NOTICE: This opinion is subject to
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															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 con-cluded 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
inter-preted 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 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
“ surgical-center 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 ofthe
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,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.
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, deposi-tions, 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 thewake
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 fa-cilities
and a potential eighth will exist in Texas.” 46
F. Supp. 3d, at 680; App. 182–183.

															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 admitting-privileges
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
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
surgical 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
thesurgical-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. 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
admitting-privileges 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 legitimate 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 surgical-center 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 surgical-center
requirement “are operating at full capacity or that they cannot
increase capacity.” Ibid. For these and related reasons, the Court of
Appeals reversed the District Court’s holding that the
admitting-privileges 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 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
admitting-privileges 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 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 exe-cution 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 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”).
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
doesnot bar a new challenge to the constitutionality of the
admitting-privileges requirement. New Hampshire v. Maine , 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 argu-ments 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 rem-edy for petitioners’
as-applied claims.

															B Claim Preclusion—Surgical-Center
Requirement The Court of Appeals also held that claim
preclusion barred petitioners from contending that the
surgical-center 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 chal-lenge 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.” 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 surgical-center
requirement. H. B. 2, §11(a), App. to Pet. forCert. 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.

															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.

															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 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 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 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 fee-for-service California Medicaid Program finding that the
incidence of complications was 2.1%, the incidence of 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. 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 admitting-privileges 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 Soci-ety 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 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.

															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
factled 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 Juryin 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 layerof
regulation would have affected that behavior. Deter-mined
wrongdoers, already ignoring existing stat-utes 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 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 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
surgical-center standards does not benefit patients and is not
necessary. The District Court found that “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. 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 facil-ity. 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 mortal-ity 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
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 fin-ishes; 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 implementing 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 thesurgical-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 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 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 admitting-privileges
requirement means that hiring more physi-cians 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
admitting-privileges 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 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 admitting-privileges 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 theadmitting-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 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
surgical-center 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
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 –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”
(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 spe-cific
surgical-center regulations that unduly burden the pro-vision of
abortions, while leaving in place other surgical-center regulations
(for example, the reader could pickany 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 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 uphelda surgical-center requirement as
applied to second-trimester 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.

															*  *  *

															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. 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 ambulatory-surgical-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-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. 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
apply-ing 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 common
practice of invoking a given level of scrutiny—here, the
abortion-specific undue burden standard—while applying a different
standard of review entirely. What-ever 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 predict-ability 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 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 –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 vicari-ously asserted.” Alderman v. United States , 394 U. S. 165, 174
(1969) ( Fourth Amendment rights are purely per-sonal); 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 –197 (1976)
(striking down sex-based age restrictions on purchasing beer).

															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 plural-ity conceded that the
traditional criteria for an exception tothe 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 ]

															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 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.

															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 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: When-ever
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 observed 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 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 undue-burden 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 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 laws reflecting “a desire to harm
a politically unpopular group”); Buckley v. Valeo ,
424 U. S. 1, 25 (1976) ( per cu-riam ) (applying
“ ‘closest scrutiny’ ” to campaign-financecontribution
limits). Casey ’s undue-burden test added yet another
right-specific test on the spectrum betweenrational-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. 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 less-preferred
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
interests 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 –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 –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 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 contraception 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 constitu-tional 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. Notes 1 Compare, 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 –138 (1976); Poelker v. Doe , 432 U. S. 519, 519 (1977)
( per curiam ); Beal v. Doe , 432 U. S. 438
–442 (1977); Maher v. Roe , 432 U. S. 464, 467
(1977) (women seeking abortions have capably asserted their own
rights, as plaintiffs). 2 See 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). 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 unenforce-able.
Petitioners had a fair opportunity to make their case, 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 facilities
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 –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 judgment. See Montana , supra , at 153; Commissioner v. Sunnen , 333
U. S. 591, 597 (1948) ; Cromwell v. County of
Sac , 94 U. S. 351 –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.

															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. 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
“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 admit-ting 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 ] 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 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 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 sim-ply 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”);
Restatement 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 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
different legal theory. Restatement (Second) of Judgments §24,
Illustration 10.

															In the second case, a father who lost a prior
child cus-tody case brings a second action challenging his wife’s
fit-ness 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 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 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 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 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, 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 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.

															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 “one-two
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
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 providemeager 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.

															“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 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 sim-ply 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 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. Petitioners
failed to provide any evidence of the actual capac-ity 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 first-degree 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 in-tended to put
them out of business.[ 13 ]

															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 relies[ 15 ] 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 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 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 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 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 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 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

															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 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 other[ 30 ] 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 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 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 as-applied 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,
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 “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 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.” Ibid. This provision indisputably requires that all
surgical center regulations that are not themselves
unconstitutional be left standing. Requiring an abortion facility
to com-ply 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 carpet-bomb state laws, knocking out
provisions that are per-fectly 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 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 informed consent before doing
research on patients. §135.17(e). Enjoined. And each center “shall
develop, im-plement[,] and maintain an effective, ongoing,
organization-wide, 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 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.

															APPENDIX

															App. K to Emergency Application To Vacate Stay
in O. T. 2013, No. 13A452, Plaintiffs’ Trial Exh. 46 Notes 1 See, 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). 2 Brief 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, wide-spread
reduction of services caused by the admitting privileges
requirement would produce a shortfall in the capacity of
providers to serve all of the women seeking abortions” (emphasis
added)). 3 Even 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. 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. 5 See 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)
). 6 The 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. 7 See 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”). 8 As 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. 9 The 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 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. 10 See
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). 11 The
proper standard for facial challenges is unsettled in the abortion
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. 12 Report 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). 13 See
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 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. 14 Rebuttal Decl. of Dr. Joseph E.
Potter, Doc. 76–2, p. 12, ¶32, in Abbott (WD Tex., Oct. 18,
2013) (Potter Rebuttal Decl.). 15 See
App. 234, 237, 253. 16 Complaint 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. 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. 19 See
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. 20 This
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). 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 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)). 22 The
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 . 23 See
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. 24 See
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)
. 25 The
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 nonparties). 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 . 26 The
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. 27 The
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 compli-ance 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. 28 Petitioner 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 an-other abortion
provider will be open in the El Paso area however this case is
decided.) 29 This
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 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. 30 The
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. 31 See
n. 11, supra . 32 The
District Court in Casey found that 42% of Pennsylvania women
“must travel for at least one hour, and sometimes longer than three
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. 33 Petitioners’ 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. 34 The
severability provision states: