IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-20037
_______________________________
WOMEN’S MEDICAL CENTER OF NORTHWEST HOUSTON; ROBERT P. KAMINSKY,
M.D., on behalf of themselves and the patients they serve; DENTON
HEALTH SERVICES FOR WOMEN; AUSTIN WOMEN’S HEALTH CENTER, P.A.;
LAMAR ROBINSON, M.D.; FRED W. HANSEN, M.D.; L. TAD DAVIS, M.D.;
MARY E. SMITH, M.D.,
Plaintiffs-Appellees,
v.
DR. CHARLES E. BELL, Acting Texas Commissioner of Health; JOHN
CORNYN, Texas Attorney General,
Defendants-Appellants.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________
April 13, 2001
Before WIENER and STEWART, Circuit Judges, and SMITH,* District
Judge.
WIENER, Circuit Judge:
Plaintiffs-Appellees (“the plaintiffs”) filed suit to
challenge recent amendments to Texas law that for the first time
require them to license their medical offices as abortion
facilities. The district court entered a preliminary injunction
against enforcement of the amendments, concluding that they violate
*
District Judge of the Western District of Texas, sitting
by designation.
the plaintiffs’ equal protection rights. The court’s injunction
also prohibits enforcement of three companion regulations that were
found to be unconstitutionally vague. We reverse the district
court’s injunction of enforcement of the amendments grounded in
equal protection, but affirm the court’s injunction prohibiting
enforcement of the regulations grounded in unconstitutional
vagueness.
I.
FACTS AND PROCEEDINGS
The plaintiffs are Texas physicians who brought this action on
behalf of themselves and their patients pursuant to 42 U.S.C.
§ 1983. They challenge the constitutionality of 1999 amendments
that require them to comply with the Texas Abortion Facility
Reporting and Licensing Act, which dates to 1985.1 The amendments
changed the threshold for facilities that must be licensed from
those “used primarily for the purpose of performing abortions” ——
that is, where at least 51 percent of patients treated in a
calendar year receive abortions —— to those in which more than 300
abortions are performed in any twelve-month period. Facilities in
which fewer abortions are performed remain exempt from the
licensing requirements.
The record in this case reveals that as of 1999, Texas had
between 51 and 59 non-hospital abortion providers, comprising: (a)
1
Texas Abortion Facility Reporting and Licensing Act, Tex.
Health & Safety Code §§ 245.001-245.022.
2
31 licensed abortion facilities; (b) a single-digit “handful” of
physicians providing fewer than ten abortions per year in their
offices; (c) seven physicians performing more than ten but fewer
than 300 abortions per year in their offices; and (d) twelve
physicians, or some 20 percent of the total, who for the first time
would be required to be licensed as a result of the amendments
because each provides more than 300 abortions per year (the new
threshold) in their offices, even though in each of these offices
abortion patients constitute less than 51 percent of all patients
treated (the old threshold). Four of these twelve physicians are
the plaintiffs in this case.2
To summarize briefly several of the principal requirements of
the amended Abortion Facility Reporting and Licensing Act and its
regulations, a licensed abortion facility must:
• Prominently post its license and provide each woman who
initially consults the facility with a written statement about a
toll-free telephone number maintained by the Texas Department of
Health, which patients can call for information about a facility’s
license status, inspection violations, and penalties or other
discipline imposed against it.
• Maintain a written Quality Assurance program, implemented by
a Quality Assurance committee of at least four members, including
2
A fifth doctor, Mary E. Smith of Denton, also was a
plaintiff, but ceased providing abortions at her private office
while this appeal was pending and has been dismissed as a party
to the case.
3
a physician and a nurse, who must meet at least quarterly.3
• Develop a written staff orientation and training program and
written infection control policies and procedures.4
• Be subject to annual and surprise on-site surveys by state
inspectors.
• Employ staff with specific qualifications, including a
physician and a registered nurse or licensed vocational nurse.
In addition, a physician applying for a license must provide
personal information, including his home address, Social Security
number, date of birth, driver’s license number, and Texas physician
license number. The initial licensing fee is $1,000, the first
annual fee is $1,500, and the annual renewal fee is $2,500. Under
the 1999 amendments, operation of an abortion facility without a
license is a Class A misdemeanor, punishable by a jail sentence of
up to one year and a fine of up to $4,000, or both. Civil and
administrative penalties of $100 to $2,500 per day also may be
assessed for violations of the statute and regulations.
The practices of the plaintiff physicians vary, but as a group
they administer their offices less formally than the regulations
require. They insist that many of the administrative mandates in
the 1999 amendments are unnecessary to their practices. Some
3
The regulations were revised in 1997, adding the
provisions on quality assurance and patients’ rights, among other
changes. See 25 Tex. Admin. Code. §§ 139.1-139.60.
4
Facilities must maintain a total of nine administrative,
nine clinical, and three additional written policies, covering at
least thirty different subjects. 25 Tex. Admin. Code § 139.41.
4
plaintiffs testified that they will have to charge their abortion
patients as much as $100 more per procedure to cover the expenses
associated with meeting the licensing requirements. The plaintiffs
testified that they believe their private-office setting offers
patients greater confidentiality, fewer confrontations with
protesters, and a more personalized, supportive atmosphere than do
abortion clinic settings. Some also objected to the rule that they
must prominently display their abortion facility licenses at their
offices, fearing that will offend some obstetrical and male
patients and thereby damage their practices.
The only plaintiff who testified that he will stop performing
abortions in his private office altogether rather than seek a
license is Dr. Fred Hansen, an obstetrician/gynecologist with a
private gynecology practice in Austin who performs approximately
950 to 1,050 abortions per year. Abortion is one of many
gynecological procedures Dr. Hansen provides to his patients.
Nearly all of his abortion patients are referred to him by other
physicians, many for medically indicated abortions resulting from
profound fetal defects discovered in wanted pregnancies after the
fifteenth week. Dr. Hansen testified that he is the only physician
in Austin who provides abortions in a private office after the
fifteenth week of pregnancy. His staff consists of one part-time
and three full-time employees. Dr. Hansen expressed the belief
that if he were to seek licensing and comply with the continuing
requirements of licensing, patient care would suffer as a result of
5
his and his staff’s spending additional time on unnecessary
administrative tasks.
Evidence heard by the district court regarding the
Legislature’s purpose in enacting the 1999 amendments reflects that
state Sen. Chris Harris filed a Senate bill that would have
required all physicians performing more than 10 abortions per year
to become licensed. Sen. Harris stated that he was motivated by
ongoing concerns about abortion safety, and by data that he
interpreted as showing that some physicians were performing large
numbers of abortions but escaping the licensing act through the 51
percent “loophole.”5 Sen. Harris stated that he did not want to
limit abortion rights, but did want to protect the health and
safety of women receiving abortions.
Among those testifying in opposition to the bill was Peggy
Romberg, executive director of the Texas Family Planning
Association, who stated that she opposed the bill’s 10-abortion
trigger. In response to questioning by Sen. Harris, she stated
that “my bottom ceiling would be about 300, of OB/GYN that provides
abortion services that would be essentially about one a working
day.” Ms. Romberg told Sen. Harris that the number 300 would be
“more acceptable” to the abortion rights community than setting the
threshold at ten, and later said she suggested the number 300 as a
5
Any physician who executed an affidavit attesting that
the number of patients for whom he performed abortions
represented less than 51 percent of his patients during the
previous calendar year was exempt from the licensing
requirements.
6
“political compromise” with no medical, health, or safety basis.
Sen. Harris’s bill did not pass, but similar language
regulating physicians who perform 300 or more abortions per year
was added by Rep. Leticia Van de Putte to a lengthy House bill
dealing with general health department matters. That bill was
adopted by both chambers and took effect September 1, 1999.
Previously exempt physicians were not required to be licensed until
Jan. 1, 2000. Rep. Van de Putte, who characterizes herself as
“adamantly pro-choice,” testified that she discussed the number 300
with pro-choice advocates and heard no objections.6 She sought “a
number that would not preclude access for women in this state to
seek that procedure, but keeping in mind that we wanted to have as
our goal [the] health and safety of the women.” Rep. Van de Putte
also testified that she was influenced in supporting the bill by
twenty years of experience as a practicing pharmacist, during which
she counseled and dispensed medication to abortion patients.7
6
There is no official legislative history on the House
bill. The district court denied the plaintiffs’ motion to strike
the testimony of Sen. Harris and Rep. Van de Putte as
inadmissible subsequent legislative history. The court noted
that, in determining the legislative purpose in passing the
statute, it would rely primarily on the official legislative
history in the record and give lesser weight to the legislators’
testimony. The official legislative history includes a
transcript of a Senate Human Services Committee meeting in which
the 1999 amendments to the Abortion Facility Reporting and
Licensing Act were introduced as a Senate bill, and materials
documenting the 1997-98 ad hoc committee process that promulgated
the abortion licensing regulations found in 25 Tex. Admin. Code.
§§ 139.1-139.60.
7
Rep. Van de Putte testified as follows about her view on
setting the licensing threshold at 300 abortions per year:
7
Following a two-day hearing, the district court granted the
plaintiffs’ motion for preliminary injunction barring the
defendants from enforcing the 1999 amendments or the three
challenged regulations pending a full review of the case on the
merits. The court found that the plaintiffs had shown a
substantial likelihood of success with respect to their claims that
the amendments violate their equal protection rights and are
unconstitutionally vague, but not on the claim that the amendments
violate the due process rights of the plaintiffs’ patients.
More specifically, the court found that, under Planned
Parenthood of Southeastern Pennsylvania v. Casey,8 the plaintiffs
had not shown a substantial likelihood of success on the merits of
their claim that the 1999 amendments impose an undue burden on a
woman’s right to abortion. The court concluded that the 1999
amendments were not passed for an improper purpose, and that there
was no evidence of any legislative intent to place obstacles in the
paths of women seeking abortions. The court also found that the
I rationalized that if a physician did one a day for
the number of working days, if you take 52 weeks out of
the year, and you know, you get five working days, that
would leave us with about 260 working days a year.
Take off maybe about ten for holidays, that would leave
you at 250. So averaging out even one a day would
leave you with 250. And I felt that with an adequate
buffer zone of an additional 50, would leave us with
300 so that a physician in their office, I felt, could
comply with that number of procedures being done and
giving adequate care to those women who seek that
procedure.
8
505 U.S. 833 (1992).
8
benefits sought by the state in enacting the amendments justified
the increased costs that might be borne by physicians or patients,
or by Dr. Hansen’s likely decision to stop performing abortions in
his office rather than become licensed. The court concluded that
the amendments do not have the purpose or effect of creating an
undue burden on the right of Texas women to seek an abortion, and
therefore do not unconstitutionally deny them due process. The
court thus denied an injunction grounded in substantive due process
because the plaintiffs had failed to show, on behalf of their
patients, a substantial likelihood of success on their Fourteenth
Amendment due process claim.
The court reached the opposite conclusion on the plaintiffs’
equal protection claim. The court applied rational basis review to
the physicians’ assertion that they had been denied equal
protection of the law.9 These plaintiffs challenged two
legislative classifications: (1) physicians who perform abortions
in their offices and those who perform other, comparable surgical
procedures in theirs, and (2) physicians who perform more than 300
abortions per year in their offices and those who perform 300 or
fewer per year in theirs.
As to the first classification, the court noted that Texas’s
abortion licensing regulatory scheme, which has been in place since
1985, is not being challenged in this case and must be presumed to
9
The court concluded that the doctors did not plead an
equal protection claim on behalf of their patients.
9
be constitutional.10 Recognizing that the Legislature reasonably
could conclude that women receiving abortions in “high-volume”
physician offices need more protection than patients undergoing
other surgical procedures in such offices, the court held that the
classification distinguishing physicians who perform abortions in
their offices from those who perform different but comparable
surgical procedures in theirs bears a rational relationship to a
legitimate state end.11
Turning to the second classification, which distinguishes
office practitioners who perform more than 300 abortions per year
from those who perform 300 or fewer per year, the court concluded
that indeed the plaintiffs had shown a substantial likelihood of
success on their equal protection claim. The court found that the
record demonstrates no rational connection between 300 abortions
and the risks associated with high-volume abortion clinics; neither
does it contain any evidence that the twelve physicians who would
be newly licensed under the 1999 amendments ever gave substandard
care to any abortion patient or had any problems with patient
infections. The court wrote that “the evidence amply supports the
proposition that the cutoff would have to be significantly higher
than 300 to be held rational.”
Considering testimony that abortion clinics might provide as
10
Citing Harris County, Tex. v. CarMax Auto Superstores
Inc., 177 F.3d 306, 321 (5th Cir. 1999).
11
Citing Romer v. Evans, 517 U.S. 620, 632 (1996).
10
many as 35 abortions each working day, wrote the court, one
abortion per day cannot be regarded rationally as a heavy workload,
so that “[t]his ‘one a day’ rationale cannot be reconciled with the
State’s argument that some physicians may be providing so many
abortions that they are unable to adequately take care of
patients.” Furthermore, noted the court, a physician in a general
gynecological practice who sees twenty patients and performs only
one abortion per day would devote just five percent of his practice
to abortion. The court held:
It cannot be rational to conclude that a physician
performing an average of one abortion a day as part of a
general gynecological practice is thereby subjecting his
patients to the “high volume” risks cited by the state.
The Court must conclude that “the facts on which the
classification is based could not reasonably be conceived
to be true by the decisionmaker.”12
Based on its determination that the legislative distinction between
physicians’ offices in which more than and fewer than 300 abortions
are performed each year bears no rational relationship to a
legitimate state end, the district court concluded that the
plaintiffs had shown a substantial likelihood that they would
succeed on the merits of their equal protection claim.
The court reached the same conclusion regarding the
plaintiffs’ claim that three provisions of the Texas abortion
licensing regulations are unconstitutionally vague.13 Those
12
Quoting Gregory v. Ashcroft, 501 U.S. 452, 473 (1991).
13
25 Tex. Admin. Code. §§ 139.1-139.60. The challenged
provisions were added to the abortion licensing regulations
during a 1997 revision that became effective Aug. 13, 1998. They
11
provisions, found in 25 Tex. Admin. Code, are: (1) § 139.51(1),
requiring a physician licensed as an abortion provider to “ensure
that all patients . . . are cared for in a manner and in an
environment that enhances each patient’s dignity and respect in
full recognition of her individuality”; (2) § 139.51(2), requiring
physicians to ensure that each patient will “receive care in a
manner that maintains and enhances her self-esteem and self-worth”;
and (3) § 139.2(43), which defines the standard of “quality” care
as “[t]he degree to which care meets or exceeds the expectations
set by the patient.”
The court credited testimony from a defense witness who helped
draft the provision that there is no objective way to measure
whether a physician has “enhanced” a patient’s dignity and self-
esteem, and also that, as abortion is almost always a negative
experience for the patient, it is unrealistic to hold physicians to
those requirements under threat of civil and criminal penalties.
In addition, the court found the definition of “quality” to be
vague because it is couched in terms of the “expectations set by
the patient,” meaning the required standard of care would differ
from patient to patient. The court found all three challenged
sections of the regulations unconstitutionally vague, and concluded
that the plaintiffs had established a substantial likelihood of
success on their vagueness challenges to the provisions of the
were challenged by plaintiffs because they would first become
applicable to them under the 1999 amendments to the licensing
statute.
12
regulations in question, infringing the plaintiffs’ rights to due
process.
Finally, the court found that the threat of irreparable injury
to the plaintiffs was substantial, that it outweighed any harm that
the defendants might experience from a preliminary injunction, and
that an injunction would not disserve the public interest. The
defendants timely appealed the district court’s interlocutory
ruling pursuant to 28 U.S.C. § 1292(a)(1).
II.
ANALYSIS
A. Standard of Review
A district court’s grant of a preliminary injunction is
reviewed for abuse of discretion.14 Each of the four elements
required to support a preliminary injunction, including substantial
likelihood of success on the merits, presents a mixed question of
fact and law. Findings of fact are reviewed only for clear error;
legal conclusions are subject to de novo review.15 Although the
ultimate decision whether to grant or deny a preliminary injunction
14
Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998);
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.
1997); Sunbeam Prods., Inc. v. West Bend Co., 123 F.3d 246, 250
(5th Cir. 1997).
15
Sugar Busters LLC v. Brennan, 177 F.3d 258, 265 (5th
Cir. 1999); Hoover v. Morales, 164 F.3d at 224. The four
elements of a preliminary injunction are (1) substantial
likelihood of success on the merits; (2) substantial threat that
plaintiff will suffer irreparable injury; (3) injury outweighs
any harm the injunction might cause the defendant; and (4)
injunction is in the public interest. Hoover, 164 F.3d at 224.
13
is reviewed only for abuse of discretion, a decision grounded in
erroneous legal principles is reviewed de novo.16 The standard of
review is no different for our consideration of the district
court’s determination that three regulations are unconstitutionally
vague.17
B. The 300-Abortion Threshold
The record contains no evidence of anti-abortion animus, and
no evidence that the 1999 amendments were passed in an attempt to
limit abortion access or for any other improper purpose.18
Therefore, the district court correctly chose to evaluate the 1999
amendments as health and safety regulations subject to rational
basis review.19 On de novo review, however, we disagree with the
district court’s conclusion that the plaintiffs are likely to
succeed on the merits of their equal protection claim.
All that is required to survive rational basis review is a
showing that the classification under examination conceivably could
be related to a legitimate governmental purpose. The court found
16
Hoover, 164 F.3d at 224.
17
Campbell v. St. Tammany’s Sch. Bd., 206 F.3d 482, 484
(5th Cir. 2000), reh’g denied, 231 F.3d 937 (5th Cir. 2000),
petition for cert. filed, 69 U.S.L.W. 3514 (U.S. Jan. 24, 2001)
(No. 00-1194); United States v. Monroe, 178 F.3d 304, 308 (5th
Cir. 1999), cert. denied, 528 U.S. 1010 (1999).
18
Plaintiffs-Appellees do not appeal the district court’s
finding that the 1999 amendments place no undue burden on Texas
women seeking an abortion.
19
See, e.g., Romer, 517 U.S. at 632-33; City of Cleburne,
Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985);
Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973).
14
—— correctly, we believe —— that the 1999 amendments have the
legitimate state purpose of protecting the health of Texas women.
The court’s inquiry, therefore, is properly limited to whether a
classification based on the number of abortions performed at a
facility rationally serves that general purpose. Here, the answer
clearly is “yes.” Because without violating the Constitution, the
State could have required all abortion providers to be licensed, it
rationally could set an annual 300-abortion “floor” as an
accommodation to private physicians who provide a number of
abortions that the government considers to be too few to require
licensing. Whether the court agrees with the accuracy of the line
of demarcation drawn by the Legislature to distinguish the
classification is of no great moment.20
Our holding today is consonant with the Fourth Circuit’s
recent decision in Greenville Women’s Clinic v. Bryant, a case
closely analogous to this one.21 Greenville concerns South
Carolina’s 1995 amendment of its abortion clinic licensing statute.
20
See Gregory v. Ashcroft, 501 U.S. 452, 473 (1991)
(noting that a law setting 70 as the retirement age for state
judges “is founded on a generalization. It is far from true that
all judges suffer significant deterioration in performance at age
70. It is probably not true that most do. It may not be true at
all. But a State does not violate the Equal Protection clause
merely because the classifications made by its laws are
imperfect.”) (internal quotation omitted); see also City of New
Orleans v. Dukes, 427 U.S. 297, 298 (1976) (upholding ordinance
banning all pushcart vendors from the Vieux Carre, but exempting
those who had operated for eight or more years).
21
222 F.3d 157 (4th Cir. 2000), cert. denied, 2001 WL
178202, 69 U.S.L.W. 3382 (U.S. Feb. 26, 2001) (No. 00-798).
15
That statute, which previously applied only to clinics in which
second-trimester abortions are performed, was expanded by this
amendment to cover every facility in which five or more first-
trimester abortions are performed in one month.22 The district
court issued a preliminary injunction and, after a bench trial,
held in part that the South Carolina amendment violated the equal
protection rights of the plaintiff physicians. The Fourth Circuit
reversed, writing:
When it is recognized that the State interest is in
regulating those facilities that are in the business of
providing abortions, drawing the line at those performing
five abortions per month is rational. While anyone could
say that it is just as rational to draw the line at ten
abortions per month or three abortions per month, this
type of line-drawing is typically a legislative function
and is presumed valid. Indeed, line-drawing of this type
is not only typical of legislation, it is necessary.23
The Greenville court gave examples of several types of legislation
that draw similar lines, including the application of the Americans
With Disabilities Act to companies with 15 or more employees but
not to those with 14 or fewer employees; and a state’s grant of
drivers’ licenses to persons age sixteen or older but not to those
under sixteen.24 The Fourth Circuit concluded:
In this case, South Carolina elected to regulate the
business of providing abortions and determined that five
per month would distinguish the abortion clinic from the
22
Id. at 159-60.
23
Id. at 174 (citing Mass. Bd. of Ret. v. Murgia, 427 U.S.
307, 314 (1976) (upholding mandatory police retirement age of
50)).
24
Id.
16
facility performing abortions incidental to another
medical practice. The selection of this number is
reasonably related to the State’s legitimate interest in
promoting and protecting the health of women visiting
abortion clinics, and therefore the actual placement of
the line is not a decision that the courts may
second-guess.25
In the instant case, the district court mistakenly focused on
whether the office of a physician who provides more than 300
abortions per year resembles the “high-volume” abortion clinics
previously subject to licensure.26 The appropriate question is not
confined to whether the limit meets the legislative purpose of
regulating high-volume, risky, or overburdened abortion facilities;
rather, the 1999 amendments are constitutional if they serve any
appropriate state goal. The amendments require Texas physicians
who perform abortions in their offices to comply with licensing
standards that cover issues such as staffing, infection control,
and inspection by state officials. Such issues do bear a rational
relationship to the legitimate state interest of protecting patient
health and welfare. Through its Legislature, the State acted
within its power in choosing to exempt physicians whom it deems to
perform such a limited number of abortions as posing a lesser
hazard to health. The determination made here by state officials
25
Id. at 175 (emphasis added).
26
The court wrote: “[I]t is not rational to assume that a
physician providing 300 abortions per year will expose his
patients to ‘high volume’ risks similar to those of a typical
abortion clinic. . . . This ‘one a day’ rationale cannot be
reconciled with the state’s argument that some physicians may be
providing so many abortions that they are unable to adequately
take care of patients.”
17
cannot be said to be “based on reasons totally unrelated to the
pursuit of [their] goal.”27
In Romer v. Evans, the Supreme Court held that the search for
the link between a classification and its objective “marks the
limits of our own authority. In the ordinary case, a law will be
sustained if it can be said to advance a legitimate government
interest, even if the law seems unwise or works to the disadvantage
of a particular group, or if the rationale for it seems tenuous.”28
The link that we identify today is the one between the
classification (doctors who annually perform a number of abortions
that lawmakers consider to be sufficiently high to justify
regulating) and the objective (protecting the safety of abortion
patients). In the absence of the heightened bar of a fundamental
right or suspect class, or any evidence of animus, the district
court exceeded its authority by reviewing the propriety of the cut-
off number selected by the Legislature. Deciding the optimal
number of abortions to trigger the licensing requirement is a
legislative function, and any redress for an improvidently chosen
number must come through the democratic process, not the courts.
The district court erroneously concluded as a matter of law that
the 1999 amendments are substantially likely to fail rationality
review, and thus abused its discretion by granting a preliminary
27
McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S.
802, 809 (1969).
28
Romer, 517 U.S. at 632.
18
injunction grounded in the subject numerical classification.
C. Vagueness
The Fourteenth Amendment’s guarantee of Due Process proscribes
laws so vague that persons “of common intelligence must necessarily
guess at [their] meaning and differ as to [their] application.”29
A law is unconstitutionally vague if it (1) fails to provide those
targeted by the statute a reasonable opportunity to know what
conduct is prohibited, or (2) is so indefinite that it allows
arbitrary and discriminatory enforcement.30 We have held that “[a]
state’s legislative enactment is void for vagueness under the due
process clause of the fourteenth amendment if it ‘is inherently
standardless, enforceable only on the exercise of an unlimited, and
hence arbitrary, discretion vested in the state.’”31
Again, the provisions of three regulations found in 25 Tex.
Admin. Code that the district court held to be unconstitutionally
vague are: (1) § 139.51(1), requiring a physician licensed as an
abortion provider to “ensure that all patients . . . are cared for
in a manner and in an environment that enhances each patient’s
dignity and respect in full recognition of her individuality”;
(2) § 139.51(2), requiring physicians to ensure that each patient
29
Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974) (quoting
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
30
Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972).
31
Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir.
1986) (quoting Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir.
1983)).
19
will “receive care in a manner that maintains and enhances her
self-esteem and self-worth”; and (3) § 139.2(43), which defines the
standard of “quality” care as “[t]he degree to which care meets or
exceeds the expectations set by the patient.” None of these
provisions carries a criminal penalty for its violation alone,
although operating an abortion facility without a license is a
Class A misdemeanor.32 The regulations do, however, carry
potentially significant civil and administrative penalties,
including fines and license revocation, which can be characterized
as quasi-criminal. A quasi-criminal statute must define its terms
“‘with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.’”33
We agree with the district court that each of these three
regulations is unconstitutionally vague on its face because it
impermissibly subjects physicians to sanctions based not on their
own objective behavior, but on the subjective viewpoints of others.
Each of these three provisions measures compliance by the
subjective expectations or requirements of an individual patient as
to the enhancement of her dignity or self-esteem. Even a state’s
witness who had helped draft the provisions conceded that there are
32
See 25 T.A.C. § 139.33(c); Tex. Health & Safety Code
§ 245.014.
33
United States v. Clinical Leasing Serv., Inc., 925 F.2d
120, 122 (5th Cir. 1991) (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)).
20
no objective criteria for assessing compliance with the
“enhancement” provisions, undermining the efficacy of the
administrative process from which licensees may seek clarification.
These provisions fail to “afford[ ] fair warning of what is
proscribed.”34
It is no solace that, as the defendants note, no abortion
facility has yet been subjected to civil or criminal penalties for
violating these regulatory provisions. Especially in the context
of abortion, a constitutionally protected right that has been a
traditional target of hostility, standardless laws and regulations
such as these open the door to potentially arbitrary and
discriminatory enforcement.35 We hold that these regulations cannot
be validly used in their intended applications, and that therefore
the plaintiffs have established a substantial likelihood of success
on their vagueness challenge to the subject provisions.36 We also
affirm the district court’s conclusion that the plaintiffs have
satisfied the other three preliminary injunction requirements as to
34
Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 503 (1982).
35
See Colautti v. Franklin, 439 U.S. 379, 391 (1979).
36
See Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480,
2498 (2000) (noting that “speculation about possible vagueness in
hypothetical situations not before the Court will not support a
facial attack on a statute when it is surely valid ‘in the vast
majority of its intended applications’”) (quoting United States
v. Raines, 362 U.S. 17, 23 (1960)).
21
these regulations.37
III.
CONCLUSION
We acknowledge the concern expressed by the physicians who are
the plaintiffs in this case, particularly Dr. Hansen, that their
abortion patients have the opportunity to obtain personal care in
a confidential setting, and without paying for unnecessary
administrative costs. Nevertheless, our role in evaluating the
plaintiffs’ substantial likelihood of success on their equal
protection claim is limited to reviewing whether the annual 300-
abortion threshold set by the state for subjecting abortion
facilities to licensing bears some rational relationship to the
state interest in protecting the health and welfare of Texas
abortion patients. We conclude that it does. Any scrutiny beyond
that is necessarily left to the Legislature, not the courts.
Consequently, we must vacate the preliminary injunction prohibiting
enforcement of the Texas abortion licensing statute, Tex. Health &
Safety Code §§ 245.001-245.023 as amended in 1999.
We agree with the district court, however, that the plaintiffs
have shown a substantial likelihood of success on their vagueness
challenge to three contested provisions of the licensing
regulations. We therefore affirm the preliminary injunction
granted by the district court with regard to those regulations,
37
We further note that the defendants do not challenge the
severability of the three enjoined provisions. See, e.g.,
Leavitt v. Jane L., 518 U.S. 137, 139 (1996).
22
ordering that Texas Commissioner of Health William R. Archer III
and Texas Attorney General John Cornyn, in their official
capacities, are enjoined from enforcing 25 Tex. Admin. Code
§§ 139.2(43), 139.51(1), and 139.51(2) pending a full trial on the
merits of this case.
AFFIRMED in part; REVERSED in part; and REMANDED to the district
court for continued proceedings consistent with this opinion.
23