Case: 17-51060 Document: 00515984856 Page: 1 Date Filed: 08/18/2021
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`August 18, 2021
`
`Lyle W. Cayce
`Clerk
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 17-51060
`
`
`Whole Woman’s Health, on behalf of itself, its staff, physicians and
`patients; Planned Parenthood Center for Choice, on behalf of
`itself, its staff, physicians, and patients; Planned Parenthood of
`Greater Texas Surgical Health Services, on behalf of itself, its
`staff, physicians, and patients; Planned Parenthood South Texas
`Surgical Center, on behalf of itself, its staff, physicians, and patients;
`Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff,
`physicians, and patients, doing business as Alamo Women’s
`Reproductive Services; Southwestern Women’s Surgery
`Center, on behalf of itself, its staff, physicians, and patients; Curtis
`Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe,
`M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik
`Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients;
`Alan Braid, M.D., on his own behalf and on behalf of his patients; Robin
`Wallace, M.D., M.A.S., on her own behalf and on behalf of her patients,
`
`
`Plaintiffs—Appellees,
`
`
`versus
`
`Ken Paxton, Attorney General of Texas, in his official capacity; Sharen
`Wilson, Criminal District Attorney for Tarrant County, in her official
`capacity; Barry Johnson, Criminal District Attorney for McLennan
`County, in his official capacity,
`
`
`
`
`
`
`
`Defendants—Appellants.
`
`

`

`Case: 17-51060 Document: 00515984856 Page: 2 Date Filed: 08/18/2021
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:17-CV-690
`
`
`
`Before Owen, Chief Judge, and Jones, Smith, Stewart, Dennis,
`Elrod, Haynes, Graves, Higginson, Costa, Willett, Ho,
`Engelhardt, and Wilson, Circuit Judges.∗
`Jennifer Walker Elrod and Don R. Willett, Circuit Judges,
`joined by Owen, Chief Judge, and Jones, Smith, Haynes, Ho,
`Engelhardt, and Wilson, Circuit Judges: ∗∗
`
`We must decide whether the district court erred in permanently
`enjoining Texas’s Senate Bill 8 (SB8), which prohibits a particular type of
`dilation and evacuation (D&E) abortion method. SB8 refers to the
`prohibited method as “live dismemberment” because doctors use forceps to
`separate, terminate, and remove the fetus. SB8 requires doctors to use
`alternative fetal-death methods.
`
`The district court declared SB8 facially unconstitutional. It held that
`SB8 imposes an undue burden on a large fraction of women, primarily
`because it determined that SB8 amounted to a ban on all D&E abortions. But
`viewing SB8 through a binary framework—that either D&Es can be done
`only by live dismemberment or else women cannot receive abortions in the
`second trimester—is to accept a false dichotomy. Instead, the record shows
`that doctors can safely perform D&Es and comply with SB8 using methods
`that are already in widespread use. In permanently enjoining SB8, the district
`
`
`
`∗ Judges Southwick, Duncan, and Oldham are recused.
`** Chief Judge Owen and Judge Haynes concur in the judgment only.
`
`
`2
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`court committed numerous, reversible legal and factual errors: applying the
`wrong test to assess SB8, disregarding and misreading the Supreme Court’s
`precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey and
`Gonzales v. Carhart, and bungling the large-fraction analysis. Accordingly,
`we VACATE the district court’s permanent injunction.
`
`Moreover, remanding to the district court would be futile here
`because the record permits only one conclusion. The plaintiffs have failed to
`carry their heavy burden of proving that SB8 would impose an undue burden
`on a large fraction of women. We REVERSE and RENDER.
`I.
`Dilation and evacuation is an abortion method commonly used after
`
`the beginning of the 15th week. It begins with the dilation phase, which is
`lengthy and can take two or even three days to complete. First, the woman
`is given the option of conscious sedation and then is administered medication
`for dilation. If medication cannot alone cause sufficient dilation, the doctor
`injects a local anesthetic directly into the woman’s cervix. After the cervix
`has been numbed, the doctor inserts osmotic dilators into the cervical canal,
`which absorb liquid and expand to allow the removal of the fetus and
`placenta. Starting around 18 weeks gestation, this expansion process
`normally happens overnight, requiring the woman to come back the next day
`for the rest of the abortion procedure.
`
`Once sufficient dilation has occurred, the second phase begins and the
`doctor evacuates (removes) the fetus. Doctors use three main evacuation
`methods: (1) the suction method alone to terminate, separate, and remove
`the fetus; (2) suction and forceps together to terminate, separate, and remove
`the fetus; or (3) various fetal-death techniques (e.g., digoxin injections) to
`terminate the fetus before using forceps (sometimes combined with suction)
`
`3
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`to separate and remove the fetus. Unlike the dilation phase, evacuation is
`relatively brief and can be done in “a few minutes.”
`
`In 2017, the Texas legislature enacted SB8, which allows any abortion
`accomplished by dilation and suction alone (the first method) or
`accomplished by fetal death caused without forceps followed by evacuation
`with forceps (the third method), but regulates the second method by
`prohibiting a doctor from using forceps to separate the fetal tissue and
`thereby terminate the fetus via live dismemberment. 1 SB8 states:
`A person may not intentionally perform a dismemberment
`abortion unless the dismemberment abortion is necessary in a
`medical emergency.2
`A “dismemberment abortion” is defined by the legislature as:
`an abortion in which a person, with the purpose of causing the
`death of an unborn child, dismembers the living unborn child
`and extracts the unborn child one piece at a time from the
`uterus through the use of clamps, grasping forceps, tongs,
`scissors, or a similar instrument that, through the convergence
`of two rigid levers, slices, crushes, or grasps, or performs any
`combination of those actions on, a piece of a the unborn child’s
`body to cut or rip the piece from the body.3
`A “medical emergency” is defined as a:
`life-threatening physical condition aggravated by, caused by, or
`arising from a pregnancy that, as certified by a physician, places
`the woman in danger of death or a serious risk of substantial
`
`
`
`1 See Act of May 26, 2017, 85th Leg. R.S., ch. 441, § 6, 2017 Tex. Gen. Laws 1164,
`1165–67 (eff. Sept. 1, 2017) (codified as Tex. Health & Safety Code §§ 171.151–.154).
`2 Id. § 171.152.
`3 Id. § 171.151.
`
`4
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`impairment of a major bodily function unless an abortion is
`performed.4
`When a medical emergency arises, the doctor may proceed straight to live
`dismemberment with forceps.5
`
`SB8 does not regulate the dilation phase of the abortion or any other
`evacuation method. SB8 does not ban the use of suction during any abortion
`procedure. SB8 does not prohibit a doctor from having forceps “on hand”
`to use after fetal death has occurred or to use if a medical emergency arises. 6
`
`What SB8 does do is prohibit one particular evacuation method in one
`particular set of circumstances—live dismemberment by forceps when a
`medical emergency does not exist. Thus, doctors may comply with SB8 by
`using only suction to achieve fetal death and remove the fetus—or, at later
`gestational ages, using either suction or a digoxin injection to cause fetal
`death before forcep-dismemberment and removal.7
`
`The plaintiffs here, six abortion clinics and five individual doctors who
`provide abortions, brought this facial challenge against SB8 in federal court.
`They allege that SB8 imposes an undue burden on women seeking abortions
`in the second trimester of pregnancy. The defendants are various Texas law
`
`
`
`4 Id. § 171.002.
`5 Id. § 171.152.
`6 Although SB8 prohibits using “clamps, grasping forceps, tongs, scissors,
`or . . . similar instrument[s]” to cause fetal death, id. § 171.151, we will refer to those items
`collectively as “forceps.”
`7 A potassium-chloride injection and umbilical-cord transection are additional
`alternatives to live dismemberment, and the State presented testimony about them at the
`trial. As far back as Stenberg v. Carhart, 530 U.S. 914, 925 (2000), the Supreme Court has
`recognized potassium chloride, in particular, as an established method of causing fetal
`death. We need not discuss these additional alternatives, however, because digoxin and
`suction are already widely used and are alone sufficient for our holding in this case that the
`plaintiffs failed to prove an undue burden on a large fraction of women in the relevant
`circumstances.
`
`5
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`enforcement officials. Texas argues that SB8 does not impose an undue
`burden on a large fraction of women in the relevant circumstances because
`there are safe and available alternatives for causing fetal death without
`forceps.
`
`The district court granted a temporary restraining order preventing
`SB8’s enforcement, followed by a five-day bench trial. The district court
`subsequently ruled that SB8 is facially unconstitutional and entered a
`permanent injunction. Texas appealed.
`
`A panel of our court held the case in abeyance pending the Supreme
`Court’s decision in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103
`(2020). Once the June Medical opinion was issued, we ordered supplemental
`briefing from the parties on the effect, if any, of June Medical on this appeal.
`Texas moved for a stay of the district court’s injunction pending appeal. A
`two-member majority of the panel denied the motion with Judge Willett in
`dissent. See Whole Woman’s Health v. Paxton, 972 F.3d 649 (5th Cir. 2020).
`The panel subsequently issued its opinion on the merits, ruling that SB8 is
`unconstitutional under Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,
`2309 (2016), with Judge Willett in dissent again. See Whole Woman’s Health
`v. Paxton, 978 F.3d 896 (5th Cir.), vacated and reh’g en banc granted, 978 F.3d
`974 (5th Cir. 2020). A majority of the members of our court voted to take the
`case en banc.
`
`II.
`A.
`We review the district court’s permanent injunction for abuse of
`
`discretion. Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016). The district
`court abuses its discretion if it “(1) relies on clearly erroneous factual findings
`when deciding to grant or deny the permanent injunction, (2) relies on
`erroneous conclusions of law when deciding to grant or deny the permanent
`injunction, or (3) misapplies the factual or legal conclusions when fashioning
`
`6
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`its injunctive relief.” Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 790
`(5th Cir. 1999) (alteration omitted) (quoting Peaches Ent. Corp. v. Ent.
`Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995)). We review questions of
`fact for clear error and legal conclusions de novo. Scott, 826 F.3d at 211. A
`clear error has occurred when we are “left with the definite and firm
`conviction that a mistake has been committed.” June Medical, 140 S. Ct. at
`2141 (Roberts, C.J., concurring) (quoting United States v. U.S. Gypsum Co.,
`333 U.S. 364, 395 (1948)).
`
`If “a district court’s findings rest on an erroneous view of the law,
`they may be set aside on that basis.” Pullman-Standard v. Swint, 456 U.S.
`273, 287 (1982); see also Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir.
`2014) (“When, as here, a court’s factual finding ‘rest[s] on an erroneous
`view of the law’, its factual finding does not bind the appellate court.”
`(quoting Swint, 456 U.S. at 287)); Thornburg v. Gingles, 478 U.S. 30, 79
`(1986) (holding that appellate courts’ power to correct extends to “finding[s]
`of fact that [are] predicated on a misunderstanding of the governing rule of
`law” (quoting Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 501
`(1984))). And “when the record permits only one resolution of the factual
`issue after the correct law is applied, remand is unnecessary.” Aransas
`Project, 775 F.3d at 658 (citing Swint, 456 U.S. at 292); see also Swint, 456 U.S.
`at 292 (“[W]here findings are infirm because of an erroneous view of the law,
`a remand is the proper course unless the record permits only one resolution
`of the factual issue.”).
`
`B.
`In Planned Parenthood of Southeastern Pennsylvania v. Casey, the
`
`Supreme Court repudiated lower courts’ post-Roe v. Wade practice of
`invalidating abortion regulations that “in no real sense deprived women of
`the ultimate decision” to have an abortion. 505 U.S. 833, 875 (1992). Casey
`established three principles: (1) the woman has a “right . . . to choose to have
`
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`an abortion before viability . . . without undue interference from the State”;
`(2) the State has the “power to restrict abortions after fetal viability”; and
`(3) the State has “legitimate interests from the outset of the pregnancy in
`protecting the health of the woman and the life of the fetus.” Id. at 846.
`In Casey, the Court set out the familiar undue-burden test, stating that
`
`“[o]nly where state regulation imposes an undue burden on a woman’s
`ability to make” the decision to have an abortion does the State violate the
`Due Process Clause. Id. at 874. “A finding of an undue burden is a shorthand
`for the conclusion that a state regulation has the purpose or effect of placing
`a substantial obstacle in the path of a woman seeking an abortion of a
`nonviable fetus.” Id. at 877 (emphasis added). The Casey Court further
`explained that “[t]he fact that a law which serves a valid purpose, one not
`designed to strike at the right itself, has the incidental effect of making it more
`difficult or more expensive to procure an abortion cannot be enough to
`invalidate it.” Id. at 874.
`
`When a plaintiff claims that an abortion law is facially invalid—as
`opposed to unconstitutional as applied to her—we ask whether the law would
`impose a substantial obstacle on a “large fraction” of women in the relevant
`circumstances. Id. at 895.8 We first determine the denominator of the
`fraction by identifying the number of women “for whom the law is a
`restriction, not the [number of women] for whom the law is irrelevant.” Id.
`at 894. After determining that proper denominator, courts should deduce
`the numerator—the number of women for whom the abortion regulation
`
`
`8 The large-fraction test is a generous exception to the normal burden that litigants
`bear in facial challenges. In non-abortion cases, a plaintiff must establish that no set of
`circumstances exists under which the law would be constitutional. See Women’s Med. Pro.
`Corp. v. Voinovich, 130 F.3d 187, 193–95 (6th Cir. 1997) (noting the Supreme Court’s
`“inconsistent” rules in facial challenges between abortion cases and non-abortion cases);
`see also Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142–43 (3d Cir. 2000)
`(same).
`
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`would impose an “undue burden.” Id. at 895. The plaintiff bears the burden
`of proving a large fraction—and that burden is “heavy.” Gonzales v. Carhart,
`550 U.S. 124, 167–68 (2007).
`
`III.
`The district court concluded that SB8 amounts to a complete ban on
`
`“standard D&E” abortions. This conclusion rested on four errors—each of
`which independently compels reversal. First, the district court applied an
`incorrect legal test to assess SB8. Second, the district court disregarded
`Casey, Gonzales, and Hellerstedt by dismissing the State’s interests and
`committing myriad other legal errors. Third, the district court failed to
`properly evaluate SB8’s burdens under Casey and, in doing so, improperly
`concluded that the only safe second-trimester abortion procedure is live
`dismemberment by forceps. Finally, the district court misapplied the large-
`fraction test by incorrectly determining the number of women upon whom
`SB8 would place an undue burden (the numerator) and incorrectly
`determining the number of women to whom SB8 would apply (the
`denominator). In sum, the district court’s opinion rested on bad law, bad
`facts, and bad math. We address each error in turn.
`A.
`1.
`For decades, Casey’s undue-burden test was the governing standard
`
`for assessing abortion regulations. Five years ago, in Whole Woman’s Health
`v. Hellerstedt, the Supreme Court stated that Casey’s undue-burden test
`“requires that courts consider the burdens a law imposes on abortion access
`together with the benefits those laws confer.” Whole Woman’s Health v.
`Hellerstedt, 136 S. Ct. 2292, 2309 (2016). This language in Hellerstedt came
`
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`to be recognized by some as a “balancing test.” Id. at 2324 (Thomas, J.,
`dissenting).9
`Last summer in June Medical—issued after the district court enjoined
`
`SB8—the Supreme Court again tackled the meaning of “undue burden.”
`140 S. Ct. at 2112 (plurality opinion). The four-Justice plurality considered
`the law’s benefits together with its burdens. Id. Chief Justice Roberts wrote
`separately, concurring in the judgment but disavowing any balancing test. Id.
`at 2135–37 (Roberts, C.J., concurring). The Chief Justice explained that the
`proper standard is the straightforward undue-burden test and that neither
`Casey nor Hellerstedt established a balancing test. “In neither [Hellerstedt nor
`Casey] was there [a] call for consideration of a regulation’s benefits.” Id. at
`2139. The Chief Justice noted that the Court in Hellerstedt explicitly stated
`that it “appl[ied] the undue burden standard of Casey” and that it needed
`“[n]othing more” than the burdens analysis to hold the challenged law
`unconstitutional. Id. at 2138–39. As the Chief Justice put it, Hellerstedt,
`properly understood, was simply an iteration of Casey’s undue-burden
`standard, which “require[s] a substantial obstacle before striking down an
`abortion regulation.” Id. at 2139. “Laws that do not pose a substantial
`obstacle to abortion access are permissible, so long as they are ‘reasonably
`related’ to a legitimate state interest.” Id. at 2135 (quoting Casey, 505 U.S.
`at 878). The only relevance of an abortion regulation’s asserted “benefits”
`is “in considering the threshold requirement that the State have a ‘legitimate
`
`
`
`9 Previously, our circuit explicitly eschewed a benefits-versus-burdens balancing
`test. “In our circuit, we do not balance the wisdom or effectiveness of a law against the
`burdens the law imposes.” Whole Woman’s Health v. Cole, 790 F.3d 563, 587 n.33 (5th Cir.)
`(quoting Whole Woman’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.) (citing Planned
`Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 593–94 (5th Cir.
`2014) (Abbott II)), vacated in part, 574 U.S. 931 (2014))), modified, 790 F.3d 598 (5th Cir.
`2015), rev’d and remanded sub nom. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292
`(2016).
`
`10
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`purpose’ and that the law be ‘reasonably related to that goal.’” Id. at 2138
`(first quoting Casey, 505 U.S. at 878 (plurality opinion); and then quoting id.
`at 882 (joint opinion)).
`The Chief Justice opined in June Medical that trying to weigh the
`
`State’s interest in protecting fetal life is impossible—and therefore a
`balancing test is impossible—because how do you “assign weight to such
`imponderable values?” Id. at 2136. Agreeing with all but two pages of the
`plurality’s opinion, Chief Justice Roberts said that the inquiry should have
`ended after the plurality analyzed the law’s burdens on abortion access.
`2.
`Under the Marks rule, the Chief Justice’s concurrence is June
`
`Medical’s controlling opinion. In Marks v. United States, the Supreme Court
`instructed that “[w]hen a fragmented Court decides a case and no single
`rationale explaining the result enjoys the assent of five Justices, the holding
`of the Court may be viewed as that position taken by those Members who
`concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193
`(1977) (internal quotation marks omitted) (quoting Gregg v. Georgia, 428 U.S.
`153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). We have
`clarified that this principle “is only workable where there is some common
`denominator upon which all of the justices of the majority can agree.” United
`States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (internal
`quotation marks omitted) (quoting United States v. Eckford, 910 F.2d 216, 219
`n.8 (5th Cir. 1990)).
`In June Medical, the common denominator is the undue-burden
`
`(substantial-obstacle) analysis, which took up more than 80% of the
`plurality’s reasoning. Indeed, the Chief Justice concluded that, “for the
`reasons the plurality explain[ed],” the law “imposed a substantial obstacle”
`to abortion access. June Medical, 140 S. Ct. at 2139, 2141 (Roberts, C.J.,
`concurring). The only part the Chief Justice disagreed with was the
`
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`plurality’s two-page benefits analysis. So the Chief Justice’s test is a
`narrower version (only burdens) of the plurality’s test (benefits and burdens).
`Accordingly, the Chief Justice’s concurrence controls and we do not balance
`the benefits and burdens in assessing an abortion regulation.
`
`We agree with the Eighth and Sixth Circuits in holding that the Chief
`Justice’s concurrence controls. See Hopkins v. Jegley, 968 F.3d 912, 915 (8th
`Cir.) (“Chief Justice Robert[s]’s vote was necessary
`in holding
`unconstitutional Louisiana’s admitting-privileges law, so his separate
`opinion is controlling.”), reh’g and reh’g en banc denied, No. 4985329
`(2020);10 EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418,
`437 (6th Cir.) (“The Chief Justice’s opinion in June Medical Services concurs
`in the judgment on the narrowest grounds, so it is the ‘controlling opinion’
`from that decision.” (quoting Marks, 430 U.S. at 193)), reh’g en banc denied,
`No. 104-1 (6th Cir. Dec. 31, 2020).11 These circuits held that the Chief
`
`
`
`
`10 See also Little Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682, 687 n.2 (8th Cir.
`2021) (“Chief Justice Roberts’s concurring opinion [in June Medical] is controlling.”),
`petition for cert. filed, No. 20-1434 (Apr. 13, 2021).
`
`11 While noting that the Chief Justice’s concurrence offered the narrowest basis for
`June Medical’s judgment, the Seventh Circuit has taken a somewhat different approach to
`Marks’s application to June Medical. Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d
`740, 741 (7th Cir. 2021), petition for cert. filed, No. 20-1375 (Mar. 29, 2021). The Seventh
`Circuit views only one part of the Chief Justice’s concurrence as binding—the part where
`the Chief Justice agreed with the plurality that Hellerstedt “was entitled to stare decisis
`effect on essentially identical facts.” Id. at 748.
`The Seventh Circuit also stated that “the Marks rule tells us that June Medical did
`not overrule [Hellerstedt]” and that “[Hellerstedt] remains precedent binding on lower
`courts.” Id. On this point, we agree with the Seventh Circuit. Where we diverge from the
`Seventh Circuit is our respect for the full weight of the Chief Justice’s controlling
`concurrence, which observed that neither Casey nor Hellerstedt established a balancing test.
`“As middle-management circuit judges, we cannot overrule the Supreme Court. But
`neither should we ‘underrule’ it.” Whole Woman’s Health, 978 F.3d at 920 (Willett, J.,
`
`12
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`Justice’s concurrence “clarified that the undue burden standard is not a
`balancing test.” EMW Women’s Surgical Ctr., P.S.C., 978 F.3d at 437;12 see
`also Hopkins, 968 F.3d at 915 (“According to Chief Justice Roberts, the
`appropriate inquiry under Casey is . . . ‘not whether benefits outweighed
`burdens’. . . . [Benefits are]
`‘consider[ed]
`[only
`in]
`the
`threshold
`requirement that the State [has] a “legitimate purpose” and that the law be
`“reasonably related to that goal.”’” (first quoting June Medical, 140 S. Ct.
`at 2137–38; then quoting Casey, 505 U.S. at 878)).
`
`
`
`dissenting). “Our duty is to harmonize its decisions as well as possible.” Nelson v.
`Quarterman, 472 F.3d 287, 339 (5th Cir. 2006) (Jones, C.J., dissenting on other grounds).
`Like the Seventh Circuit, the Eleventh Circuit has chosen to underrule the Chief
`Justice’s controlling concurrence. In Reproductive Health Services v. Strange, the court
`noted that the June Medical plurality opinion applied a benefits-versus-burdens balancing
`test. 3 F.4th 1240, 1259 (11th Cir. 2021). The court also explained that the plurality opinion
`and the Chief Justice’s concurrence shared a “common ground,” which is the “conclusion
`that the . . . statute constituted an undue burden.” Id. Despite acknowledging the shared
`analysis and conclusion of the plurality opinion and the Chief Justice’s concurrence, the
`Eleventh Circuit confusingly held that the Chief Justice’s concurrence was not “narrower”
`than the plurality opinion and thus not controlling under Marks. Id.
`12 Even though it acknowledged that the EMW panel had held that the Chief
`Justice’s opinion in June Medical was controlling under the Marks rule, a subsequent panel
`of the Sixth Circuit decided to disregard the EMW panel’s holding when it denied a state’s
`motion to stay pending appeal in an abortion case involving waiting periods. Bristol Reg’l
`Women’s Ctr., P.C. v. Slatery, 988 F.3d 329, 337–38 (6th Cir.), opinion vacated, 994 F.3d 774
`(6th Cir. 2021). Judge Thapar dissented and pointed out that the panel majority erred
`because “the holding of a published panel opinion [EMW] binds all later panels unless
`overruled or abrogated en banc or by the Supreme Court.” Id. at 346 (Thapar, J.,
`dissenting) (quoting Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019)). The Sixth
`Circuit decided to take the case straight to en banc review. See Bristol Reg’l Women’s Ctr.,
`P.C. v. Slatery, 993 F.3d 489 (6th Cir. 2021).
`Moreover, a more recent Sixth Circuit opinion confirms that that circuit views the
`Chief Justice’s concurrence as controlling. See Preterm-Cleveland v. McCloud, 994 F.3d 512,
`524 (6th Cir. 2021) (en banc) (explaining that the EMW decision applied Marks “to
`determine that the June Medical concurrence was the narrowest opinion and, therefore, the
`governing law”).
`
`13
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`Case: 17-51060 Document: 00515984856 Page: 14 Date Filed: 08/18/2021
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`No. 17-51060
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`Under the Chief Justice’s controlling concurrence in June Medical,
`
`the district court erred by balancing SB8’s benefits against its burdens. That
`is reason alone to reject the district court’s findings. See Swint, 456 U.S. at
`287 (“[A] district court’s findings [that] rest on an erroneous view of the
`law . . . may be set aside on that basis.”). But, as explained below, the district
`court erred under all of the Supreme Court’s relevant precedents—Casey,
`Hellerstedt, Gonzales, and June Medical.
`B.
`1.
`Despite Casey’s clear language, repeated in Gonzales, that the State
`
`has legitimate and substantial interests in fetal life throughout pregnancy, the
`district court dismissed the State’s interests as deserving “only marginal
`consideration” and “having [] primary application once the fetus is capable
`of living outside the womb.” What is more, the State asserted several
`interests in passing SB8 in addition to respect for fetal life—benefits to
`patients both physically and psychologically, medical and societal ethics, and
`informed consent for women seeking abortions. The Supreme Court
`accepted all of these interests in Gonzales. 550 U.S. at 158, 163. Yet the
`district court disregarded all of them here, contravening both Casey and
`Gonzales. See Casey, 505 U.S. at 846; Gonzales, 550 U.S. at 145–46.
`
`First, the State asserted its interest in the health and safety of women
`seeking abortions. The State presented evidence showing that women
`seeking abortions benefit physically and psychologically when fetal death
`occurs before dismemberment. For example, the Planned Parenthood
`Federation of America Manual of Medical Standards and Guidelines tells
`patients that a study showed that
` “more than 90 percent of
`women . . . prefer[] knowing that fetal death occurred before the abortion
`surgery began.” The American Institute of Ultrasound and Medicine agrees
`and has also found that doctors have a similar preference and believe that
`
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`Case: 17-51060 Document: 00515984856 Page: 15 Date Filed: 08/18/2021
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`No. 17-51060
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`inducing fetal death can help with emotional difficulties for the patient. Casey
`noted that “most women considering an abortion would deem the impact on
`the fetus relevant, if not dispositive, to the decision.” 505 U.S. at 882.
`Beyond psychological benefits, terminating the fetus before dismembering it
`makes the abortion physically easier for the mother. As the Supreme Court
`noted in Gonzales: “Fetal demise may cause contractions and make greater
`dilation possible. Once dead, moreover, the fetus’s body will soften and its
`removal will be easier.” 550 U.S. at 136.
`
`Second, the State asserted its interest in providing a greater degree of
`dignity in a soon-to-be-aborted fetus’s death. The State argues that, by
`requiring doctors to choose alternatives to a brutal abortion procedure, SB8
`evinces the State’s “profound respect for the life within the woman.” Id. at
`157. Dismemberment D&Es are self-evidently gruesome. It has long been
`illegal to kill capital prisoners by dismemberment. See In re Kemmler, 136 U.S.
`436, 447 (1890). It is also illegal to dismember living animals. Tex. Penal
`Code § 42.092. The State urges that SB8 would simply extend the same
`protection to fetuses.13
`
`In its opinion, the district court dismissed the State’s interest in
`respecting fetal life with the comment that “[a]n abortion always results in
`
`
`
`13 The State also argues that SB8 may protect fetuses from feeling the pain of being
`dismembered alive. The Supreme Court “has given state and federal legislatures wide
`discretion to pass legislation in areas where there is medical and scientific uncertainty.”
`Gonzales, 550 U.S. at 163. The record here reveals that scientists are unsure at what
`gestational age a fetus begins to feel pain. The plaintiffs and the State presented conflicting
`expert testimony and there appears to be a wide range of views. Faced with this
`uncertainty, the State is permitted to exercise its “wide discretion” and err on the side of
`caution—especially in light of the numerous benefits provided by killing the fetus before it
`is dismembered and evacuated. June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring)
`(quoting Gonzales, 550 U.S. at 163). “Medical uncertainty does not foreclose the exercise
`of legislative power in the abortion context any more than it does in other contexts.”
`Gonzales, 550 U.S. at 164.
`
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`No. 17-51060
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`the death of the fetus.” The district court also noted that the State’s interest
`“does not add weight to tip the balance in the State’s favor.” The district
`court’s analysis cannot be reconciled with the Supreme Court’s instruction
`in Gonzales:
`The government may use its voice and its regulatory authority
`to show its profound respect for the life within the woman. . . .
`Where it has a rational basis to act, and it doe