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Supreme Court Terminates Texas Abortion Access Law ~ Opinion Of Court By Justice Breyer
Washington, DC...In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992), a plurality of the Court concluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added that “[unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Ibid .
Click above for full copy of decision
We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as inter-preted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that
“[a] physician performing or inducing an abortion . . .must, on the date the abortion is performed or induced, have active admitting privileges at a hospital
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that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).
This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.” 38 Tex. Reg. 6546 (2013).
The second provision, which we shall call the “surgicalcenter
requirement,” says that “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Tex. Health & Safety Code Ann. §245.010(a).
We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens uponaccess that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violatesthe Federal Constitution. Amdt. 14, §1.
I
A
In July 2013, the Texas Legislature enacted House Bill 2 (H. B. 2 or Act). In September (before the new law tookeffect), a group of Texas abortion providers filed an action in Federal District Court seeking facial invalidation of the law’s admitting-privileges provision. In late October, the District Court granted the injunction. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 901 (WD Tex. 2013). But three days later, the Fifth Circuit vacated the injunction,
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thereby permitting the provision to take effect. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F. 3d 406, 419 (2013).
The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late thefollowing March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previousOctober. It noted that Texas had offered evidence designed to show that the admitting-privileges requirement“will reduce the delay in treatment and decrease healthrisk for abortion patients with critical complications,” and that it would “‘screen out’ untrained or incompetent abortion providers.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F. 3d 583, 592 (2014) (Abbott). The opinion also explained that the plaintiffs had not provided sufficient evidence “that abortion practitioners will likely be unable to comply with the privilegesrequirement.” Id., at 598. The court said that all “of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio,” would “continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges.” Ibid. The Abbott plaintiffs did not file a petition for certiorari in this Court.
B On April 6, one week after the Fifth Circuit’s decision,petitioners, a group of abortion providers (many of whomwere plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities, one operated by Whole Woman’s Health in McAllenand the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas.
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They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution’s Fourteenth Amendment, as interpreted in Casey.
The District Court subsequently received stipulations from the parties and depositions from the parties’ experts.The court conducted a 4-day bench trial. It heard, amongother testimony, the opinions from expert witnesses for both sides. On the basis of the stipulations, deposi- tions, and testimony, that court reached the followingconclusions:
1. Of Texas’ population of more than 25 million people, “approximately 5.4 million” are “women” of “reproductiveage,” living within a geographical area of “nearly 280,000square miles.” Whole Woman’s Health v. Lakey, 46
F. Supp. 3d 673, 681 (2014); see App. 244.
2.
“In recent years, the number of abortions reported in Texas has stayed fairly consistent at approximately 15–16% of the reported pregnancy rate, for a total number of approximately 60,000–72,000 legal abortions performedannually.” 46 F. Supp. 3d, at 681; see App. 238.
3.
Prior to the enactment of H. B. 2, there were more than 40 licensed abortion facilities in Texas, which “number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.” 46
F. Supp. 3d, at 681; App. 228–231.
4. If the surgical-center provision were allowed to takeeffect, the number of abortion facilities, after September 1,2014, would be reduced further, so that “only seven fa- cilities and a potential eighth will exist in Texas.” 46
F. Supp. 3d, at 680; App. 182–183.
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5.
Abortion facilities “will remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.” 46 F. Supp. 3d, at 681; App. 229–230. These include “one facility in Austin, two in Dallas, one in FortWorth, two in Houston, and either one or two in San Antonio.” 46 F. Supp. 3d, at 680; App. 229–230.
6.
“Based on historical data pertaining to Texas’s average number of abortions, and assuming perfectly equal distribution among the remaining seven or eight providers, this would result in each facility serving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in pregnancy rates and a slightlyunequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vyingfor counseling, appointments, and follow-up visits at someof these facilities.” 46 F. Supp. 3d, at 682; cf. App. 238.
7.
The suggestion “that these seven or eight providerscould meet the demand of the entire state stretches credulity.” 46 F. Supp. 3d, at 682; see App. 238.
8.
“Between November 1, 2012 and May 1, 2014,” thatis, before and after enforcement of the admitting-privileges requirement, “the decrease in geographicaldistribution of abortion facilities” has meant that the number of women of reproductive age living more than 50miles from a clinic has doubled (from 800,000 to over 1.6million); those living more than 100 miles has increased by 150% (from 400,000 to 1 million); those living morethan 150 miles has increased by more than 350% (from86,000 to 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to 290,000).After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion
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provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than200 miles from an abortion provider. 46 F. Supp. 3d, at 681–682; App. 238–242.
9. The “two requirements erect a particularly highbarrier for poor, rural, or disadvantaged women.” 46
F. Supp. 3d, at 683; cf. App. 363–370.
10.
“The great weight of evidence demonstrates that,before the act’s passage, abortion in Texas was extremelysafe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684; see, e.g., App. 257–259, 538; see also id., at 200–202, 253–257.
11.
“Abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, in terms of minor and serious complications, than manycommon medical procedures not subject to such intenseregulation and scrutiny.” 46 F. Supp. 3d, at 684; see, e.g.,App. 223–224 (describing risks in colonoscopies), 254 (discussing risks in vasectomy and endometrial biopsy,among others), 275–277 (discussing complication rate inplastic surgery).
12.
“Additionally, risks are not appreciably lowered for patients who undergo abortions at ambulatory surgicalcenters as compared to nonsurgical-center facilities.” 46
F. Supp. 3d, at 684; App. 202–206, 257–259.
13. “[W]omen will not obtain better care or experience more frequent positive outcomes at an ambulatory surgiCite
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cal center as compared to a previously licensed facility.” 46 F. Supp. 3d, at 684; App. 202–206.
14.
“[T]here are 433 licensed ambulatory surgical centers in Texas,” of which “336 . . . are apparently either ‘grandfathered’ or enjo[y] the benefit of a waiver of some orall” of the surgical-center “requirements.” 46 F. Supp. 3d, at 680–681; App. 184.
15.
The “cost of coming into compliance” with thesurgical-center requirement “for existing clinics is significant,” “undisputedly approach[ing] 1 million dollars,” and “most likely exceed[ing] 1.5 million dollars,” with “ome . . . clinics” unable to “comply due to physical size limitations of their sites.” 46 F. Supp. 3d, at 682. The “cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.” Ibid.
On the basis of these and other related findings, theDistrict Court determined that the surgical-center requirement “imposes an undue burden on the right of women throughout Texas to seek a previability abortion,”and that the “admitting-privileges requirement, . . . inconjunction with the ambulatory-surgical-center requirement, imposes an undue burden on the right of women in the Rio Grande Valley, El Paso, and West Texas to seek a previability abortion.” Id., at 687. The District Court concluded that the “two provisions” would cause “theclosing of almost all abortion clinics in Texas that wereoperating legally in the fall of 2013,” and thereby create a constitutionally “impermissible obstacle as applied to all women seeking a previability abortion” by “restrictingaccess to previously available legal facilities.” Id., at 687–
688. On August 29, 2014, the court enjoined the enforcement of the two provisions. Ibid.
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C
On October 2, 2014, at Texas’ request, the Court of Appeals stayed the District Court’s injunction. Whole Woman’s Health v. Lakey, 769 F. 3d 285, 305. Within the next two weeks, this Court vacated the Court of Appeals’ stay (in substantial part) thereby leaving in effect theDistrict Court’s injunction against enforcement of the surgical-center provision and its injunction against enforcement of the admitting-privileges requirement asapplied to the McAllen and El Paso clinics. Whole Woman’s Health v. Lakey, 574 U. S. ___ (2014). The Court of Appeals then heard Texas’ appeal.
On June 9, 2015, the Court of Appeals reversed theDistrict Court on the merits. With minor exceptions, itfound both provisions constitutional and allowed them to take effect. Whole Women’s Health v. Cole, 790 F. 3d 563, 567 (per curiam), modified, 790 F. 3d 598 (CA5 2015).Because the Court of Appeals’ decision rests upon alternative grounds and fact-related considerations, we set forthits basic reasoning in some detail. The Court of Appealsconcluded:
•
The District Court was wrong to hold the admitting-privileges requirement unconstitutional because (except for the clinics in McAllen and El Paso) the providers had not asked them to do so, and principles of res judicatabarred relief. Id., at 580–583.
•
Because the providers could have brought their constitutional challenge to the surgical-center provision in their earlier lawsuit, principles of res judicata also barred thatclaim. Id., at 581–583.
•
In any event, a state law “regulating previability abortion is constitutional if: (1) it does not have the purpose oreffect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitiCite
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mate state interest.” Id., at 572.
•
“[B]oth the admitting privileges requirement and” the surgical-center requirement “were rationally related to alegitimate state interest,” namely, “rais[ing] the standard and quality of care for women seeking abortions and . . . protect[ing] the health and welfare of women seeking abortions.” Id., at 584.
•
The “[p]laintiffs” failed “to proffer competent evidencecontradicting the legislature’s statement of a legitimatepurpose.” Id., at 585.
•
“[T]he district court erred by substituting its own judgment [as to the provisions’ effects] for that of the legislature, albeit . . . in the name of the undue burden inquiry.” Id., at 587.
•
Holding the provisions unconstitutional on their face isimproper because the plaintiffs had failed to show that either of the provisions “imposes an undue burden on alarge fraction of women.” Id., at 590.
•
The District Court erred in finding that, if the surgical-center requirement takes effect, there will be too few abortion providers in Texas to meet the demand. That factual determination was based upon the finding of one of plaintiffs’ expert witnesses (Dr. Grossman) that abortion providers in Texas “‘will not be able to go from providing approximately 14,000 abortions annually, as they currently are, to providing the 60,000 to 70,000 abortions that are done each year in Texas once all’” of the clinics failing tomeet the surgical-center requirement “‘are forced to close.’” Id., at 589–590. But Dr. Grossman’s opinion is (in the Court of Appeals’ view) “‘ipse dixit’”; the “‘record lacks any actual evidence regarding the current or future capacity of the eight clinics’”; and there is no “evidence in the record that” the providers that currently meet the surgical-center requirement “are operating at full capacity or thatthey cannot increase capacity.” Ibid.
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For these and related reasons, the Court of Appealsreversed the District Court’s holding that the admitting-privileges requirement is unconstitutional and its holding that the surgical-center requirement is unconstitutional. The Court of Appeals upheld in part the District Court’s more specific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr. Lynn (adoctor at that facility), but it reversed the District Court’sholding that the surgical-center requirement is unconstitutional as applied to the facility in El Paso. In respect tothis last claim, the Court of Appeals said that women in ElPaso wishing to have an abortion could use abortion providers in nearby New Mexico.
II Before turning to the constitutional question, we must consider the Court of Appeals’ procedural grounds for holding that (but for the challenge to the provisions of
H. B. 2 as applied to McAllen and El Paso) petitioners were barred from bringing their constitutional challenges.
A
Claim Preclusion—Admitting-Privileges Requirement
The Court of Appeals held that there could be no facialchallenge to the admitting-privileges requirement. Because several of the petitioners here had previouslybrought an unsuccessful facial challenge to that requirement (namely, Abbott, 748 F. 3d, at 605; see supra, at 2– 3), the Court of Appeals thought that “the principle of res judicata” applied. 790 F. 3d, at 581. The Court of Appealsalso held that res judicata prevented the District Court from granting facial relief to petitioners, concluding that itwas improper to “facially invalidat[e] the admitting privileges requirement,” because to do so would “gran[t] more relief than anyone requested or briefed.” Id., at 580. We hold that res judicata neither bars petitioners’ challenges
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to the admitting-privileges requirement nor prevents usfrom awarding facial relief.
For one thing, to the extent that the Court of Appealsconcluded that the principle of res judicata bars any facial challenge to the admitting-privileges requirement, see ibid., the court misconstrued petitioners’ claims. Petitioners did not bring a facial challenge to the admitting-privileges requirement in this case but instead challenged that requirement as applied to the clinics in McAllen and El Paso. The question is whether res judicata bars petitioners’ particular as-applied claims. On this point, the Court of Appeals concluded that res judicata was no bar,see 790 F. 3d, at 592, and we agree.
The doctrine of claim preclusion (the here-relevantaspect of res judicata) prohibits “successive litigation ofthe very same claim” by the same parties. New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Petitioners’ postenforcement as-applied challenge is not “the very same claim” as their preenforcement facial challenge. The Restatement of Judgments notes that development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim. SeeRestatement (Second) of Judgments §24, Comment f (1980) (“Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be madethe basis of a second action not precluded by the first”); cf. id., §20(2) (“A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiff ’s failure to satisfy a precondition to suit,does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied”); id., §20, Comment k (discussing relationship of this rule with §24, Comment f ). The Courts of Appeals haveused similar rules to determine the contours of a new
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claim for purposes of preclusion. See, e.g., Morgan v. Covington, 648 F. 3d 172, 178 (CA3 2011) (“[R]es judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint”); Ellis v. CCA of Tenn. LLC, 650 F. 3d 640, 652 (CA7 2011); Bank of
N. Y. v. First Millennium, Inc., 607 F. 3d 905, 919 (CA2 2010); Smith v. Potter, 513 F. 3d 781, 783 (CA7 2008); Rawe v. Liberty Mut. Fire Ins. Co., 462 F. 3d 521, 529 (CA6 2006); Manning v. Auburn, 953 F. 2d 1355, 1360 (CA11 1992). The Restatement adds that, where “important human values—such as the lawfulness of continuing personal disability or restraint—are at stake, even a slight change of circumstances may afford a sufficientbasis for concluding that a second action may be brought.” §24, Comment f; see Bucklew v. Lombardi, 783 F. 3d 1120, 1127 (CA8 2015) (allowing as-applied challenge to exe- cution method to proceed notwithstanding prior facialchallenge).
We find this approach persuasive. Imagine a group of prisoners who claim that they are being forced to drinkcontaminated water. These prisoners file suit against the facility where they are incarcerated. If at first their suit is dismissed because a court does not believe that the harm would be severe enough to be unconstitutional, it would make no sense to prevent the same prisoners from bringing a later suit if time and experience eventually showedthat prisoners were dying from contaminated water. Such circumstances would give rise to a new claim that the prisoners’ treatment violates the Constitution. Factual developments may show that constitutional harm, whichseemed too remote or speculative to afford relief at the time of an earlier suit, was in fact indisputable. In our view, such changed circumstances will give rise to a new constitutional claim. This approach is sensible, and it isconsistent with our precedent. See Abie State Bank v. Bryan, 282 U. S. 765, 772 (1931) (where “suit was brought
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immediately upon the enactment of the law,” “decision sustaining the law cannot be regarded as precluding a subsequent suit for the purpose of testing [its] validity . . . in the lights of the later actual experience”); cf. Lawlor v. National Screen Service Corp., 349 U. S. 322, 328 (1955) (judgment that “precludes recovery on claims arising prior to its entry” nonetheless “cannot be given the effect of extinguishing claims which did not even then exist”); United States v. Carolene Products Co., 304 U. S. 144, 153 (1938) (“[T]he constitutionality of a statute predicatedupon the existence of a particular state of facts may bechallenged by showing to the court that those facts have ceased to exist”); Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415 (1935) (“A statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it is applied” (footnote omitted)); Third Nat. Bank of Louisville v. Stone 174 U. S. 432, 434 (1899) (“A questioncannot be held to have been adjudged before an issue onthe subject could possibly have arisen”). JUSTICE ALITO’s dissenting opinion is simply wrong that changed circumstances showing that a challenged law has an unconstitutional effect can never give rise to a new claim. See post,at 14–15 (hereinafter the dissent).
Changed circumstances of this kind are why the claim presented in Abbott is not the same claim as petitioners’ claim here. The claims in both Abbott and the present case involve “important human values.” Restatement (Second) of Judgments §24, Comment f. We are concerned with H. B. 2’s “effect . . . on women seeking abortions.” Post, at 30 (ALITO, J., dissenting). And that effect has changed dramatically since petitioners filed their firstlawsuit. Abbott rested on facts and evidence presented tothe District Court in October 2013. 748 F. 3d, at 599,
n. 14 (declining to “consider any arguments” based on “developments since the conclusion of the bench trial”).
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Petitioners’ claim in this case rests in significant partupon later, concrete factual developments. Those developments matter. The Abbott plaintiffs brought their facialchallenge to the admitting-privileges requirement prior to its enforcement—before many abortion clinics had closed and while it was still unclear how many clinics would beaffected. Here, petitioners bring an as-applied challengeto the requirement after its enforcement—and after a large number of clinics have in fact closed. The postenforcementconsequences of H. B. 2 were unknowable before it wentinto effect. The Abbott court itself recognized that “[l]ateras-applied challenges can always deal with subsequent,concrete constitutional issues.” Id., at 589. And the Court of Appeals in this case properly decided that new evidence presented by petitioners had given rise to a new claim and that petitioners’ as-applied challenges are not precluded.See 790 F. 3d, at 591 (“We now know with certainty thatthe non-[surgical-center] abortion facilities have actuallyclosed and physicians have been unable to obtain admitting privileges after diligent effort”).
When individuals claim that a particular statute will produce serious constitutionally relevant adverse consequences before they have occurred—and when the courts doubt their likely occurrence—the factual difference thatthose adverse consequences have in fact occurred can make all the difference. Compare the Fifth Circuit’s opinion in the earlier case, Abbott, supra, at 598 (“All of the major Texas cities . . . continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges”), with the facts found in this case, 46
F. Supp. 3d, at 680 (the two provisions will leave Texaswith seven or eight clinics). The challenge brought in this case and the one in Abbott are not the “very same claim,” and the doctrine of claim preclusion consequently doesnot bar a new challenge to the constitutionality of the admitting-privileges requirement. New Hampshire v. Maine,
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532 U. S., at 748. That the litigants in Abbott did not seek review in this Court, as the dissent suggests they should have done, see post, at 10, does not prevent them fromseeking review of new claims that have arisen after Abbott was decided. In sum, the Restatement, cases from the Courts of Appeals, our own precedent, and simple logic combine to convince us that res judicata does not bar this claim.
The Court of Appeals also concluded that the award of facial relief was precluded by principles of res judicata. 790 F. 3d, at 581. The court concluded that the District Court should not have “granted more relief than anyone requested or briefed.” Id., at 580. But in addition to asking for as-applied relief, petitioners asked for “suchother and further relief as the Court may deem just, proper, and equitable.” App. 167. Their evidence and argu-ments convinced the District Court that the provision wasunconstitutional across the board. The Federal Rules of Civil Procedure state that (with an exception not relevanthere) a “final judgment should grant the relief to whicheach party is entitled, even if the party has not demanded that relief in its pleadings.” Rule 54(c). And we have held that, if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 333 (2010); see ibid. (in “the exercise of its judicial responsibility” it maybe “necessary . . . for the Court to consider the facial validity” of a statute, even though a facial challenge was not brought); cf. Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidityin properly ‘as-applied’ cases”). Nothing prevents thisCourt from awarding facial relief as the appropriate rem- edy for petitioners’ as-applied claims.
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B
Claim Preclusion—Surgical-Center Requirement
The Court of Appeals also held that claim preclusionbarred petitioners from contending that the surgical-center requirement is unconstitutional. 790 F. 3d, at 583. Although it recognized that petitioners did not bring thisclaim in Abbott, it believed that they should have done so.The court explained that petitioners’ constitutional challenge to the surgical-center requirement and the challenge to the admitting-privileges requirement mounted in
Abbott
“arise from the same ‘transactio[n] or series of connected transactions.’ . . . The challenges involve the same parties and abortion facilities; the challengesare governed by the same legal standards; the provisions at issue were enacted at the same time as partof the same act; the provisions were motivated by a common purpose; the provisions are administered by the same state officials; and the challenges form a convenient trial unit because they rely on a commonnucleus of operative facts.” 790 F. 3d, at 581.
For all these reasons, the Court of Appeals held petitioners’ challenge to H. B. 2’s surgical-center requirement wasprecluded.
The Court of Appeals failed, however, to take account ofmeaningful differences. The surgical-center provision and the admitting-privileges provision are separate, distinctprovisions of H. B. 2. They set forth two different, independent requirements with different enforcement dates.This Court has never suggested that challenges to twodifferent statutory provisions that serve two different functions must be brought in a single suit. And lower courts normally treat challenges to distinct regulatoryrequirements as “separate claims,” even when they arepart of one overarching “[g]overnment regulatory scheme.”
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18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4408, p. 52 (2d ed. 2002, Supp. 2015); see Hamilton’s Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 (CA6 2007).
That approach makes sense. The opposite approachadopted by the Court of Appeals would require treating every statutory enactment as a single transaction which agiven party would only be able to challenge one time, inone lawsuit, in order to avoid the effects of claim preclusion. Such a rule would encourage a kitchen-sink approach to any litigation challenging the validity of statutes. That outcome is less than optimal—not only forlitigants, but for courts.
There are other good reasons why petitioners should not have had to bring their challenge to the surgical-center provision at the same time they brought their first suit.The statute gave the Texas Department of State Health Services authority to make rules implementing the surgical-center requirement. H. B. 2, §11(a), App. to Pet. for Cert. 201a. At the time petitioners filed Abbott, that state agency had not yet issued any such rules. Cf. EPA v. Brown, 431 U. S. 99, 104 (1977) (per curiam); 13B Wright, supra, §3532.6, at 629 (3d ed. 2008) (most courts will not “undertake review before rules have been adopted”); Natural Resources Defense Council, Inc. v. EPA, 859 F. 2d 156, 204 (CADC 1988).
Further, petitioners might well have expected that thoserules when issued would contain provisions grandfathering some then-existing abortion facilities and granting fullor partial waivers to others. After all, more than three quarters of non-abortion-related surgical centers hadbenefited from that kind of provision. See 46 F. Supp. 3d,at 680–681 (336 of 433 existing Texas surgical centershave been grandfathered or otherwise enjoy a waiver of some of the surgical-center requirements); see also App. 299–302, 443–447, 468–469.
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Finally, the relevant factual circumstances changedbetween Abbott and the present lawsuit, as we previously described. See supra, at 14–15.
The dissent musters only one counterargument. According to the dissent, if statutory provisions “impos[e] thesame kind of burden . . . on the same kind of right” and have mutually reinforcing effects, “it is evident that” theyare “part of the same transaction” and must be challenged together. Post, at 20, 22. But for the word “evident,” the dissent points to no support for this conclusion, and wefind it unconvincing. Statutes are often voluminous, with many related, yet distinct, provisions. Plaintiffs, in order to preserve their claims, need not challenge each suchprovision of, say, the USA PATRIOT Act, the BipartisanCampaign Reform Act of 2002, the National Labor Relations Act, the Clean Water Act, the Antiterrorism and Effective Death Penalty Act of 1996, or the Patient Protection and Affordable Care Act in their first lawsuit.
For all of these reasons, we hold that the petitioners didnot have to bring their challenge to the surgical-centerprovision when they challenged the admitting-privileges provision in Abbott. We accordingly hold that the doctrineof claim preclusion does not prevent them from bringing that challenge now.
* * *
None of petitioners’ claims are barred by res judicata.Five experts in civil procedure argued, in a brief supporting petitioners’ request for certiorari, that “the panel’sprocedural ruling is so clearly incorrect” that there was no reason to decline review. Brief for Professor Michael Dorf et al. as Amici Curiae 22. For all of the reasons described above, we agree that the Court of Appeals’ procedural ruling was incorrect. We consequently proceed to considerthe merits of petitioners’ claims.
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III
Undue Burden—Legal Standard We begin with the standard, as described in Casey. We recognize that the “State has a legitimate interest inseeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, “a statute which, while furthering [a] valid state interest, has the effect of placing asubstantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Casey, 505 U. S., at 877 (plurality opinion).Moreover, “nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to awoman seeking an abortion impose an undue burden onthe right.” Id., at 878. The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” 790 F. 3d, at 572. The Court of Appeals went on to hold that “the district court erred by substituting its own judgment for that of the legislature” when it conducted its “undue burden inquiry,” in part because “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” Id., at 587 (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)). The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ testmay be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits
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those laws confer. See 505 U. S., at 887–898 (opinion of the Court) (performing this balancing with respect to aspousal notification provision); id., at 899–901 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.) (same balancing with respect to a parental notification provision). And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955). The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”
The statement that legislatures, and not courts, mustresolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulatingabortion procedures, has placed considerable weight uponevidence and argument presented in judicial proceedings.In Casey, for example, we relied heavily on the DistrictCourt’s factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional. 505 U. S., at 888–894 (opinion of the Court) (discussing evidence related to the prevalence ofspousal abuse in determining that a spousal notification provision erected an undue burden to abortion access).And, in Gonzales the Court, while pointing out that wemust review legislative “factfinding under a deferential standard,” added that we must not “place dispositiveweight” on those “findings.” 550 U. S., at 165. Gonzales went on to point out that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Ibid. (emphasis added).Although there we upheld a statute regulating abortion,we did not do so solely on the basis of legislative findings
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explicitly set forth in the statute, noting that “evidence presented in the District Courts contradicts” some of the legislative findings. Id., at 166. In these circumstances, we said, “ncritical deference to Congress’ factual findings . . . is inappropriate.” Ibid.
Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women’s health). Id., at 149–150. For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court’s case law. As we shall describe, the District Court did so here. It did not simply substitute its own judgment for that of the legislature. It considered the evidence in the record—includingexpert evidence, presented in stipulations, depositions,and testimony. It then weighed the asserted benefitsagainst the burdens. We hold that, in so doing, the District Court applied the correct legal standard.
IV
Undue Burden—Admitting-Privileges Requirement
Turning to the lower courts’ evaluation of the evidence,we first consider the admitting-privileges requirement. Before the enactment of H. B. 2, doctors who provided abortions were required to “have admitting privileges or have a working arrangement with a physician(s) who hasadmitting privileges at a local hospital in order to ensurethe necessary back up for medical complications.” Tex. Admin. Code, tit. 25, §139.56 (2009) (emphasis added). The new law changed this requirement by requiring that a“physician performing or inducing an abortion . . . must,on the date the abortion is performed or induced, haveactive admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety
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Code Ann. §171.0031(a). The District Court held that the legislative change imposed an “undue burden” on a woman’s right to have an abortion. We conclude that there is adequate legal and factual support for the District Court’sconclusion.
The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure.Brief for Respondents 32–37. But the District Court found that it brought about no such health-related benefit. The court found that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684. Thus, there was no significant health-related problem that thenew law helped to cure.
The evidence upon which the court based this conclusion included, among other things:
•
A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including thosecomplications requiring hospital admission—was less thanone-quarter of 1%. See App. 269–270.
•
Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer secondtrimester abortion was less than one-half of 1% (0.45% orabout 1 out of about 200). Id., at 270.
•
Expert testimony to the effect that complications rarelyrequire hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266–267 (citing a study of complications occurring within six weeksafter 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that theincidence of complications was 2.1%, the incidence of
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complications requiring hospital admission was 0.23%,and that of the 54,911 abortion patients included in thestudy, only 15 required immediate transfer to the hospital on the day of the abortion).
• Expert testimony stating that “it is extremely unlikelythat a patient will experience a serious complication at theclinic that requires emergent hospitalization” and “in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortionprovider has admitting privileges at the hospital.” Id., at
381.
•
Expert testimony stating that in respect to surgicalabortion patients who do suffer complications requiringhospitalization, most of these complications occur in thedays after the abortion, not on the spot. See id., at 382; see also id., at 267.
•
Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as“abortifacient drugs take time to exert their effects, andthus the abortion itself almost always occurs after the patient has left the abortion facility.” Id., at 278.
•
Some experts added that, if a patient needs a hospital inthe day or week following her abortion, she will likely seek medical attention at the hospital nearest her home. See, e.g., id., at 153.
We have found nothing in Texas’ record evidence thatshows that, compared to prior law (which required a “working arrangement” with a doctor with admittingprivileges), the new law advanced Texas’ legitimate interest in protecting women’s health.
We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtainbetter treatment, Texas admitted that there was no evidence in the record of such a case. See Tr. of Oral Arg. 47.
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This answer is consistent with the findings of the otherFederal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws. See Planned Parenthood of Wis., Inc. v. Van Hollen, 94
F. Supp. 3d 949, 953 (WD Wis. 2015), aff ’d sub nom. Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908 (CA7 2015); Planned Parenthood Southeast, Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (MD Ala. 2014).
At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantialobstacle in the path of a woman’s choice.” Casey, 505
U. S., at 877 (plurality opinion). The District Court found, as of the time the admitting-privileges requirement beganto be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. 46
F. Supp. 3d, at 681. Eight abortion clinics closed in the months leading up to the requirement’s effective date. See App. 229–230; cf. Brief for Planned Parenthood Federationof America et al. as Amici Curiae 14 (noting that abortionfacilities in Waco, San Angelo, and Midland no longer operate because Planned Parenthood is “unable to find local physicians in those communities with privileges whoare willing to provide abortions due to the size of those communities and the hostility that abortion providersface”). Eleven more closed on the day the admitting-privileges requirement took effect. See App. 229–230; Tr. of Oral Arg. 58.
Other evidence helps to explain why the new requirement led to the closure of clinics. We read that other evidence in light of a brief filed in this Court by the Society of Hospital Medicine. That brief describes the undisputed general fact that “hospitals often condition admitting privileges on reaching a certain number of admissionsper year.” Brief for Society of Hospital Medicine et al. as Amici Curiae 11. Returning to the District Court record,we note that, in direct testimony, the president of Nova
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Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for doctors regularlyperforming abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” App. 730.In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, becausethe fact that abortions are so safe meant that providers were unlikely to have any patients to admit.
Other amicus briefs filed here set forth without disputeother common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures. See Brief for Medical Staff Professionals as Amici Curiae 20–25 (listing, for example, requirementsthat an applicant has treated a high number of patients inthe hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors); see also Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 16 (ACOG Brief) (“[S]ome academic hospitals will only allow medical staff membership for clinicians who also . . . accept faculty appointments”). Again, returning to the District Court record, we note that Dr. Lynn of theMcAllen clinic, a veteran obstetrics and gynecology doctorwho estimates that he has delivered over 15,000 babies in his 38 years in practice was unable to get admitting privileges at any of the seven hospitals within 30 miles of hisclinic. App. 390–394. He was refused admitting privilegesat a nearby hospital for reasons, as the hospital wrote, “not based on clinical competence considerations.” Id., at 393–394 (emphasis deleted). The admitting-privilegesrequirement does not serve any relevant credentialing function.
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In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding thatafter the admitting-privileges provision went into effect,the “number of women of reproductive age living in acounty . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from aprovider from approximately 10,000 to 290,000.” 46
F. Supp. 3d, at 681. We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings broughtabout, and when viewed in light of the virtual absence ofany health benefit, lead us to conclude that the recordadequately supports the District Court’s “undue burden”conclusion. Cf. id., at 895 (opinion of the Court) (findingburden “undue” when requirement places “substantial obstacle to a woman’s choice” in “a large fraction of thecases in which” it “is relevant”).
The dissent’s only argument why these clinic closures, as well as the ones discussed in Part V, infra, may nothave imposed an undue burden is this: Although “H. B. 2 caused the closure of some clinics,” post, at 26 (emphasisadded), other clinics may have closed for other reasons (so we should not “actually count” the burdens resulting from those closures against H. B. 2), post, at 30–31. But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausibleinferences to be drawn from the timing of the clinic closures. App. 182–183, 228–231. The District Court credited that evidence and concluded from it that H. B. 2 in fact
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led to the clinic closures. 46 F. Supp. 3d, at 680–681. The dissent’s speculation that perhaps other evidence, not presented at trial or credited by the District Court, mighthave shown that some clinics closed for unrelated reasons does not provide sufficient ground to disturb the DistrictCourt’s factual finding on that issue.
In the same breath, the dissent suggests that one benefit of H. B. 2’s requirements would be that they might “force unsafe facilities to shut down.” Post, at 26. To support that assertion, the dissent points to the KermitGosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitationequipment; the use of cheap, but dangerous, drugs; illegalprocedures; and inadequate emergency access for whenthings inevitably went wrong.” Report of Grand Juryin No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 14,2011), p. 24, online at http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf (as last visited June 24, 2016). Gosnell’s behavior was terribly wrong.But there is no reason to believe that an extra layerof regulation would have affected that behavior. Deter-mined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.Regardless, Gosnell’s deplorable crimes could escapedetection only because his facility went uninspected formore than 15 years. Id., at 20. Pre-existing Texas law already contained numerous detailed regulations coveringabortion facilities, including a requirement that facilitiesbe inspected at least annually. See infra, at 28 (describing those regulations). The record contains nothing to suggestthat H. B. 2 would be more effective than pre-existing
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Texas law at deterring wrongdoers like Gosnell from criminal behavior.
V
Undue Burden—Surgical-Center Requirement
The second challenged provision of Texas’ new law setsforth the surgical-center requirement. Prior to enactment of the new requirement, Texas law required abortionfacilities to meet a host of health and safety requirements. Under those pre-existing laws, facilities were subject to annual reporting and recordkeeping requirements, see Tex. Admin. Code, tit. 25, §§139.4, 139.5, 139.55, 139.58; a quality assurance program, see §139.8; personnel policiesand staffing requirements, see §§139.43, 139.46; physical and environmental requirements, see §139.48; infectioncontrol standards, see §139.49; disclosure requirements, see §139.50; patient-rights standards, see §139.51; and medical- and clinical-services standards, see §139.53, including anesthesia standards, see §139.59. These requirements are policed by random and announced inspections, at least annually, see §§139.23, 139.31; Tex. Health& Safety Code Ann. §245.006(a) (West 2010), as well asadministrative penalties, injunctions, civil penalties,and criminal penalties for certain violations, see Tex. Admin. Code, tit. 25, §139.33; Tex. Health & Safety Code Ann. §245.011 (criminal penalties for certain reporting violations).
H. B. 2 added the requirement that an “abortion facility” meet the “minimum standards . . . for ambulatory surgical centers” under Texas law. §245.010(a) (West Cum. Supp.2015). The surgical-center regulations include, amongother things, detailed specifications relating to the size of the nursing staff, building dimensions, and other buildingrequirements. The nursing staff must comprise at least “an adequate number of [registered nurses] on duty tomeet the following minimum staff requirements: director
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of the department (or designee), and supervisory and staffpersonnel for each service area to assure the immediate availability of [a registered nurse] for emergency care orfor any patient when needed,” Tex. Admin. Code, tit. 25, §135.15(a)(3) (2016), as well as “a second individual onduty on the premises who is trained and currently certified in basic cardiac life support until all patients havebeen discharged from the facility” for facilities that provide moderate sedation, such as most abortion facilities, §135.15(b)(2)(A). Facilities must include a full surgicalsuite with an operating room that has “a clear floor area ofat least 240 square feet” in which “[t]he minimum cleardimension between built-in cabinets, counters, and shelves shall be 14 feet.” §135.52(d)(15)(A). There must be a preoperative patient holding room and a postoperative recovery suite. The former “shall be provided and arranged in a one-way traffic pattern so that patients entering from outside the surgical suite can change, gown, and move directly into the restricted corridor of the surgicalsuite,” §135.52(d)(10)(A), and the latter “shall be arranged to provide a one-way traffic pattern from the restrictedsurgical corridor to the postoperative recovery suite, and then to the extended observation rooms or discharge,” §135.52(d)(9)(A). Surgical centers must meet numerousother spatial requirements, see generally §135.52, including specific corridor widths, §135.52(e)(1)(B)(iii). Surgicalcenters must also have an advanced heating, ventilation,and air conditioning system, §135.52(g)(5), and mustsatisfy particular piping system and plumbing requirements, §135.52(h). Dozens of other sections list additional requirements that apply to surgical centers. See generally§§135.1–135.56.
There is considerable evidence in the record supporting the District Court’s findings indicating that the statutoryprovision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not
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necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” 46 F. Supp. 3d, at 684. The court added that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgicalcenter as compared to a previously licensed facility.” Ibid. And these findings are well supported.
The record makes clear that the surgical-center requirement provides no benefit when complications arise inthe context of an abortion produced through medication.That is because, in such a case, complications would almost always arise only after the patient has left the facility. See supra, at 23; App. 278. The record also contains evidence indicating that abortions taking place in anabortion facility are safe—indeed, safer than numerousprocedures that take place outside hospitals and to whichTexas does not apply its surgical-center requirements.See, e.g., id., at 223–224, 254, 275–279. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Id., at
272. Nationwide, childbirth is 14 times more likely thanabortion to result in death, ibid., but Texas law allows a midwife to oversee childbirth in the patient’s own home.Colonoscopy, a procedure that typically takes place outsidea hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Id., at 276–277; see ACOG Brief 15 (the mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion). Medical treatment after an incomplete miscarriage often involves a procedure identical tothat involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. App. 254; seeACOG Brief 14 (same). And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center
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requirement for) about two-thirds of the facilities to whichthe surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities thatperform abortions. 46 F. Supp. 3d, at 680–681; see App.
184. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based ondifferences” between abortion and other surgical procedures “that are reasonably related to” preserving women’shealth, the asserted “purpos[e] of the Act in which it is found.” Doe, 410 U. S., at 194 (quoting Morey v. Doud, 354
U. S. 457, 465 (1957); internal quotation marks omitted).
Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiringscrub facilities; maintaining a one-way traffic patternthrough the facility; having ceiling, wall, and floor fin- ishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity controlcan help reduce infection where doctors conduct procedures that penetrate the skin. App. 304. But abortions typically involve either the administration of medicines orprocedures performed through the natural opening of thebirth canal, which is itself not sterile. See id., at 302–303. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, see Tex. Admin. Code, tit. 25, §135.41; App. 304, provide any help to abortion patients, as abortion facilitiesdo not use general anesthesia or deep sedation, id., at 304–305. Further, since the few instances in which serious complications do arise following an abortion almostalways require hospitalization, not treatment at a surgical center, id., at 255–256, surgical-center standards will nothelp in those instances either.
The upshot is that this record evidence, along with theabsence of any evidence to the contrary, provides ample support for the District Court’s conclusion that “[m]any of the building standards mandated by the act and its im32
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plementing rules have such a tangential relationship topatient safety in the context of abortion as to be nearlyarbitrary.” 46 F. Supp. 3d, at 684. That conclusion, along with the supporting evidence, provides sufficient supportfor the more general conclusion that the surgical-center requirement “will not [provide] better care or . . . morefrequent positive outcomes.” Ibid. The record evidence thus supports the ultimate legal conclusion that thesurgical-center requirement is not necessary.
At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The partiesstipulated that the requirement would further reduce thenumber of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth. See App. 182–183. In the District Court’s view, the proposition that these “seven or eight providers could meet the demand of the entire State stretches credulity.” 46 F. Supp. 3d, at 682. We take this statement as a finding that these few facilities could not “meet” that “demand.”
The Court of Appeals held that this finding was “clearlyerroneous.” 790 F. 3d, at 590. It wrote that the finding rested upon the “‘ipse dixit’” of one expert, Dr. Grossman, and that there was no evidence that the current surgicalcenters (i.e., the seven or eight) are operating at full capacity or could not increase capacity. Ibid. Unlike the Court of Appeals, however, we hold that the record providesadequate support for the District Court’s finding.
For one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as a result of the surgical-center requirement, the number of abortions that the clinics would have to provide would rise from “‘14,000abortions annually’” to “‘60,000 to 70,000’”—an increase by a factor of about five. Id., at 589–590. The District
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Court credited Dr. Grossman as an expert witness. See 46
F. Supp. 3d, at 678–679, n. 1; id., at 681, n. 4 (finding “indicia of reliability” in Dr. Grossman’s conclusions). The Federal Rules of Evidence state that an expert may testify in the “form of an opinion” as long as that opinion rests upon “sufficient facts or data” and “reliable principles and methods.” Rule 702. In this case Dr. Grossman’s opinion rested upon his participation, along with other universityresearchers, in research that tracked “the number of openfacilities providing abortion care in the state by . . . requesting information from the Texas Department of StateHealth Services . . . [, t]hrough interviews with clinic staff[,] and review of publicly available information.” App.
227. The District Court acted within its legal authority indetermining that Dr. Grossman’s testimony was admissible. See Fed. Rule Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993) (“[U]nder the Rules the trial judge must ensure that anyand all [expert] evidence admitted is not only relevant, butreliable”); 29 C. Wright & V. Gold, Federal Practice andProcedure: Evidence §6266, p. 302 (2016) (“Rule 702 impose on the trial judge additional responsibility to determine whether that [expert] testimony is likely to promote accurate factfinding”).
For another thing, common sense suggests that, moreoften than not, a physical facility that satisfies a certainphysical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs. Suppose that we know only that a certaingrocery store serves 200 customers per week, that a certain apartment building provides apartments for 200 families, that a certain train station welcomes 200 trains per day. While it is conceivable that the store, the apartment building, or the train station could just as easily provide for 1,000 customers, families, or trains at no significant additional cost, crowding, or delay, most of us
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would find this possibility highly improbable. The dissent takes issue with this general, intuitive point by arguing that many places operate below capacity and that in any event, facilities could simply hire additional providers. See post, at 32. We disagree that, according to commonsense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting-privileges requirement means that hiring more physi-cians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsenseinferences drawn from the evidence. And that is what the District Court did here.
The dissent now seeks to discredit Dr. Grossman by pointing out that a preliminary prediction he made in histestimony in Abbott about the effect of the admitting-privileges requirement on capacity was not borne out after that provision went into effect. See post, at 31, n. 22. If every expert who overestimated or underestimated any figure could not be credited, courts would struggle to findexpert assistance. Moreover, making a hypothesis—and then attempting to verify that hypothesis with furtherstudies, as Dr. Grossman did—is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony wassound, particularly given that Texas provided no credibleexperts to rebut it. Se
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