Before OWEN, Chief Judge, and JONES, SMITH, STEWART, DENNIS, ELROD, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, ENGELHARDT, and WILSON, Circuit Judges.* JENNIFER WALKER ELROD and DON R. WILLETT, Circuit Judges, joined by OWEN, Chief Judge, and JONES, SMITH, HAYNES, HO, ENGELHARDT, and WILSON, Circuit Judges: ** We must decide whether the district court erred in permanently enjoining Texas’s Senate Bill 8 (SB8), which prohibits a particular type of dilation and evacuation (D&E) abortion method. SB8 refers to the prohibited method as “live dismemberment” because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions. But viewing SB8 through a binary framework—that either D&Es can be done only by live dismemberment or else women cannot receive abortions in the second trimester—is to accept a false dichotomy. Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use. In permanently enjoining SB8, the district court committed numerous, reversible legal and factual errors: applying the wrong test to assess SB8, disregarding and misreading the Supreme Court’s precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart, and bungling the large-fraction analysis. Accordingly, we VACATE the district court’s permanent injunction. Moreover, remanding to the district court would be futile here because the record permits only one conclusion. The plaintiffs have failed to carry their heavy burden of proving that SB8 would impose an undue burden on a large fraction of women. We REVERSE and RENDER. I. Dilation and evacuation is an abortion method commonly used after the beginning of the 15th week. It begins with the dilation phase, which is lengthy and can take two or even three days to complete. First, the woman is given the option of conscious sedation and then is administered medication for dilation. If medication cannot alone cause sufficient dilation, the doctor injects a local anesthetic directly into the woman’s cervix. After the cervix has been numbed, the doctor inserts osmotic dilators into the cervical canal, which absorb liquid and expand to allow the removal of the fetus and placenta. Starting around 18 weeks gestation, this expansion process normally happens overnight, requiring the woman to come back the next day for the rest of the abortion procedure. Once sufficient dilation has occurred, the second phase begins and the doctor evacuates (removes) the fetus. Doctors use three main evacuation methods: (1) the suction method alone to terminate, separate, and remove the fetus; (2) suction and forceps together to terminate, separate, and remove the fetus; or (3) various fetal-death techniques (e.g., digoxin injections) to terminate the fetus before using forceps (sometimes combined with suction) to separate and remove the fetus. Unlike the dilation phase, evacuation is relatively brief and can be done in “a few minutes.” In 2017, the Texas legislature enacted SB8, which allows any abortion accomplished by dilation and suction alone (the first method) or accomplished by fetal death caused without forceps followed by evacuation with forceps (the third method), but regulates the second method by prohibiting a doctor from using forceps to separate the fetal tissue and thereby terminate the fetus via live dismemberment.[1] SB8 states: A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.[2] A “dismemberment abortion” is defined by the legislature as: an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child’s body to cut or rip the piece from the body.[3] A “medical emergency” is defined as a: life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.[4] When a medical emergency arises, the doctor may proceed straight to live dismemberment with forceps.[5] SB8 does not regulate the dilation phase of the abortion or any other evacuation method. SB8 does not ban the use of suction during any abortion procedure. SB8 does not prohibit a doctor from having forceps “on hand” to use after fetal death has occurred or to use if a medical emergency arises.[6] What SB8 does do is prohibit one particular evacuation method in one particular set of circumstances—live dismemberment by forceps when a medical emergency does not exist. Thus, doctors may comply with SB8 by using only suction to achieve fetal death and remove the fetus—or, at later gestational ages, using either suction or a digoxin injection to cause fetal death before forcep-dismemberment and removal.[7] The plaintiffs here, six abortion clinics and five individual doctors who provide abortions, brought this facial challenge against SB8 in federal court. They allege that SB8 imposes an undue burden on women seeking abortions in the second trimester of pregnancy. The defendants are various Texas law enforcement officials. Texas argues that SB8 does not impose an undue burden on a large fraction of women in the relevant circumstances because there are safe and available alternatives for causing fetal death without forceps. The district court granted a temporary restraining order preventing SB8′s enforcement, followed by a five-day bench trial. The district court subsequently ruled that SB8 is facially unconstitutional and entered a permanent injunction. Texas appealed. A panel of our court held the case in abeyance pending the Supreme Court’s decision in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020). Once the June Medical opinion was issued, we ordered supplemental briefing from the parties on the effect, if any, of June Medical on this appeal. Texas moved for a stay of the district court’s injunction pending appeal. A two-member majority of the panel denied the motion with Judge Willett in dissent. See Whole Woman’s Health v. Paxton, 972 F.3d 649 (5th Cir. 2020). The panel subsequently issued its opinion on the merits, ruling that SB8 is unconstitutional under Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), with Judge Willett in dissent again. See Whole Woman’s Health v. Paxton, 978 F.3d 896 (5th Cir.), vacated and reh’g en banc granted, 978 F.3d 974 (5th Cir. 2020). A majority of the members of our court voted to take the case en banc. II. A. We review the district court’s permanent injunction for abuse of discretion. Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016). The district court abuses its discretion if it “(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction, (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.” Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 790 (5th Cir. 1999) (alteration omitted) (quoting Peaches Ent. Corp. v. Ent. Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995)). We review questions of fact for clear error and legal conclusions de novo. Scott, 826 F.3d at 211. A clear error has occurred when we are “left with the definite and firm conviction that a mistake has been committed.” June Medical, 140 S. Ct. at 2141 (Roberts, C.J., concurring) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). If “a district court’s findings rest on an erroneous view of the law, they may be set aside on that basis.” Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); see also Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014) (“When, as here, a court’s factual finding ‘rest[s] on an erroneous view of the law’, its factual finding does not bind the appellate court.” (quoting Swint, 456 U.S. at 287)); Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (holding that appellate courts’ power to correct extends to “finding[s] of fact that [are] predicated on a misunderstanding of the governing rule of law” (quoting Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 501 (1984))). And “when the record permits only one resolution of the factual issue after the correct law is applied, remand is unnecessary.” Aransas Project, 775 F.3d at 658 (citing Swint, 456 U.S. at 292); see also Swint, 456 U.S. at 292 (“[W]here findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue.”). B. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court repudiated lower courts’ post-Roe v. Wade practice of invalidating abortion regulations that “in no real sense deprived women of the ultimate decision” to have an abortion. 505 U.S. 833, 875 (1992). Casey established three principles: (1) the woman has a “right . . . to choose to have an abortion before viability . . . without undue interference from the State”; (2) the State has the “power to restrict abortions after fetal viability”; and (3) the State has “legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.” Id. at 846. In Casey, the Court set out the familiar undue-burden test, stating that “[o]nly where state regulation imposes an undue burden on a woman’s ability to make” the decision to have an abortion does the State violate the Due Process Clause. Id. at 874. “A finding of an undue burden is a shorthand for the conclusion that a state regulation 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 (emphasis added). The Casey Court further explained that “[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id. at 874. When a plaintiff claims that an abortion law is facially invalid—as opposed to unconstitutional as applied to her—we ask whether the law would impose a substantial obstacle on a “large fraction” of women in the relevant circumstances. Id. at 895.[8] We first determine the denominator of the fraction by identifying the number of women “for whom the law is a restriction, not the [number of women] for whom the law is irrelevant.” Id. at 894. After determining that proper denominator, courts should deduce the numerator—the number of women for whom the abortion regulation would impose an “undue burden.” Id. at 895. The plaintiff bears the burden of proving a large fraction—and that burden is “heavy.” Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007). III. The district court concluded that SB8 amounts to a complete ban on “standard D&E” abortions. This conclusion rested on four errors—each of which independently compels reversal. First, the district court applied an incorrect legal test to assess SB8. Second, the district court disregarded Casey, Gonzales, and Hellerstedt by dismissing the State’s interests and committing myriad other legal errors. Third, the district court failed to properly evaluate SB8′s burdens under Casey and, in doing so, improperly concluded that the only safe second-trimester abortion procedure is live dismemberment by forceps. Finally, the district court misapplied the large-fraction test by incorrectly determining the number of women upon whom SB8 would place an undue burden (the numerator) and incorrectly determining the number of women to whom SB8 would apply (the denominator). In sum, the district court’s opinion rested on bad law, bad facts, and bad math. We address each error in turn. A. 1. For decades, Casey‘s undue-burden test was the governing standard for assessing abortion regulations. Five years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court stated that Casey‘s undue-burden test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016). This language in Hellerstedt came to be recognized by some as a “balancing test.” Id. at 2324 (Thomas, J., dissenting).[9] Last summer in June Medical—issued after the district court enjoined SB8—the Supreme Court again tackled the meaning of “undue burden.” 140 S. Ct. at 2112 (plurality opinion). The four-Justice plurality considered the law’s benefits together with its burdens. Id. Chief Justice Roberts wrote separately, concurring in the judgment but disavowing any balancing test. Id. at 2135–37 (Roberts, C.J., concurring). The Chief Justice explained that the proper standard is the straightforward undue-burden test and that neither Casey nor Hellerstedt established a balancing test. “In neither [Hellerstedt nor Casey] was there [a] call for consideration of a regulation’s benefits.” Id. at 2139. The Chief Justice noted that the Court in Hellerstedt explicitly stated that it “appl[ied] the undue burden standard of Casey” and that it needed “ [n]othing more” than the burdens analysis to hold the challenged law unconstitutional. Id. at 2138–39. As the Chief Justice put it, Hellerstedt, properly understood, was simply an iteration of Casey‘s undue-burden standard, which “require[s] a substantial obstacle before striking down an abortion regulation.” Id. at 2139. “Laws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonably related’ to a legitimate state interest.” Id. at 2135 (quoting Casey, 505 U.S. at 878). The only relevance of an abortion regulation’s asserted “benefits” is “in considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’” Id. at 2138 (first quoting Casey, 505 U.S. at 878 (plurality opinion); and then quoting id. at 882 (joint opinion)). The Chief Justice opined in June Medical that trying to weigh the State’s interest in protecting fetal life is impossible—and therefore a balancing test is impossible—because how do you “assign weight to such imponderable values?” Id. at 2136. Agreeing with all but two pages of the plurality’s opinion, Chief Justice Roberts said that the inquiry should have ended after the plurality analyzed the law’s burdens on abortion access. 2. Under the Marks rule, the Chief Justice’s concurrence is June Medical‘s controlling opinion. In Marks v. United States, the Supreme Court instructed that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977) (internal quotation marks omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). We have clarified that this principle “is only workable where there is some common denominator upon which all of the justices of the majority can agree.” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (internal quotation marks omitted) (quoting United States v. Eckford, 910 F.2d 216, 219 n.8 (5th Cir. 1990)). In June Medical, the common denominator is the undue-burden (substantial-obstacle) analysis, which took up more than 80% of the plurality’s reasoning. Indeed, the Chief Justice concluded that, “for the reasons the plurality explain[ed],” the law “imposed a substantial obstacle” to abortion access. June Medical, 140 S. Ct. at 2139, 2141 (Roberts, C.J., concurring). The only part the Chief Justice disagreed with was the plurality’s two-page benefits analysis. So the Chief Justice’s test is a narrower version (only burdens) of the plurality’s test (benefits and burdens). Accordingly, the Chief Justice’s concurrence controls and we do not balance the benefits and burdens in assessing an abortion regulation. We agree with the Eighth and Sixth Circuits in holding that the Chief Justice’s concurrence controls. See Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir.) (“Chief Justice Robert[s]‘s vote was necessary in holding unconstitutional Louisiana’s admitting-privileges law, so his separate opinion is controlling.”), reh’g and reh’g en banc denied, No. 4985329 (2020);[10] EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 437 (6th Cir.) (“The Chief Justice’s opinion in June Medical Services concurs in the judgment on the narrowest grounds, so it is the ‘controlling opinion’ from that decision.” (quoting Marks, 430 U.S. at 193)), reh’g en banc denied, No. 104-1 (6th Cir. Dec. 31, 2020).[11] These circuits held that the Chief Justice’s concurrence “clarified that the undue burden standard is not a balancing test.” EMW Women’s Surgical Ctr., P.S.C., 978 F.3d at 437;[12] see also Hopkins, 968 F.3d at 915 (“According to Chief Justice Roberts, the appropriate inquiry under Casey is . . . ‘not whether benefits outweighed burdens’. . . . [Benefits are] ‘consider[ed] [only in] the threshold requirement that the State [has] a “legitimate purpose” and that the law be “reasonably related to that goal.”‘” (first quoting June Medical, 140 S. Ct. at 2137–38; then quoting Casey, 505 U.S. at 878)). Under the Chief Justice’s controlling concurrence in June Medical, the district court erred by balancing SB8′s benefits against its burdens. That is reason alone to reject the district court’s findings. See Swint, 456 U.S. at 287 (“[A] district court’s findings [that] rest on an erroneous view of the law . . . may be set aside on that basis.”). But, as explained below, the district court erred under all of the Supreme Court’s relevant precedents—Casey, Hellerstedt, Gonzales, and June Medical. B. 1. Despite Casey‘s clear language, repeated in Gonzales, that the State has legitimate and substantial interests in fetal life throughout pregnancy, the district court dismissed the State’s interests as deserving “only marginal consideration” and “having [] primary application once the fetus is capable of living outside the womb.” What is more, the State asserted several interests in passing SB8 in addition to respect for fetal life—benefits to patients both physically and psychologically, medical and societal ethics, and informed consent for women seeking abortions. The Supreme Court accepted all of these interests in Gonzales. 550 U.S. at 158, 163. Yet the district court disregarded all of them here, contravening both Casey and Gonzales. See Casey, 505 U.S. at 846; Gonzales, 550 U.S. at 145–46. First, the State asserted its interest in the health and safety of women seeking abortions. The State presented evidence showing that women seeking abortions benefit physically and psychologically when fetal death occurs before dismemberment. For example, the Planned Parenthood Federation of America Manual of Medical Standards and Guidelines tells patients that a study showed that “more than 90 percent of women . . . prefer[] knowing that fetal death occurred before the abortion surgery began.” The American Institute of Ultrasound and Medicine agrees and has also found that doctors have a similar preference and believe that inducing fetal death can help with emotional difficulties for the patient. Casey noted that “most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision.” 505 U.S. at 882. Beyond psychological benefits, terminating the fetus before dismembering it makes the abortion physically easier for the mother. As the Supreme Court noted in Gonzales: “Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’s body will soften and its removal will be easier.” 550 U.S. at 136. Second, the State asserted its interest in providing a greater degree of dignity in a soon-to-be-aborted fetus’s death. The State argues that, by requiring doctors to choose alternatives to a brutal abortion procedure, SB8 evinces the State’s “profound respect for the life within the woman.” Id. at 157. Dismemberment D&Es are self-evidently gruesome. It has long been illegal to kill capital prisoners by dismemberment. See In re Kemmler, 136 U.S. 436, 447 (1890). It is also illegal to dismember living animals. Tex. Penal Code § 42.092. The State urges that SB8 would simply extend the same protection to fetuses.[13] In its opinion, the district court dismissed the State’s interest in respecting fetal life with the comment that “[a]n abortion always results in the death of the fetus.” The district court also noted that the State’s interest “does not add weight to tip the balance in the State’s favor.” The district court’s analysis cannot be reconciled with the Supreme Court’s instruction in Gonzales: The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. . . . Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. 550 U.S. at 157–58 (emphases added). Third, the State asserted its interest in promoting societal and medical ethics. “There can be no doubt the government ‘has an interest in protecting the integrity and ethics of the medical profession.’” Id. at 157 (quoting Washington v. Glucksberg, 521 U.S. 702, 731 (1997)). SB8′s provisions are supported by general principles of medical ethics, which require accounting for the harms to and dignity of both the mother and the fetus. Finally, the State asserted its interest in ensuring that women give informed consent to abortions. The State contends that SB8 by its very nature furthers this important interest. Although SB8′s constitutionality does not depend on whether it has an informed-consent requirement, the law nevertheless promotes informed consent even without technically requiring that abortion providers use more detailed consent forms. In Gonzales, the Supreme Court upheld the Partial-Birth Abortion Ban Act despite the fact that the law did not include an informed-consent requirement because: It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. Gonzales, 550 U.S. at 159–60 (emphasis added). “It is . . . precisely [a] lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.” Id. at 159. “The State has an interest in ensuring so grave a choice is well informed.” Id. What was true in Gonzales is true here. Women who receive live-dismemberment D&Es are not being told what is going to happen to the fetus. In this case, the plaintiffs’ consent forms do not explain in “clear and precise terms” what a live-dismemberment abortion entails. Id. (quoting Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436, 466 n.22 (S.D.N.Y. 2004)). For example, Plaintiff Southwestern’s form tells the patient that “the pregnancy tissue will be removed during the procedure” and does not explain that the fetus’s body parts—arms, legs, ribs, skull, and everything else—will be ripped apart and pulled out piece by piece. Plaintiff Alamo’s consent form states that the doctor will “empt[y] the uterus either by vacuum aspiration or evacuation (manual removal of the fetus by forceps).” Plaintiff Whole Woman’s Health’s form states: “The physician will use . . . instruments such as forceps to remove the pregnancy from the uterus . . . in multiple fragments.” The district court cast aside all of these interests—even though each was recognized as legitimate and substantial in Gonzales and even though a “central premise of [Casey] was that the Court’s precedents after Roe had ‘undervalue[d] the State’s interest in potential life.’” Gonzales, 550 U.S. at 157 (quoting Casey, 505 U.S. at 873). 2. In addition to dismissing all of the State’s interests, the district court contravened the Supreme Court’s precedents in several other ways. First, the district court disregarded Roe by deeming the abortion right “absolute.” “[W]e do not agree” that “the woman’s right is absolute.” Roe v. Wade, 410 U.S. 113, 153 (1973). Of course, no constitutional rights, even those expressly enshrined in the Bill of Rights, are absolute. Second, the district court’s faulty framework led it to place the burden of proof on the wrong party and turn the State’s legislative power on its head. It did so by holding that SB8 was unconstitutional because live dismemberment is a common abortion method in the second trimester. This was exactly backwards. Since Casey, we have recognized that abortion doctors do not get to set their own rules. They are not permitted to self-legislate or self-regulate simply by making an abortion method “common.” Abortion doctors do not have “unfettered choice[s].” Gonzales, 550 U.S. at 163. Indeed, not even the woman—the patient—gets “to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Roe, 410 U.S. at 153. To the contrary, when the State enacts laws reasonably related to a legitimate interest, abortion doctors must find “different and less shocking methods to abort the fetus . . . thereby accommodating legislative demand.” Gonzales, 550 U.S. at 160. Third, the district court incorrectly defined “substantial obstacle.” Casey, 505 U.S. at 877. “Substantial” is defined as “of considerable importance, size, or worth.” Substantial, New Oxford Am. Dictionary 1736 (3d ed. 2010); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002) (“‘[S]ubstantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’”). The definition of “substantial” is consistent with the purpose of Casey‘s substantial-obstacle test: to establish a relatively high bar for striking down laws—especially in facial challenges— that regulate abortions. See also Gonzales, 550 U.S. at 156, 167 (explaining that a facial-challenge plaintiff bears a “heavy burden” of proving that a law would impose a “substantial obstacle”). And yet the district court construed “substantial” to mean “no more and no less than ‘of substance.’” This construction would yield essentially all abortion regulations unconstitutional and cannot be harmonized with the Supreme Court’s precedent. “[N]ot every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.” Casey, 505 U.S. at 873. In sum, the district court committed numerous legal errors and contravened Casey, Gonzales, and Hellerstedt by balancing SB8′s benefits against its burdens; diminishing the State’s compelling, numerous, and evidence-supported interests in preventing live-dismemberment abortions; granting the right to abortion an “absolute” status; placing the burden of proof on the wrong party; and erroneously defining “substantial” in “substantial obstacle.” These legal errors undermine the deference that we would normally owe the district court’s factual findings. See Thornburg, 478 U.S. at 79 (holding that appellate courts can correct errors, “including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law” (quotation and citations omitted)). C. We now turn to the district court’s analysis of SB8′s burdens and its attendant factual findings. Because the district court’s myriad and fundamental legal errors evinced “a misunderstanding of the governing rule of law,” Bose Corp., 466 U.S. at 501, its factual “findings may be set aside on that basis,” Swint, 456 U.S. at 287. See also Aransas Project, 775 F.3d at 658 (“When, as here, a court’s factual finding ‘rest[s] on an erroneous view of the law’, its factual finding does not bind the appellate court.” (quoting Swint, 456 U.S. at 287)); Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 (5th Cir. 2001) (“Although the ultimate decision whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion, a decision grounded in erroneous legal principles is reviewed de novo.”). We therefore owe no deference to the district court’s factual findings. But, as demonstrated below, even if we were to consider the district court’s factual findings under a clear-error standard, they fail to demonstrate an “undue burden” on the protected right. The district court disregarded and distorted the record to hold that SB8 would result in a complete ban on D&E abortions, in large part due to its erroneous definition of “substantial obstacle.” The district court first assumed, as a matter of law before even alluding to anything in the record, that requiring fetal death before live dismemberment by forceps would be “banning the standard D&E procedure.” The district court read Gonzales to describe the “standard D&E” as the “procedure performed before fetal demise.” This was error. In Gonzales, the Supreme Court described the typical D&E, and within that description noted that “[s]ome doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid.” 550 U.S. at 136. The Court also pointed out that “[o]ther doctors refrain” from causing fetal death because they believe it provides no medical benefit. Id. After making these statements, the Court proceeded to describe partial-birth abortions—”a variation of this standard D & E.” Id. In other words, the Court’s description of the “standard D&E” included the option of fetal death before live dismemberment. The district court here misread Gonzales and thereby incorrectly concluded that there was only one kind of “standard D&E.” More broadly, the district court failed to sufficiently appreciate the direct applicability of Gonzales to the facts and many of the legal issues in this case. Gonzales‘s facts are extremely similar to the situation presented here. In Gonzales, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act and vacated two permanent injunctions of it. 550 U.S. at 133, 168. The Act proscribed “intact” dilation and extraction abortions, during which the fetus is removed in one—as opposed to, as here, multiple—piece(s).[14] Id. at 136–37. The Court concluded that “the medical uncertainty over whether the Act’s prohibition create[d] significant health risks provide[d] a sufficient basis to conclude . . . that the Act d[id] not impose an undue burden.” Id. at 163. The Court noted that Congress was legitimately concerned “with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion” and that the Act furthered the State’s legitimate and substantial interests in promoting ethics in the medical profession. Id. at 157. Moreover, the Act furthered the State’s interest in promoting “respect for life” by prohibiting procedures that are “laden with the power to devalue human life.” Id. at 158. Another “consideration[]” that supported the Court’s conclusion that the Act did not impose an undue burden was that “ alternatives” to the prohibited procedure were available. Id. at 164. The district court was not at liberty to deviate from the teachings of Gonzales, and neither are we. Errors also pervaded the district court’s analysis of the alternatives to live dismemberment. The district court found that requiring fetal death before live dismemberment was an undue burden for “all women seeking a second-trimester abortion at 15 weeks” and beyond. Its bases for this sweeping conclusion were that the alternative methods would delay a woman’s abortion, which, according to the court, was sufficient by itself to create an undue burden, and that the alternative methods were unsafe and ineffective.[15] So, according to the district court, even if SB8 is not an explicit ban, it would operate as a functional ban on second-trimester abortions. Contrary to the district court’s holding, the record shows that performing a D&E that complies with SB8, using either suction or digoxin, is safe, effective, and commonplace.[16] Suction Suction is a relatively simple technique. The woman is dilated enough to allow the placement of the “suction catheter” into the woman’s uterus. The suction then removes the amniotic fluid and fetus. Relevant to this case, the record describes three different ways suction can be used: (1) as a stand-alone method to cause fetal death and remove the entire fetus; (2) as a fetal-death technique to be followed by forceps for complete removal of the fetus; and (3) as a complement to forceps during live-dismemberment abortions to ensure that all amniotic fluid and pieces of the fetus have been removed. The first two of these methods are allowed by SB8 because SB8 is violated only when a fetus is killed by dismemberment with forceps. See Tex. Health & Safety Code § 171.151. There was substantial trial testimony about suction. According to the record, some doctors use suction as a stand-alone method up to 17 weeks, while others begin using alternative methods, like digoxin or live dismemberment, at an earlier point.[17] Plaintiffs’ expert, Dr. Amna Dermish, the Regional Medical Director for Plaintiff Planned Parenthood of Greater Texas, testified that she could “guarantee” compliance with SB8 in the “vast majority of cases” through 16 weeks, 6 days using suction alone to cause fetal death and complete the procedure. The State’s expert, Dr. Chireau, reviewed over 100 studies to offer her opinion that suction alone is sufficient to complete abortions through 16 weeks, 6 days. Another plaintiffs’ expert, Dr. Mark Nichols, a Medical Director for Planned Parenthood, testified that he has used suction to cause fetal death and complete an abortion through 15 weeks, 6 days. Plaintiff Dr. Robin Wallace, a Family Physician for Plaintiff Southwestern Women’s Surgery Center, testified that some doctors rely on suction through 16 weeks, 6 days. Dr. Edward Aquino, who provides abortions at Plaintiff Alamo’s San Antonio location, testified that the increased size of suction cannulas in recent years has allowed doctors to more commonly use suction as a stand-alone method. The district court’s only reference to suction was in a footnote, which stated that “before 15 weeks,” doctors do not usually use forceps because “the fetus and all other in utero materials will pass through a dilated cervix using only suction.” That suction is commonly used “before 15 weeks” says nothing about whether it can also be used safely and effectively after 15 weeks. Indeed, according to the plaintiffs and their own witnesses, this safe and common abortion procedure can be used to comply with SB8 up to almost 17 weeks. In 2015, 1,520 of the 3,150 abortions (48%) performed in Texas during weeks 15–22 occurred in weeks 15 and 16. The testimony of the plaintiffs themselves, their experts, and their doctors that suction can be used to comply with SB8 in many abortions during weeks 15 and 16 casts serious doubt on the plaintiffs’ efforts to carry their heavy burden of proving an undue burden on a large fraction of women. As we show below, adding the second alternative to live dismemberment—digoxin—removes any doubt that plaintiffs have failed to carry their burden. Digoxin The district court found that using digoxin to cause fetal death is unsafe, ineffective, and would delay a woman’s abortion procedure. The district court found that digoxin use before 18 weeks would be experimental. Many of the district court’s digoxin findings are contradicted by the plaintiffs’ own evidence and practices; others are simply unsupported by the record. Safety and Risk Digoxin has long been recognized as a common method of causing fetal death during an abortion. Two decades ago, in Stenberg, the Supreme Court noted that “[s]ome physicians use . . . digoxin to induce fetal demise prior to a late D & E (after 20 weeks), to facilitate evacuation.” Stenberg v. Carhart, 530 U.S. 914, 925 (2000) (quoting Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1104 (D. Neb. 1998)).[18] Seven years later, in Gonzales, the Supreme Court again acknowledged that “[s]ome doctors, especially later in the second trimester, may kill the fetus [using digoxin] a day or two before performing” the D&E. 550 U.S. at 136. In fact, the Court in Gonzales found that “an injection that kills the fetus” allows a doctor to perform the D&E without violating the Partial-Birth Abortion Ban Act. Id. at 164. The use of digoxin to cause fetal death before a D&E is hardly a novel phenomenon. The plaintiffs here know this because they have used and continue to use digoxin. In 2007, one month after the Supreme Court described digoxin as a “safe alternative” fetal-death method in Gonzales, the nation’s largest abortion provider, Planned Parenthood Federation of America, mandated that all of its affiliates use digoxin to cause fetal death before most surgical abortions at or above 18 weeks. Plaintiff Alamo is so sure that digoxin is safe that it requires digoxin’s use to cause fetal death in abortions after 18 weeks. Plaintiff Southwestern requires digoxin beginning at 20 weeks. Plaintiff Planned Parenthood of Greater Texas required the use of digoxin starting at 18 weeks. During the district court’s five-day bench trial, every doctor who testified had used digoxin to cause fetal death except one, and he works with other doctors who have used it. Plaintiff Planned Parenthood of Greater Texas’s consent form lists some of the “risks and side effects” of digoxin (like extramural delivery and pain), then tells patients that “there are no published reports of serious problems from using digoxin before abortion.” The form also assures patients that “[s]ome clinicians also believe that using digoxin makes it easier to do the abortion. Studies have shown that it is safe to use digoxin for this purpose.” Despite arguing in this case that digoxin provides no health benefits to the woman, Alamo’s consent form also assures patients that “the injection [of digoxin] . . . help[s] the woman’s body prepare for the abortion process” and that “the abortion process is made easier and safer by injecting the fetus” with digoxin. Even with all of this evidence in the plaintiffs’ own documents, the district court found that digoxin presents “significant health risks.”[19] This holding contradicted the State’s and the plaintiffs’ evidence. The district court also found that the “pain and invasiveness” of digoxin was one reason that its use was “a substantial obstacle” to a woman’s abortion right. This finding ignored the record evidence that patients undergoing D&E are given the option of sedation even when digoxin is not administered. And Plaintiff Dr. Wallace admitted that, when she performs an abortion involving digoxin, she injects a local numbing anesthetic before injecting the digoxin. Plaintiff Planned Parenthood of Greater Texas tells its patients that any pain from the digoxin injection will “go away quickly.” Efficacy When digoxin is used, its success rate is between 90 and 100%. Plaintiffs Southwestern and Alamo describe digoxin failures as “unusual.” Plaintiff Dr. Wallace testified that digoxin is 98% successful. Plaintiffs’ expert Dr. Dermish testified that digoxin is 95% successful. Another expert testified that several studies have shown either 0% failure rates or 99% effectiveness rates. Plaintiff Southwestern’s “Consent for Digoxin Injection” form states in unequivocal terms that digoxin failing to cause fetal death “is uncommon and may or may not delay the expected completion time of your abortion procedure.” Dr. Chireau testified extensively about myriad studies that found digoxin safe and effective. One study found digoxin “safe and effective” with a 100% success rate for intra-fetal injections in a study with 107 abortions performed in weeks 17–24. Another study showed a 98% success rate with digoxin for 1,600 abortions performed in weeks 18–22. What is more, the plaintiffs admit that if digoxin does not cause fetal death after one attempt, it can be injected again.[20] Plaintiff Alamo’s digoxin consent form tells patients: “If fetal death has not been induced [on the first attempt], a second injection of Digoxin can be administered at the physician’s discretion.” Plaintiff Southwestern tells its patients that digoxin failure is “unusual” and that a “second injection may be administered” if the first fails. In ruling for the plaintiffs on digoxin’s efficacy, the district court ignored the plaintiffs’ own extensive documentation that digoxin is highly effective. Delay The district court’s holding as to the delay digoxin would cause was both factually and legally incorrect. The record does not support the district court’s factual finding that digoxin’s use would cause a delay for all women seeking what “otherwise is a one-day standard D&E procedure.” The district court found that a woman “undergoing a digoxin injection would be required to make an additional trip to the clinic 24 hours before her appointment for the standard D&E procedure.” The district court assumed that for women receiving a digoxin injection, that injection would happen a day after the State’s mandatory 24-hour waiting period and a day before the one-day D&E. This finding is refuted in several ways by the plaintiffs’ documents. First, many D&E abortions are not one-day procedures. The plaintiffs admit that starting at 18 weeks, doctors use laminaria to achieve the necessary dilation. “Because laminaria expand gradually, patients usually have them inserted and return the next day to complete the procedure.” So, according to the plaintiffs, the “standard D&E” is a two-day procedure starting at 18 weeks. Their documents also say that the D&E can become a two-day procedure as early as 16 weeks, 6 days. At trial, one of the plaintiffs’ doctors also noted that later in the second trimester, the dilation process can take up to two days such that the D&E procedure is not completed until the third day. Second, digoxin works within several hours, and it can be administered at the same time or close to the beginning of the dilation process. Thus, it is not true that using digoxin would add another day to every woman’s one-day D&E abortion. Even so, the district court also legally erred by concluding that a one-day delay is sufficient, by itself, to create an undue burden. The Supreme Court has approved regulations embodied in 24-hour waiting periods for all women and parental-consent and judicial-bypass laws covering minors that, by their nature, may entail many days (and even weeks) before an abortion is finally approved. See Casey, 505 U.S. at 885–86 (holding that Pennsylvania’s 24-hour waiting period, even if it caused “a delay of much more than a day,” was not an undue burden); June Medical, 140 S. Ct. at 2136–37 (Roberts, C.J., concurring) (explaining that Casey held that Pennsylvania’s 24-hour waiting period and parental-consent and doctor-notification requirements did not create substantial obstacles even though they risked delays, increased costs, and “had little if any benefit”); see also Tex. Fam. Code Ann. §§ 33.003, 33.004 (requiring trial and appellate courts to rule on a minor’s application for judicial bypass within five business days of the initial request or notice of appeal). If these procedures are not constitutionally infirm because of the delays involved, then—even assuming that the district court was right on the facts of delay—adding a one-day delay to assure a less brutal pregnancy termination and vindicate the State’s interest in human dignity is not an undue burden. Before 18 Weeks As for the beginning of week 15 up through 17 weeks, 6 days, the district court held that administering a digoxin injection during that period would be “arguably experimental” and weighed that against the State. Under Gonzales, this was yet another legal error made by the district court. In Gonzales, the Supreme Court confronted a record with conflicting testimony about the safety of intact D&E abortions and the alternatives. See 550 U.S. at 161–62. The question became, then, whether the Partial-Birth Abortion Ban Act was constitutional in light of that medical uncertainty. Id. at 163. The answer was a resounding yes: “The Court’s precedents instruct that the Act can survive this facial attack. [S]tate and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Id. (emphasis added). Indeed, “medical uncertainty” about whether the Act’s requirements “create[d] significant health risks provide[d] a sufficient basis to conclude” that the law there did not impose an undue burden. Id. at 164 (emphasis added). Gonzales was not the first time that the Court emphasized legislatures’ right to regulate in areas “fraught with medical and scientific uncertainties.” Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997) (quoting Johnson v. United States, 463 U.S. 354, 370 (1983)). “Legislative options must be especially broad” in this context and “courts should be cautious not to rewrite legislation.” Id. (emphasis added) (quoting Johnson, 463 U.S. at 370); see also Marshall v. United States, 414 U.S. 417, 427 (1974) (“[L]egislative options must be especially broad” in areas “fraught with medical and scientific uncertainties.”). In his June Medical concurrence, the Chief Justice reaffirmed courts’ obligation to give legislatures broad deference in the context of scientific or medical uncertainty—as taught by both Casey and Gonzales. June Medical, 140 S. Ct. at 2136 (Roberts, C.J., concurring) (“[W]e have explained that the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with Casey.’” (quoting Gonzales, 550 U.S. at 163)). Judges are simply ill-suited to make such decisions. “Attempting to do so would be like ‘judging whether a particular line is longer than a particular rock is heavy.’” Id. (quoting Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment)). Staying in our judicial lane accords with our broader duty to recognize and respect the institutional competency of legislatures.[21] Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Cf. Hendricks, 521 U.S. at 360 n.3. The Court specifically addressed this in Gonzales: A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives. Gonzales, 550 U.S. at 166–67. This case is even easier than Gonzales because the plaintiffs here did not contradict the State’s evidence about digoxin’s use before 18 weeks, much less show that its use presents “significant health risks.” Id. at 164. Dr. Chireau testified about a study that noted Planned Parenthood of Los Angeles’s mandatory use of digoxin for all second-trimester abortions (weeks 13–26).[22] Dr. David Berry, a maternal-fetal medicine specialist in Austin, testified that he knows of doctors who have administered digoxin before 18 weeks. The plaintiffs do not refute this evidence; they just blame the State (the party without the burden of proof) for not producing more evidence. In sum, in making its findings about digoxin, the district court failed to apprehend that the plaintiffs’ own extensive use of digoxin, notices and consent forms, and written minimization of risks not only conflict with their testimony in this case, but also certainly raise serious questions about the debatability of the actual risk of using digoxin to cause fetal death. The plaintiffs have long used digoxin to ensure that they do not violate the Partial-Birth Abortion Ban Act. Surely, no reasonable abortion provider would subject women to “significant” health risks from digoxin just to avoid their own federal liability. See Gonzales, 550 U.S. at 164. Because there are safe, medically recognized alternatives to live-dismemberment-by-forceps D&E (suction and digoxin), and because women seeking a D&E abortion are not significantly affected by a non-forceps fetal-death requirement, the district court’s undue-burden analysis is incorrect as a matter of law. SB8 falls comfortably within the orbit of Casey/Gonzales as a regulation that respects the important state and societal interests involved in proscribing a brutal procedure, yet does not pose a substantial obstacle to women seeking abortions in the relevant circumstances. D. The district court’s final flaw was its large-fraction analysis. In this facial challenge, it is the plaintiffs who bear the “heavy burden” of showing that SB8 would be unconstitutional in a “large fraction of relevant cases.” Gonzales, 550 U.S. at 167–68. The numerator is the number of women for whom the law is an undue burden. And the denominator is the number of women in the relevant circumstances—i.e., the women for whom the law “is an actual rather than an irrelevant restriction.” Hellerstedt, 136 S. Ct. at 2320. Because the district court concluded that SB8 was a complete ban on the standard D&E, it found that the fraction of burdened women was 1/1. The district court botched both numbers in this fraction. First, the district court erred by finding that the denominator included only women with fetuses at the gestational age of 15–20 weeks.[23] In fact, the correct denominator, as all parties to the case acknowledge, is all women with fetuses in the gestational age of 15–22 weeks. The relevant denominator is therefore larger by two weeks gestation than the district court stated. The extra duration is important because, as discussed above, the plaintiffs already use (and even require) digoxin after 18 weeks.[24] Second, the numerator is not equal to the denominator, which is what the district court implicitly found by holding that SB8 constituted a “ban.” There are safe and widely used alternatives to live-dismemberment D&E for the entire second trimester. Regarding suction, the record shows that doctors can sometimes use this method to complete abortions up through 16 weeks, 6 days. As for digoxin, and as explained by Chief Judge Owen, “[t]here is no basis in the record for concluding that the use of digoxin, standing alone, constitutes a substantial obstacle . . . at or after 15 weeks gestation.” Post at 40. Indeed, digoxin is used ubiquitously, including by the plaintiffs themselves, beginning at the first day of the 18th week. The plaintiffs bear the heavy burden here. If there are actual cases in which neither suction nor digoxin is medically indicated and only live-dismemberment D&E by forceps is medically approved, the plaintiffs did not describe them. The plaintiffs made no effort to quantify the number of women who might be subjected to an additional burden if a digoxin injection is used and the injection prolongs the entire procedure by an additional day. The sum total of the plaintiffs’ efforts in this area is one expert’s testimony about the negative effects an “additional trip to an abortion clinic” would have on low-income women in Texas. Even if this were true, some (unspecified number of) women does not constitute a large fraction. Plus, under Casey, that would not constitute an undue burden, without more, anyway. See 505 U.S. at 886 (rejecting the argument that a waiting period imposed on women with the “fewest financial resources” would constitute an undue burden). Similarly, the plaintiffs made no effort to quantify the “unreliability” of digoxin beyond stressing a 90–100% success rate for a single injection and conceding heightened effectiveness with a second injection. The district court acknowledged that digoxin’s failure rate is only “between 5% and 10%.” This high efficacy rate made the plaintiffs’ “burden” even heavier to show that digoxin’s high success rate is not enough. Some or all of this data should have enabled the district court to determine whether in fact a “large fraction” of the women seeking second-trimester abortions in Texas would suffer a substantial obstacle through the operation of SB8. Instead, the district court accepted plaintiffs’ all-or-nothing “ban” argument. The district court did not just err by accepting the plaintiffs’ false dichotomy; it also turned facial validity on its head and placed the burden of proof on the wrong party. The district court concluded that prohibiting only one method of D&E (live dismemberment by forceps) is unconstitutional all of the time because the other methods that achieve fetal death (like digoxin) do not work some of the time. This distorts the State’s burden. The State need not prove that every alternative works every time for every woman. As Gonzales instructs, a prohibition of a particular method is “permissible” when “a woman [can] still obtain an abortion through an acceptable alternative method.” Preterm-Cleveland, 994 F.3d at 534. The plaintiffs’ own practices show that such alternatives are available and widely used for the vast majority of abortions in most of the relevant weeks of gestation. Thus, the plaintiffs cannot show that SB8 poses a substantial obstacle in a large fraction of cases. See Gonzales, 550 U.S. at 164; Stenberg, 530 U.S. at 931–36. Finally, because the plaintiffs rested only on their argument that SB8 is a ban on all D&E abortions, they did not develop any evidence related to SB8′s specific impact on abortion access. During oral argument, the plaintiffs’ attorney said that there was record evidence that “at least three providers would stop providing abortions if SB8 took effect.” En Banc Oral Argument at 39:31–39:48. Actually, the record shows that one doctor testified that she would alter her practice only to stop providing abortions after 17 weeks. This same doctor testified that another doctor at her clinic told her that he would also stop providing abortions after 17 weeks; this testimony was struck as hearsay. One other abortion doctor, who has been practicing for over 40 years, said that he would retire. Contrast this to Hellerstedt where these same plaintiffs argued to the Supreme Court that 50% of Texas’s abortion clinics (20 out of 40 clinics) would close if the challenged law had taken effect. 136 S. Ct. at 2301. That argument was crucial to the Supreme Court’s determination that the admitting-privileges law was facially invalid. See id. at 2312. No reading of this record supports anything remotely similar here. Indeed, at en banc oral argument, the plaintiffs conceded that they were not arguing that clinics would close because of SB8. IV. SB8 was signed into law four years ago—four years in which federal courts have halted Texas’s duly enacted and modest legislation from taking effect. The parties produced mountains of evidence and presented that evidence to the district court during a week-long trial. The district court abused its discretion by applying the wrong legal test to assess SB8, dismissing and ignoring the State’s important and substantial interests, placing the burden of proof on the wrong party, explicitly and erroneously stating that the abortion right is “absolute” and evaluating SB8 under that view, erroneously defining “substantial obstacle,” incorrectly determining that SB8 constitutes a “ban” on D&E abortions, ignoring vast swaths of testimony about suction, making findings about digoxin that contradict the plaintiffs’ own digoxin use and practices, weighing medical uncertainty against the State, and incorrectly determining both the numerator and denominator in the large-fraction analysis. As it was in Gonzales, remanding to the district court would be futile here because the voluminous record permits only one conclusion.[25] The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances. * * * The district court’s permanent injunction is VACATED. We REVERSE the judgment of the district court and RENDER judgment in the State’s favor. SB8 is constitutional. PRISCILLA R. OWEN, Chief Judge, concurring in the judgment: I concur in reversing the district court’s judgment, which held Texas’s prohibition of dismemberment abortions[26] facially unconstitutional and permanently enjoined its enforcement.[27] Reversal is required because prohibiting dismemberment of a living fetus with the purpose of causing the death of an unborn child by a means described in Texas Health and Safety Code § 171.151[28] does not “operate as a substantial obstacle to a woman’s choice to undergo an abortion” “in a large fraction of the cases in which [it] is relevant.”[29] All agree that the relevant focus is on abortions occurring from 15 to 22 weeks of gestation. In order to avoid the risk of violating Texas law and incurring criminal penalties, abortion providers can cause fetal demise before proceeding to use forceps or the other devices described in § 171.151 to perform an abortion. The record developed in this case clearly reflects that fetal demise prior to extraction with forceps or similar devices can be accomplished with little or no risk to the mother’s health by using digoxin. The remaining question is whether prohibiting dismemberment abortion creates a delay that amounts to a substantial obstacle to obtaining an abortion. The record reflects that ensuring fetal demise after 17 weeks and six days of gestation can be accomplished without any delay at all in the abortion process. In abortions performed at 15 weeks to 17 weeks and six days, there may be an additional delay for some women of approximately 24 hours beyond Texas’s statutory 24-hour waiting period. This additional 24-hour delay does not constitute a substantial obstacle and does not render the Texas statutes at issue unconstitutional.[30] Even were an additional 24-hour delay a substantial obstacle, there would not be such a delay for a large fraction of women seeking an abortion at 15 to 22 weeks of gestation. I As a preliminary matter, it is unnecessary to decide whether CHIEF JUSTICE ROBERTS’s concurring opinion in June Medical Services L.L.C. v. Russo[31] governs and therefore supersedes the balancing test set forth in Whole Woman’s Health v. Hellerstedt,[32] as JUDGE ELROD and JUDGE WILLETT’S plurality opinion posits that it does.[33] Under either view of the governing parameters, the Texas laws are constitutional because they do not place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus. II As discussed in JUDGE ELROD and JUDGE WILLETT’S opinion, the record reflects that digoxin is a means of causing fetal demise that has been widely and successfully used by many of the abortion providers who are parties to this litigation. The use of digoxin rarely causes injury to or complications for the mother. There is no basis in the record for concluding that the use of digoxin, standing alone, constitutes a substantial obstacle to obtaining an abortion at or after 15 weeks of gestation. As the plurality opinion explains, the record is clear regarding digoxin’s safety and efficacy.[34] The remaining potential obstacle digoxin poses to women seeking an abortion is delay. The district court concluded that administering digoxin would create an additional 24-hour delay for “all women” seeking an abortion past 15 weeks.[35] This conclusion was clearly erroneous. Based on the record evidence, administering digoxin would create approximately an additional 24-hour delay (beyond Texas’s 24-hour waiting period) for some, but not all, or even most, abortions occurring from 15 weeks to 17 weeks and six days. It would create no additional delay for abortions performed after 17 weeks and six days. In Texas, a physician cannot begin an abortion, including the dilation process, until the 24-hour waiting period has concluded.[36] Patients must first attend an initial office visit, during which the physician performs an ultrasound and provides state-mandated information.[37] The patients may then return 24 hours later for the actual abortion procedure, beginning with dilation.[38] The duration of dilation varies depending on the method used, which in turn depends on the fetus’s “gestational age.”[39] For pregnancies from 15 weeks to 17 weeks and six days of gestation, dilation is often achieved with medication.[40] The physician administers the medication, which is effective within several hours.[41] Once the medication takes effect, the physician may begin the evacuation portion of the abortion procedure.[42] Importantly, however, dilation and evacuation are not always performed on the same day in abortions occurring between 15 weeks and 17 weeks and six days. A potential delay arises for logistical reasons: a physician’s ability to perform the evacuation on the same day as the dilation depends on the timing of the patient’s initial appointment, which sets the 24-hour waiting period.[43] As one of the physicians who is also a plaintiff in this case explained, if the patient’s initial visit occurs early enough in the morning, the patient is able to return and receive dilation medication the following morning, and several hours later, the physician may perform the evacuation.[44] But if the initial appointment—and the patient’s subsequent return—occur “beyond a certain time of day, usually 10:00 or 11:00 in the morning,” the physician may not be able to “assure enough time for adequate dilation with the remainder of the clinic day.”[45] In such cases, the physician “place[s] . . . dilators and allow[s] them to work overnight and ask[s] the patient to return on a third day to have her D&E procedure completed.”[46] This plaintiff estimated that “[a]bout half” of patients between 15 weeks’ and 17 weeks and six days’ gestation were able to undergo dilation and evacuation on the same day, while the other half had to undergo dilation and evacuation over a two-day period.[47] For pregnancies at and beyond 18 weeks, dilation is achieved using osmotic dilators, or laminaria.[48] The physician places the laminaria inside the patient’s cervix on one day, and the patient generally returns the following day for the evacuation.[49] In some cases, however, a second set of laminaria is required, such that the first set of laminaria is placed one day, the patient returns the following day for removal of the first set and placement of a second set, then the patient returns once more on the third day for removal of the second set of laminaria and the actual evacuation procedure.[50] The record does not clearly indicate how often two sets of laminaria are needed. The evidence reflects that even without the use of digoxin to ensure fetal demise, many second-trimester dilation and evacuation abortions are multi-day procedures. Including the waiting period, roughly one-half of abortions performed between 15 weeks and 17 weeks and six days take two days, while the remaining half take three days. Most abortions performed during and after week 18 take three days, but some may take up to four. The use of digoxin to ensure fetal demise would have no effect on approximately two-thirds or more of abortions occurring from 15 to 22 weeks of gestation. In theory, digoxin becomes effective over a period of 30 minutes to 24 hours, depending on its method of administration—intra-cardiac, intra-fetal, or intra-amniotic.[51] In practice, however, the record reflects that physicians choose to administer it and wait 24 hours to ensure fetal death before performing the evacuation.[52] Digoxin can be administered on the day that dilation begins.[53] Accordingly, for abortions in which physicians would otherwise be able to perform dilation and evacuation on the same day— roughly one-half of abortions performed between 15 weeks and 17 weeks and six days—digoxin might add an additional day to the procedure. But for the other half of abortions performed between 15 weeks and 17 weeks and six days, and all abortions performed past 17 weeks and six days, using digoxin to cause fetal demise would not result in any delay in the abortion process. The record in the present case contains data about abortions in Texas from 2011 to 2015. The number of late-term abortions (15 weeks to 22 weeks) pales in comparison to the number of abortions performed up to 15 weeks of gestation:[54]
Abortions at Less than 15 WeeksAbortions at 15 Weeks to 22 Weeks 201169,9132,287 201265,6422,434 201360,9152,147 201450,9793,135 201550,7463,175 If, as the record evidence reflects, about one-half of abortions performed between 15 weeks and 17 weeks and 6 days of gestation will not be delayed at all by using digoxin to cause fetal demise prior to proceeding with evacuation, the data also reflects that only about one-third of all abortions performed from 15 weeks up to the 22nd week of gestation would be delayed by approximately an additional 24 hours (that is, delayed another 24 hours beyond the initial waiting period):[55]
