* District Judge of the Western District of Texas, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 00-20037

_______________________________

WOMEN’S MEDICAL CENTER OF NORTHWEST HOUSTON; ROBERT P. KAMINSKY,

M.D., on behalf of themselves and the patients they serve; DENTON

HEALTH SERVICES FOR WOMEN; AUSTIN WOMEN’S HEALTH CENTER, P.A.;

LAMAR ROBINSON, M.D.; FRED W. HANSEN, M.D.; L. TAD DAVIS, M.D.;

MARY E. SMITH, M.D.,

Plaintiffs-Appellees,

v.

DR. CHARLES E. BELL, Acting Texas Commissioner of Health; JOHN

CORNYN, Texas Attorney General,

Defendants-Appellants.

_________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________

April 13, 2001

Before WIENER and STEWART, Circuit Judges, and SMITH, * District

Judge.

WIENER, Circuit Judge:

Plaintiffs-Appellees (“the plaintiffs”) filed suit to

challenge recent amendments to Texas law that for the first time

require them to license their medical offices as abortion

facilities. The district court entered a preliminary injunction

against enforcement of the amendments, concluding that they violate1 Texas Abortion Facility Reporting and Licensing Act, Tex.

Health & Safety Code §§ 245.001-245.022.

2 the plaintiffs’ equal protection rights. The court’s injunction

also prohibits enforcement of three companion regulations that were

found to be unconstitutionally vague. We reverse the district

court’s inju nction of enforcement of the amendments grounded in

equal protection, but affirm the court’s injunction pro hibiting

enforcement of the regulations grounded in unconstitutional

vagueness.

I.

FACTS AND PROCEEDINGS

The plaintiffs are Texas physicians who brought this action on

behalf of themselves and their patients pursuant to 42 U.S.C.

§ 1983. They challenge the constitutionality of 1999 amendments

that require them to comply with the Texas Abortion Facility

Reporting and Licensing Act, which dates to 1985. 1 The amendments

changed the threshold for facilities that mu st be licensed from

those “used primarily for the purpose of performing abortions” ——

that is, where at least 51 percent of patients treated in a

calendar year receive abortions

—— to those in which more than 300

abortions are performed in any twelve-month period. Facilities in

which fewer abortions are performed remain exempt from the

licensing requirements.

The record in this case reveals that as of 1999, Texas had

between 51 and 59 non-hospital abortion providers, comprising: (a)2 A fifth doctor, Mary E. Smith of Denton, also was a

plaintiff, but ceased providing abortions at her private office

while this appeal was pending and has been dismissed as a party

to the case.

3 31 licensed abortion facilities; (b) a single-digit “handful” of

physicians providing fewer than ten abortions per ye ar in their

offices; (c) seven physicians performing more than ten but fewer

than 300 abortions per year in their offices; and (d) twelve

physicians, or some 20 percent of the total, who for the first time

would be required to be licensed as a result of the a mendments

because each provides more than 300 abortions per year (the new

threshold) in their offices, even though in each of these offices

abortion patients constitute less than 51 percent of all patients

treated (the old threshold). Four of these twelve physicians are

the plaintiffs in this case. 2

To summarize briefly several of the principal requirements of

the amended Abortion Facility Reporting and Licensing Act and its

regulations, a licensed abortion facility must:

• Prominently post its license and provide each woman who

initially consults the facility with a written statem ent about a

toll-free telephone number main tained by the Texas Department of

Health, which patients can call for information about a facility’s

license status, inspection violations, and pen a lties or other

discipline imposed against it.

• Maintain a written Quality Assurance program, implemented by

a Quality Assurance committee of at least four members, including3 The regulations were revised in 1997, adding the

provisions on quality assurance and patients’ rights, among other

changes. See 25 Tex. Admin. Code. §§ 139.1-139.60.

4 Facilities must maintain a total of nine administrative,

nine clinical, and three additional written policies, covering at

least thirty different subjects. 25 Tex. Admin. Code § 139.41.

4 a physician and a nurse, who must meet at least quarterly. 3

• Develop a written staff orientation and training program and

written infection control policies and procedures. 4

• Be subject to annual and surprise on-site surveys by state

inspectors.

• Employ staff with specific qualifications, incl u ding a

physician and a registered nurse or licensed vocational nurse.

In addition, a physician applying for a license must provide

personal information, including his home address, Social Security

number, date of birth, driver’s license number, and Texas physician

license number. The initial licensing fee is $1,000, the first

annual fee is $1,500, and the annual renewal fee is $2,500. Under

the 1999 amendments, operation of an abortion facility without a

license is a Class A misdemeanor, punishable by a jail sentence of

up to one year and a fine of up to $4,000, or both. Civil and

administrative penalties of $100 to $2,500 per day also may be

assessed for violations of the statute and regulations.

The practices of the plaintiff physicians vary, but as a group

they administer their offices less formally than th e regulations

require. They insist that many of the administrative mandates in

the 1999 amend ments are unnecessary to their practices. Some5

plaintiffs testified that they will have to charge their abortion

patients as much as $100 more per procedure to cover the expenses

associated with meeting the licensing requirements. The plaintiffs

testified th at they believe their private-office setting offers

patients greater confidentiality, fewer confrontations with

protesters, and a more personalized, supportive atmosphere than do

abortion clinic settings. Some also objected to the rule that they

must prominently display their abortion facility licenses at their

offices, fea ring that will offend some obstetrical and male

patients and thereby damage their practices.

The only plaintiff who testified that he will stop performing

abortions in his private office alto gether rather than seek a

license is Dr. Fred H ansen, an obstetrician/gynecologist with a

private gynecology practice in Au stin who performs approximately

950 to 1,050 a bortions per year. Abortion is one of many

gynecological procedures Dr. Hans e n provides to his patients.

Nearly all of his abortion pati ents are referred to him by other

physicians, many for medically indicated abortions resulting from

profound fetal defects discovered in wanted pregnancies after the

fifteenth week. Dr. Hansen testified that he is the only physician

in Austin who provides abortions in a private office after the

fifteenth week of pregnancy. His staff consists of one part-time

and three full-time employees. Dr. Hansen expressed the belief

that if he were to seek licensing and comply with the continuing

requirements of licensing, patient care would suffer as a result of5 Any physician who executed an affidavit attesting that

the number of patients for whom he performed abortions

represented less than 51 percent of his patients during the

previous calendar year was exempt from the licensing

requirements.

6 his and his staff’s spending additional time on u nnecessary

administrative tasks.

E vidence heard by the district court regarding the

Legislature’s purpose in enacting the 1999 amendments reflects that

state Sen. Chris Harris filed a Senate bill that would have

required all physicians performing more than 10 abortions per year

to become licensed. Sen. Harris stated that he was motivated by

ongoing concerns about abortion safety, and by data that he

interpreted as showing that some physicians were performing large

numbers of abortions but escaping the licensing act through the 51

percent “loophole.” 5 Sen. Harris stated that he did not want to

limit abortion rights, but did want to protect the health and

safety of women receiving abortions.

Among those testifying in opposition to the b ill was Peggy

Romberg, executive director of the Texas Family Pla nning

Association, who stated that she opposed the bill’s 10-abortion

trigger. In response to questioning by Sen. Harris, she stated

that “my bottom ceiling would be about 300, of OB/GYN that provides

abortion services that woul d be essentially about one a working

day.” Ms. Romberg told Sen. Harris that the number 300 would be

“more acceptable” to the abortion rights community than setting the

threshold at ten, and later said she suggested the number 300 as a6 There is no official legislative history on the House

bill. The district court denied the plaintiffs’ motion to strike

the testimony of Sen. Harris and Rep. Van de Putte as

inadmissible subsequent legislative history. The court noted

that, in determining the legislative purpose in passing the

statute, it would rely primarily on the official legislative

history in the record and give lesser weight to the legislators’

testimony. The official legislative history includes a

transcript of a Senate Human Services Committee meeting in which

the 1999 amendments to the Abortion Facility Reporting and

Licensing Act were introduced as a Senate bill, and materials

documenting the 1997-98 ad hoc committee process that promulgated

the abortion licensing regulations found in 25 Tex. Admin. Code.

§§ 139.1-139.60.

7 Rep. Van de Putte testified as follows about her view on

setting the licensing threshold at 300 abortions per year:

7 “political compromise” with no medical, health, or safety basis.

Sen . Harris’s bill did not pass, b ut similar language

regulating physicia ns who perform 300 or more abortions per year

was added by Rep. Leticia V an de Putte to a lengthy House bill

dealing with general health department matters. That bill was

adopted by both chambers and took effect September 1, 1999.

Previously exempt physicians were not required to be licensed until

Jan. 1, 2000. Rep. Van de Putte, who characterizes herself as

“adamantly pro-choice,” testified that she discussed the number 300

with pro-choice advocates and heard no objections. 6 She sought “a

number that would not preclude acce ss for women in this state to

seek that procedure, but keeping in mind that we wanted to have as

our goal [the] health and safety of the women.” Rep. Van de Putte

also testified that she was influenced in supporting the bill by

twenty years of experience as a practicing pharmacist, during which

she counseled and dispensed medication to abortion patients. 7I rationalized that if a physician did one a day for

the number of working days, if you take 52 weeks out of

the year, and you know, you get five working days, that

would leave us with about 260 working days a year.

Take off maybe about ten for holidays, that would leave

you at 250. So averaging out even one a day would

leave you with 250. And I felt that with an adequate

buffer zone of an additional 50, would leave us with

300 so that a physician in their office, I felt, could

comply with that number of procedures being done and

giving adequate care to those women who seek that

procedure.

8 505 U.S. 833 (1992).

8 Following a two-day hearing, the district court g ranted the

plaintiffs’ motion for preliminary injunction barring the

defendants from enforcing the 1999 amen dments or the three

challenged regulations pending a full review of the case on the

merits. The court found that the plaintiffs had shown a

substantial likelihood of success with respect to their claims that

the amendments violate their equal protection rights and are

unconstitutionally vague, but not on the claim that the amendments

violate the due process rights of the plaintiffs’ patients.

More specifically, the cour t found that, under P lanned

Parenthoo d of Southeastern Pennsylvania v. Casey

, 8 the plaintiffs

had not shown a substantial likelihood of success on the merits of

their claim that the 1999 amendments impose an undue bu rden on a

woman’s right to abortion. The court concluded that the 1999

amendments were not passed for an improper purpose, and that there

was no evidence of any legislative intent to place obstacles in the

paths of women seeking abortion s. The court also found that the9 The court concluded that the doctors did not plead an

equal protection claim on behalf of their patients.

9 benefits sought by the state in enacting the amendments justified

the increased costs that might be borne by physicians or patients,

or by Dr. Hansen’s likely decision to stop performing abortions in

his office rather than become licensed. The court concluded that

the amendments do not have the purpose or effect of cre ating an

undue burden on the right of Texas women to seek an abortion, and

therefore do no t unconstitutionally deny them due process . The

court thus denied an injunction grounded in substantive due process

because the plaintiffs had failed to show, on behalf of their

patients, a substantial likelihood of success on their Fourteenth

Amendment due process claim.

The court reached the opposite conclusion on the plaintiffs’

equal protection claim. The court applied rational basis review to

the physicians’ assertion that they had been denied equal

protection of the law. 9 These plaintiffs challenged two

legislative classifications: (1) physicians who perform abortions

in their offices and those who perform other, comparable surgical

procedures in theirs, and (2) physicians who perform more than 300

abortions per year in their offices and those who p erform 300 or

fewer per year in theirs.

As to the first classification, the court noted that Texas’s

abortion licensing regulatory scheme, which has been in place since

1985, is not being challenged in this case and must be presumed to10 Citing Harris County, Tex. v. CarMax Auto Superstores

Inc. , 177 F.3d 306, 321 (5th Cir. 1999).

11 Citing Romer v. Evans , 517 U.S. 620, 632 (1996).

10 be constitutional. 10 Recognizing that the Legislature reasonably

c ould conclude that women receiving abortions in “high-volume”

physician offices need more prot ection than patients undergoing

other surgical procedures in such offices, the court held that the

classification distinguishing physicians who perform abortions in

their offices from those who perform different but comparable

surgical procedures in theirs bears a rational relationship to a

legitimate state end. 11

Turning to the second classification, which distinguishes

office practitioners who perform more than 300 abortions per year

from those who perform 300 or fewer per year, the court concluded

that indeed t he plaintiffs had shown a substantial likelihood of

success on their equal protection claim. The court found that the

record demonstrates no rational c onnection between 300 abortions

and the risks associated with high-volume abortion clinics; neither

does it contain any evidence that the twelve physicians who would

be newly licensed under the 1999 amendments ever gave substandard

care to any abortion patient or had any problems with patient

infections. The court wrote that “the evidence amply supports the

proposition that the cutoff would have to be significantly higher

than 300 to be held rational.”

Considering testimony that abortion clinics might provide as12 Q uoting Gregory v. Ashcroft , 501 U.S. 452, 473 (1991).

13 25 Tex. Admin. Code. §§ 139.1-139.60. The challenged

provisions were added to the abortion licensing regulations

during a 1997 revision that became effective Aug. 13, 1998. They

11 many as 35 abortions each working day, wrote the court, one

abortion per day cannot be regarded rationally as a heavy workload,

so that “[t]his ‘one a day’ rationale cannot be reconciled with the

State’s argument that some physicians may be providing so many

abortions that they are unable to ade quately take care of

patients.” Furthermore, noted the court, a physician in a general

gynecological practice who sees twenty patients and performs only

one abortion per day would devote just five percent of his practice

to abortion. The court held:

It cannot be rational to conclude that a ph ysician

performing an average of one abortion a day as part of a

general gynecological practice is thereby subjecting his

patients to the “high volume” risks cited by the state.

The Court must conclude that “the facts on which the

classification is based could not reasonably be conceived

to be true by the decisionmaker.” 12

Based on its determination that the legislative distinction between

physicians’ offices in which more than and fewer than 300 abortions

are performed each year bears no rational relationship to a

legitimate state end, the district court concluded that the

plaintiffs had shown a substantial likelihood that they would

succeed on the merits of their equal protection claim.

T he court reached the same conclusion regarding the

plaintiffs’ claim that three provisions of the Texas abortion

licensing regulations are unconstitutionally vague. 13 Thosewere challenged by plaintiffs because they would first become

applicable to them under the 1999 amendments to the licensing

statute.

12 provisions, found in 25 Tex. Admin. Code, are: (1) § 139.51(1),

requiring a physician licensed as an abortion provider to “ensure

that all patients

. . . a re cared for in a manner and in an

environment that enhances each patient’s dignity and respect in

full recognition of her individuality”; (2) § 139.51(2), requiring

physicians to ensure that each patient will “receive care in a

manner that maintains and enhances her self-esteem and self-worth”;

and (3) § 139.2(43), which defines the standard of “quality” care

as “[t]he degree to which care meets or exceeds the expectations

set by the patient.”

The court credited testimony from a defense witness who helped

draft the provision that there is no objective way to measure

whether a physician has “enhanced” a patient’s dignity and selfesteem, and also that, as abortion is almost always a negative

experience for the patient, it is unrealistic to hold physicians to

those requirements under threat of civil and criminal penalties.

In addition, the court found the definition of “quality” to be

vague bec ause it is couched in terms of the “expectations set by

the patient,” meaning the required standard of care would differ

from patient to patient. The court found all three challenged

sections of the regulations unconstitutionally vague, and concluded

that the plaintiffs had establ ished a substantial likelihood of

success on their vagueness challenges to the provisions of the14 Hoover v. Morales , 164 F.3d 221, 224 (5th Cir. 1998);

Valley v. Rapides Parish Sch. Bd. , 118 F.3d 1047, 1051 (5th Cir.

1997); Sunbeam Prods., Inc. v. West Bend Co. , 123 F.3d 246, 250

(5th Cir. 1997).

15 Sugar Busters LLC v. Brennan , 177 F.3d 258, 265 (5th

Cir. 1999); Hoover v. Morales , 164 F.3d at 224. The four

elements of a preliminary injunction are (1) substantial

likelihood of success on the merits; (2) substantial threat that

plaintiff will suffer irreparable injury; (3) injury outweighs

any harm the injunction might cause the defendant; and (4)

injunction is in the public interest. Hoover , 164 F.3d at 224.

13 regulations in question, infringing the plaintiffs’ rights to due

process.

Finally, the court found that the threat of irreparable injury

to the plaintiffs was substantial, that it outweighed any harm that

the defendants might experience from a preliminary injunction, and

that an injunction would not disserve the public interest. The

defendants timely appealed the district court’s interlocutory

ruling pursuant to 28 U.S.C. § 1292(a)(1).

II.

ANALYSIS

A. Standard of Review

A district court’s grant of a preliminary inj unction is

reviewed for abuse of discretion. 14 Each of the four elements

required to support a preliminary injunction, including substantial

likelihood of success on the merits, presents a mixed question of

fact and law. Findings of fact are reviewed only for clear error;

legal conclusions are subject t o de novo review. 15 Although the

ultimate decision whether to grant or deny a preliminary injunction16 Hoover , 164 F.3d at 224.

17 Campbell v. St. Tammany’s Sch. Bd. , 206 F.3d 482, 484

(5th Cir. 2000), reh’g denied , 231 F.3d 937 (5th Cir. 2000),

petition for cert. filed , 69 U.S.L.W. 3514 (U.S. Jan. 24, 2001)

(No. 00-1194); United States v. Monroe , 178 F.3d 304, 308 (5th

Cir. 1999), cert. denied , 528 U.S. 1010 (1999).

18 Plaintiffs-Appellees do not appeal the district court’s

finding that the 1999 amendments place no undue burden on Texas

women seeking an abortion.

19 See, e.g.

, Romer , 517 U.S. at 632-33; City of Cleburne,

Tex. v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 446 (1985);

Dep’t of Agric. v. Moreno , 413 U.S. 528, 533 (1973).

14 is reviewed only for abuse of discretion, a decision grounded in

erroneous legal principles is reviewed de novo

. 16 The standard of

review is n o different for our consideration of the district

court’s determination that three regulations are unconstitutionally

vague

. 17

B. The 300-Abortion Threshold

The record contains no evidence of anti-abortion animus, and

no evidence that the 1999 amendments were passed in an attempt to

limit abortion access or for any othe r improper purpose. 1 8

Therefore, the district court correctly chose to evaluate the 1999

amendments as health and safety regulations subject to rational

basis review. 19 On d e novo review, however, we di sagree with the

district court’s conclusion that the plaintiffs are likely to

succeed on the merits of their equal protection claim.

All that is required to survive rational basis review is a

showing that the classification under examination conceivably could

be related to a legitimate governmental purpose. The court found20 See Gregory v. Ashcroft , 501 U.S. 452, 473 (1991)

(noting that a law setting 70 as the retirement age for state

judges “is founded on a generalization. It is far from true that

all judges suffer significant deterioration in performance at age

70. It is probably not true that most do. It may not be true at

all. But a State does not violate the Equal Protection clause

merely because the classifications made by its laws are

imperfect.”) (internal quotation omitted); see also City of New

Orleans v. Dukes , 427 U.S. 297, 298 (1976) (upholding ordinance

banning all pushcart vendors from the Vieux Carre, but exempting

those who had operated for eight or more years).

21 222 F.3d 157 (4th Cir. 2000), cert. denied , 2001 WL

178202, 69 U.S.L.W. 3382 (U.S. Feb. 26, 2001) (No. 00-798).

15 —— correctly, we believe

—— that the 1999 amendments have the

legitimate state purpose of protecting the health of Texas women.

The court’s inquiry , therefore, is properly limited to whether a

classification based on the number of abortions performed at a

facility rationally serves that general purpose. Here, the answer

clearly is “yes.” Because without violating the Constitution, the

State could have required all abortion providers to be licensed, it

rationally could set an annual 300-abortion “floor” as an

accommodatio n to private physicians who provide a number of

abortions that the government considers to be too few to require

licensing. Whether the court agrees with the accuracy of the line

of dema rcation drawn by the Legislature to distinguish the

classification is of no great moment. 20

Our holding today is consonant with the Fourth Circuit’s

recent decision in Greenville Women’s Clinic v. Bryant

, a case

closely analogous to this one. 21 G reenville c oncerns South

Carolina’s 1995 amendment of its abortion clinic licensing statute.22 Id. at 159-60.

23 Id. at 174 (citing Mass. Bd. of Ret. v. Murgia , 427 U.S.

307, 314 (1976) (upholding mandatory police retirement age of

50)).

24 Id.

16 That stat ute, which previously applied only to clinics in which

s econd-trimester abortions are performed, was expanded by this

amendment to cover every facility in which five or more firsttrimester ab ortions are performed in one month. 2 2 The district

court issued a preliminary injunction and, after a benc h trial,

held in part that the South Carolina amendment violated the equal

protection rights of the plaintiff physicians. The Fourth Circuit

reversed, writing:

When it is recognized that the State interest is in

regulating those facilities that are in the business of

providing abortions, drawing the line at those performing

five abortions per month is rational. While anyone could

say that it is just as rational to draw the line at ten

abortions pe r month or three abortions per month, this

type of line-drawing is typically a legislative function

and is presumed valid. Indeed, line-drawing of this type

is not only typical of legislation, it is necessary. 23

The Greenville court gave examples of several types of legislation

that draw similar lines, including the application of the Americans

With Disabilities Act to companies with 15 or more employees but

not to those with 14 or fewer employees; and a state’s grant of

drivers’ licenses to persons age sixteen or older but not to those

under sixteen. 24 The Fourth Circuit concluded:

In this case, South Carolina elected to regulat e the

business of providing abortions and determined that five

per month would distinguish the abortion clinic from the25 Id. at 175 (emphasis added).

26 The court wrote: “[I]t is not rational to assume that a

physician providing 300 abortions per year will expose his

patients to ‘high volume’ risks similar to those of a typical

abortion clinic. . . . This ‘one a day’ rationale cannot be

reconciled with the state’s argument that some physicians may be

providing so many abortions that they are unable to adequately

take care of patients.”

17 facility performing abortions incidental to another

medical practice. The selection of this number is

reasonably related to the State’s legitimate interest in

promoting and protecting the health of women vi siting

abortion clinics, and therefore the actual placement of

the line is not a decision that the courts may

second-guess

. 25

In the instant case, the district court mistakenly focused on

whether the office of a physician who provides more than 300

abortions per y ear resembles the “high-volume” abortion clinics

previously subject to licensure. 26 The appropriate question is not

confined to whether the limit meets the legislative purpose of

regulating high-volume, risky, or overburdened abortion facilities;

rather, the 1999 amendments are con stitutional if they serve a ny

appropriate s tate goal. The amendments require Texas physicians

who perform abortions in their offices to comply with licensing

standards that cover issues such as staffing, infection control,

and inspection by state officials. Such issues do bear a rational

relationship to the legitimate state interest of protecting patient

health and welfar e. Through its Legislature, the State acted

within its power in choosing to exempt physicians whom it deems to

perform such a limited number of abortions as posing a lesser

hazard to health. The determination made here by state officials27 McDonald v. Bd. of Election Comm’rs of Chi. , 394 U.S.

802, 809 (1969).

28 Romer , 517 U.S. at 632.

18 cannot be said to be “based on reasons totally unrelated to the

pursuit of [their] goal.” 27

In Romer v. Evans

, the Supreme Court held that the search for

the link between a classification and its objective “marks the

limits of our own authority. In the ordinary case, a law will be

sustained if it can be said to advance a legitimate government

interest, even if the law seems unwise or works to the disadvantage

of a particular group, or if the rationale for it seems tenuous.” 28

The link that we identify today is the one between the

classification (doctors who annually perform a number of abortions

that lawmakers co nsider to be sufficiently high to justify

regulating) a nd the objective (protecting the safety of abortion

patients). In the absence of the heightened bar of a fundamental

right or suspect class, or any evidence of animus, the district

court exceeded its authority by reviewing the propriety of the cutoff number selected by the Legisl ature. Deciding the optimal

number of abortio ns to trigger the licensing requirement is a

legislative function, and any redress for an improvidently chosen

number must come through the democratic process, no t the courts.

The district court erroneously concluded as a matter of law that

the 199 9 amendments are substantially likely to fail rationality

review, and thus abused its discretion by grantin g a preliminary29 Smith v. Goguen , 415 U.S. 566, 572 n.8 (1974) (quoting

Connally v. Gen. Constr. Co. , 269 U.S. 385, 391 (1926)).

30 Grayned v. City of Rockford , 408 U.S. 104, 108-09

(1972).

31 Margaret S. v. Edwards , 794 F.2d 994, 999 (5th Cir.

1986) (quoting Ferguson v. Estelle , 718 F.2d 730, 735 (5th Cir.

1983)).

19 injunction grounded in the subject numerical classification.

C. Vagueness

The Fourteenth Amendment’s guarantee of Due Process proscribes

laws so vague that persons “of common intelligence must necessarily

guess at [their] meanin g and differ as to [their] application.” 2 9

A law is unconstitutionally vague if it (1) fails to provide those

targeted by the statute a reasonable opportunity to kno w what

conduct is prohibited, or (2) is so indefinite that it allows

arbitrary and discriminatory enforcement. 30 We have held that “[a]

state’s legislative enactment is void for vagueness under the due

process clause of the fourteenth amendment if it ‘is inherently

standardless, enforceable only on the exercise of an unlimited, and

hence arbitrary, discretion vested in the state.’” 31

Again, the provisions of three regulations found in 25 Tex.

Admin. Code that the district court held to be unconstitutionally

vague are: (1) § 139.51(1), requiring a physician licensed as an

abortion provider to “ensure that all patients

. . . are cared for

in a manner and in an environment that enhances each patient’s

digni ty and respect in full recognition of her individuality”;

(2) § 139.51(2), requiring physicians to ensure that each patient32 See 25 T.A.C. § 139.33(c); Tex. Health & Safety Code

§ 245.014.

33 United States v. Clinical Leasing Serv., Inc. , 925 F.2d

120, 122 (5th Cir. 1991) (quoting Kolender v. Lawson , 461 U.S.

352, 357 (1983)).

20 will “receive care in a manner that maintains and enhances her

self-esteem and self-worth”; and (3) § 139.2(43), which defines the

standard of “quality” care as “[t]he degree to which care meets or

exceeds the expectations set by the patient.” None of these

provision s carries a criminal penalty for its violation alone,

although operating an abortion facility without a license is a

C lass A misdemeanor. 32 The regulations do, however, carry

potentially significant civil and administrative penalties,

including fines and license revocation, which can be characterized

as quasi-criminal. A quasi-criminal statute must define its terms

“‘with sufficient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.’” 33

We agree with the district court that each of these three

regulations is unconstitutionally vague on its face because it

impermissibly subjects physicians to sanctions based not on their

own objective behavior, but on the subjective viewpoints of others.

Each of these three provisions measures compliance by the

subjective expectations or requirements of an individual patient as

to the enhancement of her dignity or self-esteem. Even a state’s

witness who had helped draft the provisions conceded that there are34 Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc. , 455 U.S. 489, 503 (1982).

35 See Colautti v. Franklin , 439 U.S. 379, 391 (1979).

36 See Hill v. Colorado , 530 U.S. 703, 120 S. Ct. 2480,

2498 (2000) (noting that “speculation about possible vagueness in

hypothetical situations not before the Court will not support a

facial attack on a statute when it is surely valid ‘in the vast

majority of its intended applications’”) (quoting United States

v. Raines , 362 U.S. 17, 23 (1960)).

21 no objective criteria for assessin g compliance with the

“enhancement” provisions, undermining the efficacy of the

administrative process from which licensees may seek clarification.

These provisions fail to “afford[ ] fair warning of what is

proscribed.” 34

It is no solace that, as the defendants note, no abortion

facility has yet been subjected to civil or criminal penalties for

violating these regulatory provisions. Especially in the context

of abortion, a constitutionally protec ted right that has been a

traditional target of hostility, standardless laws and regulations

such as these open the door to potentially arbitrary and

discriminatory enforcement. 35 We hold that these regulations cannot

be validly used in their intended applications, and that therefore

the plaintiffs have established a substantial likelihood of success

on their vagueness challenge to the subject provisions. 36 We also

affirm the district cour t’s conclusion that the plaintiffs have

satisfied the other three preliminary injunction requirements as to37 We further note that the defendants do not challenge the

severability of the three enjoined provisions. See, e.g.

, Leavitt v. Jane L. , 518 U.S. 137, 139 (1996).

22 these regulations. 37

III.

CONCLUSION

We acknowledge the concern expressed by the physicians who are

the plaintiffs in this case, particular ly Dr. Hansen, that their

abortion patients have the opportunity to obtain personal care in

a confidential setting, and without paying for unnecessary

administrative costs. Nevertheless, our role in evaluating the

plaintiffs’ substantial likelihood of success o n their equal

protection claim is limited to reviewing whether the annu al 300-

abortion threshold set by the state for subject ing abortion

facilities to licensing bears some ration al relationship to the

state interest in protecting the health and welfare of Texas

abortion patients. We conclude that it does. Any scrutiny beyond

that is necessarily lef t to the Legislature, not the courts.

Consequently, we must vacate the preliminary injunction prohibiting

enforcement of the Texas abortion licensing statute, Tex. Health &

Safety Code §§ 245.001-245.023 as amended in 1999.

We agree with the district court, however, that the plaintiffs

have shown a substantial likelihood of success on their vagueness

challenge to th ree contested provisions of the licensing

regulations. We therefore affirm the preliminary injunction

granted by the district court with regard to those regulations,23

ordering that Texas Commissioner of Health William R. Archer III

and Texas Attorney General John Cornyn, in their official

capacities, are enjoined from enforcing 25 Tex. Admin. Code

§§ 139.2(43), 139.51(1), and 139.51(2) pending a full trial on the

merits of this case.

AFFIRMED in part; REVERSED in part; and REMANDED to the district

court for continued proceedings consistent with this opinion.