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

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No. 15-274

IN THE

Supreme Court of the United States

WHOLE WOMAN’S HEALTH, ET AL.,

PETITIONERS,

JOHN HELLERSTEDT, COMMISSION, TEXAS

DEPARTMENT OF STATE HEALTH SERVICES, ET AL. ,

RESPONDENTS.

On Writs of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRiEF OF AMICUS CURIAE AFRICAN-

AMERICAN AND HISPANIC-AMERICAN

ORGANIZATIONS IN SUPPORT OF

RESPONDENTS

MORSE TAN, Esq.

Counsel of Record

27W 156 Fleming Dr

Winfield, IL 60190

(512) 289-5973

morsetan@gmail.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................:cccccssesssssecenees iii

INTEREST OF AMICUS CURIAE ..............c eee l

SUMMARY OF ARGUMENT....................ccccccssesseeeees 5

cael enindesdnanennadantoccaniennes 6

I. PROTECTING WOMEN FROM

SUBSTANDARD ABORTIONISTS AND

SUBSTANDARD ABORTION

FACILITIES, BOTH OF WHICH

DISPROPORTIONATELY IMPACT

RACIAL MINORITIES, IS A

LEGITIMATE STATE INTEREST..................... 6

Il. THE RACIAL DEMOGRAPHICS OF

ABORTION INDICATE THAT

MINORITIES ARE

DISPROPORTIONATELY IMPACTED

Bi THE ABORTION INDUSTRY. ................... 16

A. Rooted in the population control

movement of the early Twentieth

Century, abortion has historically

been used to target racial minorities.......... 16

B. The national statistics regarding

abortions committed on minorities

demonstrates its disproportional

a 20

‘3

C. Texas minority women fall prey to

most abortions in the state. ......................0. 23

TTC Stn ee Eee mae a 24

APPENDIX

Appendix A: Excerpt from 2011 Report by Life

Dynamics Incorporated...............cccccccccccssssscsscscceseees

TABLE OF AUTHORITIES

Cases:

Planned Parenthood of Greater Texas Surgical

Health Services v. Abbott (“Abbott IT”)

748 F.3d 583 (5% Cir. 2014)..........0.....00.... 15-16

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

eee a rae

Relf v. Weinberger,

372 F. Supp. 1196 (D.D.C. 1974).............ccceeeeee 18

Roe v. Wade,

EE ene Sana Pate ee

Act of July 12, 2013, 83" Leg., 2d C.S., Ch. 1,

I a rendiintiln

House Research Org., Bill Analysis at 10, Tex.

H.B. 2, 8374 Leg., 2d C.S. (July 9, 2013) (House

Bill Analysis), available at

http://www.hro.house.state.tx.us/pdf/ba832/hb00

“Abortion Surveillance — United States, 2010,”

Centers for Disease Control and Prevention

Morbidity and Mortality Weekly Report, Vol. 62,

No. 8, Nov. 29, 2013, available at http://

www.cdc.gov/mmwr/pdf /ss/ss6208. pdf ....................

Arialdi M. Minino, et al., Deaths: Final Data

for 2008. National Vital Statistics Reports:

Vol. 59 No. 10. Hyattsville, MD: National

Center for Health Statistics, 2011, available at

http://bit.ly/CDC-DEATHB. ..................scceecceseseeeeseees 23

Barbara Boland, “Planned Parenthood Settles

$2 Million Case After Botched Abortion,” CNS

News, Feb. 14, 2014, available’ at

http://cnsnews.com/news/article/barbar-

boland/planned-parenthood-settles-2-million-

case-after-botched-abortion ................c0ssceceeeeeeees 12-13

Brady Dennis, “Abortion doctor’s trial focuses on

immigrant’s death after procedure,” The

Washington Post, Apr. 16, 2013, available at

https://www.washingtonpost.com/national/health

-science/abortion-doctors-trial-focuses-on-

immigrants-death-after-

procedure/2013/04/16/735ca602-a6de- 1 1e2-a8e2-

ESI ncrcinnseccgnnemimesmensineinuenmntie 7

Brief of Amicus Curia Black Women’s Health

Initiative, NAACP v. Horne, 2015 WL 8736288

I a neneieel 17-18

Centers for Disease Control and Prevention,

Surveillance Summaries: Abortion

Surveillance United States 2010, 62 MMWR,

Nov. 29, 2013, available at http://

www.cdc.gov/mmwr/pdf/ss/ss6208. pdf ........ 11, 21, 24

Christopher Tietze, Induced Abortion: A

World Review, 1983, 5*6 Ed (1983). ......................... 20

Clenard Childress, MAAFA 21: A

documentary on eugenics and genocide,

YOUTUBE, (Oct. 27, 2012), available at

https://youtu.be/OeWxCRReTV4....................004. 22, 23

Conor Friedersdorft, “Why Dr. Kermit Gosnell’s

Trial Should Be a Front-Page Story,” The

Atlantic, Apr. 12, 2015, available at

http://www.theatlantic.com/national/archive/201

3/04/why-dr-kermit-gosnells-trial-should-be-a-

RSET ALAS RO re 7

Dennis Byrne, “Was Planned Parenthood

licensed to do the kind of abortion that killed

Tonya Reaves?”, ChicagoNow, July 25, 2012,

available at http://www.chicagonow.com

/dennis-byrnes-barbershop/2012/07/was-

planned-parenthood-licensed-to-do-the-kind-

of-abortion-that-killed-tonya-reaves/ ...................... 12

Donald T. Critchlow, INTENDED

CONSEQUEUENCES: BIRTH CONTROL,

ABORTION, AND THE FEDERAL

GOVERNMENT IN MODERN AMERICA 144

a clnaeneennogunhdans 18, 19

Dr. Alveda King, How Can the Dream Survive?,

ST. LOUIS REVIEW, Nov. 5, 2015, available at

http://stlouisreview.com/article/2015-11-05/how-

IIIT scnccccsinsscnpeienesnteptninmmnnmbdancnsessieeaiii 6

Dr. Alveda King, MAAFA 21: A documentary on

eugenics and genocide, YOUTUBE, (Oct. 27,

2012), available at

https://youtu.be/OeWxCCReTV4............ccccccceeeeeeeeees 23

Grand Jury Rpt., Jn re County Investigating

Grand Jury XXIII, No. 0009901-2008. 2011 WL

711902 (1% Jud. Dist. Pa. Jan. 14, 2011),

available at

http://www.phila.gov/districtattorney/pdfs/grandj

urywomensmedical. pdf ................cccceeeeeeeeeeeeees 8, 10-12

Guttmacher Institute — Induced Abortion in

the United States — July 2014 available at

http://www.guttmacher.org/pubx/fb_induced_a

ESERIES enna mene Ka REO NTS 21

Guttmacher Institute, National Reproductive

Health Profile, available at

http://bit.ly/2008NatlStats ...............cccceeeeeeeeeeeeeeeeeeee 23

Jones v. Planned Parenthood, No. 20013 L

00076 (Cir. Ct. of Cook Cnty., Ill.), Deposition

of Mandy Gittler, M.D., Aug. 22, 2013,

available at http://operationrescue.org/pdfs/

Deposition%200f%20Mandy%20Gittler,%20M.

Kim Severson, “Thousands Sterilized, a State

Weighs Restitution,” NY Times, Dec. 9, 2011,

available at

http://www.nytimes.com/2011/12/10/us/redress

-weighed-for-forced-sterilizations-

innorthcarolinahtm]?pagewanted=all..................... 17

Mark Crutcher, MAAFA 21: A documentary

on eugenics and genocide, YOUTUBE (Oct. 27,

2012), available at

https://youtu.be/OeWxCRReTV4..............ccccceeece eens 20

vil

New York State Department of Health, Vital

Statistics Table 23: Induced Abortion and

Abortion Ratios by Race/Ethnicity and

Resident County New York State 2013,

available at http://www.health.ny.gov

/statistics/vital_statistics/2013/table23.htm ...... 21-22

Operation Rescue, Special Report: Secret Ohio

Department of Health Docs Reveal 47 Horrific

Botched Abortions, Countless Safety Violations

and More, (May 26, 2015), available at

http://www.operationrescue.org/archives/speci

al-report-secret-ohio-department-of-health-

docs-reveal-47-horriffic-bothched- abortions-

countless-safety-violations-and-more’............... 14, 15

Randy Beck, Prioritizing Abortion Access over

Abortion, Safety in Pennsylvania, 8 U. ST.

THOMAS J.L. & PUB. POLICY 33, (2013)............. 12

Report of Expert Witness filed in support of

Complaint, Jones v. Planned Parenthood (Cir.

Ct. of Cook Cnty., Ill., Jan. 3, 2013) (No. 20013

SEES Erne ae ea ete ene 13

Samuel W Calhoun, Stopping Philadelphia

Abortion Provider Kermit Gosnell and

Preventing Others Like Him: An Outcome

That Both Pro-Choicers and Pro-Lifers Should

Support, 57 VILL. L. REV 1 (2012)..............0000...0.. 12

“State of Shame: N.C. sterilization survivors

fight for justice,” NBC’s Rock Center, Nov. 7,

2011, available at http://www.nbcnew.

com/video/rock-center/45201021.............ccccccceceeeeeees 16

Statement of Walter B. Hoye II], NATIONAL

BLACK PRO-LIFE COALITION ONLINE,

available at http://www.blackprolifecoalition.org/

speakers/walterhoye. html ....................2...ccececeeeeeeeeees 5

Texas Department of State Health Services,

Texas Population, 2010 (Historical Race

Ethnicity Categories), available at

http://www.dshs.state.tx.us/chs/popdat/ST2010.s

SRST EArt Oreck Sse ORR Re eas SNE BABES 23, 24

Texas House of Representatives, HOUSE

JOURNAL, 83"¢ Leg. 2d C.S., July 9, 2013, HB2

Debate — Second Reading, Testimony of Rep.

I ll eas Saad 9-10

Zoe Dutton, “Abortion’s Racial Gap,” The

Atlantic, Sept. 22, 2014, available at

http://www.theatlantic.com/health/archive/2014/

09/abortions-racial-gap/38025 V/ .............cccceeeeeeeeeeeeee 8

INTEREST OF AMICUS CURIAE!

Ryan Bomberger, Chief Creative Officer, The

Radiance Foundation is a non-profit, educational

organization established to affirm that every human

life has purpose. Through ad campaigns, multimedia

presentations, community outreaches, and citizen

journalism, Radiance illuminates the intrinsic value

we all possess. We motivate people to peacefully and

positively affect the world around them. Radiance

works on a local and national level to advance a

culture of life that rejects abortion, promotes

adoption, celebrates intact married families, and

protects the free speech that makes this messaging

possible.

Mark Gonzales, United States Hispanic Action

Network

The United States Hispanic Action Network

exists to train, educate, motivate and equip citizens,

Hispanics in particular, to change the culture to

reflect biblical truth. We reach tens of thousands of

Hispanic Americans and advocate a pro-life position.

Recognizing the disproportionate affect that abortion

is having on the Latino community, we supported

HB2 in Texas. As a Dallas, Texas based

organization, we have particular interest in this

Supreme Court case.

1 Parties to these cases have consented to the filing of this brief

and letters indicating their consent are on file with the Clerk.

Amicus states that no counsel for a party authored this brief in

whole or in part, and no person other than the amicus and its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief.

Catherine Davis, President, The Restoration

Project

The Restoration Project is a_ non-profit

organization dedicated to rebuilding families,

promoting the sanctity of life, and providing related

educational materials, in order to transform

American public policy and culture's impact on Black

life. TRP works with pastors, ministry leaders and

organizations to restore a culture of uprightness,

evenhandedness, and virtue.

Day Gardner, President, National Black Pro-

life Union

The National Black Pro-Life Union was founded

to serve as a clearing house in order to coordinate

the flow of communications among African American

pro-life groups and individuals in order to better

network and combine resources. Headquartered in

Washington, DC, we are committed to working with

pro-life members of the U.S. House and Senate to

expand protections for unborn children.

Walter & Lori Hoye

The Issues4Life Foundationis a _ non-profit

organization that targets and works directly with

Black American leaders nationwide to strengthen

their stand against abortion on demand. Our mission

is to end abortion by raising awareness of the impact

of abortion and _ the _ biblically immoral

implementation of unethical biotechnology in Black

America. We are committed to protecting both the

civil and human rights of the child in the womb by

recognizing the inherent dignity and inalienable

rights of all members of the human family, so that in

law and in practice every life is valued from the

womb to the tomb. We understand that without life,

nothing matters.

Pastor Stephen Broden, Protect Life and

Marriage Texas works to uphold the Judeo-

Christian ethic established by our Founding Fathers

in our society with the view of securing liberty for

marriages, the American family and the life of the

unborn.

Bishop E. W. Jackson

STAND Foundation, Inc. ("STAND") is a nonprofit

organization dedicated to bringing people together

across racial and cultural lines to restore America's

Judeo-Christian heritage and values, which includes

the protection of unborn human life as the first

priority. STAND is a nationwide organization with

representation in states across America. It has a

subsidiary organization of MINISTERS TAKING A

STAND, made up of pastors committed to upholding

the sacredness of life, marriage and family as God

ordained them.

Dean Nelson, Chairman, The Douglass

Leadership Institute advocates righteousness,

justice, liberty and virtue. Our mission is to educate,

equip and empower faith-based leaders to embrace

and apply biblical principles to life and in the

market place. Our strategic pillar, to empower black

faith-based leaders to impact the marketplace,

specifically highlights the disproportionate impact

that abortion has had in the African American

community.

Naticaal Black Prolife Coalition

The National Black Prolife Coalition is a

network of organizations and churches with more

than a thousand supporters committed to restoring

life, family and hope in the black community. The

Coalition's mission is to end abortion by restoring a

culture of life and the foundation of family in the

black community.

Troy Rolling, Chairman, Frederick Douglass

Foundation is a national education and public

policy organization with local chapters across

the United States which brings the sanctity of

free market and limited government ideas to bear on

the hardest problems facing our nation. We are a

collection of proactive

individuals committed to developing innovative and

new approaches totoday's problems with the

assistance of _ elected officials, scholars

fyom universities and colleges, and community

gctivists.

Rev. Eric Wallace, Ph.D., Freedom's Journal

Institute

Freedom’s Journal Institute for the Study of

Faith and Public Policy is a 501(c)(3). Our mission is

devoted to the research, education, and the

advancement of public policy that promotes:

Responsible government, Individual liberty and

fidelity, Strong family values, and Economic

empowerment (R.I.S.E Principles), with a biblical

perspective. We believe that the gospel message has

both political and public policy implications, which

include long term ministry goals such as

“proclaiming freedom for the prisoners, recovery of

sight for the blind, and releasing of the oppressed.”

Urban Family Communications works to inform

and empower black families to grow into

mature disciples by wisely applying biblical truth to

our issues and interests. We stand for truth, wisdom,

and empowerment.

SUMMARY OF ARGUMENT

The Civil Rights movement has not ended.

Minority lives still matter. Whether it is the rights

of the Latina or African-American mother or the

rights of her direct descendents, they all matter.

The scourge of abortion has reached genocidal

proportions, destroying the lives of our youngest

minority citizens and adversely impacting their

mothers. In the words of amicus Issues4Life

Foundation’s Walter Hoye, “The impact of abortion

in the African-American community is the Darfur of

America.” A faithful application of HB2 directly

protects pregnant women, and in its indirect effects,

potentially their progeny. Such laws help to

decrease the disproportionate harm to minority

2 Statement of Walter B. Hoye IT, NATIONAL BLACK PRO-LIFE

COALITION ONLINE, available at

http://www.blackprolifecoalition.org/speakers/walterhoye.htm!

(last accessed 31 Jan. 2016).

women in the states that pass them, and as such,

should be upheld by this Court. After all, protecting

life, whether of mothers, fathers and our children, is

the pre-requisite right for protecting every other

right. Without it, talk about all other civil rights

turns moot. Hence, this brief seeks to advance the

Civil Rights movement in its most indispensable

keystone, without which the bridge collapses.

ARGUMENT

In reference to her uncle Martin Luther King,

Jr.’s d' eam, Dr. Alveda King queries, “‘How can the

dream survive if we murder our children?"3. The

survivors in future generations will be astonished at

the massive blind spot that this simple but profound

question uncovers for our current period of history.

The unanimous consensus of all major medical

textbooks waits for the law to reflect what it already

knows. In the meantime, minority women and their

offspring suffer the majority of what the abortion

industry inflicts in Texas and other states. This

Court can take a substantial step towards fulfilling

the dream by upholding the judgment of the 5%

Circuit regarding HB2 against the attempts to strike

down its sensibly protective measures for women

directly and potentially, indirectly for their progeny.

I. PROTECTING WOMEN FROM

SUBSTANDARD ABORTIONISTS AND

3 Dr. Alveda King, How Can the Dream Survive?, St. LOUIS

REVIEW, Nov. 5, 2015, available online at

http://stlouisreview.com/article/2015-1 1-05/how-can-dream-

survive (last accessed 31 Jan. 2016).

SUBSTANDARD ABORTION FACILITIES,

BOTH OF WHICH

DISPROPORTIONATELY IMPACT RACIAL

MINORITIES, IS A LEGITIMATE STATE

INTEREST.

In 2013, Texas passed HB2 in response to the

Kermit Gosnell scandal. The scandal, which

revealed that at least one woman® and seven

newborns had lost their lives, and which resulted in

a life sentence without the possibility of parole based

on first-degree murder and involuntary

manslaughter convictions, was widely-pronounced to

be a preventable tragedy caused by the errors of

government administration: “multiple local and state

agencies [we]re implicated in an oversight failure

that is epic in proportions[.|"° The Gosnell case is

‘ Act of duly 12, 2013, 83rd Leg., 2d C.S., ch. 1, 2013 Tex. Gen.

Laws 5013; House Research Org., Bil! Analysis at 10, Tex. H.B.

2, 83rd Leg., 2d C.S. (July 9, 2013) (House Bill Analysis),

http://www.hro.house.state.tx.us/pdf/ba832/hb0002.pdf (stating

that higher health care standards for women seeking abortions

will help prevent a “Kermit Gosnell” situation).

5 The woman’s name was Karnamaya Mongar. She survived

two decades in a Nepalese refugee camp before immigrating to

America. See Brady Dennis, “Abortion doctor’s trial focuses on

immigrant’s death after procedure,” The Washington Post, Apr.

16, 2013, available at

https://www.washingtonpost.com/national/health-

science/abortion-doctors-trial-focuses-on-immigrants-death-

after-procedure/2013/04/16/735ca602-a6de- 1 1e2-a8e2-

5b98cb59187£_story. html] (last accessed Jan. 29, 2013).

6 Conor Friedersdorf, “Why Dr. Kermit Gosnell’s Tria] Should

Be a Front-Page Story,” The Atlantic, Apr. 12, 2015, available

online at

http://www.theatlantic.com/national/archive/2013/04/why-dr-

kermit-gosnells-trial-should-be-a-front-page-story/274944/ (last

notable in many respects, not least of which is that it

exposed disturbing racial dimensions of abortion,

suggesting that providers routinely discriminate

against minority women, who suffer

disproportionately from abortion procedures in

comparison to their white counterparts.’

In response to the atrocities, Texas lawmakers

sought to ensure that the gruesome practices®

witnessed in Pennsylvania were not replicated in

their state. Thus, to prevent Gosnell-like clinics

from opening or continuing to operate, they passed

HB2, and the bill’s restrictions can be properly

accessed Jan. 28, 2016).

7 See, e.g. “Abortion Surveillance — United States, 2010,”

Centers for Disease Control and Prevention Morbidity and

Mortality Weekly Report, Vol. 62, No. 8, Nov. 29, 2013, available

online at http://www.cdc.gov/mmwr/pdf/ss/ss6208.pdf (last

accessed 29 Jan. 2016) (stating that in 2010, 56.7% of abortions

reported to the U.S. Centers for Disease Control nationwide

were performed on Hispanic or Black women); Zoe Dutton,

“Abortion’s Racial Gap,” The Atlantic, Sept. 22, 2014, available

http://www.theatlantic.com/health/archive/2014/09/abortions-

racial-gap/380251/ (last accessed 29 Jan. 2016) (citing study by

U.S. Centers for Disease Control and Prevention confirming

that African-American women are more likely to have abortion

than white women).

8 See, e.g. Grand Jury Rpt., In re Cnty. Investigating Grand

Jury XXIII, NO. 0009901-2008, 2011 WL 711902 (ist Jud. Dist.

Pa. Jan. 14, 2011), available online at

http://www.phila.gov/districtattorney/pdfs/grandjurywomensme

dical.pdf at page 4 (last accessed 29 Jan. 2016) (“Gosnell had a

simple solution for the unwanted babies he delivered: he killed

them. He didn’t call it that. He called it ‘ensuring fetal

demise.’ The way he ensured fetal demise was by sticking

scissors into the back of the baby’s neck and cutting the spinal

cord. He called that ‘snipping.”).

viewed as attempting to minimize injuries to African

American and Latina women by raising the standard

of care, and reducing the risk of substandard

facilities and personnel, used in abortion procedures.

This is a legitimate state interest under Planned

Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), because even though the law

may have “the incidental effect of making it more

difficult or more expensive to procure an abortion,”

the law’s “valid purpose(s]” — here, protecting

women’s, and particularly minority women’s health,

among others — “do not strike at the right [to obtain

an abortion] itself.” Jd. at 874; see also, Roe v. Wade,

410 U.S. 113, 162 (1973) (The State “does have an

important and legitimate interest in preserving and

protecting the health of the pregnant woman and

it has still another important and legitimate interest

in protecting the potentiality of human life.”).

Further consideration of the Pennsylvania

tragedies confirms the legitimacy behind HB2’s

added stringency on both Texas abortion-providing

physicians (the admitting privileges requirement)

and abortion facilities (the ambulatory surgical

center requirement). In essence, Texas lawmakers

wanted to prevent two all-too-real possibilities: first,

that a physician, like Dr. Gosnell (who could not

properly treat complications) be allowed to practice,

and second, that filthy Gosnell-like clinics with

rusty, outdated equipment be allowed to operate.

Texas lawmakers thought that all women, and

particularly minority women, deserved to be

protected from these dangerous possibilities.®

In Pennsylvania, the abortion clinic operated by

Dr. Gosnell intentionally ignored standard safety

precautions and recklessly risked the health of

minorities. Regarding Dr. Gosnell’s practices, the

Pennsylvania Grand Jury that indicted him

reported, “[o]n those rare occasions when the patient

was a white woman from the suburbs, Gosnell

insisted that he be consulted at every step.”1° In

contrast, the Grand Jury noted that black women

were subjected to “practices .that defy any medical

or even common-sense explanation,” such as Gosnell

“photographing women from Liberia and other

African countries who had undergone

clitorodectomies, the surgical removal of the

clitoris.”!

The testimony of Tina Baldwin, one of Gosnell’s

unlicensed and untrained longtime employees, is

provided in the same report: “Q: Okay. Was [Dr.

Gosnell] present when you did that medication? A:

No, no. And sometimes he asked them — but it was a

race thing. Q: What do you mean? A: It was — he

° Cf. Tex. House of Representatives, HOUSE JOURNAL, 83rd Leg.

2d C.S., July 9, 2013, HB2 Debate — Second Reading,

Testimony of Rep. Jodie Laubenberg, sponsor of HB2, at page

S3 (“Again, anything that’s going to improve the facility, that’s

going to help get better health care to this woman in case any

complication should arise, is always a good thing.”).

10Grand Jury Rpt. at 7, In re Cnty. Investigating Grand Jury

XXIII, NO. 0009901-2008, 2011 WL 711902 (ist Jud. Dist. Pa.

Jan. 14, 2011) (emphasis added).

1 Jd. at 73.

sometimes he used to — okay. Like if a girl — the

black population was — African population was big

here. So he didn’t mind you medicating your African-

American girls, your Indian girl, but if you had a

white girl from the suburbs, oh, you better not

medicate her. You better wait until he go in and talk

to her first. And one day I said something to him and

he was like, that’s the way of the world. Huh? And

he brushed it off and that was it.”!2 Baldwin also

testified that “white patients often did not have to

wait in the same dirty rooms as black and Asian

clients. Instead, Gosnell would escort them up the

back steps to the only clean office — Dr. O’Neill’s —

and he would turn on the TV for them.”!3

Given that Hispanic-Americans receive the most

abortions of any racial group in Texas!‘ and that

African-Americans receive the highest proportion of

abortions relative to their percentage of the

population,'5 the HB2 standards would protect a

large number of minority women — women similar,

in many respects, to those whose procedures Gosnell

botched with criminal neglect and disdain. Since the

events that transpired in Pennsylvania were

12 Id. at 62.

13 Jd.

14 Centers for Disease Control and Prevention, Abortion

Surveillance United States, 2010, http://www.cdc.gov/mmw

preview/mmwrhtm//ss6208a1.htm#tab12 (last visited on

February 2, 2016.); Texas Dept. of State Health Services, Texas

Population, 2010 (Historical Race Ethnicity Categories),

http://www.dshs.state.tx.us/chs/popdat/ST2010.shtm (last

visited February 2, 2010)

18 Jd.

implicitly condoned by public authorities,'6 Texas

could not afford to turn a blind eye to the possibility

of misconduct: the health and safety of minority

women were clearly interests worth protecting

through legislation, and ones both pro-lifers and pro-

choice advocates could rally behind.?’

The scope of the problem went beyond Gosnell,

however — news around the country indicated the

need for additional restrictions. In Chicago around

the same time as the Gosnell case, for example, a

woman by the name of Tonya Reaves underwent

three rounds of dilation and evacuation (D&E)

procedures in a Planned Parenthood that was not a

licensed ambulatory surgical center.'® Reaves, a

16 Randy Beck, Prioritizing Abortion Access over Abortion

Safety in Pennsylvania, 8 U. St. THOMAS J.L. & PUB. POL'y 33,

37-38 (2013) (“Pennsylvania officials gave Gosnell plenty of

reason to believe that noncompliance with the law would be

overlooked.”); see also, Grand Jury Rpt. at 137, In re Cnty.

Investigating Grand Jury XXIII, NO. 0009901-2008, 2011 WL

711902 (1st Jud. Dist. Pa. Jan. 14, 2011) (“We discovered that

Pennsylvania’s Department of Health has deliberately chosen

not to enforce laws that should afford patients at abortion

clinics the same safeguards and assurances of quality health

care as patients of other medical service providers. Even nail

salons in Pennsylvania are monitored more closely for client

safety.”).

17 See Samuel W. Calhoun, Stopping Philadelphia Abortion

Provider Kermit Gosnell and Preventing Others Like Him: An

Outcome That Both Pro-Choicers and Pro-Lifers Should

Support, 57 VILL. L. REv. 1 (2012).

18 See Dennis Byrne, “Was Planned Parenthood licensed to do

the kind of abortion that killed Tonya Reaves?’, ChicagoNow,

Jul. 25, 2012, available online at

http://www.chicagonow.com/dennis-byrnes-

barbershop/2012/07/was-planned-parenthood-licensed-to-do-

healthy 24-year-old black woman, was 16 weeks

pregnant at the time she chose to have an abortion.

After the procedure was botched, Reaves bled

heavily and at times uncontrollably for five and a

half hours without curative medical treatment and

ultimately died from the hemorrhaging.

Dr. Mandy Gittler, the physician who performed

the abortion, did not have admitting privileges at

Northwestern Memorial Hospital,'® the hospital to

which Reaves was eventually transferred. Dr.

Gittler was not a board certified

Obstetrician/Gynecologist. Reaves’s autopsy

revealed a perforated uterus as the cause of death.

Another abortionist, a board certified doctor in

Obstetrics/Gynecology, concluded: “Based on my

review of the records, I am of the opinion that a

reasonable and meritorious malpractice action exists

against Planned Parenthood and Dr. M. Gittler...”2°

the-kind-of-abortion-that-killed-tonya-reaves/ (last accessed

Jan. 29, 2016); Barbara Boland, “Planned Parenthood Settles

$2 Million Case After Botched Abortion,” CNS News, Feb. 14,

2014, available online at

http://cnsnews.com/news/article/barbara-boland/planned-

parenthood-settles-2-million-case-after-botched-abortion (last

accessed 29 Jan. 2016) (noting that, in light of Ms. Reaves’s

death, an Illinois state representative “proposed a bill to amend

the Ambulatory Surgical Treatment Center statute, to close a

loophole that allow[ed] the clinics to § remain exempt.”).

19 Jones v. Planned Parenthood, No. 2013 L 000076 (Cir. Ct. of

Cook Cnty., Ill.), Depo. of Mandy Gittler, M.D., Aug. 22, 2013,

p. 136-7, available online at

http://operationrescue.org/pdfs/Deposition%200f%20Mandy%20

Gittler,%20M.D..pdf (last accessed 29 Jan. 2016).

20 Report of Expert Witness filed in support of Complaint, Jones

v. Planned Parenthood (Cir. Ct. of Cook Cnty., Ill., Jan. 3, 2013)

(No. 20013 L 0076).

If Dr. Gittler had admitting privileges at

Northwestern Memorial Hospital or another nearby

hospital, Tonya Reaves could very well still be alive

today.

LaKisha Wilson, a 22 year-old black woman

from Ohio, also died as a result of troubling

complications from a late term abortion.?! Her death

could have been prevented if Preterm, the abortion

clinic, had been properly equipped to provide

necessary emergency care when she went into

cardiac arrest from hemorrhaging. Medical records

show that the EMS was called an entire nine

minutes after Wilson had already suffered cardiac

arrest and stopped breathing.?? Upon arrival at the

clinic, EMS personnel were further delayed from

reaching Wilson due to a malfunctioning elevator.

When the EMS personnel finally reached her, they

found Wilson lying pulseless on the table with a

pediatric mask positioned on her face, and her IV

somehow pulled out of her by mistake amidst the

21 LaKisha Wilson’s medical records are unclear whether the

fetus age was 19 or 23 weeks. See Operation Rescue, Special

Report: Secret Ohio Department of Health Docs Reveal 47

Horrific Botched Abortions, Countless Safety Violations and

More, (May 26, 2015), available at

http://www.operationrescue.org/archives/special-report-secret-

ohio-department-of-health-docs-reveal-47-horrific-botched-

abortions-countless-safety-violations-and-more/ (citing

Abortiondocs.org, Medical Records for LaKisha Wilson, Ohio

Department of Health and Human Services, (Apr. 3, 2014),

available at http://www.abortiondocs.org/wp-

conten/uploads/2015/05/Wilson-Preterm-Record.pdf and

http://abortiondocs.org/wp-content/uploads/2015/05/Wilson-

EMS-Report.pdf

22 Td. at 43.

chaotic scene. The EMS personnel changed the

child-sized mask to an appropriate adult mask so

that Wilson could properly receive oxygen and

administered emergency care before attempting to

transfer her to a nearby hospital. As yet another

obstacle, EMS personnel were not able to intubate

Wilson and begin other lifesaving measures until she

reached the ambulance because the malfunctioning

elevator was not large enough for her to be carried

out laying flat on the gurney.?3

At the end of this disturbing scramble to receive

proper care, Lakisha Wilson died at the hospital.

Her father wrote about Wilson’s death, “My

daughter, LaKisha Wilson, died under suspicious

circumstances.”24 LaKisha Wilson’s death was a

needless tragedy and an example of seriously

inadequate medical protections for women

undergoing procedures in substandard abortion

clinics.

Even one life lost due to substandard

abortionists and their substandard facilities is too

many. HB2 would help prevent these types of

tragedies from happening to many women seeking

an abortion, including the substantial number of

minority women who would be impacted. Since pro-

choice advocates have at times indicated that they

23 Medical records for LaKisha Wilson, Ohio Department of

Health and Human Services, April 3, 2014, at page 13,

available at http://www.abortiondocs.org/wp-

content/uploads/2015/05/Wilson-Preterm-Record.pdf and at

http://abortiondocs.org/wp-content/uploads/2015/05/Wilson-

EMS-Report.pdf.

4 Id. at 118.

want the provision of abortions to include HB2’s

safeguards,2® there should be no conflict on this

point. HB2 advances the legitimate state interest in

protecting the lives and health of women, including

for the minority groups in Texas, who obtain more

abortions than the white population.”6

Il. THE RACIAL DEMOGRAPHICS OF

ABORTION INDICATE THAT MINORITIES

ARE DISPROPORTIONATELY IMPACTED

BY THE ABORTION INDUSTRY.

A. Rooted in the population control

movement of the early Twentieth

Century, abortion has historically been

used to target racial minorities.

Throughout the twentieth century, thirty-one

states had Eugenics Commissions that sterilized

women, some as late as 1977 Sterilization decisions

were often based on whom officials deemed to be

“feeble-minded,” and many times those individuals

were poor African-Americans for whom the state had

an incentive to reduce public welfare entitlements.?’

26 See, e.g. the National Abortion Federation’s own prior

recommendation that abortion patients use a doctor who “[iJn

the case of emergency’ can ‘admit patients to a nearby hospital

(no more than 20 minutes away).” Planned Parenthood of

Greater Tex. Surgical Health Servs. v. Abbott (“Abbott IT”), 748

F.3d 583, 595 (5th Cir. 2014) (quoting National Abortion

Federation, Having an Abortion? Your Guide to Good Care

(2000)).

26 Supra n.14-15.

27 See, e.g. “State of Shame: N.C. sterilization survivors fight for

justice,” NBC’s Rock Center, Nov. 7, 2011, video news footage

available online at http://www.nbcnews.com/video/rock-

These programs “affected black Americans

disproportionately.”28

The Black Women’s Health Initiative provides a

partial history of the practices directed at reducing

the black population in America:

[I]n the first decade of the twentieth

century, twelve states passed

involuntary mandatory sterilization

laws that, in practice, primarily

targeted African-Americans.

Government funded doctors continued

sterilizations even after states

repealed involuntary _ sterilization

laws. In the 1930s and 1940s, the

North Carolina Eugenics Commission

sterilized 8,000 ‘mentally deficient

persons, which disproportionately

included 5,000 African-Americans, a

majority of those sterilized under this

category. In 1954, all of the people

sterilized at the South Carolina State

Hospital were African-American

women. [Tjeaching hospitals

performed unnecessary hysterectomies

on poor Black women as practice for

center/45201021 and

https://www.youtube.com/watch?v=Nshj9r

CTPdE (last accessed 29 Jan. 2016).

28 Kim Severson, “Thousands Sterilized, a State Weighs

Restitution,” NY Times, Dec. 9, 2011, available online at

http://www.nytimes.com/2011/12/10/us/redress-weighed-for-

forced-sterilizations-innorthcarolinahtm]?pagewan

ted=all (last accessed Jan. 29, 2016).

their medical residents. This sort of

abuse was so widespread in the South

that these operations came to be

known aS ‘Mississippi

appendectomies. The doctors who

performed these surgeries later said

that they thought sterilization would

help stem population growth; one chief

of surgery explained that ‘a girl with

lots of kids, on welfare, and not

intelligent enough to use birth control,

is better off being sterilized.’ [Not

intelligent enough to use birth control

is often a code phrase for ‘black’ or

poor.29

“From the 1960s to the early 1970s, between

50,000 and 75,000 Black women were sterilized each

year, often with federal funds.”°° The facts of the

Relf case vividly illustrate the abuses of the period.

Two young sisters, Minnie Lee Relf, aged twelve and

Mary Alice Relf, aged fourteen, were sterilized in

Montgomery, Alabama through a federally-funded

program. The episode began when two

representatives of the federally financed county

Community Action Agency called on Minnie Relf, an

illiterate welfare mother of four, to instruct her that

two of her daughters needed shots. Trusting the

agency had the best interest of her children in mind,

2° Brief of Amicus Curia Black Women’s Health Initiative,

NAACP v. Horne, 2015 WL 8736288 at 10 (citations omitted).

30 Jd., citing Relf v. Weinberger, 372 F. Supp. 1196, 1199

(D.D.C. 1974), vacated on other grounds, 565 F.2d 722 (D.C.

Cir. 1977).

Mrs. Relf put her “X” on a paper without realizing

that she was allowing a sterilization operation for

her daughters, Minnie Lee and Mary Alice. The

sterilization of the Relf sisters became national news

when Joseph Levin, a lawyer, filed suit against the

federal government.*!

Incidents like these triggered some African-

American leaders’ worst fears about government-

funded family planning programs. “Birth control is

just a plot just as segregation was a plot to keep

blacks down. It is a plot rather than a solution.

Instead of working for us and giving us our rights—

you reduce us in numbers and do not have to give us

anything.”°? Black leaders such as Julius Lester,

Dick Gregory, Daniel H. Watts, and H. Rap Brown

went so far as to describe abortion and family

planning as “black genocide,” calling upon blacks to

eschew these practices to avoid “race suicide.”33

The legal status of abortion has had a racial

impact, in continuity with the racial dimension of

eugenics: “Studies from the CDC show that prior to

the legalization of abortion, approximately 80% of all

illegal abortions were done on white women. One

study in New York even found that white women

had five times as many abortions as black women,

but at the moment abortion became legalized, that

31 Donald T. Critchlow, INTENDED CONSEQUENCES: BIRTH

CONTROL, ABORTION, AND THE FEDERAL GOVERNMENT IN

MODERN AMERICA 144 (Oxford Press 1999).

32 Jd. at 61 (quoting communication between Elsie Jackson,

PPFA field consultant to Alan F. Guttmacher, dated Apr. 4,

1966, subject file, Negro File, PPF'A).

33 Critchlow, supra n. 39at 142.

began to reverse. That's why the legalization of

abortion was so crucial to the eugenics movement.

Legalization created the ability to market abortion

in the black community, and from a eugenics

standpoint, that'changed everything.”

In 1973, Dr. Christopher Tietze wrote a study of

abortion demographics for the Population Council, a

New York based eugenics organization. He

confirmed that when abortion is illegal, the abortion

rate of white women is much higher than black

women, but that when abortion is legalized, the

trend reverses.25 He was a consultant for Planned

Parenthood and the National Abortion Federation

when publishing these results.

The racial aspect of the population control

movement expressed itself through eugenics and

found a “final solution” in abortion. Historically,

minorities have found themselves in the crosshairs

of a movement to reduce their population.

B. The _ national statistics regarding

abortions committed on minorities

demonstrates its disproportional

impact.

Nationwide, according to the Center for Disease

Control, “among the 28 areas that reported cross-

classified race/ethnicity data for 2010 Non-

34 Mark Crutcher, MAAFA 21: A documentary on eugenics and

genocide, YOUTUBE (Oct. 27, 2012), available at

https://youtu.be/OeWxCRReTV4 at 1:06:53 to 1:07:29

35 Christopher Tietze, Induced Abortion: A World Review, 1983,

5th Ed. (1983).

Hispanic white women had the lowest abortion rates

(8.6 abortions per 1,000 women aged 15-44 years)

and ratios (141 abortions per 1,000 live births),

whereas non-Hispanic black women had the highest

abortion rates (31.8 abortions per 1,000 women aged

15—44 years) and ratios (483 abortions per 1,000 live

births).”°6 Almost four times as many African-

American pregnancies ending in abortion as

compared with Caucasian-Americans surely counts

as disproportional.

According to Guttmacher Institute, the research

arm of Planned Parenthood, African American

women account for almost 40% of abortions in the

US, although African Americans account for just

13% of the population. Hispanic women account for

25% of abortions.*7 In New York City, more African-

American babies are aborted than are born alive.

The New York State Department of Health’s most

recent (2013) vital statistics report reveals that for

every 1,000 African-American babies born alive in

New York City, 1,180 were aborted. Comparatively,

240 abortions were performed for every 1,000 live

births among whites and there were 610 abortions

for every 1,000 Hispanic live births.** In other

36 Centers for Disease Control and Prevention, Surveillance

Summaries: Abortion Surveillance United States 2010, 62

MMWR, November 29, 2013, at 7,

http://www.cdc.gov/mmwr/pdf/ss/ss6208. pdf

31 Guttmacher Institute — Induced Abortion in the United

States — July 2014 available at

http://www.guttmacher.org/pubx/fb_induced_abortion. htm!

38 New York State Dep’t of Health, Vital Statistics Table 23:

Induced Abortion and Abortion Ratios by Race/Ethnicity and

Resident County New York State 2013,

words, the prevalence of abortion was more than two

and a half times higher among Hispanic-Americans

and almost five times higher among African-

Americans compared to Caucasian-Americans.

Clenard Childress expresses the situation in this

manner: “African women, though they make up 12%

of the population, have 37% of the abortions in the

U.S. An African-American baby is almost 5 times

more likely to be aborted than a white child. The

abortion industry at this point kills as many African-

American people in four days as the Klan killed in

150 years. You can truly say that the most

dangerous place for an African-American to be is in

the womb of his/her African-American mother.”®? To

give further perspective to the impact on African-

Americans, “Since 1973, legal abortion has killed

more African-Americans than AIDS, cancer,

diabetes, heart disease and violent crime combined.

Every week, more blacks die in abortion clinics than

were killed in the entire Vietnam War.”*°

Dr. Alveda King, the niece of Martin Luther

King, Jr., describes the situation as follows: “This

same attitude has allowed Planned Parenthood and

other members of the abortion industry to carry out

this genocide right under our very noses. Right now

in America, about half of our babies are being killed

in the womb, and in certain parts of America, more

http://www.health.ny.gov/statistics/vital_statistics/2013/table23

-htm

38 Clenard Childress, MAAFA 21: A documentary on eugenics

and genocide, YOUTUBE, (Oct. 27, 2012), available at

https://youtu.be/OeWxCRReTV34 at 1:04:57 to 1:05:40

40Jd. at 1:04:27

of our babies are being aborted than are being

born.”4!

Based on CDC and Guttmacher Institute data in

2008, there were in the African-American

community 5,686 HIV deaths, 8,206 deaths from

homicides, 11,934 diabetes deaths, 12,215 accidental

deaths, 63,279 cancer deaths, and 69,918 deaths

from heart disease. All of these causes of death

equal 285,522 combined. The number of deaths

through abortions reached 363,705 exceeding the

sum of all of these other causes.*?

C. Texas minority women fall prey to most

abortions in the state.

In Texas, the greatest number of abortions were

performed on Hispanic-Americans, 38.8% of the

total, which is higher than their percentage of the

population.*3 Caucasian-Americans accounted for

30.7% of abortions while making up 70.4% of the

41 Dr. Alveda King at Jd. at 1:06:04 to 1:06:24

42 Arialdi M. Minino, et al., Deaths: Final data for 2008.

National vital statistics reports; Vol. 59 No. 10. Hyattsville,

MD: National Center for Health Statistics. 2011 available at

http://bit.ly/CDC-DEATHS; and Guttmacher Institute,

National Reproductive Health Profile,

http://bit.ly/2008NatiStats (last visted February 2, 2016)

43 Centers for Disease Control and Prevention, Abortion

Surveillance - United States, 2010,

http://www.cdc.gov/mmwr/preview/

mmwrhtm/I/ss6208a1.htm#tab12 (last visited on February 2,

2016.); Texas Dept. of State Health Services, Texas Population,

2010 (Historical Race Ethnicity Categories),

http://www.dshs.state.tx.us/chs/popdat/ST2010.shtm (last

visited February 2, 2010);

Texas population.‘ For this number to be

proportional, it would need to more than double.

African-Americans came in at 24.9% of Texas

abortions, although they only make 11.8% of the

state population.*

Texas has 94 Zip codes with at least one abortion

facility. Of those, only 22 are not disproportionately

black and/or Hispanic. Appendix A demonstrates

this data in chart form. In sum, HB2 would protect

minority women the most in Texas.

CONCLUSION

For the reasons set forth above, this Court

should uphold HB2 as consonant with this Court’s

jurisprudence in this area and protective of minority

women directly and their offspring indirectly

through its potential effects.

Respectfully submitted,

MORSE TAN, ESQ.

Counsel of Record

27W 156 Fleming Dr

Winfield, IL 60190

(512) 289-5973

morsetan@gmail.com

February 3, 2016

44 Td.

45 Id.

Appendix

APPENDIX TABLE OF CONTENTS

Appendix A: Excerpt from 2011 Report by Life

Dynamics Imcorporated .........cccccccscccsssscscsescccevesccceeees

Appendix A

Excerpt from 2011 Report

by Life Dynamics Incorporated

Racial Targeting and Population Control

By Mark Crutcher | President, Life Dynamics

Incorporated

Carole Novielli | Researcher

Renee Hobbs | Production Assistant

Chart 1 - Planned Parenthood Locations

Note: In this chart as well as the one that

follows, some ZIP codes show a percentage of

minorities that exceeds 100%. This occured

because a small number of Hispanics identify

themselves as both black and Hispanic and

are, therefore, counted twice by the Census

Bureau. This phenomenon is rare and was

identified in fewer than 10 of the ZIP codes

included in this study.

Black Population 11.5%

TEXAS Hispanic Population 32.0%

75069

75074

75090

75110

75150

75160

75165

75231

75237

75254

75460

75701

75904

76010

76015

76021

76028

76104

76114

76116

9.5%

8.1%

12.8%

19.4%

10.4%

24.0%

13.3%

27.2%

88.6%

9.8%

23.3%

21.1%

18.8%

16.0%

10.1%

499

111.3%

= 168.6%

208.6%

115.6%

236.5%

770.4%

202.6%

183.4%

163.4%

139.1%

497.3%

155.6%

15.4%

19.0%

16.1%

14.5%

18.8%

40.5%

7.3%

40.4%

41%

10.5%

11.9%

76119

76205

76240

76642

76661

76701

76706

76901

77023

77037

77068

77081

77340

77471

77477

77539

77802

78201

78212

78217

78223

78227

78237

55.5%

7.9%

4.3%

17.9%

41.5%

27.7%

13.1%

3.2%

1.8%

3.0%

13.0%

9.0%

18.7%

7.4%

16.6%

10.7%

6.1%

1.9%

2.5%

9.3%

4.3%

7.9%

2.8%

360.8%

240.8%

113.9%

113.0%

162.6%

144.3%

———eeeee

23.2%

11.5%

12.4%

14.2%

16.4%

22.8%

28.1%

26.5%

86.0%

64.0%

13.6%

71.3%

13.3%

53.1%

27.2%

22.5%

11.0%

82.0%

61.0%

31.1%

67.3%

63.7%

94.5%

268.7%

200.0%

222.8%

165.9%

78238

78332

78363

78501

78521

78539

78550

59.9%

79.5%

66.2%

84.0%

93.4%

89.7%

74.3%

CHART 2 - INDEPENDENT ABORTION

CLINIC LOCATIONS

75205

75231

75235

75243

76108

76110

76542

77002

77004

77008

77026

1.6%

4.8%

6.2%

40.5%

70.3%

14.4%

12.6%

62.8%

14.8%

22.0%

11.8%

43.2%

3 1.1%

126.5%

219.6%

196.2%

135.0%

77057

77074

77076

77090

77098

77401

77707

78212

78222

78238

78240

78404

78501

78550

78704

78750

78753

79902

4.7%

20.4%

8.0%

17.5%

2.2%

1.0%

23.9%

2.5%

22.4%

4.7%

5.3%

1.9%

72.3%

18.4%

17.8%

7.9%

7.2%

61.0%

44. 0%

76.1%

135.0%

225.9%

190.6%

187.1%

132.8%

201.8%

262.5%

232.1%

106.2%

120.3%

237.8%

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.