8/10/2019 Texas Brief to Fifth Circuit - WWH v. Lakey (1) http://slidepdf.com/reader/full/texas-brief-to-fifth-circuit-wwh-v-lakey-1 1/70 No. 14-50928 In the United States Court of Appeals for the Fifth Circuit _____________ Whole Woman’s Health; Austin Women’s Health Center; Killeen Women’s Health Center; Nova Health Systems, doing business as Reproductive Services; Sherwood C. Lynn, Jr., M.D., on behalf of themselves and their patients; Pamela J. Richter, D.O., on behalf of themselves and their patients; Lendol L. Davis, M.D., on behalf of themselves and their patients, Plaintiffs–Appellees–Cross-Appellants , v. David Lakey, M.D., Commissioner of the Texas Department of State Health Services, in his Official Capacity; Mari Robinson, Executive Director of the Texas Medical Board, in her Official Capacity, Defendants–Appellants–Cross-Appellees _____________ On Appeal from the United States District Court for the Western District of Texas, Austin Division Case No. 1:14-cv-284-LY _____________ APPELLANTS’ BRIEF _____________ Greg Abbott Attorney General of Texas Daniel T. Hodge First Assistant Attorney General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 (512) 936-1700 Jonathan F. Mitchell Solicitor General James D. Blacklock Deputy Attorney General for Legal Counsel Beth Klusmann Michael P. Murphy Assistant Solicitors General Counsel for Appellants Case: 14-50928 Document: 00512824386 Page: 1 Date Filed: 11/03/2014
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8/10/2019 Texas Brief to Fifth Circuit - WWH v. Lakey (1)
Counsel of record certifies that the following persons and entities as describedin the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcomeof this case. These representations are made in order that the judges of this Court
may evaluate possible disqualification or recusal.
Plaintiffs Plaintiffs’ Counsel
• Whole Woman’s Health
• Austin Women’s Health Center
• Killeen Women’s Health Center
• Nova Health Systems d/b/aReproductive Services
•
Sherwood C. Lynn, Jr., M.D.• Pamela J. Richter, D.O.
• Lendol L. Davis, M.D.
Jan SoiferPatrick J. O’ConnellO’Connell & Soifer LLP
Janet CreppsStephanie TotiEsha BhandariNatasha Lycia Ora BannanDavid P. BrownCenter for Reproductive Rights
J. Alexander LawrenceBetre M. GizawMarissa P. HarrisColic M. O’BrienKiersten A. FletcherMorrison & Foerster LLP
John H. Bucy II
Former Plaintiffs Former Plaintiffs’ Counsel
• Abortion Advantage
• Lamar Robinson, M.D.
Same as Plaintiffs’ Counsel listed above
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• David Lakey, M.D., Commissionerof the Texas Department of StateHealth Services
•
Mari Robinson, Executive Directorof the Texas Medical Board
James D. Blacklock Jonathan F. MitchellAndrew S. Oldham
Beth KlusmannPhilip LionbergerMichael P. MurphyAndrew B. StephensEsteban S.M. SotoEnrique VarelaShelley N. DahlbergErika M. KaneOffice of the Attorney General
Former Defendants Former Defendants’ Counsel
• David Escamilla
• Jaime Esparza
• Rene Guerra
•
James E. Nichols
• Susan D. Reed
•
Joe Shannon, Jr.
• Craig Watkins
None
/s/ Jonathan F. Mitchell Jonathan F. Mitchell
Counsel for Appellants
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I. Each of the plaintiffs’ claims is barred by res judicata ........................ 18
A. The plaintiffs’ challenges to the admitting-privileges laware barred by res judicata ......................................................... 19
B. The plaintiffs’ challenges to the ASC law are barred byres judicata ............................................................................... 23
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II. The district court erred by facially invalidating the ASC law ............. 26
A. The ASC requirement survives rational-basis review .............. 27
B. The trial evidence proved that HB2 will not undulyburden a “large fraction” of abortion patients .........................29
C. The district court’s statewide invalidation of the ASCrequirement is precluded by HB2’s severability clause ............ 33
D. The plaintiffs introduced no evidence of the “capacity”of post-HB2 abortion clinics to handle the statewidedemand for abortion ................................................................. 34
E. There is no evidence that the Texas Legislature had anunconstitutional motive in enacting the ASC statute ............... 35
III. The district court erred by refusing to sever each specific ASCrequirement ........................................................................................ 41
IV. The district court erred by enjoining the ASC requirements asapplied to medication abortions ......................................................... 44
V. The district court erred by enjoining the admitting-privilegesrequirement ........................................................................................ 45
A. The district court erred by enjoining the admitting-privileges requirement statewide ............................................. 45
B. The closure of the McAllen clinic will not impose an“undue burden” ...................................................................... 47
C. The closure of the El Paso clinic will not impose an“undue burden” ......................................................................49
D. Even if the closure of the McAllen or El Paso clinicsimposes an “undue burden,” the district court’s remedyis overbroad .............................................................................. 51
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Ala. State Fed’n of Labor, Local Union No. 103 v. McAdory,
325 U.S. 450 (1945) ............................................................................................ 32
Allen v. McCurry,449 U.S. 90 (1980) .......................................................................................... 7, 23
Ayotte v. Planned Parenthood of N. New England ,546 U.S. 320 (2006) ........................................................................................... 30
Brockett v. Spokane Arcades, Inc.,472 U.S. 491 (1985) ............................................................................................ 33
Brown v. Felsen,442 U.S. 127 (1979)............................................................................................. 23
Coleman v. Paccar, Inc.,424 U.S. 1301 (1976) ........................................................................................... 52
Fargo Women’s Health Org. v. Schafer ,18 F.3d 526 (8th Cir. 1994) ................................................................................. 51
Flemming v. Nestor ,363 U.S. 603 (1960) ............................................................................................ 36
Frank v. Walker ,No. 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014) ........................................... 53
Gonzales v. Carhart ,550 U.S. 124 (2007) ................................................................ 11, 13, 26, 28, 39, 54
Hernandez v. City of Lafayette ,699 F.2d 734 (5th Cir. 1983) (per curiam) ......................................................... 20
In re Howe ,913 F.2d 1138 (5th Cir. 1990) ............................................................................. 22
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Jackson Women’s Health Org. v. Currier ,760 F.3d 448 (5th Cir. 2014) ................................................................... 46, 50, 51
Kansas v. Hendricks ,521 U.S. 346 (1997) ............................................................................................. 36
Leavitt v. Jane L.,518 U.S. 137 (1996) ............................................................................................. 41
Mazurek v. Armstrong ,520 U.S. 968 (1997) (per curiam) .................................................. 2, 36, 38, 39, 54
Nilsen v. City of Moss Point ,701 F.2d 556 (5th Cir. 1983) ........................................................................... 21-22
Petro-Hunt, L.L.C. v. United States ,365 F.3d 395 (5th Cir. 2004) .................................................... 1, 17, 19, 20, 23, 24
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,134 S. Ct. 506 (2013) ................................................................................. 6, 52, 53
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,734 F.3d 406 (5th Cir. 2013) .............................................. 5, 11, 26, 29, 30, 46, 54
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,748 F.3d 583 (5th Cir. 2014) ........................................................................ passim
Planned Parenthood of Se. Pa. v. Casey,505 U.S. 833 (1992) ...................................................... 2, 13, 39, 45, 48, 49, 51, 54
Salahuddin v. Jones ,992 F.2d 447 (2d Cir. 1993) (per curiam) ...........................................................26
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David P. Currie, Res Judicata: The Neglected Defense ,45 U. Chi. L. Rev. 317 (1978) .......................................................................... 7, 23
Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts
and the Federal System (5th ed. 2003) .................................................................. 33
Senate Comm. on Health & Human Servs., Bill Analysis, Tex. H.B. 2,83d Leg., 2d C.S. (2013) ..................................................................................... 36
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preme Court denied the plaintiffs’ motion to vacate the stay. See Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott , 134 S. Ct. 506
(2013). This Court reversed the district court and rejected the facial chal-
lenge to HB2’s admitting-privileges law, along with the challenge to HB2’s
regulations of abortion-inducing drugs. See Abbott II , 748 F.3d at 600, 605.
HB2’s admitting-privileges law was in full effect from November 1, 2013, un-
til August 29, 2014.
III. The Plaintiffs’ Second Lawsuit Against
HB2
On April 2, 2014, the plaintiffs filed a second lawsuit against HB2. This
lawsuit repeats the earlier challenge to the admitting-privileges rule, but
seeks a limited remedy that would enjoin the law as applied to two clinics:
Whole Woman’s Health in McAllen and Reproductive Services in El Paso. It
also challenges the ASC requirements (which were never challenged in the
previous lawsuit), seeking both facial invalidation and (as a fallback) as-
applied relief limited to the McAllen and El Paso clinics. The plaintiffs have
never explained why their earlier lawsuit failed to request as-applied relief
against the admitting-privileges law, or why it failed to challenge the ASC
requirements.2
2 The plaintiffs in this lawsuit are only a subset of the plaintiffs that sued in the earlierHB2 proceeding. Planned Parenthood, the State’s largest abortion provider, is not partic-ipating in this lawsuit, and other providers from the previous lawsuit are absent from thiscase. The plaintiffs’ serial-litigation tactics seem to reflect a division in strategy amongthe State’s abortion providers. Some, such as Planned Parenthood, have acquiesced to theASC rules by building new ASC clinics—perhaps because they view the statewide ASC
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The State moved to dismiss all of the plaintiffs’ claims as barred by res
judicata. See ROA.969-72, 978; see also Allen v. McCurry, 449 U.S. 90, 94
(1980) (“Under res judicata, a final judgment on the merits of an action pre-
cludes the parties or their privies from relitigating issues that were or could
have been raised in that action.”); David P. Currie, Res Judicata: The Ne-
glected Defense , 45 U. Chi. L. Rev. 317 (1978). Even apart from res judicata,
the State argued that the plaintiffs failed to state a claim. ROA.973-80.
The district court granted in part and denied in part the motion to dis-
miss. ROA.2235-49. It rejected the State’s res judicata defense at the Rule
12(b)(6) stage because the plaintiffs alleged “facts that occurred after judg-
ment” in the previous lawsuit. ROA.2241. And it found that the plaintiffs
had sufficiently alleged an undue-burden challenge to the admitting-
privileges and ASC laws. ROA.2243-45, 2247. But the district court rejected
the plaintiffs’ equal-protection, unlawful-delegation, and “arbitrary and un-
reasonable state action” claims—and specifically held that HB2’s admitting-
privileges and ASC laws are rationally related to patient health and safety.
ROA.2246-47 (“There is a rational connection between the admitting-
privileges [and ASC] requirement[s] and the State’s goals.”).
requirement as an opportunity to increase their share of the abortion market. Others, suchas Whole Woman’s Health, are fighting the ASC rules. Whatever the reason behind theplaintiffs’ piecemeal litigation tactics, they cannot surmount res judicata’s prohibition onsuccessive lawsuits. See Section I, infra.
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The district court held a four-day trial. The parties stipulated that at least
seven licensed ASCs would offer abortions in Texas after September 1, 2014.
These abortion-performing ASCs would be in Austin, Dallas (two), Fort
Worth, Houston (two), and San Antonio. See ROA.2289-90. The parties also
stipulated that Planned Parenthood planned to open a new abortion-
performing ASC in San Antonio “[a]t an undisclosed date.” ROA.2290. Fi-
nally, the parties stipulated that “[n]o facility licensed by the State of Texas
as an abortion facility currently satisfies the ASC requirement of HB2,” and
“each of these facilities will be prohibited from providing abortion[s]” after
September 1, 2014. ROA.2290.
It is important to emphasize what the stipulation does not entail. The
parties did not stipulate that these seven or eight ASCs would be the only
abortion providers in Texas.3 And the parties did not stipulate that no new
HB2-compliant abortion providers would emerge. Nor did they stipulate that
currently licensed abortion facilities would be unable to provide abortions by
buying, building, or leasing space at a licensed ASC. The parties stipulated
only that currently licensed abortion clinics would be unable to perform abor-
tions at their currently licensed abortion facility. ROA.2290 (“No facility li-
3 The district court incorrectly states that the parties stipulated that these eight clinicswould be the “only” abortion providers in Texas. ROA.2687. The stipulation was care-fully worded to avoid that concession. The State did not stipulate that no new ASC abor-tion clinics would open, and it was the plaintiffs’ burden to prove with evidence thatPlanned Parenthood and other non-party abortion providers would not open any newASCs.
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censed by the State of Texas as an abortion facility currently satisfies the ASC
requirement of HB2. As a result, each of these facilities will be prohibited
from providing abortion services effective September 1, 2014.”) (emphasis
added).4
The plaintiffs have wanted courts simply to assume that the seven or
eight abortion-performing ASCs mentioned in the stipulation will be the only
abortion providers left in Texas. See Appl. to Vacate Stay of Final J. Pending
Appeal, at 20, Whole Woman’s Health v. Lakey, 14A365 (U.S., filed Oct. 6,
2014) (“[O]nly seven licensed abortion providers remain in Texas.”); Opp.
to Emergency Mot. to Stay Final J. Pending Appeal, at 3-4, Whole Woman’s
Health, No. 14-50928 (“[O]nly seven licensed abortion providers would re-
main in Texas.”). But the plaintiffs bear the burden of proof, and they must
prove (and not simply assert) that only seven abortion providers will remain if
they want this treated as fact. The plaintiffs did not even attempt to prove
that Texas would be left with only seven or eight ASC abortion providers.
Most of the State’s abortion providers were not even parties to this lawsuit.
And the plaintiffs introduced no evidence of whether these non-party abor-
tion providers plan to buy, build, or lease an ASC. In addition, there was tes-
timony that all three plaintiff clinics were considering opening new ASCs if
their lawsuit failed:
4 Abortions in Texas may be performed at any licensed ambulatory surgical center, and itneed not be licensed as an abortion facility to perform abortions. See Tex. Health & SafetyCode § 245.004(a)(3).
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Q. …You and your wife recently purchased a $1.125 millionbuilding here in Austin in May; is that correct?A. Yes.Q. …It was purchased with the intent to convert it into an ASCthat complies with House Bill 2; is that right?
A. Yes.Q. And you intend for that ASC — when you purchased it, youintended for that ASC to provide abortion services?A. Yes.
ROA.2828:18-2829:2.
Q. And so now Dr. Aquino and Dr. Braid are planning to openthe ambulatory surgical center in San Antonio?A. They hope to be able to do so, yes.
ROA.3006:5-7. See also ROA.3070:11-21, 3072:24-3074:16. There is no evi-
dence that only seven abortion clinics will be left in Texas.
At trial, the plaintiffs presented three theories of “undue burden.” First,
the plaintiffs argued that HB2 would increase driving distances for some pa-
tients (on the unproven assumption that Texas will have only seven ASC
abortion providers). Their expert Daniel Grossman opined that 930,000
women of reproductive age will live more than 150 miles from an abortion-
performing ASC. See ROA.2355; see also ROA.2152, 2689 (adopting Gross-
man’s numbers). Grossman’s “930,000” number is misleadingly large, be-
cause it includes women in Lubbock, Amarillo, and Midland/Odessa—
where the absence of an abortion clinic within 150 miles pre-dates HB2. And
of course, most of these 930,000 women will never seek an abortion.
But no matter how one defines the raw number of patients subjected to
150-mile driving distances, the plaintiffs did not and could not prove that the
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was enacted with the “purpose” of imposing an undue burden. See
ROA.2696. But it cited no evidence of the legislature’s motives for enacting
HB2. And the district court declared the ASC standards unconstitutional as
applied to drug-induced abortions, because “any medical justification for the
requirement is at its absolute weakest in comparison with the heavy burden it
imposes.” ROA.2698. Near the end of the opinion, the district court held
that the State may enforce its ASC standards against “currently licensed
ambulatory-surgical-center abortion providers in Texas” and “new abortion
providers that begin offering abortion services after September 1, 2014.”
ROA.2699.
The district-court opinion also held the admitting-privileges law uncon-
stitutional “as applied to the Rio Grande Valley and El Paso clinics.”
ROA.2696. But the opinion concludes with the following paragraph:
However, when the two provisions [ASC and admitting privi-
leges] are considered together, they create a scheme that effectsthe closing of almost all abortion clinics in Texas that were op-erating legally in the fall of 2013. Thus, the overall effect of theprovisions is to create an impermissible obstacle as applied to allwomen seeking a previability abortion. The court will thus en-
join the enforcement of both provisions on the basis that theyact together to create an undue burden on a woman seeking apreviability abortion by restricting access to previously availablelegal facilities.
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ROA.2701. This appears to invalidate the admitting-privileges law across the
board, or at least as applied to all “previously available legal facilities.”5 But
the plaintiffs had not asked for statewide relief against the admitting-
privileges law; they brought an as-applied challenge that sought relief only
for the McAllen and El Paso clinics.
The final judgment largely tracks the opinion, although there are some
discrepancies. The judgment first declares the ASC statute unconstitutional
“[a]s to all abortion facilities in the State,” with exceptions for previously
licensed ASCs and abortion clinics opening after September 1, 2014. See
ROA.2704. The judgment also declares the ASC statute unconstitutional
“[a]s applied to … medical abortion.” ROA.2704. The judgment then de-
clares the admitting-privileges statute unconstitutional “as applied to Plain-
tiffs Whole Woman’s Health and Sherwood Lynn with respect to the opera-
tion of an abortion facility in McAllen, Texas, and Plaintiffs Nova Health
Systems and Pamela Richter with respect to the operation of an abortion fa-
cility in El Paso, Texas.” ROA.2704.
But then the judgment seems to swallow these caveats, because it goes
on to declare that “the two portions of Texas Health and Safety Code, Sec-
tions 245.010(a) [ASC] and 171.0031(a)(1) [admitting privileges], create an
impermissible obstacle as applied to all women seeking a previability abortion.”
5 It is not clear whether “previously available legal facilities” refers to abortion clinics thatexisted immediately before the district court’s ruling, or immediately before the admit-ting-privileges law took effect, or at any time before the district court’s ruling.
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transactions.” Petro-Hunt , 365 F.3d at 395-96. The plaintiffs’ decision to lie
behind the log and spring these claims in a second lawsuit against HB2 is an
unreasonable and vexatious multiplication of judicial proceedings, and the
doctrine of res judicata forbids these serial-litigation tactics.
Res judicata blocks any claims for which: (1) the parties are identical to or
in privity with the parties in a previous lawsuit; (2) the previous lawsuit has
concluded with a final judgment on the merits; (3) the final judgment was
rendered by a court of competent jurisdiction; and (4) the same claim or
cause of action was involved in both lawsuits. Id. at 395. The plaintiffs do not
contest the first three elements of the State’s res judicata defense.6 They de-
ny only that the claims in the first and second lawsuits arise from the same
“series of connected transactions.” Id. at 395-96.
A. The Plaintiffs’ Challenges To The Admitting-PrivilegesLaw Are Barred By Res Judicata
The district court held that the plaintiffs’ serial challenges to the admit-
ting-privileges law do not involve a “series of connected transactions” be-
cause the current lawsuit “relies on facts that occurred after judgment was
rendered in the previous lawsuit and that were not considered by either this
court or the appellate court.” See ROA.2241. The district court noted that
6 Doctors Lynn and Davis were not parties to the earlier proceeding, but they were inprivity with Whole Woman’s Health and Austin Women’s Health Center, which sued ontheir behalf. See Compl. ¶¶ 13-14, Planned Parenthood of Greater Tex. Surgical HealthServs. v. Abbott , No. 1:13-cv-862-LY (W.D. Tex., filed Sept. 27, 2013). And ReproductiveServices is in privity with Dr. Richter, who sued in the initial HB2 lawsuit. Id. ¶ 21.
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ment of the Act is allowed to take effect, WWH will stop providing abortions
[in] McAllen.”); id. ¶ 50. The plaintiffs could have used those uncontested
facts—if combined with proof that closure of the these clinics would impose
an “undue burden”—to seek as-applied relief that would keep those clinics
open until their practitioners secured admitting privileges. The district court
did not consider this as-applied relief because the plaintiffs never asked for
it.7
The rejection of the doctors’ applications does not create “new legal
conditions” because it does not expand the claims or relief that the plaintiffs
could have sought in the initial lawsuit. It would be different if the doctors
had admitting privileges during the first trial, and the hospitals pulled their
privileges after entry of judgment. But the plaintiffs do not deny that their as-
applied claims were ripe in the earlier lawsuit—all they had to do was ask for
an injunction limited to El Paso and McAllen. Instead, the plaintiffs made a
tactical decision to force the courts into an all-or-nothing choice. Res judicata
prohibits them from seeking as-applied relief now. See Nilsen v. City of Moss
7
Judge Higginson suggested that the denial of the physicians’ applications meant that“the availability of abortion services for women living near the McAllen and El Paso clin-ics has concretely changed,” but he did not explain how the availability had changed andit is impossible to see how it could have changed. See Whole Woman’s Health, 2014 WL4930907, at *16 n.1 (Higginson, J., concurring in part and dissenting in part). None of thephysicians at those clinics could perform abortions when the initial lawsuit was brought,and none could perform abortions after their applications were formally denied.
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Point , 701 F.2d 556, 560 (5th Cir. 1983) (“[O]ne who has a choice of more
than one remedy for a given wrong … may not assert them serially, in suc-
cessive actions, but must advance all at once on pain of bar.” (citation and
footnotes omitted)); In re Howe , 913 F.2d 1138, 1144 n.10 (5th Cir. 1990) (“A
party may not avoid … res judicata by asserting a new theory or a different
remedy.”).8
Finally, even if the plaintiffs’ factual allegations could overcome the
State’s res judicata defense at the Rule 12(b)(6) stage (and they can’t), mere
allegations are insufficient at the final-judgment stage. The district court
made no factual findings relevant to res judicata, and it did not even discuss
res judicata in its opinion. If the plaintiffs want to argue that post-judgment
factual developments create “new legal conditions,” then they must prove
those facts with record evidence and propose specific findings to the district
court. The plaintiffs and the district court appeared to believe that the ruling
on the State’s motion to dismiss (which relied solely on the plaintiffs’ un-
proven allegations ) was enough to carry the day at final judgment. The dis-
trict court needed to make factual findings and explain how those findings
allow the plaintiffs to surmount res judicata.
8 The alleged increase in self-abortions in McAllen is likewise insufficient to establish adifferent “nucleus” of operative facts. The plaintiffs presented no admissible evidence ofthis at trial, and the district court did not make any finding that self-abortion increasedafter the initial HB2 trial. And in all events, this allegation does nothing to address theState’s res judicata defense in El Paso.
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born), they are administered by the same state officials, and they are gov-
erned by the same legal standards (the “undue burden” and rational-basis
standards). And the plaintiffs’ legal claims against the State’s officials are the
same: They allege that Lakey and Robinson are violating the constitutional
rights of abortion patients and providers by reducing the availability of abor-
tion. That Lakey and Robinson are using different means to effectuate this
alleged constitutional violation does not allow the plaintiffs to bring piece-
meal challenges in successive lawsuits. If a plaintiff complains that his neigh-
bor is committing a nuisance by keeping pigs in his backyard, and that neigh-
bor commits an additional nuisance by breeding chickens in that same back-
yard, those nuisance claims must be litigated together—even if the claims
rely on different factual evidence. See generally Restatement (Second) of
Judgments § 24, illust. 5-6 (1982); see also Petro-Hunt , 365 F.3d at 396
(“What factual grouping constitutes a ‘transaction,’ and what groupings
constitute a ‘series,’ are to be determined pragmatically, giving weight to
such considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business under-
standing or usage.”) (footnote and citation omitted).9
9 See also Restatement (Second) of Judgments § 24 cmt. c (1982) (“That a number of dif-ferent legal theories casting liability on an actor may apply to a given episode does notcreate multiple transactions and hence multiple claims. This remains true although theseveral legal theories depend on different shadings of the facts, or would emphasize dif-ferent elements of the facts, or would call for different measures of liability or differentkinds of relief.”); Restatement (Second) of Judgments § 24 cmt. d (1982) (“When a de-
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The district court incorrectly claimed that the plaintiffs “could not have
known the extent of the enforcement nor the nature of
the regulations gov-
erning the ambulatory-surgical-center requirement until after judgment in
Planned Parenthood of Greater Texas .” ROA.2242. The statutory ASC re-
quirement is unambiguous: “On and after September 1, 2014, the minimum
standards for an abortion facility must be equivalent to the minimum stand-
ards adopted under Section 243.010 for ambulatory surgical centers.” Tex.
Health & Safety Code § 245.010(a). And the regulations for licensed ASCs
had been codified and published long before HB2 was enacted. 25 Tex. Ad-
min. Code §§ 135.1-.56. The plaintiffs knew exactly what would be required
under the statute; the post-HB2 regulations simply incorporated by refer-
ence these pre-existing ASC rules and applied them to licensed abortion clin-
ics. See id. § 139.40. Neither the district court nor the plaintiffs have argued
that the plaintiffs’ claims against the ASC requirement were unripe at the
time of the initial lawsuit. The plaintiffs could have challenged the ASC law
in the previous lawsuit; they chose not to do so.
Finally, the plaintiffs have provided no explanation (other than games-
manship) for their refusal to bring their ASC claims and as-applied claims
fendant is accused of successive but nearly simultaneous acts, or acts which though oc-curring over a period of time were substantially of the same sort and similarly motivated,fairness to the defendant as well as the public convenience may require that they be dealtwith in the same action. The events constitute but one transaction or a connected se-ries.”).
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Q. … And you would also agree with me, wouldn’t you, thatthere are at least some health care providers who believe requir-ing a clinic to be an ASC benefits the health and safety of awoman choosing to undergo an abortion? A. It’s my understanding that’s true, yes.
…
Q. You disagree with those health care providers? A. Yes.
See ROA.2941:22-2942:11. When health-care providers and medical experts
disagree over the health-and-safety benefits of a law—and the plaintiffs’ ex-
perts acknowledged the existence of disagreement within the medical com-
munity—the legislature is entitled to resolve that dispute. See Abbott II , 748
F.3d at 593-95; Gonzales , 550 U.S. at 163 (“The Court has given state and
federal legislatures wide discretion to pass legislation in areas where there is
medical and scientific uncertainty.”). Federal courts are not to serve as “the
country’s ex officio medical board with powers to approve or disapprove med-
ical and operative practices and standards throughout the United States.” Id.
at 164 (citation and internal quotation marks omitted).
Second, the plaintiffs acknowledged that abortions performed in ASCs
offer improved pain-management options to patients. Amy Hagstrom Miller
testified that abortions performed in Whole Woman’s Health’s ambulatory
surgical center offer “more robust pain management options” than those
performed in non-ASC abortion clinics. See ROA.3068:18-3069:2 (“We’re
also able to offer more robust pain management options in the ambulatory
surgical center setting.”).
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ering facial invalidation of a state statute, the court must preserve the valid
scope of the provision to the greatest extent possible.”).
The plaintiffs’ only response to Giberson is to say that 930,000 women
of reproductive age will live outside the 150-mile boundary. ROA.2355; see
also ROA.2152. This 930,000 number is misleadingly high because it in-
cludes women living areas such as Lubbock, Amarillo, and Midland/Odessa,
where the absence of an abortion clinic within 150 miles is not caused by
HB2. See ROA.3923-24. When Grossman’s number is stripped of these pop-
ulations, it amounts to little more than the total number of reproductive-age
women in the El Paso and Rio Grande Valley areas. ROA.3928.10 Thus, there
is no evidence that even a significant number—much less a large fraction—
of women outside those two regions face a substantial obstacle to a previabil-
ity abortion under HB2. Facial invalidation was particularly inappropriate
when there is no evidence of any burdens outside of two discrete regions, and
10 Giberson testified based on 2010 Census block-level data that the total number of re-productive-age Texas women living outside the 150-mile radius of an existing ASC clinicdue to the closure of clinics in McAllen and El Paso is 462,622. See ROA.3928. That isroughly half of Grossman’s 930,000 number. The other half consists almost entirely of (1)the relevant population of the Lubbock-Amarillo-Midland/Odessa areas (227,708), wherethe absence of providers is not caused by HB2; (2) smaller metropolitan areas (33,589);and (3) various far-flung rural areas of the state where the absence of a clinic is not related
to HB2 (111,573). ROA.3928. The remainder is 94,508. Excluding the Laredo area(56,379), which lies just outside the 150-mile range but has quick access to San Antoniovia Interstate 35, yields an even smaller remainder, nearly all of which is attributable tothe fact that Grossman’s starting point (930,000 outside 150 miles) is slightly higher thanGiberson’s (891,888 outside 150 miles). Thus, the plaintiffs’ “930,000” number consistsalmost entirely of the populations of El Paso, the Rio Grande Valley, and areas where noone has alleged that the absence of a clinic is caused by HB2.
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the alleged burdens in those two regions could be addressed by as-applied re-
lief. See Ala. State Fed’n of Labor, Local Union No. 103 v. McAdory , 325 U.S.
450, 465 (1945) (“When a statute is assailed as unconstitutional we are
bound to assume the existence of any state of facts which would sustain the
statute in whole or in part.”).
Following the plaintiffs’ lead, the district court eschewed any “large
fraction” analysis and relied on what it described as a “significant number”
of patients who will encounter greater driving distances. ROA.2689, 2691.
But a law cannot be facially invalidated unless the plaintiffs prove an undue
burden on a “large fraction” of the State’s abortion patients—not a large (or
“significant”) raw number. The plaintiffs and the district court gave up on
trying to prove a “large fraction” in the face of Giberson’s undisputed tes-
timony. That compelled a judgment for the State on the facial challenge.11
11 The district court inexplicably claimed to find more “indicia of reliability” in Gross-man’s numbers than Giberson’s. ROA.2689. The court made this finding despite theplaintiffs’ failure to seriously dispute Giberson’s calculations and despite the fact thatGrossman’s and Giberson’s numbers are not materially in conflict. Compare ROA.2355-56 (estimating that 930,000 “women of reproductive age in Texas” would live “morethan 150 miles from a clinic providing abortion in Texas”) with ROA.3928 (estimatingthat 891,888 Texas women aged 15-44 would live 150 miles from an abortion clinic). Gib-erson used census-block level analysis normally used for redistricting purposes to deter-
mine with precision the number of residents within 150 miles of the relevant clinic ad-dresses. ROA.3923. Grossman’s analysis employed county-wide calculations of affectedpopulations, which is far less precise than census-block calculations employed by Giber-son. ROA.2354, 2358. The numbers ended up being similar. The difference betweenGrossman’s number (930,000) and Giberson’s number (891,888) is 38,112, whichamounts to .72% of reproductive-age Texas women. Thus, substituting Grossman’s num-bers for Giberson’s adds less than 1% to the alleged fraction outside the 150-mile range.
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exempts every other previously licensed ASC in the State from those re-
quirements.12
At the same time, every building in Texas (including abortion clinics) that
seeks to be licensed as an ASC after June 18, 2009, must comply with the
post-2009 requirements. The State never exempts a building from its ASC
requirements simply because it was used for medical purposes before it
sought an ASC license. For the district court to assert that the State must ex-
empt pre-existing abortion clinics—when no such allowance is extended to
any other building seeking to become licensed as ASC—is untenable. And it
is surely wrong for the court to accuse the State of “disparate and arbitrary
treatment” when the State treats abortion clinics exactly the same as any
other building seeking licensure as an ASC. The “disparate and arbitrary
treatment” accusation is clearly erroneous and cannot support an unconsti-
tutional-purpose finding. Whole Woman’s Health, 2014 WL 4930907, at *7
(“[W]e agree with the State that ambulatory surgical centers providing abor-
tions are not treated differently from other ambulatory surgical centers.”).13
12 DSHS did not incorporate 25 Texas Administrative Code § 135.51(a) into the abortion-facility regulations because those regulations apply only to licensed abortion clinics thatmust now meet ASC standards. Abortion clinics licensed as ASCs are directly governedby the ASC rules in 25 Texas Administrative Code ch. 135 and fully subject to section135.51(a)(1)’s exemption.
13 And in any event, this alleged arbitrary treatment was a post-enactment decision of theDepartment of State Health Services, not the Texas Legislature. There is no basis onwhich to infer a pre-enactment Legislative motive from the post-enactment behavior of aregulatory agency that is not subject to the day-to-day oversight of the Legislature. See
Mazurek , 520 U.S. at 972 (demanding proof of legislative motive to sustain purpose chal-lenge to abortion statute).
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The district court also thought that the “dearth of credible evidence”
that abortions in ASCs have “better patient health outcomes” was evidence
of unconstitutional purpose. That line of argument was squarely rejected
Mazurek , which the district court did not cite:
Respondents claim … that the Montana law must have had aninvalid purpose because “all health evidence contradicts theclaim that there is any health basis” for the law. … Respondentscontend that “the only extant study comparing the complica-tion rates for first-trimester abortions performed by [physician-assistants] with those for first-trimester abortions performed byphysicians found no significant difference.” … But this line ofargument is squarely foreclosed by Casey itself. In the course ofupholding the physician-only requirement at issue in that case,we emphasized that “[o]ur cases reflect the fact that the Consti-tution gives the States broad latitude to decide that particularfunctions may be performed only by licensed professionals, evenif an objective assessment might suggest that those same tasks couldbe performed by others.” 505 U.S., at 885 (emphasis added).
520 U.S. at 973. So too here. A State may conclude that abortions should be
performed only in licensed ASCs, even if an “objective assessment might
suggest” that non-ASCs are also up to the task. The district court’s disa-
greement with the legislature’s policy judgment is not grounds for an uncon-
stitutional-purpose finding, any more than it was in Mazurek . Federal courts
are not to act “the country’s ex officio medical board with powers to approve
or disapprove medical and operative practices and standards throughout the
United States.” Gonzales , 550 U.S. at 164. And even if the district court were
correct to note the “dearth of credible evidence” on the medical benefits of
an ASC requirement, the legislature may still have believed in good faith that
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the ASC law would improve the standard of care. The plaintiffs bore the
burden of producing “the clearest proof” to the contrary, and they produced
no evidence on this score.14
Finally, HB2’s severability clause refutes any possible claim of unconsti-
tutional legislative purpose. The legislature specifically provided that HB2
would be enforced only in situations where the law would not impose an
“undue burden” on abortion patients:
All constitutionally valid applications of this Act shall be sev-ered from any applications that a court finds to be invalid, leav-ing the valid applications in force, because it is the legislature’sintent and priority that the valid applications be allowed tostand alone. … [T]he applications that do not present an undueburden shall be severed from the remaining provisions and shallremain in force, and shall be treated as if the legislature had en-acted a statute limited to the persons, group of persons, or cir-cumstances for which the statute’s application does not presentan undue burden.
HB2 § 10(b). The Texas legislature could not have had the “purpose” of
imposing an undue burden when the statute specifically requires the sever-
ance and non-enforcement of any applications that would result in an undue
burden.
14 The arguments from the State’s lawyers concerning the availability of abortions in New
Mexico have nothing to do with the legislature’s purpose in enacting HB2. See ROA.2696-97. The State’s lawyers must defend the law and present all reasonable arguments againstthe plaintiffs’ “undue burden” claims. It is not tenable for the district court to use an ar-gument in the State’s brief—written more than a year after HB2 was enacted—as evi-dence of the legislature’s “true purpose” in enacting HB2.
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The district court’s invalidation of the ASC standards should be re-
versed for an additional reason: the district court refused to enforce the sev-
erability requirements of 25 Texas Administrative Code § 139.9. The State’s
ASC regulations impose hundreds of different requirements, each of which
is severable from the others:
Consistent with the intent of the Legislature, the department in-tends, that with respect to the application of this chapter to eachwoman who seeks or obtains services from a facility licensed
under this chapter, every provision, section, subsection, sen-tence, clause, phrase, or word in this chapter and each applica-tion of the provisions of this chapter remain severable …
25 Tex. Admin. Code § 139.9(b). Yet the district court (and the plaintiffs)
refused to acknowledge this severability requirement, and insisted on treat-
ing the State’s ASC rules as a non-severable package that stands or falls to-
gether. This was error. Federal courts must enforce severability clauses instate abortion provisions. See Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996)
(per curiam) (“Severability is of course a matter of state law.”); Abbott II ,
748 F.3d at 589 (“Federal courts are bound to apply state law severability
provisions.”) (citation omitted). Section 139.9 required the court to limit its
relief to the specific ASC requirements that would cause abortion clinics to
close and impose an “undue burden” on abortion patients.
It was indefensible for the district court to enjoin the State from enforc-
ing all of its ambulatory-surgical-center rules. The plaintiffs complained
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to the ASC rules on the ground that they failed to carry their burden of
proof.
IV. The District Court Erred By Enjoining
The ASC Requirements As Applied ToMedication Abortions
The district court also enjoined the ASC standards as applied to medica-
tion abortions. Its entire rationale consists of this conclusory sentence:
“[A]ny medical justification for the requirement is at its absolute weakest in
comparison with the heavy burden it imposes.” ROA.2698. That is not a ba-
sis on which a court may enjoin a state abortion law.
The “undue burden” test does not permit courts to balance the “bur-
den[s]” of a law against its “medical justification.” Under this Court’s prec-
edents, the strength of the State’s interests is relevant only to whether the
ASC law survives rational-basis review. See Abbott II , 748 F.3d at 594-95.
The district court found that the law is rationally related to patient safety(even as applied to medication abortion). ROA.2246-47. The State is not re-
quired to show that, in addition to satisfying rational-basis review, its abor-
tion regulations “further[] a valid state interest,” Opp. To Emergency Mot.
to Stay Final J. Pending Appeal, at 15, Whole Woman’s Health, No 14-50928;
its law needs only to have a rational basis and avoid creating “undue” bur-
dens. Abbott II , 748 F.3d at 590. If the law has a rational basis, then the law
may impose obstacles and burdens—so long as the obstacles do not rise to
the level of “substantial” and the burdens do not rise to the level of “un-
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The Closure Of The McAllen Clinic Will Not ImposeAn “Undue Burden”
The McAllen clinic ceased offering abortions on November 1, 2013.
ROA.2468. During the nine months between November 1, 2013, and the
start of trial on August 4, 2014, patients in the Rio Grande Valley had to seek
abortions elsewhere. Yet the plaintiffs did not produce any evidence that any
patient in the Rio Grande Valley was unable to obtain an abortion during that
nine-month window—or that any patient encountered “substantial obsta-
cles” in doing so. Amy Hagstrom Miller provided vague, hearsay anecdotes
about patients who declined referrals to Whole Woman’s Health’s San An-
tonio clinic. See ROA.2471. But Hagstrom Miller does not know (and did not
testify) whether these unnamed patients obtained abortions in Corpus Chris-
ti or Houston or elsewhere, nor does she have any knowledge of whether
they encountered substantial obstacles in those efforts.
What’s more, the plaintiffs acknowledged that patients from the RioGrande Valley successfully obtained abortions in Corpus Christi, San Anto-
nio, and Houston between November 2013 and April 2014. See ROA.2352.
The plaintiffs and their experts—who had every incentive to uncover a sin-
gle patient who was unable to obtain an abortion on account of HB2—were
unable to identify any patient who experienced a “substantial obstacle” due
to the closure of the McAllen clinic.15 And no abortion patient from the Rio
15 Grossman testified that he interviewed 20 women who were turned away from clinicsunable to perform abortions on account of HB2. 18 of those 20 successfully obtained abor-tions at other clinics. Grossman testified that “there were two women who did not obtainthe abortion,” and he “believe[d]” that one was from the Rio Grande Valley. But he did
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Grande Valley testified that the closure of the McAllen clinic presented any
hardships in the nine-month period between November 1, 2013, and August
4, 2014.
The motions panel correctly relied on Casey to conclude that a 250-mile
trip from the Rio Grande Valley to San Antonio is not an “undue burden.”
See Whole Woman’s Health, 2014 WL 4930907, at *13 (“Considering that
Casey upheld travel times of six hours (increases of three hours) and that
women in the Rio Grande Valley traveling to San Antonio have less total
travel time than women affected by the Pennsylvania law in Casey, the State
has a strong likelihood of success on its appeal of the injunctions of both re-
quirements as applied to the McAllen clinic.”). The plaintiffs try to get
around Casey by claiming that patients in the Rio Grande Valley face “eco-
nomic disadvantage,” but there was no evidence that any patient in the Rio
Grande encountered a “substantial obstacle” in seeking abortions in other
cities while the McAllen clinic was closed. Nor have the plaintiffs proven
that patients in the Rio Grande Valley (or El Paso) are unable to obtain fi-
nancial assistance from outside sources.16 Vague allusions to “economic dis-
not say whether those two women were unable to obtain an abortion or simply changedtheir minds and decided not to obtain one. ROA.2845:23-2847:3.
16 Many entities provide resources to abortion patients of limited means, including theLilith Fund (http://www.lilithfund.org/), the National Network of Abortion Funds(http://www.fundabortionnow.org/), the Third Wave Foundation(http://thirdwavefund.org/index.html), and Planned Parenthood(http://www.plannedparenthood.org/planned-parenthood-greater-texas/newsroom/press-releases/building-our-future-fund). The plaintiffs want this Court to assume thatthere are no resources available for indigent patients. But they produced no evidence to
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advantage” are not sufficient to distinguish Casey—especially when the
plaintiffs have no evidence that the nine-month closure of the McAllen clinic
imposed “substantial obstacles” in the path of a single abortion patient.
Finally, the plaintiffs did not prove that no new HB2-compliant abortion
providers will emerge in the Rio Grande Valley (or El Paso). Planned
Parenthood, the State’s leading abortion provider, is not a party to this law-
suit, and the plaintiffs failed to produce any evidence that Planned
Parenthood (or any other provider) will open a new ASC clinic in the Rio
Grande Valley or in El Paso. The courts are not privy to Planned
Parenthood’s future projects, and the plaintiffs did not subpoena Planned
Parenthood’s officials to come into court and testify that they would not
open an ASC clinic in McAllen or El Paso.
C. The Closure Of The El Paso Clinic Will Not Impose An“Undue Burden”
The plaintiffs have likewise failed to prove that the closure of Reproduc-
tive Services will unduly burden abortion patients in El Paso. It is undisputed
that abortion patients in El Paso will have a choice after HB2 takes full effect:
either travel to San Antonio (or another city hundreds of miles away) or
travel to Santa Teresa, New Mexico—to a clinic less than one mile from the
Texas–New Mexico border and only 12 miles from Reproductive Services in
support that assumption, and the plaintiffs bear the burden of proving that third-party re-sources are unavailable to patients in the Rio Grande Valley.
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El Paso. Theard Dep. Excerpts 72:8-74:2, 74:5-13, 79:10-16. This choice does
not “unduly burden” El Paso abortion patients.
The plaintiffs believe that Jackson forbids this Court to consider the
availability of abortions in Santa Teresa. But Jackson made clear that its hold-
ing was limited to the facts of that case, including the fact that Mississippi’s
law would close the only remaining abortion clinic in the State. At the end of
its opinion, the Court explained:
Nothing in this opinion should be read to hold that any law orregulation that has the effect of closing all abortion clinics in astate would inevitably fail the undue burden analysis. . . . Here,we hold only that JWHO has demonstrated a substantial likeli-hood of proving that H.B. 1390, on this record and as applied tothe plaintiffs in this case, imposes an undue burden on a wom-an’s right to choose an abortion. In reaching this determination,we look to the entire record and factual context in which the law oper-ates , including, but not limited to, the statutory provision inquestion, the Clinic’s status as the sole abortion clinic in Mississip-
pi , the ability of the Clinic to comply with H.B. 1390, Dr. Par-
ker’s and Dr. Doe’s efforts to obtain admitting privileges, thereasons cited by the hospitals for denying admitting privileges toDr. Parker and Dr. Doe, the absence of a Mississippi law pro-hibiting hospitals from discriminating against physicians whoperform abortions when granting admitting privileges, and thenature and process of the admitting-privileges determination.
Jackson Women’s Health Org., 760 F.3d at 458 (emphasis added). If HB2
would close every abortion clinic in Texas, then Jackson would preclude
Texas from relying on the availability of abortions in Santa Teresa. A State
cannot shut down every in-state abortion clinic and force all of its residents
to obtain abortions out-of-state. But when a State’s regulations allow abor-
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longer face an “undue burden” from the closure of the El Paso or McAllen
clinic if an HB2-compliant clinic becomes available in those locations. Even
if the Court believes that closure of those clinics imposes an “undue bur-
den,” it should modify the district court’s judgment so that its injunction
expires once an HB2-compliant abortion provider emerges in the relevant
area. The plaintiffs are not entitled to an injunction authorizing them to dis-
regard HB2 forever.
VI. The Supreme Court’s Order Vacating The
Stay Does Not Undermine The Reasoning
Of The Motion Panel’s Opinion
The plaintiffs may try to characterize the Supreme Court’s order as evi-
dence that the justices rejected the motion panel’s application of the “undue
burden” test—or even that they thought the motion panel was “demonstra-
bly wrong” in its analysis. See Coleman v. Paccar, Inc., 424 U.S. 1301, 1304
(1976) (Rehnquist, J., in chambers). Any such suggestion would be baseless.First, four of the justices have shown that they are willing to vacate stays
in abortion cases regardless of whether the court of appeals was “demon-
strably wrong in its application of accepted standards.” In Planned
Parenthood of Greater Texas Surgical Health Services. v. Abbott , Justices Gins-
burg, Breyer, Sotomayor, and Kagan argued that the stay issued by this
Court should be vacated even though they conceded that “the underlying le-
gal question—whether the new Texas statute is constitutional—is a difficult
question.” 134 S. Ct. 506, 509 (2013) (Breyer, J., dissenting). Indeed, their
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Counsel also certifies that on November 3, 2014, this brief was transmit-ted to Mr. Lyle W. Cayce, Clerk of the United States Court of Appeals forthe Fifth Circuit, via the court’s CM/ECF document filing system,
https://ecf.ca5.uscourts.gov/.Counsel further certifies that: (1) required privacy redactions have beenmade, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy ofthe paper document, 5th Cir. R. 25.2.1; and (3) the document has beenscanned with the most recent version of Symantec Endpoint Protection andis free of viruses.
/s/ Jonathan F. Mitchell
Jonathan F. Mitchell Counsel for Appellants
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With Type-Volume Limitation, Typeface Requirements,and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B) because:
[ X ] this brief contains 13,960 words, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
[ ] this brief uses a monospaced typeface and contains [state thenumber of] lines of text, excluding the parts of the brief exempted by Fed. R.App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
[ X ] this brief has been prepared in a proportionally spaced typefaceusing Microsoft Word for Mac, version 12 in Equity Text B 14-point typeface, or
[ ] this brief has been prepared in a monospaced typeface using
[state name and version of word processing program] with [state number ofcharacters per inch and name of type style].
/s/ Jonathan F. Mitchell Jonathan F. Mitchell
Counsel for Appellants
Dated: November 3, 2014
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