MODIFIED United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 13, 2020 No. 17-51060 Lyle W. Cayce Clerk Whole Woman's Health, On Behalf of Itself, Its Staff, Physicians and Patients; Planned Parenthood Center for Choice, On Behalf of Itself, Its Staff, Physicians, and Patients; Planned Parenthood of Greater Texas Surgical Health Services, On Behalf of Itself, Its Staff, Physicians, and Patients; Planned Parenthood South Texas Surgical Center, On Behalf of Itself, Its Staff, Physicians, and Patients; Alamo City Surgery Center, P.L.L.C., On Behalf of Itself, Its Staff, Physicians, and Patients, doing business as Alamo Women's Reproductive Services; Southwestern Women's Surgery Center, On Behalf of Itself, Its Staff, Physicians, and Patients; Curtis Boyd, M.D., On His Own Behalf and On Behalf of His Patients; Jane Doe, M.D., M.A.S., On Her Own Behalf and On Behalf of Her Patients; Bhavik Kumar, M.D., M.P.H., On His Own Behalf and On Behalf of His Patients; Alan Braid, , M.D., On His Own Behalf and On Behalf of His Patients; Robin Wallace, M.D., M.A.S., On Her Own Behalf and On Behalf of Her Patients, Plaintiffs—Appellees, versus Ken Paxton, Attorney General of Texas, In His Official Capacity; Sharen Wilson, Criminal District Attorney for Tarrant County, In Her Official Capacity; Barry Johnson, Criminal District Attorney for McLennan County, In His Official Capacity, Defendants—Appellants. No. 17-51060 Appeal from the United States District Court for the Western District of Texas, USDC No. 1:17-CV-690 Before Stewart, Dennis, and Willett, Circuit Judges. James L. Dennis, Circuit Judge: This appeal concerns the constitutionality of Texas Senate Bill 8 (“SB8” or “the Act”), a statute that requires a woman to undergo an additional and medically unnecessary procedure to cause fetal demise before she may obtain a dilation and evacuation (D&E) abortion, the safest and most common method of second trimester abortions. A number of licensed abortion clinics and physicians that provide abortion care services challenged that law, arguing that it would impose an undue burden on a woman’s right to obtain an abortion before fetal viability in violation of the Fourteenth Amendment’s Due Process clause. The district court agreed, declared the Act facially unconstitutional, and permanently enjoined its enforcement. The State appealed. Because SB8 unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion, we AFFIRM. I. In Texas and nationwide, a D&E abortion is the most common method of abortion after the first 15 weeks of pregnancy, as measured from a woman’s last menstrual period (LMP).1 As its name suggests, D&E is a two- step procedure. First, in the dilation stage, a physician dilates a woman’s 1 The gestational age of a fetus is measured by the time elapsed since the woman’s last menstrual period (LMP). A woman’s pregnancy is also commonly separated into three trimesters. The first trimester runs from the first through twelfth week and the second trimester runs from the thirteenth through twenty-sixth week. See Stenberg v. Carhart, 530 U. S. 914, 923-25 (2000). The third trimester begins the ...
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