## Facts

- Texas enacted H.B. 2 regulating abortion providers and methods, stating health-and-safety objectives.
- One provision required a physician performing or inducing an abortion to hold admitting privileges at a hospital within 30 miles of the clinic, with criminal penalties for noncompliance.
- Another provision required medication abortions to follow the FDA-authorized protocol for abortion-inducing drugs, limiting common off-label regimens.
- Abortion providers and physicians sued state officials for declaratory and injunctive relief, asserting the provisions imposed an unconstitutional undue burden on pre-viability abortion access.
- The district court held the admitting-privileges requirement facially unconstitutional and enjoined it, and also enjoined parts of the medication-abortion restrictions.
- The State appealed; the Fifth Circuit expedited the merits appeal after a stay allowed enforcement during appellate proceedings.

## Issues

1. Whether the admitting-privileges requirement imposes an undue burden on access to pre-viability abortion under the substantial-obstacle standard.
2. Whether the medication-abortion FDA-protocol requirement imposes an undue burden under the same standard.
3. Whether plaintiffs proved facial invalidity by showing that, in a large fraction of relevant cases, the provisions would operate as a substantial obstacle.

## Decision

- The Fifth Circuit reversed the district court’s judgment and upheld both challenged provisions against the facial constitutional challenge.
- The court held the admitting-privileges requirement was rationally related to legitimate state interests in maternal health and medical-professional standards and was not shown to impose a substantial obstacle in a large fraction of relevant cases.
- The court held the medication-abortion requirement did not impose an undue burden because limiting medication abortion, while leaving surgical abortion available, was not shown to create a substantial obstacle for a large fraction of affected women.
- The court recognized a narrow exception: the admitting-privileges requirement could not be enforced against physicians who timely applied for admitting privileges and were awaiting a hospital decision.

## Legal Principles

- A pre-viability abortion regulation is unconstitutional if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.
- A facial challenge requires proof that, in a large fraction of cases in which the law is relevant, the law will operate as a substantial obstacle.
- Increased cost, inconvenience, or travel distance does not alone establish an undue burden absent proof of a substantial obstacle for the relevant population.
- States may regulate abortion to further health and safety interests and may rely on credentialing and continuity-of-care rationales without accepting challengers’ preferred medical-policy judgments.

## Conclusion

The Fifth Circuit held that Texas’s admitting-privileges requirement and FDA-protocol medication-abortion requirement were facially constitutional under the undue-burden framework because plaintiffs did not show that, for a large fraction of affected women, the provisions would create a substantial obstacle to obtaining a pre-viability abortion, aside from a limited nonenforcement carveout for physicians with pending, timely admitting-privileges applications.


Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014)