# Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A24 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text No. 15-274 IN THE Supreme Court of the United States WHOLE WOMAN’S HEALTH, et al., Petitioners, v. 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 iv 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 Vv 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 ae 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) vi 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 ix 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 X 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. 2 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. 3 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. 4 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 5 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. 6 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). 7 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). 8 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”). 9 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 10 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. 11 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. 12 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. 13 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- 14 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). 15 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). 16 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.”). 17 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). 18 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.”). 19 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. 20 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- “© Soffen, How Texas Could Set National Template for Limit- 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). 21 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). 22 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. 23 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). 24 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 25 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). 26 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 © See ACOG, College Statement of Policy, Abortion Policy, supra note 2, at 2. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A24. Public record. Not legal advice.