey standard to facial challenge to abortion statute); Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992) (“[W]e do not interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes.”); see also Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1102-04 (5th Cir. 1997), cert. denied, 118 S. Ct. 357 (1997) (declining the parties’ request to reevaluate the position set forth in Barnes and “confront head-on the question of the standard of proof that should govern facial challenges in abortion cases”). This Court should hold that the Casey standard governs, given that every other circuit court to consider the question has concluded it does.5 5 See Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 195-96 (6th Cir. 1997), cert. denied, 118 S. Ct. 1347 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997); Planned Parenthood v. 12 Case: 13-51008 Document: 00512423021 Page: 17 Date Filed: 10/29/2013 Under the “large fraction” test, Plaintiffs are entitled to facial invalidation of the admitting privileges requirement because their undisputed evidence shows that over 22,000 women seeking abortion each year will be prevented from obtaining an abortion. This represents one-third of women seeking abortion each year. As Casey instructs, the “proper focus” for determining “large fraction” requires looking at “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” 505 U.S. at 894. Indeed, the Casey Court rejected the state’s argument that the spousal notice law should be invalidated because it “imposed almost no burden at all for the vast majority of women seeking abortions.” Id. Here, the law affects far more women than the spousal notice provision struck down in Casey. The privileges requirement will prevent one-third of women who seek abortion from obtaining one, which is clearly a “large fraction” of women. But even if the test is, as the State claims, Salerno’s “no set of circumstances test,” Plaintiffs meet that test here. As the District Court found, the law is not rationally related to the government’s asserted interests. Opinion at 11. In other words, there is no application of the admitting privileges law that is constitutional. As a result, facial invalidation was the appropriate remedy. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995), cert. denied, 517 U.S. 1174 (1996); Casey v. Planned Parenthood, 14 F.3d 848, 863 n.21 (3d Cir. 1994)). But see Richmond Medical Center For Women v. Herring, 570 F.3d 165, 173-174 (4th Cir. 2009) (declining to address the question). 13 Case: 13-51008 Document: 00512423021 Page: 18 Date Filed: 10/29/2013 C. The State Has Not Met Its Burden of Showing a Strong Likelihood of Success on the Medication Abortion Claim. Plaintiffs sought to have the Act’s requirement that medication abortions follow the protocol on the drug’s FPL invalidated in its entirety, claiming it is both medically unnecessary and imposes a substantial obstacle. The District Court rejected these claims. Order at 22-23. Therefore, for most women, the Act’s medication abortion restrictions took effect today, requiring that if they have a gestational age through 49 days LMP and choose medication abortion, they must follow a protocol that the District Court recognized is “more burdensome,” “more imposing and unpleasant.” Id. at 22, 21. If they have gestational ages between 50 and 63 days LMP, they will be denied access to medication abortion entirely although but for the Act, it would otherwise be available. However, the District Court recognized, based on “uncontroverted evidence,” that “there are certain situations where medication abortion is the only safe and medically sound option for women with particular physical abnormalities or preexisting conditions.” Id. at 20 n.18, 23-24. It explained these conditions in detail and rejected the State’s limited evidence on this issue as “unconvincing.” Id. at 20 n.18. It, therefore, enjoined the medication abortion restrictions only as applied women with gestational ages of 50 through 63 days LMP when “a physician determines in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.” Judgment at 2. 14 Case: 13-51008 Document: 00512423021 Page: 19 Date Filed: 10/29/2013 The State’s request for a stay of this limited injunction is nothing short of shocking given its own repeated assurances that it would not seek to enforce the Act in such circumstances. Order at 24 (“At trial, the State represented that it would not prosecute a physician who violates the provisions of House Bill 2, if that physician provides a medication abortion to a woman whose life or health is endangered by the pregnancy or a possibility of a surgical abortion.”). 6 Moreover, the State will not prevail on its appeal of this limited injunction as it is supported not only by the District Court’s factual findings based on “uncontroverted evidence,” Order at 20 n.18, but it is also supported by 40 years of Supreme Court precedent that abortion restrictions cannot be enforced in cases where they would pose “significant health risks” to women. Id. at 24-25 (citing Roe v. Wade, 410 U.S. 113, 165 (1973); Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 327-28 (2006) (other citations omitted)). The State claims that the District Court erred in relying on this unbroken line of abortion jurisprudence and that it can ban medication abortion even for women for whom it is significantly safer than any alternative because medication abortion was not approved by the FDA prior to 2000. State’s Br. at 15-16. There is no law 6 See also State’s Trial Br. (Trial Docket No. 59) at 47 (“If a situation were ever to arise in which a woman's life or health is endangered by a pregnancy, and a surgical abortion is impossible because of a medical condition, then State officials assuredly will not punish or discipline a physician who prescribes mifepristone beyond the 49-day gestational age limit prescribed in HB 2.”). 15 Case: 13-51008 Document: 00512423021 Page: 20 Date Filed: 10/29/2013 to support the State’s cruel position that it can take away improvements in care that have been proven to prevent significant health risks to women. To the contrary, the District Court properly recognized an abortion regulation may not subject women to significant health risks. See, e.g., Casey, 505 U.S. at 880 (upholding Pennsylvania law only because it had been interpreted such that it “would not in any way pose a significant threat to the life or health of a woman”) (emphasis added) (citation and internal quotation marks omitted); Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 511-12 (6th Cir. 2006) (affirming in part preliminary injunction against virtually identical law as applied to women past 49 days LMP where medication abortion was necessary to protect women’s health). 7 The State’s reliance on Gonzales v. Carhart for its stay (Stay Mot. at 15, 1718) is misplaced as that case supports the District Court’s ruling. There, the Court followed the same long-standing precedent as the District Court here that a law that subjects women to significant health risks is unconstitutional. Gonzales, 550 U.S. at 161 (“The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it ‘subject[ed] [women] to significant health 7 The State’s attempt to rely on a legislative finding to mitigate the harm to women that Plaintiffs proved by “uncontroverted evidence” is without merit. See State’s Br. at 18 (arguing that Section 1(4)(B) of the Act adequately “accommodates” women who need medication abortions to protect their health). As an initial matter, the actual medication abortion provisions of the Act contain no such “exception.” Moreover, the finding upon which the State relies is too narrow. The Supreme Court has consistently held that an abortion restriction cannot be applied if it would impose significant health risks to women. 16 Case: 13-51008 Document: 00512423021 Page: 21 Date Filed: 10/29/2013 risks.’”) (quoting Ayotte, 546 U.S. at 327-28 (citing Casey, 505 U.S. at 879)). However, it ruled that the plaintiffs had not presented evidence sufficient for a facial challenge – where the result would be to have the law invalidated in all applications. See Gonzales, 550 U.S. at 164 (“The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.”) (emphasis added); id. at 166-67. The Court then continued, in dicta: In these circumstances the proper means to consider exceptions is by as-applied challenge. . . . This is the proper manner to protect the health of the woman if it can be shown that in discrete and welldefined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. Id. at 167. This is precisely what the District Court did here. It found, based on “uncontroverted evidence,” Order at 20 n.18, that there were “discrete and welldefined” circumstances where women have “a particular condition” that “has or is likely to occur” where a banned medication abortion would be significantly safer for her and enjoined the Act only in those applications. Finally, the State cites no evidence for its fears that the District Court’s order provides a “vague and amorphous” exception that allows “abortion practitioners to disregard state law.” State’s Br. at 18. 8 Plaintiffs presented “uncontroverted 8 A preliminary injunction with identical language to the one entered here has been in place against a virtually identical Ohio law for years. Ironically, the state there 17 Case: 13-51008 Document: 00512423021 Page: 22 Date Filed: 10/29/2013 evidence” of the harm to “women with particular physical abnormalities or preexisting conditions.” Order at 20 n.18, 24. The District Court enjoined the medication abortion provisions only in these circumstances and only as applied to women with gestational ages of 50 to 63 days LMP. This limited injunction is supported by fact and precedent and likely to be upheld by this Court. II. THE STATE WILL NOT BE IRREPABLY INJURED ABSENT A STAY The State has never pointed to a single Texas woman – or any woman anywhere – who has suffered any injury as a result of abortion providers either not having hospital admitting privileges or using a medication abortion regimen different from the one on the FPL. Notably, Texas law – the status quo – already requires that physicians who work at an abortion facility “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.” 25 Tex. Admin. Code § 139.56(a). 9 Even ASCs which provide claims that the plaintiffs’ claims should be dismissed because there are too few women who have met the circumstances allowed by the injunction. 9 Abortion facilities must also have a written protocol for emergency management and the transfer of patients to a hospital. And the Act’s unchallenged provisions require that Plaintiffs provide women with “a telephone number by which the pregnant woman may reach the physician, or other health care personnel ... 24 hours a day to request assistance for any complications that arise from the performance or induction of the abortion ... and ... the name and telephone number of the nearest hospital to the home of the pregnant woman at which an emergency 18 Case: 13-51008 Document: 00512423021 Page: 23 Date Filed: 10/29/2013 procedures much riskier than abortion, can be licensed without employing doctors with admitting privileges. See 25 Tex. Admin. Code § 135.4(c)(11). The only irreparable injury the State claims from the District Court’s limited injunction remaining in place during this appeal is its inability to completely effectuate every provision of the Act. However, as the Eleventh Circuit explained, the government “has no legitimate interest in enforcing an unconstitutional ordinance,” and suffers no injury from its injunction. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006); see also Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d 956, 959 (5th Cir. Unit B 1981) (“The public interest does not support the [government]’s expenditure of time, money, and effort in attempting to enforce an ordinance that may well be held unconstitutional.”). Indeed, as noted above, laws similar to the admitting privileges requirement have been passed in four other states in recent years and none have taken effect. The injunctions against those laws have not resulted in any demonstrable harm to state interests or to women, let alone to any emergency circumstances of the type that might necessitate a stay of an injunction. See Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013); MKB Management Corp. v. Burdick, No. 09-2011-CV-02205 (N. Dak. Dist. Ct. arising from the abortion would be treated.” Tex. Health & Safety Code Ann. § 171.0031. 19 Case: 13-51008 Document: 00512423021 Page: 24 Date Filed: 10/29/2013 July 31, 2013); Planned Parenthood Se. v. Bentley, No. 2:13cv405–MHT, 2013 WL 3287109 (M.D. Ala. June 28, 2013); Jackson Women’s Health v. Currier, No. 3:12cv436–DPJ–FKB, 2013 WL 1624365 (S.D. Miss. Apr. 15, 2013). In those states, as in this case, an injunction against the admitting privileges requirement merely preserves the status quo and does not affirmatively create any circumstances that would harm the State. Finally, the State cannot now argue that the District Court’s limited injunction against the medication abortion restrictions harms the State when it has repeatedly said that it would not enforce the restrictions in those circumstances. See Section I.C., supra. This factor, therefore, also weights against granting a stay. III. PLAINTIFFS AND THEIR PATIENTS WOULD BE GRAVELY AND IRREPARABLY INJURED BY A STAY In contrast, Plaintiffs, their physicians, and their patients will suffer grave and irreparable injury from a stay. Plaintiffs’ patients will be denied their constitutional right to access abortion. See Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (whenever “the constitutional right of privacy is ‘either threatened or in fact being impaired,’” it “mandates a finding of irreparable injury”); see also United States v. Texas, 523 F. Supp. 703, 729 (E.D. Tex. 1981) (“‘Constitutional rights are warrants for the here and now, to be promptly fulfilled in the absence of ‘an overwhelming compelling reason.’”). Allowing the admitting privileges requirement to go into effect, even for a 20 Case: 13-51008 Document: 00512423021 Page: 25 Date Filed: 10/29/2013 few weeks or months, would decimate the availability of abortion services in the state as the undisputed evidence showed that one-third of the state’s providers cannot comply. The result would be that one in three Texas women seeking abortion will be unable to access abortion during that time, and some may have to carry unwanted pregnancies to term. Others will face increased travel burdens and costs, and have to wait longer for procedures, increasing the risk of complications. The injunction against the medication abortion restrictions applies only to those instances where that specific procedure is “necessary for the preservation of the life of health of the mother.” Order at 26. So, by definition, lifting that injunction would harm women’s health. IV. THE PUBLIC INTEREST WEIGHS AGAINST GRANTING A STAY Where the government is a party to a case, the “public interest” factor merges with the factor involving injury to the government. See Nken, 556 U.S. at 435. As discussed above, the State will suffer little or no injury from the injunction remaining in place during the pendency of this appeal, while any woman who might need to seek an abortion in Texas faces the denial of her constitutionally protected right by this law. Moreover, the public interest is not served by enforcing a rule that is likely unconstitutional. See, e.g., Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir.), cert. denied sub nom. Moore v. Ingebretsen, 519 U.S. 965 (1996); Florida Businessmen, 648 F.2d at 959. 21 Case: 13-51008 V. Document: 00512423021 Page: 26 Date Filed: 10/29/2013 THERE IS NO NEED TO RUSH THIS CASE THROUGH APPEAL While the State no doubt has shown its desire to enforce all provisions of the Act as quickly as possible, as demonstrated above, it has not shown a need for this case to be treated differently from other appeals. The District Court’s limited, permanent injunction does not meet this Court’s rule for calendaring priority. 5th Cir. R. 47.7. And the State has not shown the “good cause” required for an expedited appeal. 5th Cir. R. 25.7. Moreover, as is noted above, an appeal of a preliminary injunction against a similar admitting privileges requirement is currently pending before this Court and is not being considered on an expedited basis. See Jackson Women's Health Organization, et al v. Marry Currier, et al., Case No. 13-6059. This case should, therefore, be calendared as any other appeal. 10 CONCLUSION For the forgoing reasons, Plaintiffs respectfully request that this Court deny Defendants-Appellants’ motion for a stay of the District Court’s permanent injunction against portions of 2013 Texas House Bill No. 2. Dated: October 29, 2013 Respectfully submitted, 10 Of course, given the grave irreparable injury that a stay would cause to Plaintiffs and their patients, if this Court does grant the State’s stay motion, it should consider the case as soon as possible so that Plaintiffs may have the injunction to which they are entitled reinstated. 22 Case: 13-51008 Document: 00512423021 Page: 27 Date Filed: 10/29/2013 /s/ Janet Crepps Janet Crepps Attorney for Plaintiffs-Appellees 23 Case: 13-51008 Document: 00512423021 Page: 28 Date Filed: 10/29/2013 CERTIFICATE OF SERVICE I hereby certify that on the 29th of October, 2013, a copy of this Opposition to Emergency Motion to Stay Injunction Pending Appeal was served via the CM/ECF system to Defendants-Appellants’ counsel. /s/ Janet Crepps Janet Crepps Attorney for Plaintiffs-Appellees 24