Take the Fifth: Oct. 22, 2020 opinions

Designated for publication

• Whole Woman’s Health v. Paxton, 17-51060, appeal from W.D. Tex., designated for publication
  • Dennis, J. (Stewart, Dennis, Willett), Willett, J., dissenting; abortion law; Opinion originally released on October 13, 2020; released in “MODIFIED” form on Oct. 22 in order to append Judge Willett’s dissent; Take the Fifth‘s original summary of the majority opinion repeated here.
  • Affirming district court’s judgment permanent injunction against the enforcement of Texas Senate Bill 8 (“SB8”) and its requirement that “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,” as facially unconstitutional under the Fourteenth Amendment’s Due Process Clause by unduly burdening a woman’s constitutionally protected right to obtain a pre-viability abortion.
  • The Court started with a recognition of Roe‘s foundational premise: “Since the Supreme Court’s landmark decision nearly fifty years ago in Roe v. Wade, 410 U.S. 113 (1973), it has been clear that the Fourteenth Amendment guarantees a woman’s right to choose to undergo a previability abortion.” The Court then summarized the balancing analysis put forward in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992): “It protected, on the one hand, a woman’s right to ‘mak[e] the ultimate decision to terminate her pregnancy.’ Casey, 505 U.S. at 879. On the other hand, it recognized that the state may enact previability regulations designed ‘to further the health or safety of a woman seeking an abortion’ or ‘to express profound respect for the life of the unborn’ so long as those regulations do not create ‘a substantial obstacle to the woman’s exercise of the right to choose.’ Id. at 877-78.”
  • The Court then looked to whether the Supreme Court’s most recent decision on abortion restrictions altered the Casey balancing test: “[I]n June Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103, 2114 (2020)[,] … a 4-1-4 Court invalidated a Louisiana law that imposed an admitting-privileges requirement on abortion providers because the law imposed an undue burden on a woman’s right to obtain an abortion. Id. at 2112-13. The four Justice plurality applied the balancing approach elucidated in Whole Woman’s Health, weighing the statute’s asserted benefits against its burdens. See id. at 2121-32. In a solo opinion concurring in the judgment, Chief Justice Roberts rejected the balancing test, stating that the undue burden test requires looking only to the burdens of an abortion regulation. See id. at 2136-37 (Roberts, C.J., concurring in the judgment).” After having ordered supplemental briefing by the parties as to whether June Medical Services altered the test the Court should apply here, the Court rejected the Texas state defendants’ argument that Chief Justice Roberts’ narrower formulation had become the governing standard, agreeing with the plaintiffs that “the [June Medical Services] Court’s split decision supplies no such precedential rule on the undue burden test.” Applying the analytical framework from Marks v. United States, 430 U.S. 188 (1977), the Court held that “the [June Medical] plurality’s and concurrence’s descriptions of the undue burden test are not logically compatible, and June Medical thus does not furnish a controlling rule of law on how a court is to perform that analysis.” (The Court recognized that the Eighth Circuit has reached the contrary conclusion as to whether Chief Justice Roberts’ concurring opinion provides a controlling legal standard).
  • The Court began its analysis under the balancing test by noting that the State’s formulation of the burdens of SB8 as allowing for multiple “alternative” procedures for causing fetal demise was subject to a “fundamental flaw”: “Fetal-demise procedures are not, by definition, alternative procedures, because a patient who endures such a procedure must still undergo the entirety of a standard D&E. Instead, fetal-demise procedures are additional procedures. Additional procedures, by nature, expose patients to additional risks and burdens. No party argues that these procedures are necessary or provide any medical benefit to the patient.” (Internal quotation marks and citations omitted). The Court then analyzed the three procedures of fetal demise proposed by the State–injecting digoxin into the fetus or amniotic fluid, injecting potassium chloride directly into the fetal heart, and transecting the umbilical-cord–and found no clear error in the district court’s fact-findings that each of these procedures entailed unnecessary and severe risks, unreliability, and potential for health complications for the mother.
  • Summarizing its findings regarding the burdens imposed by SB8, the Court held, “Under the statute, all women seeking a second trimester abortion starting at 15 weeks LMP would be required to endure a medically unnecessary and invasive additional procedure that provides no health benefit. The law increases the duration of what otherwise is a one-day D&E procedure. For most women, the length of the procedure would increase from one day to two, adding to the costs associated with travel, lodging, time away from work, and child care. This delay would be particularly burdensome for low-income women, many of whom must wait until the second trimester to seek an abortion because of the time needed to obtain funds to pay for the procedure. SB8 also forces abortion providers to act contrary to their medical judgment and the best interest of their patient by conducting a medical procedure that delivers no benefit to the woman. And without substantial additional training, the State’s proposed fetal-demise methods are not feasible for any physician other than subspecialists in the high-risk field of maternal-fetal medicine.”
  • The Court then turned to the other side of the Casey balance, and examined the State’s suggested interests and benefits of SB8. The Court observed that, “[b]ecause some may sincerely believe that requiring fetal demise before the D&E procedure advances respect for potential life, we assume without deciding that SB8 provides a limited benefit in this respect.” The Court then rejected the State’s argument that SB8 advances the State’s interest in advancing ethics in the medical profession: “Whatever SB8 arguably may do to advance the State’s interest in the medical profession is negated by the Act’s forcing of physicians to act contrary to what is best in their medical judgment for their patients.” The Court also rejected the State’s argument that SB8 advances the interest of ensuring women are fully informed about the D&E procedure, noting that SB8 does not require the woman to be fully informed about the fetal-demise procedures. The Court also held that the State’s argument for aligning its laws with those of the international community was not a valid State interest where the countries whose laws were being compared to did not provide the same constitutional protections as ours. The Court also found no merit in the State’s urged interest that SB8 prevents fetal pain, as nothing in the record supported that fetus’s experience pain prior to 22 weeks LMP, nor was their support that the fetal demise procedures would themselves cause less fetal pain.
  • The Court then concluded its balancing analysis by holding, “Weighing SB8’s significant burdens upon female patients against its nonexistent health benefits and any other limited benefits it may actually confer, it is clear that the law places a ‘substantial obstacle in the path of a woman seeking’ a previability abortion.”
  • Finally, the Court upheld the district court’s finding of facial unconstitutionality, noting that it was “without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent”; that “[t]he State offers no such construction”; and that “no such construction is possible because … SB8 operates as an undue burden in all of its applications where it is a relevant restriction.”
  • Judge Willett dissents to provide a more graphic level of description of the procedures involved: “The majority opinion spurns what the Supreme Court has called the State’s ‘legitimate and substantial interest in preserving and promoting fetal life’ as ‘minimal at most.’ Such breezy disregard is unserious. No constitutional right is absolute (even the categorically worded ones expressly enshrined in the Bill of Rights). Yet the majority takes the view that a woman’s right to have an abortion has no end while the State’s interest in recognizing fetal humanity has no beginning. Rhetoric must not befog reason. The majority uses gauzy, evasive language to minimize the reality of D&E and to maximize, but never quantify, the risks of various ‘fetal-demise’ techniques. The majority then relies on this imprecision to evade exacting analysis. But without fully understanding the procedures at issue, one cannot fully understand the State’s asserted interest in reducing the barbarism of D&E on a living unborn child by requiring more humane alternatives—alternatives Plaintiffs have long used, and touted as safe, in their own provision of abortion services.”
  • On the legal analysis, Judge Willett posits that Chief Justice Roberts’s June Medical concurrence combined with Justice Kavanaugh’s rejection of the Hellerstedt benefit-burden weighing test provided a five-justice rejection of Hellerstedt and a necessity to turn instead to the Planned Parenthood of Southeastern Pennsylvania v. Casey undue-burden analysis.

• Will v. Lumpkin, 18-70030, appeal from S.D. Tex.
  • Willet, J. (Owen, Willett, Ho), habeas corpus, ineffective assistance of counsel, AEDPA
  • On petition for panel rehearing, the panel granted the petition for rehearing of the original panel decision issued on August 17, 2020, and entered a new opinion with the same substantive result: Affirming the district court’s denial of petitioner’s habeas petition and claims for ineffective assistance of counsel and inherent trial prejudice under “the arduous standard of review in the Anti-Terrorism and Effective Death Penalty Act,” and affirming the district court’s denial of petitioner’s Rule 60(b) motion as an impermissible successive habeas petition.
  • Regarding the use of Rule 60(b) motions in federal habeas actions, the Court held, “[I]n the habeas context, Will’s Rule 60(b) motion runs headlong into AEDPA’s restriction on successive habeas applications. Why? Because we—the federal judiciary—are concerned that petitioners will use Rule 60(b) motions to subvert the statutory framework and get an impermissible second look at their denied habeas claims.15 So, we must ask, was Will’s Rule 60(b) motion actually an impermissible successive habeas petition in disguise? The answer: yes, if his Rule 60(b) motion contains one or more previously presented habeas claims.”
  • The district court had denied petitioner’s ineffective assistance of counsel claim as procedurally defaulted because he had not raised that claim in state post-conviction proceedings. Relying on Martinez v. Ryan, 566 U.S. 1, 9 (2012), petitioner brought a Rule 60(b) motion arguing that the ineffectiveness of his counsel in his state post-conviction proceedings excused the procedural default. The district court denied that Rule 60(b) motion as an impermissible successive habeas petition but also alternatively ruled that the IAC claim was insufficient on the merits. The Court of Appeals held, “Because we hold that a robust merits analysis in the alternative is a merits determination, the court’s procedural disposition did not ‘preclude[] a merits determination.'”
  • The Court then held on the merits of petitioner’s inherent trial prejudice claim that the state court did not violate clearly established Supreme Court precedent when it denied relief on petitioner’s claim that the presence of uniformed officers in the courtroom gallery constituted impermissible prejudice because no Supreme Court decision “clearly establishes when uniformed, off duty officers in the courtroom gallery generate inherent prejudice.” (Emphasis added).

• Cotropia v. Chapman, 19-20688, appeal from S.D. Tex.
  • Smith, J. (Smith, Clement, Oldham), Oldham, J., concurring; § 1983, warrantless search, qualified immunity
  • Affirming district court’s dismissal under qualified immunity of § 1983 claims against Texas Medical Board examiner for alleged search and seizure of document from medical office without warrant.
  • District court had granted a Rule 12 motion to dismiss on qualified immunity grounds, but the Fifth Circuit had reversed, Cotropia v. Chapman, 721 F. App’x 354 (5th Cir. 2018), holding that Cotropia “alleged sufficient facts to show that Chapman . . . violated the clearly established right to an opportunity to obtain precompliance review of an administrative subpoena before a neutral decisionmaker.” Id. at 357. On remand, in summary judgment proceedings the defendant re-urged qualified immunity and argued that she had reasonably relied on the Texas Administrative Code and Texas Occupations Code in seizing several documents under the administrative subpoena. The district court agreed and granted summary judgment.
  • The Court held that a warrantless search without an opportunity for precompliance review of the relevant subpoena may satisfy Fourth Amendment challenge under an “administrative exception.” While the Fifth Circuit had previously held that the medical field as a whole did not qualify for the administrative exception under Texas law, the Court here held that the pain management clinic (“PMC”) sub-set of the field was a closely regulated industry that would fit within the exception’s scope. The Court then held that the right to precompliance review was not clearly established within the PMC industry at the time of the search.
  • Judge Oldham concurred, pointing out the long history of permissible guild searches and to assert that there was no need to reach the Constitutional inquiry in order to apply qualified immunity.

• Gonzalez v. Mathis Independent School District, 19-40776, appeal from S.D. Tex.
  • Higginbotham, J. (Owen, Higginbotham, Willett), Texas Religious Freedom Restoration Act
  • Affirming district court injunction as to “religiously motivated hairstyle” for one brother, but vacating district court injunction as to other brother.
  • When one brother was young and his mother was pregnant with his other brother, he contracted bacterial meningitis. His parents made a promesa to God that, if he survived, they would leave one lock of each brother’s hair uncut. In sixth grade, the parents gave the brothers a choice to cut the lock or to adopt the promesa as their own, which they did. From kindergarten through middle school the School District granted the brothers a religious exemption from a District rule prohibiting participation in extracurricular activities for failure to abide by the District dress code, which included male students keeping their hair cut above their collars. Thereafter, when one brother, C.G., was playing football, a coach told him he could not play until he cut his lock. The School District denied the parents’ administrative petition and appeal from this prohibition. Subsequently, the other brother, D.G., was informed he could not participate in science team competitions until he complied with the dress code, and C.G. was informed he could not participate in any after-school-hours activities while in noncompliance.
  • The district court granted the parents a preliminary injunction from enforcement of the dress code against the brothers prior to the 2019-20 school year, rejecting the School District’s argument that it was immune from the claims under the Texas Religious Freedom Restoration Act (“TRFRA”) because the parents had failed to comply with TRFRA’s pre-suit notice requirements.
  • The Court recognized that TRFRA allows suit without pre-suit notice, thereby overcoming Texas-law governmental immunity under the act, where the governmental action substantially threatening the plaintiff’s religious freedom is imminent and where the plaintiff was not informed of the governmental action in time to reasonably provide notice. The Court held that C.G. fell within this exception; but that the district court failed to consider whether D.G.’s late addition to the suit two months after it was initiated satisfied the exception to the pre-suit notice requirement, and thereby vacated the preliminary injunction as to him.
  • The Court recognized that this split ruling may ultimately be of little consequence, however: “This disposition may prove to be of little practical consequence; both brothers are constrained by MISD’s hair policy and should the district court ultimately conclude that the policy is invalid under TRFRA, D.G. may enjoy the benefits from that ruling and the strong protections afforded students by TRFRA going forward, matters not now before this Court.”

Unpublished

• Martinez-Martinez v. Barr, 18-60337, petition for review of BIA Order
  • per curiam (Owen, Haynes, Costa), immigration
  • Denying in part and dismissing in part petition for review of BIA Order dismissing appeal of IJ’s order denying applications for asylum, withholding of removal, and protection under the Convention Against Torture.

• Lewis v. U.S., 19-10788, appeal from N.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), habeas corpus
  • Dismissing appeal of dismissal of § 2241 petition as frivolous.

• Coats v. Watson, 19-40311, appeal from E.D. Tex.
  • per curiam (Jolly, Elrod, Graves), habeas corpus
  • Affirming dismissal of § 2241 petition.

• Hernandez-Velazquez v. Barr, 19-60375, petition for review of BIA Order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Dismissing for want of jurisdiction petition for review of BIA Order dismissing appeal of IJ ruling ordering removal.

• Luna v. Lumpkin, 19-70002, appeal from W.D. Tex.
  • Costa, J. (Dennis, Graves, Costa), habeas corpus, ineffective assistance of counsel
  • Affirming denial of habeas petition under AEDPA for trial counsel’s deficient presentation of mitigation evidence at sentencing, where petitioner had told jury he was a danger to society and should receive death penalty, and jury did sentence him to death.

• Ards v. Monroe, 20-20132, appeal from S.D. Tex.
  • per curiam (Willett, Ho, Duncan), § 1983, prisoner suit
  • Denying IFP and dismissing appeal of dismissal of claim as frivolous.

• U.S. v. Tapia-Barajas, 20-40029, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming within-Guidelines sentence.