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
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` 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-
`
`
`
`
`
`
`
`
`
`
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`

`
`2
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`
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`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
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`
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`
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`
`
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`

`
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`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
`
`
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`
`
`
`
`
`
`4
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`
`
`

`
`5
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`
`
`
`
`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
`
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` 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.
`
`
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`
`
`
`

`
`
`
`5
`
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`
` 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
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` 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
`
`
`
`
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` 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

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