Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

Supreme Court U

FILED

FEB - 1 201

ee OF THE CL

In the Supreme Court of the United States

WHOLE WOMAN'S HEALTH, et al., Petitioners,

Vv.

JOHN HELLERSTEDT, M.D., COMM’R, TEXAS DEP’T OF

STATE HEALTH SERVICES, et al., Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS,

TEXAS CATHOLIC CONFERENCE, NATIONAL

ASSOCIATION OF EVANGELICALS, THE

LUTHERAN CHURCH-MISSOURI SYNOD, THE

ETHICS & RELIGIOUS LIBERTY

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION, AND THE SOUTHERN

BAPTISTS OF TEXAS CONVENTION IN

SUPPORT OF RESPONDENTS

ANTHONY R. PICARELLO, JR.*

JEFFREY HUNTER MOON

MICHAEL F. MOSES

United States Conference

of Catholic Bishops

3211 Fourth Street, N.E.

Washington, D.C. 20017

(202) 541-3300

*Counsel of Record apicarello@usccb.org

TABLE OF CONTENTS

A iF CE ON sicescistnsinivensantnininenniciniin i

Ey EP II sei ssniciisisinticintesalemiesninasinboesainianens 1

SUMMARY OF ARGUMENT .................::cccssseseeeesseees 1

NT TOEE sili bsidinninsiniceisidinannsiaanicceeiiniianiataameesidinmuianns 3

I. Faithful Application of This Court's

Precedents Requires Upholding Texas’s

Ambulatory Surgical Center and Admitting

Privileges Requirements. ................ccccccceeeeeeeeeees 3

II. There Is Ample Evidence of Harm to Women

Justifying the Texas Laws Challenged Here... 10

A. Hospital Admitting Privileges ................. 12

B. Ambulatory Surgical Center Require-

i ctcrestincetccsiesitisiinsnnierncnenssenuiiiiiiniasiinvaneniins 17

STITT ssiecissstienicuctipetingntanmeneeseniiecatanbasemaniditit 25

I iiaissiennsemeivneianatecbustaniinecemivenndtenian 26

TABLE OF AUTHORITIES

Cases

Comprehensive Health v. Templeton, 954 F.Supp.2d

ee Ss MN icciesciinsicintiindiiniiisencnatiecsesasisiaialaiidumisii 7

Connecticut v. Menillo, 423 U.S. 9 (1975).......... 4,5,9

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

Greenville Women’s Clinic v. Bryant, 222 F.3d 157

Sadia haat laa ile aici 11, 15, 19

Greenville Women’s Clinic v. Comm’, S.C. Dep’t of

Health & Envtl. Control, 317 F.3d 357 (4th Cir.

ER RE IR TAR era eee men ween Raabe Lame hee 12

Harris v. McRae, 448 U.S. 297 (1980)................000008 24

Mazurek v. Armstrong, 520 U.S. 968 (1997).......... 8,9

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

sins caaiiciidsiinidiaaaniaiaiiceediinieaiinianibianidinasiiae passim

Planned Parenthood v. Commissioner, 64 F.Supp.3d

Re, Sls HIE eiiccinstesehsiiiatcnia niacticabeabdaiibionaiadbics 7

Planned Parenthood v. Daugaard, 799 F.Supp.2d

I I aL lati ali 7

Planned Parenthood v. DeWine, 64 F.Supp.3d 1060

a 7

Planned Parenthood of Greater Texas Surgical Health

Services v. Abbott, 748 F.3d 583 (5th Cir. 2014)

ini esiiciodaieitieiuinaeiihadeisileitiaibadiaiaciilntiaininicigelieg 12, 14, 16

Planned Parenthood v. Heineman, 724 F.Supp.2d

es Ms CIEE - piccreciciinsitinsiiciisincineetsniiiecsiianainianiins 7,8

Planned Parenthood v. Humble, 753 F.3d 905 (9th

i 7

Planned Parenthood v. Rounds, 686 F.3d 889 (8th

RES EERO Ra en ee er OC AEE ROOT Sere? 8

Planned Parenthood v. Strange, 33 F.Supp.3d 1330

ee ae ee ee ene 7

Planned Parenthood of Wisconsin v. Schimel, 806

F.3d 908 (7th Cir. 2015) .............00.0... 11, 12, 13, 14

Planned Parenthood of Wisconsin v. Van Hollen, 738

Sr I saute 15

Roe v. Wade, 410 U.S. 113 (1978)... passim

Simopoulos v. Virginia, 462 U.S. 506 (1983) .... 4, 5, 9

Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)....... 7

Webster v. Reproductive Health Services, 492 U.S.490

a a a a g

Women’s Health Center v. Webster, 871 F.2d 1377

REARS STES e ee ec Pen ee 12

ili

Other Authorities

American College of Surgeons, Statement on Patient

Safety Principles for Office-based Surgery

Utilizing Moderate Sedation/ Analgesia, Deep

Sedation /Analgesia, or General Anesthesia,

Bulletin of the American College of Surgeons,

VOR. GB, MO. 4 Came. BODE) ..ccccscccccccccccsceccceseeees 14, 15

Bryon Calhoun, M.D., The Maternal Mortality Myth

in the Context of Legalized Abortion, 80 LINACRE

GUARTERLY BG4 (BO18).......ccccccccccccccccsccccccscesesoseses 17

In re County Investigating Grand Jury XXIII, Report

of the Grand Jury, Misc. No. 0009901-2008 (Pa.

Ct. Common Pleas, Crim. Trial Div.) (Jan. 14,

SUT caieieansusrcacedviiehunbaieasinpdaseaaicoiasteindiniedileuscticiniiaieiins 22, 23

Brady Dennis, Jury Convicts Abortion Provider

Kermit Gosnell of Murder, WASH. POST (May

SERRE DIES LTRS MOL Ss ee a 22

Inspections Find Notorious Texas Abortion Chain

Running Filthy Clinics, Despite New Safety

Standards, LifeSite News (Oct. 30, 2013) _....... 21

ANGELA LANFRANCHI, M.D., LAN GENTLES, M.D., &

ELIZABETH RING-CASSIDY, M.D., COMPLICATIONS:

ABORTION’S IMPACT ON WOMEN (2013).......... 16, 17

National Abortion Federation, Having an Abortion?

Your Guide to Good Care (2000) ...............ccc0eee0es 15

National Abortion Federation, Standards for

I I a cecematin 15

iV

Brent Rooney & Byron C. Calhoun, M.D., Induced

Abortion and Risk of Later Premature Births, 8 J.

AM. PHYSICIANS & SURGEONS 46 (2003) .......:..... 17

William Saletan, The Back Alley: How the Politics of

Abortion Protects Bad Clinics, Pt. 8 (Feb. 25, 2011)

semetnesattenbiadiiaidideiiiundaaiiadaa ae 23

Cheryl Sullenger, Nearly 1,000 Texas Women

Hospitalized Every Year after Botched Abortions,

RAG CR. BE, BB icctssicstistccactonecctsviniaaann 16

Texas Catholic Conference, Support HB 2 & SB 1

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of Beaumont

CHPOE, 'F,, BID ED cccssccnccecesvecssntieiiieniniuanmameannee 21

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of Beaumont

GERI Gi, TRE sscisniccccnssccnsstnticnsbacninnamannianeaaane 21

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of Beaumont

Cat, BG, GED ccncccitnsnsecersnivenisesetttnetamamemanann 21

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of Fort Worth

CR. TEE, TIPO ED ceccsccocsccssssssctttdnssnadienansammmaanan 20

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of McAllen (Oct.

TE, FICE kccccciscicsisssinienncrmnitacdiodmanaiaanee 19

Texas Dep’t of State Health Services, Inspection

Report of Whole Woman’s Health of San Antonio

IE EE 20

John J. Thorpe, Jr., M.D., et al., Long Term Physical

and Psychological Consequences of Induced

Abortion: Review of the Evidence, 58 OBSTETRICAL

& GYNECOLOGICAL SURVEY 67 (2002) ................ 17

vi

INTEREST OF AMICI

The United States Conference of Catholic Bishops,

Texas Catholic Conference, National Association of

Evangelicals, the Lutheran Church-Missouri Synod,

the Ethics & Religious Liberty Commission of the

Southern Baptist Convention, and the Southern

Baptists of Texas Convention unite here as amici

curiae on behalf of the respondents.

Individual statements of interest are provided in

the Appendix to this Brief.

SUMMARY OF ARGUMENT

For over four decades, commencing with Roe v.

Wade, 410 U.S. 113 (1973), this Court has held that

states may enforce standards relating to the

qualifications of physicians who perform abortions and

the conditions of facilities in which abortion is

performed. Planned Parenthood v. Casey, 505 U.S.

833 (1992), allows even greater regulation of abortion

to protect maternal life and health than had been

allowed in some prior cases. To hold that states may

not enact measures like the Texas law challenged here

would be a betrayal of over 40 years of precedent,

including Casey and the concerns about stare decisis

! Pursuant to Supreme Court Rule 37.6, counsel for amici state

that they authored this brief, in whole, and that no person or

entity other than amici made a monetary contribution toward the

preparation or submission of this brief. The parties have

consented to the filing of this Brief. Their statements of consent

are filed herewith.

and institutional integrity that are at the heart of that

case.

Abortion providers should not be allowed to rely

upon their own failure to comply with health and

safety laws as a predicate for striking them down. To

hold otherwise is to give the providers an effective veto

over regulations that apply to them. Likewise,

providers do not stand in the shoes of their patients

when they resist regulations that promote patient

health and safety.

There is ample evidence in this case that hospital

admitting privileges and ambulatory surgical center

requirements protect women’s lives and health.

Admitting privileges ensure physician competency

and continuity of care, enhance inter-physician

communication and complication management, and

support doctors’ ethical duty not to abandon their

patients. These benefits are underscored by expert

testimony in this case as well as the recommendations

of a host of national medical associations.

Ambulatory surgical center requirements also

benefit patients, as experts in this case testified.

Perhaps the best indicia of the need for such

requirements are the numerous citations meted out by

the Texas Department of State Health Services to

abortion clinics, including petitioner Whole Woman’s

Health. When such requirements are not enforced,

abuses detrimental to women’s lives and health arise.

ARGUMENT

I. Faithful Application of This Court’s

Precedents Requires Upholding Texas’s

Ambulatory Surgical Center and

Admitting Privileges Requirements.

Under this Court’s precedents, including Roe v.

Wade, 410 U.S. 113 (1973), and Planned Parenthood v.

Casey, 505 U.S. 833 (1992), states may establish and

enforce standards relating to the licensure and

qualifications of doctors who perform abortions and to

ensure the safety of women undergoing an abortion.

The Texas hospital admitting privileges and

ambulatory surgical center (“ASC”) requirements

challenged in this case are the type of maternal-health

standards that this Court has upheld in prior cases.

Under faithful application of this Court’s precedents,

the Texas law passes constitutional muster.

Roe was the first case to make explicit that, in

regulating abortions, states have the authority to

establish and enforce standards protecting maternal

health:

The State has a legitimate interest in seeing to

it that abortion, like any other medical

procedure, is performed under circumstances

that insure maximum safety for the patient.

This interest obviously extends at least to the

performing physician and his staff, to the

facilities involved, to the availability of after-

care, and to adequate provision for any

complication or emergency that might arise.

z***

3

[A] State may regulate the abortion procedure

to the extent that the regulation reasonably

relates to the preservation and protection of

maternal health. Examples of permissible

state regulation in this area are requirements

as to the qualifications of the person who is to

perform the abortion; as to the licensure of

that person; as to the facility in which the

procedure is to be performed, that is, whether

it must be a hospital or may be a clinic or some

other place of less-than-hospital status; as to

the licensing of the facility; and the like.

410 US. at 150, 163.

Roe authorized regulation to advance a woman’s

health after the first trimester, but permitted

physician licensure requirements to be imposed

throughout pregnancy. Id. at 165; see also

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam

opinion upholding Connecticut law prohibiting

abortions by non-physicians at any stage of

pregnancy).?

Ten years after Roe, by an 8-1 vote, this Court

upheld a Virginia law requiring that abortions after

the first trimester be performed in an inpatient or

outpatient surgical hospital. Simopoulos v. Virginia,

462 U.S. 506 (1983). The Court concluded that “the

2 Casey would ultimately reject the trimester framework,

allowing maternal health regulation throughout pregnancy. 505

U.S. at 875-76, 878. Our point here is that even prior to Casey

this Court allowed regulations pertaining to the qualifications of

persons performing abortions to be applied throughout the course

of pregnancy.

State necessarily has considerable discretion in

determining standards for the licensing of medical

facilities.” Jd. at 516. Justice O’Connor concurred in

part and concurred in the judgment. Jd. at 519.

Foreshadowing this Court’s decision in Casey, she

rejected the notion that the constitutional validity of

the Virginia law was “contingent in any way on the

trimester in which [the abortion] is performed.” Jd. at

520. She also concluded that the requirement was “not

an undue burden.” Jd. The Texas law challenged in

the present case does not require that abortions be

performed in an inpatient or outpatient hospital, but

only in a facility that meets the requirements of an

ambulatory surgical center.

Casey did nothing to upset this Court’s conclusion

in Roe, Menillo and Simopoulos, that states could

adopt and enforce standards relating to physician

qualifications and clinic safety. Quite the contrary,

seven justices in Casey concluded that this Court’s

earlier decisions had too severely and improperly

restricted the power of states to promote women’s

health in the regulation of abortion. 505 U.S., at 871-

78, 881-87 (O’Connor, Kennedy, & Souter, JJ.); id. at

944 (Rehnquist, C.J., joined by White, Scalia, and

Thomas, JJ.) (concurring in the judgment in part,

dissenting in part). The justices who wrote the joint

opinion in Casey concluded that this Court’s earlier

decisions had gone “too far” in striking down

regulations that “in no real sense deprived women of

the ultimate decision” whether to have an abortion.

Id. at 875. They rejected Roe’s trimester framework,

holding that “the State has [a] legitimate interest[]

from the outset of the pregnancy in protecting the

health of the woman,” and rejected strict scrutiny in

5

favor of a more lenient undue burden standard. Jd. at

876-78. Under Casey, therefore, states have greater

latitude to advance the interest in maternal health

than had been allowed in the two decades following

Roe.

Casey also rejected the claim that abortion

regulations create an undue burden simply by making

it more difficult or expensive to obtain an abortion.

“The fact that a law which serves a valid purpose, one

not designed to strike at the right [to choose whether

to have an abortion], 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.

The authors of the joint opinion repeatedly declined

to say whether Roe was correct in deciding that states

constitutionally may not ban abortion before viability.®

Instead, the justices who joined that opinion provided

a detailed explanation of why, in their view, stare

decisis and concern for institutional integrity required

continued adherence to Roe’s viability rule. 505 U.S.

at 854-69. Four other justices voted to overrule Roe in

8 605 U.S. at 871 (“We do not need to say whether each of us, had

we been Members of the Court when the valuation of the state

interest came before it as an original matter, would have

concluded, as the Roe Court did, that its weight is insufficient to

justify a ban on abortions prior to viability. The matter is not

before us in the first instance”); id. (“the immediate question is

not the soundness of Roe’s resolution of the issue, but the

precedential force that must be accorded to its holding”); id. at

853 (“the reservations any of us may have in reaffirming the

central holding of Roe are outweighed by the explication of

individual liberty we have given combined with the force of stare

decisis”).

its entirety. Jd. at 944 (Rehnquist, C.J., joined by

White, Scalia, and Thomas, JJ.). Thus, in Casey seven

justices voted to allow greater state regulation of

abortion, while a differently constituted five-justice

majority declined to overrule Roe’s viability rule—with

three of those five justices relying on stare decisis

rather than an independent judgment that the

viability rule was correct.

As a majority of this Court would later describe it,

the joint opinion in Casey “struck a balance,” and this

balance was “central to its holding.” Gonzales v.

Carhart, 550 U.S. 124, 146 (2007). States could not

ban abortion before viability, but they could regulate

abortion throughout pregnancy to further the interest

in protecting women’s health and promoting unborn

human life, and they could do so with greater

legislative discretion than allowed by some of this

Court’s earlier cases.

After Casey, however, abortion providers continued

to challenge regulations designed to protect women’s

health and promote unborn human life with a

frequency and vigor that might lead a neutral observer

to conclude, mistakenly, that Casey had nothing to say

on these subjects.‘ When presented with such

4 See, e.g., Planned Parenthood v. Commissioner, 64 F.Supp.3d

1236 (S.D. Ind. 2014) (safety requirements); Stuart v. Camnitz,

774 F.3d 238 (4th Cir. 2014) (ultrasound); Planned Parenthood v.

DeWine, 64 F.Supp.3d 1060 (S.D. Ohio 2014) (RU-486); Planned

Parenthood v. Strange, 33 F.Supp.3d 1330 (M.D. Ala. 2014)

(admitting privileges); Planned Parenthood v. Humble, 753 F.3d

905 (9th Cir. 2014) (RU-486); Comprehensive Health v.

Templeton, 954 F.Supp.2d 1205 (D. Kan. 2013) (informed

consent); Planned Parenthood v. Daugaard, 799 F.Supp.2d 1048

(D. S.D. 2011) (same); Planned Parenthood v. Heineman, 724

7

challenges, this Court remained steadfast in holding

that states have the authority to regulate physicians

and facilities that provide abortion. Gonzales, 550

U.S. at 157 (“{T]he State has legitimate concern for

maintaining high standards of professional conduct in

the practice of medicine. Under our precedents it

is clear the State has a significant role to play in

regulating the medical profession.”) (interna!

quotation marks omitted); see also Mazurek v.

Armstrong, 520 U.S. 968 (1997) (per curiam opinion

upholding Montana law prohibiting abortions by non-

physicians).

Gonzales emphasized that it is not the Judiciary’s

role to second-guess state regulatory judgments, even

in the face of conflicting medical opinions. “Medical

uncertainty does not foreclose the exercise of

legislative power in the abortion context any more

than it does in other contexts.” 550 U.S. at 164; see id.

at 163 (“The Court has given state and federal

legislatures wide discretion to pass legislation in areas

where there is medical and scientific uncertainty.”).5

F.Supp.2d 1025 (D. Neb. 2010) (same); Planned Parenthood v.

Rounds, 686 F.3d 889 (8th Cir. 2012) (same).

5 Gonzales’s reaffirmation of legislative competence, and the

importance of judicial restraint, was prudent. A legislature or

administrative agency can respond quickly to new information in

medicine and changes in medical practice. Once such issues are

made the subject of a constitutional decision, however, there is no

advancing or retreating from that decision short of further

litigation to overrule or limit it. To bar states from adopting

admitting privileges and ambulatory § surgical center

requirements as a matter of constitutional law would make this

Court precisely the sort of ex officio medical board that it has said

it is not.

See also Mazurek, 520 U.S. at 973 (legislatures have

“broad latitude to decide that particular functions may

be performed only by licensed professionals, even if an

objective assessment might suggest that those same

tasks could be performed by others”), quoting Casey,

505 U.S. at 885. This Court has rejected the invitation

to sit as “the country’s ex offficio medical board.”

Gonzales, 550 U.S. at 163-64, quoting Webster v.

Reproductive Health Services, 492 U.S. 490, 518-19

(1989) (plurality opinion).

Adherence to Roe, Menillo, Simopoulos, Casey,

Mazurek, and Gonzales, and to the institutional and

stare decisis interests that were dispositive in Casey,

leads invariably to the conclusion that the Texas laws

challenged here are constitutional. As this Court has

said for over four decades, states may adopt and

enforce requirements with respect to physicians and

facilities that perform abortions just as it may for

doctors and facilities that perform any medical

procedure. The Texas legislature’s decision to require

hospital admitting privileges and compliance with

other health and safety standards is entirely within its

competence, and that decision would be entitled to

deference even if there were medical uncertainty about

it. E.g., Gonzales, 550 U.S. at 163-64, 166-67. To hold

that states may not enact such measures would

require the rejection of over 40 years of case law. Such

a move would be a betrayal of Casey in particular, for

it would be contrary to the concerns about stare decisis

and institutional integrity that are at the heart of that

case.

The petitioners are therefore in a dilemma. If stare

decisis is the animating principle that underlies the

9

viability rule, as the joint opinion in Casey concluded,

then the same considerations of stare decisis require

upholding the maternal-health laws challenged in this

case. On the other hand, if stare decisis is insufficient

reason to uphold the laws challenged here, then it

must be asked whether continued adherence to the

viability rule is justified. If the petitioners upset one

side of the balance achieved in Casey, they necessarily

upset the other. Put another way, Casey cannot be

said to have struck a balance if stare decisis requires

continued recognition of the viability rule but nothing

else. That is not a balance, but a return to the strict

scrutiny that seven justices of this Court rejected in

Casey.

Il. There Is Ample Evidence of Harm to

Women Justifying the Texas Laws

Challenged Here.

This case follows a familiar pattern. First, a state

passes a law protecting the health and safety of women

undergoing abortion. Then abortion providers, of their

own choosing, refuse to devote the resources to comply.

Instead, they fund litigation to overturn the law,

claiming: (a) their clinics are out of compliance and

therefore will have to close; and (b) closure of the

clinics will unduly burden the right of women to choose

an abortion.

This is entirely backwards, and for two reasons.

First, abortion providers should not be able to

assert their own refusal or inability to comply with

state health and safety laws as a predicate for striking

down these laws. To allow that is to give the providers

a veto over any regulations that apply to them.

10

Gonzales, 550 U.S. at 166-67 (noting the impropriety

of giving abortion providers such a veto); see Greenville

Women’s Clinic v. Bryant, 222 F.3d 157, 171 (4th Cir.

2000) (concluding that it would “irrationally

hamstring the State’s effort to raise the standard of

care in certain abortion clinics” were the court to

accede to the argument that the clinics’ “performance

falls so far below appropriate norms” as to necessitate

an expensive upgrade of their practice).

Second, with regard to health and safety

standards, the interests of abortion providers and

patients do not coincide and, to some extent, are

adverse. Providers have a direct economic interest in

avoiding the time and expense needed to comply with

health and safety standards. Patients, on the other

hand, have an obvious interest in their own safety and

in not having their health compromised by any

procedure. The premise that abortion providers stand

in the shoes of their patients is flawed when, as here,

they challenge laws that protect their patients’ health

and safety. “[I]n no other area of medicine [than

abortion] may a doctor bring a suit on behalf of a

patient solely because the doctor finds a safety

regulation cumbersome. Where state regulation

imposes on doctors measures designed to improve

patient safety, doctor-patient interests may diverge.”

Planned Parenthood of Wisconsin v. Schimel, 806 F.3d

908, 924 (7th Cir. 2015) (Manion, J., dissenting).

The petitioners are thus in the awkward position of

arguing that health and safety standards with which

they do not comply, standards adopted to protect the

health and safety of their patients, will have the

opposite effect by driving noncompliant providers out

of business. Only in cases involving abortion are such

1]

self-serving claims taken seriously. Id. at 923 (“[N]o

reasonable patient considering a medical procedure

known to result in complications—potentially even

deatn—would regard state measures designed to

minimize those risks as an imposition on her

constitutional rights.”).

Federal courts of appeals and medical experts

recognize that ASC and hospital admitting privilege

requirements protect the health and safety of women.

We consider these requirements in turn.

A. Hospital Admitting Privileges

Petitioners claim that “(t]he admitting-privileges

requirement provides no health benefit to abortion

patients.” Pet. Br. 19 (emphasis added). This is

demonstrably false. As the Fifth Circuit concluded,

admitting privileges ensure physician competency and

continuity of care, enhance inter-physician

communication and complication management, and

support the ethical duty not to abandon patients.

Planned Parenthood of Greater Texas Surgical Health

Services v. Abbott, 748 F.3d 583, 592 (5th Cir. 2014).

As courts have noted, these interests are “obvious” and

the state has “undoubted authority” to further them by

requiring admitting privileges.®

8 Greenville Women’s Clinic v. Comm’r, S.C. Dep't of Health &

Envtl. Control, 317 F.3d 357, 363 (4th Cir. 2002) (admitting

privileges requirement is “obviously beneficial to patients”

undergoing an abortion); Women’s Health Center v. Webster, 871

F.2d 1377, 1381 (8th 1989) (finding “no difficulty” in concluding

that hospital admitting privileges requirement protects the

health of patients experiencing complications from an abortion,

and that the state has “undoubted authority” to enact such a

12

Medical experts recognize that abortion patients

benefit from having physicians with hospital

admitting privileges. One benefit is credentialing.

Experts in this case testified that the admitting

privileges requirement “assures peer-review of

abortion providers by requiring them to be

credentialed _, thereby protecting patients from less

than qualified providers.” Whole Woman’s Health v.

Cole, 790 F.3d 563, 579 (5th Cir. 2015) (quoting

testimony); see also J.A. 866 (Testimony of James

Anderson, M.D.) (noting that plaintiffs’ experts in this

case “discount the long-standing value of hospital

credentialing and privileging and provide no

reasonable or objective alternative method to evaluate

a physician’s credentials and competency”).

Another benefit is the avoidance of delays in

transfer in the event of a complication. J.A. 851

(Testimony of Mayra Jimenez Thompson, M.D.); see

also J.A. 868 (Testimony of James Anderson, M.D.)

(hospital admitting privileges “reduce[]

communication errors and costly time delays and thus

improve[] patient safety and clinical outcomes”); J.A.

897 (“Another major benefit of requiring abortion

providers to have local hospital admitting privileges is

that this minimizes time delays in the treatment of

critical conditions”). Such delays are not

inconsequential. A delay of “as little as one hour, can

mean the difference between life and death” for a

patient experiencing a post-abortion complication.

J.A. 899 (Testimony of James Anderson, M.D.); see J.A.

requirement); see also Schimel, 806 F.3d at 930 (Manion, J.,

dissenting) (admitting privileges requirement “beyond a doubt”

protects the health and safety of women undergoing an abortion).

13

865 (admitting privileges “will improve the

postoperative management of serious post-abortion

complications”).’

In a prior facial challenge to Texas’s hospital

admitting privileges requirement, medical experts

offered similar testimony. Planned Parenthood of

Greater Texas Surgical Health Services v. Abbott, 748

F.3d at 595 (referencing expert testimony that an

admitting privileges requirement would lead to

greater continuity of care, increase quality of care, and

reduce risks from complications), cited in Whole

Woman's Health v. Cole, 790 F.3d at 579 n.19. Even

medical experts testifying on behalf of abortion

providers have acknowledged that admitting

privileges increase patient safety. Shimel, 806 F.3d at

927 n.2 (Manion, J., dissenting) (“plaintiffs’ own expert

and the court-appointed expert testified that

admitting privileges are beneficial because they make

abortions safer”).

Medical associations of all stripes agree. In 2003,

the American College of Surgeons issued a statement

that reflects a consensus in the surgical community on

“a set of 10 core principles that states should examine

when moving to regulate office-based procedures.”®

? Abortion providers have claimed for years that informed consent

requirements cause unjustifiable delay. Yet in this case they

challenge a law that, if they will only comply with it, prevents

delay by facilitating the prompt transfer of a patient (and

relevant information about that patient) in the event of a

complication requiring hospitalization. It seems the providers

are perfectly willing to tolerate delay, even at risk to their

patients’ health, if it means avoiding regulation.

8 American College of Surgeons, Statement on Patient Safety

Principles for Office-based Surgery Utilizing Moderate

14

These principles, unanimously agreed to by over 30

medical groups—including the American Medical

Association, the American College of Obstetricians

and Gynecologists, and the American Society for

Reproductive Medicine—provide that “[p]hysicians

performing office-based surgery must have admitting

privileges at a nearby hospital” or similar

arrangement.’ Even the National Abortion Federation

(“NAF”), a professional association of abortion

providers, has recommended that “[iJn the case of

emergency, the doctor should be able to admit patients

to a nearby hospital (no more than 20 minutes

away).”!° This requirement, proposed by the abortion

industry's own trade association, is more rigorous than

Texas’s requirement that the doctor have admitting

Sedation/Analgesia, Deep Sedation/Analgesia, or General

Anesthesia, Bulletin of the American College of Surgeons, vol. 89,

no. 4 (Apr. 2004), https://www.facs.org/about-acs/statements/46-

office-based-surgery, quoted in Planned Parenthood of Wisconsin

v. Van Hollen, 738 F.3d 786, 800 & n.1 (7th Cir. 2013) (Manion,

J., concurring in part and in the judgment).

® Jd. (Core Principle #4).

10 National Abortion Federation, Having an Abortion? Your Guide

to Good Care (2000) (emphasis added), http://web.archive.org/

web/200006 1920091 6/http://www.prochoice.org/pregnant/goodca

re.htm, quoted in Van Hollen, 738 F.3d at 801 (Manion, J.,

concurring in part and in the judgment). National standards

promulgated by NAF are intended by it to “serve as a useful

resource for state agencies charged with safeguarding the

public’s health.” National Abortion Federation, Standards for

Abortion Care (1998), quoted in Greenville Women’s Clinic v.

Bryant, 222 F.3d at 168. A witness for abortion clinics in South

Carolina testified that NAF standards are “a distillate of

extensive experience by highly trained and experienced [abortion}

providers.” 222 F.3d at 168.

15

privileges within 30 miles of the abortion clinic (NAF’s

requirement for a hospital 20 minutes away is not

satisfied by a requirement of 30 miles away unless one

maintained an average speed of 90 miles or higher the

entire distance to the hospital).

Complications necessitating transfer to a hospital

are not infrequent. In the prior facial challenge to the

Texas hospital admitting privileges law, “Planned

Parenthood conceded that at least 210 women in Texas

annually must be hospitalized after seeking an

abortion.” Planned Parenthood of Greater Texas

Surgical Health Services v. Abbott, 748 F.3d at 595.

The actual number of hospitalizations may be much

higher. J.A. 844 (Testimony of Mayra Jimenez

Thompson, M.D.) (noting that “serious complications

and death from abortion are underreported”); J.A. 870-

72 (Testimony of James Anderson, M.D.) (noting that

physicians are often called upon to treat complications

from abortions in the emergency room, but that the

complication rate from abortion is_ generally

underreported, owing in part to reticence on the part

of the patient or physician to report the abortion); see

Cheryl Sullenger, Nearly 1,000 Texas Women

Hospitalized Every Year after Botched Abortions (Apr.

22, 2014), www.lifenews.com/2014/04/22/nearly-1000-

texas-women-hospitalized-every-year-after-botched-

abortions/.

Complications from abortion can be _ serious.

Immediate complications include hemorrhage,

retained tissue, infection, uterine perforation, cervical

laceration, and immediate psychiatric morbidity.

ANGELA LANFRANCHI, M.D., IAN GENTLES, M.D., &

ELIZABETH RING-CASSIDY, M.D., COMPLICATIONS:

ABORTION’S IMPACT ON WOMEN 96 (2013). It is

16

estimated that, in the United States, “at least 45,000

women a year experience physical complications” from

abortion. Jd. at 97.1! There are also long-term

complications, such as placenta previa and pre-term

delivery in subsequent pregnancies. John J. Thorpe,

Jr., M.D., et al., Long Term Physical and Psychological

Consequences of Induced Abortion: Review of the

Evidence, 58 OBSTETRICAL & GYNECOLOGICAL SURVEY

67, 70-72, 75 (2002); see also Brent Rooney & Byron C.

Calhoun, M.D., Induced Abortion and Risk of Later

Premature Births, 8 J. AM. PHYSICIANS & SURGEONS 46

(2003) (identifying 49 studies that have demonstrated

a statistically significant increase in premature births

or low birth weight in subsequent pregnancies in

women with prior induced abortion).

Under these circumstances, there is ample

justification for requiring doctors performing

abortions to have hospital admitting privileges.

B. Ambulatory Surgical Center

Requirements

The petitioners “made no effort to narrow their

challenge to any particular standards of the ASC

"A comparison with maternal mortality associated with

childbirth would not make these figures any less significant.

Even if such a comparison were relevant, which it is not,

petitioners’ extravagant claim (Pet. Br. 16) that a woman is 100

times more likely to die from carrying a pregnancy to term than

from having an abortion is not credible. See Byron Calhoun,

M.D., The Maternal Mortality Myth in the Context of Legalized

Abortion, 80 LINACRE QUARTERLY 264 (2013) (stating that “there

is no credible scientific evidence” to support the claim that

childbirth is 14 [let alone 100] times more likely to result in

maternal death than abortion).

17

[ambulatory surgical center)” provision, but instead

asked the lower courts to “invalidate the entire ASC

requirement.” Whole Woman’s Health v. Cole, 790

F.3d at 579. As the Fifth Circuit noted, some of those

requirement are “benign and inexpensive.” Jd. at 579

(noting, as an example, that the ASC standards

require a soap dispenser at each hand washing

facility). The petitioners offered expert testimony that

the ASC construction requirements are “largely aimed

at maintaining a sterile operating environment,”

which they claim (counter-intuitively) is not necessary

for abortion. Jd. at 578 n.17. Their experts also

testified that abortion procedures do not require large

operating rooms or the presence of nurses. Jd.

Other experts disagreed. “Surgical abortion,” Dr.

Thompson testified, “is performed with

instrumentation and is indeed an invasive surgical

procedure. To the extent abortion is an invasive

surgery and has complications including bleeding and

infection, the safest operatory environment is a sterile

one.” J.A. 846. She testified that “abortion procedures

should be performed in an ASC where the higher

standard of care is required so as to better protect the

patient’s health and safety.” J.A. 850; see J.A. 851

(“[Bly requiring abortion facilities to conform to the

minimum standards of ASCs, the Act addresses the

specific needs of patients who may encounter serious

abortion complications, not the best interests or

convenience of the provider.”); J.A. 852 (“By requiring

abortion clinics to conform to the equivalent minimum

standards of ASCs, the standard of abortion care is

raised’).

Dr. Anderson reached the same conclusion. J.A.

865 (testifying that the ASC requirements are

18

“reasonable and medically necessary to protect the

health and safety of Texas women. (I]t is my

opinion that these regulations will improve the

quality of abortion care offered in abortion clinics”). By

one estimate, some 27 states currently require

abortion facilities to meet the structural standards of

ASCs. J.A. 869-70 (Testimony of Dr. Anderson). Like

the Fifth Circuit, other courts have upheld these or

similar requirements for abortion clinics, finding that

they “indisputably represent([] a reasonable attempt to

further the health of abortion patients.” Greenville

Women’s Clinic v. Bryant, 222 F.3d at 169.

Perhaps the best indicia of the need for ASC

requirements in Texas are the numerous citations

meted out by the Texas Department of State Health

Services (“DSHS”) based on its inspections of abortion

clinics. In the last few years, at least four clinics

operated by petitioner Whole Woman’s Health have

been cited by DSHS for deficiencies:

* Whole Woman’s Heath of McAllen was cited for

expired CPR training of staff, and failure to

follow proper sterilization procedures. !2

* Whole Woman’s Health of Fort Worth was cited

for expired equipment; expired, unlabeled, and

unsecured medication; failure to follow proper

procedures to ensure a sterile environment; and

failure to ensure that all staff providing patient

12 DSHS, Inspection Report of Oct. 18, 2013, based on survey

completed Sept. 4, 2013, www.texasallianceforlife.org/wp-

content/uploads/imported/issues/hb2/DSHS_inspection.WWH_

McAllen_09_04_2013.pdf.

19

care were currently certified in basic life

support. !%

* Whole Woman’s Health of San Antonio was

cited for failure to implement and enforce

acceptable environmental controls in cleaning

and preparing instruments for sterilization, and

for related deficiencies. '4

* Whole Woman’s Health of Beaumont was cited

for failure to provide a safe environment for

patients and staff; for improperly storing

sterilization solutions near a large hole in the

cabinet flooring that “had the likelihood to allow

rodents to enter the facility” and presenting a

risk that “splintered wood edges could puncture

the sterilization solutions”; for “numerous rusty

spots on the suction machines used on the

patient(s]”; for failure to implement procedures to

follow up on patients with post-abortion

complaints; and for failure to have EKG

equipment ready and working in the event of an

emergency. According to the report, a cardiac

defibrillator was “out of paper and the cardiac

cables were disconnected from the machine.”

18 DSHS, Inspection Report of Apr. 12, 2011, based on survey

completed Mar. 15, 2011, www.texasallianceforlife.org/wp-

content/uploads/imported/issues/hb2/DSHS_inspection.WWH_F

ort_Worth_03_15_2011.pdf.

14 DSHS, Inspection Report of Oct 15, 2013, based on survey

completed Aug. 29, 2013, www.texasallianceforlife.org/wp-

content/uploads/imported/issues/hb2/DSHS_inspection_.WWH_S

an_Antonio_08_29 2013.pdf.

20

Inspectors also found expired drugs and

unlabeled medication cups.'®

This list, which is by no means exhaustive,'®

renders. petitioners’ complaints about ASC

16 DSHS, Inspection Report of Oct. 18, 2013 based on survey

completed Oct. 3, 2013, www.texasallianceforlife.org/wp-content/

uploads/imported/issues/hb2/DSHS_inspection.WWH_Beaumon

t_10_03_2013.pdf.

This is not the first time Whole Woman's Health of Beaumont has

been cited for deficiencies. In 2011, for example, the clinic was

cited for “failure to ensure the staff was trained in [the]

sterilization” of “surgical instruments,” and “numerous rusty

spots on the suction machine” used on patients. The facility also

“failed to monitor the expiration dates on sterile supplies,” kept

“expired sterile supplies” in the supply closet, “failed to maintain

the sterility of the surgical instruments,” “failed to ensure staff

was trained in CPR,” “failed to have current emergency

medication in the emergency crash cart,” failed to have

emergency airway management equipment, and failed to have

currently-inspected fire extinguishers. DSHS, Inspection Report

of Dec. 7, 2011, based on survey completed Nov. 17, 2011,

www.texasallianceforlife.org/wp-content/uploads/imported/

issues/hb2/DSHS_inspection_.WWH_Beaumont_11_17_2011.pdf.

Whole Woman’s Health of Beaumont was also cited for

deficiencies based on a 2012 survey. DSHS, Inspection Report of

Jan. 9, 2013, based on survey completed Dec. 19, 2012,

www.texasallianceforlife.org/wp-content/uploads/imported/

issues/hb2/DSHS_inspection. WWH_Beaumont_12_19_2012.pdf.

16 See Inspections Find Notorious Texas Abortion Chain Running

Filthy Clinics, Despite New Safety Standards, LifeSite News (Oct.

30, 2013) (“Whole Woman's Health, a chain of abortion centers

spanning five cities in Texas, has been cited dozens of times over

the past three years for health and safety violations. During

the most recent round of inspections, inspectors found

dangerous conditions at three of the company’s five locations.”),

www .lifesitenews.com/news/inspections-find-notorious-texas-

21

requirements abstract by comparison. Are clinics that

fail to maintain a sterile environment, that allow

conditions conducive to rodents, that do not keep a

cardiac defibrillator in working order, and that have

been cited for these and many other deficiencies, in

any position to argue that that they (and not their

patients, who the state wishes to protect) are the

victims in this case? The clinics, not the state, are the

wrongdoers here.

The importance of ASC standards to patient safety

is further underscored by considering what happens

when they are not required or enforced. In 2013, Dr.

Kermit Gosnell was convicted of three counts of first-

degree murder of newborn infants and one count of

involuntary manslaughter of 41-year-old Karnamaya

Mongar, who died following an abortion by Dr.

Gosnell..1? The Grand Jury investigating him

concluded that “[t]he abhorrent conditions and

practices inside Gosnell’s clinic are directly

attributable to the Pennsylvania Health Department’s

refusal to treat abortion clinics as ambulatory surgical

facilities.” In re County Investigating Grand Jury

XXIII, Report of the Grand Jury, Misc. No. 0009901-

2008, p. 166 (Pa. Ct. Common Pleas, Crim. Trial Div.)

(filed as a public record by order dated Jan. 14, 2011),

abortion-chain-running-filthy-clinics-desp.

17 Brady Dennis, Jury Convicts Abortion Provider Kermit Gosnell

of Murder, WASH. POST (May 13, 2013), www.washington

post.com/national/health-science/2013/05/13/b4444bdc-bbda-1le

2-97d4-a479289a31f9_story.html. Dr. Gosnell was also convicted

of 21 felony counts of illegal late-term abortion and more than 200

counts of violating Pennsylvania’s informed consent law. Id.

22

www.phila.gov/districtattorney/pdfs/grandjurywomen

smedical.pdf.

Petitioners may think that the construction

requirements of ASCs are irrelevant to patient safety,

but the Grand Jury whose investigation led to Dr.

Gosnell’s indictment, trial and conviction plainly did

not agree. As detailed in the Grand Jury report, after

managing to open a locked emergency exit, emergency

medical personnel “had to waste precious more

minutes trying to maneuver through the narrow

cramped hallways that could not accommodate a

stretcher.” Id. at 129. Ms. Mongar was declared dead

at the hospital.'®

In any event, as Gonzales makes clear (550 U.S. at

163-64, 166-67), it is not an appropriate role for courts

to substitute their judgment for that of the state on

matters of medical regulation on which experts

disagree. Notably, petitioners in this case do “not

argue that it is impossible for abortion providers to

comply with the ASC requirement,!9 only costly and

difficult.” Whole Woman’s Health v. Cole, 790 F.3d at

585 n.28 (emphasis added). But, as Casey concluded,

18 The problems in Pennsylvania are not unique to that state. See

William Saletan, The Back Alley: How the Politics of Abortion

Protects Bad Clinics, Pt. 8 (Feb. 25, 2011) (describing very serious

maternal health complications, including some maternal deaths,

as a result of abortions performed in clinics in Florida, Delaware,

Illinois, Maryland, Massachusetts, and New Jersey),

www.slate.com/articles/news_and_politics/the_back_alley/2011/0

2/the_next_gosnell html.

19 Many abortion clinics in Texas are already complying with the

ASC requirement. Whole Woman's Health v. Cole, 790 F.3d at

578 & n.15.

23

“(t]he fact that a law which serves a valid purpose

has the incidental effect of making it more difficult or

more expensive to procure an abortion cannot be

enough to invalidate it.” 505 U.S. at 874.

Likewise, petitioners’ complaint that a private

leasing opportunity fell through due to hostility to

abortion, Whole Woman’s Health v. Cole, 790 F.3d at

578 n.15, or that poverty makes it difficult for some

women to obtain an abortion, id. at 589, are not

burdens imposed by the state.2° Casey only forbids an

undue burden by the government on the decision

whether to have an abortion. The government “need

not remove those [obstacles to abortion] not of its own

creation.” Harris v. McRae, 448 U.S. 297, 316 (1980)

(upholding law limiting use of federal funds for

abortion, noting that “financial constraints that

restrict an indigent woman’s ability to enjoy the full

range of constitutionally protected freedom of choice

are the product not of governmental! restrictions on

access to abortions, but rather of her indigency’).

The legislation challenged in this case is a

responsible exercise of the state’s authority to protect

the lives and health of women seeking an abortion.

“Their lives,” as amicus Texas Catholic Conference

observed while the bills were being debated, “are just

as precious as those destroyed in the act of abortion

The state has a legitimate interest in ensuring

20 Some of petitioners’ claims in this regard border on the absurd.

In this Court, for example, they complain that petitioner

Sherwood Lynn is “past retirement age” and “unable to work at

the [McAllen] clinic full-time.” Pet. Br. 24. Clearly the state

cannot be faulted for Dr. Lynn’s age or the unwillingness of

younger physicians to perform abortions.

24

the maximum level of safety for the woman subject to

the [abortion] procedure and that there is a viable

plan for emergency care should complications such as

hemorrhage, infection, uterine perforation, blood clots,

cervical tears, or allergic reactions occur.” Texas

Catholic Conference, Support HB 2 & SB 1, at 1. That

laudable legislative purpose and effect do not run afoul

of the Constitution.

CONCLUSION

The Texas law should be upheld in its entirety.

Respectfully submitted,

ANTHONY R. PICARELLO, JR.*

JEFFREY HUNTER MOON

MICHAEL F. MOSES

United States Conference

of Catholic Bishops

3211 Fourth Street, N.E.

Washington, D.C. 20017

apicarello@usccb.org

(202) 541-3300

February 3, 2016 *Counsel of Record

25

APPENDIX (List of Amici)

1. The Uni States Conference of Catholic

Bishops (“USCCB”). The USCCB is an assembly of the

leadership of the Catholic Church in the United

States. The USCCB seeks to unify, coordinate,

encourage, promote, and carry on Catholic activities in

the United States; to organize and conduct religious,

charitable and social welfare work at home and

abroad; to aid in education; to care for immigrants; and

generally to further these goals through education,

publication, and advocacy. To that end, the USCCB

provides and promotes a wide range of spiritual,

educational, and charitable services throughout the

country and around the world. The USCCB advocates

and promotes the Church’s pastoral teaching in such

diverse areas as education, family life, health care,

social welfare, immigrant aid, poverty assistance,

communications, human rights, and the sanctity and

dignity of human life.

2. Texas Catholic Conference (“TCC”). The TCC is

the public policy voice of the bishops of the state’s 15

Roman Catholic dioceses. The Roman Catholic

Bishops are the visible foundation of unity of the

Catholic Church and ensure that Christ’s mission

endures among the Catholic community across the

state. The Bishops direct the TCC to advocate on

legislative, regulatory, and policy issues that relate to

or affect the Church and its teachings. The TCC unites

with the USCCB to promote and fulfill the purposes

outlined in the USCCB’s statement of interest. The

issues presented here are of particular interest to the

TCC because they relate directly to the pastoral

26

teachings of the church and to the sanctity and dignity

of human life.

3. The National Association of Evangelicals

(“NAE”). NAE is the largest network of evangelical

churches, denominations, colleges, and independent

ministries in the United States. It serves 40 member

denominations, as well as numerous evangelical

associations, missions, nonprofits, colleges, seminaries

and independent churches. NAE serves as the

collective voice of evangelical churches and other

religious ministries. It believes that human life is

sacred because made in the image of God, that civil

government has no higher duty than to protect human

life, a id that duty is particularly applicable to the life

of the unborn because they are helpless to protect

themselves.

4. The Lutheran Church-Missouri Synod (“LCMS”).

The LCMS, a Missouri nonprofit corporation, has

6,150 member congregations with 2,200,000 baptized

members throughout the United States. The LCMS

believes in the sanctity of human life, including

“unborn children, whom God has woven together in

their mother’s wombs” (Psalm 139:13-16). The LCMS

full, supports laws, such as the Texas laws in this

case, that preserve and protect maternal life and

health.

5. The Ethics & Religious Liberty Commission

(“ERLC”) of the Southern Baptist Convention. The

ERLC is the moral concerns and public policy entity of

the Southern Baptist Convention (“SBC”), the nation’s

largest Protestant denomination, with over 46,000

churches and 15.8 million members. The ERLC is

charged by the SBC with addressing public policy

27

affecting such issues as the sanctity of human life,

human flourishing, religious liberty, marriage and

family, and ethics. The SBC has passed many

theological and policy statements expressing our

concerns about abortion and its impact on women.

Both the baby and the mother are created in the image

of God. Consequently, they both deserve utmost

respect and care. Not only are human beings killed in

an abortion, but the women who undergo abortion are

often traumatized, and in some cases they even die.

Women who make the choice to have an abortion

should be assured that everything possible has been

done to ensure their health and wellbeing during and

afterward. Anything less belittles their value in the

eyes of God and society.

6. The Southern Baptists of Texas Convention

(“SBTC”). The SBTC is a fellowship of 2,541 Southern

Baptist churches in Texas, representing

approximately one million church members. SBTC

supports the spiritual and physical wellbeing of all

people, whom we believe to be created in the image of

God and thus of great worth. JUur churches have from

our founding supported by resolution, benevolence, the

conduct of family ministries, and the support of

legislation, the holiness of all human lives, including

those of children and mothers. In regard to the Texas

law challenged here, we affirm that women who

undergo a medical procedure, including abortion,

should receive a consistently high level of care,

ensured by state regulation and the state’s role in

maintaining the common good.

28