     Case: 13-51008   Document: 00512426546   Page: 1   Date Filed: 10/31/2013




                IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                    FILED
                                                                October 31, 2013
                               No. 13-51008
                                                                 Lyle W. Cayce
                                                                      Clerk

PLANNED PARENTHOOD OF GREATER TEXAS SURGICAL HEALTH
SERVICES; PLANNED PARENTHOOD CENTER FOR CHOICE;
PLANNED PARENTHOOD SEXUAL HEALTHCARE SERVICES;
PLANNED PARENTHOOD WOMEN’S HEALTH CENTER; WHOLE
WOMAN’S HEALTH; AUSTIN WOMEN’S HEALTH CENTER; KILLEEN
WOMEN’S HEALTH CENTER; SOUTHWESTERN WOMEN’S SURGERY
CENTER; WEST SIDE CLINIC, INCORPORATED; ROUTH STREET
WOMEN’S CLINIC; HOUSTON WOMEN’S CLINIC, each on behalf of itself,
its patients and physicians; ALAN BRAID, M.D.; LAMAR ROBINSON, M.D.;
PAMELA J. RICHTER, D.O., each on behalf of themselves and their patients,

                                        Plaintiffs–Appellees,
v.

GREGORY ABBOTT, Attorney General of Texas; DAVID LAKEY, M.D.,
Commissioner of the Texas Department of State Health Services; MARI
ROBINSON, Executive Director of the Texas Medical Board,

                                        Defendants–Appellants.




                Appeal from the United States District Court
                     for the Western District of Texas


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Planned Parenthood of Greater Texas Surgical Health Services and
other plaintiffs brought suit seeking a permanent injunction against the
enforcement of two amendments to the laws of Texas pertaining to the
     Case: 13-51008         Document: 00512426546          Page: 2    Date Filed: 10/31/2013



                                        No. 13-51008
performance of abortions (2013 Texas House Bill No. 2 (“H.B. 2”)). At the
conclusion of a bench trial, the district court held that parts of the legislation
were unconstitutional and granted, in large measure, the requested injunctive
relief. The Appellants, to whom we will refer as “the State,” have appealed and
have filed an emergency motion to stay the district court’s permanent
injunction pending the resolution of their appeal. We grant, in part, the motion
for a stay pending appeal.
                                                I
      On July 12, 2013, the Texas Legislature passed H.B. 2. 1 Two of its
provisions are at issue. The first requires that a physician performing or
inducing an abortion have admitting privileges, on the date of the procedure,
at a hospital no more than thirty miles from the location at which the abortion
is performed or induced. 2 The second limits the use of abortion-inducing drugs
to a protocol authorized by the United States Food and Drug Administration
(FDA), with limited exceptions. 3 Abortions induced by drugs, as distinguished
from surgical abortions, are denominated by the parties as “medication
abortions,” and we use that terminology here.
      The provisions of H.B. 2 under consideration were scheduled to take
effect October 29, 2013. 4 On September 26, Planned Parenthood and others 5
brought an action challenging their constitutionality.                  With regard to the
requirement of hospital admitting privileges, Planned Parenthood asserted


      1 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1-12, 2013 Tex. Sess. Law Serv.
4795-802 (West) (to be codified at TEX. HEALTH & SAFETY CODE §§ 171.0031, 171.041-048,
171.061-064, & amending § 245.010.011; TEX. OCC. CODE amending §§ 164.052 & 164.055).
      2   Id. § 2.
      3 Id. § 3; Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No.
1:13-CV-862-LY, 2013 WL 5781583, at *8 (W.D. Tex. Oct. 28, 2013).
      4   Planned Parenthood of Greater Tex. Surgical Health Servs., 2013 WL 5781583, at *1.
      5   This opinion refers to all plaintiffs collectively as “Planned Parenthood.”
                                                2
     Case: 13-51008         Document: 00512426546        Page: 3    Date Filed: 10/31/2013



                                        No. 13-51008
that patients have rights to liberty and privacy guaranteed by the Due Process
Clause of the 14th Amendment that would be violated, the procedural due
process rights of physicians and their patients would be violated, the provision
is void for vagueness, and the provision is invalid because it unlawfully
delegates control over the exercise of constitutional rights to private parties.
The medication abortions restriction, Planned Parenthood contended, would
violate liberty and privacy rights and is void for vagueness.
       On October 28, following a three-day bench trial, the district court issued
an opinion holding that the hospital-admitting-privileges requirement of H.B.
2 was unconstitutional because it was “without a rational basis and places a
substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus.” 6    The district court upheld the medication abortions restriction as
constitutional, “except when a physician finds such an abortion necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother.” 7       The district court entered a final judgment declaring H.B. 2
unconstitutional in part and enjoining its enforcement with respect to the
hospital-admitting-privileges provision in its entirety. 8 The final judgment
enjoined the medication abortions provision to a greater extent than the court
had indicated it would in its Memorandum Opinion Incorporating Findings of
Fact and Conclusions of Law.
       The State appealed the district court’s decision the same day the final
judgment was entered. The only issue before this panel is the disposition of




       6   Planned Parenthood of Greater Tex. Surgical Health Servs., 2013 WL 5781583, at *2.
       7   Id.
       8Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No. 1:13-CV-
862-LY (W.D. Tex. Oct. 28, 2013) (final judgment).


                                               3
      Case: 13-51008           Document: 00512426546         Page: 4   Date Filed: 10/31/2013



                                              No. 13-51008
the State’s motion to stay the district court’s permanent injunction pending the
outcome of the appeal on the merits.
                                                   II
        We consider four factors in deciding whether to grant a stay pending
appeal: “‘(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest
lies.’” 9    A stay “is not a matter of right, even if irreparable injury might
otherwise result to the appellant.” 10
        Although the State did not seek a stay in the district court, as it would
ordinarily be required to do, 11 a motion for a stay pending appeal can first be
made in this court if moving in the district court initially would be
impracticable. 12 Planned Parenthood does not contend that the State should
have sought relief in the district court before proceeding here, and we note that
H.B. 2 was to have taken effect on October 29, 2013, the day after the district
court issued its opinion and final judgment.
                                                  III
        We first consider the hospital-admitting-privileges provision of H.B. 2
and whether the State has made a strong showing that it is likely to succeed
on the merits. We conclude that it has.



        Nken v. Holder, 556 U.S. 418, 425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S.
        9

770, 776 (1987)); see also Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d
841, 843 (D.C. Cir. 1977) (same); Voting for Am., Inc. v. Andrade, 488 F. App’x 890, 893 (5th
Cir. 2012) (unpublished) (same).
        10   Nken, 556 U.S. at 427 (citation omitted).
        11  FED. R. APP. P. 8(a)(1)(A) (“A party must ordinarily move first in the district court
for . . . a stay of the judgment or order of a district court pending appeal.”).
        12   FED. R. APP. P. 8(a)(2)(A)(i).
                                                   4
     Case: 13-51008          Document: 00512426546         Page: 5      Date Filed: 10/31/2013



                                         No. 13-51008
                                                     A
       Planned Parenthood contends, and the district court concluded, that the
hospital-admitting-privileges requirement has no rational basis. 13 The district
court focused primarily on emergency room treatment of women experiencing
complications following an abortion. 14 This overlooks substantial interests of
the State in regulating the medical profession 15 and the State’s interest in
“‘protecting the integrity and ethics of the medical profession.’” 16                    As the
Supreme Court has noted, “the State has ‘legitimate concern for maintaining
high standards of professional conduct’ in the practice of medicine.’” 17 The
Supreme Court has also consistently recognized that “[r]egulations designed
to foster the health of a woman seeking an abortion are valid if they do not
constitute an undue burden.” 18
       The State offered more than a “conceivable state of facts that could
provide a rational basis” 19 for requiring abortion physicians to have hospital
admission privileges. The State offered evidence that such a requirement
fosters a woman’s ability to seek consultation and treatment for complications
directly from her physician, not from an emergency room provider. There was
evidence that such a requirement would assist in preventing patient
abandonment by the physician who performed the abortion and then left the
patient to her own devices to obtain care if complications developed. The


       13Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No. 1:13-CV-
862-LY, 2013 WL 5781583, at *5-7 (W.D. Tex. Oct. 28, 2013).
       14   Id. at *4-5.
       15See Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear
the State has a significant role to play in regulating the medical profession.”).
       16   Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 731 (1997)).
       17   Id. (quoting Barsky v. Bd. of Regents of Univ. of N.Y., 347 U.S. 442, 451 (1954)).
       18   Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992).
       19   F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
                                                 5
    Case: 13-51008         Document: 00512426546         Page: 6        Date Filed: 10/31/2013



                                        No. 13-51008
district court’s finding to the contrary is not supported by the evidence, and in
any event, “a legislative choice is not subject to courtroom factfinding and may
be based on rational speculation unsupported by evidence or empirical data.” 20
       The requirement that physicians performing abortions must have
hospital admitting privileges helps to ensure that credentialing of physicians
beyond initial licensing and periodic license renewal occurs.                      Dr. James
Anderson stated that “[h]ospital staff privileges are dependent on [the
credentialing] review,” and that such credentialing reviews “help[] maintain a
quality medical staff and quality patient care.” Dr. John Thorp explained that
the hospital-admitting-privileges requirement would ensure that only
physicians “credentialed and board certified to perform procedures generally
recognized within the scope of their medical training and competencies” would
provide abortions.        He noted that due to the “unique nature of an elective
pregnancy termination and its likely underreported morbidity and mortality,
it is appropriate and necessary to provide increased provider safeguards
through hospital credentialing and privileging.”               Dr. Anderson echoed this
sentiment, noting that “hospital credentialing acts as another layer of
protection for patient safety.”
      The district court’s conclusion that a State has no rational basis for
requiring physicians who perform abortions to have admitting privileges at a
hospital is but one step removed from repudiating the longstanding recognition
by the Supreme Court that a State may constitutionally require that only a
physician may perform an abortion. 21 In Mazurek v. Armstrong, 22 the state of
Montana enacted a statute restricting the performance of an abortion to


      20   Id. at 315.
      21   See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 974 (1997).
      22   520 U.S. 968 (1997).
                                               6
     Case: 13-51008          Document: 00512426546          Page: 7     Date Filed: 10/31/2013



                                          No. 13-51008
licensed physicians. 23 A physician-assistant and physicians challenged the
law; the district court denied their request to preliminarily enjoin the law’s
effect; and the Ninth Circuit Court of Appeals vacated that denial, concluding
that those challenging the restriction “had shown a ‘fair chance of success on
the merits.’” 24          The Supreme Court reversed, reasoning that in earlier
decisions, it had “emphasized that ‘[o]ur cases reflect the fact that the
Constitution gives the States broad latitude to decide that particular functions
may be performed only by licensed professionals, even if an objective
assessment might suggest that those same tasks could be performed by
others.’” 25 The Supreme Court made clear in Mazurek that “[t]he Court of
Appeals’ decision is also contradicted by our repeated statements in past cases
. . . that the performance of abortions may be restricted to physicians.” 26 The
Court emphasized, “our prior cases ‘left no doubt that, to ensure the safety of
the abortion procedure, the States may mandate that only physicians perform
abortions.’” 27
       In rejecting a constitutional challenge to an abortion regulation similar
to that presently before our court, the Eighth Circuit held that a state statute
requiring physicians performing abortions to maintain surgical privileges at a
hospital providing obstetrical and gynecological care “furthers important state
health objectives.” 28 We have little difficulty in concluding that, with regard



       23   Id. at 969.
       24   Id. at 969-70 (citation omitted).
       25Id. at 973 (emphasis and alteration in original) (quoting Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833, 885 (1992).
       26   Id. at 974.
       27Id. at 974-75 (quoting City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S.
416, 447 (1983)).
       28   Women’s Health Ctr. of W. Cnty., Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989).
                                                 7
     Case: 13-51008          Document: 00512426546           Page: 8     Date Filed: 10/31/2013



                                          No. 13-51008
to the district court’s rational basis determination, the State has made a strong
showing that it is likely to prevail on the merits.
                                                      B
       The district court concluded that even if the hospital-admitting-
privileges requirement had a rational basis, Planned Parenthood’s facial
challenge should be sustained because the hospital-admitting-privileges
requirement constituted an undue burden on the right of a woman to an
abortion and presented a substantial obstacle to access to abortion services. 29
The Supreme Court’s most recent decision addressing a facial attack on
abortion legislation, Gonzales v. Carhart, 30 provides considerable guidance in
addressing this issue.
       The Supreme Court “assume[d]” in Gonzales that “[b]efore viability, a
State ‘may not prohibit any woman from making the ultimate decision to
terminate her pregnancy,’” 31 and that a State “also may not impose upon this
right an undue burden, which exists if a regulation’s ‘purpose or effect is to
place a substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability.’” 32 The Court subsequently explained that “[t]he
question is whether the Act, measured by its text in this facial attack, imposes
a substantial obstacle to . . . previability[] abortions.” 33 The Court concluded




       29Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No. 1:13-CV-
862-LY, 2013 WL 5781583, at *5-7 (W.D. Tex. Oct. 28, 2013).
       30   550 U.S. 124 (2007).
       31Gonzales, 550 U.S. at 146 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 879 (1992)).
       32   Id. (quoting Casey, 505 U.S. at 878); see also id. at 156.
       33   Id. at 156.
                                                  8
     Case: 13-51008          Document: 00512426546            Page: 9   Date Filed: 10/31/2013



                                         No. 13-51008
that the Act did not on its face impose a substantial obstacle, and it “reject[ed]
this further facial challenge to its validity.” 34
       We similarly conclude that the provisions of H.B. 2 requiring a physician
who performs an abortion to have admitting privileges at a hospital, “measured
by [their] text,” do not impose a substantial obstacle to abortions. Just as the
Supreme Court concluded in Gonzales with regard to the federal Partial-Birth
Abortion Ban Act of 2003 35 that “[t]here can be no doubt the government ‘has
an interest in protecting the integrity and ethics of the medical profession,’” 36
there can be no doubt that the State of Texas has this same interest, as well as
an interest in protecting the health of women who undergo abortion
procedures.
       There is the possibility, if not the probability, however, that requiring all
physicians who perform abortions to have admitting privileges at a hospital
may increase the cost of accessing an abortion provider and decrease the
number of physicians available to perform abortions. As the district court
correctly recognized, the Supreme Court has nevertheless held 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.’” 37
       That H.B. 2’s text does not facially indicate that its purpose is “‘to place
a substantial obstacle in the path of a woman seeking an abortion’” does not
end the inquiry. 38 “The [bill’s] furtherance of legitimate government interests


       34   Id.
       35   18 U.S.C. § 1531.
       36   Gonzales, 550 U.S. at 157 (quoting Washington v. Glucksberg, 521 U.S. 702, 731
(1997)).
       37   Id. at 157-58 (quoting Casey, 505 U.S. at 874).
       38   Id. at 160 (quoting Casey, 505 U.S. at 878).
                                                 9
    Case: 13-51008          Document: 00512426546         Page: 10      Date Filed: 10/31/2013



                                         No. 13-51008
bears upon, but does not resolve, the next question: whether the [bill] has the
effect of imposing an unconstitutional burden on the abortion right.” 39
       We note that Planned Parenthood has brought only a facial challenge to
the hospital-admitting-privileges requirement in H.B. 2. Such a challenge
“impose[s] ‘a heavy burden’ upon the part[y] maintaining the suit.” 40 There
are diverging views as to “[w]hat that burden consists of in the specific context
of abortion statutes,” as the Supreme Court recognized in Gonzales. 41 The
State argues that in Barnes v. Mississippi, 42 our Circuit embraced the view
that “[a] facial challenge will succeed only where the plaintiff shows that there
is no set of circumstances under which the statute would be constitutional.” 43
Even assuming arguendo that our statements in Barnes and our precedents
that preceded it were not binding on this panel, which we do not intimate, and
that we are obligated by Casey to consider whether there is an undue burden
“in a large fraction of the cases in which” the admitting privilege is relevant,
the State has shown a strong likelihood of success on the merits in this facial
challenge.



       39   Id. at 161.
       40   Id. at 167 (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)).
       41  Id. (comparing Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990)
(indicating that in “making a facial challenge to a statute, [the challenger] must show that
no set of circumstances exists under which the Act would be valid”) with Casey, 505 U.S. at
895 (indicating that a spousal-notification statute would impose an undue burden “in a large
fraction of the cases in which [it] is relevant” and holding the statutory provision facially
invalid)); see also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175-
80 (1996) (Justice Stevens and Justice Scalia disagreeing on the appropriate standard for a
facial challenge in dueling memorandum opinions that respect and dissent, respectively, from
the denial of the petition for certiorari).
       42   992 F.2d 1335 (5th Cir. 1993).
       43 Id. at 1342 (emphasis in original); see also Barnes v. Moore, 970 F.2d 12, 14 (5th Cir.
1992) (“Because the plaintiffs are challenging the facial validity of [a Mississippi abortion
statute], they must ‘establish that no set of circumstances exists under which the Act would
be valid.’”) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
                                                10
    Case: 13-51008      Document: 00512426546        Page: 11     Date Filed: 10/31/2013



                                     No. 13-51008
      The hospital-admitting-privileges requirement applies to any physician
who performs an abortion in Texas. As a consequence, every woman in Texas
who seeks an abortion will be affected to some degree. The question in a “large
fraction” analysis would be whether the requirement imposes an undue burden
on a large fraction of women in Texas seeking an abortion.                      Planned
Parenthood contended at trial that approximately 22,000 women across Texas
would not have access to a physician who performs abortions. The district
court did not make such a finding, and Planned Parenthood does not challenge
the failure to make such a finding in the present proceeding. The district court
made findings only with regard to 24 counties in the Rio Grande Valley, and
the district court accepted Planned Parenthood’s prediction that those counties
“would be left with no abortion provider because those providers do not have
admitting privileges and are unlikely to get them.” 44
      To place the district court’s findings with regard to 24 counties in the Rio
Grande Valley into perspective, there are 254 counties in Texas, and Planned
Parenthood’s evidence showed that well before H.B. 2 was to take effect,
abortions were performed in only 13 counties in Texas. There was evidence
offered by Planned Parenthood that more than 90% of the women seeking an
abortion in Texas would be able to obtain an abortion from a physician within
100 miles of their respective residences even if H.B. 2 went into effect. This
does not constitute an undue burden in a large fraction of the relevant cases.
      The district court’s opinion reflects on its face that with respect to the
Rio Grande Valley, many factors other than the hospital-admitting-privileges
requirement would affect the availability of physicians to perform abortions.
These include the fact that most of the physicians currently performing



      44 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No. 1:13-CV-
862-LY, 2013 WL 5781583, at *5 (W.D. Tex. Oct. 28, 2013).
                                           11
    Case: 13-51008          Document: 00512426546         Page: 12     Date Filed: 10/31/2013



                                         No. 13-51008
abortions in this area are over the age of 60, and more than half are over the
age of 70. Other physicians that abortion providers have attempted to recruit
to replace retiring physicians and physicians who have left the abortion
practice are not attracted to the Rio Grande Valley area for various reasons
unrelated to the hospital-admitting-privileges requirement. 45                       This is
undisputed evidence that was cited by the district court in its opinion. 46
        For residents of the Rio Grande Valley, it is also undisputed that
physicians with hospital privileges would be available in Corpus Christi to
perform abortions if H.B. 2 went into effect and that the distance from the Rio
Grande Valley to Corpus Christi is less than 150 miles. In Casey, the Supreme
Court considered whether a Pennsylvania statute that de facto imposed a
twenty-four-hour waiting period on women seeking abortions constituted an
undue burden. 47 The Court concluded that it did not, despite the fact that it
would require some women to make two trips over long distances. 48                         An
increase in travel distance of less than 150 miles for some women is not an
undue burden on abortion rights.
        A witness for one abortion provider attempted to minimize the fact that
abortion physicians would be available in Corpus Christi even if H.B. 2 went
into effect. She testified that many women from the Rio Grande Valley area
who seek abortions are not citizens and their visas will not permit them to



        45See generally K.P. v. LeBlanc, 729 F.3d 427, 442 (5th Cir. 2013) (noting that “while
‘government may not place obstacles in the path of a woman’s exercise of her freedom of
choice, it need not remove those’ obstacles, like Louisiana’s dearth of affordable insurance,
that are ‘not of [the government’s] own creation’”) (alteration in original) (quoting Harris v.
McRae, 448 U.S. 297, 316 (1980)).
        46   Planned Parenthood of Greater Tex. Surgical Health Servs., 2013 WL 5781583, at
*5-6.
        47   Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885-87 (1992).
        48   Id.
                                                12
      Case: 13-51008        Document: 00512426546        Page: 13     Date Filed: 10/31/2013



                                         No. 13-51008
travel beyond certain checkpoints, such that travel to Corpus Christi is not an
option for them. This obstacle is unrelated to the hospital-admitting-privileges
requirement. 49
        It is also undisputed that in a number of areas in Texas, physicians who
are performing abortions do have admitting privileges.                        It is further
undisputed that under both state and federal law, hospitals are prohibited
from discriminating against physicians who perform abortions in determining
if admitting privileges will be extended. 50 There is undisputed evidence that
many hospitals extend admitting privileges without regard to the number of
hospital admissions that a physician has had in the past. The district court
did not make findings as to the number of hospitals in the Rio Grande Valley
area that had annual admissions requirements. The court’s only finding was
that “if required by the hospital,” abortion physicians’ practices do not
generally yield any hospital admissions. 51 Even if some hospitals have annual


        49   Cf. LeBlanc, 729 F.3d at 442.
        50Texas law specifically prohibits discrimination by hospitals or health care facilities
against physicians who perform abortions. “A hospital or health care facility may not
discriminate against a physician, nurse, staff member, or employee because of the person’s
willingness to participate in an abortion procedure at another facility.” TEX. OCC. CODE ANN.
§ 103.002(b) (West 2013). Texas law further provides a private cause of action for an
individual to enforce this non-discrimination right. “A person whose rights under this
chapter are violated may sue a hospital, health care facility, or educational institution . . .
for: (1) an injunction against any further violation; (2) appropriate affirmative relief,
including admission or reinstatement of employment with back pay plus 10 percent interest;
and (3) any other relief necessary to ensure compliance with this chapter.” Id. § 103.003.
Federal law similarly prohibits any entity that receives a “grant, contract, loan, or loan
guarantee under the Public Health Service Act, the Community Mental Health Centers Act,
or the Developmental Disabilities Services and Facilities Construction Act” or a “grant or
contract for biomedical or behavioral research under any program administered by the
Secretary of Health and Human Services” from discriminating “in the extension of staff or
other privileges to any physician or other health care personnel . . . because he performed or
assisted in the performance of a lawful sterilization procedure or abortion.” 42 U.S.C. § 300a-
7(c).
        51   Planned Parenthood of Greater Tex. Surgical Health Servs., 2013 WL 5781583, at
*5.
                                              13
   Case: 13-51008        Document: 00512426546         Page: 14   Date Filed: 10/31/2013



                                    No. 13-51008
admission requirements, it is hardly surprising that the physicians identified
by the plaintiffs have virtually no history of hospital admissions since the
experts presented by the plaintiffs argued that it is the practice of many
abortion physicians to instruct their patients to seek care from an emergency
room if complications arise.
      There is a substantial likelihood that the State will prevail in its
argument that Planned Parenthood failed to establish an undue burden on
women        seeking    abortions   or   that    the     hospital-admitting-privileges
requirement creates a substantial obstacle in the path of a woman seeking an
abortion.
                                                IV
      We also conclude that the State has made a strong showing of likelihood
of success on the merits, at least in part, as to its appeal of the injunction
pertaining to medication abortions. A medication abortion is an alternative to
surgical abortion and involves the use of two different drugs—mifepristone and
misoprostol—to terminate pregnancy.
      The FDA approved mifepristone for the purpose of medication abortion
in 2000, within certain parameters as to its use, dosage, and administration.
This approved use—known as “the FDA protocol”—includes limiting the drug’s
use to the first 49 days following the woman’s last menstrual period (LMP),
setting conditions for administering both mifepristone and misoprostol to
patients, and prescribing dosage levels.
      Physicians have nonetheless developed an “off-label protocol” for the use
of mifepristone in medication abortions, which the district court concluded “has
become the de facto standard of care in Texas” and “accounts for the vast
majority of medication abortions performed nationwide since 2007.” 52


      52   Id. at *7.
                                          14
   Case: 13-51008      Document: 00512426546       Page: 15   Date Filed: 10/31/2013



                                    No. 13-51008
Compared to the FDA protocol, the off-label protocol prescribes mifepristone to
be taken at a lower dosage, lowers the misoprostol dosage, and allows a patient
to take the misoprostol at home, without the presence of health care
professionals. Cramps, bleeding, and the expulsion of the fetus typically occurs
shortly after the ingestion of the misoprostol. The off-label protocol requires a
maximum of two visits to a health care professional after the decision to have
an abortion has been reached (once for administration of mifepristone and
again for a follow-up visit), while the FDA protocol requires a maximum of
three visits (an additional visit for the administration of misoprostol within 24
to 36 hours after the administration of mifepristone). For purposes of this
appeal, the most significant difference between the FDA protocol and the off-
label protocol is that the latter permits medication abortions to occur up to 63
days after the woman’s LMP, while the FDA protocol limits the time within
which a medication abortion can occur to 49 days since the LMP.
      In H.B. 2, the Texas legislature has restricted the use of medication
abortion to the FDA protocol, with certain exceptions not pertinent to the
issues before us.      Planned Parenthood sought to enjoin the FDA protocol
requirement in its entirety so that abortion physicians could continue to use
off-label protocol for medication abortions.
      The district court found that both the FDA protocol and the off-label
protocols are safe and effective for medication abortions.       The district court
rejected Planned Parenthood’s argument that increased costs and time
involved in obtaining a medication abortion using the FDA protocol as
compared    to   the    off-label   protocol   rendered   H.B.   2’s   requirements
unconstitutional.      Planned Parenthood has not sought review of this
determination.
      However, the district court did find that “there are certain situations
where medication abortion is the only safe and medically sound option for
                                          15
    Case: 13-51008       Document: 00512426546    Page: 16   Date Filed: 10/31/2013



                                   No. 13-51008
women with particular physical abnormalities or preexisting conditions.” 53
The court concluded that “[i]n the case of a woman for whom surgical abortion
represents a significant health risk due to a physical condition beyond her
control, the medication-abortion restrictions contained in House Bill 2 act as a
total method ban after 49 days [after the] LMP.” 54 The district court concluded
that for such women, H.B. 2 was an undue burden. Consequently, it held that
“the medication-abortion provisions may not be enforced against any physician
who determines, in appropriate medical judgment, to perform a medication-
abortion using the off-label protocol for the preservation of the life or health of
the mother.” 55
      The State challenges the district court’s decision to create a “health
exception” to H.B. 2’s regulation of medication abortions on several grounds.
The State first argues that states may limit the use of abortion-inducing drugs
to the specific protocols approved by the FDA, and physicians and patients
have no constitutional right to use off-label protocols that the FDA has not
approved as safe and effective “even if an individual patient could demonstrate
a strong medical need for those drugs.” The State also contends that patients
with conditions that make surgical abortion impractical will still have access
to abortion-inducing drugs up to 49 days after the LMP under the Texas law
and that the State is not constitutionally required to authorize off-label
protocols simply because a woman failed to discover a pregnancy or failed to
decide to have an abortion until she is 50 to 63 days from LMP. Additionally,
the State contends that there is no need for “a vague and amorphous ‘health’
exception” since H.B. 2 provides an exception when an abortion is necessary to


      53   Id. at *10.
      54   Id. at *10.
      55   Id. at *11.
                                        16
       Case: 13-51008          Document: 00512426546     Page: 17    Date Filed: 10/31/2013



                                         No. 13-51008
avert the death or substantial and irrevocable physical impairment of a major
bodily function of the pregnant women. 56
          The State’s arguments present complex issues, and we cannot say that
the State has made the necessary strong showing of a likelihood of success on
the merits. In so saying, we do not prejudge the outcome of these issues on
appeal. We conclude only that a stay of the injunction on these grounds
pending appeal is not appropriate.
         However, the State contends, and we agree, that the “health exception”
imposed by the district court is broader than necessary to remedy the undue
burden found by the district court. The district court’s basis for declaring part
of the FDA protocol provisions unconstitutional was that “there are certain
situations where medication abortion is the only safe and medically sound
option for women with particular physical abnormalities or preexisting
conditions.” 57 All of the “physical abnormalities or preexisting conditions” that
the district court found supported the need for injunctive relief are physical,
not emotional or mental, conditions. 58 The need for the off-label protocol found
by the district court is applicable only to women who are 50 to 63 days after
the LMP, as the district court explained. The FDA protocol is relatively safe
and effective, and most importantly, it is available for women up to 49 days
after the LMP.             But the injunction imposed by the district court’s Final
Judgment goes further than the court’s reasons and findings support. The




         H.B. 2 § 1(4)(B) (“[T]his Act does not apply to abortions that are necessary to avert
         56

the death or substantial and irreversible physical impairment of a major bodily function of
the pregnant woman.”).


         57   Planned Parenthood of Greater Tex. Surgical Health Servs., 2013 WL 5781583, at
*10.
         58   See id. at *9 n. 18.
                                               17
    Case: 13-51008      Document: 00512426546        Page: 18    Date Filed: 10/31/2013



                                    No. 13-51008
Final Judgment “declares that the following portions of [H.B. 2] are
unconstitutional”:
             2. The proposed amendment to the Health and Safety Code
      of the State of Texas adding section 171.063(a)(2), (b), (c), (e), and
      (f) found in Section 3 of the act at page 10, lines 1 through 27 and
      page 11 lines 1 through 24, to the extent those provisions prohibit
      a medication abortion where a physician determines in
      appropriate medical judgment, such a procedure is necessary for
      the preservation of the life or health of the mother. 59
      The sweep of this injunction is not limited to women who are 50 to 63
days after the LMP. The injunction also permits “a physician,” meaning any
physician rather than the physician who is to perform the abortion, to make
the requisite determinations.
      The Final Judgment also removes the requirement in § 171.063(c) that
before the physician may dispense or administer an abortion-inducing drug, he
or she must examine the pregnant woman and document, in the patient’s
medical record, the gestational age, and intrauterine location of the pregnancy.
The injunction similarly inexplicably removes the requirement in § 171.063(e)
that the physician schedule a follow-up visit for a woman who has received an
abortion-inducing drug not more than 14 days after the administration of the
drug and the requirement that at that follow-up visit, the physician must
determine whether the pregnancy is completely terminated and assess the
degree of bleeding. The injunction likewise removes the applicability of §
171.063(f), which also pertains to the follow-up visit. There is no indication
from the district court’s opinion that there is any constitutional infirmity in
these sections. The injunction is overly broad in these respects.




      59Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, No. 1:13-CV-
862-LY (W.D. Tex. Oct. 28, 2013) (final judgment).
                                           18
    Case: 13-51008         Document: 00512426546          Page: 19   Date Filed: 10/31/2013



                                           No. 13-51008
       Pending appeal, we stay the injunction in the Final Judgment pertaining
to medical abortions with this exception:                 the district court’s injunction
continues to apply pending appeal with respect to a mother who is 50 to 63
days from her last menstrual period if the physician who is to perform an
abortion procedure on the mother has exercised appropriate medical judgment
and determined that, due to a physical abnormality or preexisting condition of
the mother, a surgical abortion is not a safe and medically sound option for
her.
                                                    V
       The State has made an adequate showing as to the other factors
considered in determining a stay pending appeal. When a statute is enjoined,
the State necessarily suffers the irreparable harm of denying the public
interest in the enforcement of its laws. 60 As the State is the appealing party,
its interest and harm merges with that of the public. 61 While we acknowledge
that Planned Parenthood has also made a strong showing that their interests
would be harmed by staying the injunction, given the State’s likely success on
the merits, this is not enough, standing alone, to outweigh the other factors.
We have addressed only the issues necessary to rule on the motion for a stay
pending appeal, and our determinations are for that purpose and do not bind
the merits panel. 62
                                       *        *         *




       60Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, Circuit Justice); New Motor
Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, Circuit Justice).
       61   Nken v. Holder, 556 U.S. 418, 435 (2009).
       62See generally Matthern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir. 1997),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
                                               19
   Case: 13-51008     Document: 00512426546      Page: 20   Date Filed: 10/31/2013



                                  No. 13-51008
      IT IS ORDERED that Appellants’ opposed motion for stay pending
appeal is GRANTED and the district court’s injunction orders are STAYED, in
part, until the final disposition of this appeal, in accordance with this opinion.


      The State has requested expedited briefing and oral argument on the
merits, and Planned Parenthood indicated that it would not oppose expedited
consideration if the State’s motion to stay the district court’s injunction were
granted. IT IS FURTHER ORDERED that Appellants’ motion for expedited
briefing and oral argument is GRANTED. The Clerk of the Court is directed
to calendar this matter for oral argument before a merits panel on the court’s
January 2014 oral argument docket.




                                       20
