throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2015
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` WHOLE WOMAN’S HEALTH ET AL. v. HELLERSTEDT,
`
`
`
`
` COMMISSIONER, TEXAS DEPARTMENT OF STATE
`
`
` HEALTH SERVICES, ET AL.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FIFTH CIRCUIT
` No. 15–274. Argued March 2, 2016—Decided June 27, 2016
`
` A “State has a legitimate interest in seeing to it that abortion . . . is
`
`performed under circumstances that insure maximum safety for the
`
` patient.” Roe v. Wade, 410 U. S. 113, 150. But “a statute which,
`while furthering [a] valid state interest, has the effect of placing a
`substantial obstacle in the path of a woman’s choice cannot be con-
`
` sidered a permissible means of serving its legitimate ends,” Planned
`Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality
`opinion), and “[u]nnecessary health regulations that have the pur-
`pose or effect of presenting a substantial obstacle to a woman seeking
`an abortion impose an undue burden on the right,” id., at 878.
`
`In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2),
`which contains the two provisions challenged here. The “admitting-
`privileges requirement” provides that a “physician performing or in-
`ducing an abortion . . . must, on the date [of service], have active ad-
`mitting privileges at a hospital . . . located not further than 30 miles
`from the” abortion facility. The “surgical-center requirement” re-
`
` quires an “abortion facility” to meet the “minimum standards . . . for
` ambulatory surgical centers” under Texas law. Before the law took
`
`effect, a group of Texas abortion providers filed the Abbott case, in
`which they lost a facial challenge to the constitutionality of the ad-
`mitting-privileges provision. After the law went into effect, petition-
`
`ers, another group of abortion providers (including some Abbott
`plaintiffs), filed this suit, claiming that both the admitting-privileges
`and the surgical-center provisions violated the Fourteenth Amend-
`ment, as interpreted in Casey. They sought injunctions preventing
`enforcement of the admitting-privileges provision as applied to physi-
`
`
`
`
`
`
`
`
`
`
`
`

`
`2
`
`
`
`WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`
`Syllabus
`cians at one abortion facility in McAllen and one in El Paso and pro-
`hibiting enforcement of the surgical-center provision throughout Tex-
`as.
`
`Based on the parties’ stipulations, expert depositions, and expert
`and other trial testimony, the District Court made extensive findings,
`including, but not limited to: as the admitting-privileges requirement
`began to be enforced, the number of facilities providing abortions
`
`dropped in half, from about 40 to about 20; this decrease in geograph-
`
`ical distribution means that the number of women of reproductive
`age living more than 50 miles from a clinic has doubled, the number
`
`living more than 100 miles away has increased by 150%, the number
`living more than 150 miles away by more than 350%, and the number
`living more than 200 miles away by about 2,800%; the number of fa-
`cilities would drop to seven or eight if the surgical-center provision
`took effect, and those remaining facilities would see a significant in-
`crease in patient traffic; facilities would remain only in five metropol-
`itan areas; before H. B. 2’s passage, abortion was an extremely safe
`procedure with very low rates of complications and virtually no
`
`deaths; it was also safer than many more common procedures not
`subject to the same level of regulation; and the cost of compliance
`with the surgical-center requirement would most likely exceed $1.5
`million to $3 million per clinic. The court enjoined enforcement of the
`provisions, holding that the surgical-center requirement imposed an
`undue burden on the right of women in Texas to seek previability
`abortions; that, together with that requirement, the admitting-
`privileges requirement imposed an undue burden in the Rio Grande
`
`Valley, El Paso, and West Texas; and that the provisions together
`created an “impermissible obstacle as applied to all women seeking a
`
`previability abortion.”
`
`The Fifth Circuit reversed in significant part. It concluded that res
`judicata barred the District Court from holding the admitting-
`privileges requirement unconstitutional statewide and that res judi-
`cata also barred the challenge to the surgical-center provision. Rea-
`soning that a law is “constitutional if (1) it does not have the purpose
`
`or effect of placing a substantial obstacle in the path of a woman
`seeking an abortion of a nonviable fetus and (2) it is reasonably relat-
`ed to . . . a legitimate state interest,” the court found that both re-
`quirements were rationally related to a compelling state interest in
`
`protecting women’s health.
`Held:
`
`
`1. Petitioners’ constitutional claims are not barred by res judicata.
`Pp. 10–18.
`
`
`(a) Res judicata neither bars petitioners’ challenges to the admit-
`
`
`ting-privileges requirement nor prevents the Court from awarding fa-
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`Cite as: 579 U. S. ____ (2016)
`
`
`Syllabus
`cial relief. The fact that several petitioners had previously brought
`the unsuccessful facial challenge in Abbott does not mean that claim
`preclusion, the relevant aspect of res judicata, applies. Claim preclu-
`sion prohibits “successive litigation of the very same claim,” New
`Hampshire v. Maine, 532 U. S. 742, 748, but petitioners’ as-applied
`postenforcement challenge and the Abbott plaintiffs’ facial preen-
`forcement challenge do not present the same claim. Changed circum-
`
`stances showing that a constitutional harm is concrete may give rise
`to a new claim. Abbott rested upon facts and evidence presented be-
`fore enforcement of the admitting-privileges requirement began,
`when it was unclear how clinics would be affected. This case rests
`upon later, concrete factual developments that occurred once en-
`
`forcement started and a significant number of clinics closed.
`
`Res judicata also does not preclude facial relief here. In addition to
`requesting as-applied relief, petitioners asked for other appropriate
`
`relief, and their evidence and arguments convinced the District Court
`of the provision’s unconstitutionality across the board. Federal Rule
`of Civil Procedure 54(c) provides that a “final judgment should grant
`the relief to which each party is entitled, even if the party has not
`demanded that relief in its pleadings,” and this Court has held that if
`the arguments and evidence show that a statutory provision is un-
`constitutional on its face, an injunction prohibiting its enforcement is
`
`“proper,” Citizens United v. Federal Election Comm’n, 558 U. S. 310,
`333. Pp. 10–15.
`
`
`(b) Claim preclusion also does not bar petitioners’ challenge to
`
`the surgical-center requirement.
`In concluding that petitioners
`
`should have raised this claim in Abbott, the Fifth Circuit did not take
`
`
`account of the fact that the surgical-center provision and the admit-
`ting-privileges provision are separate provisions with two different
`and independent regulatory requirements. Challenges to distinct
`regulatory requirements are ordinarily treated as distinct claims.
`Moreover, the surgical-center provision’s implementing regulations
`had not even been promulgated at the time Abbott was filed, and the
`
`relevant factual circumstances changed between the two suits.
`Pp. 16–18.
`
`2. Both the admitting-privileges and the surgical-center require-
`ments place a substantial obstacle in the path of women seeking a
`previability abortion, constitute an undue burden on abortion access,
`
`and thus violate the Constitution. Pp. 19–39.
`
`
`(a) The Fifth Circuit’s standard of review may be read to imply
`
`that a district court should not consider the existence or nonexistence
`of medical benefits when deciding the undue burden question, but
`Casey requires courts to consider the burdens a law imposes on abor-
`
`tion access together with the benefits those laws confer, see 505 U. S.,
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`
`
`
`
`

`
`
`WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`
`Syllabus
`at 887–898. The Fifth Circuit’s test also mistakenly equates the judi-
`cial review applicable to the regulation of a constitutionally protected
`personal liberty with the less strict review applicable to, e.g., econom-
`ic legislation. And the court’s requirement that legislatures resolve
`
`
`questions of medical uncertainty is inconsistent with this Court’s
`
`case law, which has placed considerable weight upon evidence and
`argument presented in judicial proceedings when determining the
`constitutionality of laws regulating abortion procedures. See id., at
`888–894. Explicit legislative findings must be considered, but there
`
`were no such findings in H. B. 2. The District Court applied the cor-
`rect legal standard here, considering the evidence in the record—
`including expert evidence—and then weighing the asserted benefits
`
`against the burdens. Pp. 19–21.
`
`
`(b) The record contains adequate legal and factual support for
`
`the District Court’s conclusion that the admitting-privileges require-
`
`ment imposes an “undue burden” on a woman’s right to choose. The
`
`requirement’s purpose is to help ensure that women have easy access
`to a hospital should complications arise during an abortion proce-
`dure, but the District Court, relying on evidence showing extremely
`
`low rates of serious complications before H. B. 2’s passage, found no
`significant health-related problem for the new law to cure. The
`State’s record evidence, in contrast, does not show how the new law
`advanced the State’s legitimate interest in protecting women’s health
`
`when compared to the prior law, which required providers to have a
`“working arrangement” with doctors who had admitting privileges.
`At the same time, the record evidence indicates that the requirement
`places a “substantial obstacle” in a woman’s path to abortion. The
`dramatic drop in the number of clinics means fewer doctors, longer
`waiting times, and increased crowding. It also means a significant
`increase in the distance women of reproductive age live from an abor-
`tion clinic. Increased driving distances do not always constitute an
`“undue burden,” but they are an additional burden, which, when tak-
`en together with others caused by the closings, and when viewed in
`light of the virtual absence of any health benefit, help support the
`District Court’s “undue burden” conclusion. Pp. 21–28.
`(c) The surgical-center requirement also provides few, if any,
`
`health benefits for women, poses a substantial obstacle to women
`seeking abortions, and constitutes an “undue burden” on their consti-
`
`tutional right to do so. Before this requirement was enacted, Texas
`law required abortion facilities to meet a host of health and safety re-
`quirements that were policed by inspections and enforced through
`
`administrative, civil, and criminal penalties. Record evidence shows
`that the new provision imposes a number of additional requirements
`that are generally unnecessary in the abortion clinic context; that it
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
`

`
`5
`
`
`
`
`
`Cite as: 579 U. S. ____ (2016)
`
`
`Syllabus
`
`provides no benefit when complications arise in the context of a med-
`ical abortion, which would generally occur after a patient has left the
`facility; that abortions taking place in abortion facilities are safer
`
`than common procedures that occur in outside clinics not subject to
`Texas’ surgical-center requirements; and that Texas has waived no
`part of the requirement for any abortion clinics as it has done for
`nearly two-thirds of other covered facilities. This evidence, along
`with the absence of any contrary evidence, supports the District
`Court’s conclusions, including its ultimate legal conclusion that re-
`quirement is not necessary. At the same time, the record provides
`adequate evidentiary support for the District Court’s conclusion that
`the requirement places a substantial obstacle in the path of women
`seeking an abortion. The court found that it “strained credulity” to
`think that the seven or eight abortion facilities would be able to meet
`the demand. The Fifth Circuit discounted expert witness Dr. Gross-
`man’s testimony that the surgical-center requirement would cause
`the number of abortions performed by each remaining clinic to in-
`crease by a factor of about 5. But an expert may testify in the “form
`of an opinion” as long as that opinion rests upon “sufficient facts or
`data” and “reliable principles and methods.” Fed. Rule Evid. 702.
`Here, Dr. Grossman’s opinion rested upon his participation, together
`with other university researchers, in research tracking the number of
`facilities providing abortion services, using information from, among
`other things, the state health services department and other public
`sources. The District Court acted within its legal authority in finding
`
`
`his testimony admissible. Common sense also suggests that a physi-
`cal facility that satisfies a certain physical demand will generally be
`
`unable to meet five times that demand without expanding physically
`
`or otherwise incurring significant costs. And Texas presented no evi-
`dence at trial suggesting that expansion was possible. Finally, the
`
`District Court’s finding that a currently licensed abortion facility
`
`
`
`would have to incur considerable costs to meet the surgical-center re-
`quirements supports the conclusion that more surgical centers will
`
`not soon fill the gap left by closed facilities. Pp. 28–36.
`(d) Texas’ three additional arguments are unpersuasive. Pp. 36–
`
`
`
`
`
`
`
`
`
`
`39.
`790 F. 3d 563 and 598, reversed and remanded.
`BREYER, J., delivered the opinion of the Court, in which KENNEDY,
`
`
`
` GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed a
`
`
`
`
`
`
`
`concurring opinion. THOMAS, J., filed a dissenting opinion. ALITO, J.,
`
`
`
`
`filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J.,
`
`
`
`
`
`joined.
`
`

`
`
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 15–274
`_________________
` WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v.
`
`
`JOHN HELLERSTEDT, COMMISSIONER, TEXAS
`
`DEPARTMENT OF STATE HEALTH SERVICES, ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIFTH CIRCUIT
`
`[June 27, 2016]
`
`JUSTICE BREYER delivered the opinion of the Court.
`In Planned Parenthood of Southeastern Pa. v. Casey,
`505 U. S. 833, 878 (1992), a plurality of the Court con-
`cluded that there “exists” an “undue burden” on a woman’s
`right to decide to have an abortion, and consequently a
`provision of law is constitutionally invalid, if the “purpose
`
`or effect” of the provision “is to place a substantial obstacle
`
`in the path of a woman seeking an abortion before the
`fetus attains viability.” (Emphasis added.) The plurality
`added that “[u]nnecessary health regulations that have
`the purpose or effect of presenting a substantial obstacle
`to a woman seeking an abortion impose an undue burden
`on the right.” Ibid.
`We must here decide whether two provisions of Texas’
`
`House Bill 2 violate the Federal Constitution as inter-
`preted in Casey. The first provision, which we shall call
`the “admitting-privileges requirement,” says that
`“[a] physician performing or inducing an abortion . . .
`
`must, on the date the abortion is performed or in-
`duced, have active admitting privileges at a hospital
`
`
`
`
`
`
`
`

`
`
`
` WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`Opinion of the Court
`that . . . is located not further than 30 miles from the
`location at which the abortion is performed or in-
`duced.” Tex. Health & Safety Code Ann. §171.0031(a)
`(West Cum. Supp. 2015).
`This provision amended Texas law that had previously
`required an abortion facility to maintain a written protocol
`“for managing medical emergencies and the transfer of
`patients requiring further emergency care to a hospital.”
`38 Tex. Reg. 6546 (2013).
`The second provision, which we shall call the “surgical-
`
`center requirement,” says that
`
`“the minimum standards for an abortion facility must
`be equivalent to the minimum standards adopted un-
`der [the Texas Health and Safety Code section] for
`ambulatory surgical centers.” Tex. Health & Safety
`
`Code Ann. §245.010(a).
`We conclude that neither of these provisions confers
`
`medical benefits sufficient to justify the burdens upon
`access that each imposes. Each places a substantial ob-
`stacle in the path of women seeking a previability abor-
`tion, each constitutes an undue burden on abortion access,
`Casey, supra, at 878 (plurality opinion), and each violates
`the Federal Constitution. Amdt. 14, §1.
`I
`
`
`A
`
`
`In July 2013, the Texas Legislature enacted House Bill
`
`2 (H. B. 2 or Act). In September (before the new law took
`effect), a group of Texas abortion providers filed an action
`in Federal District Court seeking facial invalidation of the
`law’s admitting-privileges provision. In late October, the
`District Court granted
`the
`injunction.
`Planned
`Parenthood of Greater Tex. Surgical Health Servs. v. Ab-
`bott, 951 F. Supp. 2d 891, 901 (WD Tex. 2013). But three
`days later, the Fifth Circuit vacated the injunction,
`
`
`
`
`
`2
`
`
`
`
`

`
`
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
`Opinion of the Court
`thereby permitting the provision to take effect. Planned
`Parenthood of Greater Tex. Surgical Health Servs. v. Ab-
`bott, 734 F. 3d 406, 419 (2013).
`
`The Fifth Circuit subsequently upheld the provision,
`and set forth its reasons in an opinion released late the
`following March. In that opinion, the Fifth Circuit pointed
`to evidence introduced in the District Court the previous
`October.
`It noted that Texas had offered evidence de-
`signed to show that the admitting-privileges requirement
`“will reduce the delay in treatment and decrease health
`risk for abortion patients with critical complications,” and
`that it would “‘screen out’ untrained or incompetent abor-
`tion providers.” Planned Parenthood of Greater Tex. Sur-
`
`gical Health Servs. v. Abbott, 748 F. 3d 583, 592 (2014)
`(Abbott). The opinion also explained that the plaintiffs
`had not provided sufficient evidence “that abortion practi-
`tioners will likely be unable to comply with the privileges
`requirement.” Id., at 598. The court said that all “of the
`major Texas cities, including Austin, Corpus Christi,
`Dallas, El Paso, Houston, and San Antonio,” would “con-
`tinue to have multiple clinics where many physicians will
`
`have or obtain hospital admitting privileges.” Ibid. The
`Abbott plaintiffs did not file a petition for certiorari in this
`
`Court.
`
`
`
`3
`
`
`
`
`
`B
`
`On April 6, one week after the Fifth Circuit’s decision,
`petitioners, a group of abortion providers (many of whom
`were plaintiffs in the previous lawsuit), filed the present
`lawsuit in Federal District Court. They sought an injunc-
`tion preventing enforcement of the admitting-privileges
`provision as applied to physicians at two abortion facili-
`
`ties, one operated by Whole Woman’s Health in McAllen
`and the other operated by Nova Health Systems in El
`Paso. They also sought an injunction prohibiting enforce-
`ment of the surgical-center provision anywhere in Texas.
`
`
`
`
`
`

`
`4
`
`
`
`
` WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`Opinion of the Court
`They claimed that the admitting-privileges provision and
`the surgical-center provision violated the Constitution’s
`Fourteenth Amendment, as interpreted in Casey.
`The District Court subsequently received stipulations
`
`from the parties and depositions from the parties’ experts.
`The court conducted a 4-day bench trial. It heard, among
`other testimony, the opinions from expert witnesses for
`both sides. On the basis of the stipulations, deposi-
`tions, and testimony, that court reached the following
`
`conclusions:
`
`
`
`
`1. Of Texas’ population of more than 25 million people,
`“approximately 5.4 million” are “women” of “reproductive
`age,” living within a geographical area of “nearly 280,000
`square miles.” Whole Woman’s Health v. Lakey, 46
`F. Supp. 3d 673, 681 (2014); see App. 244.
`
`
`
`
`
`
`
`2. “In recent years, the number of abortions reported in
`
`Texas has stayed fairly consistent at approximately 15–
`16% of the reported pregnancy rate, for a total number of
`approximately 60,000–72,000 legal abortions performed
`annually.” 46 F. Supp. 3d, at 681; see App. 238.
`
`
`
`3. Prior to the enactment of H. B. 2, there were more
`than 40 licensed abortion facilities in Texas, which “num-
`ber dropped by almost half leading up to and in the wake
`of enforcement of the admitting-privileges requirement
`
`that went
`into effect
`in
`late-October 2013.”
`46
`F. Supp. 3d, at 681; App. 228–231.
`
`
`
`
`
`4. If the surgical-center provision were allowed to take
`effect, the number of abortion facilities, after September 1,
`2014, would be reduced further, so that “only seven facili-
`ties and a potential eighth will exist in Texas.” 46
`F. Supp. 3d, at 680; App. 182–183.
`
`
`
`
`
`
`

`
`
`
`5
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
`Opinion of the Court
`
`
` 5. Abortion facilities “will remain only in Houston,
`Austin, San Antonio, and the Dallas/Fort Worth metropol-
`itan region.” 46 F. Supp. 3d, at 681; App. 229–230. These
`include “one facility in Austin, two in Dallas, one in Fort
`Worth, two in Houston, and either one or two in San An-
`tonio.” 46 F. Supp. 3d, at 680; App. 229–230.
`
`
`
`6. “Based on historical data pertaining to Texas’s aver-
`age number of abortions, and assuming perfectly equal
`distribution among the remaining seven or eight provid-
`ers, this would result in each facility serving between
`7,500 and 10,000 patients per year. Accounting for the
`seasonal variations in pregnancy rates and a slightly
`unequal distribution of patients at each clinic, it is fore-
`seeable that over 1,200 women per month could be vying
`for counseling, appointments, and follow-up visits at some
`of these facilities.” 46 F. Supp. 3d, at 682; cf. App. 238.
`
`
`
`
`
`7. The suggestion “that these seven or eight providers
`could meet the demand of the entire state stretches credu-
`lity.” 46 F. Supp. 3d, at 682; see App. 238.
`
`
`
`
`
`8. “Between November 1, 2012 and May 1, 2014,” that
`is, before and after enforcement of the admitting-
`privileges requirement, “the decrease in geographical
`distribution of abortion facilities” has meant that the
`number of women of reproductive age living more than 50
`miles from a clinic has doubled (from 800,000 to over 1.6
`million); those living more than 100 miles has increased
`by 150% (from 400,000 to 1 million); those living more
`than 150 miles has increased by more than 350% (from
`86,000 to 400,000); and those living more than 200 miles
`has increased by about 2,800% (from 10,000 to 290,000).
`After September 2014, should the surgical-center re-
`quirement go into effect, the number of women of repro-
`
`ductive age living significant distances from an abortion
`
`
`
`

`
`6
`
`
`
`
` WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`Opinion of the Court
`provider will increase as follows: 2 million women of re-
`productive age will live more than 50 miles from an abor-
`tion provider; 1.3 million will live more than 100 miles
`from an abortion provider; 900,000 will live more than 150
`
`miles from an abortion provider; and 750,000 more than
`200 miles from an abortion provider. 46 F. Supp. 3d, at
`681–682; App. 238–242.
`
`
`
`
`
`
`9. The “two requirements erect a particularly high
`barrier for poor, rural, or disadvantaged women.” 46
`F. Supp. 3d, at 683; cf. App. 363–370.
`
`
`
`
`
`10. “The great weight of evidence demonstrates that,
`before the act’s passage, abortion in Texas was extremely
`safe with particularly low rates of serious complications
`and virtually no deaths occurring on account of the proce-
`
`
`dure.” 46 F. Supp. 3d, at 684; see, e.g., App. 257–259, 538;
`
`see also id., at 200–202, 253–257.
`
`
`
`11. “Abortion, as regulated by the State before the en-
`actment of House Bill 2, has been shown to be much safer,
`in terms of minor and serious complications, than many
`common medical procedures not subject to such intense
`regulation and scrutiny.” 46 F. Supp. 3d, at 684; see, e.g.,
`App. 223–224 (describing risks in colonoscopies), 254
`(discussing risks in vasectomy and endometrial biopsy,
`among others), 275–277 (discussing complication rate in
`plastic surgery).
`
`
`
`
`
`12. “Additionally, risks are not appreciably lowered for
`
`patients who undergo abortions at ambulatory surgical
`centers as compared to nonsurgical-center facilities.” 46
`F. Supp. 3d, at 684; App. 202–206, 257–259.
`
`
`
`13. “[W]omen will not obtain better care or experience
`more frequent positive outcomes at an ambulatory surgi-
`
`
`
`

`
`
`
`7
`
`
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
`Opinion of the Court
`cal center as compared to a previously licensed facility.”
`46 F. Supp. 3d, at 684; App. 202–206.
`
`
`
`
`
`14. “[T]here are 433 licensed ambulatory surgical cen-
`ters in Texas,” of which “336 . . . are apparently either
`‘grandfathered’ or enjo[y] the benefit of a waiver of some or
`all” of the surgical-center “requirements.” 46 F. Supp. 3d,
`at 680–681; App. 184.
`
`
`
`
`15. The “cost of coming into compliance” with the
`surgical-center requirement “for existing clinics is signifi-
`cant,” “undisputedly approach[ing] 1 million dollars,” and
`“most likely exceed[ing] 1.5 million dollars,” with “[s]ome
`. . . clinics” unable to “comply due to physical size limita-
`tions of their sites.” 46 F. Supp. 3d, at 682. The “cost of
`acquiring land and constructing a new compliant clinic
`will likely exceed three million dollars.” Ibid.
`
`
`
`
`
`
`
`On the basis of these and other related findings, the
`District Court determined that the surgical-center re-
`quirement “imposes an undue burden on the right of
`women throughout Texas to seek a previability abortion,”
`and that the “admitting-privileges requirement, . . . in
`conjunction with the ambulatory-surgical-center require-
`ment, imposes an undue burden on the right of women in
`the Rio Grande Valley, El Paso, and West Texas to seek a
`previability abortion.”
`Id., at 687. The District Court
`concluded that the “two provisions” would cause “the
`closing of almost all abortion clinics in Texas that were
`operating legally in the fall of 2013,” and thereby create a
`constitutionally “impermissible obstacle as applied to all
`women seeking a previability abortion” by “restricting
`
`access to previously available legal facilities.” Id., at 687–
`688. On August 29, 2014, the court enjoined the enforce-
`
`ment of the two provisions. Ibid.
`
`
`
`
`
`

`
`
`
` WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`Opinion of the Court
`
`C
`
`
`On October 2, 2014, at Texas’ request, the Court of
`Appeals stayed the District Court’s injunction. Whole
`
`Woman’s Health v. Lakey, 769 F. 3d 285, 305. Within the
`next two weeks, this Court vacated the Court of Appeals’
`stay (in substantial part) thereby leaving in effect the
`District Court’s injunction against enforcement of the
`surgical-center provision and its injunction against en-
`forcement of the admitting-privileges requirement as
`applied to the McAllen and El Paso clinics. Whole Wom-
`an’s Health v. Lakey, 574 U. S. ___ (2014). The Court of
`
`Appeals then heard Texas’ appeal.
`
`On June 9, 2015, the Court of Appeals reversed the
`District Court on the merits. With minor exceptions, it
`found both provisions constitutional and allowed them to
`take effect. Whole Women’s Health v. Cole, 790 F. 3d 563,
`
`567 (per curiam), modified, 790 F. 3d 598 (CA5 2015).
`Because the Court of Appeals’ decision rests upon alterna-
`tive grounds and fact-related considerations, we set forth
`its basic reasoning in some detail. The Court of Appeals
`concluded:
`
`• The District Court was wrong to hold the admitting-
`privileges requirement unconstitutional because (except
`for the clinics in McAllen and El Paso) the providers had
`
`not asked them to do so, and principles of res judicata
`barred relief. Id., at 580–583.
`• Because the providers could have brought their constitu-
`tional challenge to the surgical-center provision in their
`
`earlier lawsuit, principles of res judicata also barred that
`claim. Id., at 581–583.
`• In any event, a state law “regulating previability abor-
`
`
`tion is constitutional if: (1) it does not have the purpose or
`effect of placing a substantial obstacle in the path of a
`woman seeking an abortion of a nonviable fetus; and (2) it
`is reasonably related to (or designed to further) a legiti-
`
`8
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
`Opinion of the Court
`mate state interest.” Id., at 572.
`• “[B]oth the admitting privileges requirement and” the
`
`surgical-center requirement “were rationally related to a
`legitimate state interest,” namely, “rais[ing] the standard
`and quality of care for women seeking abortions and . . .
`protect[ing] the health and welfare of women seeking
`
`abortions.” Id., at 584.
`• The “[p]laintiffs” failed “to proffer competent evidence
`
`contradicting the legislature’s statement of a legitimate
`purpose.” Id., at 585.
`
`• “[T]he district court erred by substituting its own judg-
`ment [as to the provisions’ effects] for that of the legisla-
`ture, albeit . . . in the name of the undue burden inquiry.”
`
`Id., at 587.
`• Holding the provisions unconstitutional on their face is
`improper because the plaintiffs had failed to show that
`either of the provisions “imposes an undue burden on a
`large fraction of women.” Id., at 590.
`• The District Court erred in finding that, if the surgical-
`center requirement takes effect, there will be too few
`abortion providers in Texas to meet the demand. That
`factual determination was based upon the finding of one of
`plaintiffs’ expert witnesses (Dr. Grossman) that abortion
`providers in Texas “‘will not be able to go from providing
`approximately 14,000 abortions annually, as they currently
`are, to providing the 60,000 to 70,000 abortions that are
`
`done each year in Texas once all’” of the clinics failing to
`
`meet the surgical-center requirement “‘are forced to
`close.’” Id., at 589–590. But Dr. Grossman’s opinion is (in
`the Court of Appeals’ view) “‘ipse dixit’”; the “‘record lacks
`any actual evidence regarding the current or future capac-
`ity of the eight clinics’”; and there is no “evidence in the
`record that” the providers that currently meet the surgical-
`center requirement “are operating at full capacity or that
`
`they cannot increase capacity.” Ibid.
`
`
`
`
`
`
`
`
`

`
`
`
` WHOLE WOMAN’S HEALTH v. HELLERSTEDT
`
`Opinion of the Court
`For these and related reasons, the Court of Appeals
`
`
`reversed the District Court’s holding that the admitting-
`privileges requirement is unconstitutional and its holding
`that the surgical-center requirement is unconstitutional.
`
`The Court of Appeals upheld in part the District Court’s
`
`more specific holding that the requirements are unconsti-
`tutional as applied to the McAllen facility and Dr. Lynn (a
`doctor at that facility), but it reversed the District Court’s
`holding that the surgical-center requirement is unconsti-
`tutional as applied to the facility in El Paso. In respect to
`this last claim, the Court of Appeals said that women in El
`Paso wishing to have an abortion could use abortion pro-
`viders in nearby New Mexico.
`
`II
`
`Before turning to the constitutional question, we must
`consider the Court of Appeals’ procedural grounds for
`
`holding that (but for the challenge to the provisions of
`H. B. 2 as applied to McAllen and El Paso) petitioners
`were barred from bringing their constitutional challenges.
`A
`Claim Preclusion—Admitting-Privileges Requirement
`
`The Court of Appeals held that there cou

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.