Abortion, Hospital Admitting Privileges, and
Abortion and Whole Woman
’s Health v. Cole
Jon O. Shimabukuro
Legislative Attorney
September 25, 2015
Congressional Research Service
7-5700
www.crs.gov
R44205
Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
Summary
At least 15 states have adopted laws or regulations that require physicians who perform abortions
to have admitting privileges at a nearby hospital. In general, admitting privileges allow a
's Health v. Hellerstedt
March 28, 2016
(R44205)
Jump to Main Text of Report
Summary
Whole Woman's Health v. Hellerstedt, a case that is currently before the U.S. Supreme Court, involves the validity of two state law provisions that apply to abortion providers and physicians who perform abortions. Under a Texas law enacted in 2013, a physician who performs or induces an abortion must have admitting privileges at a hospital within 30 miles from the location where the abortion is performed or induced. In general, admitting privileges allow a physician to transfer a patient to a hospital if complications arise in the course of providing an
abortion. Admitting privileges requirements have proven to be controversial, with many of the
requirements being challenged by abortion providers. In Whole Woman’s Health v. Cole, for
example, an abortion provider challenged Texas’s admitting privileges requirement on various
grounds, including its imposition of an undue burden on the ability of women to seek abortions.
abortion. The Texas law also requires an abortion facility to satisfy the same standards as an ambulatory surgical center (ASC). These standards address architectural and other matters related to the physical plant, as well as operational matters such as staffing and medical records systems. Supporters of the Texas law maintain that both requirements guarantee a higher level of care for women seeking abortions. Opponents argue, however, that the requirements are unnecessary and costly, and contend that they will make it more difficult for abortion facilities to operate.
Following an adverse decision by the U.S. Court of Appeals for the Fifth Circuit (
“Fifth Circuit
”),
), Whole Woman
’s Health petitioned the U.S. Supreme Court (“Court”) for review of that decision
in September 2015. If the Court agrees to hear the case, it will be the first substantive abortion
case to be considered by the Court since 2007.
This report discusses the Fifth Circuit’s decision in Cole, and the application of the undue burden
standard that is used to evaluate abortion regulations. In its petition, Whole Woman’s Health has
asked the Court to resolve a conflict between the Fifth Circuit and two other federal appellate
courts over the application of the undue burden standard.
Congressional Research Service
Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
Contents
The Undue Burden Standard and Planned Parenthood of Southeastern Pennsylvania v.
Casey ............................................................................................................................................ 1
Hospital Admitting Privileges and Whole Woman’s Health v. Cole ................................................ 3
Petition for Supreme Court Review ................................................................................................ 5
Contacts
Author Contact Information ............................................................................................................ 6
Congressional Research Service
Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
At least 15 states have adopted laws or regulations that require physicians who perform abortions
to have admitting privileges at a nearby hospital.1 In general, admitting privileges allow a
physician to transfer a patient to a hospital if complications arise in the course of providing an
abortion. Admitting privileges requirements have proven to be controversial, with many of the
requirements being challenged by abortion providers. In Whole Woman’s Health v. Cole, for
example, an abortion provider challenged Texas’s admitting privileges requirement on various
grounds, including its imposition of an undue burden on the ability of women to seek abortions.2
Following an adverse decision by the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”),
Whole Woman’s Health petitioned the U.S. Supreme Court (“Court”) for review of that decision
in September 2015. If the Court agrees to hear the case, it will be the first substantive abortion
case to be considered by the Court since 2007.
In seeking review of the Fifth Circuit’s decision, Whole Woman’s Health has asked not only
about the validity of the admitting privileges requirement, but has also asked the Court to resolve
a conflict between the Fifth Circuit and the U.S. Courts of Appeals for the Seventh and Ninth
Circuits (hereinafter referred to as the “Seventh Circuit” and “Ninth Circuit”) involving the
application of the undue burden standard that is used to evaluate abortion regulations. This report
discusses the undue burden standard, the Fifth Circuit’s decision in Cole, and the contrasting
approaches used by the federal appellate courts to determine whether an abortion regulation
imposes an undue burden on a woman’s ability to have an abortion.
The Undue Burden Standard and Planned
Parenthood of Southeastern Pennsylvania v. Casey
The undue burden standard that is now used to evaluate abortion regulations was formally
's Health sought review by the Supreme Court. In seeking review of the Fifth Circuit's decision, Whole Woman's Health asked not only about the validity of the admitting privileges and ASC requirements. The abortion provider also asked the Court to resolve a conflict between the Fifth Circuit and the U.S. Courts of Appeals for the Seventh and Ninth Circuits involving the application of the undue burden standard that is used to evaluate abortion regulations. This report examines Whole Woman's Health v. Cole, the Fifth Circuit's decision, as well as the undue burden standard, and the contrasting approaches used by the federal appellate courts to determine whether an abortion regulation imposes an undue burden on a woman's ability to have an abortion.
Abortion and Whole Woman's Health v. Hellerstedt
In 2013, the Texas legislature passed House Bill 2 (H.B. 2), a measure that prescribed new requirements for abortion facilities and physicians who perform or induce abortions in Texas.1 Supporters of the bill maintained that these requirements would guarantee a higher level of care for women seeking abortions.2 Opponents, however, characterized the requirements as unnecessary and costly, and argued that they would make it more difficult for abortion facilities to operate.3
Since its enactment, critics of H.B. 2 have focused on two of the measure's requirements, in particular. First, H.B. 2 requires a physician who performs or induces an abortion to have admitting privileges at a hospital within 30 miles from the location where the abortion is performed or induced. In general, admitting privileges allow a physician to transfer a patient to a hospital if complications arise in the course of providing an abortion. Second, H.B. 2 requires an abortion facility to satisfy the same standards as an ambulatory surgical center (ASC). These standards address architectural and other matters related to the physical plant, as well as operational matters such as staffing and medical records systems.
H.B. 2's admitting privileges and ASC requirements have been challenged by a group of abortion providers and physicians in Whole Woman's Health v. Hellerstedt, a case that is currently before the U.S. Supreme Court (Court). In Whole Woman's Health, the Court has been asked to review a decision by the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) that upheld both requirements.
In seeking review of the Fifth Circuit's decision, Whole Woman's Health asked not only about the validity of the admitting privileges and ASC requirements. The abortion provider also asked the Court to resolve a conflict between the Fifth Circuit and the U.S. Courts of Appeals for the Seventh and Ninth Circuits (hereinafter referred to as the Seventh Circuit and Ninth Circuit) involving the application of the undue burden standard that is used to evaluate abortion regulations. This report examines Whole Woman's Health v. Cole, the Fifth Circuit's decision, as well as the undue burden standard, and the contrasting approaches used by the federal appellate courts to determine whether an abortion regulation imposes an undue burden on a woman's ability to have an abortion.
The Undue Burden Standard and Planned Parenthood of Southeastern Pennsylvania v. Casey
The undue burden standard that is now used to evaluate abortion regulations was formally adopted by the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992
decision involving five provisions of the Pennsylvania Abortion Control Act.
34 In a joint opinion,
the Court reaffirmed the basic constitutional right to an abortion, while simultaneously allowing
new restrictions to be placed on the availability of the procedure. The Court declined to overrule
Roe v. Wade, its 1973 decision that first recognized the right to terminate a pregnancy, explaining
the importance of following precedent:
“"The Constitution serves human values, and while the
effect of reliance on
RoeRoe cannot be exactly measured, neither can the certain cost of overruling
Roe Roe for people who have ordered their thinking and living around that case be dismissed.
”4
"5
At the same time, however, the Court refined its holding in
RoeRoe by abandoning the trimester
framework articulated in the 1973 decision, and rejecting the strict scrutiny standard of judicial
review it had previously espoused.
5 In Casey, the Court adopted a new undue burden standard
1
See Ala. Code § 26-23E-4; Ariz. Rev. Stat. § 36-449.03; Ark. Code Ann. § 20-16-1504; Fla. Stat. § 390.012; Ind.
Code § 16-34-2-4.5; Kan. Stat. Ann. § 65-4a09; La. Stat. Ann. § 40:1299.35.2; Miss. Code Ann. § 41-75-1; Mo. Rev.
Stat. § 188.080; N.D. Cent. Code § 14-02.1-04; Okla. Stat. tit. 63, § 1-748; Tenn. Code Ann. § 39-15-202; Tex. Health
& Safety Code Ann. § 171.0031; Utah Admin. Code r. 432-600-13; Wis. Stat. § 253.095.
2
Whole Woman’s Health v. Lakey, 46 F.Supp.3d 673 (W.D. Tex. 2014), aff’d in part, modified in part, vacated in
part, and rev’d in part, 790 F.3d 563 (5th Cir. 2015). Kirk Cole is currently serving as Interim Commissioner of the
Texas Department of State Health Services following the resignation of Dr. David Lakey. Cole is now the named
defendant in the case.
3
505 U.S. 833 (1992).
4
Id. at 856.
5
For additional information on Roe v. Wade, see CRS Report 95-724, Abortion Law Development: A Brief Overview,
by Jon O. Shimabukuro.
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
6 In Casey, the Court adopted a new undue burden standard that attempts to reconcile the government
’'s interest in potential life with a woman
’'s right to
terminate her pregnancy. The Court observed:
The very notion that the State has a substantial interest in potential life leads to the
conclusion that not all regulations must be deemed unwarranted. Not all burdens on the
right to decide whether to terminate a pregnancy will be undue. In our view, the undue
burden standard is the appropriate means of reconciling the State
’'s interest with the
woman’ woman's constitutionally protected liberty.
6
7
According to the Court, an undue burden exists if the purpose or effect of an abortion regulation
is
“"to place a substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.
”7
"8
Evaluating the Pennsylvania law under the undue burden standard, the Court concluded that four
of the five provisions at issue did not impose an undue burden. The Court upheld the law
’s 24hour's 24-hour waiting period requirement, its informed consent provision, its parental consent provision,
and its recordkeeping and reporting requirements.
9 The Court invalidated the law
’'s spousal
notification provision, which required a married woman to tell her husband of her intention to
have an abortion.
10 Acknowledging the possibility of spousal abuse if the provision were upheld,
the Court maintained:
“"The spousal notification requirement is thus likely to prevent a significant
number of women from obtaining an abortion. It does not merely make abortions a little more
difficult or expensive to obtain; for many women, it will impose a substantial obstacle.
”8
"11
The Court
’'s decision in
CaseyCasey was particularly significant because it appeared that the new undue
burden standard would allow a greater number of abortion regulations to pass constitutional
muster. Prior to
CaseyCasey, the application of
Roe’Roe's strict scrutiny standard of review resulted in most
state abortion regulations being invalidated during the first two trimesters of pregnancy. For
example, applying strict scrutiny, the Court invalidated 24-hour waiting period requirements and
informed consent provisions in two cases:
City of Akron v. Akron Center for Reproductive Health
, Inc. and Thornburgh v. American College of Obstetricians and Gynecologists
.9
Casey.12
Casey also recognized that the state
’'s interest in protecting the potentiality of human life extended
throughout the course of a woman
’'s pregnancy.
13 Thus, the state could regulate from the outset of a
woman’ woman's pregnancy, even to the point of favoring childbirth over abortion. Under the trimester
framework articulated in
RoeRoe, a woman
’'s decision to terminate her pregnancy in the first trimester
could not be regulated generally by the state.
Since Casey
Since Casey, the Court has applied the undue burden standard in just
twothree cases. In Mazurek v. Armstrong, the Court reversed a Ninth Circuit decision involving a Montana law that restricted the performance of abortions to licensed physicians.14 The Ninth Circuit vacated a district court's judgment that denied a motion for a preliminary injunction based on the lower court's conclusion that a group of physicians and a physician assistant had not established a likelihood of prevailing on their claim that the law imposed an undue burden.15 The Supreme Court concluded that there was no evidence that the law had an improper purpose or that it would place a substantial obstacle in the path of a woman seeking an abortion.16 Although the Court did not specifically address the law's effect, it did note that it would have an impact on only a single practitioner.17
cases. Stenberg v.
Carhart Carhart and Gonzales v. Carhart both involved the so-called
“"partial-birth
”" abortion procedure.
10
In Stenberg18 In Stenberg, the Court invalidated a Nebraska law that restricted the procedure, in part, because it
imposed an undue burden on a woman
’'s ability to terminate a pregnancy.
19 Finding that the
statute’ statute's plain language prohibited the performance of both the
“"partial-birth
”" abortion procedure
and another more commonly used abortion procedure, the Court maintained that the law imposed
an undue burden because abortion providers would fear prosecution, conviction, and
imprisonment if they acted.
6
Id. at 876.
Id. at 878.
8
Id. at 893-94.
9
462 U.S. 416 (1983); 476 U.S. 747 (1986).
10
530 U.S. 914 (2000); 550 U.S. 124 (2007). For additional information on “partial-birth” abortion, see CRS Report
RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro.
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
In Gonzales imprisonment if they acted.20
In Gonzales, the Court considered the validity of the federal Partial-Birth Abortion Ban Act of
2003.
21 The Court distinguished the federal law from the Nebraska statute at issue in
Stenberg,
Stenberg, noting the inclusion of
“"anatomical landmarks
”" that identify when an abortion procedure will be
subject to the law
’'s prohibitions.
22 Because the plain language of the law did not restrict the
availability of alternate abortion procedures, the Court concluded that it was not overbroad and
did not impose an undue burden on a woman
’'s ability to terminate her pregnancy.
Hospital Admitting Privileges and Whole Woman’s
Health v. Cole
Texas’s admitting privileges requirement was adopted in 2013. The requirement states that a
physician “23
Whole Woman's Health v. Cole
Admitting Privileges
At least 15 states have adopted laws or regulations that require physicians who perform abortions to have admitting privileges at a nearby hospital.24 Texas's requirement states that a physician "performing or inducing an abortion ... must, on the date the abortion is performed or
induced, have active admitting privileges at a hospital that: (A) is located not further than 30
miles from the location at which the abortion is performed or induced; and (B) provides
obstetrical or gynecological health care services.
”11"25 A physician who violates the requirement
may be subject to a fine of up to $4,000.
1226 The Texas legislature indicated that the requirement
raises the standard and quality of care for women seeking abortions, and protects their health and
welfare.
1327 Opponents maintain, however, that the requirement will likely result in the closure of
numerous abortion facilities as physicians face difficulty obtaining admitting privileges.
14
28
In 2013, Planned Parenthood
and a group of abortion providers and physicians, including Whole Woman's Health, challenged the constitutionality of the admitting privileges
requirement, as well as a separate requirement involving the administration of abortion-inducing
drugs.
1529 In Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, the Fifth
Circuit concluded that the admitting privileges requirement is facially constitutional.
1630 The Fifth
Circuit found that the requirement does not impose an undue burden despite the possibility of
facility closures and increased travel distances to obtain an abortion. With regard to travel, the
court maintained:
“Casey"Casey counsels against striking down a statute solely because women may
have to travel long distances to obtain abortions.
”17"31 The Fifth Circuit
’'s decision is commonly
referred to as
“"Abbott II
”" because it was the second decision issued by the court in this case.
Whole Woman
’'s Health subsequently challenged the admitting privileges requirement as applied
to two specific clinics in El Paso and McAllen,
TexasTX. In 2014, a federal district court concluded
that the requirement is unconstitutional as applied to both clinics and, when considered together
with a state requirement that abortion facilities satisfy the standards set for ambulatory surgical
centers (“ with the ASC requirement
”), is unconstitutional
“"as applied to all women seeking a previability
abortion.”18
11
Tex. Health & Safety Code Ann.§ 171.0031(a)(1).
Tex. Health & Safety Code Ann.§ 171.0031(b).
13
See Whole Woman’ abortion."32
On appeal, the Fifth Circuit considered both facial and as-applied challenges to both requirements. In Whole Woman's Health v. Cole
, the appeals court found that the provider's facial challenge to the admitting privileges requirement fails on procedural grounds. The court maintained that the provider's facial claim violates the principle of res judicata, and should have been precluded by its decision in Abbott II.33 The court noted: "By granting a broad injunction against the admitting privileges requirement ... the district court resurrected the facial challenge put to rest in Abbott II."34
Although the Fifth Circuit rejected the facial challenge to the admitting privileges requirement, it upheld an injunction of the requirement as applied to the abortion facility in McAllen, when it utilizes a specific physician.35 This physician was unsuccessful at obtaining admitting privileges at local hospitals for reasons other than his competence.36
At the same time, however, the Fifth Circuit reversed an injunction of the requirement as applied to the abortion facility in El Paso. Citing a nearby abortion facility in Santa Teresa, New Mexico, and the fact that people travel regularly between the two cities for medical care, the court maintained that the admitting privileges requirement does not impose an undue burden.37 The Fifth Circuit distinguished the Texas admitting privileges requirement from a similar Mississippi requirement that it invalidated in Jackson Women's Health Organization v. Currier, a 2014 decision.38 The Fifth Circuit explained that invalidating the Mississippi requirement would have led to the closure of the last abortion facility in the state.39 An invalidation of the Texas requirement would not have the same effect.
Ambulatory Surgical Center Requirement
State laws that require abortion providers to satisfy the same standards as ASCs have become increasingly more common.40 Texas regulations define an ASC as a facility "that primarily provides surgical services to patients who do not require overnight hospitalization or extensive recovery, convalescent time or observation."41 Under Texas law, ASCs are required to satisfy a variety of operating, fire prevention and safety, and construction standards.42
In Cole, the Fifth Circuit concluded that the plaintiffs' claim involving the ASC requirement fails on both procedural grounds and on the merits. The court found that the claim was, 790 F.3d 563, 576 (5th Cir. 2015).
14
See Cole, 790 F.3d at 579 (“[T]he Plaintiffs offered testimony that abortion physicians were being denied admitting
privileges, not because of their level of competence, but for various other reasons, including: outright denial of
admitting privileges with no explanation other than that it ‘was not based on clinical competence,’ and having not
completed a medical residency even though the bylaws of the hospital did not require such.”)
15
See Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 951 F.Supp.2d 891 (W.D. Tex. 2013).
16
748 F.3d 583 (5th Cir. 2014).
17
Id. at 598.
18
Lakey, 46 F.Supp.3d at 677.
12
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
On appeal, the Fifth Circuit considered both facial and as-applied challenges to the admitting
privileges requirement. In Whole Woman’s Health v. Cole, the appeals court found that the
provider’s facial challenge fails on both procedural grounds and on the merits. The court
maintained that the provider’s facial claim violates the principle of res judicata, and should have
been precluded by its decision in
Abbott II.43 Although the plaintiffs did not challenge the requirement in Abbott II because implementing regulations had not yet gone into effect, the Fifth Circuit maintained that because Abbott II involved the same parties and legal standards, the requirement should have been challenged in that case.44
The Fifth Circuit determined that a facial challenge to the ASC requirement would also fail on the merits because the requirement does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. The court maintained that the plaintiffs failed to show that the ASC requirement was adopted for an improper purpose.45 While the lower court found an improper purpose based on what it concluded was a lack of credible evidence to support the proposition that abortions performed in ASCs lead to better health outcomes, the Fifth Circuit observed: "All of the evidence referred to by the district court is purely anecdotal and does little to impugn the State's legitimate reasons for the Act."46
In addition, the Fifth Circuit found that the ASC requirement does not have the effect of placing a substantial obstacle in the path of a woman seeking an abortion. In Casey, the Court indicated that if a law would be invalid in a large fraction of the cases in which it is relevant, it should be found to have an improper effect.47 Notably, the Court considered the effect of Pennsylvania's spousal notification requirement only on married women who did not want to notify their husbands of their plans to have an abortion, rather than its effect on all women or all pregnant women in the state.48 In this equation, the Court concluded that the spousal notification requirement would have an effect in a large fraction of the relevant cases.
In Cole, however, the Fifth Circuit found that the ASC requirement would not have a similar effect. After considering the number of women of reproductive age in Texas and the number of women of reproductive age who would have to travel more than 150 miles to have an abortion because of the implementation of both the admitting privileges and ASC requirements, the court determined that only 16.7% of women of reproductive age would have to travel more than 150 miles to have an abortion.49 The Fifth Circuit reasoned that 16.7% does not constitute a large fraction of the relevant cases, and thus, the effect of the ASC requirement is not improper.50
Although the Fifth Circuit rejected a facial challenge to the ASC requirement, it affirmed an injunction of the requirement as applied to the abortion facility in McAllen, with some modifications.51 The court acknowledged that the McAllen facility is the sole abortion provider in the Rio Grande Valley and discussed the 235-mile distance some women in the Rio Grande Valley would have to travel to obtain an abortion.52 In light of this distance, the court indicated that the state would be enjoined from enforcing the requirement until another facility opens at a location that is closer than those located in San Antonio. Acknowledging its discussion of CaseyAbbott II.19 The court noted: “By granting a broad injunction
against the admitting privileges requirement ... the district court resurrected the facial challenge
put to rest in Abbott II.”
Even if res judicata did not bar the provider’s facial challenge, the Fifth Circuit found that it
would fail on the merits. In considering the merits of the facial challenge, the Fifth Circuit
disputed the lower court’s application of the undue burden standard to the admitting privileges
requirement. After weighing the burden and medical efficacy of the requirement, the district court
concluded that the requirement did not further the state’s interests in maternal health and
increased quality of care. This determination informed the district court’s finding that the
requirement imposed an undue burden.
The Fifth Circuit contended, however, that the weighing of burden and efficacy was
inappropriate. Citing its decision in Abbott II, the Fifth Circuit observed that courts should not
second guess legislative fact-finding or relitigate the facts that led to a law’s enactment.20 Rather,
the Fifth Circuit insisted that a law should be sustained if it is rationally related to a legitimate
interest. Here, the Fifth Circuit maintained that the district court “erred by substituting its own
judgment for that of the legislature ... this time in the name of the undue burden inquiry.”21
Although the Fifth Circuit rejected the facial challenge to the admitting privileges requirement, it
affirmed an injunction of the requirement as applied to the abortion facility in McAllen. This
facility is the sole abortion provider in the Rio Grande Valley. The court discussed the 235-mile
distance some women in the Rio Grande Valley would have to travel to obtain an abortion, and
indicated that the state would be enjoined from enforcing the requirement until another facility
opens at a location that is closer than those located in San Antonio. Acknowledging its discussion
of Casey and travel distances in Abbott II, the Fifth Circuit observed:
“"[I]n the specific context of
this as-applied challenge as to the McAllen facility, the 235-mile distance presented, combined
with the district court
’'s findings, are sufficient to show that [the requirement] has the
‘'effect of
placing a substantial obstacle in the path of a woman seeking an abortion.
’”22
At the same time, however, the Fifth Circuit reversed an injunction of the requirement as applied
to the abortion facility in El Paso. Citing a nearby abortion facility in Santa Teresa, New Mexico,
and the fact that people travel regularly between the two cities for medical care, the court
maintained that the admitting privileges requirement does not impose an undue burden. The Fifth
Circuit distinguished the Texas admitting privileges requirement from a similar Mississippi
requirement that it invalidated in Jackson Women’s Health Organization v. Currier, a 2014
decision.23 The Fifth Circuit explained that invalidating the Mississippi requirement would have
19
See Cole, 790 F.3d at 581 (“Res judicata bars any claims for which: (1) the parties are identical to or in privity with
the parties in a previous lawsuit; (2) the previous lawsuit has concluded with a final judgment on the merits; (3) the
final judgment was rendered by a court of competent jurisdiction; and (4) the same claim or cause of action was
involved in both lawsuits.”).
20
Cole, 790 F.3d at 587.
21
Id.
22
Cole, 790 F.3d at 594.
23
760 F.3d 448 (5th Cir. 2014).
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
led to the closure of the last abortion facility in the state.24 An invalidation of the Texas
requirement would not have the same effect.
Petition for Supreme Court Review
In its petition for review of the Fifth Circuit’s decision, Whole Woman’s Health maintains that the
Fifth Circuit’s refusal to consider the extent to which an abortion regulation actually promotes
women’s health conflicts with the approaches taken by the Seventh Circuit and Ninth Circuit.25 In
applying the undue burden standard, both appellate courts conducted this analysis. In Planned
Parenthood v. Humble, for example, the Ninth Circuit explained that, in applying the undue
burden standard, it compares the extent of the burden a law imposes on a woman’s right to
abortion with the strength of the state’s justification for the law.26 The court further noted: “The
more substantial the burden, the stronger the state’s justification for the law must be to satisfy the
undue burden test; conversely, the stronger the state’s justification, the greater the burden may be
before it becomes ‘undue.’”27
The Seventh Circuit articulated a similar approach to applying the undue burden standard in
Planned Parenthood v. Van Hollen.28 In that 2013 case, the court observed:
The cases that deal with abortion-related statutes sought to be justified on medical
grounds require not only evidence ... that the medical grounds are legitimate but also that
the statute not impose an “undue burden” on women seeking abortions ... The feebler the
medical grounds, the likelier the burden, even if slight, to be “undue” in the sense of
disproportionate or gratuitous.29
In light of the approaches taken by the Ninth and Seventh Circuits, Whole Woman’s Health
argues that the Fifth’s Circuit’s interpretation of the undue burden standard is erroneous, and
contends that review by the Supreme Court is needed to resolve this split in authority.
Whole Woman’s Health has also asked the Court to review the Fifth Circuit’s conclusion that res
judicata bars it from considering newly developed facts that could have an impact on the
provider’s facial challenge to the ASC requirement. Whole Woman’s Health argues that when a
claim rests on facts that develop after a judgment is entered in a prior case, the claim is not barred
by that judgment, and a court may award any remedy that is otherwise appropriate. In Cole, the
Fifth Circuit maintained that the facial challenge to the ASC requirement was precluded by its
decision in Abbott II. Whole Woman’s Health did not challenge the requirement in Abbott II
because regulations to implement the requirement had not yet gone into effect. Nevertheless, the
Fifth Circuit found that the challenge should have been brought because that case involved the
same parties and legal standards.
Whether the Court agrees to review Cole is not clear. Given the possibility of more than 75% of
Texas’s abortion facilities closing if the admitting privileges and ASC requirements are enforced,
24
Cole, 790 F.3d at 596-97.
Petition for a Writ of Certiorari, Whole Woman’s Health v. Cole (U.S. filed Sept. 2, 2015), available at
http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/2015-09-02-Cert-Petition-WWH-vCole.pdf.
26
753 F.3d 905, 912 (9th Cir. 2014).
27
Id.
28
738 F.3d 786 (7th Cir. 2013).
29
Id. at 798.
25
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the case has proven to be of great concern to those who support a woman’s right to choose.30 The
different approaches taken by the Fifth, Seventh, and Ninth Circuits in applying the undue burden
standard also suggest that clarification by the Court would be helpful for lower courts and state
legislatures. With reports of as many as 51 new abortion regulations being enacted in 2015, a
clearer understanding of how to apply the undue burden standard would help to determine
whether these regulations should be upheld.31
Author Contact Information
Jon O. Shimabukuro
Legislative Attorney
jshimabukuro@crs.loc.gov, 7-7990
30
Petition for a Writ of Certiorari, supra note 25 at 1-2.
See, e.g., Guttmacher Inst., Laws Affecting Reproductive Health and Rights: State Trends at Midyear, 2015 (July 1,
2015), http://www.guttmacher.org/media/inthenews/2015/07/01/.
31
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'"53
The Fifth Circuit declined, however, to affirm the lower court's judgment involving the ASC requirement as applied to the El Paso facility. Because abortion services are available at the facility in Saint Teresa, NM, and there was evidence that many women traveled to that facility before enactment of H.B. 2, the court concluded that the ASC requirement did not place a substantial obstacle in the path of women seeking an abortion in the El Paso area.54
Whole Woman's Health v. Hellerstedt
In November 2015, the Supreme Court agreed to review the Fifth Circuit's decision in Whole Woman's Health. The Court is considering the following questions with regard to the case, now titled Whole Woman's Health v. Hellerstedt:55
1a. When applying the undue burden standard, does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government's interest in promoting health?
1b. Did the Fifth Circuit err in concluding that the undue burden standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State's interest in promoting health—or any other valid interest?
2. Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court's judgment in part?56
In its petition for review by the Court, Whole Woman's Health argued that the Fifth Circuit's refusal to consider the extent to which an abortion regulation actually promotes women's health conflicts with the approaches taken by the Seventh Circuit and Ninth Circuit.57 In applying the undue burden standard, both appellate courts conducted this analysis. In Planned Parenthood Arizona, Inc. v. Humble, for example, the Ninth Circuit explained that, in applying the undue burden standard, it compares the extent of the burden a law imposes on a woman's right to abortion with the strength of the state's justification for the law.58 The court explained further: "The more substantial the burden, the stronger the state's justification for the law must be to satisfy the undue burden test; conversely, the stronger the state's justification, the greater the burden may be before it becomes 'undue.'"59
The Seventh Circuit articulated a similar approach to applying the undue burden standard in Planned Parenthood of Wisconsin, Inc. v. Van Hollen.60 In that 2013 case, the court observed:
The cases that deal with abortion-related statutes sought to be justified on medical grounds require not only evidence ... that the medical grounds are legitimate but also that the statute not impose an "undue burden" on women seeking abortions ... The feebler the medical grounds, the likelier the burden, even if slight, to be "undue" in the sense of disproportionate or gratuitous.61
In light of the approaches taken by the Ninth and Seventh Circuits, Whole Woman's Health argued that the Fifth Circuit's interpretation of the undue burden standard is erroneous, and contended that review by the Court was needed to resolve this split in authority.
Whole Woman's Health also challenged the Fifth Circuit's conclusion that res judicata bars it from considering newly developed facts that could have an impact on the provider's facial challenge to the ASC requirement. Whole Woman's Health argued that when a claim rests on facts that develop after a judgment is entered in a prior case, the claim is not barred by that judgment, and a court may award any remedy that is otherwise appropriate.
Hellerstedt, the Commissioner of the Texas Department of State Health Services, rejects the arguments made by Whole Woman's Health.62 He contends that the balancing contemplated by Whole Woman's Health and used by the Seventh and Ninth Circuits undermines the undue burden standard established by Casey.63 Hellerstedt argues that the undue burden standard analyzes the degree of a law's burden on women seeking abortions and does not involve weighing medical judgments: "The undue-burden test does not reevaluate policy judgments or choose between competing testimony of medical professionals."64
Hellerstedt also maintains that Whole Woman's Health's facial challenges are barred by res judicata.65 He argues that the claim involving the admitting privileges requirement was raised, litigated, and defeated in Abbott II.66 He also contends that the claim involving the ASC requirement is barred because it could have been brought in that case.67
Hellerstedt also argues that Whole Woman's Health's facial challenges should fail on the merits because the admitting privileges and ASC requirements do not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Not only does he assert that the requirements were not enacted to fulfill an improper purpose, he maintains that Whole Woman's Health has failed to establish that implementation of the requirements will have an improper effect in a large fraction of cases. For example, Hellerstedt observes: "Petitioners note that the number of abortions in Texas has decreased since the admitting-privileges requirement went into effect ... But petitioners failed to introduce any analysis of causation that controls for other factors that could produce that result, such as the decreasing abortion rate nationwide."68
Hellerstedt also maintains that both requirements will not have an effect in a large fraction of the relevant cases because an abortion facility will remain operational in each metropolitan area where Whole Woman's Health alleges that one would close if the Fifth Circuit's judgment is affirmed.69 Citing trial evidence, he notes that if H.B. 2 took full effect, at least 86.6% of reproductive-age Texas women would live within 150 miles of an operating abortion facility.70 According to Hellerstedt, if such a high percentage of women have access to a facility, H.B. 2 "cannot be facially invalidated on the premise that travel distances to clinics create a 'substantial obstacle' to abortion access in a large fraction of cases."71
The Supreme Court heard oral arguments in Whole Woman's Health v. Hellerstedt on March 2, 2016. Because of Justice Antonin Scalia's death on February 13, 2016, only eight justices were present for the arguments. Although it is not certain whether Justice Scalia would have voted to uphold the admitting privileges and ASC requirements, his steadfast criticism of Roe and Casey might arguably suggest a likelihood of support for the requirements.72
With Justice Scalia's death, Justice Anthony M. Kennedy, who coauthored the joint opinion in Casey and is often viewed as holding the deciding vote in close cases, could play an even more critical role in how Whole Woman's Health is decided. If Justice Kennedy does not join the Court's four perceived liberal Justices who are expected to invalidate the requirements, and the Justices are evenly divided on the case, the Court will likely either enter a judgment that affirms the Fifth Circuit's decision or order the case to be reargued at a later time.73
A decision in Whole Woman's Health is expected by June 2016.
Author Contact Information
[author name scrubbed], Legislative Attorney
([email address scrubbed], [phone number scrubbed])
Footnotes
1.
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Act of July 12, 2013, 83rd Leg., 2nd C.S., ch. 1, §§1-12, 2013 Tex. Sess. Law Serv. 4795-4802.
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2.
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See House Research Org., Tex. House of Representatives, Bill Analysis: H.B. 2, at 8 (2013).
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3.
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Id. at 11.
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4.
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Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
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5.
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Id. at 856.
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6.
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For additional information on Roe v. Wade, 410 U.S. 113 (1973), see CRS Report 95-724, Abortion Law Development: A Brief Overview, by [author name scrubbed].
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7.
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Casey, 505 U.S. at 876.
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8.
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Id. at 878.
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9.
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Id. at 881-901.
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10.
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Id. at 898.
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11.
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Id. at 893-94.
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12.
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See Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
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13.
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Casey, 505 U.S. at 872-73.
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14.
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Mazurek v. Armstrong, 520 U.S. 968 (1997).
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15.
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Armstrong v. Mazurek, 94 F.3d 566, 568 (9th Cir. 1996).
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16.
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Mazurek, 520 U.S. at 972-74.
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17.
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Id.
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18.
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Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007). For additional information on "partial-birth" abortion, see CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by [author name scrubbed].
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19.
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Stenberg, 530 U.S. at 922.
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20.
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Id. at 945.
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21.
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Gonzales, 550 U.S. at 132.
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22.
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Id. at 148.
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23.
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Id. at 168.
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24.
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See Ala. Code §26-23E-4; Ariz. Rev. Stat. §36-449.03; Ark. Code Ann. §20-16-1504; Fla. Stat. §390.012; Ind. Code §16-34-2-4.5; Kan. Stat. Ann. §65-4a09; La. Stat. Ann. §40:1299.35.2; Miss. Code Ann. §41-75-1; Mo. Rev. Stat. §188.080; N.D. Cent. Code §14-02.1-04; Okla. Stat. tit. 63, §1-748; Tenn. Code Ann. §39-15-202; Tex. Health & Safety Code Ann. §171.0031; Utah Admin. Code r. 432-600-13; Wis. Stat. §253.095.
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25.
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Tex. Health & Safety Code Ann. §171.0031(a)(1).
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26.
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Tex. Health & Safety Code Ann. §171.0031(b).
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27.
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See Whole Woman's Health v. Cole, 790 F.3d 563, 576 (5th Cir. 2015).
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28.
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See id. at 579 ("[T]he Plaintiffs offered testimony that abortion physicians were being denied admitting privileges, not because of their level of competence, but for various other reasons, including: outright denial of admitting privileges with no explanation other than that it 'was not based on clinical competence,' and having not completed a medical residency even though the bylaws of the hospital did not require such.")
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29.
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See Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 951 F.Supp.2d 891 (W.D. Tex. 2013).
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30.
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Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583, 587 (5th Cir. 2014).
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31.
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Id. at 598.
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32.
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Whole Woman's Health v. Lakey, 46 F.Supp.3d 673, 677 (W.D. Tex. 2014).
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33.
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See Cole, 790 F.3d at 581 ("Res judicata bars any claims for which: (1) the parties are identical to or in privity with the parties in a previous lawsuit; (2) the previous lawsuit has concluded with a final judgment on the merits; (3) the final judgment was rendered by a court of competent jurisdiction; and (4) the same claim or cause of action was involved in both lawsuits.").
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34.
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Id.
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35.
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Id. at 596.
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36.
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Id.
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37.
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Id. at 697-98.
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38.
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Jackson Women's Health Organization v. Currier, 760 F.3d 448 (5th Cir. 2014).
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39.
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Cole, 790 F.3d at 596-97.
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40.
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See, e.g., Mich. Comp. Laws §333.20115(2) ("The department shall promulgate rules to differentiate a freestanding surgical outpatient facility from a private office of a physician, dentist, podiatrist, or other health professional. The department shall specify in the rules that a facility including, but not limited to, a private practice office described in this subsection must be licensed under this article as a freestanding surgical outpatient facility if that facility performs 120 or more surgical abortions per year and publicly advertises outpatient abortion services."); 35 Pa. Cons. Stat. §448.806(h)(1) ("The department shall apply the same regulations promulgated under subsection (f) to abortion facilities that are applied to ambulatory surgical facilities. These regulations include classification of the facilities in the same manner as ambulatory surgical facilities.").
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41.
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25 Tex. Admin. Code §135.2(5).
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42.
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See 25 Tex. Admin. Code §§135.1 et seq.
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43.
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Cole, 790 F.3d at 581-83.
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44.
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Id.
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45.
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Id. at 585-86.
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46.
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Id. at 586.
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47.
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Casey, 505 U.S. at 895.
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48.
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Id.
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49.
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See Cole, 790 F.3d at 588 (following Abbott II and its determination that an increase of travel of less than 150 miles would not constitute an undue burden under Casey).
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50.
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Id. at 588-90.
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51.
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Id. at 595. In light of the plantiffs' admissions that some of the ASC requirements were comparable to standards already applicable to abortion facilities, the Fifth Circuit modified the district court's injunction to enjoin only the enforcement of the ASC physical plant and fire prevention standards.
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52.
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Id. at 593-94.
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53.
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Id. at 594.
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54.
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Id. at 598.
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55.
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Dr. John Hellerstedt has replaced Kirk Cole as the Commissioner of the Texas Department of State Health Services. Hellerstedt is now the named respondent in the case.
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56.
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See Petition for a Writ of Certiorari, Whole Woman's Health v. Cole (U.S. filed Sept. 2, 2015), available at http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/2015-09-02-Cert-Petition-WWH-v-Cole.pdf.
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57.
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Id.
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58.
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Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 912 (9th Cir. 2014).
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59.
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Id.
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60.
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Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013).
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61.
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Id. at 798.
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62.
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See Brief for Respondents, Whole Woman's Health v. Cole (U.S. filed Jan. 27, 2016), available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs_2015_2016/15-74_resp.authcheckdam.pdf
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63.
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Id. at 20.
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64.
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Id. at 27.
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65.
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Id. at 17.
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66.
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Id.
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67.
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Id. at 18.
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68.
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Id. at 48.
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69.
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Id. at 44.
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70.
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Id. at 45.
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71.
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Id. at 46.
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72.
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For additional information on Justice Antonin Scalia and abortion, see CRS Report R44419, Justice Antonin Scalia: His Jurisprudence and His Impact on the Court, coordinated by [author name scrubbed], [author name scrubbed], and [author name scrubbed].
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73.
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See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court, by [author name scrubbed].
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