WHOLE WOMAN HEALTH v. YOUNG (2022)

United States Court of Appeals, Fifth Circuit.

WHOLE WOMAN'S HEALTH; Brookside Women's Medical Center, P.A., doing business as Brookside Women's Health Center and Austin Women's Health Center; Lendol L. Davis, M.D.; Alamo City Surgery Center, P.L.L.C., doing business as Alamo Women's Reproductive Services; Whole Woman's Health Alliance; Dr. Bhavik Kumar, Plaintiffs—Appellees, v. Cecile Erwin YOUNG, Executive Commissioner of the Texas Health and Human Services Commission, in her Official Capacity, Defendant—Appellant.

No. 18-50730

Decided: June 28, 2022

Before Barksdale, Stewart, and Costa, Circuit Judges.

Molly Rose Duane, Autumn Chandra Katz, Senior Counsel, Center for Reproductive Rights, U.S. Legal Program, New York, NY, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY, Caroline Marie Sacerdote, Center for Reproductive Rights, U.S. Litigation, New York, NY, Rupali Sharma, Lawyering Project, South Portland, ME, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, Brooklyn, NY, for Plaintiffs—Appellees Whole Woman's Health, Brookside Women's Medical Center, P.A., Lendol L. Davis, M.D., Alamo City Surgery Center, P.L.L.C., and Dr. Bhavik Kumar. Autumn Chandra Katz, Senior Counsel, Center for Reproductive Rights, U.S. Legal Program, New York, NY, Joseph Alexander Lawrence, Esq., Morrison & Foerster, L.L.P., New York, NY, Rupali Sharma, Lawyering Project, South Portland, ME, Stephanie Toti, Esq., Staff Attorney, Lawyering Project, Brooklyn, NY, for Plaintiff—Appellee Whole Woman's Health Alliance. Beth Ellen Klusmann, Esq., Office of the Attorney General for the State of Texas, Austin, TX, Darren McCarty, McCarty Law, P.L.L.C., Austin, TX, for Defendant—Appellant Cecile Erwin Young. Stuart Sarnoff, O'Melveny & Myers, L.L.P., New York, NY, for Amicus Curiae Biomedical Ethicists. Susan J. Kohlmann, Jenner & Block, L.L.P., New York, NY, for Amici Curiae American College of Obstetricians and Gynecologists, American Public Health Association, and American Medical Association. Saul B. Shapiro, Jane Metcalf, Patterson, Belknap, Webb & Tyler, L.L.P., New York, NY, for Amici Curiae Catholics for Choice, Central Conference of American Rabbis, General Synod of the United Church of Christ, Just Texas: Faith Voices for Reproductive Justice, Muslims for Progressive Values, Religious Coalition for Reproductive Choice, Religious Institute, Union for Reform Judaism, Unitarian Universalist Association, and Women of Reform Judaism. Elaine Goldenberg, Munger, Tolles & Olson, L.L.P., Washington, DC, for Amici Curiae Walter Dellinger, Michael C. Dorf, Daniel Farber, Joanna Grossman, Leah Litman, Suzanna Sherry, Geoffrey R. Stone, and Mary Ziegler.

The district court enjoined Texas laws regulating the disposal of embryonic and fetal tissue remains. The state requires facilities performing abortions to dispose of these remains in one of four ways: “(1) interment”; (2) cremation; (3) incineration followed by interment; or (4) steam disinfection followed by interment. Tex. Health & Safety Code § 697.004(a). Ashes resulting from cremation or incineration “may be interred or scattered in any manner as authorized by law for human remains,” but “may not be placed in a landfill.” Id. § 697.004(b).

The district court assumed that the Texas laws further a legitimate state interest. See Box v. Planned Parenthood of Ind. & Ky., Inc., ––– U.S. ––––, 139 S. Ct. 1780, 1782, 204 L.Ed.2d 78 (2019) (holding that similar Indiana law was rationally related to a “legitimate interest in proper disposal of fetal remains” (quoting Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 452 n.45, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983))). The court then applied the “undue burden” standard of Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 843, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion), overruled by Dobbs v. Jackson Women's Health Org., ––– U.S. ––––, 142 S.Ct. 2228, ––– L.Ed.2d –––– (June 24, 2022). Under the Casey balancing approach, the district court concluded that “the challenged laws impose significant burdens on abortion access that far outweigh the benefits the challenged laws confer.” It thus held that the laws restricting the methods for disposal of fetal remains violate the Due Process Clause of the Fourteenth Amendment. It went on to hold that the laws also violate the Equal Protection Clause.

Last week, the Supreme Court overruled Casey and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). See Dobbs, 142 S.Ct. at 2284. Dobbs holds that “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Id. Accordingly, we VACATE the injunction issued in this case and REMAND for further proceedings consistent with Dobbs.

Per Curiam:

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