                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1996
                         ___________________________

Comprehensive Health of Planned Parenthood Great Plains, on behalf of itself, its
    patients, physicians and staff; Reproductive Health Services of Planned
Parenthood of the St. Louis, on behalf of itself, its patients, physicians, and staff;
       Ronald Yeomans, on his own behalf and on behalf of his patients

                        lllllllllllllllllllllPlaintiffs - Appellees

                                            v.

Josh Hawley, in his official capacity as Attorney General of the State of Missouri;
Dr. Randall Williams, in his official capacity as Director of Department of Health
                                and Senior Services

                      lllllllllllllllllllllDefendants - Appellants

 Daniel Knight, in his official capacity as Boone County Prosecutor; Jean Peters
Baker, in her official capacity as Jackson County Prosecutor; Dan Patterson, in his
  official capacity as Green County Prosecutor; Theresa Kenney, in her official
                        capacity as Jasper County Prosecutor

                             lllllllllllllllllllllDefendants

                              ------------------------------

                             Foundation for Moral Law

                 lllllllllllllllllllllAmicus on Behalf of Appellant(s)

                           National Abortion Federation

                  lllllllllllllllllllllAmicus on Behalf of Appellee(s)
                 Eagle Forum Education and Legal Defense Fund

                  lllllllllllllllllllllAmicus on Behalf of Appellant(s)
                                        ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                             Submitted: March 15, 2018
                             Filed: September 10, 2018
                                   ____________

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
                        ____________

SHEPHERD, Circuit Judge.

       Invoking the Constitution to enjoin the laws of a state requires more than
“slight implication and vague conjecture.” Fletcher v. Peck, 10 U.S. 87, 128 (1810)
(Marshall, C.J.). At a minimum, it requires adequate information and correct
application of the relevant standard. Because we conclude that the preliminary
injunction in this case was entered based on less than adequate information and an
insufficient regard for the relevant standard, we vacate the preliminary injunction and
remand.

                                           I.

     The roots of this case can be traced to 2007. That year, the Missouri legislature
amended the statutory definition of “ambulatory surgery center” (“ASC”) to include




                                          -2-
most facilities that performed abortions.1 A number of consequences followed, two
of which are at issue here. The first flows from statutory language. By law, all
doctors who perform abortions at ASCs must be “privileged to perform surgical
procedures in at least one licensed hospital in the community.” Id. § 197.215.1(2).
The implementing regulations have further refined the “in the community”
requirement to mean a licensed hospital that is 15 minutes away. Mo. Code Regs.
Ann. tit. 19, § 30-30.060 (1)(C)(4). We refer to this as the “Hospital Relationship
Requirement.”

      The second consequence at issue flows from enacting regulations. The
Missouri Department of Health and Senior Services (“DHSS”) has delegated
authority to enact health and safety regulations for abortion facilities. Mo. Rev. Stat.
§ 197.225.1. Pursuant to that authority, the DHSS has adopted a number of physical
design and layout requirements specifically for facilities that perform surgical
abortions. Mo. Code Regs. Ann. tit. 19, § 30-30.070(1) (“This regulation does not
apply to abortion facilities that do not perform surgical abortions.”).2 We refer to
these regulations collectively as the “Physical Plant Regulations.” These
requirements, however, are not fixed in stone. Instead, they are waivable upon
written request. Id. § 30-30.070(2) (“Requests for deviations from requirements on
physical facilities shall be in writing to the [DHSS].”). We refer to this specific
provision as the “Waiver Provision.” The record contains one instance in normal



      1
         The definition of ASC included “any establishment operated for the purpose
of performing or inducing any second or third-trimester abortions or five or more
first-trimester abortions per month.” Mo. Rev. Stat. § 197.200 (2007). More
recently, Missouri has amended Section 197.200 to separately define an “abortion
facility” as any facility performing abortions. Id. § 197.200. That definitional change
does not impact our decision here.
      2
      The regulations were changed during the pendency of these proceedings to
exempt facilities that only provided medicinal abortions.

                                          -3-
course where a minor request was made—and granted—for waiver from a single
design requirement.

                                          A.

       This is not the first time these laws have been challenged. Prior to the current
suit, Appellee Comprehensive Health of Planned Parenthood Great Plains
(“Comprehensive Health”) brought facial and as-applied challenges to the statutory
classification of abortion facilities as ASCs almost immediately after the provision
went into effect in 2007.3 Comprehensive Health succeeded in its as-applied
challenge only. The district court enjoined the ASC statutory classification (and
attendant requirements) for two facilities Comprehensive Health operated: one in
Kansas City and one in Columbia.

       Comprehensive Health and the State of Missouri settled the lawsuit in 2010
(“2010 Settlement”). The parties agreed to modifications of the requirements of the
Physical Plant Regulations for the Columbia facility and a complete waiver of the
requirements for the Kansas City facility. And Comprehensive Health agreed to
release any claims “whether or not now known or contemplated” that are “based on
or arising out of the allegations in Lawsuits relating to licensure of the Columbia and
[Kansas City] Centers.”

                                          B.

      The 2010 Settlement was not the last word, however. After the Supreme
Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, as revised
(June 27, 2016), Comprehensive Health sent a letter to DHSS calling both the


      3
      Comprehensive Health was formerly known as Planned Parenthood of Kansas
and Mid-Missouri, Inc.

                                         -4-
Hospital Relationship Requirement and the classification of abortion facilities as
ASCs “unconstitutional and unenforceable.” It demanded that DHSS stop enforcing
the provisions against Comprehensive Health facilities. This suit began shortly
thereafter.

       Unlike its initial suit, Comprehensive Health is joined here by Reproductive
Health Services of Planned Parenthood of the St. Louis Region (“RHS”), and Dr.
Ronald Yeomans—a gynecologist who wishes to provide abortions at Comprehensive
Health facilities in Missouri. Together, Comprehensive Health and RHS represent
every facility that provides or is seeking to provide abortions in Missouri:
Comprehensive Health operates facilities in Kansas City and Columbia, and RHS
operates a facility in St. Louis and has plans to operate in Springfield and Joplin. The
complaint here sought declaratory and injunctive relief to roll back the 2007
amendment which classified (most) abortion facilities as ASCs. It also sought
specific relief from the Hospital Relationship Requirement. Both the ASC
classification and the Hospital Relationship Requirement were challenged on
substantive due process and equal protection grounds.4

       After evidentiary submissions and a brief hearing, the district court issued a
slightly narrower preliminary injunction. It preliminarily enjoined enforcement of the
Hospital Relationship Requirement—as well as certain associated criminal penalties
for doctors who violate it—and the Physical Plant Regulations solely on substantive
due process grounds. In doing so, it found that Hellerstedt “controls [its] ruling.”
Because of that, it refused to weigh any evidence of benefits of the provisions,
likening Missouri’s advocacy on this front to an “attempt[] to undermine Brown v.
Board of Education, 347 U.S. 483 (1954).”



      4
       The suit was brought against various Missouri officials in their official
capacities. For ease, we refer to the state appellants collectively as “Missouri.”

                                          -5-
      Missouri now seeks to vacate the preliminary injunction.

                                          II.

       Our review of a preliminary injunction is layered: fact findings are reviewed
for clear error, legal conclusions are reviewed de novo, and the “ultimate decision to
grant the injunction” is reviewed for abuse of discretion. McKinney ex rel. NLRB
v. S. Bakeries, LLC, 786 F.3d 1119, 1122 (8th Cir. 2015) (internal quotation marks
omitted). In order to preliminarily enjoin state laws, a district court “must . . . make
a threshold finding that a party is likely to prevail on the merits.” Planned Parenthood
Minn., N. D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). Put
another way, “without a likelihood of success, an injunction is not justified.” Does
v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017).

      With this framework in mind, we proceed to review the district court’s
injunction with regards to the Physical Plant Regulations and Hospital Relationship
Requirement separately.

                                          A.

        Missouri first argues that the Physical Plant Regulations were improperly
enjoined because the Appellees had not “ripened” their claims. Drawing on
administrative law jurisprudence, they argue “[w]here a regulatory regime provides
for variances, a constitutional challenge to those restrictions is not ripe until the
challenger has sought—and been denied—a variance.” So because none of the
facilities run by Appellees had utilized the Waiver Provision, the district court’s
injunction of the Physical Plant Regulations was improper.

     The main case they cite in support of this argument—Suitum v. Tahoe
Regional Planning Agency, 520 U.S. 725 (1997)—explicitly undercuts this point.

                                          -6-
There, it was noted that “facial challenges to regulation”—the only challenges at
issue here—“are generally ripe the moment the challenged regulation or ordinance
is passed.” Id. at 736 n.10. Missouri has not demonstrated why that general principle
should not apply here.

       In fact, it would make little sense to find an exception here. The constitutional
question in this case turns on the law’s “effect . . . on women seeking abortions.”
Hellerstedt, 136 S. Ct. at 2306 (alteration in original) (internal quotation marks
omitted). It is a woman’s substantive due process right that Appellees, as third-
parties, are asserting. Singleton v. Wulff, 428 U.S. 106, 117 (1976) (noting it is the
“constitutionally protected abortion decision” which a physician may “litigate” on a
third-party basis). Stated differently, “[t]his suit is possible only because the
[Supreme] Court has allowed abortion clinics and physicians to invoke a putative
constitutional right that does not belong to them—a woman’s right to abortion.”
Hellerstedt, 136 S. Ct. at 2321-22 (Thomas, J., dissenting). To hold that Appellees
must “ripen” a facial constitutional claim, which they do not possess, would be
incongruous with the fact that the holder of such a right could bring the same facial
challenge without any avenue to “ripen” it. See Singleton, 428 U.S. at 118
(emphasizing providers “assert the rights of women patients”). We reject Missouri’s
argument.

      This is not to say, however, that a facial challenge to the Physical Plant
Regulations on substantive due process grounds is justiciable at the present moment.
To be clear, while we have said that individual organizations or facilities need not
apply for waivers to “ripen” a facial claim, that does not mean we can decide a facial
challenge to the Physical Plant Regulations without information about the Waiver
Provision. Here, there is scant evidence as to how the Waiver Provision actually
operates. As noted above, the record contains only one instance of a request for a
minor waiver in normal course. In that case, it was granted with a single page letter



                                          -7-
from DHSS. In cases like this, the “[r]ules of justiciability” counsel against a
decision “based upon [an] amorphous and ill-defined factual record.” Renne v.
Geary, 501 U.S. 312, 324 (1991).

       Refraining from “premature” decisions on facial challenges is a proper exercise
of judicial restraint. See, e.g., Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 450 (2008) (holding courts should “[e]xercis[e] judicial restraint” to
prevent “premature interpretations of statutes in areas where their constitutional
application might be cloudy.” (internal quotation marks omitted)). This is especially
true when adjudicating the constitutionality of state laws. Arizonans for Official
English v. Arizona, 520 U.S. 43, 79 (1997) (“Warnings against premature
adjudication of constitutional questions bear heightened attention when a federal
court is asked to invalidate a State’s law.”). And perhaps the decisive factor pointing
towards restraint is the fact-intensive nature of the constitutional test here: the undue
burden standard.

       Hellerstedt made clear that the undue burden standard “requires that courts
consider the burdens a law imposes on abortion access together with the benefits
those laws confer.” 136 S. Ct. at 2309. The standard is so intertwined with
underlying facts that “later, concrete factual developments” can affect whether or not
the same law violates the undue burden standard. Id. at 2305-06 (finding that res
judicata did not bar claims because a pre-enforcement challenge was brought on a
different factual record than the post-enforcement challenge at bar). As a result, the
constitutional scrutiny required by the undue burden standard has been likened to a
form of “cost-benefit analysis.” Fourteenth Amendment-Due Process Clause-Undue
Burden-Whole Woman’s Health v. Hellerstedt, 130 Harv. L. Rev. 397, 404 (2016);
see also Clare Huntington, The Empirical Turn in Family Law, 118 Colum. L. Rev.
227, 250 (2018) (noting that the undue burden standard is “fundamentally an
empirical inquiry”).



                                          -8-
        Appellees underscore just how “cloudy,” Wash. State Republican Party, 552
U.S. at 450, the “cost-benefit analysis” is currently with respect to the Physical Plant
Regulations, Fourteenth Amendment, supra, at 404. In their brief, they admit three
of the five facilities in Missouri providing or seeking to provide abortions—the
centers in Kansas City and Columbia operated by Comprehensive Health and the
RHS facility in St. Louis—do not “need[] further relief from [the Physical Plant
Regulations] in order to provide abortion.” Appellee Br. 34.5 Granted, for the Kansas
City and Columbia centers, this is because they obtained waivers from DHSS after
litigation and a settlement. But, the point still stands: if DHSS operates its waiver
process with sufficient flexibility, the Physical Plant Regulations would not lead to
“fewer doctors, longer waiting times, and increased crowding” such that it would
constitute an undue burden. Hellerstedt, 136 S. Ct. at 2313. Because the record is
practically devoid of any information on the mechanics of the Waiver Provision, a
court has no way to make that judgment.

       The district court nevertheless made such a judgment, and we conclude that in
doing so it committed an error of law. “It would take a very hardy [DHSS] Director,”
according to the district court, “to agree voluntarily to establishment of abortion
clinics . . . out of compliance with ASC standards.” And so it enjoined the
regulations on the presumption that a DHSS Director would act less than scrupulously
on any waiver application.6 Our starting point, though, is the polar opposite: “‘[t]he


      5
       Appellees also concede that only one of the two remaining facilities is seeking
to provide surgical abortions and thus only that facility will be subject to the Physical
Plant Regulations. Appellee Br. 4 n.1 (noting that only Springfield facility is seeking
to provide surgical abortion).
      6
         The district court also suggested in a footnote that the law at issue in
Hellerstedt contained a waiver provision for abortion facilities. Hellerstedt, however,
noted that the law before it “neither grandfathers nor provides waivers for any of the
facilities that perform abortions.” 136 S. Ct. at 2315.


                                          -9-
good faith of [state] officers and the validity of their actions are presumed.’” Robbins
v. Becker, 794 F.3d 988, 995 (8th Cir. 2015) (second alteration in original) (quoting
Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 353 (1918)). The district
court’s rationale is further called into question by the waiver granted by the DHSS in
2015—the only evidence in the record regarding the operation of the Waiver
Provision in the normal course.

       In sum, we believe a substantive due process challenge to the Physical Plant
Regulations—governed by the “cost-benefit analysis” required by the undue burden
standard—is not currently fit for judicial resolution given the paucity of evidence on
how DHSS will grant waivers. Again, we emphasize this is distinct from the position
Missouri has advocated. We are not holding that a facial claim must be “ripened.”
We simply hold that we lack sufficient information to make a constitutional
determination on the Physical Plant Regulations. Any ruling now would mean “our
disposition . . . would lack the clarity and force which ought to inform the exercise
of judicial authority.” Geary, 501 U.S. at 324. Furthermore, hardship would not be
imposed by withholding constitutional judgment. Cf. Parrish v. Dayton, 761 F.3d
873, 875 (8th Cir. 2014) (courts must assess “hardship to the parties of witholding
court consideration” (internal quotation marks omitted)). No facilities currently
providing abortions would be closed because of the Physical Plant Regulations. Cf.
Hellerstedt, 136 S. Ct. at 2301 (imposition of regulations caused closure of more than
ten abortion facilities). And currently it appears that only one prospective location
(Springfield) is seeking to provide surgical abortions, meaning that the Physical Plant
Regulations is pertinent only to that facility. See supra note 6. If that one facility
applied for a waiver, we would have some semblance of a record as to how the DHSS
exercises the Waiver Provision. In other words, we would not have to “wade through
a quagmire of what-ifs”—if litigation is pursued—to assess the facial validity of the
Physical Plant Regulations. Mo. ex rel. Mo. Highway & Transp. Comm’n v. Cuffley,




                                         -10-
112 F.3d 1332, 1338 (8th Cir. 1997). Or a waiver application by the Springfield
facility may mean that litigation is not pursued at all.

        On remand, the district court should not consider a facial challenge on
substantive due process grounds to the Physical Plant Regulations. That does not end
the matter, though. The Appellees asked for broader injunctive relief from the
statutory ASC classification, Mo. Rev. Stat. § 197.200 (2007), but the district court
entered a less capacious injunction of only the Physical Plant Regulations. Broader
relief is likely foreclosed because Appellees trained the complaint (and injunction
arguments) solely on the Physical Plant Regulations. But, given the “narrow” nature
of our review at this stage, we leave it to the district court to decide this question in
the first instance. Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041
(8th Cir. 2003).

                                           B.

       We now shift to the Hospital Relationship Requirement. Unlike the Physical
Plant Regulations, the Hospital Relationship Requirement operates by statute, is
unwaivable, and is enforced by criminal penalty. The district court erred in enjoining
it (and related criminal provisions) because the district court did not apply the plain
language of Hellerstedt.7

      7
       Missouri argues that Appellees lack standing to pursue a challenge to the
Hospital Relationship Requirement if, as we have decided, the Physical Plant
Regulations are non-justiciable. They argue that any challenge is not redressable
because the Physical Plant Regulations act as an independent barrier to operating
abortion facilities. Factually, that is not accurate given the limited scope of the
Physical Plant Regulations which apply only to facilities providing surgical abortions.
More importantly, as we emphasized earlier, this is a third-party facial challenge. The
concern on facial review is whether “in a large fraction of the cases in which [the
Hospital Relationship Requirement] is relevant, it will operate as a substantial


                                          -11-
       As noted in our prior discussion, Hellerstedt’s rendition of the undue burden
standard is fairly straightforward: it “requires that courts consider the burdens a law
imposes on abortion access together with the benefits those laws confer.” 136 S. Ct.
at 2309. Indeed it emphasized there is “an independent constitutional duty to review
factual findings where constitutional rights are at stake.” Id. at 2310 (internal
quotation marks omitted). Thus, Hellerstedt did not find, as a matter of law, that
abortion was inherently safe or that provisions similar to the laws it considered would
never be constitutional. Instead, it held that the “District Court applied the correct
legal standard” when it “weighed the asserted benefits against the burdens.” Id. The
district court here explicitly refused to “weigh[] the asserted benefits” stating that to
do so “would be impermissible judicial practice.”

       In light of Hellerstedt the district court erred in so ruling. On remand, the
district court should, at the very least, weigh the state’s “asserted benefits.” Despite
the district court’s assertions to the contrary, Hellerstedt’s analysis of the purported
benefits of the law at issue were, of course, related to what the law in that case
regulated: abortion in Texas. And so the Supreme Court recognized that “before the
act’s passage, abortion in Texas was extremely safe.” Id. at 2311 (emphasis added)
(internal quotation marks omitted).8


obstacle to a woman’s choice to undergo an abortion.” Planned Parenthood of Se. Pa.
v. Casey, 505 U.S. 833, 895 (1992).
      8
       The district court observed that “Hellerstedt’s factual conclusions were not
confined to Texas” because the “majority relied on Wisconsin and Alabama case law
and amicus briefs and materials unrelated to Texas.” Hellerstedt cited other cases to
show that its “answer is consistent with the findings of the other Federal District
Courts.” 136 S. Ct. at 2312. It cited those cases after weighing the benefits put
forward by Texas as a way to show that its own analysis was “consistent,” not
supported, by those of other courts. In other words, Hellerstedt’s reliance on similar
cases did not excuse courts from weighing any purported benefits as the district court
did here. Additionally, while Hellerstedt may have cited sources from outside of


                                          -12-
       No such determination about abortion in Missouri was made here. Perhaps
there was a unique problem Missouri was responding to under its inherent “police
power.” See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (“The traditional
police power of the States is defined as the authority to provide for the public health,
safety, and morals.”). Such a problem may require a different response than what was
needed in Texas, and the Hospital Relationship Requirement may be appropriate
given “[Missouri’s] legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that insure maximum safety for
the patient.” Hellerstedt, 136 S. Ct. at 2309 (quoting Roe v. Wade, 410 U.S. 113, 150
(1973)). Or perhaps the Hospital Relationship Requirement is consistent with a more
exacting medical regulatory scheme than that present in Texas. Cf. id. at 2315
(finding Texas regulated procedures similar to abortion less heavily which undercut
its safety argument).9 But, given no such inquiry was made—and no findings
ascertained—we remand for the district court to do that which Hellerstedt instructed:
“consider[] the evidence in the record—including expert evidence, presented in
stipulations, depositions, and testimony” and then “weigh[] the asserted benefits
against the burdens.” Id. at 2310.

                                          III.

       As a final note, we address the 2010 Settlement Agreement. To re-emphasize,
only one current plaintiff, Comprehensive Health, was a party to that agreement.
Whether Comprehensive Health stays in the suit or not does not affect the disposition
of this case. RHS may properly maintain any of the remaining justiciable facial




Texas, those sources informed the benefit/burden analysis of the Texas law at issue.
      9
      The district court made an attempt at some findings along these lines, but then
suggested “[t]he record is not clear enough . . . to make findings.”


                                         -13-
claims on its own.10 The district court explicitly did not decide the issue. While we
note the broad language in the release, we “decline to decide” in the first instance
“whether the release language bars [Comprehensive Health’s] claims.” Lynch v.
Nat’l Prescription Adm’rs, Inc., 787 F.3d 868, 874 (8th Cir. 2015).

                                        IV.

      For the foregoing reasons, we vacate the preliminary injunction entered on May
2, 2017 in its entirety and remand for proceedings consistent with this opinion.
                         ______________________________




      10
         The same attorneys represent Comprehensive Health, RHS, and Yeomans in
this action. Missouri does not press any argument on appeal that RHS is covered by
the 2010 Settlement.


                                        -14-
