579 U.S. 582 (2016)
In July 2013 the Texas Legislature enacted House Bill 2.1
The bill contained an admitting-privileges requirement for physicians performing abortions and a surgical-center requirement for abortion facilities.2
Before the law took effect a group of Texas abortion providers filed the Abbott case seeking facial invalidation of the admitting-privileges provision.3 The district court initially enjoined the provision but the Fifth Circuit vacated the injunction and later upheld the requirement on the basis of evidence presented before enforcement.4
On April 6 2014 petitioners a group of abortion providers that included some Abbott plaintiffs filed this suit in federal district court.5 They sought as-applied relief against the admitting-privileges requirement for facilities in McAllen and El Paso and a statewide injunction against the surgical-center requirement claiming violations of the Fourteenth Amendment.6
The district court held a four-day bench trial and received stipulations expert depositions and testimony.7 It found that the number of facilities providing abortions dropped in half from about 40 to about 20 after the admitting-privileges requirement began to be enforced.8 It found that the number of women of reproductive age living more than 50 miles from a clinic doubled.9 The number living more than 100 miles away increased by 150 percent.10 The number living more than 150 miles away increased by more than 350 percent.11 The number living more than 200 miles away increased by about 2,800 percent.12
It found that the number of facilities would drop to seven or eight if the surgical-center provision took effect.13 It found that before H. B. 2's passage abortion was an extremely safe procedure with very low rates of complications and virtually no deaths.14 It found that abortion was safer than many more common procedures not subject to the same level of regulation.15 It found that the cost of compliance with the surgical-center requirement would most likely exceed 1.5 million dollars to 3 million dollars per clinic.16
On the basis of these findings the district court enjoined enforcement of both provisions.17 The Fifth Circuit reversed in significant part holding that res judicata barred the challenges and that both requirements were constitutional.18 The case reached the Supreme Court.
Whether res judicata bars petitioners' challenges to the admitting-privileges requirement?19
The doctrine of claim preclusion prohibits successive litigation of the very same claim by the same parties.20
No. Although the Abbott case involved a pre-enforcement facial challenge based on evidence presented before the admitting-privileges requirement began to be enforced when it was unclear how clinics would be affected, this case involves a post-enforcement as-applied challenge based on later concrete factual developments that occurred once enforcement started and a significant number of clinics closed.21 The postenforcement consequences of H. B. 2 were unknowable before it went into effect.22
Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim.23
Res judicata does not bar petitioners' challenges to the admitting-privileges requirement.24
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Justice Thomas argued in dissent that the very existence of this suit is a jurisprudential oddity because ordinarily plaintiffs cannot file suits to vindicate the constitutional rights of others.25 The Court's permissive approach to third-party standing encourages litigation that deprives the Court of the information needed to resolve the issue of whether there is an undue burden on a woman's access to abortion.26 This approach produces serious anomalies across similar factual scenarios and ultimately shows why the Court never should have bent the rules for favored rights in the first place.27
Whether res judicata bars petitioners' challenge to the surgical-center requirement?28
Challenges to distinct regulatory requirements are ordinarily treated as distinct claims.29 The surgical-center provision and the admitting-privileges provision are separate provisions with two different and independent regulatory requirements.
No. The surgical-center provision and the admitting-privileges provision are separate distinct provisions of H. B. 2 with different enforcement dates.30 The surgical-center provision's implementing regulations had not even been promulgated at the time Abbott was filed.31 The relevant factual circumstances changed between the two suits.32 The Court of Appeals failed to take account of meaningful differences between the two provisions.33
Res judicata does not bar petitioners' challenge to the surgical-center requirement.34
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Joined by Chief Justice Roberts And Justice Thomas
Justice Alito argued in dissent that the constitutionality of laws regulating abortion is one of the most controversial issues in American law but this case does not require us to delve into that contentious dispute.35 Instead the dispositive issue here concerns a workaday question that can arise in any case no matter the subject namely whether the present case is barred by res judicata.36 As a court of law we have an obligation to apply such rules in a neutral fashion in all cases regardless of the subject of the suit.37
If anything when a case involves a controversial issue we should be especially careful to be scrupulously neutral in applying such rules.38
Whether the admitting-privileges requirement imposes an undue burden on a woman's right to choose a previability abortion?39
Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.40
Yes. The requirement's purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure.41 The district court found no significant health-related problem for the new law to cure based on extremely low rates of serious complications before H. B.
2's passage.42 At the same time the requirement places a substantial obstacle in a woman's path to abortion.43 The dramatic drop in the number of clinics means fewer doctors longer waiting times increased crowding and a significant increase in the distance women of reproductive age live from an abortion clinic.44
The admitting-privileges requirement imposes an undue burden on a woman's right to choose a previability abortion.45
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Justice Ginsburg concurred separately.46 Complications from an abortion are both rare and rarely dangerous.47 Many medical procedures including childbirth are far more dangerous to patients yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.48
The law would simply make it more difficult for women to obtain abortions.49 When a State severely limits access to safe and legal procedures women in desperate circumstances may resort to unlicensed rogue practitioners at great risk to their health and safety.50 So long as this Court adheres to Roe v. Wade and Casey targeted regulation of abortion providers laws like H.
B. 2 that do little or nothing for health but rather strew impediments to abortion cannot survive judicial inspection.51
Whether the surgical-center requirement imposes an undue burden on a woman's right to choose a previability abortion?52
Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
Yes. The surgical-center requirement provides few if any health benefits for women.53 Risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.54 Abortions taking place in an abortion facility are safe indeed safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements.55
At the same time the requirement places a substantial obstacle in the path of women seeking an abortion.56 The seven or eight remaining facilities could not meet the demand of the entire state.57
The surgical-center requirement imposes an undue burden on a woman's right to choose a previability abortion.58
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Justice Thomas argued in dissent that the majority radically rewrites the undue-burden test in three ways.59 Courts must now consider the burdens a law imposes on abortion access together with the benefits those laws confer.60 Courts must refuse to defer to legislative judgments on medical uncertainty.61
The majority's approach transforms the undue-burden test into something much more akin to strict scrutiny.62 The majority eviscerates important features of the test to return to a regime like the one that Casey repudiated.63