whole woman health et al hellerstedt commissioner texas department state health services et argued march decided june state legitimate interest seeing abortion performed circumstances insure maximum safety patient roe wade statute furthering valid state interest effect placing substantial obstacle path woman choice considered permissible means serving legitimate ends planned parenthood southeastern casey plurality opinion nnecessary health regulations purpose effect presenting substantial obstacle woman seeking abortion impose undue burden right texas legislature enacted house bill contains two provisions challenged requirement provides physician performing inducing abortion must date service active admitting privileges hospital located miles abortion facility requirement requires abortion facility meet minimum standards ambulatory surgical centers texas law law took effect group texas abortion providers filed abbott case lost facial challenge constitutionality provision law went effect petitioners another group abortion providers including abbott plaintiffs filed suit claiming provisions violated fourteenth amendment interpreted casey sought injunctions preventing enforcement provision applied physicians one abortion facility mcallen one el paso prohibiting enforcement provision throughout texas based parties stipulations expert depositions expert trial testimony district made extensive findings including limited requirement began enforced number facilities providing abortions dropped half decrease geographical distribution means number women reproductive age living miles clinic doubled number living miles away increased number living miles away number living miles away number facilities drop seven eight provision took effect remaining facilities see significant increase patient traffic facilities remain five metropolitan areas passage abortion extremely safe procedure low rates complications virtually deaths also safer many common procedures subject level regulation cost compliance requirement likely exceed million million per clinic enjoined enforcement provisions holding requirement imposed undue burden right women texas seek previability abortions together requirement requirement imposed undue burden rio grande valley el paso west texas provisions together created impermissible obstacle applied women seeking previability abortion fifth circuit reversed significant part concluded res judicata barred district holding requirement unconstitutional statewide res judicata also barred challenge provision reasoning law constitutional purpose effect placing substantial obstacle path woman seeking abortion nonviable fetus reasonably related legitimate state interest found requirements rationally related compelling state interest protecting women health held petitioners constitutional claims barred res judicata pp res judicata neither bars petitioners challenges requirement prevents awarding facial relief fact several petitioners previously brought unsuccessful facial challenge abbott mean claim preclusion relevant aspect res judicata applies claim preclusion prohibits successive litigation claim new hampshire maine petitioners postenforcement challenge abbott plaintiffs facial preenforcement challenge present claim changed circumstances showing constitutional harm concrete may give rise new claim abbott rested upon facts evidence presented enforcement requirement began unclear clinics affected case rests upon later concrete factual developments occurred enforcement started significant number clinics closed res judicata also preclude facial relief addition requesting relief petitioners asked appropriate relief evidence arguments convinced district provision unconstitutionality across board federal rule civil procedure provides final judgment grant relief party entitled even party demanded relief pleadings held arguments evidence show statutory provision unconstitutional face injunction prohibiting enforcement proper citizens federal election pp claim preclusion also bar petitioners challenge requirement concluding petitioners raised claim abbott fifth circuit take account fact provision provision separate provisions two different independent regulatory requirements challenges distinct regulatory requirements ordinarily treated distinct claims moreover provision implementing regulations even promulgated time abbott filed relevant factual circumstances changed two suits pp requirements place substantial obstacle path women seeking previability abortion constitute undue burden abortion access thus violate constitution pp fifth circuit standard review may read imply district consider existence nonexistence medical benefits deciding undue burden question casey requires courts consider burdens law imposes abortion access together benefits laws confer see fifth circuit test also mistakenly equates judicial review applicable regulation constitutionally protected personal liberty less strict review applicable economic legislation requirement legislatures resolve questions medical uncertainty inconsistent case law placed considerable weight upon evidence argument presented judicial proceedings determining constitutionality laws regulating abortion procedures see explicit legislative findings must considered findings district applied correct legal standard considering evidence record including expert evidence weighing asserted benefits burdens pp record contains adequate legal factual support district conclusion requirement imposes undue burden woman right choose requirement purpose help ensure women easy access hospital complications arise abortion procedure district relying evidence showing extremely low rates serious complications passage found significant problem new law cure state record evidence contrast show new law advanced state legitimate interest protecting women health compared prior law required providers working arrangement doctors admitting privileges time record evidence indicates requirement places substantial obstacle woman path abortion dramatic drop number clinics means fewer doctors longer waiting times increased crowding also means significant increase distance women reproductive age live abortion clinic increased driving distances always constitute undue burden additional burden taken together others caused closings viewed light virtual absence health benefit help support district undue burden conclusion pp requirement also provides health benefits women poses substantial obstacle women seeking abortions constitutes undue burden constitutional right requirement enacted texas law required abortion facilities meet host health safety requirements policed inspections enforced administrative civil criminal penalties record evidence shows new provision imposes number additional requirements generally unnecessary abortion clinic context provides benefit complications arise context medical abortion generally occur patient left facility abortions taking place abortion facilities safer common procedures occur outside clinics subject texas requirements texas waived part requirement abortion clinics done nearly covered facilities evidence along absence contrary evidence supports district conclusions including ultimate legal conclusion requirement necessary time record provides adequate evidentiary support district conclusion requirement places substantial obstacle path women seeking abortion found strained credulity think seven eight abortion facilities able meet demand fifth circuit discounted expert witness grossman testimony requirement cause number abortions performed remaining clinic increase factor expert may testify form opinion long opinion rests upon sufficient facts data reliable principles methods fed rule evid grossman opinion rested upon participation together university researchers research tracking number facilities providing abortion services using information among things state health services department public sources district acted within legal authority finding testimony admissible common sense also suggests physical facility satisfies certain physical demand generally unable meet five times demand without expanding physically otherwise incurring significant costs texas presented evidence trial suggesting expansion possible finally district finding currently licensed abortion facility incur considerable costs meet requirements supports conclusion surgical centers soon fill gap left closed facilities pp texas three additional arguments unpersuasive pp reversed remanded breyer delivered opinion kennedy ginsburg sotomayor kagan joined ginsburg filed concurring opinion thomas filed dissenting opinion alito filed dissenting opinion roberts thomas joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press whole woman health et petitioners john hellerstedt commissioner texas department state health services et al writ certiorari appeals fifth circuit june justice breyer delivered opinion planned parenthood southeastern casey plurality concluded exists undue burden woman right decide abortion consequently provision law constitutionally invalid purpose effect provision place substantial obstacle path woman seeking abortion fetus attains viability emphasis added plurality added nnecessary health regulations purpose effect presenting substantial obstacle woman seeking abortion impose undue burden right ibid must decide whether two provisions texas house bill violate federal constitution interpreted casey first provision shall call requirement says physician performing inducing abortion must date abortion performed induced active admitting privileges hospital located miles location abortion performed induced tex health safety code ann west cum supp provision amended texas law previously required abortion facility maintain written protocol managing medical emergencies transfer patients requiring emergency care hospital tex reg second provision shall call requirement says minimum standards abortion facility must equivalent minimum standards adopted texas health safety code section ambulatory surgical centers tex health safety code ann conclude neither provisions offers medical benefits sufficient justify burdens upon access imposes places substantial obstacle path women seeking previability abortion constitutes undue burden abortion access casey supra plurality opinion violates federal constitution amdt july texas legislature enacted house bill act september new law took effect group texas abortion providers filed action federal district seeking facial invalidation law provision late october district granted injunction planned parenthood greater tex surgical health servs abbott supp wd tex three days later fifth circuit vacated injunction thereby permitting provision take effect planned parenthood greater tex surgical health servs abbott fifth circuit subsequently upheld provision set forth reasons opinion released late following march opinion fifth circuit pointed evidence introduced district previous october noted texas offered evidence designed show requirement reduce delay treatment decrease health risk abortion patients critical complications untrained incompetent abortion providers planned parenthood greater tex surgical health servs abbott abbott opinion also explained plaintiffs provided sufficient evidence abortion practitioners likely unable comply privileges requirement said major texas cities including austin corpus christi dallas el paso houston san antonio continue multiple clinics many physicians obtain hospital admitting privileges ibid abbott plaintiffs file petition certiorari april one week fifth circuit decision petitioners group abortion providers many plaintiffs previous lawsuit filed present lawsuit federal district sought injunction preventing enforcement provision applied physicians two abortion facilities one operated whole woman health mcallen operated nova health systems el paso also sought injunction prohibiting enforcement provision anywhere texas claimed provision provision violated constitution fourteenth amendment interpreted casey district subsequently received stipulations parties depositions parties experts conducted bench trial heard among testimony opinions expert witnesses sides basis stipulations depositions testimony reached following conclusions texas population million people approximately million women reproductive age living within geographical area nearly square miles whole woman health lakey supp see app recent years number abortions reported texas stayed fairly consistent approximately reported pregnancy rate total number approximately legal abortions performed annually supp see app prior enactment licensed abortion facilities texas number dropped almost half leading wake enforcement requirement went effect supp app provision allowed take effect number abortion facilities september reduced seven facilities potential eighth exist texas supp app abortion facilities remain houston austin san antonio worth metropolitan region supp app include one facility austin two dallas one fort worth two houston either one two san antonio supp app based historical data pertaining texas average number abortions assuming perfectly equal distribution among remaining seven eight providers result facility serving patients per year accounting seasonal variations pregnancy rates slightly unequal distribution patients clinic foreseeable women per month vying counseling appointments visits facilities supp cf app suggestion seven eight providers meet demand entire state stretches credulity supp see app november may enforcement requirement decrease geographical distribution abortion facilities meant number women reproductive age living miles clinic doubled million living miles increased million living miles increased living miles increased september requirement go effect number women reproductive age living significant distances abortion provider increase follows million women reproductive age live miles abortion provider million live miles abortion provider live miles abortion provider miles abortion provider supp app two requirements erect particularly high barrier poor rural disadvantaged women supp cf app great weight evidence demonstrates act passage abortion texas extremely safe particularly low rates serious complications virtually deaths occurring account procedure supp see app see also abortion regulated state enactment house bill shown much safer terms minor serious complications many common medical procedures subject intense regulation scrutiny supp see app describing risks colonoscopies discussing risks vasectomy endometrial biopsy among others discussing complication rate plastic surgery additionally risks appreciably lowered patients undergo abortions ambulatory surgical centers compared facilities supp app omen obtain better care experience frequent positive outcomes ambulatory surgical center compared previously licensed facility supp app licensed ambulatory surgical centers texas apparently either enjo benefit waiver requirements supp app cost coming compliance requirement existing clinics significant undisputedly approach ing million dollars likely exceed ing million dollars ome clinics unable comply due physical size limitations sites supp cost acquiring land constructing new compliant clinic likely exceed three million dollars ibid basis related findings district determined requirement imposes undue burden right women throughout texas seek previability abortion requirement conjunction requirement imposes undue burden right women rio grande valley el paso west texas seek previability abortion district concluded two provisions cause closing almost abortion clinics texas operating legally fall thereby create constitutionally impermissible obstacle applied women seeking previability abortion restricting access previously available legal facilities august enjoined enforcement two provisions ibid october texas request appeals stayed district injunction whole woman health lakey within next two weeks vacated appeals stay substantial part thereby leaving effect district injunction enforcement provision injunction enforcement requirement applied mcallen el paso clinics whole woman health lakey appeals heard texas appeal june appeals reversed district merits minor exceptions found provisions constitutional allowed take effect whole women health cole per curiam modified appeals decision rests upon alternative grounds considerations set forth basic reasoning detail appeals concluded district wrong hold requirement unconstitutional except clinics mcallen el paso providers asked principles res judicata barred relief providers brought constitutional challenge provision earlier lawsuit principles res judicata also barred claim event state law regulating previability abortion constitutional purpose effect placing substantial obstacle path woman seeking abortion nonviable fetus reasonably related designed legitimate state interest oth admitting privileges requirement requirement rationally related legitimate state interest namely rais ing standard quality care women seeking abortions protect ing health welfare women seeking abortions laintiffs failed proffer competent evidence contradicting legislature statement legitimate purpose district erred substituting judgment provisions effects legislature albeit name undue burden inquiry holding provisions unconstitutional face improper plaintiffs failed show either provisions imposes undue burden large fraction women district erred finding requirement takes effect abortion providers texas meet demand factual determination based upon finding one plaintiffs expert witnesses grossman abortion providers texas able go providing approximately abortions annually currently providing abortions done year texas clinics failing meet requirement forced close grossman opinion appeals view lacks actual evidence regarding current future capacity eight evidence record providers currently meet surgicalcenter requirement operating full capacity increase capacity ibid related reasons appeals reversed district holding requirement unconstitutional holding requirement unconstitutional appeals upheld part district specific holding requirements unconstitutional applied mcallen facility lynn doctor facility reversed district holding requirement unconstitutional applied facility el paso respect last claim appeals said women el paso wishing abortion use abortion providers nearby new mexico ii turning constitutional question must consider appeals procedural grounds holding challenge provisions applied mcallen el paso petitioners barred bringing constitutional challenges claim preclusion requirement appeals held facial challenge requirement several petitioners previously brought unsuccessful facial challenge requirement namely abbott see supra appeals thought principle res judicata applied appeals also held res judicata prevented district granting facial relief petitioners concluding improper facially invalidat admitting privileges requirement gran relief anyone requested briefed hold res judicata neither bars petitioners challenges requirement prevents us awarding facial relief one thing extent appeals concluded principle res judicata bars facial challenge requirement see misconstrued petitioners claims petitioners bring facial challenge requirement case instead challenged requirement applied clinics mcallen el paso question whether res judicata bars petitioners particular claims point appeals concluded res judicata bar see agree doctrine claim preclusion aspect res judicata prohibits successive litigation claim parties new hampshire maine petitioners postenforcement challenge claim preenforcement facial challenge restatement judgments notes development new material facts mean new case otherwise similar previous case present claim see restatement second judgments comment material operative facts occurring decision action respect subject matter may taken conjunction antecedent facts comprise transaction may made basis second action precluded first cf valid final personal judgment defendant rests prematurity action plaintiff failure satisfy precondition suit bar another action plaintiff instituted claim matured precondition satisfied comment discussing relationship rule comment courts appeals used similar rules determine contours new claim purposes preclusion see morgan covington es judicata bar claims predicated events postdate filing initial complaint ellis cca llc bank first millennium smith potter rawe liberty mut fire ins manning auburn restatement adds important human values lawfulness continuing personal disability restraint stake even slight change circumstances may afford sufficient basis concluding second action may brought comment see bucklew lombardi allowing challenge execution method proceed notwithstanding prior facial challenge find approach persuasive imagine group prisoners claim forced drink contaminated water prisoners file suit facility incarcerated first suit dismissed believe harm severe enough unconstitutional make sense prevent prisoners bringing later suit time experience eventually showed prisoners dying contaminated water circumstances give rise new claim prisoners treatment violates constitution factual developments may show constitutional harm seemed remote speculative afford relief time earlier suit fact indisputable view changed circumstances give rise new constitutional claim approach sensible consistent precedent see abie state bank bryan suit brought immediately upon enactment law decision sustaining law regarded precluding subsequent suit purpose testing validity lights later actual experience cf lawlor national screen service judgment precludes recovery claims arising prior entry nonetheless given effect extinguishing claims even exist carolene products constitutionality statute predicated upon existence particular state facts may challenged showing facts ceased exist nashville walters statute valid one set facts may invalid another statute valid enacted may become invalid change conditions applied omitted third nat bank louisville stone question held adjudged issue subject possibly arisen justice alito dissenting opinion simply wrong changed circumstances showing challenged law unconstitutional effect never give rise new claim see post hereinafter dissent changed circumstances kind claim presented abbott claim petitioners claim claims abbott present case involve important human values restatement second judgments comment concerned effect women seeking abortions post alito dissenting effect changed dramatically since petitioners filed first lawsuit abbott rested facts evidence presented district october declining consider arguments based developments since conclusion bench trial petitioners claim case rests significant part upon later concrete factual developments developments matter abbott plaintiffs brought facial challenge requirement prior enforcement many abortion clinics closed still unclear many clinics affected petitioners bring challenge requirement enforcement large number clinics fact closed postenforcement consequences unknowable went effect abbott recognized ater challenges always deal subsequent concrete constitutional issues appeals case properly decided new evidence presented petitioners given rise new claim petitioners challenges precluded see know certainty abortion facilities actually closed physicians unable obtain admitting privileges diligent effort individuals claim particular statute produce serious constitutionally relevant adverse consequences occurred courts doubt likely occurrence factual difference adverse consequences fact occurred make difference compare fifth circuit opinion earlier case abbott supra major texas cities continue multiple clinics many physicians obtain hospital admitting privileges facts found case supp two provisions leave texas seven eight clinics challenge brought case one abbott claim doctrine claim preclusion consequently bar new challenge constitutionality requirement new hampshire maine litigants abbott seek review dissent suggests done see post prevent seeking review new claims arisen abbott decided sum restatement cases courts appeals precedent simple logic combine convince us res judicata bar claim appeals also concluded award facial relief precluded principles res judicata concluded district granted relief anyone requested briefed addition asking relief petitioners asked relief may deem proper equitable app evidence arguments convinced district provision unconstitutional across board federal rules civil procedure state exception relevant final judgment grant relief party entitled even party demanded relief pleadings rule held arguments evidence show statutory provision unconstitutional face injunction prohibiting enforcement proper citizens federal election see ibid exercise judicial responsibility may necessary consider facial validity statute even though facial challenge brought cf fallon facial challenges standing harv rev nce case brought general categorical line bars making broader pronouncements invalidity properly cases nothing prevents awarding facial relief appropriate remedy petitioners claims claim preclusion requirement appeals also held claim preclusion barred petitioners contending requirement unconstitutional although recognized petitioners bring claim abbott believed done explained petitioners constitutional challenge requirement challenge requirement mounted abbott arise series connected transactions challenges involve parties abortion facilities challenges governed legal standards provisions issue enacted time part act provisions motivated common purpose provisions administered state officials challenges form convenient trial unit rely common nucleus operative facts reasons appeals held petitioners challenge requirement precluded appeals failed however take account meaningful differences provision provision separate distinct provisions set forth two different independent requirements different enforcement dates never suggested challenges two different statutory provisions serve two different functions must brought single suit lower courts normally treat challenges distinct regulatory requirements separate claims even part one overarching overnment regulatory scheme wright miller cooper federal practice procedure ed supp see hamilton bogarts michigan approach makes sense opposite approach adopted appeals require treating every statutory enactment single transaction given party able challenge one time one lawsuit order avoid effects claim preclusion rule encourage approach litigation challenging validity statutes outcome less optimal litigants courts good reasons petitioners bring challenge provision time brought first suit statute gave texas department state health services authority make rules implementing requirement app pet cert time petitioners filed abbott state agency yet issued rules cf epa brown per curiam wright supra ed courts undertake review rules adopted natural resources defense council epa cadc petitioners might well expected rules issued contain provisions grandfathering abortion facilities granting full partial waivers others three quarters surgical centers benefited kind provision see supp existing texas surgical centers grandfathered otherwise enjoy waiver requirements see also app finally relevant factual circumstances changed abbott present lawsuit previously described see supra dissent musters one counterargument according dissent statutory provisions impos kind burden kind right mutually reinforcing effects evident part transaction must challenged together post word evident dissent points support conclusion find unconvincing statutes often voluminous many related yet distinct provisions plaintiffs order preserve claims need challenge provision say usa patriot act bipartisan campaign reform act national labor relations act clean water act antiterrorism effective death penalty act patient protection affordable care act first lawsuit reasons hold petitioners bring challenge provision challenged provision abbott accordingly hold doctrine claim preclusion prevent bringing challenge none petitioners claims barred res judicata five experts civil procedure argued brief supporting petitioners request certiorari panel procedural ruling clearly incorrect reason decline review brief professor michael dorf et al amici curiae reasons described agree appeals procedural ruling incorrect consequently proceed consider merits petitioners claims iii undue burden legal standard begin standard described casey recognize state legitimate interest seeing abortion like medical procedure performed circumstances insure maximum safety patient roe wade added statute furthering valid state interest effect placing substantial obstacle path woman choice considered permissible means serving legitimate ends casey plurality opinion moreover nnecessary health regulations purpose effect presenting substantial obstacle woman seeking abortion impose undue burden right appeals wrote state law constitutional purpose effect placing substantial obstacle path woman seeking abortion nonviable fetus reasonably related designed legitimate state interest appeals went hold district erred substituting judgment legislature conducted undue burden inquiry part medical uncertainty underlying statute resolution legislatures courts citing gonzales carhart appeals articulation relevant standard incorrect first part appeals test may read imply district consider existence nonexistence medical benefits considering whether regulation abortion constitutes undue burden rule announced casey however requires courts consider burdens law imposes abortion access together benefits laws confer see opinion performing balancing respect spousal notification provision joint opinion kennedy souter jj balancing respect parental notification provision second part test wrong equate judicial review applicable regulation constitutionally protected personal liberty less strict review applicable example economic legislation issue see williamson lee optical appeals approach simply match standard laid casey asks courts consider whether burden imposed abortion access undue statement legislatures courts must resolve questions medical uncertainty also inconsistent case law instead determining constitutionality laws regulating abortion procedures placed considerable weight upon evidence argument presented judicial proceedings casey example relied heavily district factual findings submissions amici declaring portion law issue unconstitutional opinion discussing evidence related prevalence spousal abuse determining spousal notification provision erected undue burden abortion access gonzales pointing must review legislative factfinding deferential standard added must place dispositive weight findings gonzales went point retains independent constitutional duty review factual findings constitutional rights stake ibid emphasis added although upheld statute regulating abortion solely basis legislative findings explicitly set forth statute noting evidence presented district courts contradicts legislative findings circumstances said ncritical deference congress factual findings inappropriate ibid unlike gonzales relevant statute set forth legislative findings rather one left infer legislature sought constitutionally acceptable objective namely protecting women health district give significant weight evidence judicial record circumstances consistent case law shall describe district simply substitute judgment legislature considered evidence record including expert evidence presented stipulations depositions testimony weighed asserted benefits burdens hold district applied correct legal standard iv undue burden requirement turning lower courts evaluation evidence first consider requirement enactment doctors provided abortions required admitting privileges working arrangement physician admitting privileges local hospital order ensure necessary back medical complications tex admin code tit emphasis added new law changed requirement requiring physician performing inducing abortion must date abortion performed induced active admitting privileges hospital located miles location abortion performed induced tex health safety code ann district held legislative change imposed undue burden woman right abortion conclude adequate legal factual support district conclusion purpose requirement help ensure women easy access hospital complications arise abortion procedure brief respondents district found brought benefit found great weight evidence demonstrates act passage abortion texas extremely safe particularly low rates serious complications virtually deaths occurring account procedure supp thus significant problem new law helped cure evidence upon based conclusion included among things collection least five studies abortion complications first trimester showing highest rate major complications including complications requiring hospital admission less see app figures three studies showing highest complication rate found much rarer second trimester abortion less expert testimony effect complications rarely require hospital admission much less immediate transfer hospital outpatient clinic citing study complications occurring within six weeks abortions paid california medicaid program finding incidence complications incidence complications requiring hospital admission abortion patients included study required immediate transfer hospital day abortion expert testimony stating extremely unlikely patient experience serious complication clinic requires emergent hospitalization rare case one quality care patient receives affected whether abortion provider admitting privileges hospital expert testimony stating respect surgical abortion patients suffer complications requiring hospitalization complications occur days abortion spot see see also expert testimony stating delay onset complications also expected medical abortions abortifacient drugs take time exert effects thus abortion almost always occurs patient left abortion facility experts added patient needs hospital day week following abortion likely seek medical attention hospital nearest home see found nothing texas record evidence shows compared prior law required working arrangement doctor admitting privileges new law advanced texas legitimate interest protecting women health add directly asked oral argument whether texas knew single instance new requirement helped even one woman obtain better treatment texas admitted evidence record case see tr oral arg answer consistent findings federal district courts considered health benefits similar laws see planned parenthood van hollen supp wd aff sub nom planned parenthood schimel planned parenthood southeast strange supp md time record evidence indicates requirement places substantial obstacle path woman choice casey plurality opinion district found time requirement began enforced number facilities providing abortions dropped half supp eight abortion clinics closed months leading requirement effective date see app cf brief planned parenthood federation america et al amici curiae noting abortion facilities waco san angelo midland longer operate planned parenthood unable find local physicians communities privileges willing provide abortions due size communities hostility abortion providers face eleven closed day requirement took effect see app tr oral arg evidence helps explain new requirement led closure clinics read evidence light brief filed society hospital medicine brief describes undisputed general fact hospitals often condition admitting privileges reaching certain number admissions per year brief society hospital medicine et al amici curiae returning district record note direct testimony president nova health systems implicitly relying general fact pointed difficult doctors regularly performing abortions el paso clinic obtain admitting privileges nearby hospitals uring past years abortion procedures performed el paso clinic ot single one patients transferred hospital emergency treatment much less admitted hospital app word doctors unable maintain admitting privileges obtain privileges future fact abortions safe meant providers unlikely patients admit amicus briefs filed set forth without dispute common prerequisites obtaining admitting privileges nothing ability perform medical procedures see brief medical staff professionals amici curiae listing example requirements applicant treated high number patients hospital setting past year clinical data requirements residency requirements discretionary factors see also brief american college obstetricians gynecologists et al amici curiae acog brief ome academic hospitals allow medical staff membership clinicians also accept faculty appointments returning district record note lynn mcallen clinic veteran obstetrics gynecology doctor estimates delivered babies years practice unable get admitting privileges seven hospitals within miles clinic app refused admitting privileges nearby hospital reasons hospital wrote based clinical competence considerations emphasis deleted requirement serve relevant credentialing function view record contains sufficient evidence requirement led closure half texas clinics thereabouts closures meant fewer doctors longer waiting times increased crowding record evidence also supports finding provision went effect number women reproductive age living county miles provider increased approximately number women living county miles provider approximately supp recognize increased driving distances always constitute undue burden see casey joint opinion kennedy souter increases one additional burden taken together others closings brought viewed light virtual absence health benefit lead us conclude record adequately supports district undue burden conclusion cf opinion finding burden undue requirement places substantial obstacle woman choice large fraction cases relevant dissent argument clinic closures well ones discussed part infra may imposed undue burden although caused closure clinics post emphasis added clinics may closed reasons actually count burdens resulting closures post petitioners satisfied burden present evidence causation presenting direct testimony well plausible inferences drawn timing clinic closures app district credited evidence concluded fact led clinic closures supp dissent speculation perhaps evidence presented trial credited district might shown clinics closed unrelated reasons provide sufficient ground disturb district factual finding issue breath dissent suggests one benefit requirements might force unsafe facilities shut post support assertion dissent points kermit gosnell scandal gosnell physician pennsylvania convicted murder manslaughter staffed facility unlicensed indifferent workers let practice medicine unsupervised irty facilities unsanitary instruments absence functioning monitoring resuscitation equipment use cheap dangerous drugs illegal procedures inadequate emergency access things inevitably went wrong report grand jury jud dist online http last visited june gosnell behavior terribly wrong reason believe extra layer regulation affected behavior determined wrongdoers already ignoring existing statutes safety measures unlikely convinced adopt safe practices new overlay regulations regardless gosnell deplorable crimes escape detection facility went uninspected years texas law already contained numerous detailed regulations covering abortion facilities including requirement facilities inspected least annually see infra describing regulations record contains nothing suggest effective texas law deterring wrongdoers like gosnell criminal behavior undue burden requirement second challenged provision texas new law sets forth requirement prior enactment new requirement texas law required abortion facilities meet host health safety requirements laws facilities subject annual reporting recordkeeping requirements see tex admin code tit quality assurance program see personnel policies staffing requirements see physical environmental requirements see infection control standards see disclosure requirements see standards see standards see including anesthesia standards see requirements policed random announced inspections least annually see tex health safety code ann west well administrative penalties injunctions civil penalties criminal penalties certain violations see tex admin code tit tex health safety code ann criminal penalties certain reporting violations added requirement abortion facility meet minimum standards ambulatory surgical centers texas law west cum supp regulations include among things detailed specifications relating size nursing staff building dimensions building requirements nursing staff must comprise least adequate number registered nurses duty meet following minimum staff requirements director department designee supervisory staff personnel service area assure immediate availability registered nurse emergency care patient needed tex admin code tit well second individual duty premises trained currently certified basic cardiac life support patients discharged facility facilities provide moderate sedation abortion facilities facilities must include full surgical suite operating room clear floor area least square feet minimum clear dimension cabinets counters shelves shall feet must preoperative patient holding room postoperative recovery suite former shall provided arranged traffic pattern patients entering outside surgical suite change gown move directly restricted corridor surgical suite latter shall arranged provide traffic pattern restricted surgical corridor postoperative recovery suite extended observation rooms discharge surgical centers must meet numerous spatial requirements see generally including specific corridor widths iii surgical centers must also advanced heating ventilation air conditioning system must satisfy particular piping system plumbing requirements dozens sections list additional requirements apply surgical centers see generally considerable evidence record supporting district findings indicating statutory provision requiring abortion facilities meet standards benefit patients necessary district found risks appreciably lowered patients undergo abortions ambulatory surgical centers compared facilities supp added women obtain better care experience frequent positive outcomes ambulatory surgical center compared previously licensed facility ibid findings well supported record makes clear requirement provides benefit complications arise context abortion produced medication case complications almost always arise patient left facility see supra app record also contains evidence indicating abortions taking place abortion facility safe indeed safer numerous procedures take place outside hospitals texas apply requirements see total number deaths texas abortions five period one every two years say one abortions nationwide childbirth times likely abortion result death texas law allows midwife oversee childbirth patient home colonoscopy procedure typically takes place outside hospital surgical center setting mortality rate times higher abortion see acog brief mortality rate liposuction another outpatient procedure times higher mortality rate abortion medical treatment incomplete miscarriage often involves procedure identical involved nonmedical abortion often takes place outside hospital surgical center app see acog brief texas partly wholly grandfathers waives whole part requirement facilities standards apply neither grandfathers provides waivers facilities perform abortions supp see app facts indicate provision imposes requirement simply based differences abortion surgical procedures reasonably related preserving women health asserted purpos act found doe quoting morey doud internal quotation marks omitted moreover many requirements inappropriate applied surgical abortions requiring scrub facilities maintaining traffic pattern facility ceiling wall floor finishes separating soiled utility sterilization rooms regulating air pressure filtration humidity control help reduce infection doctors conduct procedures penetrate skin app abortions typically involve either administration medicines procedures performed natural opening birth canal sterile see provisions designed safeguard heavily sedated patients unable help fire emergencies see tex admin code tit app provide help abortion patients abortion facilities use general anesthesia deep sedation since instances serious complications arise following abortion almost always require hospitalization treatment surgical center standards help instances either upshot record evidence along absence evidence contrary provides ample support district conclusion building standards mandated act implementing rules tangential relationship patient safety context abortion nearly arbitrary supp conclusion along supporting evidence provides sufficient support general conclusion requirement provide better care frequent positive outcomes ibid record evidence thus supports ultimate legal conclusion requirement necessary time record provides adequate evidentiary support district conclusion requirement places substantial obstacle path women seeking abortion parties stipulated requirement reduce number abortion facilities available seven eight facilities located houston austin san antonio worth see app district view proposition seven eight providers meet demand entire state stretches credulity supp take statement finding facilities meet demand appeals held finding clearly erroneous wrote finding rested upon one expert grossman evidence current surgical centers seven eight operating full capacity increase capacity ibid unlike appeals however hold record provides adequate support district finding one thing record contains charts oral testimony grossman said result requirement number abortions clinics provide rise abortions increase factor five district credited grossman expert witness see supp finding indicia reliability grossman conclusions federal rules evidence state expert may testify form opinion long opinion rests upon sufficient facts data reliable principles methods rule case grossman opinion rested upon participation along university researchers research tracked number open facilities providing abortion care state requesting information texas department state health services hrough interviews clinic staff review publicly available information app district acted within legal authority determining grossman testimony admissible see fed rule evid see also daubert merrell dow pharmaceuticals nder rules trial judge must ensure expert evidence admitted relevant reliable wright gold federal practice procedure evidence rule impose trial judge additional responsibility determine whether expert testimony likely promote accurate factfinding another thing common sense suggests often physical facility satisfies certain physical demand able meet five times demand without expanding otherwise incurring significant costs suppose know certain grocery store serves customers per week certain apartment building provides apartments families certain train station welcomes trains per day conceivable store apartment building train station easily provide customers families trains significant additional cost crowding delay us find possibility highly improbable dissent takes issue general intuitive point arguing many places operate capacity event facilities simply hire additional providers see post disagree according common sense medical facilities well known wait times operate capacity general matter fact many facilities forced close requirement means hiring physicians quite simple dissent suggests courts free base findings commonsense inferences drawn evidence district dissent seeks discredit grossman pointing preliminary prediction made testimony abbott effect requirement capacity borne provision went effect see post every expert overestimated underestimated figure credited courts struggle find expert assistance moreover making hypothesis attempting verify hypothesis studies grossman irresponsible essential element scientific method district decision credit grossman testimony sound particularly given texas provided credible experts rebut see supp declining credit texas expert witnesses part vincent rue nonphysician consultant texas exercised considerable editorial discretionary control contents experts reports texas suggests seven eight remaining clinics expand sufficiently provide abortions texas women sought year petitioners satisfied burden obligation texas present evidence rebutting issue district texas admitted presented evidence tr oral arg instead texas argued one new clinic serves women annually ibid addition outside record example representative clinic texas referred apparently cost million construct fact even clearly demonstrates requiring seven eight clinics serve five times usual number patients indeed represent undue burden abortion access see planned parenthood debuts new building million center houston largest kind houston chronicle may attempting provide evidence texas dissent points exhibit submitted abbott showing three texas surgical centers two dallas well facility houston capable serving average patients per year see post average misleading addition including houston clinic represent facilities underinclusive ignores evidence whole woman health facility san antonio capacity described severely limited exhibit nothing rebut commonsense inference dramatic decline number available facilities cause shortfall capacity go effect facilities still operating effective date provision able accommodate increased demand see app tr oral arg brief national abortion federation et al amici curiae citing clinics experiences since requirement went effect wait times staff burnout waiting rooms full patients sit floor wait outside fundamentally face threat women health texas seeks force women travel long distances get abortions superfacilities patients seeking services less likely get kind individualized attention serious conversation emotional support doctors less taxed facilities may offered healthcare facilities medical professionals fungible commodities surgical centers attempting accommodate sudden vastly increased demand see supp may find quality care declines another commonsense inference district made effects harmful supportive women health see finally district found costs currently licensed abortion facility incur meet requirements considerable ranging million per facility facilities adequate space million per facility additional land must purchased evidence supports conclusion surgical centers soon fill gap licensed facilities forced close agree district requirement like requirement provides health benefits women poses substantial obstacle women seeking abortions constitutes undue burden constitutional right vi consider three additional arguments texas makes deem none persuasive first texas argues facial invalidation challenged provisions precluded severability clause see brief respondents severability clause says every provision section subsection sentence clause phrase word act every application provision act severable app pet cert provides application provision act person group persons circumstances found invalid remaining applications provision persons circumstances shall severed may affected ibid language texas argues means facial invalidation parts statute option instead says severability clause mandates narrowly tailored judicial remedy challenged provisions close abortion facilities texas place added stress facilities able remain open vastly increase obstacles confronting women seeking abortions texas without providing benefit women health capable withstanding meaningful scrutiny provisions unconstitutional face including severability provision law change conclusion severability clauses true express enacting legislature preference narrow judicial remedy general matter attempt honor preference cases never required us proceed application conceivable application confronted facially unconstitutional statutory provision held severability clause aid merely inexorable command reno american civil liberties union internal quotation marks omitted indeed severability clause impose requirement courts legislatures easily able insulate unconstitutional statutes facial review see ibid certainly dangerous legislature set net large enough catch possible offenders leave courts step inside say rightfully detained set large extent substitute judicial legislative department government internal quotation marks omitted severability clause grounds devise judicial remedy entail quintessentially legislative work ayotte planned parenthood northern new approach inflict enormous costs courts litigants required proceed manner whenever single application law might valid reject texas invitation pave way legislatures immunize statutes facial review texas similarly argues instead finding entire provision unconstitutional invalidate applied abortion clinics specific regulations unduly burden abortions leaving place regulations example reader pick various examples provided dissent see post see brief respondents explained texas attempt broadly draft requirement sever applications require us proceed piecemeal fashion found statutory provisions issue facially unconstitutional approach regulations even required statute meant require abortion facilities meet integrated standards subset thereof severability clause refers severing applications words phrases act requirement whole see app pet cert say courts go individual components different statute let alone individual regulations governing surgical centers see whether requirements severable applied abortion facilities facilities subject subset regulations qualify surgical centers risk harm caused inconsistent application fraction interconnected regulations counsels second texas claims provisions issue impose substantial obstacle women affected laws large fraction texan women reproductive age texas reads casey required see brief respondents casey used language large fraction refer large fraction cases provision issue relevant class narrower women pregnant women even class women seeking abortions identified state opinion emphasis added casey relevant denominator women provision actual rather irrelevant restriction third texas looks support simopoulos virginia case upheld requirement applied abortions case however unlike simopoulos involves restrictions applicable abortions simply take place second trimester abortions texas occur first trimester second app importantly casey discarded trimester framework use viability relevant point state may begin limiting women access abortion reasons unrelated maternal health plurality opinion second trimester includes time previability postviability simopoulos provide clear guidance simopoulos found petitioner case unlike petitioners waived argument regulation significantly help protect women health reasons judgment appeals reversed case remanded proceedings consistent opinion ordered ginsburg concurring whole woman health et petitioners john hellerstedt commissioner texas department state health services et al writ certiorari appeals fifth circuit june justice ginsburg concurring texas law called inevitably reduce number clinics doctors allowed provide abortion services texas argues restrictions constitutional protect health women experience complications abortions truth complications abortion rare rarely dangerous planned parenthood schimel see brief american college obstetricians gynecologists et al amici curiae collecting studies concluding bortion one safest medical procedures performed brief social science researchers amici curiae compiling studies show omplication rates abortion low many medical procedures including childbirth far dangerous patients yet subject hospital requirements see ante planned parenthood see also brief social science researchers comparing statistics risks abortion tonsillectomy colonoscopy dental surgery brief american civil liberties union et al amici curiae district courts consider requirements found abortion least safe medical procedures routinely performed outpatient settings given realities beyond rational belief genuinely protect health women certain law simply make difficult obtain abortions planned parenthood state severely limits access safe legal procedures women desperate circumstances may resort unlicensed rogue practitioners faute de mieux great risk health safety see brief ten pennsylvania abortion care providers amici curiae long adheres roe wade planned parenthood southeastern casey targeted regulation abortion providers laws like little nothing health rather strew impediments abortion planned parenthood survive judicial inspection thomas dissenting whole woman health et petitioners john hellerstedt commissioner texas department state health services et al writ certiorari appeals fifth circuit june justice thomas dissenting today strikes two state statutory provisions applications behest abortion clinics doctors decision exemplifies troubling tendency bend rules effort limit abortion even speak opposition abortion issue stenberg carhart scalia dissenting justice alito observes see post dissenting opinion today decision creates abortion exception ordinary rules res judicata ignores compelling evidence texas law imposes unconstitutional burden disregards basic principles severability doctrine write separately emphasize today decision perpetuates habit applying different rules different constitutional rights especially putative right abortion begin existence suit jurisprudential oddity ordinarily plaintiffs file suits vindicate constitutional rights others employs different approach rights favors case many others erroneously allowed doctors clinics vicariously vindicate putative constitutional right women seeking abortions case also underscores increasingly common practice invoking given level scrutiny undue burden standard applying different standard review entirely scrutiny majority applies texas law bears little resemblance test articulated planned parenthood southeastern casey successors instead majority eviscerates important features test return regime like one casey repudiated ultimately case shows never bent rules favored rights first place law riddled special exceptions special rights decisions deliver neither promise judiciary bound rule law suit possible allowed abortion clinics physicians invoke putative constitutional right belong woman right abortion standing jurisprudence model clarity see kowalski tesmer thomas concurring driving doctrinal confusion shown particular willingness undercut restrictions standing right abortion stake case reveals deeper flaw straying normal rules wrong party litigates case end resolving disputes make bad law nation history plaintiffs challenge statute asserting someone else constitutional rights see ibid listen objection made constitutionality act party whose rights affect therefore interest defeating clark kansas city internal quotation marks omitted good reason ourts roving commissions assigned pass judgment validity nation laws broadrick oklahoma century began relaxing rule even started recognize exceptions certain types challenges stressed strict limits exceptions plaintiff assert third party rights said plaintiff close relation third party third party faced formidable hindrance asserting rights powers ohio accord kowalski supra similar limits broke however quite forgiving applying standards certain claims constitutional rights remained personal rights may vicariously asserted alderman fourth amendment rights purely see rakas illinois fifth amendment right abandoned limitations rights producing serious anomalies across similar factual scenarios lawyers vicariously assert potential clients sixth amendment rights lack current close relationship kowalski supra yet litigants assert potential jurors rights race sex discrimination jury selection even litigants never met potential jurors share race sex powers supra alabama ex rel vendors sue invalidate state regulations implicating potential customers equal protection rights sex discrimination craig boren striking age restrictions purchasing beer especially forgiving standing criteria one particular category cases involving purported substantive due process right woman abort unborn child singleton wulff plurality fashioned blanket rule allowing standing abortion cases generally appropriate said allow physician assert rights women patients governmental interference abortion decision ibid yet conceded traditional criteria exception standing rule met insurmountable obstacles stopping women seeking abortions asserting rights plurality admitted jurisdictional barriers roe wade held women seeking abortions fell mootness exception cases repetition yet seeking review enabling sue terminated pregnancies without showing intended become pregnant seek abortion yet since singleton unquestioningly accepted doctors clinics vicarious assertion constitutional rights hypothetical patients even women seeking abortions successfully repeatedly asserted rights question whether doctors clinics allowed sue behalf texas women seeking abortions matter course central question abortion precedents whether undue burden woman access abortion see casey plurality opinion see part ii infra permissive approach standing encourages litigation deprives us information needed resolve issue precedents encourage abortion providers sue cases relieve obligation prove burdens women actually face find astonishing majority discover undue burden women access abortion women texas law actual rather irrelevant restriction ante internal quotation marks omitted without identifying many women fit description proximity open clinics preferences obtain abortions ommonsense inference burden exists ante substitute actual evidence surer sign jurisprudence gone rails creating constitutional right abortion involve intimate personal choices person may make lifetime choices central personal dignity autonomy casey supra majority opinion created special rules cede enforcement others ii today opinion also reimagines standard used assess constitutionality abortion restrictions nearly years ago planned parenthood southeastern casey plurality invented undue burden standard special test gauging permissibility abortion restrictions casey held law unconstitutional imposes undue burden woman ability choose abortion meaning purpose effect placing substantial obstacle path woman seeking abortion nonviable fetus casey thus instructed courts look whether law substantially impedes women access abortion whether reasonably related legitimate state interests explained rational basis act impose undue burden state may use regulatory power regulate aspects abortion procedures furtherance legitimate interests regulating medical profession order promote respect life including life unborn gonzales carhart remain fundamentally opposed abortion jurisprudence thomas concurring stenberg thomas dissenting even taking casey baseline however majority radically rewrites test three ways first today decision requires courts consider burdens law imposes abortion access together benefits laws confer ante second today opinion tells courts law justifications medically uncertain need defer legislature must instead assess medical justifications abortion restrictions scrutinizing record ibid finally even law imposes substantial obstacle women access abortions law must reasonabl relat ion legitimate state interest ibid internal quotation marks omitted precepts nowhere found casey successors transform test something much akin strict scrutiny first majority balancing test contrary casey assessing pennsylvania recordkeeping requirements abortion providers instance casey weigh benefits burdens rather casey held law legitimate purpose data collection advances medical research said requirements serve purpose make abortions difficult joint opinion kennedy souter opinion asked whether recordkeeping requirements imposed substantial obstacle found none ibid contrary majority statements see ante casey balance benefits burdens pennsylvania spousal parental notification provisions either pennsylvania spousal notification requirement plurality said imposed undue burden findings established requirement likely prevent significant number women obtaining abortion burdens outweighed benefits majority opinion see casey summarily upheld parental notification provisions even decisions done joint opinion decisions casey wake refute majority balancing test mazurek armstrong per curiam difficulty upholding montana law authorizing physicians perform abortions even though legislative findings supported law challengers claimed health evidence contradict ed claim health basis law internal quotation marks omitted mazurek also deemed objections law lack benefits squarely foreclosed casey ibid instead explained constitution gives broad latitude decide particular functions may performed licensed professionals even objective assessment might suggest tasks performed others ibid quoting casey supra emphasis original see gonzales supra relying mazurek second rejecting notion legislatures courts must resolve questions medical uncertainty ante majority discards another core element casey framework today given state federal legislatures wide discretion pass legislation areas medical scientific uncertainty gonzales emphasized traditional rule deference consistent casey ibid underscored legislatures hamstrung part medical community disinclined follow proscription concluded onsiderations marginal safety including balance risks within legislative competence regulation rational pursuit legitimate ends ibid see stenberg supra kennedy dissenting right legislature resolve matters physicians disagreed establish ed beyond doubt clearer medical justifications abortion restriction debatable provides sufficient basis conclude facial attack law impose undue burden gonzales otherwise legislatures face exacting standard today however majority refuses leave disputed medical science legislature past cases placed considerable weight upon evidence argument presented judicial proceedings ante casey relied record evidence uphold pennsylvania requirement requirement nothing debated medical science majority opinion gonzales observed courts need blindly accept legislative findings see ante help majority gonzales refused accept congress finding medical consensus prohibited procedure never medically necessary procedure necessity debated within medical community identified medical uncertainty gonzales explained courts resolve conflicting positions respecting legislature judgment see finally majority overrules another central aspect casey requiring laws rational basis even substantially impede access abortion ante state rational basis act impose undue burden previously held state may use regulatory power impose regulations furtherance legitimate interests regulating medical profession order promote respect life including life unborn gonzales supra emphasis added see casey supra plurality opinion similar longer though majority declines say substantial state interest must ante one thing clear state burden ratcheted level applied quarter century today opinion resemble casey one respect disregarding significant aspects prior jurisprudence majority applies standard way surely mystify lower courts years come casey today opinion simply highlight certain facts record apparently strike justices particularly significant establishing refuting existence undue burden scalia concurring judgment part dissenting part see ante casey opinion simply announces provision either impose obstacle burden opinion scalia see ante still know whether conclusions reached different record respects record differ opposite conclusion appropriate opinion scalia cf ante know undue burden little whether law real sense deprive women ultimate decision casey supra loss individualized attention serious conversation emotional support ante majority test looks far less like precedents far like standard casey rejected compelling rationales justified restrictions abortion see casey supra plurality opinion one searches majority opinion vain acknowledgment premise central casey rejection strict scrutiny government legitimate substantial interest preserving promoting fetal life conception regulating medical procedures gonzales supra internal quotation marks omitted see casey supra majority opinion plurality opinion meanwhile majority balancing approach risks ruling even minor previously valid infringements access abortion moreover medical evidence making assessments quality care issues ante majority reappoints country ex officio medical board powers disapprove medical operative practices standards throughout gonzales supra internal quotation marks omitted majority seriously burdens must guess much compelling interests must pass muster commonsense inferences undue burden identify next iii majority furtive reconfiguration standard scrutiny applicable abortion restrictions also points deeper problem standard one variant approach constitutional adjudication label affixes level scrutiny assessing whether government restrict given right rational basis intermediate strict something else increasingly meaningless formalism applies whatever standard likes given case nothing empty words separates constitutional decisions judicial fiat though tiers scrutiny become ubiquitous feature constitutional law recent vintage begin earnest speak strict scrutiny versus reviewing legislation mere rationality develop contours tests see fallon strict judicial scrutiny ucla rev short order adopted strict scrutiny standard reviewing everything classifications equal protection clause restrictions constitutionally protected speech roe wade applied strict scrutiny purportedly fundamental substantive due process right first time see fallon supra accord casey supra plurality opinion noting cases interpreted roe demand strict scrutiny tiers scrutiny proliferated ever gradations see craig intermediate scrutiny classifications lawrence texas concurring judgment searching form rational basis review applies laws reflecting desire harm politically unpopular group buckley valeo per applying contribution limits casey test added yet another test spectrum review illegitimacy using tests displace longstanding national traditions primary determinant constitution means long apparent virginia scalia dissenting constitution prescribe tiers scrutiny three basic tiers rational basis intermediate strict scrutiny scientific names suggest element randomness added fact largely us test applied case see also craig supra rehnquist dissenting problem goes beyond recent cases illustrate anything easily tinkers levels scrutiny achieve desired result term easier state survive strict scrutiny despite discriminating basis race college admissions state regulate abortion doctors clinics operate putatively less stringent test state apparently needs show survive strict scrutiny list aspirational educational goals cultivat ion set leaders legitimacy eyes citizenry reasoned principled explanation pursuing defers fisher university tex austin ante internal quotation marks omitted yet state gets deference test despite producing evidence abortion safety one rationale texas law medically debated see whole woman health lakey supp wd tex noting conflict expert testimony abortion safety likewise easier government restrict judicial candidates campaign speech government define marriage even though former subject strict scrutiny latter supposedly subject form review compare florida bar slip windsor slip recent decisions reflect tendency relax purportedly higher standards review rights nixon shrink missouri government pac thomas dissenting makes effort justify deviation tests traditionally employ free speech cases review caps political contributions meanwhile selectively applies review question supposed whether state facts reasonably may conceived justify law mcgowan maryland formidable toughness lawrence concurring judgment least equal protection cases likely find rational basis law challenged legislation inhibits personal relationships see scalia dissenting faulting applying form review labels mean little whatever claims practice treating doctrine referring tiers scrutiny guidelines informing approach case hand tests mechanically applied supra slip breyer concurring abandon pretense anything policy preferences underlies balancing constitutional rights interests given case iv tempting identify invention constitutional right abortion roe wade tipping point transformed standing doctrine tiers scrutiny unworkable morass special exceptions arbitrary applications roots run deeper notion constitutional rights demand preferential treatment lochner era considered right contract economic liberties fundamental requirements due process law see lochner new york repudiated lochner foundations see west coast hotel parrish created new taxonomy preferred rights seven justices heard constitutional challenge federal ban shipping adulterated milk interstate commerce without economic substantive due process ban clearly invaded constitutional right see carolene products within justice stone opinion however three justices joined famous carolene products see lusky redux carolene products reminiscence colum rev first paragraph suggested presumption constitutionality ordinarily attaches legislation might narrower legislation appears face within specific prohibition constitution second paragraph appeared question whether legislation restricts political processes ordinarily expected bring repeal undesirable legislation subjected exacting judicial scrutiny general prohibitions amendment types legislation ibid third familiar paragraph raised question whether prejudice discrete insular minorities may special condition tends seriously curtail operation political processes ordinarily relied upon protect minorities may call correspondingly searching judicial inquiry ibid though pure dicta seized upon justify special treatment certain personal liberties like first amendment right discrimination basis race also rights enumerated identified rights deserved special protection developed tiers scrutiny part equal protection later due process jurisprudence way demand extra justifications encroachments rights see fallon ucla created new category fundamental rights loosened reins recognize even putative rights like abortion see roe hardly implicate discrete insular minorities also seized upon rationale carolene products justify exceptions standing doctrine suggested tilting analysis favor rights involving actual perceived minorities seemingly counted right contraception right according matters relationship one acted protect rights minority minority suggested includes relationship advocate rights persons obtain contraceptives desirous eisenstadt baird citing sedler standing assert constitutional jus tertii yale eighty years come full circle simultaneously transformed judicially created rights like right abortion preferred constitutional rights disfavoring many rights actually enumerated constitution constitution renounces notion constitutional rights equal others plaintiff either possesses constitutional right asserting judiciary business creating ad hoc exceptions others assert rights seem especially important vindicate law either infringes constitutional right room judiciary invent tolerable degrees encroachment unless abides one set rules adjudicate rights continue reducing constitutional law value judgments last shreds legitimacy disappear today decision prompt claim victory stiffen opponents object entire nation lost something essential majority embrace jurisprudence exceptions balancing tests regrettable concession defeat acknowledgement passed point properly speaking application scalia rule law law rules chi rev respectfully dissent alito dissenting whole woman health et petitioners john hellerstedt commissioner texas department state health services et al writ certiorari appeals fifth circuit june justice alito chief justice justice thomas join dissenting constitutionality laws regulating abortion one controversial issues american law case require us delve contentious dispute instead dispositive issue concerns workaday question arise case matter subject namely whether present case barred res judicata law obligation apply rules neutral fashion cases regardless subject suit anything case involves controversial issue especially careful scrupulously neutral applying rules done contrary determined strike two provisions new texas abortion statute applications simply disregards basic rules apply cases worst example shortly texas enacted house bill petitioners case brought suit claiming among things provision new law requiring physician performing abortion admitting privileges nearby hospital facially unconstitutional thus totally unenforceable petitioners fair opportunity make case lost merits appeals fifth circuit chose petition review judgment became final planned parenthood greater tex surgical health servs abbott supp wd tex aff part rev part abbott rules apply regular cases petitioners relitigate exact claim second suit said losing litigant deserves rematch defeat fairly suffered adversarial proceedings issue identical substance one subsequently seeks raise astoria fed sav loan assn solimino abortion case however rule disregarded awards victory petitioners claim unsuccessfully pressed earlier case even though petitioners undoubtedly realizing rematch allowed presume include claim complaint favors petitioners victory audacity seek one example treatment severability clause part statute held unconstitutional question arises whether parts statute must also go statute says provisions found unconstitutional severed rest statute valid provisions allowed stand contains must surely emphatic severability clause ever written clause says every single word statute every possible application provisions severable despite language holds part challenged provisions application part saved provisions indisputably constitutional example provisions require facilities performing abortions follow basic fire safety measures stricken books possible justification collateral damage patent refusal apply law neutral way indefensible undermine public confidence fair neutral arbiter res judicata use modern terminology claim preclusion bedrock principle legal system said many years ago ublic policy dictates end litigation contested issue shall bound result contest matters tried shall considered forever settled parties baldwin iowa state traveling men doctrine central purpose civil courts established conclusive resolution disputes within jurisdictions preclude parties contesting matters full fair opportunity litigate protects adversaries expense vexation attending multiple lawsuits conserves judicial resources fosters reliance judicial action minimizing possibility inconsistent decisions montana vital public interests regarded enforced federated department stores moitie basic rule preclusion well known frequently stated opinions litigation cause action claim barred closely related party brought prior suit asserting cause action claim prior case adjudicated competent jurisdiction decided merits final judgment entered ground fraud invalidate prior judgment see montana supra commissioner sunnen cromwell county sac turn first application rule petitioners claim admitting privileges requirement facially unconstitutional elements set easily satisfied based abbott case previously referred case brought group plaintiffs included petitioners present case asserted cause action claim namely facial challenge constitutionality admitting privileges requirement adjudicated courts competent jurisdiction decided merits resulted entry final judgment petitioners otherwise subject invalidation clear undoubtedly petitioners attorneys even include facial attack admitting privileges requirement complaint case done risked sanctions misconduct see robinson national cash register party persistence litigating claim res judicata clearly barred suit violated rule mclaughlin bradlee supp dc especially appropriate impose sanctions situations doctrines res judicata collateral estoppel plainly preclude relitigation suit elements set disputes one concludes petitioners prior facial attack admitting privileges requirement current facial attack requirement somehow cause action claim conclusion unsupported authority plainly wrong although scope cause action claim purposes res judicata hardly new question courts scholars struggled settle upon outcome present case depend upon selection proper definition among adopted recommended years majority holding supported baltimore phillips defined cause action actionable wrong see also ibid cause action consist facts unlawful violation right facts show understanding two claims issue indisputably result dictated rule recommended american law institute ali first restatement judgments issued section first restatement explains claim asserted plaintiff second suit preclusion purposes claim plaintiff unsuccessfully litigated prior case provision plaintiff precluded subsequently maintaining second action based upon transaction evidence needed sustain second action sustained first action restatement judgments doubt rule satisfied second restatement judgments issued ali adopted new approach determining scope cause action claim nevada noted two restatements differ regard need determine correct majority simply assumes follow second restatement even though restatement reading least leads conclusion differs conclusion clearly dictated first restatement second restatement actually supported majority holding surely obligated explain chose follow second restatement approach nevada supra application rule set second restatement change result relies almost entirely comment one section second restatement ignores fact straightforward application provisions restatement leads conclusion petitioners two facial challenges admitting privileges requirement constitute single claim section second restatement sets general rule applies case like one us valid final personal judgment rendered favor defendant bars another action plaintiff claim section explains scope claim extinguished includes rights plaintiff remedies defendant respect part transaction series connected transactions action arose section comment turn fleshes key term transaction defines natural grouping common nucleus operative facts whether collection events constitutes single transaction said depend relatedness time space origin motivation whether taken together form convenient unit trial purposes ibid claim asserted petitioners first suit claim revived involve nucleus operative facts indeed involve operative facts namely enactment admitting privileges requirement according theory underlying petitioners facial claims inevitably effect causing abortion clinics close petitioners needed show attempted show first facial attack admitting privileges requirement already imposed substantial burden right texas women obtain abortions effect clinics able assess whether practicably comply decision planned parenthood southeastern casey makes clear casey held pennsylvania spousal notification requirement facially unconstitutional even though provision enjoined prior enforcement see struck provision impose substantial obstacle emphasis added see also spousal notification requirement thus likely prevent significant number women obtaining abortion emphasis added women likely deterred procuring abortion emphasis added consistent understanding petitioners tried show first case admitting privileges requirement cause clinics close claimed evidence showed least state licensed providers stop providing abortions privileges requirement took effect agreeing petitioners district enjoined enforcement requirement ground abortion clinics close abbott supp emphasis added fifth circuit found petitioners evidence likely effect insufficient stating petitioners failed prove woman lack reasonable access clinic within texas abbott emphasis added emphasis deleted correctness holding irrelevant present purposes matters operative fact prior case enactment admitting privileges requirement precisely operative fact underlying petitioners facial attack case light body authority maintain first second facial claims really two different claims first argument petitioners bring two facial claims complaint present case sought relief district petitioners injected issue facial relief case ante district gave statewide relief petitioners happily accepted gift present challenge facial one see reply brief acial invalidation way ensure texas requirements extinguish women liberty thrust argument trial judge circumvent rules claim preclusion granting plaintiff relief claim plaintiff barred relitigating surprisingly musters authority proposition undermine interests doctrine claim preclusion designed serve fundamental precept adjudication issue determined competent conclusive arizona california interest finality equally offended regardless whether precluded claim included complaint inserted case another argument tossed judgment admitting privileges claim first case preclusive effect based prematurity action see ante quoting restatement second judgments argument grossly mischaracterizes basis judgment first case appeals hold facial challenge premature held evidence petitioners offered insufficient see abbott see also infra petitioners sought review elected brings main argument second facial challenge different claim changed circumstances means petitioners better evidence time first case respect number clinics close result admitting privileges requirement argument contrary cardinal rule res judicata namely plaintiff loses first case later bring case simply gathered better evidence claim preclusion contain better evidence exception see torres shalala simply submitting new evidence rendered prior decision factually distinct res judicata cease exist geiger foley hoag llp retirement plan claim preclusion applies even litigant prepared present different evidence second action saylor fact new evidence might change outcome case affect application claim preclusion doctrine international union operating constr industry pension welfare training trust funds karr fact different evidence may presented action however defeat bar res judicata restatement second judgments comment mere shift evidence offered support ground held unproved prior action suffice make new claim avoiding preclusive effect judgment wright miller cooper federal practice procedure ed wright miller res judicata ordinarily applies despite availability new evidence restatement judgments comment ordinary rules claim preclusion apply although party judgment rendered later position produce better evidence successful second action effort get around hornbook rule cites potpourri decisions bearing question issue even res cases concern res judicata abie state bank bryan lawlor national screen service third nat bank louisville stone endorse unremarkable proposition prior judgment preclude new claims based acts occurring time first petitioners second facial challenge based new acts postdating first suit rather based underlying act enactment allegedly posed undue burden come authority chiefly relies comment second restatement reads material operative facts occurring decision action respect subject matter may taken conjunction antecedent facts comprise transaction may made basis second action precluded first see illustrations important human values lawfulness continuing personal disability restraint stake even slight change circumstances may afford sufficient basis concluding second action may brought emphasis added word highlighted may make clear comment say aterial operative facts occurring decision action always even usually form basis second action precluded first rather comment takes view may accord ante evelopment new material facts mean new case otherwise similar previous case present claim emphasis added question development new material facts lead conclusion strong reasons conclude narrow exception indeed otherwise statement relegated mere comment revolutionize rules claim preclusion permitting party relitigate lost claim whenever obtains better evidence comment surely meant upend fundamental rule comment undoubtedly means far modest limited circumstances development new material facts opinion ali permit relitigation circumstances section includes three illustrative examples form hypothetical cases none resembles present case first hypothetical case subsequent suit based new events provide basis relief different legal theory restatement second judgments illustration second case father lost prior child custody case brings second action challenging wife fitness mother based subsequent experience take mean subsequent conduct mother illustration illustration expressly linked determination person status even status general particular status fitness parent law recognizes changeable see reporter note comment illustration exemplifies effect changed circumstances action relating status final example government loses civil antitrust conspiracy case brings second civil antitrust conspiracy case based new conspiratorial acts illustration suggest legality acts predating end first case actionable second case subsequent acts give rise new claim proof earlier acts may admitted evidence explain significance later acts illustration present claim similar illustrations involve claim based postjudgment acts new legal theory ask us adjudicate person status involve continuing course conduct proved state new acts final illustration actually undermines holding reporter note links illustration fifth circuit case exhibitors poster exchange national screen service case distinguished truly postjudgment acts acts completed prior previous judgment except consequences postjudgment acts postjudgment consequences fifth circuit held give rise new cause action see rely new acts performed state texas end first case instead relies solely takes new consequences closing additional clinics said resulted enactment reasons done create entirely new exception rule losing plaintiff relitigate claim new better evidence best tell new rule must something like plaintiff initially loses failed provide adequate proof challenged law unconstitutional effect subsequent developments tend show law fact effects plaintiff may relitigate claim rule unprecedented unsure wisdom certain possible justification rule unless plaintiff time first case reasonably shown effects law situation case contend petitioners time first case gathered provided evidence sufficient show admitting privileges requirement cause sufficient number clinic closures instead attempts argue petitioners shown time sufficient number clinics already closed explained petitioners need show attempted prove moreover also wrong understanding petitioners proof first case support holding admitting privileges requirement places obstacle path woman choice relies two facts eight abortion clinics closed months leading requirement effective date leven closed day requirement took effect ante petitioners put evidence addressing exactly issue first trial apparently surveyed abortion clinics identified state including clinics owned coplaintiffs find impact requirement clinic operations see appendix infra app emergency application vacate stay planned parenthood greater tex surgical health servs abbott plaintiffs trial exh survey claimed show admitting privileges requirement cause clinics see ibid fifth circuit evidence refuse consider evidence sufficient show admitting privileges rule created unlawful impediment abortion access district indeed thought sufficient decision fifth circuit first case wrong matter law petitioners asked us review decision chose tactical decision nature consequences mean admitting privileges requirement immune facial challenge mean petitioners plaintiffs first case mount claim even thinks petitioners evidence first case insufficient claim petitioners reasonable effort gathered sufficient evidence show degree accuracy effects admitting privileges requirement explained first trial petitioners introduced survey abortion clinics indicating close admitting privileges requirement identify additional evidence petitioners needed unable gather simply reason petitioners allowed relitigate facial claim far discussed first two sentences comment also relies second sentence reiterate second sentence says important human values lawfulness continuing personal disability restraint stake even slight change circumstances may afford sufficient basis concluding second action may brought restatement second judgments comment second restatement offers judicial support whatsoever suggestion thus comment must regarded proposal change rather restatement existing doctrine since commentary refers single case stuart scalia concurring judgment sentence also sits considerable tension decisions stating res judicata must applied uniformly without regard may think particular case see moitie doctrine res judicata serves vital public interests beyond individual judge ad hoc determination equities particular case sentence seemingly come nowhere appears subsequent relied sentence ground decision decisions cited important human values language cases invariably involve relitigation personal status determinations discussed comment illustration see people ex rel leonard hh nixon app div nature litigation concerning status person mental capacity lend strict application res judicata transactional analysis basis sum holding petitioners second facial challenge admitting privileges requirement barred claim preclusion supported cases body lower precedent contrary bedrock rule party relitigate claim simply party obtained new better evidence contrary first restatement judgments actual rules second restatement judgment purportedly based largely single comment second restatement even represent sensible reading comment regular case attempt petitioners relitigate previously unsuccessful facial challenge admitting privileges requirement rejected hand indeed might resulted imposition sanctions federal rule civil procedure even think reviving claim abortion case ordinary rules law fairness suspended ii turn application principles claim preclusion claim petitioners include second complaint namely facial challenge requirement abortion clinics comply rules govern ambulatory surgical centers ascs said many times doctrine claim preclusion bars relitigation previously litigated claims also bar claims closely related claims unsuccessfully litigated prior case see moitie supra montana discussed holding admitting privileges issue based largely comment second restatement therefore one might think consistency dictate examination say question whether asc challenge barred consistency watchword section sets general rule regarding claims rule determines barring claim previously litigated unsuccessfully also extinguishes claim plaintiff bring first case section new claim barred part transaction series connected transactions action arose evident petitioners challenges admitting privileges requirement asc requirement part transaction series connected transactions believe transaction enactment two facial claims part transaction true even likely actual effects two provisions constitute relevant transactions petitioners argue admitting privileges requirement asc requirements combined effect unconstitutionally restricting access abortions brief repeatedly refers collective effect requirements brief petitioners describe admitting privileges asc requirements delivering punch make effort whatsoever separate effects two provisions nevertheless holds two meaningful differences justify departure general rule splitting claims ante neither merit first pointing statement pocket part treatise says courts normally treat challenges distinct regulatory requirements claims even part one overarching overnment regulatory scheme ante quoting wright miller ed supp support statement treatise cites one case hamilton bogarts michigan even authorities supported rule invoked points authorities hardly sufficient show courts normally proceed accordance rule fact neither treatise sixth circuit decision actually supports rule treatise says following government regulatory schemes provide regular examples circumstances regulation single business many different provisions lead recognition separate claims business challenges different regulations wright miller emphasis added thus treatise expresses view law purport state courts normally recommendation treatise authors concerns different provisions regulatory scheme often embodies accumulation legislative enactments petitioners challenge two provisions one law two provisions regulatory scheme sixth circuit decision even afield case plaintiff previously lost case challenging one rule state liquor control commission question whether final judgment case barred subsequent claim attacking another rule held latter claim likely barred although first rule challenged first lawsuit rule state argued made showing party also challenged rule time say authorities provide meager support reasoning exaggeration beyond paltry authorities adds argument encourage approach litigation challenging validity statutes ante agree situation case two claims closely related two parts bill impose new requirements abortion clinics justified state ground protection safety women seeking abortions challenged imposing kind burden impaired access clinics kind right right abortion announced roe wade casey petitioners attack two provisions package according petitioners two provisions enacted illegitimate purpose close texas abortion clinics see brief petitioners noted petitioners rely combined effect two requirements petitioners made little effort identify clinics closed result requirement instead aggregate two requirements effects reasons two challenges form convenient trial unit restatement second judgments fact trial accurately identify effect provision also need identify effect provision cf infra second claims time petitioners filed complaint first case known whether future rules implementing surgical center requirement provide exemption existing abortion clinics ante argument deeply flawed inevitability operation statute certain individuals patent irrelevant existence justiciable controversy time delay disputed provisions come effect regional rail reorganization act cases never real chance texas department state health services exempt existing abortion clinics asc requirements appeals wrote abundantly clear abortion facilities must meet standards already promulgated ascs whole woman health cole per curiam case see tex health safety code ann west cum supp rules implementing must contain minimum standards abortion facility equivalent minimum standards ambulatory surgical centers apparent basis argument permitted state health department grant blanket exemptions whether real likelihood clinics exempted particular asc requirements irrelevant petitioners view asc requirements indivisible whole petitioners told fifth circuit unequivocal terms challeng ing broadly effort whatsoever parse specific aspects asc requirement ou nd onerous otherwise infirm similarly majority views asc provisions indivisible whole see ante statute meant require abortion facilities meet integrated standards subset thereof view petitioners reason wait see whether department state health services might exempt asc rules even exemptions asc rules granted petitioners majority still maintain provision making asc rules applicable abortion facilities facially unconstitutional thus exemption asc requirements entirely inconsequential response point see ante reasons petitioners facial attack asc requirements like facial attack admitting privileges rule precluded iii even res judicata bar either facial claim sweeping statewide injunction enforcement admitting privileges asc requirements still unjustified petitioners case abortion clinics physicians perform abortions simply asserting constitutional right conduct business practice profession without unnecessary state regulation little chance success see williamson lee optical abortion cases however permitted rely right abortion patients serve see doe bolton see ante thomas dissenting thus matters present purposes effect provisions petitioners effect patients cases petitioners must show admitting privileges asc requirements impose undue burden women seeking abortions gonzales carhart order obtain sweeping relief seek facial invalidation provisions must show minimum provisions unconstitutional impact least large fraction texas women reproductive situation result clinics able comply new requirements either lacked requisite overall capacity located far away serve large fraction women question petitioners make showing instead offering direct evidence relied two crude inferences first pointed number abortion clinics closed enactment asked inferred closures resulted two challenged provisions see brief petitioners made little effort show particular clinics closed second pointed number abortions performed annually ascs took effect figure well total number abortions performed year state asked inferred clinics meet demands women state see app petitioners failed provide evidence actual capacity facilities available perform abortions compliance new law even though provided type evidence first case district trial application interim injunctive relief appendix infra dispute fact caused closure clinics indeed seems clear intended force unsafe facilities shut law one many enacted wake kermit gosnell scandal physician ran abortion clinic philadelphia convicted murder three infants born alive manslaughter patient gosnell actively supervised state local authorities peers philadelphia grand jury investigated case recommended commonwealth adopt law requiring abortion clinics comply regulations pennsylvania requirement force gosnell facility may shut crimes similarly unsafe facilities texas clearly intended put doubt caused clinics cease operation absence proof regarding reasons particular closures problem clinics may closed least four reasons two requirements issue restriction medication abortion first case petitioners challenged provision regulates medication abortion part statute upheld fifth circuit relitigated case record case indicates first six months restriction took effect number medication abortions dropped compared period previous year app withdrawal texas family planning funds texas passed law preventing family planning grants providers perform abortions affiliates first case petitioners expert admitted clinics closed result defunding discussed withdrawal appears specifically caused multiple clinic closures west texas see infra nationwide decline abortion demand petitioners expert testimony study guttmacher institute concludes national abortion rate resumed decline evidence found overall drop abortion incidence related decrease providers restrictions implemented app direct testimony peter uhlenberg quoting jones jerman abortion incidence service availability perspectives sexual reproductive health emphasis testimony consistent trend number abortions residents texas declined app physician retirement localized factors like everyone else physicians eventually retire retirement physician performs abortions cause closing clinic reduction number abortions clinic perform happens closure clinic reduction capacity attributed unless shown retirement caused admitting privileges surgical center requirements opposed age factor least nine texas clinics may ceased performing abortions reduced capacity one reasons nothing provisions challenged example first case petitioners alleged restriction cause least three abortion clinics cease performing predicted ther facilities offer surgical medication abortion unable offer medication abortion presumably reducing capacity also appears several clinics including clinics operating west texas apart el paso closed response unrelated law restricting provision family planning reason question whether least two closures one corpus christi one houston may prompted physician neither petitioners district properly addressed complexities assessing causation good reason total number abortion clinics state large petitioners put evidence individual clinics first case see appendix infra challenged provisions role causing closure made factual finding cause closure precise findings important key issue number percentage clinics affected effect closures women seeking abortions capacity geographic distribution clinics used women extent clinics closed experienced reduction capacity reason unrelated challenged provisions corresponding burden abortion access may factored access analysis ample reason believe closures caused factors district failure ascertain reasons clinic closures means record us way tell closures actually count petitioners plaintiffs bore burden proof simply point temporal correlation call causation even district properly filtered immaterial closures analysis incomplete second reason petitioners offered scant evidence capacity clinics able comply admitting privileges asc requirements clinics geographic distribution reviewing evidence record far clear material impact access abortion clinic capacity relies petitioners expert grossman compared number abortions performed texas ascs enactment per year total number abortions per year state per year ante applying terms common sense infers ascs performed abortions time enactment lacked capacity perform abortions sought women texas inference obvious limitations first unassailable common sense hold current utilization equals capacity know grocery store currently serves customers per week ante fact alone tell us whether overcrowded minimart practically empty supermarket faced increased demand ascs potentially increase number abortions performed without prohibitively expensive changes among things might hire physicians perform utilize facilities intensively efficiently shift mix services provided second matters present purposes capacity ascs performed abortions prior enactment capacity available perform abortions statute took effect since enactment number ascs performing abortions increased six nine serious problem reasoning conclusion belied petitioners submissions first case petitioners asked vacate fifth circuit stay district injunction admitting privileges requirement pending appeal submitted chart previously provided district detailed capacity abortion clinics admitting privileges requirement take chart included appendix three facilities listed chart ascs capacity shown follows southwestern women surgery center dallas said capacity abortions year per week planned parenthood surgical health services center dallas said capacity abortions year per week planned parenthood center choice houston said capacity abortions year per week see appendix infra average capacity three ascs abortions per nine ascs performing abortions texas average capacity total capacity add assumed capacity two clinics operating pursuant judgment fifth circuit abortions per year total state abortions per year comparable total abortions performed texas year enacted app well excess abortion rate one expect subtracting apparent impact medication abortion restriction see supra clear vouch accuracy calculation might high low important point petitioners put evidence actual clinic capacity earlier case apparent reason done indeed asserts admitting privileges requirement took effect clinics able accommodate increased demand ante petitioners evidence suggested requirement effect capacity see supra point like question reason clinic closures petitioners discharge burden district engage type analysis conducted enjoining important state law much capacity potential obstacle abortion access distribution facilities throughout state might occur two challenged requirements causing closure clinics rural areas led situation large fraction women reproductive age live far away open clinic based holding planned parenthood southeastern casey appears need travel miles undue evidence case shows clinics state remained open judgment fifth circuit enjoined roughly women reproductive age state live within miles open facility lived outside range record show particular facilities closed real figure may even higher decline hold statistics justify facial invalidation requirements possibility admitting privileges requirement might caused closure lubbock reason issue facial injunction exempting houston clinics requirement dismiss situation women longer live within miles clinic result current doctrine localized problems addressed narrow challenges iv even right hold res judicata bar suit imposes undue burden abortion access fact wrong counts still wrong conclude admitting privileges surgical center provisions must enjoined entirety extraordinarily broad severability clause must considered enjoining portion application law challenged provisions survive substantial part faithfully applies clause regrettably enjoins full heedless controlling intent state legislature cf leavitt jane per curiam severability course matter state law applying severability clause admitting privileges requirement easy simply put requirement must upheld every city application pose undue burden surely pose burden anywhere eastern half state texans live virtually woman reproductive age lives miles open clinic see app petitioners expert testimony texas women reproductive age live within miles open clinics austin dallas fort worth houston san antonio unfortunately address state argument effect see brief respondents petitioners need show requirement caused specific west texas clinics close see supra entitled injunction tailored address closures applying severability surgical center requirement calls identification particular provisions asc regulations result imposition undue burden regulations lengthy detailed compliance might expensive compliance many others many serve important health safety purposes thus surgical center requirements judged package district nevertheless held surgical center requirements unconstitutional cases sustains holding grounds hard take seriously texas legislature passed left doubt intent question severability included provision mandating greatest degree severability possible full provision reproduced enough note provision every provision section subsection sentence clause phrase word act every application provisions act severable app pet cert drive home point severability applications law provision adds application provision act person group persons circumstances found invalid remaining applications provision persons circumstances shall severed may affected constitutionally valid applications act shall severed applications finds invalid leaving valid applications force legislature intent priority valid applications allowed stand alone ibid provision indisputably requires surgical center regulations unconstitutional left standing requiring abortion facility comply provision regulations applicable surgical centers application provision requires abortion clinics meet surgical center standards therefore applications unconstitutional severability clause plainly requires applications severed rest left intact possibly escape painfully obvious conclusion main argument need honor severability provision burdensome see ante remarkable argument supremacy clause federal courts may strike state laws violate constitution conflict federal statutes art vi cl exercising power federal courts must take great care power invalidate state law implicates sensitive relations federal courts authority state laws knocking provisions perfectly consistent federal law much bother separate unconstitutional provisions event hard case district separate bad provisions good petitioners identified particular provisions entail regard undue expense district concentrated analysis provisions fact petitioners trial brief doc lakey construction nursing requirements form basis plaintiffs challenge changed position district awarded blanket relief see petitioners told fifth circuit challenge broadly effort whatsoever parse specific aspects asc requirement find onerous otherwise infirm review asc requirement fact follows petitioners original playbook focuses construction nursing requirements well see ante detailed walkthrough tex admin code tit nursing construction see inflict enormous costs courts litigants ante single asc regulations petitioners targeted core challenge forgoing severability strikes numerous provisions plausibly impose undue burden example surgical center patients must treated respect consideration dignity tex admin code tit enjoined patients may given misleading advertising regarding competence capabilities organization enjoined centers must maintain fire alarm emergency communications systems eliminate azards might lead slipping falling electrical shock burns poisoning trauma enjoined enjoined center remodeled still use emporary sound barriers shall provided intense prolonged construction noises disturb patients staff occupied portions building vi enjoined centers must develop enforce policies concerning teaching publishing staff enjoined must obtain informed consent research patients enjoined center shall develop implement maintain effective ongoing data driven patient safety program also enjoined innocuous requirements invalidates nary wave hand responsible application severability provision leave much law intact minimum requirements challenged held constitutional applied clinics texas city surgical center providing abortions areas possibly undue burden abortion access moreover even district found surgical center requirement clearly constitutional new abortion facilities facilities already licensed surgical centers whole woman health lakey supp wd tex uphold every application every surgical center regulation pose undue burden least regulations petitioners never made specific complaint supported specific evidence wholesale refusal engage required severability analysis revives antagonistic construction cases involving abortion permissible reading statute avoided costs gonzales quoting stenberg carhart kennedy dissenting internal quotation marks omitted unwilling undertake careful severability analysis required reason strike applications challenged provisions proper course remand lower courts remedy tailored specific facts shown case try limit solution problem ayotte planned parenthood northern new decide cases particularly controversial issues take special care apply settled procedural rules neutral manner done therefore respectfully dissent appendix app emergency application vacate stay plaintiffs trial exh footnotes compare gonzales carhart stenberg carhart planned parenthood southeastern casey assuming physicians clinics vicariously assert women right abortion leavitt jane per curiam hodgson minnesota matheson williams zbaraz harris mcrae bellotti baird poelker doe per curiam beal doe maher roe women seeking abortions capably asserted rights plaintiffs see fallon strict judicial scrutiny ucla rev see also linzer carolene products preferred position individual rights louis lusky john hart ely harlan fiske stone const commentary skinner oklahoma ex rel williamson stone concurring citing carolene products suggest presumption constitutionality fully apply encroachments unenumerated personal liberty procreate footnotes see note developments law res judicata harv rev cleary res judicata reexamined yale brief abbott emphasis added see also evidence established result admitting privileges requirement approximately licensed abortion providers texas stop providing abortions result one three women texas unable access desired abortion services immediate reduction services caused admitting privileges requirement produce shortfall capacity providers serve women seeking abortions emphasis added even operative facts actual clinic closures claims two cases still suggests many clinics closed time fifth circuit decision first case time district decision present case comparing appeals said abbott effect admitting privileges requirement alone major texas cities continue multiple clinics many physicians obtain hospital admitting privileges district said case combined effect admitting privileges requirement ambulatory surgical center requirement supp wd tex surgical center requirement take effect september seven eight clinics remain open see ante obviously comparison show effect admitting privileges requirement alone greater time district decision second case simply put presents new clinic closures allegedly caused admitting privileges requirement beyond already accounted abbott discuss infra accompanying notes need quibble authorities stating facial relief sometimes appropriate even plaintiff requested relief ante assuming generally proper follow may done plaintiff precluded res judicata bringing facial claim see ante citing carolene products nashville walters hypothetical see ante may involve situation loss first suit prisoners continued drink water barred suing recover subsequent injuries suffered result simply means passage time allow prisoners present better evidence support claim successive suit barred reasons given event recourse move relief judgment see restatement second judgments see also sutliffe epping school hen defendant accused acts though occurring period time substantially sort similarly motivated fairness defendant well public convenience may require dealt action events said constitute one transaction internal quotation marks omitted monahan new york city dept corrections plaintiffs assertion new incidents arising application challenged policy also insufficient bar application res judicata huck dawson applying res judicata facts resulted earlier judgment caused continued damage explain infra closures presumably included count attributed first trial even petitioners abbott panel refusal consider developments since conclusion bench trial addressed evidence closures presented trial appeals fact credited evidence assuming clinics may required shut doors nevertheless concluded showing whatsoever woman lack reasonable access clinic within texas abbott decision therefore accepted factual premise common two actions namely admitting privileges requirement cause clinics close concluded petitioners proved burden access regardless rejecting abbott conclusion seems believe abbott also must refused accept factual premise see ante instead abbott appears addressed following developments permanent closure lubbock clinic brief abbott accounted among anticipated closures see appendix infra resumption abortion services fort worth brief acquisition admitting privileges austin abortion provider acquisition privileges physicians dallas san antonio see letter crepps cayce clerk abbott acquisition privileges physicians el paso killeen see letter crepps cayce clerk abbott mar enforcement requirement one houston provider lacked privileges see ibid citing texas medical board press release five months admitting privileges requirement taking effect fifth circuit abbott decision parties ample time inform developments petitioners never identified closures new closures already accounted trial evidence fact actual new developments largely favored state case time physicians austin dallas el paso fort worth killeen san antonio able come compliance one houston one clinic already identified trial expected close closed permanently abbott decision ignore developments quite likely favored petitioners see also marriage shaddle app child custody hope termination parental rights connors app civil commitment kent state alaska applying comment termination parental rights juvenile appeal strozzi app guardianship conservatorship andrulonis andrulonis md app modification alimony marriage pedersen app friederwitzer friederwitzer child custody proper standard facial challenges unsettled abortion context see gonzales comparing ohio akron center reproductive health ecause appellees making facial challenge statute must show set circumstances exists act valid internal quotation marks omitted casey opinion indicating statute impose undue burden large fraction cases relevant holding statutory provision facially invalid like gonzales supra decide question use large fraction formulation petitioners meet even test contrast applies large fraction standard without even acknowledging open question ante similar vein holds fraction relevant denominator women provision actual rather irrelevant restriction ibid quoting casey must confess understand holding purpose analysis presumably compare number women actually burdened number potentially burdened holding supposed use figure women actually burdened numerator denominator math fraction always pretty large fractions go report grand jury jud dist online http internet materials last visited june see house research laubenberg et bill analysis july online http higher standards prevent occurrence situation texas like one recently exposed philadelphia kermit gosnell convicted murder killing babies born alive patient also died substandard clinic attempts distinguish gosnell horror story pointing differences pennsylvania texas law see ante texas need pennsylvania precise position legislature rationally conclude similar law helpful rebuttal decl joseph potter doc abbott wd potter rebuttal see app complaint application preliminary permanent injunction abbott wd tex listing one clinic stafford two san antonio first case petitioners apparently even believe abortion clinics abilene bryan midland san angelo made close case petitioners submitted list clinics believed close severely limited capacity admitting privileges requirement four west texas clinics list see appendix infra trial planned parenthood executive specifically testified midland clinic closed funding cuts clinic medical director retired see tr abbott wd petitioners list planned parenthood testimony fit petitioners expert admission first case clinics closed result defunding potter rebuttal decl see stoelje abortion clinic closes corpus christi san antonio june online http provider retiring medical reasons plaintiffs exh whole woman health lakey wd admitted evidence stating houston clinic owner retiring practice petitioners required put proof reason closure particular clinics cite extrarecord corpus christi story highlight need proof kind evidence readily available fact petitioners deposed least one nonparty clinic owner burden posed see app recall first case petitioners put evidence purporting show admitting privileges requirement affect clinics see appendix infra petitioners chart clinics first case petitioners submitted report grossman coauthored testifying expert potter tr lakey lakey report predicted shortfall capacity due admitting privileges requirement prevent least women accessing abortion decl joseph potter doc abbott wd methodology used questionable see potter rebuttal decl potter admitted science evidence tr abbott wd case fact grossman admitted prediction turned wildly inaccurate specifically provided new figure approximately less half earlier prediction lakey tr admitted proven causal link admitting privileges requirement smaller decline quoting grossman et change abortion services implementation restrictive law texas contraception grossman testimony case furthermore suggested restriction medication abortion whose impact clinics attributed provisions challenged case major cause decline abortion rate medication abortion restriction admitting privileges requirement took effect next six months number medication abortions dropped compared period previous year see app corresponding number surgical abortions rose see ibid net decline six months doubled approximate annual trend apparently methodology grossman used arrive figure see contraception supra year drop abortions seems entirely product medication abortion restriction taken together figures make difficult conclude admitting privileges requirement actually depressed abortion rate light unclear takes grossman testimony face value asserts admitting privileges requirement bottleneck capacity ante musters evidence even dispute petitioners evidence admitting privileges requirement may zero impact texas abortion rate supra see brief petitioners six centers compared nine today two three new surgical centers opened since case filed operated planned parenthood owns five nine surgical centers state see app planned parenthood obviously able comply challenged requirements president petitioner whole woman health much smaller entity complained planned parenthood local independent businesses tough situation simon planned parenthood hits suburbia wall street journal online june cited brief citizenlink et al amici curiae noted petitioners case asserting rights women wish obtain abortion see supra thus effect requirements petitioners business professional interests relevant see appendix infra apparently brushes evidence outside record ante filed petitioners litigation closely related case may properly take judicial notice record litigation parties us shuttlesworth birmingham see also pink freshman atkins chart lists abortion clinics apparently open time trial identifies capacity privileges requirement clinics clinics owned plaintiffs first case coastal birth control center hill top women reproductive health services harlingen reproductive services owned nonparties unclear petitioners chart include capacity figures nine clinics also owned nonparties federal rule civil procedure petitioners able depose representatives clinics determine clinics capacity physicians access admitting privileges present case petitioners fact deposed least one nonparty clinic owner whose testimony revealed able comply admitting privileges requirement see app testimony el paso abortion clinic owner confirming possesses admitting privileges every hospital el paso filed seal chart clinics able perform abortions requirement took effect another clinic severely limited capacity see appendix infra nakedly asserts clinic represent facilities ante given case petitioners introduce evidence facilities idea arrives conclusion chides ante omitting whole woman health asc san antonio average abbott trial asc capacity allegedly severely limited admitting privileges requirement see appendix infra listing capacity privileges requirement facility came compliance requirement months later see letter crepps cayce clerk abbott precompliance capacity irrelevant petitioner whole woman health performed abortions years mcallen app petitioner nova health systems performed abortions years el paso explain infra either nova health systems another abortion provider open el paso area however case decided conclusion consistent public health statistics offered petitioners statistics suggest ascs much higher capacity abortion facilities abortions performed six surgical centers meaning abortions per center see brief petitioners app approximately abortion clinics operating texas see total clinics performed abortions total minus performed surgical centers average clinics performed abortions per year surgical centers performed abortions per facility abortions average clinics also gives weight supposed reductions individualized attention serious conversation emotional support analysis ante facts record way addressing see supra district casey found pennsylvania women must travel least one hour sometimes longer three hours obtain abortion nearest provider supp ed aff part rev part aff part rev part case recognized challenged waiting period require women make trip twice yet upheld law regardless see petitioners expert testified texas women reproductive age live within miles texas surgical center provides abortions see app women living miles away women total state expert testified without contradiction additional live within miles mcallen facility another within miles el facility award statewide relief assume instead either conclude availability abortion new mexico side el paso metropolitan area satisfies constitution award relief allowing petitioner nova health systems remain open el paso either way figure remain nova clinic new mexico facility close see six women reproductive age live within miles nova clinic new mexico clinic together percentages add texas women reproductive age separately state expert also testified women reproductive age lived miles abortion clinic took effect affects women reproductive age also recall many rural clinic closures appear caused developments indeed petitioners seemed believe certainly shown caused provisions challenged see supra true impact almost certainly smaller severability provision provisions act ever temporarily permanently restrained enjoined judicial order provisions texas law regulating restricting abortion shall enforced though restrained enjoined provisions adopted provided however whenever temporary permanent restraining order injunction stayed dissolved otherwise ceases effect provisions shall full force effect mindful leavitt jane context determining severability state statute regulating abortion held explicit statement legislative intent controlling intent legislature every provision section subsection sentence clause phrase word act every application provisions act severable application provision act person group persons circumstances found invalid remaining applications provision persons circumstances shall severed may affected constitutionally valid applications act shall severed applications finds invalid leaving valid applications force legislature intent priority valid applications allowed stand alone even reviewing finds provision act impose undue burden large substantial fraction relevant cases applications present undue burden shall severed remaining provisions shall remain force shall treated legislature enacted statute limited persons group persons circumstances statute application present undue burden legislature declares passed act provision section subsection sentence clause phrase word constitutional applications act irrespective fact provision section subsection sentence clause phrase word applications act declared unconstitutional represent undue burden omitted applies abortion ban provision act found unconstitutionally vague applications provision present constitutional vagueness problems shall severed remain force app pet cert