REVISED January 17, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50814

TEXAS MEDICAL PROVIDERS PERFORMING ABORTION SERVICES,

a class represented by Metropolitan OBGYN, P.A.;

on behalf of itself and its patients seeking abortions,

doing business as Reproductive Services of San Antonio;

ALAN BRAID, on behalf of himself and his patients seeking abortions,

Plaintiffs - Appellees

v.

DAVID LAKEY, Commissioner of the Texas Department of

State Health Services, in his official capacity;

MARI ROBINSON, Executive Director of the 

Texas Medical Board, in her official capacity,

Defendants - Appellants

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

Physicians and abortion providers — collectively representing all similarly

situated Texas Medical Providers Performing Abortion Services (“TMPPAS”) —

sued the Commissioner of the Texas Department of State Health Services and

United States Court of Appeals

Fifth Circuit

F I L E D

January 10, 2012

Lyle W. Cayce

Clerk
No. 11-50814 

2

the Executive Director of the Texas Medical Board (collectively “the State”)

under 42 U.S.C. § 1983 for declaratory and injunctive relief against alleged

constitutional violations resulting from the newly-enacted Texas House Bill 15

(“the Act”), an Act “relating to informed consent to an abortion.” H.B. 15, 82nd

Leg. Reg. Sess. (Tex. 2011). The district court granted a preliminary injunction

against four provisions for violating the First Amendment and three others for

unconstitutional vagueness. We conclude, contrary to the district court, that

Appellees failed to establish a substantial likelihood of success on any of the

claims on which the injunction was granted, and therefore VACATE the

preliminary injunction. For the sake of judicial efficiency, any further appeals

in this matter will be heard by this panel.

Background

H.B. 15, passed in May 2011, substantially amended the 2003 Texas

Woman’s Right to Know Act (“WRKA”). The amendments challenged here are

intended to strengthen the informed consent of women who choose to undergo

abortions. The amendments require the physician “who is to perform an

abortion” to perform and display a sonogram of the fetus, make audible the

heart auscultation of the fetus for the woman to hear, and explain to her the

results of each procedure and to wait 24 hours, in most cases, between these

disclosures and performing the abortion. TEX. HEALTH & SAFETY CODE

§ 171.012(a)(4). A woman may decline to view the images or hear the heartbeat,

§ 171.0122(b), (c), but she may decline to receive an explanation of the sonogram

images only on certification that her pregnancy falls into one of three statutory

exceptions. Id. at § 171.0122(d). 

Any woman seeking an abortion must also complete a form indicating that

she has received the required materials, understands her right to view the
No. 11-50814 

3

requisite images and hear the heart auscultation, and chooses to receive an

abortion. § 171.012(a)(5). The physician who is to perform the abortion must

maintain a copy of this form, generally for seven years. Id. at § 171.0121(b)(1)-

(2). 

If a woman ultimately chooses not to receive an abortion, the physician

must provide her with a publication discussing how to establish paternity and

secure child support. § 171.0123. 

Finally, the Act amended the Texas Occupations Code to deny or revoke

a physician’s license for violating these provisions. TEX.OCC.CODE § 164.055(a).

The Act went into effect on September 1, 2011, and was scheduled to apply to

abortions after October 1, 2011.

Appellees filed suit on June 13, requesting a preliminary injunction

shortly thereafter. Following extensive briefing, the district court preliminarily

enjoined the disclosure provisions of the Act described above on the ground that

they “compel speech” in violation of the First Amendment. The district court

partially enjoined three other sections of the Act as void for vagueness: the

phrase “the physician who is to perform the abortion,” certain situations in

which the district court viewed the obligations of the physician and the rights of

the pregnant woman as conflicting, and enforcement of the Act against

physicians for failing to provide informational materials when they do not know

that a woman elected not to have an abortion.

The State promptly appealed and sought a stay pending appeal, which the

district court denied. A motions panel of this court carried with the case the

motion to stay enforcement of the preliminary injunction, but also ordered

expedited briefing and oral argument.

Stay of Appellate Review
No. 11-50814 

4

Appellees urge this court to defer ruling on the preliminary injunction

because the district court has, notwithstanding this appeal, proceeded apace

toward consideration of summary judgment. It is contended that our ruling on

this interlocutory matter would become moot if the district court enters final

judgment first, and that the district court will resolve issues not raised or

decided at the preliminary phase. We decline to defer. First, this ruling will

offer guidance to the district court, which is particularly important given our

different view of the case. Second, the unresolved issues below are of secondary

importance. Third, Appellees do not assert that fact issues pertinent to our

ruling remain insufficiently developed.

Standard of Review

“To be entitled to a preliminary injunction, the applicant[s] must show

(1) a substantial likelihood that [they] will prevail on the merits, (2) a

substantial threat that [they] will suffer irreparable injury if the injunction is

not granted, (3) [their] substantial injury outweighs the threatened harm to the

party whom [they] seek to enjoin, and (4) granting the preliminary injunction

will not disserve the public interest.” Bluefield Water Ass’n, Inc. v. City of

Starkville, Miss., 577F.3d 250, 252-53 (5th Cir. 2009) (internal citation omitted).

“We have cautioned repeatedly that a preliminary injunction is an extraordinary

remedy which should not be granted unless the party seeking it has ‘clearly

carried the burden of persuasion on all four requirements.’” Id. (quoting Lake

Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003)).

An “absence of likelihood of success on the merits is sufficient to make the

district court’s grant of a preliminary injunction improvident as a matter of law.”

Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003).
No. 11-50814 

5

We review legal conclusions made with respectto a preliminary injunction grant

de novo. Bluefield Water Ass’n, 577 F.3d at 253.

Discussion

I. First Amendment 

Appellees contend that H.B. 15 abridges their First Amendment rights by

compelling the physician to take and display to the woman sonogram images of

her fetus, make audible its heartbeat, and explain to her the results of both

exams. This information, they contend, is the state’s “ideological message”

concerning the fetal life that serves no medical purpose, and indeed no other

purpose than to discourage the abortion. Requiring the woman to certify the

physician’s compliance with these procedures also allegedly violates her right

“not to speak.” In fashioning their First Amendment compelled speech

arguments, which the district court largely accepted, Appellees must confront

the Supreme Court’s holding in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992), that reaffirmed a

woman’s substantive due process rightto terminate a pregnancy but also upheld

an informed-consent statute over precisely the same “compelled speech”

challenges made here. Following Casey, an en banc decision of the Eighth

Circuit has also upheld against a compelled speech attack another informed

consent provision regulating abortion providers. Planned Parenthood
No. 11-50814 

1 See Planned Parenthood Minn. v. Rounds, 375 F.Supp.2d 881 (D.S.D. June 30, 2005)

(granting preliminary injunction) (vacated); Planned Parenthood Minn., N.D., S.D. v. Rounds,

530 F.3d 724 (8th Cir. June 27, 2008) ( en banc) (vacating grant of preliminary injunction and

remanding); Planned Parenthood Minn., N.D., S.D. v. Rounds, 650 F.Supp.2d 972 (D.S.D.

August 20, 2009) (granting partial summary judgment in favor of plaintiffs and partial

summary judgment in favor of defendants) (affirmed in part, reversed in part); Planned

Parenthood Minn. v. Rounds, 653 F.3d 662 (8th Cir., Sept. 2, 2011) (reversing grant of

summary judgment in favor of plaintiffs on all but one claim and remanding) (vacated in part);

Planned Parenthood Minn., N.D., S.D, v. Rounds, 662 F.3d 1072 (8th Cir. December 7, 2011)

(vacating panel's affirmance of partial summary judgment in favor of plaintiffs and granting

rehearing en banc on that issue).

2The descriptionincludeda month by month explanationof prenatalfetaldevelopment.

6

Minnesota, et al. v. Rounds, 653 F.3d 662 (8th Cir. 2011).1 We begin this

analysis with Casey.

The law at issue in Casey required an abortion provider to inform the

mother of the relevant health risks to her and the “probable gestational age of

the unborn child.” Casey, 505 U.S. at 881, 112 S. Ct. at 2822. The woman also

had to certify in writing that she had received this information and had been

informed by the doctor ofthe availability of various printed materials “describing

the fetus and providing information about medical assistance for childbirth,

information about child support from the father, and a list of agencies which

provide adoption and other services as alternatives to abortion.”2Id. Planned

Parenthood contended that all ofthese disclosures operate to discourage abortion

and, by compelling the doctor to deliver them, violated the physician’s First

Amendment free-speech rights. Planned Parenthood urged application of the

strict scrutiny test governing certain First Amendment speech rights. See Brief

of Petitioners, 1992 WL 551419, at *54.

The Casey plurality’s opinion concluded that such provisions, entailing

“the giving of truthful, nonmisleading information” which is “relevant . . . to the
No. 11-50814 

7

decision,” did not impose an undue burden on the woman’s right to an abortion

and were thus permitted by the Fourteenth Amendment. Id. at 882, 112 S. Ct.

at 2823. The requirement that the physician relay the probable age of the fetus

furthered the legitimate end of “ensur[ing] that a woman apprehend the full

consequences of her decision.” Id. In other words, “informed choice need not be

defined in such narrow terms that all considerations ofthe effect on the fetus are

made irrelevant.” Id. at 883, 112 S. Ct. at 2824. As the Court noted, such

information “furthers the legitimate purpose of reducing the risk that a woman

may elect an abortion, only to discover later, with devastating psychological

consequences, that her decision was not fully informed.” Id. at 882, 112 S. Ct.

2791. States may further the “legitimate goal of protecting the life of the

unborn” through “legislation aimed at ensuring a decision that is mature and

informed, even when in doing so the State expresses a preference for childbirth

over abortion.” Id.

The plurality then turned to the petitioners’

asserted First Amendment right of a physician not to

provide information about the risks of abortion, and

childbirth, in a manner mandated by the state. To be

sure, the physician’s First Amendment rights not to

speak are implicated, see Wooley v. Maynard, 430 U.S.

705, 97 S. Ct. 1428 (1977), but only as part of the

practice of medicine, subject to reasonable licensing and

regulation by the State, cf. Whalen v. Roe, 429 U.S. 589,

603, 97 S. Ct. 869, 878 (1977). We see no constitutional

infirmity in the requirementthat the physician provide

the information mandated by the state here.

Id. at 884, 112 S. Ct. at 2824. 

The plurality response to the compelled speech claim is clearly not a strict

scrutiny analysis. It inquires into neither compelling interests nor narrow
No. 11-50814 

8

tailoring. The three sentences with which the Court disposed of the First

Amendment claims are, if anything,the antithesis of strict scrutiny. Indeed, the

plurality references Whalen v. Roe, in which the Court had upheld a regulation

of medical practice against a right to privacy challenge. 429 U.S. 589, 97 S. Ct.

869 (1977). The only reasonable reading of Casey’s passage is that physicians’

rights not to speak are, when “part of the practice of medicine, subject to

reasonable licensing and regulation by the State[.]” This applies to information

that is “truthful,” “nonmisleading,” and “relevant . . . to the decision” to undergo

an abortion. Casey, 505 U.S. at 882, 112 S. Ct. at 2823.

The Court’s decision in Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610

(2007), reaffirmed Casey, as it upheld a state’s “significant role . . . in regulating

the medical profession” and added that “[t]he government may use its voice and

regulatory authority to show its profound respectfor the life within the woman.”

550 U.S. at 128, 127 S. Ct. at 1633. The Court addressed in detail the

justification for state regulations consistent with Casey’s reaffirming the right

to abortion:

Whether to have an abortion requires a difficult

and painful moral decision. While we find no reliable

data to measure the phenomenon, it seems

unexceptionable to conclude that some women come to

regret their choice to abort the infant life they once

created and sustained. Severe depression and loss of

esteem can follow.

In a decision so fraught with emotional

consequence some doctors may prefer not to disclose

precise details of the means that will be used, confining

themselves to the required statement of risks the

procedure entails. From one standpoint this ought not

to be surprising. Any number of patients facing

imminent surgical procedures would prefer not to hear
No. 11-50814 

3 But see Casey, 505 U.S. at 872 (“Even in the earliest stages of pregnancy, the State

may enact rules and regulations designed to encourage her to know that there are philosophic

and social arguments of great weight that can be brought to bear in favor of continuing the

pregnancy to full term[.]”).

9

all details, lest the usual anxiety preceding invasive

medical procedures become the more intense. This is

likely the case with the abortion procedures here at

issue [partial-birth abortions].

. . . . The State’s interest in respect for life is advanced

by the dialogue that better informs the political and

legal systems, the medical profession, expectant

mothers, and society as a whole of the consequences

that follow from a decision to elect a late-term abortion.

Id. at 157-59, 1633-34 (citations omitted).

The import ofthese cases is clear. First, informed consent laws that do not

impose an undue burden on the woman’s right to have an abortion are

permissible if they require truthful, nonmisleading, and relevant disclosures.

Second, such laws are part of the state’s reasonable regulation of medical

practice and do not fall under the rubric of compelling “ideological” speech that

triggers First Amendment strict scrutiny.3 Third, “relevant” informed consent

may entail not only the physical and psychological risks to the expectant mother

facing this “difficult moral decision,” but also the state’s legitimate interests in

“protecting the potential life within her.” 505 U.S. at 871, 112 S. Ct. at 2791.

See also Casey, 505 U.S. at 882, 112 S. Ct. at 2823 (“Nor can it be doubted that

most women considering an abortion would deem the impact on the fetus

relevant, if not dispositive, to the decision. In attempting to ensure that a

woman apprehends the full consequences of her decision, the State furthers the

legitimate purpose of reducing the risk that a woman may elect an abortion, only

to discover later, with devastating psychological consequences,that her decision
No. 11-50814 

10

was not fully informed.”) Finally, the possibility that such information “might

cause the woman to choose childbirth over abortion” does not render the

provisions unconstitutional. Id. at 889, 112 S. Ct. at 2791.

Fortifying this reading, the Eighth Circuit sitting en banc construed Casey

and Gonzales in the same way:

. . . [W]hile the State cannot compel an individual simply to speak

the State’s ideological message, it can use its regulatory authority

to require a physician to provide truthful, non-misleading

information relevant to a patient’s decision to have an abortion,

even if that information might also encourage the patient to choose

childbirth over abortion.

Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 735 (8th Cir. 2008) (en

banc) (emphasis added). Significantly, the Rounds dissent agreed that the

state’s reasonable medical regulation of abortion includes its assertion of

“‘legitimate interests in the health of the mother and in protecting the potential

life within her.’” Rounds, 530 F.3d at 741 (Murphy, J., dissenting) (quoting

Casey, 505 U.S. at 871, 112 S. Ct. 2791). Rounds upheld, against compelled

speech challenges, an informed consent provision, and associated compliance

certifications by both the physician and pregnant woman, requiring, inter alia,

a disclosure that the abortion “will terminate the life of a whole, separate,

unique, living human being” with whom the woman “has an existing

relationship” entitled to legal protection. Rounds, 530 F.3d at 726.

In contrast to the disclosures discussed in Rounds, H.B. 15 requires the

taking and displaying of a sonogram, the heart auscultation of the pregnant

woman’s fetus, and a description by the doctor of the exams’ results. That these

medically accurate depictions are inherently truthful and non-misleading is not
No. 11-50814 

4 At times, the district court characterizes these disclosures as “ideological,” but the

court misunderstands the term. Speech is ideological when it is “relating to or concerned with

ideas” or “of, relating to, or based on ideology.” See “ideological,” www.mirriamwebster.com/dictionary/ideological. Of course, any fact may “relate” to ideas in some sense so

loose as to be useless, but in the sense in which Wooley discusses it, “ideological” speech is

speech which conveys a “point of view.” See Wooley, 430 U.S. at 715, 97 S. Ct. at 1435 (“Here

. . . we are faced with a state measure which forces an individual . . . to be an instrument for

fostering public adherence to an ideological point of view he finds unacceptable.”). The speech

in Wooley was the statement of a point of view that the plaintiff found “morally, ethically,

religiously and politically abhorrent.”Id. at 713, 1434. The distinction the Court there sought

to employ was between factual information and moral positions or arguments. Though there

may be questions atthe margins, surely a photograph and description of its features constitute

the purest conceivable expression of“factual information.” If the sonogram changes a woman’s

mind about whether to have an abortionna possibility which Gonzales says may be the effect

of permissible conveyance of knowledge, Gonzales, 550 U.S. at 160, 127 S. Ct. at 1634nthat

is a function of the combination of her new knowledge and her own “ideology” (“values” is a

better term), not of any “ideology” inherent in the information she has learned about the fetus.

11

disputed by Appellees, nor by any reasoned analysis by the district court.4(We

consider later the Appellees’ argument that the disclosures are not medically

necessary, and are therefore “irrelevant” to procuring the woman’s informed

consent under Casey). Unlike the plaintiffs in Casey and Rounds, the Appellees

here do not contend that the H.B. 15 disclosures inflict an unconstitutional

undue burden on a woman’s substantive due process right to obtain an abortion.

These omissions, together, are significant. If the disclosures are truthful and

non-misleading, and if they would not violate the woman’s privacy right under

the Casey plurality opinion, then Appellees would, by means of their First

Amendment claim, essentially trump the balance Casey struck between women’s

rights and the states’ prerogatives. Casey, however, rejected any such clash of

rights in the informed consent context.

Applying to H.B. 15 the principles of Casey’s plurality,the most reasonable

conclusion is to uphold the provisions declared as unconstitutional compelled

speech by the district court. To belabor the obvious and conceded point, the
No. 11-50814 

5 At oral argument, Appellees’ counsel conceded that Appellees have no objection to the

requirements that a doctor perform and make available sonogram images of the fetus. Their

objection is to requiring a “display” and an oral explanation of the images.

6 The three exceptions are (1) pregnancy as a result of rape or incest which has been

reported or, if it has not been reported, was not reported because the woman reasonably risks

retaliation resulting in serious bodily injury, (2) a minor taking advantage of judicial bypass

procedures to avoid parental notification, or (3) a fetus with an irreversible medical condition

or abnormality. If seeking to avoid the description of the sonogram images, the woman must

indicate within which exception she falls.

12

required disclosures of a sonogram, the fetal heartbeat, and their medical

descriptions are the epitome of truthful, non-misleading information. They are

not different in kind, although more graphic and scientifically up-to-date, than

the disclosures discussed in Casey—probable gestational age of the fetus and

printed material showing a baby’s general prenatal development stages.

Likewise, the relevance of these disclosures to securing informed consent is

sustained by Casey and Gonzales, because both cases allow the state to regulate

medical practice by deciding that information about fetal development is

“relevant” to a woman’s decision-making.5

As for the woman’s consent form, that, too, is governed by Casey, which

approves the practice of obtaining written consent “as with any medical

procedure.” 505 U.S. at 883, 112 S. Ct. at 2823. H.B. 15, § 171.012(a)(5),

requires that a pregnant woman certify in writing her understanding that

(1) Texas law requires an ultrasound prior to obtaining an abortion, (2) she has

the option to view the sonogram images, (3) she has the option to hear the fetal

heartbeat, and (4) she is required to hear the medical explanation of the

sonogram unless she falls under the narrow exceptions to this requirement.6

To invalidate the written consent form as compelled speech would

potentially subject to strict scrutiny a host of other medical informed-consent
No. 11-50814 

13

requirements. Appellees have offered no theory how the H.B. 15 informedconsent certification differs constitutionally from informed-consent certifications

in general. 

Nevertheless, the district court was especially troubled by the requirement

that, to avoid the description of the sonogram images, a victim of rape or incest

might have to certify her status as a victim, despite fearing (by the very terms

of the certification) physical reprisal if she makes her status known. This

system of certified exceptions may be a debatable choice of policy, but it does not

transgress the First Amendment. If the State could properly decline to grant

any exceptions to the informed-consent requirement, it cannot create an

inappropriate burden on free speech rights where it simply conditions an

exception on a woman’s admission that she falls within it. Indeed, such an

infirmity could just as well be cured by striking down the exceptions alone as by

striking down the requirement of written certification. Because the general

requirement is valid, we see no constitutional objection to the certification

required for an exception.

Notwithstanding the facial application of Casey to H.B. 15, Appellees

characterize its disclosure requirements as “qualitatively different”in two ways.

First, the disclosure of the sonogram and fetal heartbeat are “medically

unnecessary” to the woman and therefore beyond the standard practice of

medicine within the state's regulatory powers. Appellees refer to currently

required disclosures of health risks to the mother alone and apparently would

limit information about the fetus in these circumstances to its “probable

gestational age,” as specifically approved in Casey. Requiring any more

information about the fetus amounts to advocacy by the state. Second, whereas

Casey only required the physician to make certain materials about childbirth
No. 11-50814 

7 Appellees and the district court also question why H.B. 15 had to add these disclosures

to the existing Casey-like requirements of the WRKA. The necessity or wisdom of legislation,

of course, is a decision committed to the peoples’ elected representatives and thus beyond the

purview of the courts—apart from the constitutionality of the law.

14

and the fetus “available” to the woman, the physician here is required to explain

the results of sonogram and fetal heart auscultation, and the woman is required

to listen to the sonogram results. This interchange makes the physician the

“mouthpiece” of the state, again for medically unnecessary reasons.7 Appellees’

position seems to assume that the facts of Casey represent a constitutional

ceiling for regulation of informed consent to abortion, not a set of principles to

be applied to the states’ legislative decisions. On this broad level, however, the

Court has admonished that federal courts are not the repository for regulation

of the practice of medicine. See Gonzales, 550 U.S. at 157-58, 127 S. Ct. at 1633.

Turning to Appellees’ specific objections, the provision of sonograms and

the fetal heartbeat are routine measures in pregnancy medicine today. They are

viewed as “medically necessary” for the mother and fetus. Only if one assumes

the conclusion of Appellees’ argument, that pregnancy is a condition to be

terminated, can one assume that such information about the fetus is medically

irrelevant. The point of informed consent laws is to allow the patient to evaluate

her condition and render her best decision under difficult circumstances.

Denying her up to date medical information is more of an abuse to her ability to

decide than providing the information. In any event, the Appellees’ argument

ignores that Casey and Gonzales, as noted above, emphasize that the gravity of

the decision may be the subject of informed consent through factual, medical
No. 11-50814 

8 Another perspective on this point is to note that under Casey and Gonzales, what

Appellees think is medically necessary does not cabin, under the state’s legitimate power, the

regulation of medicine, as Casey holds.

15

detail, that the condition of the fetus is relevant, and that discouraging abortion

is an acceptable effect of mandated disclosures.8

More to the point, perhaps, is Appellees’ concern that H.B. 15 requires a

doctor, at a minimum, to converse with the patient about the sonogram as a

predicate to securing informed consent, rather than show her the way to obtain

a brochure or similar written information. Certainly, the statute’s method of

delivering this information is direct and powerful, but the mode of delivery does

not make a constitutionally significant difference from the “availability”

provision in Casey. The Casey plurality opinion places this issue squarely in the

context of the regulation of medical practice:

Our prior decisions establish that as with any medical procedure,

the State may require a woman to give her written informed consent

to an abortion. [citation omitted] In this respect, this statute is

unexceptional. Petitioners challenge the statute's definition of

informed consent because it includes the provision of specific

information by the doctor . . . 

. . .

We also see no reason why the State may not require doctors to

inform a woman seeking an abortion of the availability of materials

relating to the consequences to the fetus . . . . [analogizing to

informed consent bearing on the donor as well as recipient of a

kidney transplant.]

Casey, 505 U.S. at 881, 112 S. Ct. at 2823 (emphasis added). Casey did not

analyze the doctor’s status based on how he provided "specific information." 

Similarly, in Wooley, the font of Appellees' compelled speech argument,the New

Hampshire auto owner was not required to speak “Live Free or Die,” he was
No. 11-50814 

9 That Casey and Gonzales state principles broad enough to encompass the H.B. 15

disclosures and informed consent certificate eliminates any necessity to rule on the Appellees’

earlier argument, adopted by the district court, that compelled speech is only constitutionally

permissible in the context of “pure commercial speech.” The statement is clearly overbroad,

but we need not analyze it further.

16

merely required to display the phrase on his license plate. The mode of

compelled expression is not by itself constitutionally relevant, although the

context is. Here, the context is the regulation of informed consent to a medical

procedure. The constitutional irrelevance of the verbal nature of this description

is even clearer given the facts of Casey; the law upheld there required doctors 

to describe verbally the fetus’s gestational age, a description which the Casey

plurality acknowledged was relevantto “informed consent” only in a sense broad

enough to include the potential impact on the fetus. Casey, 505 U.S. at 883,

112 S. Ct. at 2823.

For all these reasons, we conclude that the enumerated provisions of

H.B. 15 requiring disclosures and written consent are sustainable under Casey,

are within the State’s power to regulate the practice of medicine, and therefore

do not violate the First Amendment.9 Appellees have not demonstrated a

likelihood of success on the merits justifying the preliminary injunction.

II. Vagueness 

The Due Process Clause requires states define their enactments — and

prohibitions — with some specificity. U.S. v. Williams, 553 U.S. 285, 304,

128 S. Ct. 1830, 1845 (2008). “[T]he void-for-vagueness doctrine” requires states

articulate a proscription “with sufficient definiteness that ordinary people can

understand what conduct is prohibited” while providing enough objective metrics

that it “does not encourage arbitrary and discriminatory enforcement.”
No. 11-50814 

17

Gonzales, 550 U.S. at 149. “The degree of vagueness that the Constitution

tolerates . . . depends in part on the nature of the enactment,” with greater

tolerance for statutes imposing civil penalties and those tempered by scienter

requirements. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 498-99, 102 S. Ct. 1186, 1193 (1982).

As we are “[c]ondemned to the use of words, we can never expect

mathematical certainty from our language.” Hill v. Colorado, 530 U.S. 703, 733,

120 S. Ct. 2480, 2498 (2000) (quoting Grayned v. City of Rockford, 408 U.S. 104,

110, 92 S. Ct. 2294 (1972)). Our analysis therefore cannot focus upon the

marginal cases in which an ordinarily plain statutory command can nonetheless

yield some mote of uncertainty. “[S]peculation about possible vagueness in

hypothetical situations not before the [c]ourt will not support a facial attack on

a statute when it is surely valid ‘in the vast majority of its intended

applications.’” Hill, 530 U.S. at 733 (internal citation omitted); see also Am.

Commc’ns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 412, 70 S. Ct. 674, 691 (1950).

We must remember “the elementary rule that every reasonable construction

must be resorted to, in order to save a statute from unconstitutionality.”

Gonzales, 550 U.S. at 153.

We are aware that the penalties under the law do not evidently require

scienter and result in revocation or non-licensure of a physician, and potential

criminal sanctions for any abortion without sufficientinformed consent. We also

note that the district court accepted only three out of multiple vagueness

challenges raised by the Appellees. We turn to the three portions of H.B. 15 the

district court enjoined as unconstitutionally vague in some applications.
No. 11-50814 

18

A. “The physician who is to perform the abortion”

The district court first concluded the phrase “the physician who is to

perform the abortion” was “unconstitutionally vague under some circumstances”

regarding the timing and making of required disclosures. § 171.012(a)(1), (2),

(3), (4), (6). The State asserts that most abortions are performed by a single

physician, and that in the rare circumstances where more than one physician is

involved, compliance by any physician or combination of physicians satisfies the

requirements of H.B. 15. Thus, the statute applies to “the physician who is to

perform,” rather than the physician “who performs,”the abortion. Appellees, by

contrast, insist that physicians in multi-doctor practices would face substantial

uncertainty under this definition: when more than one doctor collaborates to

perform an abortion, it is unclear who is “the physician who is to perform the

abortion.” Appellees raise a similar challenges for doctors “filling in” for

colleagues in performing abortions. 

The district court acknowledged the State’s position was reasonable — and

then summarily dismissed it as merely “argument.” Absent a “binding

interpretation” of the phrase “the physician who is to perform the abortion,” the

court disregarded the State’s construction. The court enjoined penalizing a

physician when any one or combination of physicians has complied with the

disclosure requirements.

We do not disagree with the district court’s result, but that is because we

conclude that the same result is compelled by the statutory language requiring

compliance by “the physician who is to perform” the abortion. In multiphysician

practices, this could necessitate more careful scheduling of the sonograms and

disclosures 24 hours prior to the procedure. But it is also reasonable to construe

the law grammatically as allowing compliance by the physician who “intends”
No. 11-50814 

19

or “is intended” to perform, even if unforeseen circumstances result in the

abortion’s actually being performed by a substitute. So construed, this provision

is not vague.

Moreover, other cases have addressed identical appellations of the doctor,

seemingly without legal challenge. See, e.g., Casey: “the physician who is to

perform the abortion.” Casey, 505 U.S. at 902. In Rounds, the South Dakota

statute also imposed duties upon “the physician who is to perform the abortion,”

again without incurring a distinct legal challenge. Rounds, 530 F.3d at 726-27.

See Brief of Appellants, 2005 WL 4902899; Brief of Appellees, 2005 WL 4902901.

That Appellees’ argument is novel does not defeat it, but novelty suggests its

weakness.

B. Conflict between Section 171.012(a)(4) and Section 171.0122

The district court further concluded Sections 171.012(a)(4) and 171.0122

are in conflict, resulting in constitutionally intolerable uncertainty. The relevant

sections provide respectively:

Section 171.012. Voluntary and Informed Consent

(a) Consent to an abortion is voluntary and informed only if:

. . .

(4) . . . at least 24 hours before the abortion or at least

two hours before the abortion if the pregnant woman

waives this requirement . . . :

(A) the physician who is to perform the

abortion or an agent of the physician who

is also a sonographer certified by a national

registry of medical sonographers performs

a sonogram on the pregnant woman on

whom the abortion is to be performed;

(B) the physician who is to perform the

abortion displays the sonogram images in

a quality consistent with current medical
No. 11-50814 

20

practice in a manner that the pregnant

woman may view them;

(C) the physician who is to perform the

abortion provides, in a manner

understandable to a layperson, a verbal

explanation of the results of the sonogram

images, including a medical description of

the dimensions of the embryo or fetus, the

presence of cardiac activity, and the

presence of external members and internal

organs; and

(D) the physician who is to perform the

abortion or an agent of the physician who

is also a sonographer certified by a national

registry of medical sonographers makes

audible the heart auscultation for the

pregnant woman to hear, if present, in a

quality consistent with current medical

practice and provides, in a manner

understandable to a layperson, a

simultaneous verbal explanation of the

heart auscultation[.] (emphasis added.)

Section 171.0122. Viewing Printed Materials and Sonogram Image; Hearing

Heart Auscultation or Verbal Explanation

(a) A pregnant woman may choose not to view the printed materials

[provided by another section].

(b) A pregnant woman may choose not to view the sonogram images

required to be provided to and reviewed with the pregnant woman

under Section 171.012(a)(4).

(c) A pregnant woman may choose notto hear the heart auscultation

required to be provided to and reviewed with the pregnant woman

under Section 171.012(a)(4).

(d) A pregnant woman may choose not to receive the verbal

explanation of the results of the sonogram images . . . if [she

satisfies one of three exceptions subject to documentation].

(e) The physician and the pregnant woman are not subject to a

penalty under this chapter solely because the pregnant woman
No. 11-50814 

21

chooses not to view the printed materials or the sonogram images,

hear the heart auscultation, or receive the verbal explanation, if

waived as provided by this section.

The district court noted that the introduction to Section 171.012(a)

nominally broaches no exceptions, because a woman’s consent to an abortion is

informed and voluntary only if a physician complies with its requirements. The

court then observed that Section 171.0122 exempts pregnant women from

several of these requirements by providing what the pregnant woman may do,

rather than under what circumstances the physician need not comply with

(a)(4)’s requirements. The district court read the provisions together as

intending, but not succeeding, to create a requirement and an exception. Thus,

a doctor who complies with the disclosures (§ 171.012(a)) may lose his license

even though the woman decided not to view the sonogram or hear the fetal

heartbeat (§ 171.0122). The district court discounted the text of 171.0122(e),

which states that neither the physician nor the pregnant woman would be

penalized “solely because the pregnant woman chooses” not to view the

sonogram results, hear her child’s heart auscultation, or receive a verbal

explanation from her physician. The court viewed the word “solely” as

constitutionally intolerable “legislative ‘gotcha’ tactics.” In sum, the court

severed the word “solely” from Section 171.0122(e) for enforcement purposes,

and further enjoined enforcement ofthe provisions against physicians for failure

to display sonogram images or make audible heart auscultation results

whenever the pregnant woman elects not to view the former or hear the latter.

The district court’s skeptical interpretation of Section 171.0122(e) follows

from its belief that the disputed provisions do not represent a harmonious pair

of regulation and exception. We disagree. Section 171.012(a)(4) establishes
No. 11-50814 

22

what the physician must do: have a sonogram performed, display the sonogram

images, perform a heart auscultation, and provide verbal explanations of the

sonogram images and heart auscultation. The district court’s analysis of (a)(4)

ignores that the physician’s unconditional obligations are merely to display

images so they may be viewed, to provide an understandable explanation, and

to make audible the auscultation. Section 171.012(a)(4) specifically does not

require the physician to ensure the woman views the images, that she

understands the explanation, or that she listens to the auscultation. Contrast

this language with the one requirement of 171.012(a)(4) that the pregnant

woman may not waive: Section 171.012(a)(4)(A) states that the physician or his

agent must perform a sonogram.

Section 171.0122 complements this language by expressly reserving to

every pregnant woman the unconditional rights to refuse to view the sonogram

images or hear the fetal heartbeat, and, if she falls into one of the three

exceptions, the additional right not to hear the physician’s explanation of the

sonogram images. Taken together, the physician’s duties are more than

“reasonably clear” — a physician intending to perform an abortion must

sonogram the woman, display the appropriate images, obtain a heart

auscultation, and tender the verbal explanations, unless refused (for the

sonogram explanation alone) pursuant to one of the exceptions listed in Section

171.0122(d). The woman seeking an abortion may elect not to attend to these

images, sounds, or, in some cases, explanations. This election does not obviate

the physician’s obligations to display the sonogram images or make audible the

heart auscultation; the woman may simply choose not to look or listen.
No. 11-50814 

23

Unlike the district court, we perceive no vagueness in exempting a

physician from various regulatory consequences “solely because” the woman

elected not to participate in the disclosures under § 171.0122. Eliminating

“solely” means that “whenever” a woman resorts to this election, the physician

faces no adverse consequences from flouting the disclosures. This alteration

encourages evasion ofthe disclosures and manipulation ofthe woman’s statutory

opt-out. The legislature had every right to maintain the integrity of the

mandated disclosures and displays by relieving a physician of liability for noncompliance “solely” when the pregnant woman invokes § 171.0122. Appellees

failed to demonstrate a substantial likelihood that Sections 171.012(a)(4) and

171.0122 conflict in an unconstitutionally vague way.

C. Providing printed materials under Section 171.0123

Section 171.0123 provides in relevant part:

If, after being provided with a sonogram and the information

required under this subchapter, the pregnant woman chooses notto

have an abortion, the physician or an agent of the physician shall

provide the pregnant woman with a publication developed by [the

relevant State agency] that provides information about paternity

establishment and child support . . . .

The district court found troubling the absence of “mention of the

physician’s knowledge,” combined with the fact that the section “contains no

language suggesting the physician is ever exempt from the obligation to provide

additional information.” The court concluded that while the section did not need

to impart to a physician “how . . . [to] comply with this duty,” it failed to inform

physicians “what . . . [they] must do to comply with the requirements of the Act.”

The district court enjoined the State from penalizing a physician, “criminally or

otherwise,” for failing to provide printed materials under Section 171.0123 “in
No. 11-50814 

24

cases where the physician does not know whether the woman has chosen to have

an abortion.”

On its face, this provision appears fairly flexible, permitting either a

physician or his designated agent to disseminate the required materials. No

doubt rules and regulations will be promulgated to specify the “what” and “how”

of compliance. However, the district court and Appellees focused on the

potential problem of a physician’s not knowing whether a woman has chosen to

have an abortion, and thereby being uncertain of his duty to furnish the State’s

publication on paternity and child support if a woman who has elected not to

undergo an abortion simply misses a follow-up appointment, or fails to schedule

another visit with the physician. The obvious solution to any potential

ambiguity about a knowledge requirement is for a physician’s office to

disseminate the material whenever the woman fails to appear for her abortion.

No extreme burden is placed on the physician, nor is the woman harmed if she

receives the printed matter, whether or not she carried out an abortion. This

vagueness complaint is, at bottom, trivial.

Conclusion

Appellees failed to demonstrate constitutional flaws in H.B. 15.

Accordingly, they cannot prove a substantial likelihood of success on each of

their First Amendment and vagueness claims. This is fatal to their application

for a preliminary injunction. Accordingly, we VACATE the district court’s

preliminary injunction, REMAND for further proceedings consistent with this

opinion, and any further appeals in this matter will be heard by this panel.
No. 11-50814

25

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

I join the panel opinion and with the freedom of writing without decisional

force offer a different accent upon the appropriate role of the First Amendment

in this case. To my eyes there are two settled principles in speech doctrine that

inform our decision today. First, in protection of a valid interest the state need

not remain neutral in its views and may engage in efforts to persuade citizens

to exercise their constitutional rightto choose a state-preferred course. Second,

the state cannot compel a citizen to voice the state's views as his own. It is

immediately apparent that both of these principles are implicated by state

regulation of doctors' communications with their patients. It is equally apparent

that, given the Supreme Court’s decision in Casey, each is fully and

appropriately abided today, without diminishing their vitality. 

The doctor-patient relationship has long been conducted within the

constraints of informed consentto the risks of medical procedures, as demanded

by the common law, legislation, and professional norms. The doctrine itself rests

on settled principles of personal autonomy, protected by a reticulated pattern

of tort law, overlaid by both self- and state-imposed regulation. Speech incident

to securing informed consent submits to the long history of this regulatory

pattern. 

The Court's decision in Casey accented the state's interestin potential life,

holding that its earlier decisions following Roe failed to give this interest force

at all stages of a pregnancy and that in service of this interest the state may

insist that a woman be made aware of the development of the fetus at her stage

of pregnancy. Significantly, the Court held that the fact that such truthful,

accurate information may cause a woman to choose not to abort her pregnancy

only reinforces its relevance to an informed decision. Insisting that a doctor give

this information in his traditional role of securing informed consent is

permissible. Texas has done just this and affords three exceptions to its
No. 11-50814

26

required delivery of information about the stage of fetal growth where in its

judgment the information had less relevance, a legislative judgment that is at

least rational. 

Casey opens no unfettered pathway for states to suppress abortions

through the medium of informed consent. Casey spoke of frameworks for

affording a woman accurate information relevant to the risks attending her

decision. Those plainly included the immediate risks of the procedure and the

risks attending a failure to appreciate the potentiality of life. At the same time,

Casey recognized that frameworks for obtaining informed consent to abortion

mustleave the ultimate decision with the woman, whose fully informed decision

cannot be frustrated by the state. Today we abide Casey, whose force much of

the argument here fails to acknowledge. It bears reminding that Roe survived

Casey only in a recast form, relinquishing reaches that no longer support much

of the criticism leveled atthis Texas statute. We must and do apply today's rules

as best we can without hubris and with less sureness than we would prefer, well

aware that the whole jurisprudence of procreation, life and death cannot escape

their large shrouds of mystery, yet, and perhaps not, to be lifted by advances of

science.