Amicus Curiae Brief — Mike Moyle, Speaker of the Idaho House of Representatives, et al., Petitioners v. United States

Nos. 23-726, 23-727

In the Supreme Court of the United States

MIKE MOYLE, SPEAKER OF THE IDAHO HOUSE OF

REPRESENTATIVES, ET AL., PETITIONERS

v.

UNITED STATES

IDAHO, PETITIONER

v.

UNITED STATES

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE PROFESSORS KENT

GREENFIELD, ADAM STEINMAN, JULIE C. SUK,

AND JOSEPH THAI IN SUPPORT OF

RESPONDENTS

KENT GREENFIELD

BOSTON COLLEGE

LAW SCHOOL

885 Centre Street

Newton, MA 02459

JESSICA GOUDREAULT

EVAN M. PIERCEY

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

919 Third Avenue

New York, NY 10022

EMILY KANSTROOM MUSGRAVE

Counsel of Record

SUSAN FINEGAN

MEREDITH LEARY

MITCHELL J. CLOUGH

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

One Financial Center

Boston, MA 02111

(617) 542-6000

EKMusgrave@mintz.com

JENNIFER YOONJEE KIM

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

3580 Carmel Mountain Road

San Diego, CA 92130

Counsel for Amici Curiae

(i)

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE..................................... 2

SUMMARY OF ARGUMENT ..................................... 8

ARGUMENT .............................................................. 10

I.

The Court Should Dismiss the Writ of

Certiorari as Improvidently Granted. ............. 10

A.

There is no factual record about current

Idaho law. ..................................................... 11

B.

Petitioners have expanded the questions

on appeal. ...................................................... 15

C.

Petitioners present new arguments not

tested below. ................................................. 18

D. Petitioners ask for interlocutory review of

a record so unsettled the very law at issue

has since been amended. .............................. 23

E.

The risk of an erroneous ruling outweighs

the exigencies. .............................................. 26

CONCLUSION .......................................................... 28

(ii)

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001) .......................................... 8, 19

Arizona v. City & Cty. of S.F.,

142 S. Ct. 1926 (2022) .......................................... 16

Banister v. Davis,

140 S. Ct. 1698 (2020) .......................................... 19

Brown v. Chote,

411 U.S. 452 (1973) ........................................ 13, 23

City & Cty. of S.F. v. Sheehan,

575 U.S. 600 (2015) ........................................ 10, 19

Cooper v. Harris,

581 U.S. 285 (2017) .............................................. 14

Dames & Moore v. Regan,

453 U.S. 654 (1981) ........................................ 26, 27

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) .......................................... 26

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .............................................. 22

Ex parte Quirin,

317 U.S. 1 (1942) .................................................. 26

Glossip v. Gross,

576 U.S. 863 (2015) .............................................. 14

Hammerstein v. Superior Court of Cal.,

341 U.S. 491 (1951) .............................................. 10

Hidalgo v. Arizona,

583 U.S. 1196 (2018) ............................................ 13

(iii)

Illinois v. Gates,

462 U.S. 213 (1983) .................................... 8, 19, 27

Irvine v. California,

347 U.S. 128 (1954) .............................................. 16

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp.,

510 U.S. 27 (1993) .................................... 16, 17, 18

Jones v. Hildebrant,

432 U.S. 183 (1977) .............................................. 10

Magenau v. Aetna Freight Lines, Inc.,

360 U.S. 273 (1959) .............................................. 10

Marino v. Ortiz,

484 U.S. 301 (1988) .............................................. 24

Merrill v. Milligan,

142 S. Ct. 879 (2022) ...................................... 10, 28

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 27

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) .................................... 19, 22

Mount Soledad Mem’l Ass’n v. Trunk,

567 U.S. 944 (2012) .............................................. 23

Mount Soledad Mem’l Ass’n v. Trunk,

573 U.S. 954 (2014) .............................................. 25

New Haven Inclusion Cases,

399 U.S. 392 (1970) .............................................. 25

N.Y. State Rifle & Pistol Ass’n v. City of N.Y.,

140 S. Ct. 1525 (2020) .......................................... 14

New York v. Uplinger,

467 U.S. 246 (1984) .............................................. 22

(iv)

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) ........................................ 13, 21

Planned Parenthood Great Nw. v. State,

522 P.3d 1132 (Idaho 2023)...................... 2, 6, 7, 12

Reid v. Covert,

354 U.S. 15 (1957) ................................................ 26

Rogers v. United States,

522 U.S. 252 (1998) .............................................. 17

Spears v. United States,

555 U.S. 261 (2009) .............................................. 25

Thornburgh v. Am. Coll. of Obstetricians

& Gynecologists,

476 U.S. 747 (1986) .............................................. 24

United States v. Haymond,

139 S. Ct. 2369 (2019) .......................................... 25

United States v. Higgs,

141 S. Ct. 645 (2021) ............................................ 26

United States v. Idaho,

623 F. Supp. 3d 1096 (D. Idaho 2022) ......... 5, 6, 11

United States v. Idaho,

83 F.4th 1130 (9th Cir. 2023) ................................. 7

United States v. Idaho,

82 F.4th 1296 (9th Cir. 2023) ................................. 7

United States v. Mendoza,

464 U.S. 154 (1984) .............................................. 25

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 26

United States v. United Foods,

533 U.S. 405 (2001) .............................................. 20

(v)

Visa Inc. v. Osborn,

580 U.S. 993 (2016) ........................................ 17, 21

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) .............................................. 14

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ................................................ 24

Yee v. Escondido,

503 U.S. 519 (1992) ........................................ 17, 25

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .............................................. 26

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) .................................... 8, 19, 28

Statutes

42 U.S.C. § 1395dd(b)(1) ............................................ 21

Idaho Code § 18-604 .................................................... 3

Idaho Code § 18-622 ......................... 2, 3, 7, 12, 15, 22

Legislative Materials

2023 Idaho Sess. Laws Ch. 298 ............................. 7, 12

Rules of the Supreme Court of the United States

Rule 11 ........................................................... 25, 26, 27

Rule 14.1 .................................................................... 16

Other Authorities

Stephen I. Vladeck, The Solicitor General and the

Shadow Docket,

133 Harv. L. Rev. 123 (2019) ............................... 23

INTEREST OF AMICI CURIAE 1

Amici are legal scholars with expertise in federal

courts, federal jurisdiction, and the Supreme Court

and its procedure. This brief takes no position on the

merits of this case but addresses a procedural issue.

Amici have an interest in the proper interpretation

and application of this Court’s jurisdiction and procedure. They offer this brief to assist the Court in evaluating the exercise of its discretion.

Amici file this brief solely as individuals, and institutional affiliations are given for identification purposes only.

Kent Greenfield is Professor of Law and Dean’s

Distinguished Scholar at Boston College. He is the

principal editor of the two Supreme Court volumes of

Moore’s Federal Practice.

Adam Steinman is the Robert W. Hodgkins Endowed Chairholder in Law at the University of Alabama School of Law. He is an expert on civil procedure

and federal courts who has authored dozens of scholarly articles and is a co-author on the Wright & Miller

Federal Practice & Procedure treatise and two leading

civil procedure and federal courts casebooks.

Julie C. Suk is Professor of Law and the Honorable Deborah A. Batts Distinguished Research Scholar

at Fordham University School of Law. She teaches

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or part, and no counsel or party made a monetary

contribution to fund the preparation or submission of this brief.

No person other than the amici curiae and their counsel made

any monetary contribution to the preparation or submission of

this brief.

2

Civil Procedure and has authored two books and dozens of articles on constitutional law.

Joseph T. Thai is the Watson Centennial Chair at

the University of Oklahoma College of Law. He

teaches and writes on Constitutional Law and the Supreme Court.

*****

INTRODUCTION

The Court should dismiss the writ of certiorari as

improvidently granted so that the Court may instead

await its usual opportunity for “final review” on a developed factual record, following a completed appellate

process. As granted, the writ instead demands that

this Court sit as one of “first view” in an interlocutory,

emergency posture to decide, in the first instance, and

without an adequately developed factual record: (1)

how an Idaho law amended after the lower courts ruled

in this case intersects with EMTALA; (2) a sweeping

question of EMTALA’s ability to preempt any state

laws prohibiting abortion (though the question below

was limited to Idaho law); and (3) novel issues of constitutional dimension not even raised—much less

ruled on—below. Acquiescing to Petitioners’ request

disregards the appellate process and this Court’s historic role in it.

STATEMENT OF THE CASE

1. In 2020, Idaho enacted § 18-622, a so-called

“trigger” law that would outlaw abortion in the state

within 30 days of this Court’s judgment overruling Roe

v. Wade. That law, referred to by the Idaho Supreme

Court as a “Total Abortion Ban,” Planned Parenthood

Great Nw. v. State, 522 P.3d 1132, 1147 (Idaho 2023),

3

made it a criminal offense to perform an abortion, punishable by up to five years in prison, Idaho Code § 18622(2) (2022). In June 2022, the law was triggered by

this Court’s decision in Dobbs.

As of August 2022, Idaho law defined abortion to

include “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman.”

Id. § 18-604(1). Idaho Code § 18-622 also defined criminal abortion broadly, even including abortion for patients who were the victims of rape or incest as well as

any abortion “necessary to prevent the death of the

pregnant woman.” Id. § 18-622(3). The law did provide an affirmative defense to physicians charged under the law. Id. To prevail on that defense, a physician would have to prove by a preponderance of the evidence at a criminal trial that she “determined, in [her]

good faith medical judgment and based on the facts

known to the physician at the time, that the abortion

was necessary to prevent the death of the pregnant

woman.” Id. § 18-622(3)(a)(ii).

2. Idaho Code § 18-622, in the form it took as of

August 2022, prompted this case. The United States

sought a declaratory judgment and injunction on the

grounds that, as applied, § 18-622 was preempted by

EMTALA. In a span of three weeks, the parties briefed

the United States’s motion for a preliminary injunction and submitted evidence. The evidence submitted

by both parties centered primarily on three issues related to the law on the books at that time.

First, the parties hotly disputed how the then-written Idaho law viewed the treatment of ectopic pregnancies. Three physician declarants detailed how an

ectopic pregnancy may require emergency termination

4

as treatment but would nevertheless meet the statutory definition of a “clinically diagnosable pregnancy.”

J.A. 30–32, 41–44; 45–87; 606–611; 618. The Legislature’s evidence, on the other hand, disputed those

claims. According to two of their physician declarants,

an ectopic pregnancy is a life-threatening condition,

but treating it through surgery would not constitute

an “abortion” under Idaho law. J.A. 547; 564–566.

Idaho nonetheless conceded that treating an ectopic

pregnancy with an abortion was criminalized under

the then-written law. C.A. Leg. E.R. 3-298–299. The

parties’ divergent positions with respect to the law’s

treatment of ectopic pregnancies dominated much of

the factual record submitted to the district court.

Second, several physician declarants laid out the

dissonance between Idaho’s necessary-to-preventdeath standard for the affirmative defense and medical reality. These physicians (and the United States)

understood the Idaho law to require physicians asserting the affirmative defense to prove with objective

medical certainty that death was imminent. That

standard, they said, was impossible to meet. The evidence meticulously cataloged many conditions that

would seriously jeopardize the patient’s health or life

if left untreated. J.A. 32–38. According to several physicians, however, an emergency-room physician still

may be unable to know with objective certainty that

the pregnant patient will die in the absence of treatment. J.A. 32–38; 375; 593–595; 599–601; 605–607,

609–610. Thus, physicians told the district court that

there are “no medical ‘bright lines,’” J.A. 595, and that

in the real world, there is not a “dichotomous variable”

between a patient likely dying and the patient likely

living, J.A. 375. Meanwhile, physicians supporting

5

Petitioners disputed the United States’s evidence, testifying that a physician could make the good-faith

medical judgment that terminating the pregnancy was

necessary to prevent the death of the pregnant patient.

See J.A. 512–526, 544–548, 566–583.

Third, the evidence focused on the affirmative defense. Several physicians testified at length about how

the threat of prosecution for every abortion they perform, with the only defense being one that they could

prove at trial years later, would skew physicians’ medical decisions. J.A. 359, 362–363; 369–370; 601; 618.

It would also delay urgent, medically indicated emergency care, as physicians would either need to seek out

legal advice before intervening or be forced to wait until the risk of death became more imminent. J.A. 39–

40; 359, 361–363; 601–603.

3. On that factual record, the district court held

that the United States had established a likelihood of

success on the merits of its as-applied federal preemption claim and preliminarily enjoined Idaho’s total

abortion ban to the extent it conflicted with EMTALA.

United States v. Idaho (Idaho I), 623 F. Supp. 3d 1096

(D. Idaho 2022).

First, the district court found that it was impossible

for a physician simultaneously to comply with EMTALA and Idaho law. Id. at 1108–1110. For instance,

because of the structure of Idaho’s affirmative defense,

the district court concluded that a physician would

still be charged with a crime even if they terminated a

pregnancy to save the pregnant patient from imminent death. Id. at 1109. The court also found that

there were several conditions that would not necessarily lead to the death of the pregnant patient but

would still require an emergency abortion. Id. at

6

1104–1105, 1109–1110. Chief among those conditions

was ectopic pregnancies. See id. at 1103–1104, 1109–

1111. Lastly, the district court found that the scope of

Idaho’s affirmative defense was “tremendously ambiguous” given “the realities of medical judgment.” Id. at

1110.

Second, the district court found that even if compliance with both laws was technically possible, Idaho’s

total abortion ban stood as an obstacle to EMTALA’s

objective and thus was preempted. Relying on the record evidence, the district court found that the law, as

it then existed, would deter Idaho physicians from performing abortions that they believed to be medically

necessary to stabilize patients with emergency medical conditions. Id. at 1112–1113. That finding rested

on both the affirmative-defense-only structure of the

law and the realities of medical judgment. Because

physicians could depend on their medical judgment

that the abortion was necessary to save the life of the

patient only as an affirmative defense, they risked indictment, arrest, detention, and trial for every abortion they performed. Id. at 1112, 1113 n.4; see id. at

1109. And because the court interpreted Idaho’s affirmative defense to require an objective certainty that

death was imminent absent an abortion, see id. at

1109–1110, it also found that in many cases it would

be impossible for a physician to know whether that

standard was met, id. at 1112–1113.

4. Five months after the district court’s ruling, the

Idaho Supreme Court announced an interpretation of

Idaho law that varied significantly from the district

court’s reading. Planned Parenthood Great Nw. v.

State, 522 P.3d 1132 (Idaho 2023). First, the Idaho Supreme Court applied a “limiting judicial construction”

7

to the law so that terminating an ectopic pregnancy is

not prohibited. See id. at 1203 (holding that removing

ectopic pregnancies is “not within the definition of

‘abortion’ as criminally prohibited by the Total Abortion Ban”). The court further held that the necessaryto-prevent-death standard was a subjective one, “focusing on the particular physician’s judgment,” and

did “not require objective certainty, or a particular

level of immediacy.” Id.

The law changed again six months later, this time

by legislative action. The Idaho Legislature codified

the Idaho Supreme Court’s limiting construction for

ectopic pregnancies into the statutory definition of

abortion. 2023 Idaho Sess. Laws 298 (codified at Idaho

Code § 18-604(1)), Leg. Br. App. 53. It also amended

the criminal provision to transform what had been the

necessary-to-prevent-death affirmative defense into a

statutory exception to the crime. Id. (codified at Idaho

Code § 18-622(2)).

5. Just as the amended law took effect, Petitioners

appealed the district court’s order granting the preliminary injunction of the pre-amendment law to the

Ninth Circuit. The Legislature, but not Idaho, sought

a stay of the district court’s injunction from the Ninth

Circuit. A panel granted the stay, United States v.

Idaho (Idaho II), 83 F.4th 1130 (9th Cir. 2023), but the

en banc court quickly vacated the panel opinion and

denied the motion for a stay, United States v. Idaho

(Idaho III), 82 F.4th 1296 (9th Cir. 2023); J.A. 710. At

Petitioners’ request, the court of appeals scheduled an

expedited en banc argument. C.A. Dkt. 73. But before

it could hear argument and issue its decision on the

merits of the preliminary-injunction appeal, Petitioners applied to this Court for an emergency stay. This

8

Court granted the stay and treated the application as

a petition for certiorari before judgment and granted

the petition.

SUMMARY OF ARGUMENT

I. This Court has long viewed itself as “a court of

final review and not first view.” Zivotofsky ex rel.

Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (quoting

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,

110 (2001) (per curiam)). That rule “promote[s] respect” for the adjudicatory process, Adarand Constructors, 534 U.S. at 110 (quoting Adams v. Robertson, 520

U.S. 83, 92, n.6 (1997) (per curiam)), and ensures that

the Court does not frame “broad rules, seemingly sensible on one set of facts, which may prove ill-considered

in other circumstances,” Illinois v. Gates, 462 U.S. 213,

224 (1983). In contravention of these customary limitations on this Court’s discretion, Petitioners ask this

Court to sit as a court of first view in at least three

significant ways.

A. First, no court has had the opportunity to consider evidence about how the now-amended Idaho law

and EMTALA intersect. The law today bears little resemblance to the law that the district court considered

when granting the preliminary injunction. Idaho law

has since been changed twice, first by the Idaho Supreme Court’s interpretation and then by the Idaho

Legislature’s amendment. The district court’s ruling

relied on a factual record developed and tailored to address issues that may not be as relevant to the preemption analysis today, such as the pre-amendment law’s

treatment of ectopic pregnancies. In short, no court—

state or federal—has had the opportunity to consider

9

whether the amended Idaho law, as it exists today, is

preempted.

B. Second, the Petitioners have substantially expanded the issues to be considered by this Court. Below, Petitioners framed the question as one of fact:

whether there were any circumstances in which

Idaho’s law would conflict with EMTALA’s mandate to

provide a medically necessary abortion. Now, Petitioners ask this Court for a sweeping pronouncement

that EMTALA does not preempt any state laws that

prohibit abortion.

C. Third, Petitioners’ sweeping request stands on

a host of legal arguments never considered below.

These novel and weighty constitutional questions—

from Tenth Amendment issues to the major-questions

doctrine—were not raised to the district court before

its preliminary-injunction ruling, and they were not

passed on by even the Ninth Circuit panel’s now-vacated decision, much less by the Ninth Circuit en banc.

D. The extraordinary posture of this case underscores the fact that the Court’s review of this interlocutory order is premature. With an amended law now

in place, a new factual record may emerge, leading to

new legal theories about how the amended law impacts the delivery of emergency medical care in Idaho.

Those developments could drastically narrow or

change the scope of the Court’s review or obviate that

review entirely.

E. This Court should not rule on such weighty constitutional issues in this emergency posture. This case

is unlike those in which this Court has granted review

before the court of appeals has had the opportunity to

consider the record and arguments. Nor is there any

10

need for this Court to do so as there is no disarray

among the federal courts.

In sum, taking up Petitioners’ request to review a

preliminary determination that (1) has never been adjudicated on the merits, (2) has many factual gaps in

the record, and (3) involves a law that effectively no

longer exists would disregard the Court’s “own appellate processes, which serve both to constrain and legitimate the Court’s authority.” Merrill v. Milligan, 142

S. Ct. 879, 889 (2022) (Kagan, J., dissenting), stay vacated, Allen v. Caster, 143 S. Ct. 2607 (2023) (Mem.).

ARGUMENT

I.

The Court Should Dismiss the Writ of Certiorari as Improvidently Granted.

The grant or denial of a writ of certiorari lies

squarely in this Court’s discretion. See Hammerstein

v. Superior Court of Cal., 341 U.S. 491, 492 (1951).

“Because certiorari jurisdiction exists to clarify the

law, its exercise is not a matter of right, but of judicial

discretion.” City & Cty. of S.F. v. Sheehan, 575 U.S.

600, 610 (2015) (quoting U.S. SUP. CT. R. 10). Thus,

where “due regard for the controlling importance of observing the conditions for the proper exercise” of the

Court’s “discretionary jurisdiction” warrants it, “the

writ of certiorari should be dismissed as improvidently

granted.” Magenau v. Aetna Freight Lines, Inc., 360

U.S. 273, 285 (1959).

Dismissing a petition as improvidently granted is

particularly appropriate where it has become clear

that the case presents a poor vehicle to decide the

question presented. See, e.g., Jones v. Hildebrant, 432

11

U.S. 183, 185–187 (1977) (holding that a shift in posture of the case by petitioner at oral argument all but

mooted the question presented in the petition).

A.

There is no factual record about

current Idaho law.

Petitioners ask this Court to take first view of a

sweeping new issue on a factual record developed to

address a law that has since changed substantially.

The district court’s decision rested in substantial

part on an understanding that Idaho law: (1) criminalized abortions of ectopic pregnancies, (2) provided an

exception for life-saving treatment only through an affirmative defense, and (3) required physicians relying

on that affirmative defense to show with objective

medical certainty that the pregnant patient’s death

was imminent. For example, the district court relied

on ectopic pregnancies as the quintessential example

of impossibility preemption where an abortion would

be required by EMTALA but forbidden by Idaho law.

See Idaho I, 623 F. Supp. 3d at 1103–1104, 1110. The

district court also relied on the objective nature of the

affirmative defense to find that the then-in-effect

Idaho law would deter medical care required by EMTALA. Id. at 1112. And it relied on the affirmativedefense structure to conclude that the Idaho law criminalized care required by EMTALA, id. at 1109, and

that the law would deter physicians from providing

EMTALA-required care, id. at 1112. In sum, the district court’s order relied, necessarily, on its assessment

of facts relevant to “Idaho’s criminal abortion statute,

as currently drafted” in August 2022. See id. at 1112.

The law today is substantially different from the

law that the district court considered when evaluating

12

what facts were relevant and how the law should be

applied in light of those facts. After the district court

ruled, the Idaho Supreme Court pronounced that terminations of ectopic pregnancies are not abortions and

that the necessary-to-prevent-death standard is to be

evaluated subjectively rather than objectively—

though even a physician’s subjective opinion can be

second-guessed by testimony from “other medical experts on whether the abortion was, in their expert

opinion, medically necessary.” Planned Parenthood

Great Nw., 522 P.3d at 1203–1204. Then, the Idaho

Legislature amended the law, codifying the Idaho Supreme Court’s approach to ectopic pregnancies and

changing the necessary-to-avoid-death standard from

an affirmative defense to a statutory exception. 2023

Idaho Sess. Laws Ch. 298 (codified at Idaho Code

§§ 18-604(1)(c), 18-622(2)), Leg. Br. App. 53.

No court has had the opportunity to consider any

evidence about how the amended Idaho law will affect

decision-making by physicians in Idaho. The district

court’s analysis instead was based on a factual record

trained on then-in-effect Idaho law. For example, the

district court relied on physician declarants who testified that then-Idaho law would prohibit or impede

their ability to deliver stabilizing care under EMTALA

in emergency circumstances that were not yet, but

could become, imminently life-threatening conditions.

At the time of the preliminary-injunction ruling, the

Idaho Supreme Court had not yet ruled that the standard for reviewing necessary-to-prevent-death decisionmaking was subjective—though subject to rebuttal.

Accordingly, there was no evidence about whether this

subjective-but-rebuttable standard makes any difference for physicians on the ground providing emergency

medical care in Idaho.

13

Similarly, the district court relied heavily on testimony by physicians about how the Idaho law’s affirmative-defense-only structure would affect their ability

to deliver required medical care. But there is no evidence about how the new statutory exception, rather

than the old affirmative defense, influences physicians’ decision-making processes. In short, no court

has heard any evidence about what circumstances

may require EMTALA-mandated treatment that

would be prohibited or impeded by Idaho’s amended

statute. Cf. St. Luke’s Health System Amicus Br. 4–5,

16–19, 21–22. As a result, this Court does not have a

sufficiently relevant factual record upon which to determine how EMTALA and Idaho law intersect today

for purposes of a preemption analysis.

This Court does not usually resolve questions of

such dimension without an adequate factual record.

See Brown v. Chote, 411 U.S. 452, 457 (1973)

(deferring review of the “grave, far-reaching

constitutional questions presented” on interlocutory

review of a preliminary injunction where the “case

clearly reflects the limited time which the parties had

to assemble evidence and prepare their arguments”);

Hidalgo v. Arizona, 583 U.S. 1196, 1201 (2018)

(Breyer, J., concurring) (explaining that issues are better suited for certiorari when the necessary facts have

been fully developed in the courts below); see also, e.g.,

Nike, Inc. v. Kasky, 539 U.S. 654, 664–665 (2003) (Stevens, J., concurring) (concurring with the majority’s

decision to dismiss a writ as improvidently granted

where the correct answer to questions integral to the

case was “more likely to result from the study of a full

factual record”). That rule applies with even greater

force to Petitioners’ proposed facial challenge here, as

this Court has cautioned that grounding facial rulings

14

on mere “factual assumptions” and “speculation” risks

premature interpretation. See Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450

(2008).

The risks of ruling on the now-stale factual record

are not hypothetical. According to the Legislature in

the proceedings below, the “preeminent issue here is

one of fact, whether in the real world EMTALA

actually conflicts with the 622 Statute.” Dist. Ct. Dkt.

65 at 2. Even in this Court, both Idaho and the Legislature raise fact-bound arguments about what possible

medical conditions may require a physician to perform

an abortion under EMTALA that is also prohibited by

Idaho law—a question that no court has had the opportunity to consider. 2 Idaho Br. 31; Leg. Br. 30. The

Legislature even goes one step further: it disputes the

district court’s factual conclusions on the evidence presented. Leg. Br. 30 (disputing the district court’s conclusion that “the Legislature’s witnesses were simply

wrong”). But far from establishing, as it must, that

these conclusions are clearly erroneous, see Glossip v.

Gross, 576 U.S. 863, 881 (2015), the Legislature

merely suggests that there is a “better view of the

facts,” Cooper v. Harris, 581 U.S. 285, 299 (2017)

2 Petitioners (Idaho Br. 31; Leg. Br. 30) fault the United States

for not presenting evidence about what conditions would conflict

with an Idaho law that had not yet been interpreted by the Idaho

Supreme Court or amended by the Legislature. But when the

governing law moots a case, this Court does not foreclose raising

a “residual claim under the new framework that was understandably not asserted previously.” Cf. N.Y. State Rifle & Pistol Ass’n

v. City of N.Y., 140 S. Ct. 1525, 1526 (2020) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 482–483 (1990)). Instead, it

ordinarily permits a plaintiff on remand to “amend their pleadings or develop the record more fully.” Cf. id.

15

(“[T]he very premise of clear error review is that there

are often ‘two permissible’—because two ‘plausible’—

‘views of the evidence.’” (quoting Anderson v. Bessemer

City, 470 U.S. 564, 574 (1985))). Even in the Legislature’s own telling then, the district court’s factual findings should not be disturbed.

B.

Petitioners have expanded the

questions on appeal.

This case originated from the United States’s challenge to the pre-amendment version of § 18-622. The

arguments underpinning Idaho’s and the Legislature’s

opposition to that challenge at the district court and

the Ninth Circuit focused primarily on the interplay

between EMTALA and § 18-622. At the certiorari

stage, Idaho expanded the scope of the inquiry to address “whether EMTALA preempts state [abortion]

laws . . . like Idaho’s Defense of Life Act.” Appl. 22.

Even so, the arguments remained generally focused on

Idaho.

Petitioners now advance a more extensive argument in their opening merits brief, asking this Court

to determine broadly whether EMTALA “preempts

state abortion regulations and requires hospitals to

perform abortions disallowed by state law.” Idaho Br.

i. To rule on this expanded question, which was neither considered nor ruled on in the order that is now

under review, the Court would need to analyze the extent to which EMTALA preempts all state laws that

restrict or otherwise limit abortion access, without any

factual record developed beyond the district court record addressing a prior version of Idaho law.

This Court has repeatedly cautioned litigants

against “smuggling additional questions into [the

16

case]” after the grant of certiorari. Irvine v. California,

347 U.S. 128, 129 (1954). Under this Court’s Rule

14.1(a), “[o]nly the questions set out in the petition, or

fairly included therein, will be considered by the

Court.” U.S. SUP. CT. R. 14.1(a). Strict adherence to

that rule “helps ensure that [the Court is] not tempted

to engage in ill-considered decisions of questions not

presented in the petition.” Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 34

(1993). The Court typically considers “questions not

raised in the petition only in the most exceptional

cases.” Id. at 28.

This Court recently dismissed a similar case as improvidently granted in Arizona v. City & County of San

Francisco, where Chief Justice Roberts highlighted in

his concurring opinion issues militating against review. See 142 S. Ct. 1926, 1928–1929 (2022). There,

the Court granted certiorari to address a procedural

issue but ultimately dismissed the writ when it became evident that “a great many issues beyond the

question [for which certiorari was granted] . . . could

stand in the way of the [Court] reaching the question

presented on which [the Court] granted certiorari, or

at the very least, complicate [the Court’s] resolution of

that question.” 142 S. Ct. at 1928.

Here, like City & County of San Francisco, it is evident that “a great many issues beyond the question”

for which certiorari was granted would impede any attempt to answer Petitioners’ request for a broad interpretation of EMTALA. Most notable among these

“great many issues” is the dearth of evidence adduced

concerning Idaho’s amended statute, its impact on doctors, patients, and stakeholders, or similar evidence

from any other state. This lack of factual development

17

renders this case a poor vehicle to address even those

questions Petitioners presented in their request for

certiorari, let alone the broader questions about the

parameters and outer boundaries of EMTALA that Petitioners now thrust upon this Court in their merits

briefing. See, e.g., Visa Inc. v. Osborn, 580 U.S. 993

(2016) (dismissing writ as improvidently granted

where “‘[h]aving persuaded us to grant certiorari on

[one] issue, however, petitioner chose to rely on a different argument’ in their merits briefing” (citation

omitted)); Rogers v. United States, 522 U.S. 252, 259

(1998) (O’Connor, J., concurring) (“As the plurality

points out, we granted certiorari to address an important issue of constitutional law, and we ought not

to decide the question if it has not been cleanly presented.”).

"This Court has repeatedly emphasized that “[a]

question which is merely ‘complementary’ or ‘related’

to the question presented in the petition for certiorari

is not ‘fairly included therein.” Izumi Seimitsu, 510

U.S. at 31–32 (quoting Yee v. Escondido, 503 U.S. 519,

537 (1992)). Questions about how the laws of other

states could interact with EMTALA in a host of unknown circumstances may be “related” or even “complementary” to the issues set forth in the certiorari petition, but are not “fairly included therein,” particularly given the focus on Idaho law and the lack of any

similar attention paid to the laws of other states. Id.

This case does not turn on the interpretation of any

other state’s abortion laws, or how EMTALA interacts

with them. Instead, this case has arrived before this

Court with a record built on what a prior iteration of

Idaho’s law required and restricted, and whether it

conflicted with EMTALA’s stabilizing treatment requirement. Consideration of related questions—such

18

as how other state laws might interact with EMTALA—would not assist this Court in determining

whether the United States is entitled to a preliminary

injunction of Idaho’s law.

In short, EMTALA’s

preemptive effect on states nationwide is neither fairly

included in the ruling under review nor set forth with

any detail in the petition granted. Consideration of

those questions could lead to an “ill-considered decision” predicated on a thin factual and legal record. See

Izumi Seimitsu, 510 U.S. at 34.

C.

Petitioners present new arguments

not tested below.

If presenting an expansive new set of issues was

not enough, Petitioners also ask this Court to address

and resolve several legal arguments not raised or ruled

on below, and which bear little resemblance to the narrow set of issues addressed by the district court in its

preliminary-injunction ruling.

Largely revolving

around the broad question of whether EMTALA can

require abortions, Petitioners’ new arguments include

that: (1) EMTALA requires only necessary stabilizing

treatment that is authorized under state law; (2) EMTALA’s requirement of stabilizing care for the “unborn

child” reveals that EMTALA does not require abortions; (3) EMTALA does not allow the federal supervision of medical standards; (4) the Hyde Amendment

bars the United States’s interpretation of EMTALA;

(5) the Tenth Amendment limits EMTALA’s reach;

and (6) the major-questions doctrine applies. See

Idaho Br. 19–25, 31–32, 34; see also Leg. Br. 22–35,

38–45, 53. 3

3 Idaho and the Legislature made some of these arguments in

their motions for reconsideration, but arguments made for the

19

However, as a court of “final review” not “first

view,” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S.

189, 201 (2012) (quoting Adarand Constructors, Inc. v.

Mineta, 534 U.S. 103, 110 (2001) (per curiam)), this

Court “does not ordinarily decide questions that were

not passed on below,” City & Cty. of S.F., 575 U.S. at

609; see also Adarand Constructors, 534 U.S. at 109.

This rule “‘promote[s] respect’” for the Court’s “‘adjudicatory process’” and ensures that the Court will not

be “tempted to engage in ill-considered decisions of

questions not presented in the petition” and not considered below. Adarand Constructors, 534 U.S. at 110

(quoting Adams v. Robertson, 520 U.S. 83, 92, n.6

(1997) (per curiam)). And it ensures “that a factual

record will be available to [this Court], thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered

in other circumstances.” Gates, 462 U.S. at 224. Resolving these new arguments would be “ill-considered”

for three reasons.

First, these new arguments improperly expand the

scope of the issues Petitioners presented to the lower

courts. What started as a relatively narrow and

largely fact-based argument concerning the scope of

Idaho’s then-in-effect law has transformed into a

first time at reconsideration are not preserved for appellate review. Cf. Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (“Courts

will not address [in motions for reconsideration] new arguments

or evidence that the moving party could have raised before the

decision issued”); Mitchell v. Wisconsin, 139 S. Ct. 2525, 2546

(2019) (Sotomayor, J., dissenting) (admonishing the plurality for

“recklessly” taking on an issue that a party had waived and even

conceded in the courts below). The Ninth Circuit panel did not

pass on these issues.

20

broad-based request that this Court issue an expansive ruling interpreting the metes and bounds of EMTALA more globally.

An illustration of the progression is instructive:

(1) At the district court, Petitioners effectively conceded that some forms of abortion care must be provided under EMTALA and were permissible within

the Idaho law’s paradigm—a concession ostensibly

made in response to declarations from doctors submitted by the United States identifying circumstances

where an abortion was necessary to save the life of a

patient. J.A. 641–645; see also supra 3–4.

(2) At the Ninth Circuit, Petitioners’ argument was

slightly broader but nevertheless remained generally

cabined to the gap between EMTALA and what Idaho

law, interpreted at the time, required or allowed. J.A.

699–704.

(3) Now, Petitioners advance several novel and

broad arguments urging this Court to conclude that

EMTALA’s stabilizing treatment mandate can never

require abortion care if state law bans abortions. See

Idaho Br. 23–24 (“EMTALA does not require hospital

emergency rooms to become abortion enclaves in violation of state law”); id. 31, 36–37.

The changing nature of Petitioners’ arguments militates in favor of this Court dismissing the writ of certiorari as improvidently granted. See, e.g., United

States v. United Foods, 533 U.S. 405, 417 (2001) (“Although in some instances we have allowed a respondent

to defend a judgment on grounds other than those

pressed or passed upon below, it is quite a different

matter to allow a petitioner to assert new substantive

21

arguments attacking, rather than defending, the judgment when those arguments were not pressed in the

court whose opinion we are reviewing, or at least

passed upon by it.” (citation omitted)); see also Visa,

580 U.S. 993.

Second, Petitioners’ new arguments together urge

this Court to issue a broad ruling on EMTALA and federalism issues largely divorced from the record below.

Accepting that invitation risks resolving untested arguments in a vacuum and producing a decision that

could take “any one of a number of different paths,”

none of which will necessarily resolve this case. Nike,

539 U.S. at 660 (Stevens, J., concurring).

This risk is heightened by the unclear picture left

in the wake of the amendment to Idaho’s law, which

leaves several questions unanswered that this Court

is not in a position to resolve without further factual

development by the lower courts. For example, Petitioners here debut arguments concerning the proper

scope of “stabilizing treatment” under EMTALA. 42

U.S.C. § 1395dd(b)(1). Likewise, several of the arguments Petitioners advance rely on EMTALA’s interaction with state laws extending beyond Idaho. Resolving these arguments without the benefit of a well-developed factual record concerning how the nowamended Idaho law, let alone laws from other states,

interacts with EMTALA could spur future challenges

that grow out of these uncertainties. Even in this case,

if the Court resolves any one of the new arguments

presented by Petitioners, future proceedings—which

will develop a new factual record trained on the nowamended Idaho law—could still create new issues that

end up back at this Court’s doorstep.

22

Third, the astounding breadth of Petitioners’ new

arguments creates a high degree of uncertainty as to

the precise issues addressed below and, in turn, requires this Court to untangle varying interpretations.

See, e.g., New York v. Uplinger, 467 U.S. 246, 248–249

(1984) (dismissing writ as improvidently granted

where the “diverse arguments presented in the briefs”

demonstrated the “varying interpretations” of the

court of appeals’ decision and left the Court “uncertain

as to the precise federal constitutional issue the court

decided”). For example, Petitioners argue on the one

hand that EMTALA does not “override other state

laws” or “mandate any specific services or standard of

care,” while arguing on the other that this Court “need

only decide whether EMTALA requires abortions that

Idaho law forbids” and that no “practical conflict between EMTALA and [§ 18-622]” exists. See Idaho Br.

at 29–33. Apart from seemingly asking this Court to

rule on questions it need not reach, see Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 348 (2022)

(Roberts, C.J., concurring in judgment) (“If it is not

necessary to decide more to dispose of a case, then it is

necessary not to decide more.”), these conflicting arguments highlight the “uncertain” nature of the precise

question Petitioners are asking this Court to answer,

see Uplinger, 467 U.S. at 248–249. Are Petitioners

asking to broadly extend their reading of EMTALA to

all state laws? Are they asking this Court to find that

Idaho law does not conflict with EMTALA, and thus

vacate the preliminary injunction? Are they asking for

a ruling indicating that EMTALA can never require

abortions? Do they want this Court to do all of the

above? It is simply unclear. And it is not this Court’s

job to sift through Petitioners’ briefs and pick the best

arguments for reversal. Cf. Mitchell, 139 S. Ct. at

23

2546 (Sotomayor, J., dissenting) (“[T]his Court is not

in the business of volunteering new rationales neither

raised nor addressed below.” (citations omitted)).

D.

Petitioners ask for interlocutory review of a record so unsettled the

very law at issue has since been

amended.

The petition should be dismissed as improvidently

granted because this Court is being asked to rule on:

(1) a preliminary determination (2) limited to the

United States’s likelihood of success (3) challenging a

law that has since been amended (4) relying on a record that is still evolving both in terms of facts and in

terms of arguments.

For these reasons, the Court’s review of this interlocutory order is premature. See Brown, 411 U.S. at

457 (deferring review of preliminary injunction where

the “case clearly reflects the limited time which the

parties had to assemble evidence and prepare their

arguments”). With an amended law now in place, the

United States may well develop a new factual record

and new legal theories about how the amended law affects emergency medicine in Idaho. Those developments could dramatically narrow or change the scope

of the Court’s review or obviate that review entirely.

See Stephen I. Vladeck, The Solicitor General and the

Shadow Docket, 133 Harv. L. Rev. 123, 136–138, 147–

148, 158 (2019) (detailing how premature review of

preliminary rulings risks “that a dispute that might

have seemed grave and intractable at first blush is

able to be fully and adequately resolved by the lower

courts”).

24

Where, as here, Petitioners arrive in an “interlocutory posture” with no final judgment, and “it remains

unclear” what further developments may emerge in

the courts below, the Court has previously denied certiorari. See Mount Soledad Mem’l Ass’n v. Trunk, 567

U.S. 944, 945 (2012) (statement of Alito, J.) (agreeing

that the petition should be denied in a case arising in

an “interlocutory posture” “[b]ecause no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take”). 4

Moreover, this Court resolves the constitutionality

of a statute on an interlocutory appeal only “in rare

cases . . . where the constitutional issues are clear.”

Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 786 n.1 (1986) (White J., dissenting) (“[T]his is by no means the preferred course of action in the run of cases”), overruled on other grounds

by Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833 (1992). And, even on those rare occasions when

the Court has taken this approach, its review has been

limited only “to the particular order under review.”

See Whole Woman’s Health v. Jackson, 595 U.S. 30, 38

4 Further, the Legislature’s status in the litigation—and ability

to raise arguments—is murky at best. See Marino v. Ortiz, 484

U.S. 301, 304 (1988) (“The rule that only parties to a lawsuit, or

those that properly become parties, may appeal an adverse

judgment, is well settled.”). The Legislature was granted intervention only to “present[] evidence and arguments” about “‘the

holes in the factual foundation’ of the United States’ motion.”

Dist. Ct. Dkt. 27 at 1; see also Dist. Ct. Dkt. 75 (denying Legislature’s motion for leave to file a brief containing legal arguments).

That ruling is on appeal at the Ninth Circuit, but this Court is

reviewing only the interlocutory order appealed from the preliminary injunction.

25

(2021) (“As with any interlocutory appeal, the Court’s

review is limited to the particular order under review. . . . In this preliminary posture, the ultimate

merits question . . . is not before the Court”); New Haven Inclusion Cases, 399 U.S. 392, 435 (1970) (“That

we have granted certiorari to the Court of Appeals in

advance of the appellate court’s judgment does not alter the fact that our task is limited.” (quoting PennCentral Merger & N & W Inclusion Cases, 389 U.S.

486, 498 (1968)) (internal quotation marks omitted)).

If the Court views the issue presented as one of “imperative public importance,” U.S. SUP. CT. R. 11, then

the issue deserves at least a reasoned ruling based on

arguments thoroughly examined by the lower courts,

see, e.g., United States v. Haymond, 139 S. Ct. 2369,

2385 (2019) (“[T]he wiser course lies in returning the

case to the court of appeals for it to have the opportunity to address the government’s . . . argument in the

first instance”); Mount Soledad Mem’l Ass’n v. Trunk,

573 U.S. 954, 955 (2014) (statement of Alito, J.) (because the Court of Appeals has not yet reviewed the

district court’s order on appeal, “any review by this

Court can await the decision of the Court of Appeals”);

Spears v. United States, 555 U.S. 261, 270 (2009) (Roberts, C.J., dissenting) (“We should not rush to answer

a novel question” that “could benefit from further attention in the court of appeals . . . in the absence of a

pronounced conflict among the circuits.”); Yee, 503

U.S. at 538 (“Prudence also dictates awaiting a case in

which the issue was fully litigated below, so that we

will have the benefit of developed arguments on both

sides and lower court opinions squarely addressing the

question.” (citation omitted)); United States v. Mendoza, 464 U.S. 154, 160, 163 (1984) (describing “the

benefit [this Court] receives from permitting . . . courts

26

of appeals to explore a difficult question before this

Court grants certiorari” (citation omitted)).

Having plucked this case before allowing the Ninth

Circuit to rule en banc, this Court should not rush to

answer a question, the answer to which has not yet

been informed by the appellate process.

E.

The risk of an erroneous ruling outweighs the exigencies.

Leapfrogging the court of appeals’ review is “an extraordinary remedy,” United States v. Higgs, 141

S. Ct. 645, 646 (2021) (Breyer J., dissenting), deployed

only in the most exigent circumstances that “justify deviation from normal appellate practice and . . . require

immediate determination in this Court,” see U.S. SUP.

CT. R. 11.

As a result, the Court has granted certiorari before

judgment in extreme cases. See e.g., Dep’t of Com. v.

New York, 139 S. Ct. 2551, 2565 (2019) (the census

questionnaire needed to be finalized for printing in

time for the decennial census); Dames & Moore v. Regan, 453 U.S. 654, 660 (1981) (resolving lower courts’

conflicting conclusions to allow the United States to

avoid breaching an executive agreement); United

States v. Nixon, 418 U.S. 683, 687–688, 691–692 (1974)

(avoiding undue delay in grand jury proceedings that

named the sitting President as an unindicted co-conspirator and served subpoenas to the President), superseded by statute on other grounds as recognized by

Bourjaily v. United States, 483 U.S. 171, 177–179

(1987); Reid v. Covert, 354 U.S. 1, 3–5 (1957) (resolving

the constitutionality of court martial proceedings

against civilians); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 583–584 (1952) (a steel-workers

27

strike “immediately jeopardize[d] our national defense” during the Korean War because steel production was crucial to the war effort); Ex parte Quirin, 317

U.S. 1, 19–20 (1942) (“to preserve unimpaired the constitutional safeguards of civil liberty” and to avoid any

delay in reviewing military jurisdiction over Nazi spies

during World War II).

This case does not similarly “demand prompt resolution.” See Dames & Moore, 488 U.S. at 668; see also

U.S. SUP. CT. R. 11. Given the continued evolution of

the record and the amendments to Idaho’s law, prudence instead warrants dismissal of this case so that

the lower courts can fully flesh out any potential constitutional issues. In fact, it is simply impossible to

know, as Petitioners urge, whether “many” state laws

are at risk of preemption by EMTALA. Idaho Br. 40.

No record has been developed about those states’ laws,

and those laws are not before this Court. Only one

other circuit court has thus far addressed the issue of

EMTALA’s preemptive effect, and no other cases raising similar issues are pending. And so, there is no “disarray” among the lower federal courts on this issue,

despite Petitioners’ claims. See Mistretta v. United

States, 488 U.S. 361, 371 (1989) (granting certiorari

because of the disarray among the federal district

courts).

With the facts and arguments in this case still in

their infancy, the Court instead risks framing “broad

rules, seemingly sensible on one set of facts, which

may prove ill-considered in other circumstances.”

Gates, 462 U.S. at 224. Further, review by this Court

at such a preliminary stage would effectively provide

Petitioners with two bites at the apple. If Petitioners

lose, they still could advance new claims below based

28

on the amended law and a new factual record. If they

prevail, they will likely face new challenges from the

United States that endeavor to keep the case alive. In

either scenario, the risk that this Court will see this

case once again is significant. Indeed, a ruling by this

Court that upholds the lower court’s injunction may

not apply to the law as now constituted.

In sum, ruling now on this interlocutory, evolving,

and unexplored record “does a disservice to [the

Court’s] own appellate processes, which serve both to

constrain and legitimate the Court’s authority.” Merrill v. Milligan, 142 S. Ct. 879, 889 (2022) (Kagan, J.,

dissenting), stay vacated, Allen v. Caster, 143 S. Ct.

2607 (2023) (Mem.). Dismissing this writ of certiorari

as improvidently granted allows the appellate process

to function as it should, ultimately presenting the

Court an opportunity for “final review” instead of demanding of it a “first view,” which it nearly always refuses to, and ought not, provide. See Zivotofsky, 566

U.S. at 201 (quoting Adarand Constructors, 534 U.S.

at 110).

CONCLUSION

The writ of certiorari should be dismissed as improvidently granted.

29

Respectfully submitted.

EMILY KANSTROOM MUSGRAVE

Counsel of Record

SUSAN FINEGAN

MEREDITH LEARY

MITCHELL J. CLOUGH

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

One Financial Center

Boston, MA 02111

(617) 542-6000

EKMusgrave@mintz.com

KENT GREENFIELD

BOSTON COLLEGE

LAW SCHOOL

885 Centre Street

Newton, MA 02459

JESSICA GOUDREAULT

EVAN M. PIERCEY

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

919 Third Avenue

New York, NY 10022

JENNIFER YOONJEE KIM

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

3580 Carmel Mountain Road

San Diego, CA 92130

Counsel for Amici Curiae

MARCH 2024