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

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No. 15-274

Supreme Court of the United States

WHOLE WOMAN’S HEALTH, et al.,

Petitioners,

v.

JOHN HELLERSTEDT, 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 Firru Circuit

BRIEF OF AMICI CURIAE BIPARTISAN

AND BICAMERAL COALITION OF 121

TEXAS LEGISLATORS SUPPORTING

RESPONDENTS

Erin GLENN Busy Crarc Enocu

411 Highland St. Counsel of Record

Houston, Texas 77009 Enocu Kever PLLC

(713) 868-4233 600 Congress Ave., Suite 2800

. Austin, Texas 78701

MICHELLE S. STRATTON (512) 615-1202

700 Louisiana St. cenoch@enochkever.com

Suite 2300

Houston, Texas 77002

713) 221-2354

Counsel for Amici Curiae

February 3, 2016

254013 fc

COUNSEL PRESS

(800) 274-3321 * (R00) 359-6859

ee 3 2015

IN THE OFFICE OF THE & =.

~

1

TABLE OF CONTENTS

TABLE OF CONTENTS.

TABLE OF CITED AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF THE ARGUMENT

ARGUMENT.

I. The Texas Legislature Enacted HB2

With The Express Purpose Of Protecting

Women’s Health. ..

A. Regulating the practice of

medicine is within the province

of the legislature..

B. The public demanded legislative

action in response to concerns

over women’s abortion care..

C. Legislators were clear that the

purpose of HB2 was to protect

women’s health.

Il. The Legislature Heard Evidence

That HB2’s Ambulatory-Surgical-

Center And Admitting-Privileges

Requirements Would Enhance The Health

And Safety Of Texas Women.

13

.18

a

Table of Contents

A. Experts testified that abortion

is an invasive procedure that has

serious risks and may cause life-

threatening complications. . 18

B. Experts testified that facilities that

meet ambulatory-surgical-center

standards are more qualified to treat

the serious risks and complications that

attend abortion procedures.. —

C. Experts testified that requiring abortion

doctors to have admitting privileges at

a nearby hospital protects the health of

women undergoing abortions. .30

CONCLUSION , .36

itt

TABLE OF CITED AUTHORITIES

Page

Cases

Gonzales v. Carhart,

550 U.S. 124 (2007) 7

Hennington v. Georgia,

163 U.S. 299 (1896). 8

United States v. Salerno,

481 U.S. 739 (1987). 8

Statutes and Other Authorities

Sup. Ct. R. 37.3(a) , Jl

Sup. Ct. R. 37.6 :, 1

Texas. Tex. Const. art XVI, § 31. .6, 8

Act of Apr. 5, 1907, 30th Leg., R.S., ch. 64,

§ 1, 1907 Tex. Gen. Laws 135

Act of Apr. 10, 1879, 16th Leg., R.S., ch. 77, § 1,

1879 Tex. Gen. Laws 86. 9

Act of Apr. 17, 1907, 30th Leg., R.S., ch.

123, § 7, 1907 Tex. Gen. Laws 224 ; 9

Act of Aug. 11, 1919, 36th Leg., Ist C.S.,

ch. 87, § 1, 1919 Tex. Gen. Laws 399 9

Ww

Cited Authorities

Act of Dec. 14, 1837, 2d. Cong., R.S., 2 Repus.

Trex. Laws 39 (1898)

Act of June 14, 19 3, 38th Leg., 3d C.S., ch.

28, § 1 1923 Tex. Gen. Laws 235.

Act of Mar. 25, 1909, 31st Leg., Ist C.S., ch. 117,

§ 3, 1909 Tex. Gen. Laws 228

Allison Sullivan, Texas Conservatives

Hail Gosnell Conviction, Houston

CHRONICLE, May 13, 2013.

Pres. THEODORE ROOSEVELT, 1 A COMPILATION

OF THE MessaGes & SPEECHES OF THEODORE

ROOSEVELT (1906). .

Jordan Smith, Perry Signs HB 2: Fight over Abortion

Regs Will Move to Courts, AusTIN CHRONICLE,

July 18, 2013, http:/Awww.austinchronicle.com/

daily/news/2013-07-18/perry-signs-hb2/

Maryclaire Dale, Associated Press, Gosnell

Case Fuels Bitter U.S. Abortion Debate,

Boston HERALD, May 16, 2016

Morgan Smith et al., Abortion Bill Finally

Passes Texas Legislature, THE TEXAS

TRIBUNE, July 13, 2013, http://www.

texastribune.org/2013/07/13/texas-abortion-

regulations-debate-nears-climax/

Page

8

8-9

17

17-18

1

INTEREST OF AMICI CURIAE'

By its Constitution, the Texas Legislature is

bicameral, with a State Senate and a State House of

Representatives. The Senate has 31 members. The House

has 150 members. The Bipartisan and Bicameral Coalition

of Texas Legislators includes 121 Senate and House

members, and former members who voted on HB2.

The Coalition members are:

Anderson, Charles,“Doc” Bonnen, Dennis

Anderson, Rodney Bonnen, Greg

Ashby, Trent Burkett, Cindy

Aycock, Jimmie Don Burns, DeWayne

Bell, Cecil Burrows, Dustin

Bettencourt, Paul Burton, Konni

Birdwell, Brian Button, Angie Chen

Bohac, Dwayne Campbell, Donna

1. The parties have consented to the filing of this brief.

Under Rule 37.3(a) a letter reflecting the consent of the parties is

submitted contemporaneously with this brief. Under Rule 37.6,

amici affirm that no counsel for a party authored this brief in whole

or in part and that no person other than amici and their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

Capriglione, Giovanni

Clardy, Travis

Cook, Byron

Craddock, Tom

Creighton, Brandon

Crownover, Myra

Cyrier, John

Dale, Tony

Darby, Drew

Elkins, Gary

Eltife, Kevin

Estes, Craig

Faircloth, Wayne

Fallon, Pat

Farney, Marsha

Fletcher, Allen

Flynn, Dan

Frank, James

Fraser, Troy

Frullo, John

Galindo, Rick

Geren, Charlie

Goldman, Craig

Gonzales, Larry

Hall, Bob

Hancock, Kelly

Harless, Patricia

Harper-Brown, Linda

(former member voting

on HB2)

Hegar, Glenn

(Current Comptroller,

former member voting

on HB2)

Huberty, Dan

Huffines, Don

Huffman, Joan

Hughes, Bryan

Hunter, Todd

Isaac, Jason

Kacal, Kyle

Keffer, Jim

Keough, Mark

King, Ken

King, Phil

King, Susan

Klick, Stephanie

Kolkhorst, Lois

Koop, Linda

Krause, Matt

Kuempel, John

Landgraf, Brooks

Larson, Lyle

Laubenberg, Jodie

Leach, Jeff

Lozano, J.M.

Lucio, Jr., Eddie

Metcalf, Will

Meyer, Morgan

Miller, Doug

Miller, Rick

Morrison, Geanie

Murphy, Jim

Murr, Andrew

Nelson, Jane

Nichols, Robert

Otto, John

Paddie, Chris

Parker, Tan

Patrick, Dan

(Current Lt. Gov.,

former member voting

on HB2)

Paul, Dennis

Pena, Gilbert

Perry, Charles

Phelan, Dade

Phillips, Larry

Price, Four

Raney, John

Riddle, Debbie

Rinaldi, Matt

Sanford, Scott

Schaefer, Matt

Schofield, Mike

Schubert, Leighton

Schwertner, Charles

Seliger, Kel

Shaheen, Matt

Sheets, Kenneth

Sheffield, J.D.

Simmons, Ron

Simpson, David

Smith, Wayne

Smithee, John

Spitzer, Stuart

Springer, Drew

Stephenson, Phil

Stickland, Jonathan

Straus, III, Joe

Tayior, Larry

Taylor, Van

Thompson, Ed

Tinderholt, Tony

Turner, Scott

Van Deaver, Gary

Villalba, Jason

White, James

White, Molly

Workman, Paul

Wray, John

Zedler, Bill

Zerwas, John

6

SUMMARY OF THE ARGUMENT

These Bipartisan and Bicameral Texas Legislators

submit this brief in support of Respondents to highlight the

legislative evidence that House Bill 2 (HB2) is the result of

the Legislature’s rightful concern to protect the health of

Texas women. One of the core functions of the Legislature

is to reasonably regulate the practice of medicine in Texas.

Tex. Const. art XVI, § 31. That responsibility includes the

Legislature’s obligation to intentionally and consistently

assure access to quality women’s health care.

This Court is already aware of the Kermit Gosnell

tragedy in Pennsylvania, which resulted in a grand

jury recommendation that facilities providing abortion

services be held to standards similar to those imposed on

ambulatory surgical centers. R.Br. 1. Gosnell’s conduct

triggered public outcry, and Texas citizens called for

legislative action. See Maryclaire Dale, Associated Press,

Gosnell Case Fuels Bitter U.S. Abortion Debate, Boston

HERALD, May 16, 2016 (describing the impact of the

Gosnell trial on legislatures nationwide); Allison Sullivan,

Texas Conservatives Hail Gosnell Conviction, Houston

CHRONICLE, May 13, 2013 (summarizing the positions of

several state legislators).

As described in more detail below, the bill that the

Legislature eventually enacted was based on careful study

of medical information. The Legislature encouraged public

participation in its deliberations. It heard many days of

public testimony from citizens and respected medical

practitioners. Extensive medice] evidence and discussion

buttressed the Legislature’s ultimate conclusion that HB2’s

ambulatory-surgical-center and admitting-privileges

7

requirements will protect the health of Texas women. But

the district court below did not review any of the evidence

that the Legislature considered before enacting HB2.

Instead, the district court relied nearly exclusively on

contrary medical evidence that Petitioners offered during

the litigation and gave no weight to Respondents’ rebuttal

evidence. This, despite this Court’s warning in Gonzales

v. Carhart, 550 U.S. 124 (2007), that a legislature must

have a“margin[for}error to act in the face of medical

uncertainty.” Jd. at 166 (citations omitted).

Because “[cjonsiderations of marginal safety are

within the legislative competence,” id., the Bipartisan

and Bicameral Coalition of Texas Legislators support

Respondents’ request that this Court affirm the Fifth

Circuit's ud ,

ARGUMENT

I. The Texas Legislature Enacted HB2 With The

Express Purpose Of Protecting Women’s Health.

This Court ha» recognized that, even in the context

of abortion, weighing “the balance of risks [is] within the

legislative competence when the regulation is rational and

in pursuit of legitimate ends.” Gonzales, 550 U.S. at 166.

In enacting HB2, the Texas Legislature considered the

ample medical evidence put before it and acted to protect

women’s health.

8

A. Regulating the practice of medicine is within

the province of the legislature.

It is both the right and obligation of the state to ensure

the health and welfare of its citizenry. See, e.g. United

States v. Salerno, 481 U.S. 739, 755 (1987) (recognizing

that “the safety and indeed the lives of its citizens” is the

“primary concern of every government”); Hennington v.

Georgia, 163 U.S. 299, 309 (1896) (referring to the state’s

obligation to “provide for the health, comfort, and safety

of its people”). Texas has faithfully executed that duty for

nearly 200 years.

From the earliest days of the Republic, Texas actively

fostered the health and welfare of its people by regulating

the practice of medicine. The Texas Constitution charges

the Legislature with “pass[ing] laws prescribing the

qualifications of practitioners of medicine.” Tex. Const.

art. XVI, § 31. In 1837, Texas lawmakers enacted the

Medical Practice Act to standardize the practice of

medicine. Act approved Dec. 14, 1837, 2d. Cong., R.S., 2

Repus. TEX. Laws 39 (1898). The Legislature installed the

first state health officer in 1879, and in 1909 established

standards for nursing care. See, respectively, Act approved

Apr. 10, 1879, 16th Leg., R.S., ch. 77, § 1, 1879 Tex. Gen.

Laws 86, 86; Act of Mar. 25, 1909, 31st Leg., Ist C.S., ch.

117, § 3, 1909 Tex. Gen. Laws 228, 229.

The Texas Legislature has taken specific interest in

the health of women, as evidenced by a well-established

legislative record. In 1906, while visiting the state,

President Theodore Roosevelt commended Texans for

recognizing “(t]he thing which the State most needs,”

and encouraged other states to follow Texas’s lead. Pres.

9

THEODORE RoosEVELT, 1 A COMPILATION OF THE MESSAGES

& SPEECHES OF THEODORE ROOSEVELT 604-05 (1906). After

visiting Austin and several other cities, he described the

priority Texas affords as the most impressive aspect of

his week-long trip to the state.

Texas lawmakers have continued to regulate in the

interest of women’s health. By the 1930s, the Legislature

had published obstetric and midwifery regulations and

debuted a maternity health initiative.’

The legislation under attack by Petitioners is not

without substantial history. It is an extension of Texas

lawmakers’ long tradition of legislating in the interest of

women.

B. The public demanded legislative action in

response to concerns over women’s abortion

care.

In the months preceding HB2’s enactment, thousands

of Texas citizens appeared before the Texas Legislature

to express their views about whether the state had paid

sufficient attention to the quality of care women receive

during and after an abortion. The Texas Senate and

House held many hours of hearings on several proposed

enactments that were eventually rolled into Senate Bill 1

2. See, respectively, Act of Apr. 5, 1907, 30th Leg., R.S., ch.

64, § 1, 1907 Tex. Gen. Laws 135, 135; Act of Apr. 17, 1907, 30th

Leg., R.S., ch. 123, § 7, 1907 Tex. Gen. Laws 224, 226; Act of Aug.

11, 1919, 36th Leg., Ist C.S., ch. 87, § 1, 1919 Tex. Gen. Laws 399,

415; Act of June 14, 1923, 38th Leg., 3d C.S., ch. 28, § 1 1923 Tex.

Gen. Laws 235, 255.

10

and House Bill 2 (companion bills).* The Senate and House

also held some 21 hours of hearings on the predecessor

proposals.‘

At these hearings, numerous medical practitioners

appeared as resource witnesses to lend necessary medical

expertise to the health care debate. For example, the

Senate heard from Dr. Mayra Jimenez Thompson:

Thank you, Madam Chair, thank you, committee

members for allowing me to speak with you

today. My name is Mayra Jimenez Thompson,

and I am a board certified Ob/Gyn licensed to

practice in the state of Texas for approximately

29 years. I practice in Dallas, and I have a

3. See Hearing on S.B. 1 Before the S. Comm. on Health

and Human Servs., 83d Leg., 2d C.S. (July 8, 2013), http://

tiesenate.granicus.com/MediaPlayer.php?clip_id=495 (15 hours,

44 minutes); Hearing on H.B. 2 Before the H. Comm. on State

Affairs, 83d Leg., 2d C.S. (July 2, 2013) http://bit.ly/InalxmP (8

hours, 38 minutes).

4. See Hearing on S.B. 5 and S.B. 24 Before the S. Comm. on

Health and Human Servs., 83d Leg., Ist C.S. (June 13, 2013), http://

tilesenate.granicus.com/MediaPlayer.php?view_id=9&clip_id=525;

Hearing on S.B. 537 Before the S. Comm. on Health and Human

Servs., 83d Leg., R.S. (Mar. 19, 2013), http://tlesenate.granicus.

com/MediaPlayer.php?view_id=9&clip_id=842; Hearing on S.B.

1198 Before the S. Comm. on Health and Human Servs., 83d Leg.,

R.S. (Apr. 16, 2013), http://tlesenate.granicus.com/MediaPlayer.

php?view_id=9&clip_id=452; Hearing on H.B. 2816 Before the

H. Comm. on State Affairs, 83d Leg., R.S. (Mar. 27, 2013), http://

tichouse.granicus.com/MediaPlayer.php?view_id=28&clip_id=6765;

Hearing on H.B. 60 Before the H. Comm. on State Affairs, 83d Leg.,

ist C.S. (June 20, 2013), http://tichouse.granicus.com/MediaPlayer.

php?view_id=28&clip_ id=6849.

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specialty in minimally invasive surgery. I am

here because of my concern for the safety of the

women in this state.

Hearing on S.B. 537 Before the S. Comm. on Health

and Human Servs., 83d Leg., R.S. (Mar. 19, 2013),

http://ticsenate.granicus.com/MediaPlayer.php?view _

id=9&clip_id=842 [hereinafter Mar. 19, 2013 Hearing]

at 1:21:02-1:25:45 (testimony of Dr. Mayra Jimenez

Thompson). As another example, the House heard from

Dr. Ingrid Skop:

My name is Ingrid Skop. I’m an obstetrician/

gynecologist in private practice in San Antonio.

I’m here to speak in support of the Bill. There

have been some excellent questions asked up

here and I hope to be able to address some of

them with my experience. I do want to start by

saying that as we all recall when abortion was

legalized the primary reason was for the safety

of women. There were terrible things that were

happening to women prior to the legalization.

And I think that’s a bipartisan issue. I think

that all of us in this room can say that we want

women to be safe.

Again, going back to the issue of safety, that’s

what we all want. I don’t think anybody, even

if we want ready access, I don’t think any

of us want these women to be -- to get their

procedure by someone who’s not competent

to perform it. Convenience should not trump

safety, in my opinion.

12

Hearing on H.B. 2816 Before the H. Comm. on State

Affairs, 83d Leg., R.S. (Mar. 27, 2013), http://tichouse.

granicus.com/MediaPlayer.php?view_id=28&clip _

id=6765 [hereinafter Mar. 27, 2013 Hearing] at 2:40:47-

2:48:15 (testimony of Dr. Ingrid Skop).

Other practitioners who testified included Dr. Mikeal

Love, a board-certified obstetrician who is also the

chairman of the continuing medical education committee

that oversees physician education for seven Austin-area

hospitals; obstetricians Dr. Jim Mauldin, Dr. Stephen

J. Hilgers, and Dr. Pat Nunnelly; emergency-room

physician Dr. Martha Garza; family practitioner Dr.

Linda Flower, who also practiced and taught obstetrics;

and anesthesiologist Dr. Mary Catharine Maxian.

These practitioners all testified about how regulation

of abortion providers affects the health of women. They

told the Legislature that the new law would be “vitally

important for the health of women in the state of Texas,”

see Hearing on S.B. 1 Before the S. Comm. on Health and

Human Servs., 83d Leg., 2d C.S. (July 8, 2013), http://

tlesenate.granicus.com/MediaPlayer.php?clip_id=495

(hereinafter July 8, 2013 Hearing] at 7:08:00-7:09:05

(testimony of Dr. Stephen J. Hilgers), and would “provide

much needed provisions for increasing the standard of

care” for women undergoing abortions, Hearing on S.B.

5 and S.B. 24 Before the S. Comm. on Health and Human

Servs., 83d Leg., Ist C.S. (June 13, 2013), http://tlesenate.

granicus.com/MediaPlayer.php?view_id=9&clip_id=525

(hereinafter June 13, 2013 Hearing] at 3:18:18-3:21:50

(testimony of Dr. Pat Nunnelly).

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C. Legislators were clear that the purpose of HB2

was to protect women’s health.

Throughout the extensive public debate about HB2,

Texas legislators stated unequivocally that the bill’s aim

was to safeguard the health of Texas women who choose

abortion. Referring to HB2’s companion bill, Senate Bill 1,

Senate sponsor Glenn Hegar stated on the Senate floor: “I

firmly believe, from testimony, and everything I’ve read,

that this bill raises the standard of care in Texas.”° S. Floor

Debate on S.B. 1 at 49:32 (July 12, 2013) http://tlesenate.

granicus.com/MediaPlayer.php?view_id=9&clip_id=500

[hereinafter July 12, 2013 Floor Debate]. Though a critic

of the legislation, Senator Leticia Van de Putte remarked:

“T really believe my colleague Senator Hegar when he

tells me that he really believes this is about the health

and safety of women.” Jd. at 5:50:23. Senator Jane Nelson,

co-author of SB 1, confirmed it was the Senate’s job to

make sure that patients are receiving care in a medically

appropriate facility. Jd. at 7:38:50. Responding to critics,

Senator Nelson added:

It may seem irrelevant to opponents whether

these facilities have a door wide enough for an

EMS or their doctor has admitting privileges,

but I can assure you those issues would be

very relevant to that woman whose life could

be in danger. They are relevant to ensuring

5. House Bill 2 also added Subchapter. C, the Preborn Pain

Act, to Health and Safety Code, Chapter 171. That subchapter

prohibits a physician from performing an abortion if the physician

determines that the probable post-fertilization age of the unborn

child is 20 weeks or greater. This provision is not under attack

here, though it was part of the legislative debates.

14

that those horrific practices that we’ve heard

about, of doctors like Gosnell, are never allowed

to happen again and they sure aren’t gonna

happen in Texas.

Id. at 7:38:57-7:39:29.

Other senators echoed the concerns of the bill’s

sponsors. On the Senate floor, Senator Bob Deuell, a

family practice physician, summarized studies finding

worse complication rates for abortions performed at

abortion clinics. He noted certain standards of care were

not being followed, and he concluded: “It is up to the

State, it’s up tous,tointervene [and] protect [women],

and they’re not being protected properly.” Jd. at 1:26:01.

Senator Larry Taylor, remarking about the importance of

physician credentialing in preventing doctors like Gosnell,

emphasized: “Whether it’s one doctor like that or ten,

those—we shouldn’t have any doctors like that treating

any Texas women for any condition. /d. at 3:37:21. He went

on to state: “So, by having this vetting process, the fact

that you’ve actually been credentialed by some hospital,

that you’ve been allowed to have admitting privileges at

some hospital brings up the level of the bar, so to speak, of

that doctor’s professionalism. It might even help prevent-

prevent some doctors like Doctor Gosnell and [Karpen] in

Houston.” Jd. at 3:36:49-3:37:09. Senator Donna Campbell,

an emergency room physician, commented: “This bill

encourages the patient-doctor relationship, because it will

improve care.” /d. at 3:52:50. Senator Charles Schwertner

supported the bill because it was important in protecting

the health of women in Texas. Jd. at 8:08:10. And Senator

Eddie Lucio, Jr. praised the legislation because women

deserved protection. Jd. at 8:55:45.

15

Comments like these were not made only on the Senate

floor. Introducing a similar legislative proposal that he co-

authored, Senator Deuell testified to Committee:

This bill is not intended to decrease abortions or

to close any clinic that does abortions. This

bill is about raising the standards of clinics who

do surgical abortions, to raise the standards

and provide better care for those individuals.

Mar. 19, 2013 Hearing at 00:40-2:42.

The Senator went on to state:

Members, the health and safety of all Texans is

the top priority of this committee, and I think

we want to make sure that our citizens know

that any facility they will enter will offer a high

standard of care and everything that is needed

for their well-being.

Abortion clinics are regulated by the State but

they are not regulated as a surgical facility.

They’re governed by a lower standard than

any other surgeries. This bill will provide that

abortion facilities are regulated in the same

manner as ambulatory surgical centers. This

will only apply to clinics performing more

than 40 abortions a year and will not apply to

miscarriages.

Members, this bill is generated in some

controversy as any bill does in dealing with

abortion, but my intent in filing this bill is

16

simply to protect Texas women who undergo

this procedure. I am pro-life, I make no secret

of that. I make no secret of the fact that I don’t

think abortion should be legal. But I also face

the reality that they are, and given that fact

I think that we should take all precautions to

make sure that an abortion, which is a surgical

procedure, is done in the best manner possible.

I would respectfully say that anyone that’s

opposing this bill is basically stating that they

do not think that women who have made a

decision to have an abortion should have the

very, very best in medical care.

Id. at 1:01:02-—1:02:41.

Representatives made similar statements in the

Texas House. On the House floor, Representative Jodie

Laubenberg stated that HB2 “addresses the health and

safety for a woman who undergoes an abortion procedure.”

H. Floor Debate on H.B. 2 at 31:12 (July 9, 2013)

http://tlechouse.granicus.com/MediaPlayer.php?view_

id=20&clip_id=5095. She also emphasized, in responding

to a question about facility design, that “anything that’s

going to improve the facility, that’s going to help get

better health care to this woman in case any complication

should arise, is always a good thing.” /d. at 39:40. While

discussing the merits of HB2, Representative Carol

Alvarado complimented Representative Laubenberg: “I

have served with you on the Public Health Committee,

and I know that you are a person that cares about women

and the overall health and safety.” Jd. at 59:40.

17

Also on the House floor, Representative Phil King

explained: “The bill doesn’t ask for [doctors] to be

admitted for the purpose of performing abortions. It asks

for them to be admitted for the purpose of being able to

treat their patient. Where the bill seeks admitting

privileges [is] for them to be able to treat their patient in

an emergency.” Jd. at 4:29:53. And Representative Charles

Perry encapsulated the House’s intent: “Here’s the goal

of HB 2: provide [a] safe environment for [abortion]

procedures to be done.” Jd. at 7:47:52. Indeed, even those

opposed to the bill acknowledged that the legislature

was acting in the interest of women’s health. See id. at

8:06:35 and 10:29:30 (Representative Donna Howard and

Representative Jessica Farrar).

Texas’s Governor and Lieutenant Governor likewise

emphasized that HB2’s goal was to protect women. When

signing the bill into law, then-Governor Rick Perry

announced that the bill would “improve the quality of care

women receive, ensuring that any procedure they undergo

is performed in clean, sanitary and safe conditions, by

capable personnel.” Jordan Smith, Perry Signs HB 2:

Fight over Abortion Regs Will Move to Courts, AusTIN

CHRONICLE, July 18, 2013, http://www.austinchronicle.

com/daily/news/2013-07-18/perry-signs-hb2/. And then-

Lieutenant Governor David Dewhurst declared: “This is a

bill that will improve and better protect women’s health.”*

Morgan Smith et al., Abortion Bill Finally Passes

Texas Legislature, THe Texas TRIBUNE, July 13, 2013,

6. Certain opposition amici cite a “tweet” from Lieutenant

Governor David Dewhurst. The Lieutenant Governor presides

over the Texas Senate, but is not a regular voting member, and

Lieutenant Governor Dewhurst did not vote on this legislation.

18

http://www.texastribune.org/2013/07/13/texas-abortion-

regulations-debate-nears-climax/.

Il. The Legislature Heard Evidence That HB2’s

Ambulatory-Surgical-Center And Admitting-

Privileges Requirements Would Enhance The

Health And Safety Of Texas Women.

The many medical experts who testified during the

hearings on HB2 and related bills made it clear that

abortion is a medical procedure subject to serious risks

and complications. They explained how the standards

applicable to ambulatory surgical centers (ASCs) are

important to the health of women undergoing both medical

and surgical abortions and why requiring doctors who

perform abortions to have admitting privileges at nearby

hospitals also protects patients.

A. Experts testified that abortion is an invasive

procedure that has serious risks and may cause

life-threatening complications.

Abortion is an invasive surgical procedure. As several

obstetricians testified, a surgical abortion “involves taking

the uterus which is closed, the opening of the uterus

is the cervix, and it is forcibly opened, which is called

dilating, and the pregnancy contents are evacuated.”

Mar. 19, 2013 Hearing at 1:21:43 (testimony of Dr. Mayra

Jimenez Thompson); see also id. at 1:23:22 (explaining

that the uterus is forcibly opened with “metal dilators”).

Early surgical abortions are performed by dilation and

curettage (D&C), which “can be done either with a suction

curette or with a sharp instrument, a curettage.” Mar. 27,

2013 Hearing at 2:42:46-2:49:21 (testimony of Dr. Ingrid

19

Skop). Later abortions are often performed by dilation

and evacuation (D&E), “which removes the fetal parts,

often in a piecemeal fashion.” June 13, 2013 Hearing at

2:33:26-2:37:39 (testimony of Dr. Ingrid Skop). Because it

is “difficult to remove fetal parts entirely,” “(tJhis is a very,

very tricky” and “dangerous” procedure. Mar. 27, 2013

Hearing at 2:43:35-2:49:21 (testimony of Dr. Ingrid Skop).

Even the earliest medical abortions performed

with drugs may result in an invasive surgical abortion.

Obstetricians testified that in medical abortions, “[t}wo

medications are given, usually RU-486 and Misoprostol,

which would withdraw the hormonal support of the

pregnancy and induce contractions. However, about 20

percent of the time, these result in incomplete abortions.

All of the tissue is not extruded. In those cases, a surgical

D&C is required to complete the abortion.” Hearing on

S.B. 1198 Before the S. Comm. on Health and Human

Servs., 83d Leg., R.S. (Apr. 16, 2013), http://tlesenate.

granicus.com/MediaPlayer.php?view_id=9&clip id=452

(hereinafter Apr. 16, 2013 Hearing] at 1:44:20-1:48:17

(testimony of Dr. Ingrid Skop); see also Hearing on H.B.

60 Before the H. Comm. on State Affairs, 83d Leg.,

ist C.S. (June 20, 2013), http://tlchouse.granicus.com/

MediaPlayer.php?view_id=28&clip_id=6849 [hereinafter

June 20, 2013 Hearing] at 03:48:34—03:51:39 (testimony of

Dr. Mikeal Love) (presenting scientific study confirming

that 20 percent of medical abortions resulted in adverse

effects, including the “risk of incomplete abortion” and the

“reevacuation of the uterus”). When a medical abortion is

incomplete, “all the tissue has not passed and the woman

experiences severe bleeding and often a lot of pain and

she presents to an emergency room where she’s generally

admitted for an emergency D&C, sometimes for a blood

20

transfusion.” Mar. 27, 2013 Hearing at 2:42:26 (testimony

of Dr. Ingrid Skop).

Given the nature of abortion procedures, serious

complications can and do arise. In addition to the possibility

of retained fetal tissue, another major risk is uterine

perforation. See Mar. 19, 2013 Hearing at 1:21:01-1:25:45

(testimony of Dr. Mayra Jimenez Thompson); Mar. 27, 2013

Hearing at 2:40:47—2:48:05 (testimony of Dr. Ingrid Skop);

Apr. 16, 2013 Hearing at 1:44:20-1:48:17 (testimony of Dr.

Ingrid Skop); June 13, 2013 Hearing at 1:39:51-1:42:44

(testimony of Dr. Mayra Jimenez Thompson); Hearing on

H.B. 2 Before the H. Comm. on State Affairs, 83d Leg.,

2d C.S. (July 2, 2013) http://bit.ly/InalxmP [hereinafter

July 2, 2013 Hearing] at 03:25:08-03:26:11 (testimony of

Dr. Mikeal Love). Because a pregnant woman’s uterus

“is much softer than a normal uterus,” the “suction

curette or the instruments used to evacuate the uterus

can damage the soft tissue.” Mar. 27, 2013 Hearing at

2:40:47-2:48:05 (testimony of Dr. Ingrid Skop); see also,

Mar. 19, 2013 Hearing at 1:21:01-1:25:45 (testimony of

Dr. Mayra Jimenez Thompson). In a D&E procedure in

which fetal parts are removed in pieces, “perforation can

occur from the bones” of any fetal parts that are missed.

Mar. 27, 2013 Hearing at 2:40:47-2:48:05 (testimony of

Dr. Ingrid Skop). To make matters worse, “[s]ometimes a

woman will have an acute tilt in the uterus” or “she'll have

had previous scarring from previous procedures. All of

those things increase the risk of uterine perforation.” /d.

Upon perforation, “sharp instruments can be introduced

directly into peritoneal cavity, bowel can be lacerated,

vessels can be lacerated, bladder can be lacerated.” /d.; see

also Apr. 16, 2013 Hearing at 1:44:20-1:48:17 (testimony

of Dr. Ingrid Skop) (testifying that, “[i]f perforation

21

occurs, there could be damage to bowel, bladder, and

intraabdominal vascular structures, these can be life

threatening complications”).

The consequences of uterine perforation or retained

fetal tissue from a medical or surgical abortion can

be deadly. Numerous physicians warned that such

complications can lead to hemorrhage and infections,

including sepsis:

I know as well as any other Ob/Gyn who

performs D&Cs that the D&C has known risks

and complications. These complications have

been known to include hemorrhage, uterine

perforation, as well as very definitive risk of

hysterectomy and loss of fertility in the future.

June 13, 2013 Hearing at 1:39:51-1:42:44 (testimony of Dr.

Mayra Jimenez Thompson).

I’ve experienced this. I’ve experienced having to

take care of complications such as hemorrhage

and infection.

Id. at 3:20:07 (testimony of Dr. Pat Nunnelly).

(T]issue is not completely expelled [in an

incomplete medical abortion], resulting in

severe bleeding and pain, sometimes infection

and need for transfusion.

Id. at 2:33:26-2:37:39 (testimony of Dr. Ingrid Skop).

22

When there’s complications from abortion a lot

of times you can diagnose it as something like

sepsis or hemorrhage, or something like that,

and that’s often what the death certificate is

going to say.

July 2, 2013 Hearing at 03:17:50—03:18:36 (testimony of

Dr. Mary Catharine Maxian).

As a resident I worked in one of the largest

abortion facilities in Louisville, Kentucky, and

we also took care of the complications from

that facility at the hospital where we worked.

So we saw that periodically where a uterus had

been perforated or a hemorrhage would occur.

I mean hemorrhage is actually common.

Id. at 03:25:08—03:25:25 (testimony of Dr. Mikeal Love).

I’ve taken care of a septic abortion before. The

last case was a lady who did come in New Year’s

Eve who was six weeks post RU486 bleeding

and still had her fetal tissue inside.

Id. at 03:23:18—03:24:49 (testimony of Dr. Mikeal Love).

{Women who have an incomplete medical

abortion] suffer severe blood loss and run

the risk of infection for retained products of

conception.

es

23

Complications that can occur [in women who

undergo a D&C or D&E include) perforation

of the uterus, incomplete evacuation of the

products of conception, bleeding, possibly

requiring transfusion.

“*

[Women whose abortions are performed by

injection of saline, prostaglandin, or potassium

chloride] are at risk for bleeding, infection,

amniotic fluid embolics, retained placenta,

possibly requiring an additional procedure.

Apr. 16, 2013 Hearing at 1:44:20-1:48:17 (testimony of Dr.

Ingrid Skop).

One Texas emergency room physician recounted the

details of three cases of uterine perforation and retained

fetal tissue that she had encountered:

[A] 13-year old Mexican- American teenaged

girl [was] brought in by her mother who was

taken for an abortion. They had been told to

go to any hospital for any complications. The

clinic did not have a physician or nurse to handle

after-hours calls. On exam, she was found to

be septic, high temperature, high white blood

cell count, hypocardiac, et cetera, with two

leaks of lacerated intestines coming through

the vagina from a hole in the uterus created

through the abortion procedure. Though the

woman was discharged about two months

later, permanently sterile, menopausal, I had

24

to resect the uterus and the ovaries to save

her life.

The second [patient] related that she came

to San Antonio from Laredo for the RU

486, uncomplicated procedure, she almost

hemorrhaged to death in the shower, thinking

she was bleeding to death, passing out and

coming to several times.

“**

Third patient is a 35-year old married woman

who had a surgical procedure which she failed

to reveal to me until on sonograms, working her

up for sepsis, I saw a fetal head in the uterus.

July 8, 2013 Hearing at 3:32:01--3:34:42 (testimony of Dr.

Martha Garza); see also id. at 7:08:00-7:09:05 (testimony

of Dr. Stephen J. Hilgers) (testifying that, as a doctor “in

a busy emergency room for four years,” he took care of

“many women who suffered complications from [abortion]

procedures”).

B. Experts testified that facilities that meet

ambulatory-surgical-center standards are

more qualified to treat the serious risks and

complications that attend abortion procedures.

In light of the surgical nature of many abortions

and the grave complications that women can suffer from

both medical and surgical abortions, medical experts

repeatedly testified that abortion facilities should meet

ASC requirements. Compared to an office or clinic

25

setting, doctors explained, ASCs have physica!-plant

standards that better safeguard the health of abortion

patients. For example, ASCs “have laminar [air]flow, so

that we can prevent infections.” June 20, 2013 Hearing

at 4:18:40-—4:20:16 (testimony of Dr. Beverly Nuckois).

“{A]nybody who has mixed IVs, TPN, knows you've got to

have special airflow to keep infection down. That’s what

we're asking when we're talking about an airflow system.

It’s about decreasing the risk of an infection.” July 12,

2013 Floor Debate at 8:44:36-8:46:32 (statement of Dr.

Donna Campbell).

ASCs also meet sterile pre-operating and operating

room standards. These protect not only against grossly

inhumane conditions, such as those described in the

facilities of Kermit Gosnell and Houston doctor Douglas

Karpen, but also against more subtle threats to a sterile

environment, like the commingling of street clothing and

cleaning supplies with the operating environment. “Why

have lockers? Because they [health care technicians]

change their clothes and you put them up in a locker so

we don’t contaminate the environment of the operating

room. A janitor’s closet. How many of you want to go have

a procedure where the dirty mop is in close proximity to

the operating room?” Jd.

Additionally, ASCs do “[sJimple things,” “like have a

generator in case the power goes out” during a surgical

procedure. Mar. 19, 2013 Hearing at 1:27:00-1:28:54

(testimony of Dr. Linda Flower), “Does anybody want

a procedure to be in progress when the electricity goes

out? The electricity needed at the least for an abortion

procedure includes cautery to stop bleeding, suction,

lights, a monitor for vital signs. Is a backup generator

26

really too much to ask to help protect a woman’s health

and safety in a procedure?” July 12, 2013 Floor Debate at

8:44:36-8:46:32 (statement of Dr. Donna Campbell).

ASC inspection requirements also provide other layers

of protection for women. In addition to inspections by the

state health department, one obstetrician explained,

“national organizations _also inspect these facilities,”

so there is a “much higher level of care that they have

to respond to.” July 8, 2013 Hearing at 2:02:20-2:07:13

(testimony of Dr. Mikeal Love). The obstetrician further

recounted his conversation with a safety and quality

assurance expert who deals with ASC inspections

annually: “I said, give me your opinion of where is it safest

to have [abortion] procedures performed. [AJnd she

said, by far and away an ambulatory surgery center is

safer. It has a higher level of responsibility.” Jd.

When complications do arise, facilities that satisfy

ASC standards are better prepared to respond. For

example, such facilities are stocked and staffed with

emergency supplies and personnel. In anon-ASC setting,

experts testified, “[t]here may not be blood supply available

to transfuse the patient. There may not be the liquids that

you need to provide stabilization of this patient. And there

may not be even an ambulance readily available to transfer

this patient. These things are not true in an ambulatory

surgery center.” Mar. 19, 2013 Hearing at 1:21:01-1:25:45

(testimony of Dr. Mayra Jimenez Thompson). Moreover,

“ambulatory surgical centers have a higher standard

with regard to emergency care because they have to have

emergency personnel on staff.” Mar. 27, 2013 Hearing

at 2:13:36-2:13:58 (testimony of Jerri Lynn Ward); see

also Mar. 19, 2013 Hearing at 1:27:00-1:28:54 (testimony

27

of Dr. Linda Flower) (testifying to the CPR training

that ASC staff receive). In sum, at an ASC-level facility,

“(elverything is there” and “there are trained personnel to

handle all the complications that can occur.” /d. at 1:21:01-

1:25:45 (testimony of Dr. Mayra Jimenez Thompson).

Physical-plant requirements also better enable

ASC-level facilities to transport abortion patients in

emergencies. As one obstetrician testified, ASC “facility

requirements are there to put patients first. We have

wide walls so that our gurneys can get through, so that

EMS can rescue patients if they need to. We have the low

thresholds so that we can get wheelchairs and walkers

through.” June 20, 2013 Hearing at 04:18:40-04:20:16

(testimony of Dr. Beverly Nuckols). Another doctor

similarly explained: “Why would we want a wider hall?

I haven’t found a gurney yet that turns well, especially

around a corner. You need a wider hall and wider rooms

to bring a gurney in just in case there’s a complication

or an emergency. Is it needed every day? No. But how

many lives or complications do we have to have before it

mounts up to enough reason to put forth some dollars to

protect women’s health[?]” July 12, 2013 Floor Debate at

8:44:36-8:46:32 (statement of Dr. Donna Campbell). And

yet another physician concluded, “[iJf we did raise the

standards of our clinics to the ambulatory surgical care

center standards then we can avoid problems like what

happened in the Gosnell clinic where a patient died, as

you heard testimony, because the hallways do not meet

the guidelines that would have been required under the

ambulatory surgical care cente[r]” standards. July 2,

2013 Hearing at 03:17:50-—03:18:14 (testimony of Dr. Mary

Catharine Maxian).

28

Not only do ASC standards help medical professionals

treat complications that occur during an abortion

procedure, but they also facilitate care for complications

that arise after abortion patients are discharged. For one

thing, ASC standards would require abortion facilities

“to provide for services when the clinic is not open

just as the ASCs must do, which will aid women who

have complications after hours.” July 8, 2013 Hearing

at 4:47:20-—4:49:32 (testimony of Jerri Lynn Ward). For

another, ASC medical-records requirements would ensure

that women have quicker access to documentation of their

procedure and thus the information they need to help

medical professionals treat subsequent complications.

“{Sjome of the most vital information about the woman’s

condition upon the finalization of the abortion is in the

progress notes[,} and [abortion] facilities are [presently]

given 10 days before they have to give those to the woman.

[I]t’s not good for continuity of care.” /d.

To demonstrate just how essential ASC-level facilities

are to the health and safety of abortion patients, one

doctor emphasized that many physicians will only perform

D&Cs in an ASC or hospital setting. “I only do D&Cs

either in a hospital or an approved ambulatory surgery

center because I know that the risk, which is known, of

uterine perforation, which can lead to an injury of a major

blood vessel which can cause a hemorrhage, can occur in

any patient.” Mar. 19, 2013 Hearing at 1:21:01-1:25:45

(testimony of Dr. Mayra Jimenez Thompson). Indeed,

physicians who perform D&Cs on patients who have

miscarried ...

do not do these procedures in their offices or

in a facility like we currently have as abortion

29

facilities. They take them to the operating

room. Why? Because they have to forcibly

open the cervix, they have to dilate it to a size

that is not easily done, and then they have to

introduce a suction curette which has a very

powerful suction that can actually take the

uterine wall along with the products that are

inside and possibly injure a blood vessel and

then cause again a major injury which could

lead to hemorrhage, death, and possibly at the

very least infertility for the future.

Id. Even patients who are not pregnant at least get the

benefit of an ASC-level facility, and they are often at lower

risk. As the same doctor related:

Just this morning before I came here to testify

I went to an ambulatory surgery center where I

performed a D&C for a procedure to remove a

mass inside a patient. I had to talk to the patient

ahead of time, talk to the anesthesiologist,

make sure the patient’s medical history was

well-documented, consents were obtained, all

medical] and surgical histories were documented

also, and that the patient was prepared for the

surgery. All this is done in a patient who has the

uterus which is less likely to have a complication

than the soft pregnant uterus.

June 13, 2013 Hearing at 1:39:51-1:42:44 (testimony of Dr.

Mayra Jimenez Thompson).

Pregnant Texas women who choose abortion

deserve no less. In sum, physicians urged,

30

“women should not be subjected to a clinic

that has less standards than a man has to

go through for a colonoscopy.” Mar. 19, 2013

Hearing at 1:18:00-1:20:50 (statement of Dr.

Donna Campbell). Because “abortion is a

surgical procedure,” “any abortion clinic has to

be held to the highest level of standards.” July

8, 2013 Hearing at 3:32:03-3:34:42 (testimony

of Dr. Martha Garza). “[T]he heightened

standards for these clinics is vitally important

for the health of women in the state of Texas.”

Id. at 7:08:00-7:09:05 (testimony of Dr. Stephen

J. Hilgers).

C. Experts testified that requiring abortion

doctors to have admitting privileges at a

nearby hospital protects the health of women

undergoing abortions.

In addition to the ample testimony supporting

HB2’s ASC requirement, the Legislature heard expert

testimony that requiring doctors who perform abortions

to have admitting privileges at a hospital within 30 miles

provides important safeguards for women. First, a doctor

with admitting privileges at a local hospital can provide

continuity of care to a patient suffering complications

from an abortion. Second, the admitting-privileges

requirement raises the quality of care because hospitals

will deny admitting privileges to unqualified doctors and

will monitor the performance of those doctors who have

privileges.

Medical professionals agreed that continuity of

care is very important for women who may suffer from

31

complications of abortion. For example, one obstetrician

testified:

What is the benefit for the patient if her

abortion provider has hospital privileges? For

one thing she will not feel abandoned if she does

have a complication. She can be counseled in

advance where to go if she has problems after

a termination. The physician who performed

the termination can care for her through the

complication or, if he’s not able to do that,

he can let another physician know of the

circumstances.

June 13, 2013 Hearing at 2:33:26-2:37:39 (testimony of Dr.

Ingrid Skop). Another doctor similarly stated:

[I]t’s the responsibility of every surgeon

to continue to care for their patient when

complications arise from procedures that they

perform and there will always be complications.

That often requires hospitalization and in which

case having antibiotics or even further surgery

is necessary. Without hospital privileges other

physicians are left to take care of an abortion

provider’s most serious complications.

July 8, 2013 Hearing at 7:02:56-7:03:27 (testimony of

Dr. Jim Mauldin). Indeed, one obstetrician emphasized,

“[t]here is no similar surgical procedure of the same

complexity and the same possible risk that does not

require hospital privileges.” Apr. 16, 2013 Hearing at

1:44:20-1:48:17 (testimony of Dr. Ingrid Skop). In short,

“{rJequiring hospital privileges for physicians who perform

32

abortions is the general standard of care,” and a “physician

who does not have hospital privileges is practicing patient

abandonment.” See Appendix A, Written testimony of

Mikeal Love, M.D. Supporting S.B. 1,S. Comm. on Health

and Human Servs. (July 8, 2013).

Physicians further testified that, despite this well-

established standard of care, they had witnessed the

consequences of patient abandonment by doctors who

perform abortions without admitting privileges. In

particular, they testified about problems that arose as a

result of doctors who performed an abortion not being

present at a hospital to treat complications. They described

patients who did not know what abortion procedures had

been performed, and the difficulty in treating a patient

without that history. One doctor stated:

Several times a year I am seeing patients that

had complications of abortion. And it seems

that they have been unable to get ahold of their

abortion provider, they were told to go to the

emergency room. This is in a large community,

Austin, Texas. And it seems that once the

abortion is performed that many patients

are just turned out on their own. And I’ve

experienced this. I’ve experienced having to

take care of complications such as hemorrhage

and infection. And it is very difficult when you

are taking care of somebody else’s problem.

June 13, 2013 Hearing at 3:18:18-3:21:48 (testimony of

Dr. Pat Nunnelly). Another doctor testified that she had

“cared for women in the emergency room after abortions

who could not give me the name of the clinic, the procedure

33

type nor the name of the abortionist.” July 8, 2013 Hearing

at 4:59:35-5:01:45 (testimony of Dr. Linda Flower). She

described a particular case in which the woman who had

the abortion “didn’t know for sure what kind of procedure

had been performed,” and physicians were forced “to

deduce that by maybe what they knew the gestational

age might be and performing an ultrasound to find out

what size the uterus was.” Apr. 16, 2013 Hearing at

1:42:08-1:44:14 (testimony of Dr. Linda Flower). Another

physician emphasized the health risks to women when a

doctor is forced to treat abortion complications in another

doctor’s patient:

In terms of the usefulness of having the doctors

who perform the abortions being -- having

privileges. I think it was discussed earlier that

it’s useful in terms of getting records. In my

experience a lot of these young girls, they’re

seared. They come away from the abortion,

they don’t know what procedure they had and

they don’t know who the doctor was. And so

it’s very, very difficult to get a good history

out of them. As I mentioned earlier, depending

on the type of procedure, we may be looking

at the difference between a -- you know, a

suction procedure that wouldn’t be expected

to cause that much trauma, if we knew that it

was a sharp curettage, that may heighten our

suspicion for much more serious complications.

Mar. 27, 2013 Hearing at 2:46:49-2:49:21 (testimony of Dr.

Ingrid Skop); see also July 8, 2013 Hearing at 7:08:00-

7:09:05 (testimony of Dr. Stephen J. Hilgers) (emphasizing

that, “as an OB/GYN who’s taken care of these patients,”

“enhancing communication, information for these patients,

34

along with the ability to obtain information for these

patients,” is “vitally important for the health of the women

in the state of Texas”).

In addition to continuity of care, medical experts

testified that requiring doctors to maintain admitting

privileges would help guarantee doctor quality. Doctors

must be initially approved by a hospital to obtain

admitting privileges, and then continue to be monitored

by the hospital to maintain those privileges. See Mar. 27,

2013 Hearing at 2:44:49 (testimony of Dr. Ingrid Skop)

(explaining that doctors who apply for admitting privileges

are “subjected to examination of their credentials.”). Thus,

“quality care committees within hospitals, if there were

a trend of adverse events, would have the opportunity

to investigate, possibly educate a physician, possibly

discipline, and if needed, withdraw privileges if they were

providing substandard care.” Apr. 16, 2013 Hearing at

1:44:20-1:48:17 (testimony of Dr. Ingrid Skop); see also

July 8, 2013 Hearing at 7:02:56-7:03:27 (testimony of

Dr. Jim Mauldin) (stating that “(bly requiring privileges

not only would [there be] continuity of care but the peer

review processes of the hospital would be brought to bear

and ensure quality.”).

Moreover, having patients with complications admitted

by the doctor who had performed the abortion would allow

abortion doctors to better monitor the safety of their

own procedures. If the doctor who performs abortions

continues the care of the patient admitted to a hospital,

that doctor will be aware of the rate and seriousness of

complications among his or her patients. As one physician

explained:

35

[I }f the doctor is performing abortions and there

are a lot of complications, any conscientious

physician I think would want to know. If they

are in an outpatient clinic they may never get the

feedback that these women are being injured. If

there’s a clinic where something, maybe hygiene

or whatever where complications are occurring

more than they should be, I would think that

everyone involved with that situation would

want to know.

Mar. 27, 2013 Hearing at 2:47:40—2:48:05 (testimony of

Dr. Ingrid Skop).

In sum, the evidence before the Legislature shows that

women who suffer from abortion complications will receive

better continuity of care if their doctors have admitting

privileges at a nearby hospital. It also shows that an

admitting-privileges requirement will help ensure quality

care because hospitals will monitor doctors’ performance

as a condition of maintaining admitting privileges. The

medical testimony presented to the Legislature supports

its conclusion that requiring abortion doctors to maintain

admitting privileges at a nearby hospital will protect the

health of Texas women.

36

CONCLUSION

The judgment of the United States Court of Appeals

for the Fifth Circuit should be affirmed.

Respectfully submitted,

Erin GLENN Bussy Cralc ENOCH

411 Highland St. Counsel of Record

Houston, Texas 77009 ENocH KEVER PLLC

(713) 868-4233 600 Congress Ave., Suite 2800

Austin, Texas 78701

MICHELLE S. STRATTON (512) 615-1202

700 Louisiana St. cenoch@enochkever.com

Suite 2300

Houston, Texas 77002

(713) 221-2354

Counsel for Amici Curiae

February 3, 2016

APPENDIX

la

APPENDIX — SUPPORT OF SENATE BILL 1 BY

MIKEAL LOVE, M.D., SENATE COMMITTEE ON

HEALTH AND HUMAN SERVICES

Mikeal Love, M.D.

Supporting Senate Bill 1

Senate Committee on Health and Human Services

I am here to voice my support for SB 1. I am representing

myself today and not the hospital or any other organization.

I particularly want to address my support for SECTION

2, which requires abortion providers to maintain active

hospital admitting privileges at a local hospital; SECTION

3, SUBCHAPTER D, which requires physicians who

perform RU-486 abortions to follow FDA regulations; and

SECTION 4, which requires abortion facilities to meet the

same standards as ambulatory surgical centers.

I am a board certified OBGYN physician. During

my residency training, I worked at one of the largest

abortion facilities in Louisville, Kentucky. I began my

private practice in 1992 and am a Fellow in the American

Congress of Obstetrics and Gynecology. I have delivered

approximately 6,000 babies in that time. I manage

extreme high risk patients which include women with

mental, behavioral and neurodevelopmental disorders. I

have managed obstetrical care for women with diagnoses

ranging from major depression to bipolar disorders

to schizophrenia. I have managed their pregnancies

including their medications resulting in excellent outcomes

for the mother and the baby.

2a

Appendix

I am the current Chairman of the CME Committee which

oversees physician education for seven area hospitals in

Central Texas. I sit on the Blood Utilization Committee. I

am a member of the American College of Medical Quality.

I have been the Chairman of the OB/GYN Section of St.

David’s Medical Center and have signed off on privileges.

I serve as an expert witness in matters of standard of care

for plaintiff and defense counsels.

I support Senate Bill 1 because it raises the standard of

care for women who choose to terminate their pregnancies.

It raises their level of care to that currently received by all

other patients. This is necessary to protect the health and

safety of women currently receiving abortions in Texas.

SECTION 2

Requiring hospital privileges for physicians who perform

abortions is the general standard of care. With all medical

and surgical fields, the patient can expect to call the

physician for complications and be treated at the hospital,

if necessary. I recently spoke to a local physician who

provides abortion services in this community. When I

asked him about his thoughts on hospital privileges, he

responded, “Any physician who does not have hospital

privileges is practicing patient abandonment.”

These are general OBGYN privileges. When I was the

Chairman of the OBGYN Section at St. David’s Medical

Center, I approved privileges for physicians including

those who performed elective abortions outside the

hospital.

3a

Appendix

As physicians who treat significant medical issues, we

accept the principle of being readily available as the

standard of care.

According to ACOG Practice Bulletin No. 67, Medical

Management of Abortion, “surgical curettage must be

available on a 24-hour basis for cases of hemorrhage.

Clinicians who wish to provide medical abortion services

either should be trained in surgical abortion or should

work in conjunction with a clinician who is trained in

surgical abortion.” This is the standard of care.

SECTION 3, SUBCHAPTER D

Following the FDA regulations for medication abortions

would be a substantial improvement to the current

standard of care for women who receive during medication

abortions. This was first approved by the FDA in 2000.

The protocol has been revised and approved by the FDA

several times since then, most recently in June 2011.

A study out of Finland published in Obstetrics

& Gynecology in 2009 is the best reference to date,

“Immediate Complications After Medical Compared

With Surgical Termination of Pregnancy.” It is the gold

standard as a reference.

The study found the overall incidence of adverse effects

is four-fold higher with medical abortion as compared to

surgical abortion (20% vs. 5.6%). This article shows an

eight-fold increase in the risk of hemorrhage, a five-fold

increase in risk of incomplete abortion, and a two-fold

4a

Appendix

increase in surgical evacuation when comparing medical

abortion to surgical abortion.

Whenever a drug is administered with potential serious

adverse effects, the physician should be readily available

to treat complications. The administration of medication

for a medical abortion is not the same as treating a simple

infection of the ear or sinus. The physician needs to be on

site and readily available when the medication is dispensed

both times: when Mifiprex is administered and two

days later when misoprostol is administered, consistent

with the FDA guidelines. Furthermore, because of

the increased risk of complications (such as the risk of

infection, incomplete abortion, and the risk of surgical

evacuation) after 49 days, the drug should be limited to

49 days gestation and not beyond.

SECTION 4

Finally, I support raising the standards for abortion

facilities to those of ambulatory surgical centers, because

part of the standard of care means not only being

available to diagnose, but being able to handle significant

complications following an abortion. Hemorrhage and

incomplete abortion, for example, should be handled in a

hospital or ASC setting. I would only perform a dilation

and curettage after a miscarriage in a hospital or ASC

setting, because that is the standard of care women

deserve. Women receiving elective abortions deserve no

less.

5a

Appendix

This is not an issue of restricting services but of providing

services that meet current standards of care to protect

the health and safety of women.