(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

WHOLE WOMAN’S HEALTH ET AL. v. HELLERSTEDT, 

COMMISSIONER, TEXAS DEPARTMENT OF STATE 

HEALTH SERVICES, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 15–274. Argued March 2, 2016—Decided June 27, 2016 

A “State has a legitimate interest in seeing to it that abortion . . . is

performed under circumstances that insure maximum safety for the 

patient.” Roe v. Wade, 410 U. S. 113, 150. But “a statute which, 

while furthering [a] valid state interest, has the effect of placing a

substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned 

Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality

opinion), and “[u]nnecessary 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,” id., at 878. 

In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2), 

which contains the two provisions challenged here. The “admittingprivileges requirement” provides that a “physician performing or inducing an abortion . . . must, on the date [of service], have active admitting privileges at a hospital . . . located not further than 30 miles

from the” abortion facility. The “surgical-center requirement” requires an “abortion facility” to meet the “minimum standards . . . for 

ambulatory surgical centers” under Texas law. Before the law took 

effect, a group of Texas abortion providers filed the Abbott case, in 

which they lost a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, petitioners, another group of abortion providers (including some Abbott 

plaintiffs), filed this suit, claiming that both the admitting-privileges 

and the surgical-center provisions violated the Fourteenth Amendment, as interpreted in Casey. They sought injunctions preventing 

enforcement of the admitting-privileges provision as applied to physi-
 

 

 

 

 

2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Syllabus 

cians at one abortion facility in McAllen and one in El Paso and prohibiting enforcement of the surgical-center provision throughout Texas. 

Based on the parties’ stipulations, expert depositions, and expert 

and other trial testimony, the District Court made extensive findings, 

including, but not limited to: as the admitting-privileges requirement

began to be enforced, the number of facilities providing abortions

dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive

age living more than 50 miles from a clinic has doubled, the number 

living more than 100 miles away has increased by 150%, the number

living more than 150 miles away by more than 350%, and the number

living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision

took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2’s passage, abortion was an extremely safe

procedure with very low rates of complications and virtually no 

deaths; it was also safer than many more common procedures not 

subject to the same level of regulation; and the cost of compliance 

with the surgical-center requirement would most likely exceed $1.5 

million to $3 million per clinic. The court enjoined enforcement of the

provisions, holding that the surgical-center requirement imposed an

undue burden on the right of women in Texas to seek previability 

abortions; that, together with that requirement, the admittingprivileges requirement imposed an undue burden in the Rio Grande

Valley, El Paso, and West Texas; and that the provisions together

created an “impermissible obstacle as applied to all women seeking a

previability abortion.” 

The Fifth Circuit reversed in significant part. It concluded that res 

judicata barred the District Court from holding the admittingprivileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is “constitutional if (1) it does not have the purpose 

or effect of placing a substantial obstacle in the path of a woman

seeking an abortion of a nonviable fetus and (2) it is reasonably related to . . . a legitimate state interest,” the court found that both requirements were rationally related to a compelling state interest in

protecting women’s health. 

Held: 

1. Petitioners’ constitutional claims are not barred by res judicata.

Pp. 10–18. 

(a) Res judicata neither bars petitioners’ challenges to the admitting-privileges requirement nor prevents the Court from awarding fa-
 

 

 

 

 

 

Cite as: 579 U. S. ____ (2016) 3 

Syllabus 

cial relief. The fact that several petitioners had previously brought 

the unsuccessful facial challenge in Abbott does not mean that claim 

preclusion, the relevant aspect of res judicata, applies. Claim preclusion prohibits “successive litigation of the very same claim,” New 

Hampshire v. Maine, 532 U. S. 742, 748, but petitioners’ as-applied

postenforcement challenge and the Abbott plaintiffs’ facial preenforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise 

to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, 

when it was unclear how clinics would be affected. This case rests 

upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed. 

Res judicata also does not preclude facial relief here. In addition to 

requesting as-applied relief, petitioners asked for other appropriate

relief, and their evidence and arguments convinced the District Court 

of the provision’s unconstitutionality across the board. Federal Rule 

of Civil Procedure 54(c) provides that a “final judgment should grant

the relief to which each party is entitled, even if the party has not

demanded that relief in its pleadings,” and this Court has held that if

the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is

“proper,” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 

333. Pp. 10–15. 

(b) Claim preclusion also does not bar petitioners’ challenge to

the surgical-center requirement. In concluding that petitioners

should have raised this claim in Abbott, the Fifth Circuit did not take 

account of the fact that the surgical-center provision and the admitting-privileges provision are separate provisions with two different 

and independent regulatory requirements. Challenges to distinct

regulatory requirements are ordinarily treated as distinct claims.

Moreover, the surgical-center provision’s implementing regulations 

had not even been promulgated at the time Abbott was filed, and the 

relevant factual circumstances changed between the two suits. 

Pp. 16–18. 

2. Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a 

previability abortion, constitute an undue burden on abortion access, 

and thus violate the Constitution. Pp. 19–39.

(a) The Fifth Circuit’s standard of review may be read to imply 

that a district court should not consider the existence or nonexistence 

of medical benefits when deciding the undue burden question, but 

Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer, see 505 U. S., 
 

 

4 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Syllabus 

at 887–898. The Fifth Circuit’s test also mistakenly equates the judicial review applicable to the regulation of a constitutionally protected 

personal liberty with the less strict review applicable to, e.g., economic legislation. And the court’s requirement that legislatures resolve 

questions of medical uncertainty is inconsistent with this Court’s

case law, which has placed considerable weight upon evidence and

argument presented in judicial proceedings when determining the 

constitutionality of laws regulating abortion procedures. See id., at 

888–894. Explicit legislative findings must be considered, but there

were no such findings in H. B. 2. The District Court applied the correct legal standard here, considering the evidence in the record—

including expert evidence—and then weighing the asserted benefits 

against the burdens. Pp. 19–21.

(b) The record contains adequate legal and factual support for

the District Court’s conclusion that the admitting-privileges requirement imposes an “undue burden” on a woman’s right to choose. The 

requirement’s purpose is to help ensure that women have easy access

to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely 

low rates of serious complications before H. B. 2’s passage, found no

significant health-related problem for the new law to cure. The 

State’s record evidence, in contrast, does not show how the new law 

advanced the State’s legitimate interest in protecting women’s health

when compared to the prior law, which required providers to have a 

“working arrangement” with doctors who had admitting privileges. 

At the same time, the record evidence indicates that the requirement

places a “substantial obstacle” in a woman’s path to abortion. The 

dramatic drop in the number of clinics means fewer doctors, longer

waiting times, and increased crowding. It also means a significant

increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an

“undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in 

light of the virtual absence of any health benefit, help support the 

District Court’s “undue burden” conclusion. Pp. 21–28.

(c) The surgical-center requirement also provides few, if any, 

health benefits for women, poses a substantial obstacle to women

seeking abortions, and constitutes an “undue burden” on their constitutional right to do so. Before this requirement was enacted, Texas 

law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through 

administrative, civil, and criminal penalties. Record evidence shows 

that the new provision imposes a number of additional requirements 

that are generally unnecessary in the abortion clinic context; that it 
 

 

 

 

 

 

 

 

Cite as: 579 U. S. ____ (2016) 5 

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provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the

facility; that abortions taking place in abortion facilities are safer

than common procedures that occur in outside clinics not subject to

Texas’ surgical-center requirements; and that Texas has waived no

part of the requirement for any abortion clinics as it has done for 

nearly two-thirds of other covered facilities. This evidence, along 

with the absence of any contrary evidence, supports the District 

Court’s conclusions, including its ultimate legal conclusion that requirement is not necessary. At the same time, the record provides

adequate evidentiary support for the District Court’s conclusion that 

the requirement places a substantial obstacle in the path of women 

seeking an abortion. The court found that it “strained credulity” to

think that the seven or eight abortion facilities would be able to meet

the demand. The Fifth Circuit discounted expert witness Dr. Grossman’s testimony that the surgical-center requirement would cause

the number of abortions performed by each remaining clinic to increase by a factor of about 5. But an expert may testify in the “form 

of an opinion” as long as that opinion rests upon “sufficient facts or

data” and “reliable principles and methods.” Fed. Rule Evid. 702. 

Here, Dr. Grossman’s opinion rested upon his participation, together 

with other university researchers, in research tracking the number of 

facilities providing abortion services, using information from, among 

other things, the state health services department and other public 

sources. The District Court acted within its legal authority in finding 

his testimony admissible. Common sense also suggests that a physical facility that satisfies a certain physical demand will generally be 

unable to meet five times that demand without expanding physically

or otherwise incurring significant costs. And Texas presented no evidence at trial suggesting that expansion was possible. Finally, the

District Court’s finding that a currently licensed abortion facility

would have to incur considerable costs to meet the surgical-center requirements supports the conclusion that more surgical centers will 

not soon fill the gap left by closed facilities. Pp. 28–36.

(d) Texas’ three additional arguments are unpersuasive. Pp. 36– 

39. 

790 F. 3d 563 and 598, reversed and remanded. 

BREYER, J., delivered the opinion of the Court, in which KENNEDY, 

GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed a 

concurring opinion. THOMAS, J., filed a dissenting opinion. ALITO, J., 

filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., 

joined. 
 

 

_________________ 

_________________ 

Cite as: 579 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–274 

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v.
 

JOHN HELLERSTEDT, COMMISSIONER, TEXAS 

DEPARTMENT OF STATE HEALTH SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 27, 2016] 

JUSTICE BREYER delivered the opinion of the Court. 

In Planned Parenthood of Southeastern Pa. v. Casey, 

505 U. S. 833, 878 (1992), a plurality of the Court concluded that there “exists” an “undue burden” on a woman’s 

right to decide to have an abortion, and consequently a 

provision of law is constitutionally invalid, if the “purpose 

or effect” of the provision “is to place a substantial obstacle

in the path of a woman seeking an abortion before the 

fetus attains viability.” (Emphasis added.) The plurality 

added that “[u]nnecessary 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.” Ibid. 

We must here decide whether two provisions of Texas’ 

House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call 

the “admitting-privileges requirement,” says that 

“[a] physician performing or inducing an abortion . . .

must, on the date the abortion is performed or induced, have active admitting privileges at a hospital 
 

2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

that . . . is located not further than 30 miles from the 

location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. §171.0031(a) 

(West Cum. Supp. 2015). 

This provision amended Texas law that had previously 

required an abortion facility to maintain a written protocol 

“for managing medical emergencies and the transfer of 

patients requiring further emergency care to a hospital.” 

38 Tex. Reg. 6546 (2013).

The second provision, which we shall call the “surgicalcenter requirement,” says that 

“the minimum standards for an abortion facility must 

be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for 

ambulatory surgical centers.” Tex. Health & Safety 

Code Ann. §245.010(a). 

We conclude that neither of these provisions offers 

medical benefits sufficient to justify the burdens upon

access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, 

Casey, supra, at 878 (plurality opinion), and each violates

the Federal Constitution. Amdt. 14, §1. 

I
 

A 

In July 2013, the Texas Legislature enacted House Bill 

2 (H. B. 2 or Act). In September (before the new law took

effect), a group of Texas abortion providers filed an action 

in Federal District Court seeking facial invalidation of 

the law’s admitting-privileges provision. In late October, 

the District Court granted the injunction. Planned 

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 901 (WD Tex. 2013). But three 

days later, the Fifth Circuit vacated the injunction, 
Cite as: 579 U. S. ____ (2016) 3 

Opinion of the Court 

thereby permitting the provision to take effect. Planned 

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F. 3d 406, 419 (2013). 

The Fifth Circuit subsequently upheld the provision, 

and set forth its reasons in an opinion released late the

following March. In that opinion, the Fifth Circuit pointed 

to evidence introduced in the District Court the previous

October. It noted that Texas had offered evidence designed to show that the admitting-privileges requirement

“will reduce the delay in treatment and decrease health

risk for abortion patients with critical complications,” and 

that it would “‘screen out’ untrained or incompetent abortion providers.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F. 3d 583, 592 (2014) 

(Abbott). The opinion also explained that the plaintiffs 

had not provided sufficient evidence “that abortion practitioners will likely be unable to comply with the privileges

requirement.” Id., at 598. The court said that all “of the 

major Texas cities, including Austin, Corpus Christi, 

Dallas, El Paso, Houston, and San Antonio,” would “continue to have multiple clinics where many physicians will 

have or obtain hospital admitting privileges.” Ibid. The 

Abbott plaintiffs did not file a petition for certiorari in this 

Court. 

B 

On April 6, one week after the Fifth Circuit’s decision,

petitioners, a group of abortion providers (many of whom

were plaintiffs in the previous lawsuit), filed the present 

lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges 

provision as applied to physicians at two abortion facilities, one operated by Whole Woman’s Health in McAllen

and the other operated by Nova Health Systems in El 

Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas. 
 

4 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

They claimed that the admitting-privileges provision and 

the surgical-center provision violated the Constitution’s 

Fourteenth Amendment, as interpreted in Casey. 

The District Court subsequently received stipulations 

from the parties and depositions from the parties’ experts.

The court conducted a 4-day bench trial. It heard, among

other testimony, the opinions from expert witnesses for 

both sides. On the basis of the stipulations, depositions, and testimony, that court reached the following

conclusions: 

1. Of Texas’ population of more than 25 million people, 

“approximately 5.4 million” are “women” of “reproductive

age,” living within a geographical area of “nearly 280,000

square miles.” Whole Woman’s Health v. Lakey, 46 

F. Supp. 3d 673, 681 (2014); see App. 244. 

2. “In recent years, the number of abortions reported in 

Texas has stayed fairly consistent at approximately 15–

16% of the reported pregnancy rate, for a total number of 

approximately 60,000–72,000 legal abortions performed

annually.” 46 F. Supp. 3d, at 681; see App. 238. 

3. Prior to the enactment of H. B. 2, there were more 

than 40 licensed abortion facilities in Texas, which “number dropped by almost half leading up to and in the 

wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.” 46 

F. Supp. 3d, at 681; App. 228–231. 

4. If the surgical-center provision were allowed to take

effect, the number of abortion facilities, after September 1,

2014, would be reduced further, so that “only seven facilities and a potential eighth will exist in Texas.” 46 

F. Supp. 3d, at 680; App. 182–183. 
 

Cite as: 579 U. S. ____ (2016) 5 

Opinion of the Court 

5. Abortion facilities “will remain only in Houston, 

Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.” 46 F. Supp. 3d, at 681; App. 229–230. These 

include “one facility in Austin, two in Dallas, one in Fort

Worth, two in Houston, and either one or two in San Antonio.” 46 F. Supp. 3d, at 680; App. 229–230. 

6. “Based on historical data pertaining to Texas’s average number of abortions, and assuming perfectly equal 

distribution among the remaining seven or eight providers, this would result in each facility serving between 

7,500 and 10,000 patients per year. Accounting for the 

seasonal variations in pregnancy rates and a slightly

unequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vying

for counseling, appointments, and follow-up visits at some

of these facilities.” 46 F. Supp. 3d, at 682; cf. App. 238. 

7. The suggestion “that these seven or eight providers

could meet the demand of the entire state stretches credulity.” 46 F. Supp. 3d, at 682; see App. 238. 

8. “Between November 1, 2012 and May 1, 2014,” that

is, before and after enforcement of the admittingprivileges requirement, “the decrease in geographical

distribution of abortion facilities” has meant that the 

number of women of reproductive age living more than 50

miles from a clinic has doubled (from 800,000 to over 1.6

million); those living more than 100 miles has increased 

by 150% (from 400,000 to 1 million); those living more

than 150 miles has increased by more than 350% (from

86,000 to 400,000); and those living more than 200 miles 

has increased by about 2,800% (from 10,000 to 290,000).

After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion 
 

6 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles 

from an abortion provider; 900,000 will live more than 150 

miles from an abortion provider; and 750,000 more than

200 miles from an abortion provider. 46 F. Supp. 3d, at 

681–682; App. 238–242. 

9. The “two requirements erect a particularly high

barrier for poor, rural, or disadvantaged women.” 46 

F. Supp. 3d, at 683; cf. App. 363–370. 

10. “The great weight of evidence demonstrates that,

before the act’s passage, abortion in Texas was extremely

safe with particularly low rates of serious complications 

and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684; see, e.g., App. 257–259, 538; 

see also id., at 200–202, 253–257. 

11. “Abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, 

in terms of minor and serious complications, than many

common medical procedures not subject to such intense

regulation and scrutiny.” 46 F. Supp. 3d, at 684; see, e.g.,

App. 223–224 (describing risks in colonoscopies), 254 

(discussing risks in vasectomy and endometrial biopsy,

among others), 275–277 (discussing complication rate in

plastic surgery). 

12. “Additionally, risks are not appreciably lowered for 

patients who undergo abortions at ambulatory surgical

centers as compared to nonsurgical-center facilities.” 46 

F. Supp. 3d, at 684; App. 202–206, 257–259. 

13. “[W]omen will not obtain better care or experience 

more frequent positive outcomes at an ambulatory surgi-
Cite as: 579 U. S. ____ (2016) 7 

Opinion of the Court 

cal center as compared to a previously licensed facility.” 

46 F. Supp. 3d, at 684; App. 202–206. 

14. “[T]here are 433 licensed ambulatory surgical centers in Texas,” of which “336 . . . are apparently either 

‘grandfathered’ or enjo[y] the benefit of a waiver of some or

all” of the surgical-center “requirements.” 46 F. Supp. 3d, 

at 680–681; App. 184. 

15. The “cost of coming into compliance” with the

surgical-center requirement “for existing clinics is significant,” “undisputedly approach[ing] 1 million dollars,” and 

“most likely exceed[ing] 1.5 million dollars,” with “[s]ome 

. . . clinics” unable to “comply due to physical size limitations of their sites.” 46 F. Supp. 3d, at 682. The “cost of 

acquiring land and constructing a new compliant clinic 

will likely exceed three million dollars.” Ibid. 

On the basis of these and other related findings, the

District Court determined that the surgical-center requirement “imposes an undue burden on the right of 

women throughout Texas to seek a previability abortion,”

and that the “admitting-privileges requirement, . . . in

conjunction with the ambulatory-surgical-center requirement, imposes an undue burden on the right of women in 

the Rio Grande Valley, El Paso, and West Texas to seek a 

previability abortion.” Id., at 687. The District Court 

concluded that the “two provisions” would cause “the

closing of almost all abortion clinics in Texas that were

operating legally in the fall of 2013,” and thereby create a 

constitutionally “impermissible obstacle as applied to all 

women seeking a previability abortion” by “restricting

access to previously available legal facilities.” Id., at 687– 

688. On August 29, 2014, the court enjoined the enforcement of the two provisions. Ibid. 
 

 

8 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

C 

On October 2, 2014, at Texas’ request, the Court of 

Appeals stayed the District Court’s injunction. Whole 

Woman’s Health v. Lakey, 769 F. 3d 285, 305. Within the 

next two weeks, this Court vacated the Court of Appeals’ 

stay (in substantial part) thereby leaving in effect the

District Court’s injunction against enforcement of the 

surgical-center provision and its injunction against enforcement of the admitting-privileges requirement as

applied to the McAllen and El Paso clinics. Whole Woman’s Health v. Lakey, 574 U. S. ___ (2014). The Court of 

Appeals then heard Texas’ appeal.

On June 9, 2015, the Court of Appeals reversed the

District Court on the merits. With minor exceptions, it

found both provisions constitutional and allowed them to 

take effect. Whole Women’s Health v. Cole, 790 F. 3d 563, 

567 (per curiam), modified, 790 F. 3d 598 (CA5 2015).

Because the Court of Appeals’ decision rests upon alternative grounds and fact-related considerations, we set forth

its basic reasoning in some detail. The Court of Appeals

concluded: 

• The District Court was wrong to hold the admittingprivileges requirement unconstitutional because (except 

for the clinics in McAllen and El Paso) the providers had 

not asked them to do so, and principles of res judicata

barred relief. Id., at 580–583. 

• Because the providers could have brought their constitutional challenge to the surgical-center provision in their 

earlier lawsuit, principles of res judicata also barred that

claim. Id., at 581–583. 

• In any event, a state law “regulating previability abortion is constitutional if: (1) it does not have the purpose or

effect of placing a substantial obstacle in the path of a 

woman seeking an abortion of a nonviable fetus; and (2) it 

is reasonably related to (or designed to further) a legiti-
Cite as: 579 U. S. ____ (2016) 9 

Opinion of the Court 

mate state interest.” Id., at 572. 

• “[B]oth the admitting privileges requirement and” the 

surgical-center requirement “were rationally related to a

legitimate state interest,” namely, “rais[ing] the standard 

and quality of care for women seeking abortions and . . . 

protect[ing] the health and welfare of women seeking 

abortions.” Id., at 584. 

• The “[p]laintiffs” failed “to proffer competent evidence

contradicting the legislature’s statement of a legitimate

purpose.” Id., at 585. 

• “[T]he district court erred by substituting its own judgment [as to the provisions’ effects] for that of the legislature, albeit . . . in the name of the undue burden inquiry.” 

Id., at 587. 

• Holding the provisions unconstitutional on their face is

improper because the plaintiffs had failed to show that 

either of the provisions “imposes an undue burden on a

large fraction of women.” Id., at 590. 

• The District Court erred in finding that, if the surgicalcenter requirement takes effect, there will be too few 

abortion providers in Texas to meet the demand. That 

factual determination was based upon the finding of one of 

plaintiffs’ expert witnesses (Dr. Grossman) that abortion 

providers in Texas “‘will not be able to go from providing 

approximately 14,000 abortions annually, as they currently 

are, to providing the 60,000 to 70,000 abortions that are 

done each year in Texas once all’” of the clinics failing to

meet the surgical-center requirement “‘are forced to 

close.’” Id., at 589–590. But Dr. Grossman’s opinion is (in 

the Court of Appeals’ view) “‘ipse dixit’”; the “‘record lacks 

any actual evidence regarding the current or future capacity of the eight clinics’”; and there is no “evidence in the 

record that” the providers that currently meet the surgicalcenter requirement “are operating at full capacity or that

they cannot increase capacity.” Ibid. 
 

10 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

For these and related reasons, the Court of Appeals

reversed the District Court’s holding that the admittingprivileges requirement is unconstitutional and its holding 

that the surgical-center requirement is unconstitutional. 

The Court of Appeals upheld in part the District Court’s 

more specific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr. Lynn (a

doctor at that facility), but it reversed the District Court’s

holding that the surgical-center requirement is unconstitutional as applied to the facility in El Paso. In respect to

this last claim, the Court of Appeals said that women in El

Paso wishing to have an abortion could use abortion providers in nearby New Mexico. 

II 

Before turning to the constitutional question, we must 

consider the Court of Appeals’ procedural grounds for 

holding that (but for the challenge to the provisions of

H. B. 2 as applied to McAllen and El Paso) petitioners 

were barred from bringing their constitutional challenges. 

A 

Claim Preclusion—Admitting-Privileges Requirement 

The Court of Appeals held that there could be no facial

challenge to the admitting-privileges requirement. Because several of the petitioners here had previously

brought an unsuccessful facial challenge to that requirement (namely, Abbott, 748 F. 3d, at 605; see supra, at 2– 

3), the Court of Appeals thought that “the principle of res 

judicata” applied. 790 F. 3d, at 581. The Court of Appeals

also held that res judicata prevented the District Court 

from granting facial relief to petitioners, concluding that it

was improper to “facially invalidat[e] the admitting privileges requirement,” because to do so would “gran[t] more 

relief than anyone requested or briefed.” Id., at 580. We 

hold that res judicata neither bars petitioners’ challenges 
 

Cite as: 579 U. S. ____ (2016) 11 

Opinion of the Court 

to the admitting-privileges requirement nor prevents us

from awarding facial relief.

For one thing, to the extent that the Court of Appeals

concluded that the principle of res judicata bars any facial 

challenge to the admitting-privileges requirement, see 

ibid., the court misconstrued petitioners’ claims. Petitioners did not bring a facial challenge to the admittingprivileges requirement in this case but instead challenged 

that requirement as applied to the clinics in McAllen and 

El Paso. The question is whether res judicata bars petitioners’ particular as-applied claims. On this point, the 

Court of Appeals concluded that res judicata was no bar,

see 790 F. 3d, at 592, and we agree.

The doctrine of claim preclusion (the here-relevant

aspect of res judicata) prohibits “successive litigation of

the very same claim” by the same parties. New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Petitioners’ 

postenforcement as-applied challenge is not “the very 

same claim” as their preenforcement facial challenge. The 

Restatement of Judgments notes that development of new 

material facts can mean that a new case and an otherwise 

similar previous case do not present the same claim. See

Restatement (Second) of Judgments §24, Comment f 

(1980) (“Material operative facts occurring after the decision of an action with respect to the same subject matter 

may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made

the basis of a second action not precluded by the first”); cf. 

id., §20(2) (“A valid and final personal judgment for the 

defendant, which rests on the prematurity of the action or 

on the plaintiff ’s failure to satisfy a precondition to suit,

does not bar another action by the plaintiff instituted after 

the claim has matured, or the precondition has been satisfied”); id., §20, Comment k (discussing relationship of this 

rule with §24, Comment f ). The Courts of Appeals have

used similar rules to determine the contours of a new 
 

 

12 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

claim for purposes of preclusion. See, e.g., Morgan v. 

Covington, 648 F. 3d 172, 178 (CA3 2011) (“[R]es judicata 

does not bar claims that are predicated on events that 

postdate the filing of the initial complaint”); Ellis v. CCA 

of Tenn. LLC, 650 F. 3d 640, 652 (CA7 2011); Bank of 

N. Y. v. First Millennium, Inc., 607 F. 3d 905, 919 (CA2 

2010); Smith v. Potter, 513 F. 3d 781, 783 (CA7 2008); 

Rawe v. Liberty Mut. Fire Ins. Co., 462 F. 3d 521, 529 

(CA6 2006); Manning v. Auburn, 953 F. 2d 1355, 1360 

(CA11 1992). The Restatement adds that, where “important human values—such as the lawfulness of continuing personal disability or restraint—are at stake, even a 

slight change of circumstances may afford a sufficient

basis for concluding that a second action may be brought.” 

§24, Comment f; see Bucklew v. Lombardi, 783 F. 3d 1120, 

1127 (CA8 2015) (allowing as-applied challenge to execution method to proceed notwithstanding prior facial

challenge).

We find this approach persuasive. Imagine a group of 

prisoners who claim that they are being forced to drink

contaminated water. These prisoners file suit against the 

facility where they are incarcerated. If at first their suit is 

dismissed because a court does not believe that the harm 

would be severe enough to be unconstitutional, it would 

make no sense to prevent the same prisoners from bringing a later suit if time and experience eventually showed

that prisoners were dying from contaminated water. Such 

circumstances would give rise to a new claim that the 

prisoners’ treatment violates the Constitution. Factual 

developments may show that constitutional harm, which

seemed too remote or speculative to afford relief at the 

time of an earlier suit, was in fact indisputable. In our 

view, such changed circumstances will give rise to a new 

constitutional claim. This approach is sensible, and it is

consistent with our precedent. See Abie State Bank v. 

Bryan, 282 U. S. 765, 772 (1931) (where “suit was brought 
 

Cite as: 579 U. S. ____ (2016) 13 

Opinion of the Court 

immediately upon the enactment of the law,” “decision 

sustaining the law cannot be regarded as precluding a 

subsequent suit for the purpose of testing [its] validity . . . 

in the lights of the later actual experience”); cf. Lawlor v. 

National Screen Service Corp., 349 U. S. 322, 328 (1955) 

(judgment that “precludes recovery on claims arising prior 

to its entry” nonetheless “cannot be given the effect of 

extinguishing claims which did not even then exist”); 

United States v. Carolene Products Co., 304 U. S. 144, 153 

(1938) (“[T]he constitutionality of a statute predicated

upon the existence of a particular state of facts may be

challenged by showing to the court that those facts have 

ceased to exist”); Nashville, C. & St. L. R. Co. v. Walters, 

294 U. S. 405, 415 (1935) (“A statute valid as to one set of 

facts may be invalid as to another. A statute valid when 

enacted may become invalid by change in the conditions to 

which it is applied” (footnote omitted)); Third Nat. Bank of 

Louisville v. Stone 174 U. S. 432, 434 (1899) (“A question

cannot be held to have been adjudged before an issue on

the subject could possibly have arisen”). JUSTICE ALITO’s 

dissenting opinion is simply wrong that changed circumstances showing that a challenged law has an unconstitutional effect can never give rise to a new claim. See post,

at 14–15 (hereinafter the dissent).

Changed circumstances of this kind are why the claim 

presented in Abbott is not the same claim as petitioners’ 

claim here. The claims in both Abbott and the present 

case involve “important human values.” Restatement 

(Second) of Judgments §24, Comment f. We are concerned 

with H. B. 2’s “effect . . . on women seeking abortions.” 

Post, at 30 (ALITO, J., dissenting). And that effect has 

changed dramatically since petitioners filed their first

lawsuit. Abbott rested on facts and evidence presented to

the District Court in October 2013. 748 F. 3d, at 599, 

n. 14 (declining to “consider any arguments” based on 

“developments since the conclusion of the bench trial”). 
 

 

14 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

Petitioners’ claim in this case rests in significant part

upon later, concrete factual developments. Those developments matter. The Abbott plaintiffs brought their facial

challenge to the admitting-privileges requirement prior to 

its enforcement—before many abortion clinics had closed 

and while it was still unclear how many clinics would be

affected. Here, petitioners bring an as-applied challenge

to the requirement after its enforcement—and after a large 

number of clinics have in fact closed. The postenforcement

consequences of H. B. 2 were unknowable before it went

into effect. The Abbott court itself recognized that “[l]ater

as-applied challenges can always deal with subsequent,

concrete constitutional issues.” Id., at 589. And the Court 

of Appeals in this case properly decided that new evidence 

presented by petitioners had given rise to a new claim and 

that petitioners’ as-applied challenges are not precluded.

See 790 F. 3d, at 591 (“We now know with certainty that

the non-[surgical-center] abortion facilities have actually

closed and physicians have been unable to obtain admitting privileges after diligent effort”).

When individuals claim that a particular statute will 

produce serious constitutionally relevant adverse consequences before they have occurred—and when the courts 

doubt their likely occurrence—the factual difference that

those adverse consequences have in fact occurred can 

make all the difference. Compare the Fifth Circuit’s opinion in the earlier case, Abbott, supra, at 598 (“All of the 

major Texas cities . . . continue to have multiple clinics 

where many physicians will have or obtain hospital admitting privileges”), with the facts found in this case, 46

F. Supp. 3d, at 680 (the two provisions will leave Texas

with seven or eight clinics). The challenge brought in this 

case and the one in Abbott are not the “very same claim,” 

and the doctrine of claim preclusion consequently does

not bar a new challenge to the constitutionality of the 

admitting-privileges requirement. New Hampshire v. Maine, 
Cite as: 579 U. S. ____ (2016) 15 

Opinion of the Court 

532 U. S., at 748. That the litigants in Abbott did not seek 

review in this Court, as the dissent suggests they should 

have done, see post, at 10, does not prevent them from

seeking review of new claims that have arisen after Abbott 

was decided. In sum, the Restatement, cases from the 

Courts of Appeals, our own precedent, and simple logic 

combine to convince us that res judicata does not bar this 

claim. 

The Court of Appeals also concluded that the award of 

facial relief was precluded by principles of res judicata. 

790 F. 3d, at 581. The court concluded that the District 

Court should not have “granted more relief than anyone 

requested or briefed.” Id., at 580. But in addition to 

asking for as-applied relief, petitioners asked for “such

other and further relief as the Court may deem just, proper, 

and equitable.” App. 167. Their evidence and arguments convinced the District Court that the provision was

unconstitutional across the board. The Federal Rules of 

Civil Procedure state that (with an exception not relevant

here) a “final judgment should grant the relief to which

each party is entitled, even if the party has not demanded 

that relief in its pleadings.” Rule 54(c). And we have held 

that, if the arguments and evidence show that a statutory 

provision is unconstitutional on its face, an injunction 

prohibiting its enforcement is “proper.” Citizens United v. 

Federal Election Comm’n, 558 U. S. 310, 333 (2010); see 

ibid. (in “the exercise of its judicial responsibility” it may

be “necessary . . . for the Court to consider the facial validity” of a statute, even though a facial challenge was not 

brought); cf. Fallon, As-Applied and Facial Challenges and 

Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) 

(“[O]nce a case is brought, no general categorical line bars 

a court from making broader pronouncements of invalidity

in properly ‘as-applied’ cases”). Nothing prevents this

Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims. 
 

 

 

 

16 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

B 

Claim Preclusion—Surgical-Center Requirement 

The Court of Appeals also held that claim preclusion

barred petitioners from contending that the surgicalcenter requirement is unconstitutional. 790 F. 3d, at 583. 

Although it recognized that petitioners did not bring this

claim in Abbott, it believed that they should have done so.

The court explained that petitioners’ constitutional challenge to the surgical-center requirement and the challenge to the admitting-privileges requirement mounted in 

Abbott 

“arise from the same ‘transactio[n] or series of connected transactions.’ . . . The challenges involve the 

same parties and abortion facilities; the challenges

are governed by the same legal standards; the provisions at issue were enacted at the same time as part

of the same act; the provisions were motivated by a 

common purpose; the provisions are administered by 

the same state officials; and the challenges form a 

convenient trial unit because they rely on a common

nucleus of operative facts.” 790 F. 3d, at 581. 

For all these reasons, the Court of Appeals held petitioners’ challenge to H. B. 2’s surgical-center requirement was

precluded.

The Court of Appeals failed, however, to take account of

meaningful differences. The surgical-center provision and 

the admitting-privileges provision are separate, distinct

provisions of H. B. 2. They set forth two different, independent requirements with different enforcement dates.

This Court has never suggested that challenges to two

different statutory provisions that serve two different 

functions must be brought in a single suit. And lower 

courts normally treat challenges to distinct regulatory

requirements as “separate claims,” even when they are

part of one overarching “[g]overnment regulatory scheme.” 
 

Cite as: 579 U. S. ____ (2016) 17 

Opinion of the Court 

18 C. Wright, A. Miller, & E. Cooper, Federal Practice and 

Procedure §4408, p. 52 (2d ed. 2002, Supp. 2015); see 

Hamilton’s Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 

(CA6 2007).

That approach makes sense. The opposite approach

adopted by the Court of Appeals would require treating 

every statutory enactment as a single transaction which a

given party would only be able to challenge one time, in

one lawsuit, in order to avoid the effects of claim preclusion. Such a rule would encourage a kitchen-sink approach to any litigation challenging the validity of statutes. That outcome is less than optimal—not only for

litigants, but for courts.

There are other good reasons why petitioners should not 

have had to bring their challenge to the surgical-center 

provision at the same time they brought their first suit.

The statute gave the Texas Department of State Health 

Services authority to make rules implementing the surgicalcenter requirement. H. B. 2, §11(a), App. to Pet. for 

Cert. 201a. At the time petitioners filed Abbott, that state 

agency had not yet issued any such rules. Cf. EPA v. 

Brown, 431 U. S. 99, 104 (1977) (per curiam); 13B Wright, 

supra, §3532.6, at 629 (3d ed. 2008) (most courts will not 

“undertake review before rules have been adopted”); Natural Resources Defense Council, Inc. v. EPA, 859 F. 2d 156, 

204 (CADC 1988). 

Further, petitioners might well have expected that those

rules when issued would contain provisions grandfathering some then-existing abortion facilities and granting full

or partial waivers to others. After all, more than three 

quarters of non-abortion-related surgical centers had

benefited from that kind of provision. See 46 F. Supp. 3d,

at 680–681 (336 of 433 existing Texas surgical centers

have been grandfathered or otherwise enjoy a waiver of 

some of the surgical-center requirements); see also App. 

299–302, 443–447, 468–469. 
 

 

 

18 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

Finally, the relevant factual circumstances changed

between Abbott and the present lawsuit, as we previously 

described. See supra, at 14–15. 

The dissent musters only one counterargument. According to the dissent, if statutory provisions “impos[e] the

same kind of burden . . . on the same kind of right” and 

have mutually reinforcing effects, “it is evident that” they

are “part of the same transaction” and must be challenged 

together. Post, at 20, 22. But for the word “evident,” the 

dissent points to no support for this conclusion, and we

find it unconvincing. Statutes are often voluminous, with 

many related, yet distinct, provisions. Plaintiffs, in order 

to preserve their claims, need not challenge each such

provision of, say, the USA PATRIOT Act, the Bipartisan

Campaign Reform Act of 2002, the National Labor Relations Act, the Clean Water Act, the Antiterrorism and 

Effective Death Penalty Act of 1996, or the Patient Protection and Affordable Care Act in their first lawsuit. 

For all of these reasons, we hold that the petitioners did

not have to bring their challenge to the surgical-center

provision when they challenged the admitting-privileges 

provision in Abbott. We accordingly hold that the doctrine

of claim preclusion does not prevent them from bringing 

that challenge now. 

* * * 

None of petitioners’ claims are barred by res judicata.

Five experts in civil procedure argued, in a brief supporting petitioners’ request for certiorari, that “the panel’s

procedural ruling is so clearly incorrect” that there was no 

reason to decline review. Brief for Professor Michael Dorf 

et al. as Amici Curiae 22. For all of the reasons described 

above, we agree that the Court of Appeals’ procedural 

ruling was incorrect. We consequently proceed to consider

the merits of petitioners’ claims. 
 

Cite as: 579 U. S. ____ (2016) 19 

Opinion of the Court 

III 

Undue Burden—Legal Standard 

We begin with the standard, as described in Casey. We 

recognize that the “State has a legitimate interest in

seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 

150 (1973). But, we added, “a statute which, while furthering [a] valid state interest, has the effect of placing a

substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Casey, 505 U. S., at 877 (plurality opinion).

Moreover, “[u]nnecessary 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.” Id., at 878. 

The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking 

an abortion of a nonviable fetus; and (2) it is reasonably 

related to (or designed to further) a legitimate state interest.” 790 F. 3d, at 572. The Court of Appeals went on to 

hold that “the district court erred by substituting its own 

judgment for that of the legislature” when it conducted its 

“undue burden inquiry,” in part because “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” Id., at 587 (citing Gonzales v. 

Carhart, 550 U. S. 124, 163 (2007)). 

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test

may be read to imply that a district court should not consider the existence or nonexistence of medical benefits 

when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, 

however, requires that courts consider the burdens a law 

imposes on abortion access together with the benefits 
 

 

 

20 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

those laws confer. See 505 U. S., at 887–898 (opinion of 

the Court) (performing this balancing with respect to a

spousal notification provision); id., at 899–901 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.) (same balancing with respect to a parental notification provision). And 

the second part of the test is wrong to equate the judicial 

review applicable to the regulation of a constitutionally 

protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.

See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 

483, 491 (1955). The Court of Appeals’ approach simply 

does not match the standard that this Court laid out in 

Casey, which asks courts to consider whether any burden 

imposed on abortion access is “undue.” 

The statement that legislatures, and not courts, must

resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, 

when determining the constitutionality of laws regulating

abortion procedures, has placed considerable weight upon

evidence and argument presented in judicial proceedings.

In Casey, for example, we relied heavily on the District

Court’s factual findings and the research-based submissions of amici in declaring a portion of the law at issue 

unconstitutional. 505 U. S., at 888–894 (opinion of the 

Court) (discussing evidence related to the prevalence of

spousal abuse in determining that a spousal notification 

provision erected an undue burden to abortion access).

And, in Gonzales the Court, while pointing out that we

must review legislative “factfinding under a deferential 

standard,” added that we must not “place dispositive

weight” on those “findings.” 550 U. S., at 165. Gonzales 

went on to point out that the “Court retains an independent constitutional duty to review factual findings where 

constitutional rights are at stake.” Ibid. (emphasis added).

Although there we upheld a statute regulating abortion,

we did not do so solely on the basis of legislative findings 
Cite as: 579 U. S. ____ (2016) 21 

Opinion of the Court 

explicitly set forth in the statute, noting that “evidence 

presented in the District Courts contradicts” some of the 

legislative findings. Id., at 166. In these circumstances, 

we said, “[u]ncritical deference to Congress’ factual findings . . . is inappropriate.” Ibid.

 Unlike in Gonzales, the relevant statute here does not 

set forth any legislative findings. Rather, one is left to 

infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women’s 

health). Id., at 149–150. For a district court to give significant weight to evidence in the judicial record in these 

circumstances is consistent with this Court’s case law. As 

we shall describe, the District Court did so here. It did not 

simply substitute its own judgment for that of the legislature. It considered the evidence in the record—including

expert evidence, presented in stipulations, depositions,

and testimony. It then weighed the asserted benefits

against the burdens. We hold that, in so doing, the District Court applied the correct legal standard. 

IV 

Undue Burden—Admitting-Privileges Requirement 

Turning to the lower courts’ evaluation of the evidence,

we first consider the admitting-privileges requirement. 

Before the enactment of H. B. 2, doctors who provided 

abortions were required to “have admitting privileges or 

have a working arrangement with a physician(s) who has

admitting privileges at a local hospital in order to ensure

the necessary back up for medical complications.” Tex. 

Admin. Code, tit. 25, §139.56 (2009) (emphasis added). 

The new law changed this requirement by requiring that a

“physician performing or inducing an abortion . . . must,

on the date the abortion is performed or induced, have

active admitting privileges at a hospital that . . . is located 

not further than 30 miles from the location at which the 

abortion is performed or induced.” Tex. Health & Safety 
 

22 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

Code Ann. §171.0031(a). The District Court held that the 

legislative change imposed an “undue burden” on a woman’s right to have an abortion. We conclude that there is 

adequate legal and factual support for the District Court’s

conclusion. 

The purpose of the admitting-privileges requirement is 

to help ensure that women have easy access to a hospital 

should complications arise during an abortion procedure.

Brief for Respondents 32–37. But the District Court found 

that it brought about no such health-related benefit. The 

court found that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas 

was extremely safe with particularly low rates of serious 

complications and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684. Thus, 

there was no significant health-related problem that the

new law helped to cure.

The evidence upon which the court based this conclusion 

included, among other things: 

• A collection of at least five peer-reviewed studies on 

abortion complications in the first trimester, showing that 

the highest rate of major complications—including those

complications requiring hospital admission—was less than

one-quarter of 1%. See App. 269–270. 

• Figures in three peer-reviewed studies showing that the 

highest complication rate found for the much rarer second

trimester abortion was less than one-half of 1% (0.45% or

about 1 out of about 200). Id., at 270. 

• Expert testimony to the effect that complications rarely

require hospital admission, much less immediate transfer 

to a hospital from an outpatient clinic. Id., at 266–267 

(citing a study of complications occurring within six weeks

after 54,911 abortions that had been paid for by the feefor-service California Medicaid Program finding that the

incidence of complications was 2.1%, the incidence of 
Cite as: 579 U. S. ____ (2016) 23 

Opinion of the Court 

complications requiring hospital admission was 0.23%,

and that of the 54,911 abortion patients included in the

study, only 15 required immediate transfer to the hospital 

on the day of the abortion).

• Expert testimony stating that “it is extremely unlikely

that a patient will experience a serious complication at the

clinic that requires emergent hospitalization” and “in the 

rare case in which [one does], the quality of care that the 

patient receives is not affected by whether the abortion

provider has admitting privileges at the hospital.” Id., at 

381. 

• Expert testimony stating that in respect to surgical

abortion patients who do suffer complications requiring

hospitalization, most of these complications occur in the

days after the abortion, not on the spot. See id., at 382; 

see also id., at 267. 

• Expert testimony stating that a delay before the onset of 

complications is also expected for medical abortions, as

“abortifacient drugs take time to exert their effects, and

thus the abortion itself almost always occurs after the 

patient has left the abortion facility.” Id., at 278. 

• Some experts added that, if a patient needs a hospital in

the day or week following her abortion, she will likely seek 

medical attention at the hospital nearest her home. See, 

e.g., id., at 153. 

We have found nothing in Texas’ record evidence that

shows that, compared to prior law (which required a 

“working arrangement” with a doctor with admitting

privileges), the new law advanced Texas’ legitimate interest in protecting women’s health. 

We add that, when directly asked at oral argument 

whether Texas knew of a single instance in which the new 

requirement would have helped even one woman obtain

better treatment, Texas admitted that there was no evidence in the record of such a case. See Tr. of Oral Arg. 47. 
 

24 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

This answer is consistent with the findings of the other

Federal District Courts that have considered the health 

benefits of other States’ similar admitting-privileges laws. 

See Planned Parenthood of Wis., Inc. v. Van Hollen, 94 

F. Supp. 3d 949, 953 (WD Wis. 2015), aff ’d sub nom. 

Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908 

(CA7 2015); Planned Parenthood Southeast, Inc. v. 

Strange, 33 F. Supp. 3d 1330, 1378 (MD Ala. 2014). 

At the same time, the record evidence indicates that the 

admitting-privileges requirement places a “substantial

obstacle in the path of a woman’s choice.” Casey, 505 

U. S., at 877 (plurality opinion). The District Court found, 

as of the time the admitting-privileges requirement began

to be enforced, the number of facilities providing abortions 

dropped in half, from about 40 to about 20. 46 

F. Supp. 3d, at 681. Eight abortion clinics closed in the 

months leading up to the requirement’s effective date. See 

App. 229–230; cf. Brief for Planned Parenthood Federation

of America et al. as Amici Curiae 14 (noting that abortion

facilities in Waco, San Angelo, and Midland no longer 

operate because Planned Parenthood is “unable to find 

local physicians in those communities with privileges who

are willing to provide abortions due to the size of those 

communities and the hostility that abortion providers

face”). Eleven more closed on the day the admittingprivileges requirement took effect. See App. 229–230; Tr. 

of Oral Arg. 58. 

Other evidence helps to explain why the new requirement led to the closure of clinics. We read that other 

evidence in light of a brief filed in this Court by the Society of Hospital Medicine. That brief describes the undisputed general fact that “hospitals often condition admitting privileges on reaching a certain number of admissions

per year.” Brief for Society of Hospital Medicine et al. as 

Amici Curiae 11. Returning to the District Court record,

we note that, in direct testimony, the president of Nova 
Cite as: 579 U. S. ____ (2016) 25 

Opinion of the Court 

Health Systems, implicitly relying on this general fact, 

pointed out that it would be difficult for doctors regularly

performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the 

past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those 

patients had to be transferred to a hospital for emergency 

treatment, much less admitted to the hospital.” App. 730.

In a word, doctors would be unable to maintain admitting 

privileges or obtain those privileges for the future, because

the fact that abortions are so safe meant that providers 

were unlikely to have any patients to admit.

Other amicus briefs filed here set forth without dispute

other common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures. See Brief for Medical Staff Professionals 

as Amici Curiae 20–25 (listing, for example, requirements

that an applicant has treated a high number of patients in

the hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors); see also Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 16 

(ACOG Brief) (“[S]ome academic hospitals will only allow 

medical staff membership for clinicians who also . . . accept faculty appointments”). Again, returning to the 

District Court record, we note that Dr. Lynn of the

McAllen clinic, a veteran obstetrics and gynecology doctor

who estimates that he has delivered over 15,000 babies in 

his 38 years in practice was unable to get admitting privileges at any of the seven hospitals within 30 miles of his

clinic. App. 390–394. He was refused admitting privileges

at a nearby hospital for reasons, as the hospital wrote, 

“not based on clinical competence considerations.” Id., at 

393–394 (emphasis deleted). The admitting-privileges

requirement does not serve any relevant credentialing 

function. 
 

 

 

 

26 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

In our view, the record contains sufficient evidence that 

the admitting-privileges requirement led to the closure of 

half of Texas’ clinics, or thereabouts. Those closures 

meant fewer doctors, longer waiting times, and increased 

crowding. Record evidence also supports the finding that

after the admitting-privileges provision went into effect,

the “number of women of reproductive age living in a

county . . . more than 150 miles from a provider increased 

from approximately 86,000 to 400,000 . . . and the number 

of women living in a county more than 200 miles from a

provider from approximately 10,000 to 290,000.” 46 

F. Supp. 3d, at 681. We recognize that increased driving 

distances do not always constitute an “undue burden.” 

See Casey, 505 U. S., at 885–887 (joint opinion of 

O’Connor, KENNEDY, and Souter, JJ.). But here, those 

increases are but one additional burden, which, when 

taken together with others that the closings brought

about, and when viewed in light of the virtual absence of

any health benefit, lead us to conclude that the record

adequately supports the District Court’s “undue burden”

conclusion. Cf. id., at 895 (opinion of the Court) (finding

burden “undue” when requirement places “substantial 

obstacle to a woman’s choice” in “a large fraction of the

cases in which” it “is relevant”).

The dissent’s only argument why these clinic closures, 

as well as the ones discussed in Part V, infra, may not

have imposed an undue burden is this: Although “H. B. 2 

caused the closure of some clinics,” post, at 26 (emphasis

added), other clinics may have closed for other reasons (so 

we should not “actually count” the burdens resulting from 

those closures against H. B. 2), post, at 30–31. But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible

inferences to be drawn from the timing of the clinic closures. App. 182–183, 228–231. The District Court credited 

that evidence and concluded from it that H. B. 2 in fact 
 

 

Cite as: 579 U. S. ____ (2016) 27 

Opinion of the Court 

led to the clinic closures. 46 F. Supp. 3d, at 680–681. The 

dissent’s speculation that perhaps other evidence, not 

presented at trial or credited by the District Court, might

have shown that some clinics closed for unrelated reasons 

does not provide sufficient ground to disturb the District

Court’s factual finding on that issue.

In the same breath, the dissent suggests that one benefit of H. B. 2’s requirements would be that they might 

“force unsafe facilities to shut down.” Post, at 26. To 

support that assertion, the dissent points to the Kermit

Gosnell scandal. Gosnell, a physician in Pennsylvania, 

was convicted of first-degree murder and manslaughter. 

He “staffed his facility with unlicensed and indifferent 

workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; 

an absence of functioning monitoring and resuscitation

equipment; the use of cheap, but dangerous, drugs; illegal

procedures; and inadequate emergency access for when

things inevitably went wrong.” Report of Grand Jury

in No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 14,

2011), p. 24, online at http://www.phila.gov/districtattorney/

pdfs/grandjurywomensmedical.pdf (as last visited 

June 24, 2016). Gosnell’s behavior was terribly wrong.

But there is no reason to believe that an extra layer

of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to 

adopt safe practices by a new overlay of regulations.

Regardless, Gosnell’s deplorable crimes could escape

detection only because his facility went uninspected for

more than 15 years. Id., at 20. Pre-existing Texas law 

already contained numerous detailed regulations covering

abortion facilities, including a requirement that facilities

be inspected at least annually. See infra, at 28 (describing 

those regulations). The record contains nothing to suggest

that H. B. 2 would be more effective than pre-existing 
 

28 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

Texas law at deterring wrongdoers like Gosnell from 

criminal behavior. 

V 

Undue Burden—Surgical-Center Requirement 

The second challenged provision of Texas’ new law sets

forth the surgical-center requirement. Prior to enactment 

of the new requirement, Texas law required abortion

facilities to meet a host of health and safety requirements. 

Under those pre-existing laws, facilities were subject to 

annual reporting and recordkeeping requirements, see 

Tex. Admin. Code, tit. 25, §§139.4, 139.5, 139.55, 139.58; a 

quality assurance program, see §139.8; personnel policies

and staffing requirements, see §§139.43, 139.46; physical 

and environmental requirements, see §139.48; infection

control standards, see §139.49; disclosure requirements, 

see §139.50; patient-rights standards, see §139.51; and 

medical- and clinical-services standards, see §139.53, 

including anesthesia standards, see §139.59. These requirements are policed by random and announced inspections, at least annually, see §§139.23, 139.31; Tex. Health

& Safety Code Ann. §245.006(a) (West 2010), as well as

administrative penalties, injunctions, civil penalties,

and criminal penalties for certain violations, see Tex. 

Admin. Code, tit. 25, §139.33; Tex. Health & Safety Code 

Ann. §245.011 (criminal penalties for certain reporting 

violations).

H. B. 2 added the requirement that an “abortion facility” 

meet the “minimum standards . . . for ambulatory surgical 

centers” under Texas law. §245.010(a) (West Cum. Supp.

2015). The surgical-center regulations include, among

other things, detailed specifications relating to the size of 

the nursing staff, building dimensions, and other building

requirements. The nursing staff must comprise at least 

“an adequate number of [registered nurses] on duty to

meet the following minimum staff requirements: director 
Cite as: 579 U. S. ____ (2016) 29 

Opinion of the Court 

of the department (or designee), and supervisory and staff

personnel for each service area to assure the immediate 

availability of [a registered nurse] for emergency care or

for any patient when needed,” Tex. Admin. Code, tit. 25, 

§135.15(a)(3) (2016), as well as “a second individual on

duty on the premises who is trained and currently certified in basic cardiac life support until all patients have

been discharged from the facility” for facilities that provide moderate sedation, such as most abortion facilities, 

§135.15(b)(2)(A). Facilities must include a full surgical

suite with an operating room that has “a clear floor area of

at least 240 square feet” in which “[t]he minimum clear

dimension between built-in cabinets, counters, and shelves 

shall be 14 feet.” §135.52(d)(15)(A). There must be a 

preoperative patient holding room and a postoperative 

recovery suite. The former “shall be provided and arranged in a one-way traffic pattern so that patients entering from outside the surgical suite can change, gown, and 

move directly into the restricted corridor of the surgical

suite,” §135.52(d)(10)(A), and the latter “shall be arranged 

to provide a one-way traffic pattern from the restricted

surgical corridor to the postoperative recovery suite, and 

then to the extended observation rooms or discharge,” 

§135.52(d)(9)(A). Surgical centers must meet numerous

other spatial requirements, see generally §135.52, including specific corridor widths, §135.52(e)(1)(B)(iii). Surgical

centers must also have an advanced heating, ventilation,

and air conditioning system, §135.52(g)(5), and must

satisfy particular piping system and plumbing requirements, §135.52(h). Dozens of other sections list additional 

requirements that apply to surgical centers. See generally

§§135.1–135.56. 

There is considerable evidence in the record supporting 

the District Court’s findings indicating that the statutory

provision requiring all abortion facilities to meet all surgicalcenter standards does not benefit patients and is not 
 

 

 

 

30 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

necessary. The District Court found that “risks are not 

appreciably lowered for patients who undergo abortions at 

ambulatory surgical centers as compared to nonsurgicalcenter facilities.” 46 F. Supp. 3d, at 684. The court added 

that women “will not obtain better care or experience more 

frequent positive outcomes at an ambulatory surgical

center as compared to a previously licensed facility.” Ibid. 

And these findings are well supported.

The record makes clear that the surgical-center requirement provides no benefit when complications arise in

the context of an abortion produced through medication.

That is because, in such a case, complications would almost always arise only after the patient has left the facility. See supra, at 23; App. 278. The record also contains 

evidence indicating that 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.

See, e.g., id., at 223–224, 254, 275–279. The total number 

of deaths in Texas from abortions was five in the period 

from 2001 to 2012, or about one every two years (that is to 

say, one out of about 120,000 to 144,000 abortions). Id., at 

272. Nationwide, childbirth is 14 times more likely than

abortion to result in death, ibid., but Texas law allows a 

midwife to oversee childbirth in the patient’s own home.

Colonoscopy, a procedure that typically takes place outside

a hospital (or surgical center) setting, has a mortality rate 

10 times higher than an abortion. Id., at 276–277; see 

ACOG Brief 15 (the mortality rate for liposuction, another 

outpatient procedure, is 28 times higher than the mortality rate for abortion). Medical treatment after an incomplete miscarriage often involves a procedure identical to

that involved in a nonmedical abortion, but it often takes 

place outside a hospital or surgical center. App. 254; see

ACOG Brief 14 (same). And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center 
 

Cite as: 579 U. S. ____ (2016) 31 

Opinion of the Court 

requirement for) about two-thirds of the facilities to which

the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that

perform abortions. 46 F. Supp. 3d, at 680–681; see App. 

184. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based on

differences” between abortion and other surgical procedures “that are reasonably related to” preserving women’s

health, the asserted “purpos[e] of the Act in which it is 

found.” Doe, 410 U. S., at 194 (quoting Morey v. Doud, 354 

U. S. 457, 465 (1957); internal quotation marks omitted).

Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring

scrub facilities; maintaining a one-way traffic pattern

through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and 

regulating air pressure, filtration, and humidity control

can help reduce infection where doctors conduct procedures that penetrate the skin. App. 304. But abortions 

typically involve either the administration of medicines or

procedures performed through the natural opening of the

birth canal, which is itself not sterile. See id., at 302–303. 

Nor do provisions designed to safeguard heavily sedated 

patients (unable to help themselves) during fire emergencies, see Tex. Admin. Code, tit. 25, §135.41; App. 304, 

provide any help to abortion patients, as abortion facilities

do not use general anesthesia or deep sedation, id., at 

304–305. Further, since the few instances in which serious complications do arise following an abortion almost

always require hospitalization, not treatment at a surgical 

center, id., at 255–256, surgical-center standards will not

help in those instances either. 

The upshot is that this record evidence, along with the

absence of any evidence to the contrary, provides ample 

support for the District Court’s conclusion that “[m]any of 

the building standards mandated by the act and its im-
 

32 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

plementing rules have such a tangential relationship to

patient safety in the context of abortion as to be nearly

arbitrary.” 46 F. Supp. 3d, at 684. That conclusion, along 

with the supporting evidence, provides sufficient support

for the more general conclusion that the surgical-center 

requirement “will not [provide] better care or . . . more

frequent positive outcomes.” Ibid. The record evidence 

thus supports the ultimate legal conclusion that the

surgical-center requirement is not necessary. 

At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the 

surgical-center requirement places a substantial obstacle 

in the path of women seeking an abortion. The parties

stipulated that the requirement would further reduce the

number of abortion facilities available to seven or eight 

facilities, located in Houston, Austin, San Antonio, and 

Dallas/Fort Worth. See App. 182–183. In the District 

Court’s view, the proposition that these “seven or eight 

providers could meet the demand of the entire State 

stretches credulity.” 46 F. Supp. 3d, at 682. We take this 

statement as a finding that these few facilities could not 

“meet” that “demand.” 

The Court of Appeals held that this finding was “clearly

erroneous.” 790 F. 3d, at 590. It wrote that the finding 

rested upon the “‘ipse dixit’” of one expert, Dr. Grossman, 

and that there was no evidence that the current surgical

centers (i.e., the seven or eight) are operating at full capacity or could not increase capacity. Ibid. Unlike the Court 

of Appeals, however, we hold that the record provides

adequate support for the District Court’s finding. 

For one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as a result of the 

surgical-center requirement, the number of abortions that 

the clinics would have to provide would rise from “‘14,000

abortions annually’” to “‘60,000 to 70,000’”—an increase 

by a factor of about five. Id., at 589–590. The District 
Cite as: 579 U. S. ____ (2016) 33 

Opinion of the Court 

Court credited Dr. Grossman as an expert witness. See 46 

F. Supp. 3d, at 678–679, n. 1; id., at 681, n. 4 (finding 

“indicia of reliability” in Dr. Grossman’s conclusions). The 

Federal Rules of Evidence state that an expert may testify 

in the “form of an opinion” as long as that opinion rests 

upon “sufficient facts or data” and “reliable principles and 

methods.” Rule 702. In this case Dr. Grossman’s opinion 

rested upon his participation, along with other university

researchers, in research that tracked “the number of open

facilities providing abortion care in the state by . . . requesting information from the Texas Department of State

Health Services . . . [, t]hrough interviews with clinic 

staff[,] and review of publicly available information.” App.

227. The District Court acted within its legal authority in

determining that Dr. Grossman’s testimony was admissible. See Fed. Rule Evid. 702; see also Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993) 

(“[U]nder the Rules the trial judge must ensure that any

and all [expert] evidence admitted is not only relevant, but

reliable”); 29 C. Wright & V. Gold, Federal Practice and

Procedure: Evidence §6266, p. 302 (2016) (“Rule 702 impose[s] on the trial judge additional responsibility to determine whether that [expert] testimony is likely to promote accurate factfinding”).

For another thing, common sense suggests that, more

often than not, a physical facility that satisfies a certain

physical demand will not be able to meet five times that 

demand without expanding or otherwise incurring significant costs. Suppose that we know only that a certain

grocery store serves 200 customers per week, that a certain apartment building provides apartments for 200 

families, that a certain train station welcomes 200 trains 

per day. While it is conceivable that the store, the apartment building, or the train station could just as easily 

provide for 1,000 customers, families, or trains at no significant additional cost, crowding, or delay, most of us 
 

34 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

would find this possibility highly improbable. The dissent 

takes issue with this general, intuitive point by arguing 

that many places operate below capacity and that in any 

event, facilities could simply hire additional providers. 

See post, at 32. We disagree that, according to common

sense, medical facilities, well known for their wait times, 

operate below capacity as a general matter. And the fact 

that so many facilities were forced to close by the admittingprivileges requirement means that hiring more physicians would not be quite as simple as the dissent suggests. 

Courts are free to base their findings on commonsense

inferences drawn from the evidence. And that is what the 

District Court did here. 

The dissent now seeks to discredit Dr. Grossman by 

pointing out that a preliminary prediction he made in his

testimony in Abbott about the effect of the admittingprivileges requirement on capacity was not borne out after 

that provision went into effect. See post, at 31, n. 22. If 

every expert who overestimated or underestimated any 

figure could not be credited, courts would struggle to find

expert assistance. Moreover, making a hypothesis—and 

then attempting to verify that hypothesis with further

studies, as Dr. Grossman did—is not irresponsible. It is 

an essential element of the scientific method. The District 

Court’s decision to credit Dr. Grossman’s testimony was

sound, particularly given that Texas provided no credible

experts to rebut it. See 46 F. Supp. 3d, at 680, n. 3 (declining to credit Texas’ expert witnesses, in part because 

Vincent Rue, a nonphysician consultant for Texas, had 

exercised “considerable editorial and discretionary control 

over the contents of the experts’ reports”). 

Texas suggests that the seven or eight remaining clinics

could expand sufficiently to provide abortions for the 

60,000 to 72,000 Texas women who sought them each 

year. Because petitioners had satisfied their burden, the

obligation was on Texas, if it could, to present evidence 
Cite as: 579 U. S. ____ (2016) 35 

Opinion of the Court 

rebutting that issue to the District Court. Texas admitted 

that it presented no such evidence. Tr. of Oral Arg. 46. 

Instead, Texas argued before this Court that one new 

clinic now serves 9,000 women annually. Ibid. In addition 

to being outside the record, that example is not representative. The clinic to which Texas referred apparently

cost $26 million to construct—a fact that even more clearly 

demonstrates that requiring seven or eight clinics to serve

five times their usual number of patients does indeed

represent an undue burden on abortion access. See 

Planned Parenthood Debuts New Building: Its $26 Million

Center in Houston is Largest of Its Kind in U. S., Houston 

Chronicle, May 21, 2010, p. B1.

Attempting to provide the evidence that Texas did not, 

the dissent points to an exhibit submitted in Abbott showing that three Texas surgical centers, two in Dallas as well 

as the $26-million facility in Houston, are each capable of 

serving an average of 7,000 patients per year. See post, at 

33–35. That “average” is misleading. In addition to including the Houston clinic, which does not represent most

facilities, it is underinclusive. It ignores the evidence as to

the Whole Woman’s Health surgical-center facility in San 

Antonio, the capacity of which is described as “severely

limited.” The exhibit does nothing to rebut the commonsense inference that the dramatic decline in the number of available facilities will cause a shortfall in capacity 

should H. B. 2 go into effect. And facilities that were still 

operating after the effective date of the admittingprivileges provision were not able to accommodate increased demand. See App. 238; Tr. of Oral Arg. 30–31; 

Brief for National Abortion Federation et al. as Amici 

Curiae 17–20 (citing clinics’ experiences since the 

admitting-privileges requirement went into effect of 3-

week wait times, staff burnout, and waiting rooms so full, 

patients had to sit on the floor or wait outside). 

More fundamentally, in the face of no threat to women’s 
 

 

36 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

health, Texas seeks to force women to travel long distances 

to get abortions in crammed-to-capacity superfacilities.

Patients seeking these services are less likely to get the 

kind of individualized attention, serious conversation, and 

emotional support that doctors at less taxed facilities may 

have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers

attempting to accommodate sudden, vastly increased

demand, see 46 F. Supp. 3d, at 682, may find that quality 

of care declines. Another commonsense inference that the 

District Court made is that these effects would be harmful 

to, not supportive of, women’s health. See id., at 682–683. 

Finally, the District Court found that the costs that a

currently licensed abortion facility would have to incur to

meet the surgical-center requirements were considerable, 

ranging from $1 million per facility (for facilities with 

adequate space) to $3 million per facility (where additional 

land must be purchased). Id., at 682. This evidence supports the conclusion that more surgical centers will not 

soon fill the gap when licensed facilities are forced to close. 

We agree with the District Court that the surgicalcenter requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women,

poses a substantial obstacle to women seeking abortions, 

and constitutes an “undue burden” on their constitutional 

right to do so. 

VI 

We consider three additional arguments that Texas

makes and deem none persuasive. 

First, Texas argues that facial invalidation of both 

challenged provisions is precluded by H. B. 2’s severability 

clause. See Brief for Respondents 50–52. The severability

clause says that “every provision, section, subsection, 

sentence, clause, phrase, or word in this Act, and every

application of the provision in this Act, are severable from 
Cite as: 579 U. S. ____ (2016) 37 

Opinion of the Court 

each other.” H. B. 2, §10(b), App. to Pet. for Cert. 200a. It 

further provides that if “any application of any provision

in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining 

applications of that provision to all other persons and 

circumstances shall be severed and may not be affected.” 

Ibid. That language, Texas argues, means that facial

invalidation of parts of the statute is not an option; instead, it says, the severability clause mandates a more

narrowly tailored judicial remedy. But the challenged

provisions of H. B. 2 close most of the abortion facilities in 

Texas and place added stress on those facilities able to 

remain open. They vastly increase the obstacles confronting women seeking abortions in Texas without providing 

any benefit to women’s health capable of withstanding any 

meaningful scrutiny. The provisions are unconstitutional 

on their face: Including a severability provision in the law 

does not change that conclusion.

Severability clauses, it is true, do express the enacting

legislature’s preference for a narrow judicial remedy. As a 

general matter, we attempt to honor that preference. But 

our cases have never required us to proceed application by

conceivable application when confronted with a facially

unconstitutional statutory provision. “We have held that 

a severability clause is an aid merely; not an inexorable 

command.” Reno v. American Civil Liberties Union, 521 

U. S. 844, 884–885, n. 49 (1997) (internal quotation marks

omitted). Indeed, if a severability clause could impose

such a requirement on courts, legislatures would easily be

able to insulate unconstitutional statutes from most facial 

review. See ibid. (“It would certainly be dangerous if the

legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and 

say who could be rightfully detained, and who should be 

set at large. This would, to some extent, substitute the 

judicial for the legislative department of the government” 
 

 

38 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

(internal quotation marks omitted)). A severability clause

is not grounds for a court to “devise a judicial remedy that 

. . . entail[s] quintessentially legislative work.” Ayotte v. 

Planned Parenthood of Northern New Eng., 546 U. S. 320, 

329 (2006). Such an approach would inflict enormous

costs on both courts and litigants, who would be required 

to proceed in this manner whenever a single application of 

a law might be valid. We reject Texas’ invitation to pave

the way for legislatures to immunize their statutes from

facial review. 

Texas similarly argues that instead of finding the entire

surgical-center provision unconstitutional, we should 

invalidate (as applied to abortion clinics) only those specific surgical-center regulations that unduly burden the provision of abortions, while leaving in place other surgicalcenter regulations (for example, the reader could pick

any of the various examples provided by the dissent, see 

post, at 42–43). See Brief for Respondents 52–53. As we 

have explained, Texas’ attempt to broadly draft a requirement to sever “applications” does not require us to

proceed in piecemeal fashion when we have found the 

statutory provisions at issue facially unconstitutional.

Nor is that approach to the regulations even required by

H. B. 2 itself. The statute was meant to require abortion 

facilities to meet the integrated surgical-center standards—not some subset thereof. The severability clause

refers to severing applications of words and phrases in the 

Act, such as the surgical-center requirement as a whole.

See H. B. 2, §4, App. to Pet. for Cert. 194a. It does not say 

that courts should go through the individual components 

of the different, surgical-center statute, let alone the individual regulations governing surgical centers to see 

whether those requirements are severable from each other 

as applied to abortion facilities. Facilities subject to some 

subset of those regulations do not qualify as surgical 

centers. And the risk of harm caused by inconsistent 
 

Cite as: 579 U. S. ____ (2016) 39 

Opinion of the Court 

application of only a fraction of interconnected regulations

counsels against doing so.

Second, Texas claims that the provisions at issue here 

do not impose a substantial obstacle because the women

affected by those laws are not a “large fraction” of Texan

women “of reproductive age,” which Texas reads Casey to 

have required. See Brief for Respondents 45, 48. But 

Casey used the language “large fraction” to refer to “a 

large fraction of cases in which [the provision at issue] is 

relevant,” a class narrower than “all women,” “pregnant 

women,” or even “the class of women seeking abortions 

identified by the State.” 505 U. S., at 894–895 (opinion of 

the Court) (emphasis added). Here, as in Casey, the relevant denominator is “those [women] for whom [the provision] is an actual rather than an irrelevant restriction.” 

Id., at 895. 

Third, Texas looks for support to Simopoulos v. Virginia, 

462 U. S. 506 (1983), a case in which this Court upheld 

a surgical-center requirement as applied to secondtrimester abortions. This case, however, unlike Simopoulos, involves restrictions applicable to all abortions, not 

simply to those that take place during the second trimester. Most abortions in Texas occur in the first trimester, not the second. App. 236. More importantly, in 

Casey we discarded the trimester framework, and we now 

use “viability” as the relevant point at which a State may 

begin limiting women’s access to abortion for reasons

unrelated to maternal health. 505 U. S., at 878 (plurality 

opinion). Because the second trimester includes time that 

is both previability and postviability, Simopoulos cannot 

provide clear guidance. Further, the Court in Simopoulos

found that the petitioner in that case, unlike petitioners

here, had waived any argument that the regulation did 

not significantly help protect women’s health. 462 U. S., 

at 517. 
 

 

40 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Opinion of the Court 

* * * 

For these reasons the judgment of the Court of Appeals 

is reversed, and the case is remanded for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 579 U. S. ____ (2016) 1 

GINSBURG, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 15–274 

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v.
 

JOHN HELLERSTEDT, COMMISSIONER, TEXAS 

DEPARTMENT OF STATE HEALTH SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 27, 2016] 

JUSTICE GINSBURG, concurring. 

The Texas law called H. B. 2 inevitably will reduce the

number of clinics and doctors allowed to provide abortion

services. Texas argues that H. B. 2’s restrictions are

constitutional because they protect the health of women

who experience complications from abortions. In truth, 

“complications from an abortion are both rare and rarely 

dangerous.” Planned Parenthood of Wis., Inc. v. Schimel, 

806 F. 3d 908, 912 (CA7 2015). See Brief for American 

College of Obstetricians and Gynecologists et al. as Amici 

Curiae 6–10 (collecting studies and concluding “[a]bortion

is one of the safest medical procedures performed in the 

United States”); Brief for Social Science Researchers as 

Amici Curiae 5–9 (compiling studies that show 

“[c]omplication rates from abortion are very low”). Many

medical procedures, including childbirth, are far more 

dangerous to patients, yet are not subject to ambulatorysurgical-center or hospital admitting-privileges requirements. See ante, at 31; Planned Parenthood of Wis., 806 

F. 3d, at 921–922. See also Brief for Social Science Researchers 9–11 (comparing statistics on risks for abortion 

with tonsillectomy, colonoscopy, and in-office dental surgery); Brief for American Civil Liberties Union et al. as 

Amici Curiae 7 (all District Courts to consider admitting-
 

2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

GINSBURG, J., concurring 

privileges requirements found abortion “is at least as safe 

as other medical procedures routinely performed in outpatient settings”). Given those realities, it is beyond rational

belief that H. B. 2 could genuinely protect the health of 

women, and certain that the law “would simply make it

more difficult for them to obtain abortions.” Planned 

Parenthood of Wis., 806 F. 3d, at 910. When a State severely limits access to safe and legal procedures, women in

desperate circumstances may resort to unlicensed rogue 

practitioners, faute de mieux, at great risk to their health 

and safety. See Brief for Ten Pennsylvania Abortion Care

Providers as Amici Curiae 17–22. So long as this Court 

adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned 

Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 

(1992), Targeted Regulation of Abortion Providers laws

like H. B. 2 that “do little or nothing for health, but rather

strew impediments to abortion,” Planned Parenthood of 

Wis., 806 F. 3d, at 921, cannot survive judicial inspection. 
_________________ 

_________________ 

Cite as: 579 U. S. ____ (2016) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 15–274 

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v.
 

JOHN HELLERSTEDT, COMMISSIONER, TEXAS 

DEPARTMENT OF STATE HEALTH SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 27, 2016] 

JUSTICE THOMAS, dissenting. 

Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion 

clinics and doctors. That decision exemplifies the Court’s

troubling tendency “to bend the rules when any effort to

limit abortion, or even to speak in opposition to abortion, 

is at issue.” Stenberg v. Carhart, 530 U. S. 914, 954 (2000) 

(Scalia, J., dissenting). As JUSTICE ALITO observes, see 

post (dissenting opinion), today’s decision creates an abortion exception to ordinary rules of res judicata, ignores

compelling evidence that Texas’ law imposes no unconstitutional burden, and disregards basic principles of the 

severability doctrine. I write separately to emphasize how 

today’s decision perpetuates the Court’s habit of applying different rules to different constitutional rights—

especially the putative right to abortion.

To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court 

employs a different approach to rights that it favors. So in 

this case and many others, the Court has erroneously

allowed doctors and clinics to vicariously vindicate the 

putative constitutional right of women seeking abortions. 

This case also underscores the Court’s increasingly 
 

2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

common practice of invoking a given level of scrutiny—

here, the abortion-specific undue burden standard—while 

applying a different standard of review entirely. Whatever scrutiny the majority applies to Texas’ law, it bears

little resemblance to the undue-burden test the Court 

articulated in Planned Parenthood of Southeastern Pa. v. 

Casey, 505 U. S. 833 (1992), and its successors. Instead, 

the majority eviscerates important features of that test to 

return to a regime like the one that Casey repudiated. 

Ultimately, this case shows why the Court never should

have bent the rules for favored rights in the first place.

Our law is now so riddled with special exceptions for 

special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of 

law. 

I 

This suit is possible only because the Court has allowed 

abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s 

right to abortion. The Court’s third-party standing jurisprudence is no model of clarity. See Kowalski v. Tesmer, 

543 U. S. 125, 135 (2004) (THOMAS, J., concurring). Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party 

standing when the right to abortion is at stake. And this 

case reveals a deeper flaw in straying from our normal 

rules: when the wrong party litigates a case, we end up 

resolving disputes that make for bad law.

For most of our Nation’s history, plaintiffs could not 

challenge a statute by asserting someone else’s constitutional rights. See ibid. This Court would “not listen to an 

objection made to the constitutionality of an act by a party

whose rights it does not affect and who has therefore no

interest in defeating it.” Clark v. Kansas City, 176 U. S. 

114, 118 (1900) (internal quotation marks omitted). And 
 

 

Cite as: 579 U. S. ____ (2016) 3 

THOMAS, J., dissenting 

for good reason: “[C]ourts are not roving commissions 

assigned to pass judgment on the validity of the Nation’s 

laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–611 

(1973).

In the 20th century, the Court began relaxing that rule.

But even as the Court started to recognize exceptions for

certain types of challenges, it stressed the strict limits of

those exceptions. A plaintiff could assert a third party’s

rights, the Court said, but only if the plaintiff had a “close 

relation to the third party” and the third party faced a

formidable “hindrance” to asserting his own rights. Powers v. Ohio, 499 U. S. 400, 411 (1991); accord, Kowalski, 

supra, at 130–133 (similar). 

Those limits broke down, however, because the Court 

has been “quite forgiving” in applying these standards to 

certain claims. Id., at 130. Some constitutional rights

remained “personal rights which . . . may not be vicariously asserted.” Alderman v. United States, 394 U. S. 165, 

174 (1969) (Fourth Amendment rights are purely personal); see Rakas v. Illinois, 439 U. S. 128, 140, n. 8 (1978) (so

is the Fifth Amendment right against self-incrimination). 

But the Court has abandoned such limitations on other 

rights, producing serious anomalies across similar factual

scenarios. Lawyers cannot vicariously assert potential

clients’ Sixth Amendment rights because they lack any 

current, close relationship. Kowalski, supra, at 130–131. 

Yet litigants can assert potential jurors’ rights against 

race or sex discrimination in jury selection even when the 

litigants have never met potential jurors and do not share 

their race or sex. Powers, supra, at 410–416; J. E. B. v. 

Alabama ex rel. T. B., 511 U. S. 127, 129 (1994). And 

vendors can sue to invalidate state regulations implicating 

potential customers’ equal protection rights against sex 

discrimination. Craig v. Boren, 429 U. S. 190, 194–197 

(1976) (striking down sex-based age restrictions on purchasing beer). 
 

4 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

Above all, the Court has been especially forgiving of

third-party standing criteria for one particular category of

cases: those involving the purported substantive due

process right of a woman to abort her unborn child. In 

Singleton v. Wulff, 428 U. S. 106 (1976), a plurality of this

Court fashioned a blanket rule allowing third-party standing in abortion cases. Id., at 118. “[I]t generally is appropriate,” said the Court, “to allow a physician to assert the 

rights of women patients as against governmental interference with the abortion decision.” Ibid. Yet the plurality conceded that the traditional criteria for an exception to

the third-party standing rule were not met. There are no 

“insurmountable” obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers. Roe v. Wade, 

410 U. S. 113 (1973), held that women seeking abortions

fell into the mootness exception for cases “‘capable of 

repetition, yet seeking review,’” enabling them to sue after

they terminated their pregnancies without showing that

they intended to become pregnant and seek an abortion

again. Id., at 125. Yet, since Singleton, the Court has 

unquestioningly accepted doctors’ and clinics’ vicarious 

assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully 

and repeatedly asserted their own rights before this 

Court.1 

—————— 

1Compare, e.g., Gonzales v. Carhart, 550 U. S. 124 (2007), and Stenberg v. Carhart, 530 U. S. 914 (2000); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (assuming that physicians and clinics can vicariously assert women’s right to abortion), with, 

e.g., Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per curiam); Hodgson 

v. Minnesota, 497 U. S. 417, 429 (1990); H. L. v. Matheson, 450 U. S. 

398, 400 (1981); Williams v. Zbaraz, 448 U. S. 358, 361 (1980); Harris v. 

McRae, 448 U. S. 297, 303 (1980); Bellotti v. Baird, 428 U. S. 132, 137– 

138 (1976); Poelker v. Doe, 432 U. S. 519, 519 (1977) (per curiam); Beal 

v. Doe, 432 U. S. 438, 441–442 (1977); Maher v. Roe, 432 U. S. 464, 467 

(1977) (women seeking abortions have capably asserted their own 
Cite as: 579 U. S. ____ (2016) 5 

THOMAS, J., dissenting 

Here too, the Court does not question whether doctors

and clinics should be allowed to sue on behalf of Texas 

women seeking abortions as a matter of course. They

should not. The central question under the Court’s abortion precedents is whether there is an undue burden on a

woman’s access to abortion. See Casey, 505 U. S., at 877 

(plurality opinion); see Part II, infra. But the Court’s 

permissive approach to third-party standing encourages 

litigation that deprives us of the information needed to

resolve that issue. Our precedents encourage abortion 

providers to sue—and our cases then relieve them of any 

obligation to prove what burdens women actually face. I 

find it astonishing that the majority can discover an “undue burden” on women’s access to abortion for “those 

[women] for whom [Texas’ law] is an actual rather than an

irrelevant restriction,” ante, at 39 (internal quotation

marks omitted), without identifying how many women fit

this description; their proximity to open clinics; or their 

preferences as to where they obtain abortions, and from

whom. “[C]ommonsense inference[s]” that such a burden 

exists, ante, at 36, are no substitute for actual evidence. 

There should be no surer sign that our jurisprudence has 

gone off the rails than this: After creating a constitutional 

right to abortion because it “involve[s] the most intimate

and personal choices a person may make in a lifetime, 

choices central to personal dignity and autonomy,” Casey, 

supra, at 851 (majority opinion), the Court has created

special rules that cede its enforcement to others. 

II 

Today’s opinion also reimagines the undue-burden

standard used to assess the constitutionality of abortion

restrictions. Nearly 25 years ago, in Planned Parenthood 

of Southeastern Pa. v. Casey, 505 U. S. 833, a plurality of 

—————— 

rights, as plaintiffs). 
 

6 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

this Court invented the “undue burden” standard as a 

special test for gauging the permissibility of abortion 

restrictions. Casey held that a law is unconstitutional if it 

imposes an “undue burden” on a woman’s ability to choose 

to have an abortion, meaning that it “has the purpose or 

effect of placing a substantial obstacle in the path of a 

woman seeking an abortion of a nonviable fetus.” Id., at 

877. Casey thus instructed courts to look to whether a law 

substantially impedes women’s access to abortion, and 

whether it is reasonably related to legitimate state interests. As the Court explained, “[w]here it has a rational 

basis to act, and it does not impose an undue burden, the 

State may use its regulatory power” to regulate aspects of

abortion procedures, “all in furtherance of its legitimate

interests in regulating the medical profession in order to

promote respect for life, including life of the unborn.” 

Gonzales v. Carhart, 550 U. S. 124, 158 (2007). 

I remain fundamentally opposed to the Court’s abortion

jurisprudence. E.g., id., at 168–169 (THOMAS, J., concurring); Stenberg, 530 U. S., at 980, 982 (THOMAS, J., dissenting). Even taking Casey as the baseline, however, the 

majority radically rewrites the undue-burden test in three 

ways. First, today’s decision requires courts to “consider

the burdens a law imposes on abortion access together 

with the benefits those laws confer.” Ante, at 19. Second, 

today’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the

legislature, and must instead assess medical justifications

for abortion restrictions by scrutinizing the record themselves. Ibid. Finally, even if a law imposes no “substantial obstacle” to women’s access to abortions, the law now 

must have more than a “reasonabl[e] relat[ion] to . . . a 

legitimate state interest.” Ibid. (internal quotation marks 

omitted). These precepts are nowhere to be found in Casey

or its successors, and transform the undue-burden test to 

something much more akin to strict scrutiny. 
 

Cite as: 579 U. S. ____ (2016) 7 

THOMAS, J., dissenting 

First, the majority’s free-form balancing test is contrary 

to Casey. When assessing Pennsylvania’s recordkeeping

requirements for abortion providers, for instance, Casey 

did not weigh its benefits and burdens. Rather, Casey

held that the law had a legitimate purpose because data 

collection advances medical research, “so it cannot be said 

that the requirements serve no purpose other than to

make abortions more difficult.” 505 U. S., at 901 (joint

opinion of O’Connor, KENNEDY, and Souter, JJ.). The 

opinion then asked whether the recordkeeping requirements imposed a “substantial obstacle,” and found none. 

Ibid. Contrary to the majority’s statements, see ante, at 

19, Casey did not balance the benefits and burdens of 

Pennsylvania’s spousal and parental notification provisions, either. Pennsylvania’s spousal notification requirement, the plurality said, imposed an undue burden

because findings established that the requirement would 

“likely . . . prevent a significant number of women from

obtaining an abortion”—not because these burdens outweighed its benefits. 505 U. S., at 893 (majority opinion); 

see id., at 887–894. And Casey summarily upheld parental notification provisions because even pre-Casey decisions had done so. Id., at 899–900 (joint opinion). 

Decisions in Casey’s wake further refute the majority’s

benefits-and-burdens balancing test. The Court in Mazurek v. Armstrong, 520 U. S. 968 (1997) (per curiam), had 

no difficulty upholding a Montana law authorizing only 

physicians to perform abortions—even though no legislative findings supported the law, and the challengers 

claimed that “all health evidence contradict[ed] the claim 

that there is any health basis for the law.” Id., at 973 

(internal quotation marks omitted). Mazurek also deemed 

objections to the law’s lack of benefits “squarely foreclosed 

by Casey itself.” Ibid. Instead, the Court explained, “‘the 

Constitution gives the States broad latitude to decide that

particular functions may be performed only by licensed 
 

8 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

professionals, even if an objective assessment might suggest 

that those same tasks could be performed by others.’” Ibid. 

(quoting Casey, supra, at 885; emphasis in original); see 

Gonzales, supra, at 164 (relying on Mazurek).

Second, by rejecting the notion that “legislatures, and

not courts, must resolve questions of medical uncertainty,” 

ante, at 20, the majority discards another core element of 

the Casey framework. Before today, this Court had “given

state and federal legislatures wide discretion to pass 

legislation in areas where there is medical and scientific 

uncertainty.” Gonzales, 550 U. S., at 163. This Court 

emphasized that this “traditional rule” of deference “is 

consistent with Casey.” Ibid. This Court underscored that 

legislatures should not be hamstrung “if some part of the

medical community were disinclined to follow the proscription.” Id., at 166. And this Court concluded that 

“[c]onsiderations of marginal safety, including the balance

of risks, are within the legislative competence when the

regulation is rational and in pursuit of legitimate ends.” 

Ibid.; see Stenberg, supra, at 971 (KENNEDY, J., dissenting) (“the right of the legislature to resolve matters on 

which physicians disagreed” is “establish[ed] beyond 

doubt”). This Court could not have been clearer: Whenever medical justifications for an abortion restriction are

debatable, that “provides a sufficient basis to conclude in

[a] facial attack that the [law] does not impose an undue 

burden.” Gonzales, 550 U. S., at 164. Otherwise, legislatures would face “too exacting” a standard. Id., at 166. 

Today, however, the majority refuses to leave disputed 

medical science to the legislature because past cases

“placed considerable weight upon the evidence and argument presented in judicial proceedings.” Ante, at 20. But 

while Casey relied on record evidence to uphold Pennsylvania’s spousal-notification requirement, that requirement 

had nothing to do with debated medical science. 505 U. S., 

at 888–894 (majority opinion). And while Gonzales ob-
 

Cite as: 579 U. S. ____ (2016) 9 

THOMAS, J., dissenting 

served that courts need not blindly accept all legislative 

findings, see ante, at 20, that does not help the majority. 

Gonzales refused to accept Congress’ finding of “a medical

consensus that the prohibited procedure is never medically 

necessary” because the procedure’s necessity was debated 

within the medical community. 550 U. S., at 165–166. 

Having identified medical uncertainty, Gonzales explained

how courts should resolve conflicting positions: by respecting the legislature’s judgment. See id., at 164. 

Finally, the majority overrules another central aspect of 

Casey by requiring laws to have more than a rational basis 

even if they do not substantially impede access to abortion. Ante, at 19–20. “Where [the State] has a rational 

basis to act and it does not impose an undue burden,” this

Court previously held, “the State may use its regulatory 

power” to impose regulations “in furtherance of its legitimate interests in regulating the medical profession in

order to promote respect for life, including life of the unborn.” Gonzales, supra, at 158 (emphasis added); see 

Casey, supra, at 878 (plurality opinion) (similar). No 

longer. Though the majority declines to say how substantial a State’s interest must be, ante, at 20, one thing is 

clear: The State’s burden has been ratcheted to a level 

that has not applied for a quarter century.

Today’s opinion does resemble Casey in one respect:

After disregarding significant aspects of the Court’s prior

jurisprudence, the majority applies the undue-burden 

standard in a way that will surely mystify lower courts for 

years to come. As in Casey, today’s opinion “simply . . . 

highlight[s] certain facts in the record that apparently

strike the . . . Justices as particularly significant in establishing (or refuting) the existence of an undue burden.” 

505 U. S., at 991 (Scalia, J., concurring in judgment in 

part and dissenting in part); see ante, at 23–24, 31–34. As 

in Casey, “the opinion then simply announces that the

provision either does or does not impose a ‘substantial 
 

 

10 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

obstacle’ or an ‘undue burden.’” 505 U. S., at 991 (opinion 

of Scalia, J); see ante, at 26, 36. And still “[w]e do not 

know whether the same conclusions could have been 

reached on a different record, or in what respects the

record would have had to differ before an opposite conclusion would have been appropriate.” 505 U. S., at 991 

(opinion of Scalia, J.); cf. ante, at 26, 31–32. All we know 

is that an undue burden now has little to do with whether 

the law, in a “real sense, deprive[s] women of the ultimate 

decision,” Casey, supra, at 875, and more to do with the 

loss of “individualized attention, serious conversation, and 

emotional support,” ante, at 36. 

The majority’s undue-burden test looks far less like our 

post-Casey precedents and far more like the strict-scrutiny

standard that Casey rejected, under which only the most

compelling rationales justified restrictions on abortion. 

See Casey, supra, at 871, 874–875 (plurality opinion). One 

searches the majority opinion in vain for any acknowledgment of the “premise central” to Casey’s rejection of 

strict scrutiny: “that the government has a legitimate and 

substantial interest in preserving and promoting fetal life” 

from conception, not just in regulating medical procedures. 

Gonzales, supra, at 145 (internal quotation marks omitted); see Casey, supra, at 846 (majority opinion), 871 

(plurality opinion). Meanwhile, the majority’s undueburden balancing approach risks ruling out even minor,

previously valid infringements on access to abortion. 

Moreover, by second-guessing medical evidence and making its own assessments of “quality of care” issues, ante, at 

23–24, 30–31, 36, the majority reappoints this Court as 

“the country’s ex officio medical board with powers to 

disapprove medical and operative practices and standards

throughout the United States.” Gonzales, supra, at 164 

(internal quotation marks omitted). And the majority

seriously burdens States, which must guess at how much 

more compelling their interests must be to pass muster 
 

 

Cite as: 579 U. S. ____ (2016) 11 

THOMAS, J., dissenting 

and what “commonsense inferences” of an undue burden 

this Court will identify next. 

III 

The majority’s furtive reconfiguration of the standard of

scrutiny applicable to abortion restrictions also points to a 

deeper problem. The undue-burden standard is just one

variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to 

its level of scrutiny in assessing whether the government

can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it 

likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. 

Though the tiers of scrutiny have become a ubiquitous

feature of constitutional law, they are of recent vintage.

Only in the 1960’s did the Court begin in earnest to speak 

of “strict scrutiny” versus reviewing legislation for mere

rationality, and to develop the contours of these tests. See 

Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 

1274, 1284–1285 (2007). In short order, the Court adopted 

strict scrutiny as the standard for reviewing everything

from race-based classifications under the Equal Protection

Clause to restrictions on constitutionally protected speech. 

Id., at 1275–1283. Roe v. Wade, 410 U. S. 113, then applied strict scrutiny to a purportedly “fundamental” substantive due process right for the first time. Id., at 162– 

164; see Fallon, supra, at 1283; accord, Casey, supra, at 

871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand “strict scrutiny”). Then the tiers of 

scrutiny proliferated into ever more gradations. See, e.g., 

Craig, 429 U. S., at 197–198 (intermediate scrutiny for 

sex-based classifications); Lawrence v. Texas, 539 U. S. 

558, 580 (2003) (O’Connor, J., concurring in judgment) (“a 

more searching form of rational basis review” applies to 
 

12 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

laws reflecting “a desire to harm a politically unpopular

group”); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam) (applying “‘closest scrutiny’” to campaign-finance

contribution limits). Casey’s undue-burden test added yet 

another right-specific test on the spectrum between 

rational-basis and strict-scrutiny review. 

The illegitimacy of using “made-up tests” to “displace 

longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515, 570 

(1996) (Scalia, J., dissenting). The Constitution does not 

prescribe tiers of scrutiny. The three basic tiers— 

“rational basis,” intermediate, and strict scrutiny—“are no

more scientific than their names suggest, and a further 

element of randomness is added by the fact that it is 

largely up to us which test will be applied in each case.” 

Id., at 567; see also Craig, supra, at 217–221 (Rehnquist,

J., dissenting).

But the problem now goes beyond that. If our recent 

cases illustrate anything, it is how easily the Court tinkers 

with levels of scrutiny to achieve its desired result. This 

Term, it is easier for a State to survive strict scrutiny

despite discriminating on the basis of race in college admissions than it is for the same State to regulate how 

abortion doctors and clinics operate under the putatively

less stringent undue-burden test. All the State apparently

needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set 

of leaders with legitimacy in the eyes of the citizenry”) and 

a “reasoned, principled explanation” for why it is pursuing 

them—then this Court defers. Fisher v. University of Tex. 

at Austin, ante, at 7, 12 (internal quotation marks omitted). Yet the same State gets no deference under the

undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically

debated. See Whole Woman’s Health v. Lakey, 46 F. Supp. 
Cite as: 579 U. S. ____ (2016) 13 

THOMAS, J., dissenting 

3d 673, 684 (WD Tex. 2014) (noting conflict in expert 

testimony about abortion safety). Likewise, it is now 

easier for the government to restrict judicial candidates’ 

campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny

and the latter was supposedly subject to some form of 

rational-basis review. Compare Williams-Yulee v. Florida 

Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with 

United States v. Windsor, 570 U. S. ___, ___ (2013) (slip

op., at 20).

These more recent decisions reflect the Court’s tendency

to relax purportedly higher standards of review for lesspreferred rights. E.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (THOMAS, J., dissenting) (“The Court makes no effort to justify its deviation 

from the tests we traditionally employ in free speech

cases” to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review—

under which the question is supposed to be whether “any 

state of facts reasonably may be conceived to justify” the 

law, McGowan v. Maryland, 366 U. S. 420, 426 (1961)— 

with formidable toughness. E.g., Lawrence, 539 U. S., at 

580 (O’Connor, J., concurring in judgment) (at least in

equal protection cases, the Court is “most likely” to find no

rational basis for a law if “the challenged legislation inhibits personal relationships”); see id., at 586 (Scalia, J.,

dissenting) (faulting the Court for applying “an unheard-of 

form of rational-basis review”). 

These labels now mean little. Whatever the Court 

claims to be doing, in practice it is treating its “doctrine

referring to tiers of scrutiny as guidelines informing our

approach to the case at hand, not tests to be mechanically 

applied.” Williams-Yulee, supra, at ___ (slip op., at 1) 

(BREYER, J., concurring). The Court should abandon the 

pretense that anything other than policy preferences

underlies its balancing of constitutional rights and inter-
 

 

14 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

ests in any given case. 

IV 

It is tempting to identify the Court’s invention of a

constitutional right to abortion in Roe v. Wade, 410 U. S. 

113, as the tipping point that transformed third-party 

standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion 

that some constitutional rights demand preferential 

treatment. During the Lochner era, the Court considered 

the right to contract and other economic liberties to be

fundamental requirements of due process of law. See 

Lochner v. New York, 198 U. S. 45 (1905). The Court in 

1937 repudiated Lochner’s foundations. See West Coast 

Hotel Co. v. Parrish, 300 U. S. 379, 386–387, 400 (1937).

But the Court then created a new taxonomy of preferred 

rights.

In 1938, seven Justices heard a constitutional challenge 

to a federal ban on shipping adulterated milk in interstate 

commerce. Without economic substantive due process, the

ban clearly invaded no constitutional right. See United 

States v. Carolene Products Co., 304 U. S. 144, 152–153 

(1938). Within Justice Stone’s opinion for the Court,

however, was a footnote that just three other Justices

joined—the famous Carolene Products Footnote 4. See 

ibid., n. 4; Lusky, Footnote Redux: A Carolene Products 

Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The 

footnote’s first paragraph suggested that the presumption

of constitutionality that ordinarily attaches to legislation

might be “narrower . . . when legislation appears on its

face to be within a specific prohibition of the Constitution.” 

304 U. S., at 152–153, n. 4. Its second paragraph appeared to question “whether legislation which restricts

those political processes, which can ordinarily be expected 

to bring about repeal of undesirable legislation, is to be 
Cite as: 579 U. S. ____ (2016) 15 

THOMAS, J., dissenting 

subjected to more exacting judicial scrutiny under the

general prohibitions of the [14th] Amendment than are 

most other types of legislation.” Ibid. And its third and 

most familiar paragraph raised the question “whether

prejudice against discrete and insular minorities may be a

special condition, which tends seriously to curtail the 

operation of those political processes ordinarily to be relied 

upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Ibid. 

Though the footnote was pure dicta, the Court seized

upon it to justify its special treatment of certain personal

liberties like the First Amendment and the right against

discrimination on the basis of race—but also rights not 

enumerated in the Constitution.2 As the Court identified 

which rights deserved special protection, it developed the 

tiers of scrutiny as part of its equal protection (and, later,

due process) jurisprudence as a way to demand extra

justifications for encroachments on these rights. See 

Fallon, 54 UCLA L. Rev., at 1270–1273, 1281–1285. And, 

having created a new category of fundamental rights, the 

Court loosened the reins to recognize even putative rights

like abortion, see Roe, 410 U. S., at 162–164, which hardly 

implicate “discrete and insular minorities.”

The Court also seized upon the rationale of the Carolene 

Products footnote to justify exceptions to third-party 

standing doctrine. The Court suggested that it was tilting

the analysis to favor rights involving actual or perceived 

minorities—then seemingly counted the right to contra-

—————— 

2See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1278–

1291 (2007); see also Linzer, The Carolene Products Footnote and the 

Preferred Position of Individual Rights: Louis Lusky and John Hart Ely

vs. Harlan Fiske Stone, 12 Const. Commentary 277, 277–278, 288–300

(1995); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 544 

(1942) (Stone, C. J., concurring) (citing the Carolene Products footnote 

to suggest that the presumption of constitutionality did not fully apply

to encroachments on the unenumerated personal liberty to procreate). 
 

 

16 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

THOMAS, J., dissenting 

ception as such a right. According to the Court, what

matters is the “relationship between one who acted to

protect the rights of a minority and the minority itself ”—

which, the Court suggested, includes the relationship

“between an advocate of the rights of persons to obtain 

contraceptives and those desirous of doing so.” Eisenstadt 

v. Baird, 405 U. S. 438, 445 (1972) (citing Sedler, Standing

to Assert Constitutional Jus Tertii in the Supreme Court, 

71 Yale L. J. 599, 631 (1962)). 

Eighty years on, the Court has come full circle. The 

Court has simultaneously transformed judicially created

rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually

enumerated in the Constitution. But our Constitution 

renounces the notion that some constitutional rights are 

more equal than others. A plaintiff either possesses the

constitutional right he is asserting, or not—and if not, the

judiciary has no business creating ad hoc exceptions so 

that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to

invent tolerable degrees of encroachment. Unless the 

Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law 

to policy-driven value judgments until the last shreds of

its legitimacy disappear. 

* * * 

Today’s decision will prompt some to claim victory, just

as it will stiffen opponents’ will to object. But the entire 

Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and

balancing tests is “a regrettable concession of defeat—an

acknowledgement that we have passed the point where

‘law,’ properly speaking, has any further application.” 

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. 

L. Rev. 1175, 1182 (1989). I respectfully dissent. 
_________________ 

_________________ 

 

Cite as: 579 U. S. ____ (2016) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 15–274 

WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v.
 

JOHN HELLERSTEDT, COMMISSIONER, TEXAS 

DEPARTMENT OF STATE HEALTH SERVICES, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 27, 2016] 

JUSTICE ALITO, with whom THE CHIEF JUSTICE and 

JUSTICE THOMAS join, dissenting. 

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. 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. 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. If anything, when a case

involves a controversial issue, we should be especially

careful to be scrupulously neutral in applying such rules.

The Court has not done so here. On the contrary, determined to strike down two provisions of a new Texas 

abortion statute in all of their applications, the Court 

simply disregards basic rules that apply in all other cases.

Here is the worst example. Shortly after Texas enacted 

House Bill 2 (H. B. 2) in 2013, the petitioners in this case

brought suit, claiming, among other things, that a provision of the new law requiring a physician performing an

abortion to have admitting privileges at a nearby hospital 

is “facially” unconstitutional and thus totally unenforceable. Petitioners had a fair opportunity to make their case, 
 

 

2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

but they lost on the merits in the United States Court of

Appeals for the Fifth Circuit, and they chose not to petition this Court for review. The judgment against them 

became final. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891 (WD Tex. 

2013), aff ’d in part and rev’d in part, 748 F. 3d 583 (CA5 

2014) (Abbott).

Under the rules that apply in regular cases, petitioners

could not relitigate the exact same claim in a second suit.

As we have said, “a losing litigant deserves no rematch

after a defeat fairly suffered, in adversarial proceedings,

on an issue identical in substance to the one he subsequently seeks to raise.” Astoria Fed. Sav. & Loan Assn. v. 

Solimino, 501 U. S. 104, 107 (1991).

In this abortion case, however, that rule is disregarded.

The Court awards a victory to petitioners on the very

claim that they unsuccessfully pressed in the earlier case. 

The Court does this even though petitioners, undoubtedly 

realizing that a rematch would not be allowed, did not 

presume to include such a claim in their complaint. The 

Court favors petitioners with a victory that they did not

have the audacity to seek. 

Here is one more example: the Court’s treatment of

H. B. 2’s “severability clause.” When part of a statute is

held to be unconstitutional, the question arises whether 

other parts of the statute must also go. If a statute says 

that provisions found to be unconstitutional can be severed from the rest of the statute, the valid provisions are

allowed to stand. H. B. 2 contains what must surely be 

the most emphatic severability clause ever written. This 

clause says that every single word of the statute and every 

possible application of its provisions is severable. But 

despite this language, the Court holds that no part of the 

challenged provisions and no application of any part of 

them can be saved. Provisions that are indisputably 

constitutional—for example, provisions that require facili­
 

Cite as: 579 U. S. ____ (2016) 3 

ALITO, J., dissenting 

ties performing abortions to follow basic fire safety

measures—are stricken from the books. There is no possible justification for this collateral damage.

The Court’s patent refusal to apply well-established law 

in a neutral way is indefensible and will undermine public

confidence in the Court as a fair and neutral arbiter. 

I 

Res judicata—or, to use the more modern terminology,

“claim preclusion”—is a bedrock principle of our legal 

system. As we said many years ago, “[p]ublic policy dictates that there be an end of litigation[,] that those who 

have contested an issue shall be bound by the result of the

contest, and that matters once tried shall be considered 

forever settled as between the parties.” Baldwin v. Iowa 

State Traveling Men’s Assn., 283 U. S. 522, 525 (1931). 

This doctrine “is central to the purpose for which civil 

courts have been established, the conclusive resolution of 

disputes within their jurisdictions. . . . To preclude parties

from contesting matters that they have had a full and fair 

opportunity to litigate protects their adversaries from the 

expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial 

action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U. S. 147, 153–154 

(1979). These are “vital public interests” that should be 

“‘cordially regarded and enforced.’” Federated Department 

Stores, Inc. v. Moitie, 452 U. S. 394, 401 (1981). 

The basic rule of preclusion is well known and has been 

frequently stated in our opinions. Litigation of a “cause of

action” or “claim” is barred if (1) the same (or a closely 

related) party (2) brought a prior suit asserting the same

cause of action or claim, (3) the prior case was adjudicated

by a court of competent jurisdiction and (4) was decided on

the merits, (5) a final judgment was entered, and (6) there 

is no ground, such as fraud, to invalidate the prior judg­
 

4 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

ment. See Montana, supra, at 153; Commissioner v. Sunnen, 333 U. S. 591, 597 (1948); Cromwell v. County of Sac, 

94 U. S. 351, 352–353 (1877). 

A 

I turn first to the application of this rule to petitioners’ 

claim that H. B. 2’s admitting privileges requirement is 

facially unconstitutional.

Here, all the elements set out above are easily satisfied 

based on Abbott, the 2013 case to which I previously referred. That case (1) was brought by a group of plaintiffs 

that included petitioners in the present case, (2) asserted

the same cause of action or claim, namely, a facial challenge to the constitutionality of H. B. 2’s admitting privileges requirement, (3) was adjudicated by courts of competent jurisdiction, (4) was decided on the merits, (5)

resulted in the entry of a final judgment against petitioners, and (6) was not otherwise subject to invalidation. All 

of this is clear, and that is undoubtedly why petitioners’ 

attorneys did not even include a facial attack on the admitting privileges requirement in their complaint in this 

case. To have done so would have risked sanctions for 

misconduct. See Robinson v. National Cash Register Co., 

808 F. 2d 1119, 1131 (CA5 1987) (a party’s “persistence in 

litigating [a claim] when res judicata clearly barred the 

suit violated rule 11”); McLaughlin v. Bradlee, 602 

F. Supp. 1412, 1417 (DC 1985) (“It is especially appropriate to impose sanctions in situations where the doctrines 

of res judicata and collateral estoppel plainly preclude 

relitigation of the suit”).

Of the elements set out above, the Court disputes only 

one. The Court concludes that petitioners’ prior facial 

attack on the admitting privileges requirement and their

current facial attack on that same requirement are somehow not the same cause of action or claim. But that conclusion is unsupported by authority and plainly wrong. 
 

 

 

Cite as: 579 U. S. ____ (2016) 5 

ALITO, J., dissenting 

B 

Although the scope of a cause of action or claim for 

purposes of res judicata is hardly a new question, courts

and scholars have struggled to settle upon a definition.1 

But the outcome of the present case does not depend upon

the selection of the proper definition from among those

adopted or recommended over the years because the majority’s holding is not supported by any of them. 

In Baltimore S. S. Co. v. Phillips, 274 U. S. 316 (1927),

we defined a cause of action as an “actionable wrong.” Id., 

at 321; see also ibid. (“A cause of action does not consist of 

facts, but of the unlawful violation of a right which the

facts show”). On this understanding, the two claims at

issue here are indisputably the same. 

The same result is dictated by the rule recommended by

the American Law Institute (ALI) in the first Restatement 

of Judgments, issued in 1942. Section 61 of the first Restatement explains when a claim asserted by a plaintiff in

a second suit is the same for preclusion purposes as a

claim that the plaintiff unsuccessfully litigated in a prior 

case. Under that provision, “the plaintiff is precluded 

from subsequently maintaining a second action based

upon the same transaction, if the evidence needed to

sustain the second action would have sustained the first 

action.” Restatement of Judgments §61. There is no 

doubt that this rule is satisfied here. 

The second Restatement of Judgments, issued by the

ALI in 1982, adopted a new approach for determining the

scope of a cause of action or claim. In Nevada v. United 

States, 463 U. S. 110 (1983), we noted that the two Restatements differ in this regard, but we had no need to

determine which was correct. Id., at 130–131, and n. 12. 

—————— 

1See, e.g., Note, Developments in the Law: Res Judicata, 65 Harv. L. 

Rev. 818, 824 (1952); Cleary, Res Judicata Reexamined, 57 Yale L. J. 

339, 339–340 (1948). 
 

6 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

Here, the majority simply assumes that we should follow 

the second Restatement even though that Restatement—

on the Court’s reading, at least—leads to a conclusion that 

differs from the conclusion clearly dictated by the first

Restatement. 

If the second Restatement actually supported the majority’s holding, the Court would surely be obligated to explain why it chose to follow the second Restatement’s 

approach. But here, as in Nevada, supra, at 130–131, 

application of the rule set out in the second Restatement

does not change the result. While the Court relies almost 

entirely on a comment to one section of the second Restatement, the Court ignores the fact that a straightforward application of the provisions of that Restatement 

leads to the conclusion that petitioners’ two facial challenges to the admitting privileges requirement constitute

a single claim.

Section 19 of the second Restatement sets out the general claim-preclusion rule that applies in a case like the

one before us: “A valid and final personal judgment rendered in favor of the defendant bars another action by the 

plaintiff on the same claim.” Section 24(1) then explains

the scope of the “claim” that is extinguished: It “includes

all rights of the plaintiff to remedies against the defendant 

with respect to all or any part of the transaction, or series

of connected transactions, out of which the action arose.” 

Section 24’s Comment b, in turn, fleshes out the key term

“transaction,” which it defines as “a natural grouping or

common nucleus of operative facts.” Whether a collection 

of events constitutes a single transaction is said to depend

on “their relatedness in time, space, origin, or motivation,

and whether, taken together, they form a convenient unit

for trial purposes.” Ibid. 

Both the claim asserted in petitioners’ first suit and the

claim now revived by the Court involve the same “nucleus 

of operative facts.” Indeed, they involve the very same 
 

 

 

 

Cite as: 579 U. S. ____ (2016) 7 

ALITO, J., dissenting 

“operative facts,” namely, the enactment of the admitting

privileges requirement, which, according to the theory

underlying petitioners’ facial claims, would inevitably 

have the effect of causing abortion clinics to close. This is 

what petitioners needed to show—and what they attempted

to show in their first facial attack: not that the admitting privileges requirement had already imposed a substantial burden on the right of Texas women to obtain

abortions, but only that it would have that effect once 

clinics were able to assess whether they could practicably 

comply.

The Court’s decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), makes that 

clear. Casey held that Pennsylvania’s spousal notification

requirement was facially unconstitutional even though

that provision had been enjoined prior to enforcement.

See id., at 845. And the Court struck down the provision 

because it “will impose a substantial obstacle.” Id., at 

893–894 (emphasis added). See also id., at 893 (“The

spousal notification requirement is thus likely to prevent a 

significant number of women from obtaining an abortion” 

(emphasis added)); id., at 894 (Women “are likely to be 

deterred from procuring an abortion” (emphasis added)). 

Consistent with this understanding, what petitioners 

tried to show in their first case was that the admitting

privileges requirement would cause clinics to close. They

claimed that their evidence showed that “at least one-third 

of the State’s licensed providers would stop providing

abortions once the privileges requirement took effect.”2 

—————— 

2Brief for Plaintiffs-Appellees in Abbott, No. 13–51008 (CA5), p. 5 

(emphasis added); see also id., at 23–24 (“[T]he evidence established

that as a result of the admitting privileges requirement, approximately

one-third of the licensed abortion providers in Texas would stop providing abortions. . . . As a result, one in three women in Texas would be 

unable to access desired abortion services. . . . [T]he immediate, widespread reduction of services caused by the admitting privileges re­
 

 

8 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

Agreeing with petitioners, the District Court enjoined

enforcement of the requirement on the ground that “there 

will be abortion clinics that will close.” Abbott, 951 

F. Supp. 2d, at 900 (emphasis added). The Fifth Circuit 

found that petitioners’ evidence of likely effect was insufficient, stating that petitioners failed to prove that “any 

woman will lack reasonable access to a clinic within Texas.” 

Abbott, 748 F. 3d, at 598 (some emphasis added; some 

emphasis deleted). The correctness of that holding is 

irrelevant for present purposes. What matters is that the 

“operative fact” in the prior case was the enactment of the 

admitting privileges requirement, and that is precisely the 

same operative fact underlying petitioners’ facial attack in

the case now before us.3 

C 

In light of this body of authority, how can the Court 

maintain that the first and second facial claims are really 

—————— 

quirement would produce a shortfall in the capacity of providers to

serve all of the women seeking abortions” (emphasis added)). 3Even if the “operative facts” were actual clinic closures, the claims 

in the two cases would still be the same. The Court suggests that many 

clinics closed between the time of the Fifth Circuit’s decision in the first 

case and the time of the District Court’s decision in the present case by 

comparing what the Court of Appeals said in Abbott about the effect of 

the admitting privileges requirement alone, 748 F. 3d, at 598 (“All of

the major Texas cities . . . continue to have multiple clinics where many 

physicians will have or obtain hospital admitting privileges”), with

what the District Court said in this case about the combined effect of 

the admitting privileges requirement and the ambulatory surgical

center requirement, 46 F. Supp. 3d 673, 680 (WD Tex. 2014) (Were the

surgical center requirement to take effect on September 1, 2014, only

seven or eight clinics would remain open). See ante, at 14–15. Obviously, this comparison does not show that the effect of the admitting 

privileges requirement alone was greater at the time of the District

Court’s decision in this second case. Simply put, the Court presents no

new clinic closures allegedly caused by the admitting privileges requirement beyond those already accounted for in Abbott, as I discuss, 

infra, at 15–17, and accompanying notes. 
Cite as: 579 U. S. ____ (2016) 9 

ALITO, J., dissenting 

two different claims? The Court’s first argument is that 

petitioners did not bring two facial claims because their

complaint in the present case sought only as-applied relief 

and it was the District Court, not petitioners, who injected

the issue of facial relief into the case. Ante, at 11. (After

the District Court gave them statewide relief, petitioners 

happily accepted the gift and now present their challenge 

as a facial one. See Reply Brief 24–25 (“[F]acial invalidation is the only way to ensure that the Texas requirements

do not extinguish women’s liberty”).) The thrust of the 

Court’s argument is that a trial judge can circumvent the

rules of claim preclusion by granting a plaintiff relief on a

claim that the plaintiff is barred from relitigating. Not 

surprisingly, the Court musters no authority for this 

proposition, which would undermine the interests that the

doctrine of claim preclusion is designed to serve. A “fundamental precept of common-law adjudication is that an

issue once determined by a competent court is conclusive.” 

Arizona v. California, 460 U. S. 605, 619 (1983). This 

interest in finality is equally offended regardless of 

whether the precluded claim is included in a complaint or

inserted into the case by a judge.4 

Another argument tossed off by the Court is that the

judgment on the admitting privileges claim in the first

case does not have preclusive effect because it was based 

on “‘the prematurity of the action.’” See ante, at 11–12 

(quoting Restatement (Second) of Judgments §20(2)). But 

this argument grossly mischaracterizes the basis for the 

judgment in the first case. The Court of Appeals did not 

hold that the facial challenge was premature. It held that 

the evidence petitioners offered was insufficient. See 

—————— 

4 I need not quibble with the Court’s authorities stating that facial

relief can sometimes be appropriate even where a plaintiff has requested

only as-applied relief. Ante, at 15. Assuming that this is generally

proper, it does not follow that this may be done where the plaintiff is 

precluded by res judicata from bringing a facial claim. 
 

 

10 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

Abbott, 748 F. 3d, at 598–599; see also n. 9, infra. Petitioners could have sought review in this Court, but elected

not to do so. 

This brings me to the Court’s main argument—that the

second facial challenge is a different claim because of 

“changed circumstances.” What the Court means by this

is that petitioners now have better evidence than they did 

at the time of the first case with respect to the number of 

clinics that would have to close as a result of the admitting 

privileges requirement. This argument is contrary to a

cardinal rule of res judicata, namely, that a plaintiff who

loses in a first case cannot later bring the same case simply because it has now gathered better evidence. Claim 

preclusion does not contain a “better evidence” exception.

See, e.g., Torres v. Shalala, 48 F. 3d 887, 894 (CA5 1995) 

(“If simply submitting new evidence rendered a prior 

decision factually distinct, res judicata would cease to 

exist”); Geiger v. Foley Hoag LLP Retirement Plan, 521 

F. 3d 60, 66 (CA1 2008) (Claim preclusion “applies even if

the litigant is prepared to present different evidence . . . in

the second action”); Saylor v. United States, 315 F. 3d 664, 

668 (CA6 2003) (“The fact that . . . new evidence might 

change the outcome of the case does not affect application 

of claim preclusion doctrine”); International Union of 

Operating Engineers-Employers Constr. Industry Pension, 

Welfare and Training Trust Funds v. Karr, 994 F. 2d 1426, 

1430 (CA9 1993) (“The fact that some different evidence 

may be presented in this action . . . , however, does not

defeat the bar of res judicata”); Restatement (Second) of 

Judgments §25, Comment b (“A mere shift in the evidence 

offered to support a ground held unproved in a prior action 

will not suffice to make a new claim avoiding the preclusive effect of the judgment”); 18 C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure §4403, p. 33 (2d 

ed. 2002) (Wright & Miller) (Res judicata “ordinarily applies despite the availability of new evidence”); Restate­
 

Cite as: 579 U. S. ____ (2016) 11 

ALITO, J., dissenting 

ment of Judgments §1, Comment b (The ordinary rules of

claim preclusion apply “although the party against whom

a judgment is rendered is later in a position to produce 

better evidence so that he would be successful in a second 

action”).

In an effort to get around this hornbook rule, the Court

cites a potpourri of our decisions that have no bearing on 

the question at issue. Some are not even about res judicata.5 

And the cases that do concern res judicata, Abie State 

Bank v. Bryan, 282 U. S. 765, 772 (1931), Lawlor v. National Screen Service Corp., 349 U. S. 322, 328 (1955), and 

Third Nat. Bank of Louisville v. Stone, 174 U. S. 432, 434 

(1899), endorse the unremarkable proposition that a prior 

judgment does not preclude new claims based on acts

occurring after the time of the first judgment.6 But petitioners’ second facial challenge is not based on new acts 

postdating the first suit. Rather, it is based on the same 

underlying act, the enactment of H. B. 2, which allegedly 

posed an undue burden. 

I come now to the authority on which the Court chiefly

relies, Comment f to §24 of the second Restatement. This 

is how it reads: 

“Material operative facts occurring after the decision 

of an action with respect to the same subject matter 

—————— 

5See ante, at 13 (citing United States v. Carolene Products Co., 304 

U. S. 144, 153 (1938), and Nashville, C. & St. L. R. Co. v. Walters, 294 

U. S. 405, 415 (1935)). 

6The Court’s contaminated-water hypothetical, see ante, at 12–13, 

may involve such a situation. If after their loss in the first suit, the 

same prisoners continued to drink the water, they would not be barred

from suing to recover for subsequent injuries suffered as a result. But 

if the Court simply means that the passage of time would allow the

prisoners to present better evidence in support of the same claim, the

successive suit would be barred for the reasons I have given. In that 

event, their recourse would be to move for relief from the judgment. 

See Restatement (Second) of Judgments §73. 

. 
 

12 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

may in themselves, or taken in conjunction with the

antecedent facts, comprise a transaction which may be 

made the basis of a second action not precluded by the

first. See Illustrations 10–12. Where important human values—such as the lawfulness of a continuing 

personal disability or restraint—are at stake, even a

slight change of circumstances may afford a sufficient 

basis for concluding that a second action may be

brought.” (Emphasis added.) 

As the word I have highlighted—“may”—should make

clear, this comment does not say that “[m]aterial operative 

facts occurring after the decision of an action” always or

even usually form “the basis of a second action not precluded by the first.” Rather, the comment takes the view 

that this “may” be so. Accord, ante, at 11 (“[D]evelopment 

of new material facts can mean that a new case and an 

otherwise similar previous case do not present the same

claim” (emphasis added)). The question, then, is when the 

development of new material facts should lead to this

conclusion. And there are strong reasons to conclude this 

should be a very narrow exception indeed. Otherwise, this 

statement, relegated to a mere comment, would revolutionize the rules of claim preclusion—by permitting a 

party to relitigate a lost claim whenever it obtains better

evidence. Comment f was surely not meant to upend this

fundamental rule. 

What the comment undoubtedly means is far more 

modest—only that in a few, limited circumstances the 

development of new material facts should (in the opinion 

of the ALI) permit relitigation. What are these circumstances? Section 24 includes three illustrative examples 

in the form of hypothetical cases, and none resembles the 

present case.

In the first hypothetical case, the subsequent suit is

based on new events that provide a basis for relief under a 
Cite as: 579 U. S. ____ (2016) 13 

ALITO, J., dissenting 

different legal theory. Restatement (Second) of Judgments 

§24, Illustration 10.

In the second case, a father who lost a prior child custody case brings a second action challenging his wife’s fitness as a mother based on “subsequent experience,” which 

I take to mean subsequent conduct by the mother. Id., 

Illustration 11. This illustration is expressly linked to a 

determination of a person’s “status”—and not even status

in general, but a particular status, fitness as a parent,

that the law recognizes as changeable. See Reporter’s

Note, id., §24, Comment f (Illustration 11 “exemplifies the 

effect of changed circumstances in an action relating to 

status”). 

In the final example, the government loses a civil antitrust conspiracy case but then brings a second civil antitrust conspiracy case based on new conspiratorial acts. 

The illustration does not suggest that the legality of acts 

predating the end of the first case is actionable in the 

second case, only that the subsequent acts give rise to a

new claim and that proof of earlier acts may be admitted 

as evidence to explain the significance of the later acts. 

Id., Illustration 12. 

The present claim is not similar to any of these illustrations. It does not involve a claim based on postjudgment 

acts and a new legal theory. It does not ask us to adjudicate a person’s status. And it does not involve a continuing course of conduct to be proved by the State’s new acts. 

The final illustration actually undermines the Court’s

holding. The Reporter’s Note links this illustration to a

Fifth Circuit case, Exhibitors Poster Exchange, Inc. v. 

National Screen Service Corp., 421 F. 2d 1313 (1970). In 

that case, the court distinguished between truly

postjudgment acts and “acts which have been completed 

[prior to the previous judgment] except for their consequences.” Id., at 1318. Only postjudgment acts—and not

postjudgment consequences—the Fifth Circuit held, can 
 

14 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

give rise to a new cause of action. See ibid.7 

Here, the Court does not rely on any new acts performed

by the State of Texas after the end of the first case. Instead, the Court relies solely on what it takes to be new 

consequences, the closing of additional clinics, that are

said to have resulted from the enactment of H. B. 2. 

D 

For these reasons, what the Court has done here is to 

create an entirely new exception to the rule that a losing

plaintiff cannot relitigate a claim just because it now has

new and better evidence. As best I can tell, the Court’s 

new rule must be something like this: If a plaintiff initially 

loses because it failed to provide adequate proof that a

challenged law will have an unconstitutional effect and if

subsequent developments tend to show that the law will in 

fact have those effects, the plaintiff may relitigate the 

same claim. Such a rule would be unprecedented, and I

am unsure of its wisdom, but I am certain of this: There is 

no possible justification for such a rule unless the plaintiff,

at the time of the first case, could not have reasonably 

shown what the effects of the law would be. And that is 

not the situation in this case. 

1 

The Court does not contend that petitioners, at the time 

—————— 

7See also Sutliffe v. Epping School Dist., 584 F. 3d 314, 328 (CA1

2009) (“[W]hen a defendant is accused of . . . acts which though occurring over a period of time were substantially of the same sort and 

similarly motivated, fairness to the defendant as well as the public

convenience may require that they be dealt with in the same action,

and the events are said to constitute but one transaction” (internal

quotation marks omitted)); Monahan v. New York City Dept. of Corrections, 214 F. 3d 275, 289 (CA2 2000) (“Plaintiffs’ assertion of new 

incidents arising from the application of the challenged policy is also

insufficient to bar the application of res judicata”); Huck v. Dawson, 106 

F. 3d 45, 49 (CA3 1997) (applying res judicata where “the same facts

that resulted in the earlier judgment have caused continued damage”). 
Cite as: 579 U. S. ____ (2016) 15 

ALITO, J., dissenting 

of the first case, could not have gathered and provided 

evidence that was sufficient to show that the admitting

privileges requirement would cause a sufficient number of 

clinic closures. Instead, the Court attempts to argue that

petitioners could not have shown at that time that a sufficient number of clinics had already closed. As I have 

explained, that is not what petitioners need to show or

what they attempted to prove. 

Moreover, the Court is also wrong in its understanding 

of petitioners’ proof in the first case. In support of its

holding that the admitting privileges requirement now 

“places a ‘substantial obstacle in the path of a woman’s 

choice,’” the Court relies on two facts: “Eight abortion

clinics closed in the months leading up to the requirement’s effective date” and “[e]leven more closed on the day 

the admitting-privileges requirement took effect.” Ante, at 

24. But petitioners put on evidence addressing exactly

this issue in their first trial. They apparently surveyed 27

of the 36 abortion clinics they identified in the State, 

including all 24 of the clinics owned by them or their 

coplaintiffs, to find out what impact the requirement

would have on clinic operations. See Appendix, infra 

(App. K to Emergency Application To Vacate Stay in 

Planned Parenthood of Greater Tex. Surgical Health Servs. 

v. Abbott, O. T. 2013, No. 13A452, Plaintiffs’ Trial Exh. 

46).

That survey claimed to show that the admitting privileges requirement would cause 15 clinics to close.8 See 

ibid. The Fifth Circuit had that evidence before it, and did 

not refuse to consider it.9 If that evidence was sufficient to 

—————— 

8As I explain, infra, at 29, and n. 18, some of the closures presumably

included in the Court’s count of 19 were not attributed to H. B. 2 at the 

first trial, even by petitioners. 9The Abbott panel’s refusal to consider “developments since the conclusion of the bench trial,” 748 F. 3d, at 599, n. 14, was not addressed to 

the evidence of 15 closures presented at trial. The Court of Appeals in 
 

 

16 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

show that the admitting privileges rule created an unlawful impediment to abortion access (and the District Court

indeed thought it sufficient), then the decision of the Fifth 

Circuit in the first case was wrong as a matter of law. 

Petitioners could have asked us to review that decision, 

but they chose not to do so. A tactical decision of that 

nature has consequences. While it does not mean that the 

—————— 

fact credited that evidence by assuming “some clinics may be required

to shut their doors,” but it nevertheless concluded that “there is no 

showing whatsoever that any woman will lack reasonable access to a 

clinic within Texas.” Id., at 598. The Abbott decision therefore accepted

the factual premise common to these two actions—namely, that the 

admitting privileges requirement would cause some clinics to close—

but it concluded that petitioners had not proved a burden on access 

regardless. In rejecting Abbott’s conclusion, the Court seems to believe 

that Abbott also must have refused to accept the factual premise. See 

ante, at 13–15. 

Instead, Abbott’s footnote 14 appears to have addressed the following 

post-trial developments: (1) the permanent closure of the Lubbock

clinic, Brief for Plaintiffs-Appellees in Abbott (CA5), at 5, n. 3 (accounted 

for among the 15 anticipated closures, see Appendix, infra); (2) the 

resumption of abortion services in Fort Worth, Brief for PlaintiffsAppellees, at 5, n. 3; (3) the acquisition of admitting privileges by an 

Austin abortion provider, id., at 6, n. 4; (4) the acquisition of privileges 

by physicians in Dallas and San Antonio, see Letter from J. Crepps to

L. Cayce, Clerk of Court in Abbott (CA5, Jan. 3, 2014); (5) the acquisition of privileges by physicians in El Paso and Killeen, see Letter from

J. Crepps to L. Cayce, Clerk of Court in Abbott (CA5, Mar. 21, 2014); 

and (6) the enforcement of the requirement against one Houston

provider who lacked privileges, see ibid. (citing Texas Medical Board 

press release). In the five months between the admitting privileges

requirement taking effect and the Fifth Circuit’s Abbott decision, then, 

the parties had ample time to inform that court of post-trial developments—and petitioners never identified the 15 closures as new (because the closures were already accounted for in their trial evidence). 

In fact, the actual new developments largely favored the State’s case: In

that time, physicians in Austin, Dallas, El Paso, Fort Worth, Killeen, 

and San Antonio were able to come into compliance, while only one in 

Houston was not, and one clinic (already identified at trial as expected

to close) closed permanently. So Abbott’s decision to ignore post-trial 

developments quite likely favored petitioners. 
 

Cite as: 579 U. S. ____ (2016) 17 

ALITO, J., dissenting 

admitting privileges requirement is immune to a facial

challenge, it does mean that these petitioners and the 

other plaintiffs in the first case cannot mount such a

claim. 

2 

Even if the Court thinks that petitioners’ evidence in the 

first case was insufficient, the Court does not claim that 

petitioners, with reasonable effort, could not have gathered sufficient evidence to show with some degree of accuracy what the effects of the admitting privileges requirement would be. As I have just explained, in their first 

trial petitioners introduced a survey of 27 abortion clinics 

indicating that 15 would close because of the admitting

privileges requirement. The Court does not identify what

additional evidence petitioners needed but were unable to 

gather. There is simply no reason why petitioners should

be allowed to relitigate their facial claim. 

E 

So far, I have discussed only the first of the two sentences in Comment f, but the Court also relies on the 

second sentence. I reiterate what that second sentence 

says: 

“Where important human values—such as the lawfulness of a continuing personal disability or restraint—

are at stake, even a slight change of circumstances

may afford a sufficient basis for concluding that a second action may be brought.” Restatement (Second) of

Judgments §24, Comment f. 

The second Restatement offers no judicial support whatsoever for this suggestion, and thus the comment “must be

regarded as a proposal for change rather than a restatement of existing doctrine, since the commentary refers to

not a single case, of this or any other United States court.” 

United States v. Stuart, 489 U. S. 353, 375 (1989) (Scalia, 
 

 

18 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

J., concurring in judgment). The sentence also sits in 

considerable tension with our decisions stating that res 

judicata must be applied uniformly and without regard to

what a court may think is just in a particular case. See, 

e.g., Moitie, 452 U. S., at 401 (“The doctrine of res judicata 

serves vital public interests beyond any individual judge’s

ad hoc determination of the equities in a particular case”). 

Not only did this sentence seemingly come out of nowhere, 

but it appears that no subsequent court has relied on this 

sentence as a ground for decision. And while a few decisions have cited the “important human values” language, 

those cases invariably involve the relitigation of personal 

status determinations, as discussed in Comment f ’s Illustration 11. See, e.g., People ex rel. Leonard HH. v. Nixon, 

148 App. Div. 2d 75, 79–80, 543 N. Y. S. 2d 998, 1001 

(1989) (“[B]y its very nature, litigation concerning the 

status of a person’s mental capacity does not lend itself to

strict application of res judicata on a transactional analysis basis”).10 

* * * 

In sum, the Court’s holding that petitioners’ second

facial challenge to the admitting privileges requirement is

not barred by claim preclusion is not supported by any of 

—————— 

10See also In re Marriage of Shaddle, 317 Ill. App. 3d 428, 430–432,

740 N. E. 2d 525, 528–529 (2000) (child custody); In re Hope M., 1998 

ME 170, ¶5, 714 A. 2d 152, 154 (termination of parental rights); In re 

Connors, 255 Ill. App. 3d 781, 784–785, 627 N. E. 2d 1171, 1173–1174

(1994) (civil commitment); Kent V. v. State, 233 P. 3d 597, 601, and n. 

12 (Alaska 2010) (applying Comment f to termination of parental 

rights); In re Juvenile Appeal (83–DE), 190 Conn. 310, 318–319, 460 

A. 2d 1277, 1282 (1983) (same); In re Strozzi, 112 N. M. 270, 274, 814 

P. 2d 138, 142 (App. 1991) (guardianship and conservatorship); Andrulonis v. Andrulonis, 193 Md. App. 601, 617, 998 A. 2d 898, 908

(2010) (modification of alimony); In re Marriage of Pedersen, 237 Ill. 

App. 3d 952, 957, 605 N. E. 2d 629, 633 (1992) (same); Friederwitzer v. 

Friederwitzer, 55 N. Y. 2d 89, 94–95, 432 N. E. 2d 765, 768 (1982) (child 

custody). 
Cite as: 579 U. S. ____ (2016) 19 

ALITO, J., dissenting 

our cases or any body of lower court precedent; is contrary

to the bedrock rule that a party cannot relitigate a claim 

simply because the party has obtained new and better 

evidence; is contrary to the first Restatement of Judgments and the actual rules of the second Restatement of 

Judgment; and is purportedly based largely on a single 

comment in the second Restatement, but does not even 

represent a sensible reading of that comment. In a regular case, an attempt by petitioners to relitigate their previously unsuccessful facial challenge to the admitting

privileges requirement would have been rejected out of 

hand—indeed, might have resulted in the imposition of 

sanctions under Federal Rule of Civil Procedure 11. No 

court would even think of reviving such a claim on its own. 

But in this abortion case, ordinary rules of law—and

fairness—are suspended. 

II
 

A 

I now turn to the application of principles of claim preclusion to a claim that petitioners did include in their 

second complaint, namely, their facial challenge to the

requirement in H. B. 2 that abortion clinics comply with

the rules that govern ambulatory surgical centers (ASCs). 

As we have said many times, the doctrine of claim preclusion not only bars the relitigation of previously litigated 

claims; it can also bar claims that are closely related to the 

claims unsuccessfully litigated in a prior case. See Moitie, 

supra, at 398; Montana, 440 U. S., at 153. 

As just discussed, the Court’s holding on the admitting 

privileges issue is based largely on a comment to §24 of 

the second Restatement, and therefore one might think

that consistency would dictate an examination of what §24 

has to say on the question whether the ASC challenge

should be barred. But consistency is not the Court’s 

watchword here. 
 

20 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

Section 24 sets out the general rule regarding the 

“‘[s]plitting’” of claims. This is the rule that determines 

when the barring of a claim that was previously litigated 

unsuccessfully also extinguishes a claim that the plaintiff 

could have but did not bring in the first case. Section 

24(1) states that the new claim is barred if it is “any part 

of the transaction, or series of connected transactions, out 

of which the action arose.” 

Here, it is evident that petitioners’ challenges to the

admitting privileges requirement and the ASC requirement are part of the same transaction or series of connected

transactions. If, as I believe, the “transaction” is the 

enactment of H. B. 2, then the two facial claims are part of 

the very same transaction. And the same is true even if 

the likely or actual effects of the two provisions constitute

the relevant transactions. Petitioners argue that the 

admitting privileges requirement and the ASC requirements combined have the effect of unconstitutionally 

restricting access to abortions. Their brief repeatedly

refers to the collective effect of the “requirements.” Brief 

for Petitioners 40, 41, 42, 43, 44. They describe the admitting privileges and ASC requirements as delivering a “onetwo punch.” Id., at 40. They make no effort whatsoever to 

separate the effects of the two provisions. 

B 

The Court nevertheless holds that there are two “meaningful differences” that justify a departure from the general rule against splitting claims. Ante, at 16. Neither 

has merit. 

1 

First, pointing to a statement in a pocket part to a treatise, the Court says that “courts normally treat challenges

to distinct regulatory requirements as ‘separate claims,’ 

even when they are part of one overarching ‘[g]overnment 
 

Cite as: 579 U. S. ____ (2016) 21 

ALITO, J., dissenting 

regulatory scheme.’” Ante, at 16–17 (quoting 18 Wright & 

Miller §4408, at 54 (2d ed. 2002, Supp. 2016)). As support

for this statement, the treatise cites one case, Hamilton’s 

Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 (CA6 2007). 

Even if these authorities supported the rule invoked by

the Court (and the Court points to no other authorities), 

they would hardly be sufficient to show that “courts normally” proceed in accordance with the Court’s rule. But in 

fact neither the treatise nor the Sixth Circuit decision 

actually supports the Court’s rule. 

What the treatise says is the following: 

“Government regulatory schemes provide regular examples of circumstances in which regulation of a single business by many different provisions should lead 

to recognition of separate claims when the business 

challenges different regulations.” 18 Wright & Miller

§4408, at 54 (emphasis added). 

Thus, the treatise expresses a view about what the law 

“should” be; it does not purport to state what courts “normally” do. And the recommendation of the treatise authors concerns different provisions of a “regulatory

scheme,” which often embodies an accumulation of legislative enactments. Petitioners challenge two provisions of

one law, not just two provisions of a regulatory scheme. 

The Sixth Circuit decision is even further afield. In that 

case, the plaintiff had previously lost a case challenging

one rule of a state liquor control commission. 501 F. 3d, at 

649–650. On the question whether the final judgment in

that case barred a subsequent claim attacking another

rule, the court held that the latter claim was “likely” not

barred because, “although [the first rule] was challenged 

in the first lawsuit, [the other rule] was not,” and “[t]he

state has not argued or made any showing that [the party] 

should also have challenged [the other rule] at the time.” 

Id., at 650. To say that these authorities provide 
 

22 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

meager support for the Court’s reasoning would be an

exaggeration. 

Beyond these paltry authorities, the Court adds only the

argument that we should not “encourage a kitchen-sink

approach to any litigation challenging the validity of 

statutes.” Ante, at 17. I agree—but that is not the situation in this case. The two claims here are very closely 

related. They are two parts of the same bill. They both

impose new requirements on abortion clinics. They are 

justified by the State on the same ground, protection of the 

safety of women seeking abortions. They are both challenged as imposing the same kind of burden (impaired 

access to clinics) on the same kind of right (the right to

abortion, as announced in Roe v. Wade, 410 U. S. 113 

(1973), and Casey, 505 U. S. 833). And petitioners attack 

the two provisions as a package. According to petitioners, 

the two provisions were both enacted for the same illegitimate purpose—to close down Texas abortion clinics. See 

Brief for Petitioners 35–36. And as noted, petitioners rely 

on the combined effect of the two requirements. Petitioners have made little effort to identify the clinics that 

closed as a result of each requirement but instead aggregate the two requirements’ effects. 

For these reasons, the two challenges “form a convenient trial unit.” Restatement (Second) of Judgments

§24(2). In fact, for a trial court to accurately identify the

effect of each provision it would also need to identify the 

effect of the other provision. Cf. infra, at 30. 

2 

Second, the Court claims that, at the time when petitioners filed their complaint in the first case, they could

not have known whether future rules implementing the 

surgical center requirement would provide an exemption 

for existing abortion clinics. Ante, at 17. This argument is 

deeply flawed. 
 

Cite as: 579 U. S. ____ (2016) 23 

ALITO, J., dissenting 

“Where the inevitability of the operation of a statute

against certain individuals is patent, it is irrelevant to the

existence of a justiciable controversy that there will be a 

time delay before the disputed provisions will come into

effect.” Regional Rail Reorganization Act Cases, 419 U. S. 

102, 143 (1974). And here, there was never any real

chance that the Texas Department of State Health Services would exempt existing abortion clinics from all the

ASC requirements. As the Court of Appeals wrote, “it is

abundantly clear from H. B. 2 that all abortion facilities 

must meet the standards already promulgated for ASCs.” 

Whole Woman’s Health v. Cole, 790 F. 3d 563, 583 (2015) 

(per curiam) (case below). See Tex. Health & Safety Code

Ann. §245.010(a) (West Cum. Supp. 2015) (Rules implementing H. B. 2 “must contain minimum standards . . . for 

an abortion facility [that are] equivalent to the minimum 

standards . . . for ambulatory surgical centers”). There is 

no apparent basis for the argument that H. B. 2 permitted 

the state health department to grant blanket exemptions. 

Whether there was any real likelihood that clinics would 

be exempted from particular ASC requirements is irrelevant because both petitioners and the Court view the ASC 

requirements as an indivisible whole. Petitioners told the 

Fifth Circuit in unequivocal terms that they were “challeng[ing] H. B. 2 broadly, with no effort whatsoever to

parse out specific aspects of the ASC requirement that 

they f[ou]nd onerous or otherwise infirm.” 790 F. 3d, at 

582. Similarly, the majority views all the ASC provisions

as an indivisible whole. See ante, at 38 (“The statute was

meant to require abortion facilities to meet the integrated

surgical-center standards—not some subset thereof ”). On 

this view, petitioners had no reason to wait to see whether 

the Department of State Health Services might exempt 

them from some of the ASC rules. Even if exemptions 

from some of the ASC rules had been granted, petitioners 

and the majority would still maintain that the provision of 
 

 

 

 

24 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

H. B. 2 making the ASC rules applicable to abortion facilities is facially unconstitutional. Thus, exemption from

some of the ASC requirements would be entirely inconsequential. The Court has no response to this point. See 

ante, at 17. 

For these reasons, petitioners’ facial attack on the ASC

requirements, like their facial attack on the admitting

privileges rule, is precluded. 

III 

Even if res judicata did not bar either facial claim, a

sweeping, statewide injunction against the enforcement of 

the admitting privileges and ASC requirements would still 

be unjustified. Petitioners in this case are abortion clinics 

and physicians who perform abortions. If they were simply asserting a constitutional right to conduct a business or

to practice a profession without unnecessary state regulation, they would have little chance of success. See, e.g., 

Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 

(1955). Under our abortion cases, however, they are permitted to rely on the right of the abortion patients they 

serve. See Doe v. Bolton, 410 U. S. 179, 188 (1973); but 

see ante, at 2–5 (THOMAS, J., dissenting). 

Thus, what matters for present purposes is not the 

effect of the H. B. 2 provisions on petitioners but the effect

on their patients. Under our cases, petitioners must show 

that the admitting privileges and ASC requirements

impose an “undue burden” on women seeking abortions. 

Gonzales v. Carhart, 550 U. S. 124, 146 (2007). And in 

order to obtain the sweeping relief they seek—facial invalidation of those provisions—they must show, at a minimum, that these provisions have an unconstitutional 

impact on at least a “large fraction” of Texas women of

reproductive age.11 Id., at 167–168. Such a situation 

—————— 

11The proper standard for facial challenges is unsettled in the abor­
Cite as: 579 U. S. ____ (2016) 25 

ALITO, J., dissenting 

could result if the clinics able to comply with the new 

requirements either lacked the requisite overall capacity

or were located too far away to serve a “large fraction” of 

the women in question.

Petitioners did not make that showing. Instead of offering direct evidence, they relied on two crude inferences. 

First, they pointed to the number of abortion clinics that 

closed after the enactment of H. B. 2, and asked that it be 

inferred that all these closures resulted from the two 

challenged provisions. See Brief for Petitioners 23–24. 

They made little effort to show why particular clinics 

closed. Second, they pointed to the number of abortions

performed annually at ASCs before H. B. 2 took effect and,

because this figure is well below the total number of abortions performed each year in the State, they asked that it 

be inferred that ASC-compliant clinics could not meet the 

demands of women in the State. See App. 237–238. Peti­

—————— 

tion context. See Gonzales, 550 U. S., at 167–168 (comparing Ohio v. 

Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990)

(“[B]ecause appellees are making a facial challenge to a statute, they

must show that no set of circumstances exists under which the Act 

would be valid” (internal quotation marks omitted)), with Casey, 505 

U. S., at 895 (opinion of the Court) (indicating a spousal-notification

statute would impose an undue burden “in a large fraction of the cases 

in which [it] is relevant” and holding the statutory provision facially

invalid)). Like the Court in Gonzales, supra, at 167–168, I do not 

decide the question, and use the more plaintiff-friendly “large fraction” 

formulation only because petitioners cannot meet even that test.

The Court, by contrast, applies the “large fraction” standard without 

even acknowledging the open question. Ante, at 39. In a similar vein, 

it holds that the fraction’s “relevant denominator is ‘those [women] for 

whom [the provision] is an actual rather than an irrelevant restriction.’ ” Ibid. (quoting Casey, 505 U. S., at 895). I must confess that 

I do not understand this holding. The purpose of the large-fraction

analysis, presumably, is to compare the number of women actually 

burdened with the number potentially burdened. Under the Court’s 

holding, we are supposed to use the same figure (women actually

burdened) as both the numerator and the denominator. By my math, 

that fraction is always “1,” which is pretty large as fractions go. 
 

 

 

26 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

tioners failed to provide any evidence of the actual capacity of the facilities that would be available to perform 

abortions in compliance with the new law—even though 

they provided this type of evidence in their first case to the 

District Court at trial and then to this Court in their 

application for interim injunctive relief. Appendix, infra. 

A 

I do not dispute the fact that H. B. 2 caused the closure

of some clinics. Indeed, it seems clear that H. B. 2 was 

intended to force unsafe facilities to shut down. The law 

was one of many enacted by States in the wake of the

Kermit Gosnell scandal, in which a physician who ran an 

abortion clinic in Philadelphia was convicted for the firstdegree murder of three infants who were born alive and 

for the manslaughter of a patient. Gosnell had not been 

actively supervised by state or local authorities or by his

peers, and the Philadelphia grand jury that investigated

the case recommended that the Commonwealth adopt a

law requiring abortion clinics to comply with the same 

regulations as ASCs.12 If Pennsylvania had had such a

requirement in force, the Gosnell facility may have been 

shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.13 

—————— 

12Report of Grand Jury in No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 

14, 2011), p. 248–249, online at http://www.phila.gov/districtattorney/

pdfs/grandjurywomensmedical.pdf (all Internet materials as last visited

June 24, 2016). 13See House Research Org., Laubenberg et al., Bill Analysis 10

(July 9, 2013), online at http://www.hro.house.state.tx.us/pdf/ba832/

hb0002.pdf (“Higher standards could prevent the occurrence of a 

situation in Texas like the one recently exposed in Philadelphia, in

which Dr. Kermit Gosnell was convicted of murder after killing babies

who were born alive. A patient also died at that substandard clinic”).

The Court attempts to distinguish the Gosnell horror story by pointing 
Cite as: 579 U. S. ____ (2016) 27 

ALITO, J., dissenting 

While there can be no doubt that H. B. 2 caused some 

clinics to cease operation, the absence of proof regarding 

the reasons for particular closures is a problem because 

some clinics have or may have closed for at least four 

reasons other than the two H. B. 2 requirements at issue 

here. These are: 

1. H. B. 2’s restriction on medication abortion. In 

their first case, petitioners challenged the provision of 

H. B. 2 that regulates medication abortion, but that

part of the statute was upheld by the Fifth Circuit 

and not relitigated in this case. The record in this 

case indicates that in the first six months after this 

restriction took effect, the number of medication abortions dropped by 6,957 (compared to the same period

the previous year). App. 236.

2. Withdrawal of Texas family planning funds. In 

2011, Texas passed a law preventing family planning 

grants to providers that perform abortions and their 

affiliates. In the first case, petitioners’ expert admitted that some clinics closed “as a result of the defunding,”14 and as discussed below, this withdrawal appears specifically to have caused multiple clinic 

closures in West Texas. See infra, at 29, and n. 18. 

3. The nationwide decline in abortion demand. Petitioners’ expert testimony relies15 on a study from the 

Guttmacher Institute which concludes that “‘[t]he national abortion rate has resumed its decline, and no 

evidence was found that the overall drop in abortion 

incidence was related to the decrease in providers or to 

—————— 

to differences between Pennsylvania and Texas law. See ante, at 27–
 

28. But Texas did not need to be in Pennsylvania’s precise position for

the legislature to rationally conclude that a similar law would be 

helpful. 14Rebuttal Decl. of Dr. Joseph E. Potter, Doc. 76–2, p. 12, ¶32, in 

Abbott (WD Tex., Oct. 18, 2013) (Potter Rebuttal Decl.). 15See App. 234, 237, 253. 
 

 

 

28 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

restrictions implemented between 2008 and 2011.’” 

App. 1117 (direct testimony of Dr. Peter Uhlenberg) 

(quoting R. Jones & J. Jerman, Abortion Incidence 

and Service Availability In the United States, 2011, 

46 Perspectives on Sexual and Reproductive Health 3

(2014); emphasis in testimony). Consistent with that 

trend, “[t]he number of abortions to residents of Texas 

declined by 4,956 between 2010 and 2011 and by

3,905 between 2011 and 2012.” App. 1118.

4. Physician retirement (or other localized factors).

Like everyone else, most physicians eventually retire, 

and the retirement of a physician who performs abortions can cause the closing of a clinic or a reduction in 

the number of abortions that a clinic can perform.

When this happens, the closure of the clinic or the reduction in capacity cannot be attributed to H. B. 2 unless it is shown that the retirement was caused by the

admitting privileges or surgical center requirements

as opposed to age or some other factor. 

At least nine Texas clinics may have ceased performing 

abortions (or reduced capacity) for one or more of the

reasons having nothing to do with the provisions challenged here. For example, in their first case, petitioners

alleged that the medication-abortion restriction would 

cause at least three medication-only abortion clinics to

cease performing abortions,16 and they predicted that

“[o]ther facilities that offer both surgical and medication 

abortion will be unable to offer medication abortion,”17 

presumably reducing their capacity. It also appears that

several clinics (including most of the clinics operating in 

West Texas, apart from El Paso) closed in response to the 

—————— 

16Complaint and Application for Preliminary and Permanent Injunction in Abbott (WD Tex.), ¶¶10, 11 (listing one clinic in Stafford and two 

in San Antonio). 17 Id., ¶88. 
Cite as: 579 U. S. ____ (2016) 29 

ALITO, J., dissenting 

unrelated law restricting the provision of family planning 

funds.18 And there is reason to question whether at least

two closures (one in Corpus Christi and one in Houston) 

may have been prompted by physician retirements.19 

Neither petitioners nor the District Court properly

addressed these complexities in assessing causation—and

for no good reason. The total number of abortion clinics in 

the State was not large. Petitioners could have put on 

evidence (as they did for 27 individual clinics in their first 

case, see Appendix, infra) about the challenged provisions’ 

role in causing the closure of each clinic,20 and the court 

could have made a factual finding as to the cause of each 

—————— 

18 In the first case, petitioners apparently did not even believe that

the abortion clinics in Abilene, Bryan, Midland, and San Angelo were

made to close because of H. B. 2. In that case, petitioners submitted a

list of 15 clinics they believed would close (or have severely limited

capacity) because of the admitting privileges requirement—and those

four West Texas clinics are not on the list. See Appendix, infra. And at 

trial, a Planned Parenthood executive specifically testified that the

Midland clinic closed because of the funding cuts and because the 

clinic’s medical director retired. See 1 Tr. 91, 93, in Abbott (WD Tex.,

Oct. 21, 2013). Petitioners’ list and Planned Parenthood’s testimony

both fit with petitioners’ expert’s admission in the first case that some 

clinics closed “as a result of the defunding.” Potter Rebuttal Decl. ¶32. 19See Stoelje, Abortion Clinic Closes in Corpus Christi, San Antonio 

Express-News (June 10, 2014), online at http://www.mysanantonio.com/

news/local/ article/Abortion-clinic-closes-in-Corpus-Christi-5543125.php

(provider “retiring for medical reasons”); 1 Plaintiffs’ Exh. 18, p. 2, in 

Whole Woman’s Health v. Lakey, No. 1:14–cv–284 (WD Tex., admitted 

into evidence Aug. 4, 2014) (e-mail stating Houston clinic owner “is

retiring his practice”). Petitioners should have been required to put on

proof about the reason for the closure of particular clinics. I cite the 

extrarecord Corpus Christi story only to highlight the need for such 

proof. 20This kind of evidence was readily available; in fact, petitioners 

deposed at least one nonparty clinic owner about the burden posed by 

H. B. 2. See App. 1474. And recall that in their first case, petitioners 

put on evidence purporting to show how the admitting privileges 

requirement would (or would not) affect 27 clinics. See Appendix, infra 

(petitioners’ chart of clinics). 
 

 

30 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

closure. 

Precise findings are important because the key issue 

here is not the number or percentage of clinics affected, 

but the effect of the closures on women seeking abortions, 

i.e., on the capacity and geographic distribution of clinics

used by those women. To the extent that clinics closed (or

experienced a reduction in capacity) for any reason unrelated to the challenged provisions of H. B. 2, the corresponding burden on abortion access may not be factored

into the access analysis. Because there was ample reason

to believe that some closures were caused by these other 

factors, the District Court’s failure to ascertain the reasons for clinic closures means that, on the record before us, 

there is no way to tell which closures actually count. 

Petitioners—who, as plaintiffs, bore the burden of proof—

cannot simply point to temporal correlation and call it 

causation. 

B 

Even if the District Court had properly filtered out 

immaterial closures, its analysis would have been incomplete for a second reason. Petitioners offered scant evidence on the capacity of the clinics that are able to comply 

with the admitting privileges and ASC requirements, or 

on those clinics’ geographic distribution. Reviewing the

evidence in the record, it is far from clear that there has 

been a material impact on access to abortion. 

On clinic capacity, the Court relies on petitioners’ expert 

Dr. Grossman, who compared the number of abortions 

performed at Texas ASCs before the enactment of H. B. 2 

(about 14,000 per year) with the total number of abortions

per year in the State (between 60,000–70,000 per year). 

Ante, at 32–33.21 Applying what the Court terms “common 

—————— 

21 In the first case, petitioners submitted a report that Dr. Grossman 

coauthored with their testifying expert, Dr. Potter. 1 Tr. 38 in Lakey

(Aug. 4, 2014) (Lakey Tr.). That report predicted that “the shortfall in 
 

 

 

 

Cite as: 579 U. S. ____ (2016) 31 

ALITO, J., dissenting 

sense,” the Court infers that the ASCs that performed 

abortions at the time of H. B. 2’s enactment lacked the 

capacity to perform all the abortions sought by women in

Texas. 

The Court’s inference has obvious limitations. First, it 

is not unassailable “common sense” to hold that current 

utilization equals capacity; if all we know about a grocery 

store is that it currently serves 200 customers per week, 

ante, at 33, that fact alone does not tell us whether it is an 

—————— 

capacity due to the admitting privileges requirement will prevent at

least 22,286 women” from accessing abortion. Decl. of Dr. Joseph E. 

Potter, Doc. 9–8, p. 4, in Abbott (WD Tex., Oct. 1, 2013). The methodology used was questionable. See Potter Rebuttal Decl. ¶18. As Dr. 

Potter admitted: “There’s no science there. It’s just evidence.” 2 Tr. 23 

in Abbott (WD Tex., Oct. 22, 2013). And in this case, in fact, Dr. 

Grossman admitted that their prediction turned out to be wildly

inaccurate. Specifically, he provided a new figure (approximately 

9,200) that was less than half of his earlier prediction. 1 Lakey Tr. 41. 

And he then admitted that he had not proven any causal link between

the admitting privileges requirement and that smaller decline. Id., at 

54 (quoting Grossman et al., Change in Abortion Services After Implementation of a Restrictive Law in Texas, 90 Contraception 496, 500

(2014)). 

Dr. Grossman’s testimony in this case, furthermore, suggested that 

H. B. 2’s restriction on medication abortion (whose impact on clinics

cannot be attributed to the provisions challenged in this case) was a

major cause in the decline in the abortion rate. After the medication 

abortion restriction and admitting privileges requirement took effect,

over the next six months the number of medication abortions dropped 

by 6,957 compared to the same period in the previous year. See App.

236. The corresponding number of surgical abortions rose by 2,343. 

See ibid. If that net decline of 4,614 in six months is doubled to approximate the annual trend (which is apparently the methodology Dr.

Grossman used to arrive at his 9,200 figure, see 90 Contraception, 

supra, at 500), then the year’s drop of 9,228 abortions seems to be 

entirely the product of the medication abortion restriction. Taken 

together, these figures make it difficult to conclude that the admitting 

privileges requirement actually depressed the abortion rate at all. 

In light of all this, it is unclear why the Court takes Dr. Grossman’s

testimony at face value. 
 

 

32 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

overcrowded minimart or a practically empty supermarket. Faced with increased demand, ASCs could potentially 

increase the number of abortions performed without prohibitively expensive changes. Among other things, they

might hire more physicians who perform abortions,22 

utilize their facilities more intensively or efficiently, or

shift the mix of services provided. Second, what matters 

for present purposes is not the capacity of just those ASCs

that performed abortions prior to the enactment of H. B. 2 

but the capacity of those that would be available to perform abortions after the statute took effect. And since the 

enactment of H. B. 2, the number of ASCs performing

abortions has increased by 50%—from six in 2012 to nine

today.23 

The most serious problem with the Court’s reasoning is

that its conclusion is belied by petitioners’ own submissions to this Court. In the first case, when petitioners 

asked this Court to vacate the Fifth Circuit’s stay of the

District Court’s injunction of the admitting privileges 

—————— 

22The Court asserts that the admitting privileges requirement is a

bottleneck on capacity, ante, at 34, but it musters no evidence and does 

not even dispute petitioners’ own evidence that the admitting privileges

requirement may have had zero impact on the Texas abortion rate, n. 

21, supra. 23See Brief for Petitioners 23–24 (six centers in 2012, compared with

nine today). Two of the three new surgical centers opened since this

case was filed are operated by Planned Parenthood (which now owns

five of the nine surgical centers in the State). See App. 182–183, 1436.

Planned Parenthood is obviously able to comply with the challenged

H. B. 2 requirements. The president of petitioner Whole Woman’s 

Health, a much smaller entity, has complained that Planned 

Parenthood “ ‘put[s] local independent businesses in a tough situation.’ ” 

Simon, Planned Parenthood Hits Suburbia, Wall Street Journal Online 

(June 23, 2008) (cited in Brief for CitizenLink et al. as Amici Curiae 

15–16, and n. 23). But as noted, petitioners in this case are not asserting their own rights but those of women who wish to obtain an abortion, see supra, at 24, and thus the effect of the H. B. 2 requirements on

petitioners’ business and professional interests are not relevant. 
Cite as: 579 U. S. ____ (2016) 33 

ALITO, J., dissenting 

requirement pending appeal, they submitted a chart 

previously provided in the District Court that detailed the

capacity of abortion clinics after the admitting privileges 

requirement was to take effect.24 This chart is included as 

an Appendix to this opinion.25 Three of the facilities listed 

on the chart were ASCs, and their capacity was shown as 

follows: 

 Southwestern Women’s Surgery Center in Dallas 

was said to have the capacity for 5,720 abortions a 

year (110 per week); 

 Planned Parenthood Surgical Health Services Center in Dallas was said to have the capacity for 6,240 

abortions a year (120 per week); and 

—————— 

24See Appendix, infra. The Court apparently brushes off this evidence as “outside the record,” ante, at 35, but it was filed with this 

Court by the same petitioners in litigation closely related to this case. 

And “we may properly take judicial notice of the record in that litigation between the same parties who are now before us.” Shuttlesworth 

v. Birmingham, 394 U. S. 147, 157 (1969); see also, e.g., United States 

v. Pink, 315 U. S. 203, 216 (1942); Freshman v. Atkins, 269 U. S. 121, 

124 (1925). 25The chart lists the 36 abortion clinics apparently open at the time 

of trial, and identifies the “Capacity after Privileges Requirement” for

27 of those clinics. Of those 27 clinics, 24 were owned by plaintiffs in

the first case, and 3 (Coastal Birth Control Center, Hill Top Women’s

Reproductive Health Services, and Harlingen Reproductive Services)

were owned by nonparties. It is unclear why petitioners’ chart did not 

include capacity figures for the other nine clinics (also owned by 

non-parties). Under Federal Rule of Civil Procedure 30(b)(6), petitioners should have been able to depose representatives of those clinics to

determine those clinics’ capacity and their physicians’ access to admitting privileges. In the present case, petitioners in fact deposed at least

one such nonparty clinic owner, whose testimony revealed that he was 

able to comply with the admitting privileges requirement. See App.

1474 (testimony of El Paso abortion clinic owner, confirming that he 

possesses admitting privileges “at every hospital in El Paso” (filed

under seal)). The chart states that 14 of those clinics would not be able

to perform abortions if the requirement took effect, and that another 

clinic would have “severely limited” capacity. See Appendix, infra. 
 

 

34 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

 Planned Parenthood Center for Choice in Houston 

was said to have the capacity for 9,100 abortions a 

year (175 per week).26 See Appendix, infra. 

The average capacity of these three ASCs was 7,020 

abortions per year.27 If the nine ASCs now performing 

abortions in Texas have the same average capacity, they

have a total capacity of 63,180. Add in the assumed capacity for two other clinics that are operating pursuant to the 

judgment of the Fifth Circuit (over 3,100 abortions per

year),28 and the total for the State is 66,280 abortions per 

year. That is comparable to the 68,298 total abortions

performed in Texas in 2012, the year before H. B. 2 was

enacted, App. 236,29 and well in excess of the abortion rate 

—————— 

26The Court nakedly asserts that this clinic “does not represent most

facilities.” Ante, at 35. Given that in this case petitioners did not

introduce evidence on “most facilities,” I have no idea how the Court 

arrives at this conclusion. 27The Court chides me, ante, at 35, for omitting the Whole Woman’s

Health ASC in San Antonio from this average. As of the Abbott trial in 

2013, that ASC’s capacity was (allegedly) to be “severely limited” by the 

admitting privileges requirement. See Appendix, infra (listing “Capacity 

after Privileges Requirement”). But that facility came into compliance with that requirement a few months later, see Letter from J. 

Crepps to L. Cayce, Clerk of Court in Abbott (CA5, Jan. 3, 2014), so its 

precompliance capacity is irrelevant here. 28Petitioner Whole Woman’s Health performed over 14,000 abortions 

over 10 years in McAllen. App. 128. Petitioner Nova Health Systems

performed over 17,000 abortions over 10 years in El Paso. Id., at 129. 

(And as I explain at n. 33, infra, either Nova Health Systems or another abortion provider will be open in the El Paso area however this

case is decided.) 29This conclusion is consistent with public health statistics offered by

petitioners. These statistics suggest that ASCs have a much higher

capacity than other abortion facilities. In 2012, there were 14,361 

abortions performed by six surgical centers, meaning there were 2,394

abortions per center. See Brief for Petitioners 23; App. 236. In 2012, 

there were approximately 35 other abortion clinics operating in Texas, 

see id., at 228 (41 total clinics as of Nov. 1, 2012), which performed

53,937 abortions, id., at 236 (68,298 total minus 14,361 performed in 

surgical centers). On average, those other clinics each performed 
 

Cite as: 579 U. S. ____ (2016) 35 

ALITO, J., dissenting 

one would expect—59,070—if subtracting the apparent 

impact of the medication abortion restriction, see n. 21, 

supra. 

To be clear, I do not vouch for the accuracy of this calculation. It might be too high or too low. The important

point is that petitioners put on evidence of actual clinic

capacity in their earlier case, and there is no apparent

reason why they could not have done the same here. 

Indeed, the Court asserts that, after the admitting privileges requirement took effect, clinics “were not able to

accommodate increased demand,” ante, at 35, but petitioners’ own evidence suggested that the requirement had no 

effect on capacity, see n. 21, supra. On this point, like the

question of the reason for clinic closures, petitioners did 

not discharge their burden, and the District Court did not 

engage in the type of analysis that should have been conducted before enjoining an important state law. 

So much for capacity. The other30 potential obstacle to

abortion access is the distribution of facilities throughout 

the State. This might occur if the two challenged H. B. 2

requirements, by causing the closure of clinics in some

rural areas, led to a situation in which a “large fraction”31 

of women of reproductive age live too far away from any 

open clinic. Based on the Court’s holding in Planned 

Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, it 

appears that the need to travel up to 150 miles is not an

undue burden,32 and the evidence in this case shows that 

—————— 

53,937÷35=1,541 abortions per year. So surgical centers in 2012

performed 55% more abortions per facility (2,394 abortions) than the

average (1,541) for other clinics. 30The Court also gives weight to supposed reductions in “individualized attention, serious conversation, and emotional support” in its 

undue-burden analysis. Ante, at 36. But those “facts” are not in the 

record, so I have no way of addressing them. 31See n. 11, supra. 32The District Court in Casey found that 42% of Pennsylvania women

“must travel for at least one hour, and sometimes longer than three 
 

 

 

36 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

if the only clinics in the State were those that would have 

remained open if the judgment of the Fifth Circuit had not 

been enjoined, roughly 95% of the women of reproductive

age in the State would live within 150 miles of an open

facility (or lived outside that range before H. B. 2).33 

Because the record does not show why particular facilities

closed, the real figure may be even higher than 95%. 

We should decline to hold that these statistics justify 

the facial invalidation of the H. B. 2 requirements. The 

—————— 

hours, to obtain an abortion from the nearest provider.” 744 F. Supp. 

1323, 1352 (ED Pa. 1990), aff’d in part, rev’d in part, 947 F. 2d 682 

(CA3 1991), aff’d in part, rev’d in part, 505 U. S. 833 (1992). In that 

case, this Court recognized that the challenged 24-hour waiting period 

would require some women to make that trip twice, and yet upheld the

law regardless. See id., at 886–887. 33Petitioners’ expert testified that 82.5% of Texas women of reproductive age live within 150 miles of a Texas surgical center that provides

abortions. See App. 242 (930,000 women living more than 150 miles 

away), 244 (5,326,162 women total). The State’s expert further testified, without contradiction, that an additional 6.2% live within 150 

miles of the McAllen facility, and another 3.3% within 150 miles of an 

El Paso-area facility. Id., at 921–922. (If the Court did not award

statewide relief, I assume it would instead either conclude that the 

availability of abortion on the New Mexico side of the El Paso metropolitan area satisfies the Constitution, or it would award as-applied relief

allowing petitioner Nova Health Systems to remain open in El Paso.

Either way, the 3.3% figure would remain the same, because Nova’s 

clinic and the New Mexico facility are so close to each other. See id., at 

913, 916, 921 (only six women of reproductive age live within 150 miles 

of Nova’s clinic but not New Mexico clinic).) Together, these percentages add up to 92.0% of Texas women of reproductive age. 

Separately, the State’s expert also testified that 2.9% of women of

reproductive age lived more than 150 miles from an abortion clinic

before H. B. 2 took effect. Id., at 916. 

So, at most, H. B. 2 affects no more than (100%-2.9%)-92.0%=5.1% of

women of reproductive age. Also recall that many rural clinic closures

appear to have been caused by other developments—indeed, petitioners 

seemed to believe that themselves—and have certainly not been shown 

to be caused by the provisions challenged here. See supra, at 29, and 

n. 18. So the true impact is almost certainly smaller than 5.1%. 
 

Cite as: 579 U. S. ____ (2016) 37 

ALITO, J., dissenting 

possibility that the admitting privileges requirement 

might have caused a closure in Lubbock is no reason to 

issue a facial injunction exempting Houston clinics from 

that requirement. I do not dismiss the situation of those 

women who would no longer live within 150 miles of a

clinic as a result of H. B. 2. But under current doctrine 

such localized problems can be addressed by narrow asapplied challenges. 

IV 

Even if the Court were right to hold that res judicata

does not bar this suit and that H. B. 2 imposes an undue

burden on abortion access—it is, in fact, wrong on both

counts—it is still wrong to conclude that the admitting 

privileges and surgical center provisions must be enjoined 

in their entirety. H. B. 2 has an extraordinarily broad

severability clause that must be considered before enjoining any portion or application of the law. Both challenged

provisions should survive in substantial part if the Court 

faithfully applies that clause. Regrettably, it enjoins both

in full, heedless of the (controlling) intent of the state

legislature. Cf. Leavitt v. Jane L., 518 U. S. 137, 139 

(1996) (per curiam) (“Severability is of course a matter of

state law”). 

A 

Applying H. B. 2’s severability clause to the admitting 

privileges requirement is easy. Simply put, the requirement must be upheld in every city in which its application 

does not pose an undue burden. It surely does not pose

that burden anywhere in the eastern half of the State,

where most Texans live and where virtually no woman of

reproductive age lives more than 150 miles from an open 

clinic. See App. 242, 244 (petitioners’ expert testimony

that 82.5% of Texas women of reproductive age live within

150 miles of open clinics in Austin, Dallas, Fort Worth, 
 

38 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

Houston, and San Antonio). (Unfortunately, the Court 

does not address the State’s argument to this effect. See

Brief for Respondents 51.) And petitioners would need to

show that the requirement caused specific West Texas

clinics to close (but see supra, at 29, and n. 18) before they 

could be entitled to an injunction tailored to address those 

closures. 

B 

Applying severability to the surgical center requirement 

calls for the identification of the particular provisions of 

the ASC regulations that result in the imposition of an 

undue burden. These regulations are lengthy and detailed, and while compliance with some might be expensive, compliance with many others would not. And many 

serve important health and safety purposes. Thus, the 

surgical center requirements cannot be judged as a package. But the District Court nevertheless held that all the 

surgical center requirements are unconstitutional in all 

cases, and the Court sustains this holding on grounds that 

are hard to take seriously.

When the Texas Legislature passed H. B. 2, it left no

doubt about its intent on the question of severability. It 

included a provision mandating the greatest degree of

severability possible. The full provision is reproduced

below,34 but it is enough to note that under this provision 

—————— 

34The severability provision states: 

“(a) If some or all of the provisions of this Act are ever temporarily or

permanently restrained or enjoined by judicial order, all other provisions of Texas law regulating or restricting abortion shall be enforced

as though the restrained or enjoined provisions had not been adopted;

provided, however, that whenever the temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases

to have effect, the provisions shall have full force and effect. 

“(b) Mindful of Leavitt v. Jane L., 518 U. S. 137 (1996), in which in 

the context of determining the severability of a state statute regulating 

abortion the United States Supreme Court held that an explicit state­
 

 

Cite as: 579 U. S. ____ (2016) 39 

ALITO, J., dissenting 

“every provision, section, subsection, sentence, clause, 

phrase, or word in this Act, and every application of the 

provisions in this Act, are severable from each other.” 

H. B. 2, §10(b), App. to Pet. for Cert. 200a. And to drive 

home the point about the severability of applications of the

law, the provision adds: 

“If any application of any provision in this Act to any 

person, group of persons, or circumstances is found by

a court to be invalid, the remaining applications of

that provision to all other persons and circumstances 

shall be severed and may not be affected. All constitutionally valid applications of this Act shall be sev­

—————— 

ment of legislative intent is controlling, it is the intent of the legislature 

that every provision, section, subsection, sentence, clause, phrase, or

word in this Act, and every application of the provisions in this Act, are 

severable from each other. If any application of any provision in this

Act to any person, group of persons, or circumstances is found by a

court to be invalid, the remaining applications of that provision to all

other persons and circumstances shall be severed and may not be

affected. All constitutionally valid applications of this Act shall be

severed from any applications that a court finds to be invalid, leaving

the valid applications in force, because it is the legislature’s intent and 

priority that the valid applications be allowed to stand alone. Even if a 

reviewing court finds a provision of this Act to impose an undue burden

in a large or substantial fraction of relevant cases, the applications that

do not present an undue burden shall be severed from the remaining 

provisions and shall remain in force, and shall be treated as if the

legislature had enacted a statute limited to the persons, group of 

persons, or circumstances for which the statute’s application does not 

present an undue burden. The legislature further declares that it 

would have passed this Act, and each provision, section, subsection, 

sentence, clause, phrase, or word, and all constitutional applications of 

this Act, irrespective of the fact that any provision, section, subsection, 

sentence, clause, phrase, or word, or applications of this Act, were to be

declared unconstitutional or to represent an undue burden.

“(c) [omitted—applies to late-term abortion ban only] 

“(d) If any provision of this Act is found by any court to be unconstitutionally vague, then the applications of that provision that do not

present constitutional vagueness problems shall be severed and remain

in force.” H. B. 2, §10, App. to Pet. for Cert. 199a–201a. 
 

40 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

ered from any applications that a court finds to be invalid, leaving the valid applications in force, because 

it is the legislature’s intent and priority that the valid 

applications be allowed to stand alone.” Ibid. 

This provision indisputably requires that all surgical 

center regulations that are not themselves unconstitutional

be left standing. Requiring an abortion facility to comply with any provision of the regulations applicable to 

surgical centers is an “application of the provision” of H. B. 

2 that requires abortion clinics to meet surgical center

standards. Therefore, if some such applications are unconstitutional, the severability clause plainly requires that 

those applications be severed and that the rest be left 

intact. 

How can the Court possibly escape this painfully obvious conclusion? Its main argument is that it need not 

honor the severability provision because doing so would be

too burdensome. See ante, at 38. This is a remarkable 

argument.

Under the Supremacy Clause, federal courts may strike

down state laws that violate the Constitution or conflict 

with federal statutes, Art. VI, cl. 2, but in exercising this

power, federal courts must take great care. The power to

invalidate a state law implicates sensitive federal-state 

relations. Federal courts have no authority to carpetbomb state laws, knocking out provisions that are perfectly consistent with federal law, just because it would be

too much bother to separate them from unconstitutional 

provisions.

In any event, it should not have been hard in this case

for the District Court to separate any bad provisions from

the good. Petitioners should have identified the particular 

provisions that would entail what they regard as an undue

expense, and the District Court could have then concentrated its analysis on those provisions. In fact, petitioners 
Cite as: 579 U. S. ____ (2016) 41 

ALITO, J., dissenting 

did do this in their trial brief, Doc. 185, p. 8 in Lakey (Aug. 

12, 2014) (“It is the construction and nursing requirements that form the basis of Plaintiffs’ challenge”), but 

they changed their position once the District Court awarded 

blanket relief, see 790 F. 3d, at 582 (petitioners told the

Fifth Circuit that they “challenge H. B. 2 broadly, with no

effort whatsoever to parse out specific aspects of the ASC

requirement that they find onerous or otherwise infirm”). 

In its own review of the ASC requirement, in fact, the 

Court follows petitioners’ original playbook and focuses on 

the construction and nursing requirements as well. See 

ante, at 28–29 (detailed walkthrough of Tex. Admin. Code, 

tit. 25, §§135.15 (2016) (nursing), 135.52 (construction)). I 

do not see how it “would inflict enormous costs on both 

courts and litigants,” ante, at 38, to single out the ASC 

regulations that this Court and petitioners have both

targeted as the core of the challenge. 

By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue

burden. For example, surgical center patients must “be

treated with respect, consideration, and dignity.” Tex. 

Admin. Code, tit. 25, §135.5(a). That’s now enjoined. 

Patients may not be given misleading “advertising regarding the competence and/or capabilities of the organization.” §135.5(g). Enjoined. Centers must maintain fire 

alarm and emergency communications systems,

§§135.41(d), 135.42(e), and eliminate “[h]azards that

might lead to slipping, falling, electrical shock, burns, 

poisoning, or other trauma,” §135.10(b). Enjoined and

enjoined. When a center is being remodeled while still in

use, “[t]emporary sound barriers shall be provided where 

intense, prolonged construction noises will disturb patients or staff in the occupied portions of the building.”

§135.51(b)(3)(B)(vi). Enjoined. Centers must develop and 

enforce policies concerning teaching and publishing by

staff. §§135.16(a), (c). Enjoined. They must obtain in­
 

42 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

ALITO, J., dissenting 

formed consent before doing research on patients.

§135.17(e). Enjoined. And each center “shall develop, implement[,] and maintain an effective, ongoing, organizationwide, data driven patient safety program.” §135.27(b).

Also enjoined. These are but a few of the innocuous requirements that the Court invalidates with nary a wave of 

the hand. 

Any responsible application of the H. B. 2 severability 

provision would leave much of the law intact. At a minimum, both of the requirements challenged here should be

held constitutional as applied to clinics in any Texas city

that will have a surgical center providing abortions (i.e., 

those areas in which there cannot possibly have been an 

undue burden on abortion access). Moreover, as even the 

District Court found, the surgical center requirement is 

clearly constitutional as to new abortion facilities and 

facilities already licensed as surgical centers. Whole 

Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 676 (WD 

Tex. 2014). And we should uphold every application of 

every surgical center regulation that does not pose an 

undue burden—at the very least, all of the regulations as

to which petitioners have never made a specific complaint

supported by specific evidence. The Court’s wholesale 

refusal to engage in the required severability analysis

here revives the “antagonistic ‘canon of construction under 

which in cases involving abortion, a permissible reading of 

a statute is to be avoided at all costs.’” Gonzales, 550 

U. S., at 153–154 (quoting Stenberg v. Carhart, 530 U. S. 

914, 977 (2000) (KENNEDY, J., dissenting); some internal 

quotation marks omitted). 

If the Court is unwilling to undertake the careful severability analysis required, that is no reason to strike down 

all applications of the challenged provisions. The proper

course would be to remand to the lower courts for a remedy

tailored to the specific facts shown in this case, to “try to

limit the solution to the problem.” Ayotte v. Planned 
 

Cite as: 579 U. S. ____ (2016) 43 

ALITO, J., dissenting 

Parenthood of Northern New Eng., 546 U. S. 320, 328 

(2006). 

V 

When we decide cases on particularly controversial

issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done 

that here. 

I therefore respectfully dissent. 
 

ALITO, J., dissenting 

44 WHOLE WOMAN’S HEALTH v. HELLERSTEDT 

Appendix to opinion of ALITO, J. 

APPENDIX 

App. K to Emergency Application To Vacate Stay in O. T.

2013, No. 13A452, Plaintiffs’ Trial Exh. 46