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,

KIRK COLE, M.D., COMMISSIONER OF THE TEXAS

DEPARTMENT OF STATE HEALTH SERVICES, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR AMICI CURIAE AMERICAN COLLEGE

OF OBSTETRICIANS AND GYNECOLOGISTS,

AMERICAN MEDICAL ASSOCIATION, AMERICAN

ACADEMY OF FAMILY PHYSICIANS,

AMERICAN OSTEOPATHIC ASSOCIATION, AND

AMERICAN ACADEMY OF PEDIATRICS

IN SUPPORT OF PETITIONERS

KIMBERLY A. PARKER

Counsel of Record

SonyYA L. LEBSACK

SKYE L. PERRYMAN

JESSICA E. NOTEBAERT

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

kimberly.parker@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............c:0c.cccccccccccscscesecsseseee iii

STATEMENT OF INTEREST OF AMICI

I haeninetedecesian eal aaanaaietadieeesiemaaiaiiiatineriadiitbadiiai 1

INTRODUCTION AND SUMMARY OF

ESTER AS Panter een TOE 4

| EER ESERESERSIEE rater eee ecee ove ree ISO 5

I. H.B.2’s ASC REQUIREMENT IMPOSES

MEDICALLY UNNECESSARY DEMANDS ON

ABORTION FACILITIES AND SERVES No

a IIE cictinsnsensicernenineinmnaisincititnnenenenencenineees 5

A. Abortion Is An Extremely Safe

Medical Procedure And No Medical

Evidence Suggests That Abortion

Would Be Safer If Performed In An

I cinsininineniansssinitiiniiinnninennianenimaemntneaneei 6

B. H.B.2’s ASC Requirement Imposes

Medically Unnecessary Demands On

eaicictreneiiaeniniastinceiiannimenccscetes 10

1. Abortion procedures do not

require the full operating theater

or external sterility precautions

that are mandated by H.B. 2...................... 11

2. Office-based surgery is common

and Texas law does not require

that facilities performing

procedures with higher mortality

rates than abortion meet the

standards for ASCS ..............ccsssccesssssseeseeeers

‘i

TABLE OF CONTENTS—Continued

Il. H.B.2’S PRIVILEGES REQUIREMENT DOES

Not SERVE THE HEALTH OF WOMEN IN

A. Clinicians Are Denied Medical Privi-

leges For Reasons Unrelated To Their

SITTIN sciccnisstcsctaiimiesiniiieasnitiiniepintinutennninmsciasenctic 16

B. H.B.2’s Privileges Requirement Is In-

consistent With Accepted Medical

Practice And Provides No Benefit To

Patient Care Or Health Outcomes ................... 17

IIL H.B. 2 JEOPARDIZES WOMEN’S HEALTH BY

RESTRICTING ACCESS TO SAFE AND

EEE ee eee ev eS 22

IED ccnescesssscesesmrenensneccssnnnsnennannnaccsseneeenanieetnininn 26

TABLE OF AUTHORITIES

CASES

Page(s)

Planned Parenthood Southeast, Inc. v.

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

supplemented by 33 F. Supp. 3d 1381 (M.D.

Ala.), and amended by 2014 WL 5426891

Re Aas Cs Sei Et crteerreteresericcenseconsestnteneommninees 22

Planned Parenthood of Wisconsin, Inc. v.

Schimel, 806 F.3d 908 (7th Cir. 2015).........00000 20, 21

STATUTES, RULES, AND REGULATIONS

22 Tex. Admin. Code $§ 192.1-192.6.........csssssesssesesenesees 15

25 Tex. Admin. Code § 135.52(f)(5)(C).........ccsscsseseseenees 12

Tex. Health & Safety Code Ann.

Oe iiictanneenmsssvessecscnnianiseinnsenencesnceremntunscmmuneneds 6

Oy a rrniecssctenscenenscieniensussennmenesemnnss 20

ee ntecsnivenesnncnertnisiesntninesntsnnisaninnsnccitemnimenenenies 6

38 Tex. Reg. 6536 (Sept. 27, 2013) ..........ccssccessssserssensees 19

OTHER AUTHORITIES

ACOG, College Statement of Policy, Abortion

Policy (2014), available at https://www.

acog.org/-/media/Statements-of-Policy/Pub

lic/sop069.pdf? dme=1&ts=20151230T 160248

ACOG, Committee on Health Care for

Underserved Women, Committee Opinion

Number 618, Increasing Access to

Abortion, 124 Obstetrics & Gynecology

LT RELA T eea ee ALT ee 5, 24

TABLE OF AUTHORITIES—Continued

ACOG, Committee on Patient Safety & Quality

Improvement, Committee Opinion

Number 459, The Obstetric-Gynecologic

Hospitalist, 116 Obstetrics & Gynecology

SIF GIN tencsestannercecsesssnnemanseseintmnnaneansenenanee

ACOG, Frequently Asked Questions, Induced

Abortion (2015), available at http//www.

acog.org/~/media/F or%20Patients/faq043. pdf..

ACOG, Guidelines for Women’s Health Care: A

Resource Manual (4th ed. 2014) ................000.

ACOG, Patient Education Pamphlets:

ee einicsinitintsiniticnmascncteninninnitasetes

ACOG, Patient Education Pamphlets:

Endometrial Hyperplasia (2012)...........00-0--.

ACOG, Patient Education Pamphlets:

FN Ricidccendotnnonctsennepinsnnctnanennaties

ACOG, Patient Education Pamphlets: Loop

Electrosurgical Excision Procedure (2013)..

ACOG, Practice Bulletin Number 143, Medical

Management of First-Trimester Abortion,

123 Obstetrics & Gynecology 676 (2014)........

ACOG, Report of the Presidential Task Force

on Patient Safety in the Office Setting

(2010), available at http//www.scopefor

womenshealth.org/ckfinder/userfiles/files/

Task%20F orce%20Report %20(final).pdf.......

Page(s)

a 21

TABLE OF AUTHORITIES—Continued

ACOG, Statement of Policy, Legislative

Interference with Patient Care, Medical

Decisions, and the Patient-Physician

Relationship (2013), available at https://

www.acog.org/-/media/Statements-of-Policy/

Public/2013LegislativeInterference.pdf?dm

c=1&ts=20151230T 1634176854 ...0......eececeseees

Allen, Rebecca H., et al., Pain Relief for

Obstetric and Gynecologic Ambulatory

Procedures, 40 Obstetrics & Gynecology

American College of Surgeons, Statement on

Patient Safety Principles for Office-Based

Surgery Utilizing Moderate Sedation/

Analgesia, Deep Sedation/Analgesia, or

General Anesthesia, 89 Bull. Am. Coll.

Surgeons 32 (2004), available at https://

www facs.org/about-acs/statements/46-office

American Society for Gastrointestinal

Endoscopy, Complications of Colonoscopy,

74 Gastrointestinal Endoscopy 745 (2011).....

Bartlett, Linda A., et al., Risk Factors for

Legal Induced Abortion-Related Mortality

in the United States, 103 Obstetrics &

Gynecology 729 (2004) .............scsssssessesseseeseeses

Page(s)

TABLE OF AUTHORITIES—Continued

Dennis, Amanda, et al., Barriers to and

Facilitators of Moving Miscarriage

Management Out of the Operating Room,

47 Persp. on Sexual & Reprod. Health 141

Godfrey, Emily M., et al., Early Pregnancy

Loss Needn’t Require a Trip to the

Hospital, 58 J. Fam. Prac. 585 (2009).............

Grazer, Frederick M. & Rudolph H. de Jong,

Fatal Outcomes from Liposuction: Census

Survey of Cosmetic Surgeons, 105 Plastic &

Reconstructive Surgery 436 (2000) ................

Grimes, David A., et al., Abortion Facilities

and the Risk of Death, 13 Fam. Plan.

Se estnienenerestionennnnrecenennnienintinnennnions

Grimes, David A., et al., Comparative Risk of

Death from Legally Induced Abortion in

Hospitals and Nonhospital Facilities,

51 Obstetrics & Gynecology 323 (1978)..........

Grossman, Daniel, et al., Change in Abortion

Services After Implementation of a

Restrictive Law in Texas, 90 Contraception

Se ccccertstsnassennimmnmennenimmnemernmenntnts

Grossman, Daniel, et al., Complications After

Second Trimester Surgical and Medical

Abortion, 16 Reprod. Health Matters 173

GE ctrsnnvenanscontcstsnnnconsenmmennannneseneninsenenenecimneantne

Page(s)

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Grossman, Daniel, et al., Knowledge, Opinion

and Experience Related to Abortion Self-

Induction in Texas, Texas Policy

Evaluation Project Research Brief (2015).............. 25

Grossman, Daniel, et al., The Public Health

Threat of Anti-Abortion Legislation,

89 Contraception 73 (2014).............cseeseeeees 17, 24, 25

Hellerstein, Erica, The Rise of the DIY Abortion

in Texas, The Atlantic, June 27, 2014,

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

2014/06/theriseofthediyabortionintexas/373

Institute of Medicine, Crossing the Quality

Chasm: A New Health System for the 21st

I iaiiiintinisientdsiinnatinresinnnnctnsbinssameininiants 18, 19

Joyce, Theodore, The Supply-Side Economics

of Abortion, 365 New Eng. J. Med. 1466

Lohr, Patricia A. & Richard Lyus, Dilatation

and Evacuation, in Abortion Care 88 (Sam

I ciel 12

National Abortion Federation, 2015 Clinical

Policy Greidelénes (2016) .......20.0.0-c.cccesseecssecssseeseseseees 18

Nichols, Mark, et al., A Comparative Study of

Hysteroscopic Sterilization Performed In-

Office Versus a Hospital Operating Room,

13 J. Minimally Invasive Gynecology 447

rari cicsissiicieiehiniciucbeeheesieidamsecineeaiaealiagenlbulaieiininbanin 13

TABLE OF AUTHORITIES—Continued

Page(s)

Paul, Maureen, Office Management of Early

Induced Abortion, 42 Clinical Obstetrics &

I Te CD ecctcccnnecccnescnssecccecsenscseececeenes 9,12

Pazol, Karen, et al., Abortion Surveillance—

United States, 2012, 64 Morbidity &

Mortality Wkly. Rep. 1 (2015) ................0. 6, 7, 11, 23

Peacock, Lisa M., et al., Transition to Office-

Based Obstetric and Gynecologic

Procedures: Safety, Technical, and

Financial Considerations, 58 Clinical

Obstetrics & Gynecology 418 (2015).............. 9, 10, 14

Raymond, Elizabeth G. & David A. Grimes,

The Comparative Safety of Legal Induced

Abortion and Childbirth in the United

States, 119 Obstetrics & Gynecology 215

Rock, John A. & Howard W Jones III, TE

Linde’s Operative Gynecology (10th ed.

I i ie dail rieneetceaiaala innit 10, 12

Senate Committee on Health & Human

Services, Bill Analysis, Tex. H.B. 2, 83d

EG een 16

Shah, Iqbal H., et al., Access to Safe Abortion:

Progress and Challenges Since the 1994

International Conference on Population

and Development (ICPD), 90 Contraception

TABLE OF AUTHORITIES—Continued

Page(s)

Soffen, Kim, How Texas Could Set National

Template for Limiting Abortion Access,

N.Y. Times, Aug. 19, 2015, http://nyti.ms/

Texas Department of State Health Services,

2014 Healthy Texas Babies: Data Book

(2014), available at http://www.dshs.state.

tx.us/WorkArea/DownloadAsset.aspx?id=8

Texas Department of State Health Services,

Vital Statistics Annual Reports, http://

www.dshs.state.tx.us/chs/vstat/annrpts.shtm

(last updated Oct. 15, 2015)... ecceeeeees 7, 8,9, 14

Upadhyay, Ushma D., et al., Incidence of Emer-

gency Department Visits and Complica-

tions After Abortion, 125 Obstetrics &

IID cintresescresenieneennnctnnntonnninstionees 8, 19

Urman, Richard D., et al, Safety

Considerations for Office-Based Obstetric

and Gynecologic Procedures, 6 Revs.

Obstetrics & Gynecology e8 (2018) ..............cceceeees 14

Weitz, Tracy A., et al., Safety of Aspiration

Abortion Performed by Nurse

Practitioners, Certified Nurse Midwives,

and Physician Assistants Under a

California Legal Waiver, 103 Am. J. Pub.

EERE SE ce ANE 8

TABLE OF AUTHORITIES—Continued

Page(s)

Whether Abortion Facilities that are Exempt

from Licensing Under Section 245.004 of

the Health and Safety Code are Subject to

Regulation by the Texas Department of

Health Under Chapter 245, Op. No. GA-

0212 (Tex. Att’y Gen. July 7, 2004) .......ecccceseceeseees 6

White, Kari, et al., Complications from First-

Trimester Aspiration Abortion: A

Systematic Review of the Literature,

92 C mtraception 422 (2015)...........ceesceeeee 8, 9, 16, 18

STATEMENT OF INTEREST OF AMICI CURIAE

The American College of Obstetricians and Gyne-

cologists (the “College” or “ACOG”), the American

Medical Association (“AMA”), the American Academy

of Family Physicians (“AAFP”), the American Osteo-

pathic Association (“AOA”), and the American Acade-

my of Pediatrics (“AAP”) submit this amici curiae brief

in support of Petitioners.

ACOG is a non-profit educational and professional

organization founded in 1951. The College’s objectives

are to foster improvements in all aspects of the health

care of women; to establish and maintain the highest

possible standards for education; to publish evidence-

based practice guidelines; to promote high ethical

standards; and to encourage contributions to medical

and scientific literature. The College’s companion or-

ganization, the American Congress of Obstetricians and

Gynecologists (the “Congress”), is a professional organ-

ization dedicated to the advancement of women’s health

and the professional interests of iis members. Sharing

more than 57,000 members, including 2,549 obstetri-

cian-gynecologists in Texas, the College and the Con-

gress are the leading professional associations of physi-

cians who specialize in the health care of women.

The College and the Congress recognize that abor-

tion is an essential health care service and oppose laws

' Pursuant to Rule 37.3(a), letters of consent to the filing of

this brief are on file with the Clerk of the Court. No counsel for a

party authored this brief in whole or in part and no party or coun-

sel for a party made a monetary contribution intended to fund the

preparation or submission of the brief. No person or entity other

than amici or their counsel made a monetary contribution to the

preparation or submission of this brief.

regulating medical care that are unsupported by scien-

tific evidence and that are not necessary to achieve an

important public health objective.

The College has previously appeared as amicus cu-

riae in various courts throughout the country, including

this Court. In addition, the College’s work has been

cited by numerous courts seeking authoritative medical

data regarding childbirth and abortion.

AMA is the largest professional association of phy-

sicians, residents, and medical students in the United

States. Additionally, through state and specialty medi-

cal societies and other physician groups seated in the

AMA’s House of Delegates, substantially all U.S. phy-

sicians, residents, and medical students are represent-

ed in the AMA’s policymaking process. The objectives

of the AMA are to promote the science and art of medi-

cine and the betterment of public health. AMA mem-

bers practice in all fields of medical specialization and in

every state, including Texas. This Court and the feder-

al courts of appeal have cited the AMA’s publications

and amicus curiae briefs in cases implicating a variety

of medical questions.

AAFP is headquartered in Leawood, Kansas, and

is the national medical specialty society representing

family physicians. Founded in 1947 as a not-for-profit

corporation, its 120,900 members are physicians and

medical students from all 50 states, the District of Co-

lumbia, Guam, Puerto Rico, the Virgin Islands, and the

Uniformed Services of the United States. The AAFP

seeks to improve the health of patients, families, and

communities by advocating for the health of the public

and serving the needs of members with professionalism

and creativity.

AOA, established in 1897, is the national profes-

sional association for the more than 110,000 osteopathic

physicians (Doctors of Osteopathic Medicine or DOs)

and medical students enrolled in accredited colleges of

osteopathic medicine in the United States. This in-

cludes more than 3,500 osteopathic physicians who

practice in the specialty of obstetrics and gynecology.

The AOA is recognized by the United States Depart-

ment of Education as the accrediting agency for colleg-

es of osteopathic medicine. Since 1943, the AOA’s

American Osteopathic Board of Obstetrics and Gyne-

cology has offered a program of specialty and subspe-

cialty board certification for osteopathic obstetricians

and gynecologists. The AOA is dedicated to promoting

public health, to encouraging scientific research, and to

maintaining and improving high standards of osteo-

pathic medical education.

AAP was founded in 1930 and is a national, not-for-

profit organization dedicated to furthering the interests

of child and adolescent health. Since AAP’s inception,

its membership has grown from 60 pediatricians to

more than 60,000 primary care pediatricians, pediatric

medical subspecialists, and pediatric surgical special-

ists. Over the past 85 years, AAP has become a power-

ful voice for child and adolescent health through educa-

tion, research, advocacy, and the provision of expert

advice. AAP has worked with the federal and state

governments, health care providers, and parents on be-

half of America’s families to ensure the availability of

safe and effective reproductive health services.

INTRODUCTION AND SUMMARY OF ARGUMENT

Reproductive healthcare is essential to a woman’s

overall health, and access to abortion is an important

component of reproductive healthcare. Amici curiae

are leading medical societies, whose policies represent

the considered judgments of the many physicians in

this country. Amici’s position is that laws that regulate

abortion should be supported by a valid medical justifi-

cation. Texas is one of a number of states that have en-

acted laws that lack such a justification and, if allowed

to stand, would restrict access to otherwise safe and

professional care.

Passed in 2013, Texas House Bill (“H.B.”)2 re-

quires that abortion facilities—such as outpatient clin-

ics where the majority of abortions in Texas are per-

formed—conform to the standards of ambulatory surgi-

cal centers (the “ASC requirement”), notwithstanding

that the legal abortions performed in Texas prior to the

passage of H.B.2 met or exceeded safety expectations

for outpatient medical procedures. H.B. 2 also requires

that abortion providers obtain admitting privileges at

local hospitals (the “privileges requirement”), even

though such privileges are unnecessary for safe patient

care and can be difficult or impossible to obtain for rea-

sons unrelated to a clinician’s competence.

Neither requirement is supported by accepted

medical practice or scientific evidence. There is no

medically sound reason to assume that abortions per-

formed in a hospital or ASC setting are safer than

those performed in a clinic or office, and requiring abor-

tion clinics to meet the standards for ASCs has no med-

ical purpose given the nature and simplicity of abortion

procedures. The admitting privileges requirement

likewise does nothing to improve the health and safety

of women. In fact, it is inconsistent with prevailing

medical practice, which provides for continuity of care

regardless of whether the clinician has local admitting

privileges. Moreover, there is incontrovertible evi-

dence that imposing these unjustified burdens on abor-

tion providers is impeding women’s access to quality,

evidence-based medicine: H.B.2 has delayed, and in

some cases blocked, women’s access to legal abortion.

Both outcomes jeopardize women’s health.

Patient safety is of paramount concern to amici,

and amici support laws that are necessary to protect

patient safety. Laws that regulate abortion should be

evidence-based and designed to improve women’s

health.’ The challenged provisions of H.B. 2 are neither.

ARGUMENT

lL H.B.2’s ASC REQUIREMENT IMPOSES MEDICALLY

UNNECESSARY DEMANDS ON ABORTION FACILITIES

AND SERVES NO MEDICAL PURPOSE

Contrary to Texas’s assertion that abortion proce-

dures would be safer if performed in ASCs,’ H.B. 2’s

? See, e.g., ACOG, Comm. on Health Care for Underserved

Women, Committee Opinion Number 618, Increasing Access to

Abortion, 124 Obstetrics & Gynecology 1060, 1062 (2014) (explain-

ing that the College opposes medically unnecessary physical plant

and admitting privileges requirements); ACOG, College Statement

of Policy, Abortion Policy 2 (2014) (opposing “unnecessary regula-

tions that limit or delay access to care”); see also ACOG, Statement

of Policy, Legislative Interference with Patient Care, Medical De-

a and the Patient-Physician Relationship (2013).

> Pet. App. 25a (“The Texas Legislature’s stated purpose for

enacting these provisions was to raise the standard and quality of

care for women seeking abortions and to protect the health and

welfare of women seeking abortions.”); Opp. 3, 24; Resp. C.A. Br.

13, 35-36.

requirement that abortion facilities‘ meet the stand-

ards for ASCs lacks any evidence-based medical or sci-

entific justification.’

A. Abortion Is An Extremely Safe Medical Pro-

cedure And No Medical Evidence Suggests

That Abortion Would Be Safer If Performed

In An ASC Setting

Abortion is one of the safest medical procedures

performed in the United States. The risk of death re-

sulting from an abortion has been exceptionally low for

decades. Between 1978 and 2007, the national mortali-

ty rate, as reported in five-year periods by the Centers

for Disease Control and Prevention, ranged from 0.52

per 100,000 (or 0.00052 percent) to 0.78 per 100,000 (or

0.00078 percent). Between 2008 and 2011, the most

recent period for which data is available, the national

‘Under Texas law, the term “abortion facility” applies to

providers of abortions, such as outpatient clinics, that are not hos-

pitals, ASCs, or physicians’ offices (unless the office performs more

than fifty abortions in any twelve-month period). Tex. Health &

Safety Code Ann. § 245.004; Whether Abortion Facilities that are

Ezempt from Licensing Under Section 245.004 of the Health and

Safety Code are Subject to Regulation by the Texas Department of

Health Under Chapter 245, Op. No. GA-0212, at 1 & n.4 (Tex. Att’y

Gen. July 7, 2004). In this brief, amici use the terms “facilities” and

“clinics” interchangeably.

* Amici are aware that, in 2003, Texas enacted a law provid-

ing that abortions at sixteen weeks of gestation and later be per-

formed only in ASCs or hospitals. Tex. Health & Safety Code

Ann. § 171.004. Amici confine their statements here to abortions

occurring prior to sixteen weeks of gestation, which were per-

formed legally in clinics and physicians’ offices prior to the enact-

ment of H.B. 2.

® Pazol et al., Abortion Surveillance—United States, 2012, 64

Morbidity & Mortality Wkly. Rep. 1, 11, 40 tbl. 23 (2015).

mortality rate was 0.73 per 100,000 (or 0.00073 per-

cent).’

Publicly available data suggest that the abortion-

related mortality rate in Texas prior to H.B. 2’s full im-

plementation was even lower than these national fig-

ures. According to Texas’s own vital statistics, 993,844

abortions were performed between 2001 and 2013 (the

years for which data is available online).’ Only five

deaths were reported in this thirteen-year period, ac-

counting for a mortality rate of 0.5 per 100,000 (or

0.0005 percent).? From 2009 through 2013, there were

no reported deaths in 360,059 abortions performed in

Texas.

The risk of major complications from the procedure

is similarly low. In a comprehensive review of pub-

lished studies, researchers found that most studies re-

” Id.

* The calculations in the text accompanying this note and sev-

eral subsequent notes are based on annual abortion statistics com-

piled by the Texas Department of State Health Services (“DSHS”)

in its Vital Statistics Annual Reports, http//www.dshs.state.tx.us/

chs/vstat/annrpts.shtm (last updated Oct. 15, 2015).

9 Id.

'° Td. By contrast, in 2011 (the latest year graphed by

DSHS), the average maternal mortality rate in Texas was 24.4 per

100,000 live births (or 0.0244 percent); for black women, that rate

was 67.3 per 100,000 (or 0.0673 percent). DSHS, 2014 Healthy

Texas Babies: Data Book 14 fig. 21 (2014). Similarly, one nation-

wide study found that the mortality risk associated with childbirth

is approximately fourteen times higher than the risk associated

with abortion. Raymond & Grimes, The Comparative Safety of

Legal Induced Abortion and Childbirth in the United States, 119

Obstetrics & Gynecology 215, 216-217 & tbl. 1 (2012) (analyzing

data from 1998 to 2006).

ported a less than 0.5 percent risk of hospitalization fol-

lowing a first-trimester aspiration abortion.'’ The

higher rates of hospitalization reported in some studies

were associated with procedures done using general

anesthesia, which is infrequently used for first-

trimester aspiration abortions in office-based clinics in

the United States.'? Indeed, one recent U.S.-based

study found that the risk of major complications (uter-

ine perforation, infection, and hemorrhage) from first-

trimester aspiration abortions—the most common

abortion procedure in Texas—is just 0.05 percent."

Moreover, there is no medically sound reason to as-

sume that abortions performed in a hospital or ASC

setting are safer than those performed in a clinic or of-

| White et al., Complications from First-Trimester Aspira-

tion Abortion: A Systematic Review of the Literature, 92 Contra-

ception 422, 434, 435 tbl. 7 (2015). The rate of major complications

across all abortion procedures, including medication and second-

trimester abortions, is similarly low. See Upadhyay et al., Inci-

dence of Emergency Department Visits and Complications After

Abortion, 125 Obstetrics & Gynecology 175, 176 fig. 1, 181 (2015)

(using 2009-2010 data from California and finding a 0.23 percent

risk of abortion complications that might require hospital admis-

sion, surgery, or blood transfusion).

2 White et al. , supra note 11, at 434.

"3 Weitz et al., Safety of Aspiration Abortion Performed by

Nurse Practitioners, Certified Nurse Midwives, and Physician

Assistants Under a California Legal Waiver, 103 Am. J. Pub.

Health 454, 458 & tbl. 2 (2012) (using 2007-2011 data from Califor-

nia); DSHS, Vital Statistics Annual Reports, supra note 8 (data by

type of procedure); see also White et al., supra note 11, at 434

(“Major complications following first-trimester aspiration abortion

were very rare”).

fice.'* The above-referenced comprehensive review of

research found that “the percentage of abortions that

resulted in major complications necessitating interven-

tion was not higher in office-based clinics compared to

ASCs and hospital-based clinics but rather was similar

across settings.”'* Texas’s mortality statistics point to

the same conclusion. In the five years during which

Texas had no reported abortion-related deaths, the

overwhelming majority of abortions—83 percent—

were performed in outpatient clinics or physicians’ of-

fices, not in ASCs or hospitals." From 2001 to 2013,

when Texas statistics reflected an exceedingly low

mortality rate of 0.5 per 100,000 abortions (or 0.0005

percent), 91 percent of abortions were performed in

outpatient clinics or physicians’ offices.'’ Nationally, 95

'* Peacock et al., Transition to Office-Based Obstetric and

Gynecologic Procedures: Safety, Technical, and Financial Con-

siderations, 58 Clinical Obstetrics & Gynecology 418, 427 (2015)

(“(F jirst-trimester aspiration abortions performed in an office are

as safe as those performed in hospitals.”); Paul, Office Manage-

ment of Early Induced Abortion, 42 Clinical Obstetrics & Gyne-

cology 290, 292 (1999) (“Compared with hospital-based procedures,

abortions in ambulatory settings are comparably safe[.]”); see also

Grimes et al., Abortion Facilities and the Risk of Death, 13 Fam.

Plan. Persp. 30, 31 (1981) (mortality rates for first-trimester abor-

tions are similar for hospitals and nonhospital facilities); Grimes et

al., Comparative Risk of Death from Legally Induced Abortion in

Hospitals and Nonhospital Facilities, 51 Obstetrics & Gynecology

323, 324 (1978) (same).

'S White et al., supra note 11, at 435. White and her col-

leagues also concluded that “legislation requiring facilities where

abortions are performed to meet ASC standards is unlikely to lead

to measurable improvement in complications from first-trimester

aspiration abortion.” /d.

” DSHS, Vital Statistics Annual Reports, supra note 8.

7 Wg

percent of abortions are performed in nonhospital set-

tings.

In sum, outpatient clinics and physicians’ offices are

safe places to obtain abortions.'? Amici are aware of no

medical basis for a mandate that abortion clinics meet

the standards for ASCs.

B. H.B. 2’s ASC Requirement Imposes Medically

Unnecessary Demands On Abortion Facilities

Requiring that an abortion clinic meet the stand-

ards for ASCs has no medical purpose because of the

nature and simplicity of abortion procedures. ASCs are

meant to provide environments in which invasive sur-

geries historically performed in hospitals can be per-

formed outside a hospital-based setting. Abortion pro-

cedures, however, do not require an incision into a

woman’s body and do not expose sterile tissue to the

external environment. The performance of such proce-

dures thus does not require a hospital-based or related

outpatient setting. Nor is there any medical purpose or

principled reason for Texas law to require abortion fa-

cilities, but not other facilities that perform similar or

riskier outpatient procedures, to meet ASC standards.

'8 Rock & Jones, TE Linde’s Operative Gynecology 783 (10th

ed. 2011); Peacock et al., supra note 14, at 427 (same); see also

Joyce, The Supply-Side Economics of Abortion, 365 New Eng. J.

Med. 1466, 1466-1467 (2011) (94 percent of all abortions take place

in clinics).

'9 See ACOG, Frequently Asked Questions, Induced Abortion

1 (2015); see also Rock & Jones, supra note 18, at 783.

1. Abortion procedures do not require the

full operating theater or external sterility

precautions that are mandated by H.B. 2

The physical plant requirements mandated by

H.B.2—such as the presence of an operating room—

are medically unnecessary for abortion procedures. As

an initial matter, an increasingly large percentage of

early abortions are medication abortions rather than

surgical abortions.”” No designated procedure space is

required for medication abortions because the proce-

dure involves administering prescription pills that in-

duce pregnancy termination, which then typically oc-

curs at home.”'

Even surgical abortions, however, do not require

an operating room. To conduct a first-trimester surgi-

cal abortion, the clinician has the patient recline on an

examination table, taking the same position as for many

gynecological exams. Few personnel are involved; little

is required by way of equipment. The procedure is not

commonly performed using general anesthesia, so des-

ignated space for related equipment storage is not gen-

erally required.” Surgical abortions simply do not re-

quire the size, layout, or equipment of a full operating

2° Dazol et al., supra note 6, at 8 (use of early medication abor-

tion increased from 8.5 percent of abortions in 2003 to 20.4 percent

in 2012).

2! See ACOG, Practice Bulletin Number 148, Medical Man-

agement of First-Trimester Abortion, 123 Obstetrics & Gynecolo-

gy 676, 677-678 (2014) (providing current evidence-based guide-

lines for medication abortion).

2 In any event, as noted below, Texas law does not require

that procedures using general anesthesia be performed in a facility

that meets ASC standards. See infra note 30 and accompanying

text.

theater. In this respect, they are no different than

many procedures used for the management of miscar-

riages, which are also commonly addressed in office set-

tings.”

Moreover, many of the burdensome construction

requirements contained in the ASC regulations that are

designed to maintain a sterile environment—such as

restricted-access surgical suites, one-way traffic flow

patterns, scrub equipment, and special ventilation

units—are unnecessary in abortion clinics.’ This is be-

cause clinicians performing abortions access the uterus

through the vagina, which is known as a “clean-

contaminated field” and is not naturally a sterile space.

Therefore, “[rjoutine sterile precautions (eg., drapes,

caps, masks, and gowns) are unnecessary” under ac-

cepted medical practice for abortions. Indeed, accepted

medical practice requires only that the clinician use

sterile instruments and “ensure[] that the tips of in-

struments ever contact non-sterile surfaces before en-

tering the uterus.””

3 See infra note 29 and accompanying text.

4 One specific example of a structural element designed to

maintain a highly sterile environment in ASCs that is superfluous

in the abortion context is the requirement that ASCs have operat-

ing rooms with ceilings that are “monolithic from wall to wall ... ,

smooth and without fissures, open joints, or crevices and with a

washable and moisture impervious finish.” 25 Tex. Admin. Code

§ 135.52(f(5)(C). While such a requirement may be advisable for

procedures where sterile body tissue is exposed, abortions are not

such procedures and such stringent construction regulations are

unnecessary.

25 Rock & Jones, supra note 18, at 784.

26 Lohr & Lyus, Dilatation and Evacuation, in Abortion Care

88, 95 (Rowlands ed., 2014); see also Paul, supra note 14, at 294.

Respondents’ argument before the court of ap-

peals—that the external sterility requirements for

ASCs are beneficial to abortion procedures because

“surgical abortion involves invasive entry into the

uterus””’—ignores the fact that, unlike some other ob-

stetric and gynecological procedures (such as cesarean

deliveries and abdominal hysterectomies), surgical

abortions do not involve exposure of the uterus to the

external environment. For this reason (among others),

ensuring the sterility of the portions of the surgical in-

struments that make contact with the uterus is suffi-

cient to achieve the sterility needed for the procedure.

There is simply no credible argument that the sterility

precautions mandated by H.B.2 have an accepted sci-

entific or medical basis.

2. Office-based surgery is common and

Texas law does not require that facilities

performing procedures with higher mor-

tality rates than abortion meet the stand-

ards for ASCs

Office-based surgery is common, and for many gy-

necological procedures it is the prevailing practice.”

"7 See Pet. App. 31a; Resp. C.A. Br. 13.

28 See, e.g., ACOG, Patient Education Pamphlets: Colposcopy

(2013); ACOG, Patient Education Pamphlets: Hysteroscopy

(2011); ACOG, Patient Education Pamphlets: Endometrial Hy-

perplasia (2012); ACOG, Patient Education Pamphlets: Loop

Electrosurgical Excision Procedure (2013); Allen et al., Pain Re-

lief for Obstetric and Gynecologic Ambulatory Procedures, 40 Ob-

stetrics & Gynecology Clinics N. Am. 625, 631-640 (2013) (col-

poscopy, cervical biopsy, cervical dilation and uterine aspiration,

IUD insertion, endometrial biopsy, hysteroscopy); Nichols et al., A

Comparative Study of Hysteroscopic Sterilization Performed In-

Office Versus a Hospital Operating Room, 13 J. Minimally Inva-

For example, incomplete miscarriages are commonly

treated in office settings via uterine aspiration, which is

the same procedure as that used for the majority of in-

duced abortion procedures affected by H.B. 2.”

Indeed, consistent with accepted medical practice,

Texas permits physicians to perform surgical and other

procedures in an office setting, including surgical pro-

cedures that require general anesthesia (which general-

ly increases a procedure’s risk), and/or that have com-

plication and mortality rates similar to or higher than

those associated with abortion, without requiring that

sive Gynecology 447, 449 (2006) (demonstrating the “feasibility and

suitability of performing hysteroscopic sterilization in-office”);

Peacock et al., supra note 14, at 425-431 (hysteroscopy, IUD re-

trievals, sterilization, uterine evacuation (including dilation and

aspiration), among other procedures); Urman et al., Safety Con-

siderations for Office-Based Obstetric and Gynecologic Proce-

dures, 6 Revs. Obstetrics & Gynecology e8, e14 (2013) (“There is

no evidence to substantiate office-based gynecologic procedures

being inherently unsafe. On the contrary, gynecologists can per-

form procedures in the office setting in a safe, effective, efficient,

patient-centered fashion.”).

29 Allen et al., supra note 28, at 632 (uterine aspiration is used

for induced abortion and treatment of miscarriages and can be per-

formed in an office setting); Dennis et al., Barriers to and Facilita-

tors of Moving Miscarriage Management Out of the Operating

Room, 47 Persp. on Sexual & Reprod. Health 141, 141, 143-144

(2016) (technical aspects of miscarriage management and induced

abortion are the same); Peacock et al., supra note 14, at 427 (vacu-

um curettage is used for abortion and miscarriage management

and can be performed in office setting); Godfrey et al. Early

Pregnancy Loss Needn't Require a Trip to the Hospital, 58 J. Fam.

Prac. 585, 588 (2009) (vacuum aspiration appropriate for office set-

ting); DSHS, Vital Statistics Annual Reports, supra note 8 (data

by procedure type).

the offices meet ASC standards.’ For example, no law

requires colonoscopies or liposuction to be performed in

an ASC or hospital setting, despite the fact that the

mortality rate for both procedures is higher than for

abortion. The mortality rate for colonoscopy, for ex-

ample, is 0.007 percent, ten times higher than the na-

tional mortality rate for abortion.*' The mortality rate

for liposuction is even higher, at approximately 0.02

percent.”

There is no medical purpose or principled reason

for Texas law to require abortion facilities—but not

other medical facilities that perform similar or riskier

outpatient procedures—to meet ASC standards.

I. HB. 2’s PRIVILEGES REQUIREMENT DOES Not SERVE

THE HEALTH OF WOMEN IN TEXAS

As with the ASC requirement, the Texas legisla-

ture’s claimed purpose for requiring abortion providers

to maintain admitting privileges at a local hospital is “to

raise the standard and quality of care for women seek-

ing abortions and to protect the health and welfare of

*° See 22 Tex. Admin. Code §§ 192.1-192.6 (providing guide-

lines for office-based use of different levels of anesthesia, including

general anesthesia).

*! am. Soc’y for Gastrointestinal Endoscopy, Complications

of Colonoscopy, 74 Gastrointestinal Endoscopy 745, 747 (2011).

For a discussion of the low mortality rate associated with abortion,

see supra notes 6-10 and accompanying text.

2 Grazer & de Jong, Fatal Outcomes from Liposuction: Cen-

sus Survey of Cosmetic Surgeons, 105 Plastic & Reconstructive

Surgery 436, 441 (2000).

women seeking abortions.””» But H.B.2’s privileges

requirement provides no medical benefit and is incon-

sistent with prevailing medical practice. Clinicians may

be denied admitting privileges for reasons unrelated to

the quality of care they provide, and developments in

modern medical practices, which emphasize communi-

cation between physicians who specialize in inpatient or

outpatient settings, achieve continuity of care without

regard to whether a woman’s abortion provider has

admitting privileges. Stated in plain terms, the privi-

leges requirement does nothing to improve the health

and safety of women.

A. Clinicians Are Denied Medical Privileges For

Reasons Unrelated To Their Competency

Obtaining privileges can be difficult, if not impossi-

ble, for many clinicians, irrespective of the clinician’s

technical competence. For example, some academic

hospitals will only allow medical staff membership for

clinicians who also qualify for and accept faculty ap-

pointments. Other hospitals require that clinicians ad-

mit a certain number of patients, or perform a certain

number of deliveries or major obstetric or gynecologi-

cal surgeries in order to affiliate with the hospital.

Providers who specialize in performing abortions are

frequently unable to meet such requirements because

abortion is a very safe procedure only rarely resulting

in hospitalization.”

33 Det. App. 25a (citing S. Comm. on Health & Human Servs.,

Bill Analysis, Tex. H.B. 2, 88d Leg., 2d C.S. 1 (2013); Opp. 3, 22.

* See, ¢.g., White et al., supra note 11, at 435 (“{S]ince the

percentage of women requiring hospitalization is very low, physi-

cians will be admitting few (if any) patients, which may make it

difficult for them to maintain hospital privileges.”).

These factors can—and do—result in a denial of

admitting privileges. In this very case, the Fifth Cir-

cuit credited evidence that clinicians at Petitioner’s

clinic in McAllen have been denied pri ivileges for rea-

sons unrelated to their competency.” But the real-life

impact of the privileges requirement is far more wide-

ranging than the effect on the McAllen clinic. After

H.B. 2’s privileges requirement went into effect, nearly

one-third of abortion clinics were forced to stop provid-

ing abortions.” Requiring that clinicians obtain hospi-

tal privileges—when such privileges may be denied for

reasons unrelated to the quality of care that they pro-

vide—does not promote the wellbeing of Texas women.

B. H.B.2’s Privileges Requirement Is Incon-

sistent With Accepted Medical Practice And

Provides No Benefit To Patient Care Or

Health Outcomes

The privileges requirement is also inconsistent

with prevailing medical practices, which achieve conti-

nuity of care independent of whether the clinician who

performs the abortion has admitting privileges at a lo-

*S Det. App. 70a-71a (“With respect to the admitting privileg-

es requirement, Whole Woman’s Health presented considerable

evidence that Plaintiff Dr. Lynn and three unidentified physicians

working at the McAllen facility were unable to obtain admitting

privileges at local hospitals for reasons other than their compe-

tence.”). There was also evidence in the record that a clinician

from Petitioner’s E] Paso clinic was denied privileges for reasons

unrelated to clinical competence, but the Fifth Circuit found it un-

necessary to consider this evidence in reaching its decision. /d. at

72a & n.A4.

°° Grossman et al., The Public Health Threat of Anti-

Abortion Legislation, 89 Contraception 73, 74 (2014).

cal hospital.” Rather than requiring admitting privi-

leges, accepted medical practice requires the abortion

provider’s facility to have a plan to provide prompt

emergency services and (if needed) to transfer a pa-

tient to a nearby emergency facility if complications oc-

cur.” This practice ensures that, in the rare instance

where a woman experiences a complication during or

immediately after an abortion and needs hospital-based

care,” she can be treated appropriately by a trained

emergency-room clinician or the hospital’s on-call spe-

cialist.“ The care provided by that emergency-room

clinician or on-call specialist occurs without regard to

whether the woman’s abortion provider has admitting

privileges.

In fact, the transfer of care from the abortion pro-

vider to an emergency-room clinician is consistent with

the broader practice throughout modern medicine for

*” See Inst. of Med., Crossing the Quality Chasm: A New

Health System for the 21st Century 8-9 (2001) (recommending that

health care be available 24 hours a day and that “(cJlinicians and

institutions should actively collaborate and communicate to ensure

an appropriate exchange of information and coordination of care”).

*® ACOG, Guidelines for Women’s Health Care: A Resource

Manual 720 (4th ed. 2014) (“Clinicians who perform abortions ..

should have a plan to provide prompt emergency services if a com-

plication occurs and should establish a mechanism for transferring

patients who require emergency treatment.”); Nat’l Abortion

Fed’n, 2015 Clinical Policy Guidelines 42 (2015) (similar proto-

cols).

See supra notes 11-13 and accompanying text for a discus-

sion of the rarity of abortion-related complications.

*° See White et al., supra note 11, at 435 (“In the rare event

that a hospital transfer is needed, the clinician who is most quali-

fied to treat a woman experiencing a major complication may not

be the one who performed the abortion.”).

inpatient and outpatient care to be provided by practi-

tioners who specialize in each setting.*' It is no longer

the case that the same clinician necessarily provides

both outpatient and hospital-based care; rather, hospi-

tals increasingly rely on “hospitalists” who provide care

only in a hospital setting.** Communication and collab-

oration between specialized health care providers

achieves continuity of care.*’ Indeed, prior to the en-

actment of H.B.2, Texas law reflected the prevailing

medical practice by requiring that abortion facilities

have protocols to ensure that patients could be trans-

ferred to a hospital in the rare event of an emergency

requiring hospital treatment.“

H.B. 2’s privileges requirement also does nothing

to assist Texas women in the rare event that they ex-

perience complications after returning home. As with

any emergency, it is likely that a woman would seek

=. at her nearest hospital at the time it oc-

* Given the juxtaposition of H.B. 2’s requirement

that an abortion provider maintain privileges at a hos-

pital within thirty miles of her clinic with the fact that

the average Texas county is 111 miles from an abortion

*! See, e.g., ACOG, Comm. on Patient Safety & Quality Im-

provement, Committee Opinion Number 459, The Obstetric-

Gynecologic Hospitalist, 116 Obstetrics & Gynecology 237 (2010).

*? Id. at 237.

*? See Inst. of Med., supra note 37, at 9, 62, 133-134.

“ 38 Tex. Reg. 6536, 6546 (Sept. 27, 2013) (requiring a “readi-

ly accessible written protocol for managing medical emergencies

and the transfer of patients requiring further emergency care to a

hospital,” including a “working arrangement” with a physician who

has admitting privileges at a local hospital).

= Upadhyay et al., supra note 11, at 176.

clinic,” it is unlikely that the hospital at which a woman

seeks emergency medical care will be the hospital at

which her provider maintains privileges. Nor would it

be appropriate to transport a woman an additional dis-

tance to a hospital simply because that is the facility at

which her abortion provider maintains privileges.”

There is thus no medical basis from which to con-

clude that women’s health would be advanced by re-

quiring that clinicians obtain the local privileges man-

dated by H.B.2. Indeed, such a requirement is out of

step with prevailing medical practice and imposes an

unnecessary restriction on the ability of clinicians to

provide abortion care.

Several federal courts have noted the lack of scien-

tific basis for similar privileges requirements. In No-

vember, the U.S. Court of Appeals for the Seventh Cir-

cuit permanently enjoined enforcement of a substan-

tially identical privileges requirement in a Wisconsin

statute. As relevant here, the court explained that

“complications from an abortion are both rare and rare-

ly dangerous” and “(a] woman who experiences compli-

cations from an abortion (either while still at the clinic

where the abortion was performed or at home after-

ing Abortion Access, N.Y. Times, Aug. 19, 2015, http//nyti.ms/

1E36Zjc.

‘7 Indeed, H.B. 2 elsewhere acknowledges that the prevailing

practice is for a patient to receive emergency care at a facility near

her home. Tex. Health & Safety Code Ann. § 171.0031(aX(2\B)

(requiring that a woman be given “the name and telephone num-

ber of the nearest hospital to the home of the pregnant woman at

which an emergency arising from the abortion would be treated”).

“8 See Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d

908 (7th Cir. 2015).

ward) will go to the nearest hospital, which will treat

her regardless of whether her abortion doctor has ad-

mitting privileges.” It thus “makes no sense,” the

court concluded, “to abridge the constitutional right to

an abortion on the basis of spurious contentions regard-

ing women’s health.””

In setting aside Alabama’s privileges requirement,

the U.S. District Court for the Middle District of Ala-

bama found that mandating that abortion providers

have local admitting privileges “falls outside the range

of standard medicai practice for complication care” for

abortion procedures and “would, in reality, undermine

the State’s goal of continuity of care” because women in

"9 Td. at 912.

*° Id. at 920. Judge Manion dissented, citing in part a 2004

statement joined by amici AMA and ACOG, for the proposition

that “admitting privileges” are a “core principle” of patient safety.

Id. at 928 (Manion, J., dissenting). As the plain language of the

2004 statement makes clear, however, it is a core principle for phy-

sicians to have admitting privileges or a transfer agreement (with

another physician or hospital) in place. See id. (discussion quoting

Am. Coll. Surgeons, Statement on Patient Safety Principles for

Office-Based Surgery Utilizing Moderate Sedation/Analgesia,

Deep Sedation/Analgesia, or General Anesthesia, 89 Bull. Am.

Coll. Surgeons 32, 33 (2004)). In Wisconsin, as in Texas, laws that

predate the admitting privileges requirements mandate such

agreements. Jd. at 909 (majority opinion); supra note 44. Moreo-

ver, ACOG’s recent publications, which reflect advances in accept-

ed medical practices, make clear that ACOG does not recommend

an admitting privileges requirement for abortion procedures. See

supra note 2; ACOG, Report of the Presidential Task Force on

Patient Safety in the Office Setting (2010) (compiling recommenda-

tions for office-based surgery, none of which require admitting

privileges at a nearby hospital).

Alabama would lose local access to the clinics forced to

close under the privileges requirement.”’

As these courts have recognized, citing the rele-

vant standards of care, a privileges requirement is un-

necessary and provides no benefit to women’s health.

IL H.B. 2 JEOPARDIZES WOMEN’S HEALTH BY RESTRICT-

ING ACCESS TO SAFE AND LEGAL ABORTION

Not only are H.B. 2’s ASC and privileges require-

ments entirely unnecessary, there is incontrovertible

evidence that they are impeding women’s access to

quality abortion care. That these restrictions are mak-

ing abortion more difficult and expensive to obtain, im-

posing new burdens on women who can least afford

them, is amply documented by Petitioners and other

amici.” Amici here write separately to address the

several ways in which these burdens are known to

jeopardize women’s health.

At the outset, it is beyond question that delays in

obtaining an abortion can compromise a woman’s

health; abortion should be performed safely and as ear-

ly as possible.*’ That is true notwithstanding that

abortion procedures are among the safest medical pro-

*! Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d

1330, 1372 (M.D. Ala.), supplemented by 33 F. Supp. 3d 1381 (M.D.

Ala), and amended by 2014 WL 6426891 (M.D. Ala. Oct. 24, 2014).

»? See Pet. Br. 23-26, 49-50; see also, e.g., Soffen, supra note 46

(noting that the average Texas county is 111 miles from a facility

that provides abortions; if the Fifth Circuit’s judgment is allowed

to stand, the typical cost of an abortion in Texas would rise 15 per-

cent, to $701).

*3 See ACOG, College Statement of Policy, Abortion Policy,

supra note 2, at 2.

cedures. Complications, as rare as they are, increase

with the length of the pregnancy.” The mortality rate

for abortions occurring prior to thirteen weeks of ges-

tation, the period during which most abortions are per-

formed,” is no more than 0.4 per 100,000.% The mortal-

ity rate increases significantly, however, throughout

the second trimester to 1.7 per 100,000 when the abor-

tion is performed between thirteen and fifteen weeks,

3.4 per 100,000 when the abortion is performed be-

tween sixteen and twenty weeks, and 8.9 per 100,000

when the abortion is performed at twenty-one weeks or

later.

Research confirms that, following the enactment of

H.B.2, women have been prevented from obtaining

timely and legal abortions. During the first six months

following the implementation of H.B. 2’s privileges re-

quirement, when nearly one-third of Texas’s clinics

closed, there was a noticeable increase in the propor-

tion of abortions performed in the second trimester, as

compared with the prior twelve-month period, expos-

ing those women to risks above what they would have

™ See Bartlett et al., Risk Factors for Legal Induced Abor-

tion-Related Mortality in the United States, 103 Obstetrics & Gy-

necology 729, 735 (2004).

*> Dazol et al., supra note 6, at 1 (noting that “nearly all” abor-

tions are performed at or prior to thirteen weeks of gestation).

% Bartlett et al., supra note 64, at 733 tbl. 2.

aes Id.; see also Grossman et al., Complications After Second

Trimester Surgical and Medical Abortion, 16 Reprod. Health

Matters 173, 173 (2008) (citing the Bartlett data).

*8 Grossman et al., Change in Abortion Services After Im-

plementation of a Restrictive Law in Texas, 9) Contraception 496,

498-499 & tbl. 1 (2014).

experienced had they obtained abortions earlier in their

pregnancies.” During that same period, the number of

abortions reported in Texas declined by 13 percent,

which researchers observed was a steeper drop “than

that reported for both Texas and the nation in recent

years.”” The number of abortions reported in the

Lower Rio Grande Valley—the home of a particularly

vulnerable population of women—declined even fur-

ther.

Amici are concerned that these declines may indi-

cate not a true reduction in the incidence of abortion,

but rather, among other possibilities (such as obtaining

care in another state), a rise in illegal abortions, includ-

ing self-induced abortions. Data suggest that there is a

relationship between restricted access and the use of

unsafe means to end an unwanted pregnancy, and self-

induction puts women at risk for injury or death caused

by, among other things, fake or expired medications,

improper dosage, lack of instructions, trauma, or the

absence of medical supervision.”

*? See Grossman et al., Public Health Threat, supra note 36,

at 74.

® Grossman et al., Change in Abortion Services, supra note

58, at 499 tbl. 1, 500.

*! See id. at 499. For women in the Valley, the decline may

deepen even more because approximately half of women from the

Valley who obtained abortions during this time period did so at a

clinic in Corpus Christi, which has since closed. See id.

62 See ACOG, Committee Opinion Number 613, supra note 2,

at 1061 (“(Hlistorical and contemporary data show that where

abortion is illegal or highly restricted, women resort to unsafe

means to end an unwanted pregnancy, including self-inflicted ab-

dominal and bodily trauma, ingestion of dangerous chemicals, self-

medication with a variety of drugs, and reliance on unqualified

A statewide survey of Texas women in January

2015 found that self-induction was more likely to occur

among Latinas who live in a county bordering Mexico

and women who reported difficulty obtaining reproduc-

tive health services due to barriers such as the cost of

services or difficulty arranging transportation.” “Giv-

en that [both] populations ... are among those that have

been most directly affected by the closure of abortion

clinics in the state [due to H.B.2],” the researchers

found cause to “suspect that abortion self-induction will

increase as clinic-based care becomes more difficult to

access.” The record evidence in this case points in the

same direction. The court of appeals credited abortion

providers’ testimony “regarding the difficulties that

women in the Rio Grande Valley faced after the

McAllen facility ceased performing abortions, including

that the clinic saw an increase in self-attempted abor-

tion.’

abortion providers.”); Shah et al., Access to Safe Abortion: Pro-

gress and Challenges Since the 1994 International Conference on

Population and Development (ICPD), 90 Contraception S39, S40

(2014) (noting that “legal restrictions result in women self-inducing

abortion or seeking it clandestinely”); Grossman et al., Public

Health Threat, supra note 36, at 74 (“Evidence from other coun-

tries indicates that severely restricting abortion does not reduce

its incidence—it simply makes unsafe abortion more common.”).

®? Grossman et al., Knowledge, Opinion and Experience Re-

lated to Abortion Self-Induction in Texas, Texas Policy Evalua-

tion Project Research Brief 2, 4 (2015).

* Td. at 4.

®5 Det. App. 65a; see also Hellerstein, The Rise of the DIY

Abortion in Texas, The Atlantic, June 27, 2014, http://www.

theatlantic.com/health/archive/2014/06/the-rise-of-the-diy-abortion-

in-texas/373240/ (reporting on self-induction in the Rio Grande

Valley).

In sum, far from safeguarding women’s health, re-

quirements imposed by H.B.2 jeopardize women’s

health by impeding, if not outright preventing, access

to safe, legal, evidence-based abortion care. Amici op-

pose laws that, in the absence of any valid medical justi-

fication, have this potentially devastating result.”

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

KIMBERLY A. PARKER

Counsel of Record

SONYA L. LEBSACK

SKYE L. PERRYMAN

JESSICA E. NOTEBAERT

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

kimberly.parker@wilmerhale.com

JANUARY 2016

supra note 2, at 2.

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.