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

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No. 15-274

In The

Supreme Court of the United States

WHOLE WOMAN’S HEALTH, et al.,

Petitioners,

JOHN HELLERSTEDT, 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

AMICUS CURIAE BRIEF OF FORMER

ABORTION PROVIDERS; POST-ABORTIVE

WOMEN AND THEIR FAMILIES;

NATIONAL ASSOCIATION OF PROLIFE

NURSES; AND NATIONAL ASSOCIATION

OF CATHOLIC NURSES, U.S.A.

IN SUPPORT OF RESPONDENTS

LINDA BOSTON SCHLUETER

Counsel of Record

TRINITY LEGAL CENTER

11120 Wurzbach, Suite 296

San Antonio, Texas 78230

210-697-8202

TLC4Linda@aol.com

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800! 225-6165

WWW COCKLELEGALBRIFFS.COM

CORPORATE DISCLOSURE STATEMENT

Amici National Association of Prolife Nurses and

National Association of Catholic Nurses, U.S.A. are

nongovernmental corporate entities, and they have no

parent corporations and no publicly held corporations

hold 10 percent or more of their stock.

‘3

TABLE OF CONTENTS

Page

Corporate Disclosure Statement ......................... i

i iiss ciiniaicighiiinndanigonss Vv

Statement of Interest of Amici Curiae ................ 1

Summary of the Argument...................cccc:00eeeee0e 2

IT chai ceciiciietaepersieeteelciineccinies dea iiinibibaiingidiaadgilaiinnee 4

I. MEDICAL ABORTIONS HAVE DANGER-

OUS AND FATAL PHYSICAL COMPLI-

CATIONS, AND THEREFORE, TEXAS IS

JUSTIFIED IN PROVIDING SAFETY

MEASURES TO PROTECT WOMEN....... 4

A. H.B. 2 Is Necessary Because of the

Documented Physical Risks and Fatal

Complications of Medical Abortions..... 5

B. The Real Life Experiences of Women

Demonstrate the Dangers of Medical

Abortions Which Require Ongoing

Medical Treatment ..................ccececeeeees 10

II. WOMEN CONSIDERING A SURGICAL

ABORTION DESERVE THE SAME SAFE-

TY PROTECTIONS AS ANY OTHER

PERSON HAVING OUT-PATIENT SUR-

RIEIITEE snivinicsiishictloniiitisnniiinionnsneuiiaiinnscsenetiimanenees 13

A. The Protections of H.B. 2 Are Justi-

fied Because Surgical Abortions Pose

Risks of Significant Physical Complica-

I elie ices tad aces atti ca reuiaenaeesnainenpesie 14

TABLE OF CONTENTS - Continued

Page

B. H.B. 2 Should Be Upheld Because Am-

bulatory Surgical Centers Benefit and

Protect Women and Can Save a Woman’s

Life When There Are Complications..... 21

C. The Requirement That Doctors Have

Privileges at Local Hospitals Is Im-

plicitly Good for Women and Provides

Continuity of Their Care When Com-

II FIN GID sirncccnsiencccnscicntdiaaeuaaaains 28

D. Having Hospital Privileges Supports

Roe’s Assumption of a Normal Doctor-

Patient Relationship ...................0000008 34

Ill. THIS COURT HAS RECOGNIZED THAT

BROAD DEFERENCE SHOULD BE GIVEN

TO LEGISLATIVE FINDINGS AND EN-

ACTMENTS, AND THEREFORE, THE

COURT OF APPEALS’ DECISION SHOULD

SOD Fy OF CREED vccccevecesencvnasnonmemmaniiaaiii 39

A. Health Issues Are Complex Issues

That Are Fact Bound and Involve

National and State Policy That Are

Best Left to the Legislative Branches

OE GRURIIIOTID cccccistosdccnsssecineasiialamiena 39

B. The H.B. 2 Provisions Are Within

This Court’s Constitutional Framework

and Should Be Upheld......................... 42

COTO, .ncccnsciccninaiccesdmsedninenianimmnn eee 46

TABLE OF CONTENTS -— Continued

Appendices:

Appendix A: Affidavit of Carol Everett..................... Al

Appendix B: Affidavit of Dr. Noreen Johnson .......... Bl

Appendix C: Affidavit of Dr. Mayra Thompson........ Cl

TABLE OF AUTHORITIES

Page

CASES

Dep't of Health, Board of Medicine v. Pender-

graft, State of Florida Division of Administra-

tive Hearings, DOH case No. 10-0208 (2010),

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

uploads/2012/01/pendfinal012610.pdf.................... 37

Doe v. Bolton, 410 U.S. 179 (1973)...............c eee 39

Dominion Hotel v. State of Arizona, 249 U.S.

Seite eco 2 39

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ......... 39

Gonzales v. Carhart, 550 U.S. 124

re cehseiceicrsisheaseaciidhieinibdieecenel Caria 18, 20, 39, 40, 41

McCormack v. Hiedeman, 694 F.3d 1004 (9th

Teen Sire arinsiinisapeiseenieeciasienidanenaeabianeeeipeaiiaamadiegbiiceemasdenad 41

McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004).....44, 45

Mendoza v. Karpen et al., Docket number 2014-

12321, available at http://operationrescue.org/

pdfs/Mendoza%20v%20Karpen%20botched%

20abortionS20lawsuit. pdf... eeccceeeeeeeseeeeeeees 25

Planned Parenthood v. Abbott, 748 F.3d 583

EISELE SEH ee REE 30, 38

Planned Parenthood v. Casey, 505 U.S. 833

ail aia inetd ia cee areata ai 13, 40, 42

TABLE OF AUTHORITIES — Continued

Page

Turner Broadcasting System, Inc. v. F.C.C., 520

ey ee acesteciseitaesiechistiniceneaidlieaciiassibiaseaniaiiaeedeiatsiiii 39

Whole Woman’s Health v. Cole, 790 F.3d 563

NEE SNE asiiccciaiaihiistieinineailnditiciibdaihauiieinicipediieiacieanitiii 29

STATUTES

i, ee ieee 28

Ariz. REV. STAT. § 36-449.03...................ssecececcesssecserees 28

ARK. CODE ANN. § 20-16-1504 0.0.0... eeeeeeeeeee sees 28

Se, a: Sara ciccecciesniatsielihhiaieleileiaiioalieatd 28

es Re NE intennnittnictiscsentiinniecinniinintiniininaimnmentl 28

ee A Oe I iricrtcicinienasioninecinndienininnnnenta 28

ene 28

Ss IE, SP ARIPIIIES cscccencenesecmnnntentnninnitmmntenvente 28

ee Oe I icsterintnniniinerdepitaianianeiatii 28

BUDD. CHOP. COME © 26-GR. 2-B6 .....nccoccoccccccccvcccccceseseccess 28

eee. 28

TENN. CODE ANN. § 39-15-202...................ssecssccssseeeneees 28

Tex. HEALTH & SAFETY CODE ANN. § 171.001 et

GD cxccncnccnsncnsputheransitnniniicanatiaiiininiiensiaiitnimnunumiainniiiieiaies 42

Tex. HEALTH & SAFETY CODE ANN. § 171.0031........... 28

Tex. HEALTH & Sarety CopDE ANN. § 243.010 ....21, 22, 24

Tex. HEALTH & SAFETY CODE ANN. § 245.010............. 43

vii

TABLE OF AUTHORITIES — Continued

Page

UTAH ADMIN. CODE R. 432-600-13 ..00...0....... ce eeceeeeeeeees 28

I Ee halide 28

OTHER

A Woman's Right to Know, available at https://

www.dshs.state.tx.us/wrtk/default.shtm ............... 42

A Woman’s Right to Know: Casey-style Informed

Consent Laws, available at http://www.

nric.org/uploads/stateleg/WRTKF actSheet.pdf.......42

Abortion Pill Risks: Just the Facts, Holly Pat-

terson’s Story, available at http://abortionpill

risks.org/real-stories/hollys-story/ .............. 11, 12, 13

Ambulatory Surgical Center Association, History

of ASCs, available at http://www.ascassociation.

org/advancingsurgicalcare/whatisanasc/history

Err ictienassiseiesineigeihinteitaciinbchbaehaesiiapsincaeiebdaeiieiigneieciini 21

Ambulatory Surgical Center Association, Qual-

ity of Care in ASCs, available at http://

a ascassociation.org/advancingsurgicalcare/

qualityandpatientsafety/qualityofcareinascs......... 23

American College of Surgeons, Statement of

Principles, subsection F, available at https://

www.facs.org/about-acs/statements/stonprin#

ee eitceepsesetccrevescnapitnsinaitencstninestuaneniinseciubii 31

TABLE OF AUTHORITIES — Continued

Page

American Psychiatric Association, APA Abortion

Report (2008), available at http://www.

abortionrisks.org/index.php?title=APA_Abortion_

Report#Others_Recommending Screening _and_

ee SD vccccsececsnsesinsenteenesntnteiinanes 18, 19

Bennington Banner, Trial Set for Mass. Doc in

Abortion Patient Death (Sept. 13, 2010),

available at http://www.benningtonbanner.

ek ee ceetsccnnitnnisnnssniinseaneeicinnnia 27

Calhoun, Stopping Philadelphia Abortion Pro-

vider Kermit Gosnell and Preventing Others

Like Him: An Outcome that Both Pro-choicers

and Pro-lifers Should Support, 57 VILL. L.

Seite ar UITI -sesdicierhienscateieiiihciniacipeiaiinapnlauiieiniaidceia ans 24

Congressional Staff Report, The FDA and RU-

486: Lowering the Standard for Women’s

Health, prepared for the Chairman of the

House Subcommittee on Criminal Justice,

Drug Policy and Human Resources (Oct. 2006),

archived at http://old.usccb.org/prolife/issues/

ru486/SouderStaffReportonRU-486.pdf........... 5, 6,7

Danco’s MIFEPREX™ Label, available at

http//www.accessdata.fda.gov/drugsatfda_docs/

label/2000/206871 bl htim .0...........ccccccccccccccceceeseeeeseeees 5

Dewhurst, One Year Later: HB 2 and the Pro-Life

Movement in Texas (Jul. 18, 2014), available at

http//townhall.com/columnists/daviddewhurst/

2014/07/18/one-year-later-hb-2-and-the-prolife-

movement-in-texas-n1863568/page/full ........... 43, 44

TABLE OF AUTHORITIES — Continued

Elliot Institute, Abortion Complications, avail-

able at http://afterabortion.org/1990/abortion-

TT ivesininssisibirenddpnndsiinadieitegntibandiiddeadinidis

Elliot Institute, Abortions Increase Risk of

Maternal Death: New Study, available at

http/afterabortion.org/2012/multiple-abortions-

increase-risk-of-maternal-death-new-study/ ....

Elliot Institute, Abortion Risks: A List of Major

Physical Complications Related to Abortion,

available at http//afterabortion.org/1999/abortion-

risks-a-list-of-major-physical-complications-

I cciiiitiniesiteciccciniitidaidtibmenntinessonees

Enriquez, “Texas Gosnell” Douglas Karpen No

Longer Terminating Unborn Texans (June

15, 2014), available at http://liveactionnews.

org/texas-gosnell-douglas-karpen-no-longer-

terminating-unborn-texans/ ...............cc.cceceeeeeees

Food and Drug Administration, Mifeprex (mife-

pristone) Information (07/17/2015), available

at http://www.fda.gov/Drugs/DrugSafety/Post

marketDrugSafetyInformationforPatientsand

Providers/ucm111323. htm ...............ccccccceeeeeeeeees

Food and Drug Administration, Mifepristone U.S.

Postmarketing Adverse Events Summary

Through 04/30/2011 (July 2011), available at

http//www.fda.gov/downloads/Drugs/DrugSafety/

PostmarketDrugSafetyInformationforPatients

andProviders/UCM263353. pdf ...............:ccceceee

Page

TABLE OF AUTHORITIES — Continued

Page

Gallagher, Without Pre-Abortion Screening Abor-

tion Endangers Women’s Health (Apr. 27, 2004),

available at http://www.lifenews.com/2004/

SRE RRR ee ceo a ea 19

Grand Jury Report, MISC. NO. 0009901-2008 at

2, available at http://www.phila.gov/district

attorney/PDFs/GrandJuryWomensMedical.pdf.......24

Guttmacher Institute, Fact Sheet: Facts on

Induced Abortions in the United States (Aug.

2011), available at http://www.guttmacher.org/

pubs/fb_induced_abortion.html........................ 10, 11

Guttmacher Institute, State Policies in Brief

(Dec. 1, 2015), available at http://www.

— org/statecenter/spibs/spib_TRAP.

Jasper, Another House of Horrors: Gosnell’s

Abortion Counterpart in Texas (May 16, 2013),

available at http://www.thenewamerican.com/

usnews/crime/item/15423-another-house-of-

horrors-gosnell-s-abortion-counterpart-in-texas........ 24

Life Dynan..cs, Laura Hope Smith Dead After

Legal Abortion, available at https://life

dynamics.com/laura-hope-smith-dead-legal-

IIIT scdsnccmncicniobeldantnceniniunadiaantedsidiaadiaidaiads 26, 27

M. Gissler et al., Injury Deaths, Suicides and

Homicides Associated with Pregnancy, Finland

1987-2000, 15 Eur. J. Pus. HEALTH 459

TABLE OF AUTHORITIES — Continued

M. Gissler et al., Suicides After Pregnancy in

Finland, 1987-94: Register Linkage Study,

313 Brit. MED. J. 1431 (1996) ......... ce eeeeeeeeeee

MELINDA TANKARD REIST, GIVING SORROW WoRDs:

WOMEN’S STORIES OF GRIEF AFTER ABORTION

NBC News, “House of Horrors” Alleged at

Abortion Clinic (Jan. 19, 2011), available at

http//www.nbcnews.com/d/41154527/ns/is_news-

crime_and_courts/t/house-horrors-alleged-

abortion-clinic/#. VpVZv73-km0................0000000+

Neff, Physician Staff Privilege Cases: Antitrust

Liability and the Health Care Quality Im-

provement Act, 29 Wm. & Mary L. Rev. 609

Reardon, Rebuttal of Raymond and Grimes,

79(3) LINACRE Q. 259-60 (Aug. 2012)............04.

Reardon & Coleman, Short and Long Term

Mortality Rates Associated with First Preg-

nancy Outcome: Population Register Based

Study for Denmark 1980-2004, 18(9) MED.

Sci. MontToR 71-76 (Aug. 2012), available at

http://www.medscimonit.com/fulltxt.php?ICID

EN tcnscnscntcdieticaintnincaieniecidineamneadanmntviee 15, 16, 17

Saunders & Novick, Study Confirms Childbirth

is Safer for Women than Abortion (Sept. 13,

2012), available at http://www.lifenews.com/

2012/09/13/study-confirms-childbirth-is-safer-

for-women-than-abortion7/ ................cccccccceeeeeeceee

xil

TABLE OF AUTHORITIES — Continued

Page

Schlueter, 40th Anniversary of Roe v. Wade:

Reflections Past, Present and Future, 40 OHIO

§ eS ERE ee 20, 21

S.D. Task Force Report, available at http://

www.dakotavoice.com/Docs/South%20Dakota

%20Abortion%20Task%20F orce%20Report.

Shimabukuro, Abortion, Hospital Admitting

Privileges, and Whole Woman’s Health v. Cole

(Sept. 25, 2015), available at https://www.

fas.org/sgp/crs/misc/R44205. pdf ................cc.ceceeeeeee 28

Shuping, Harrison, Gacek, Medical Abortion with

Mifepristone (RU-486) Compared to Surgical

Abortion (Apr. 16, 2007), available at

http://www. lifeissues.net/writers/shu/shu_06

mifepristone_ru486. html ..................ccccecceceeeeeeeeeeeeees g

Smith, Perry Signs HB 2, The Austin Chronicle

(July 18, 2013), available at http://www.

austinchronicle.com/daily/news/2013-07-18/

ITT ini sceidiniarenctienaannneiniieeeindaemiontt 43

Stein, As Abortion Rate Drops, Use of RU-486

Is on Rise, Washington Post (Jan. 22, 2008),

available at http://www.washingtonpost.com/

wp-dyn/content/article/2008/0 1/2 1/AR2008012

Se UIIIIIIIIT ciistcitiesedsnctsititccecddimsannmmiaaiacadubnesaemianiiiiivaie 11

xili

TABLE OF AUTHORITIES — Continued

Page

Sullenger, Nearly 1,000 Texas Women Hospital-

ized Every Year After Botched Abortions

(Apr. 22, 2014), available at http://www.

lifenews.com/2014/04/22/nearly-1000-texas-

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

TTIITITIT nt stisceiacceeleestislaeneantnucaaonaiiumbadaaasenbseniais 29

Texas Ambulatory Surgical Center Society,

Ambulatory Surgery Center Facts, available

at http://www.texasascsociety.org/surgery-

i iicnsiccinnneanstansarmnnvssinisndidatadaenntiasits 21, 43

Tex. Dep’t of Health, A Woman’s Right to Know

Booklet, available at https://www.dshs.state.

tx.us/wrtk/default.shtm..................cccccceseee 15, 18, 42

Thomas W. Strahan Memorial Library, Physical

Effects of Abortion, available at http:/

abortionrisks.org/index.php?title=Physical_

Effects_of_Abortion#Cervical_Injuries ................ 14

JOHN C. WILKE & BARBARA H. WILKE, ABORTION:

QUESTIONS AND ANSWERS (2003)...............ccceeeeeeeeeees 32

Women’s Medical Center of Northwest Houston

v. Bell, 248 F.3d 411 (5th Cir. 2001)... 20

STATEMENT OF INTEREST

OF AMICI CURIAE

Both parties have given consent to file this

amicus curiae brief. Counsel for Amici has prepared

this brief supporting Respondents.’

Post-abortive women and their families under-

stand the need for health and safety laws for women

considering an abortion and believe H.B. 2 is im-

portant to protect women. The post-abortive women

are Yvonne Brewer (Idaho); Tina Brock (Georgia);

Cynthia Carney (Oklahoma); Toni Cordell (North

Carolina); Prandi Dudley (Texas); Debby Efurd

(Texas); Carol Everett (Texas); Sherri Hayden (Texas);

Dr. Alveda King, niece of Dr. Martin Luther King

(Georgia); Tammy Holly (Michigan); Shelly Lee

(Texas); Kay Painter (Idaho); Susan Potter (Georgia);

Kathy Rutledge (Kentucky); Threesa Sadler (Texas);

Caron Strong (California); Luana Stoltenberg (Iowa);

Sue Swander (Oregon); Paula Talley (Arkansas); Julie

Thomas (Georgia); Deborah Tilden (Oregon); Cindy

’ The parties were notified ten days prior to the due date of

this brief of the intention to file. No counsel for a party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. Trinity Legal Center is a nonprofit

corporation and is supported through private contributions of

donors who have made the preparation and submission of this

brief possible. No person other than amici curiae, their counsel,

or donors to Trinity Legal Center made a monetary contribution

to its preparation or submission. The parties have consented to

this brief.

Williamson (Tennessee); Leslie Wolbert (North Caro-

lina); Ann Younger (Texas); Joyce Zounis (Colorado).

Eileen Smith’s daughter Laura died following a

surgical abortion in Massachusetts. Monty Patter-

son’s daughter Holly died following a medical abor-

tion in California.

Former abortion providers include Carol Everett

(Texas); Dr. Noreen Johnson (Texas); Dr. Anthony

Levatino (New Mexico); and, Dr. Haywood Robinson

(Texas).

The National Association of Prolife Nurses was

chartered in 1978 as a not-for-profit organization.

Some members of the organization have exposed

health and safety practices at abortion facilities that

they have witnessed. The National Association of

Catholic Nurses, U.S.A. dates back to the 1930’s and

is a 501(cX3) non-profit organization. Both organiza-

tions are long-standing groups dedicated to the

highest ethical medical standards. They have a deep

interest in ensuring women have good medical care

and that they know the physical risks of abortion

based on what they have experienced and the exten-

sive reliable scientific data. Amici have members

across the United States, including in Texas.

SUMMARY OF THE ARGUMENT

Medical abortions such as the RU-486 regimen

have dangerous complications and can cause death.

The Federal Drug Administration (FDA) and the drug

manufacturer have warned of complications and the

risk of death. In addition, the RU-486 regimen has a

high failure rate which requires further surgical

procedures. Hospitalizations, blood transfusions, and

infections are among the adverse complications which

require the ongoing care of a woman’s physician.

Therefore, H.B. 2 provides for the health and safety of

women and should be upheld.

II.

Surgical abortions also have substantial physical

health risks including the risk of death. H.B. 2 pro-

vides common sense health and safety regulations to

protect women just as any other surgical out-patients

have. Ambulatory surgical centers have monitoring

and emergency equipment that can save a woman’s

life when complications arise. Doctors having privi-

leges prevents itinerant abortionists by providing

continuity of care when complications occur. In addi-

tion, having hospital privileges supports this Court’s

assumption in Roe of a normal doctor-patient rela-

tionship. Therefore, the Court of Appeals’ decision

should be affirmed.

Il.

This Court has long recognized that legislatures

should be given broad deference in their findings and

enactments. Because health issues are complex

factual medical issues that involve policy, they are

best left to the legislative branch of government. The

Texas Legislature has provided for health and safety

measures to protect women within this Court’s estab-

lished guidelines and tests. This is a legitimate and

constitutional exercise of the State’s interest in

protecting women, and therefore, H.B. 2 should be

upheld.

ARGUMENT

I. MF JICAL ABORTIONS HAVE DANGEROUS

AND FATAL PHYSICAL COMPLICATIONS,

AND THEREFORE, TEXAS IS JUSTIFIED

IN PROVIDING SAFETY MEASURES TO

PROTECT WOMEN.

Medical abortions such as the RU-486 regimen

pose a substantial risk to the physical health of

women including severe complications and the risk of

death. The scientific studies demonstrate a substan-

tially .‘gher risk of death from infection than surgical

abortions or childbirth. There is also a high failure

rate of the drug requiring additional surgeries and

medical care. Therefore, the protections of H.B. 2 are

necessary to protect women.

A. H.B. 2 Is Necessary Because of the

Documented Physical Risks and Fatal

Complications of Medical Abortions.

Both the FDA’ and Danco, the drug manufacturer,’

have acknowledged that RU-486 poses health risks

for women. The Mifeprex drug label acknowledges

that “[nJearly all of the women who receive Mifeprex

and misoprostol [the RU-486 regimen] will report

adverse reactions, and many can be expected to

report more than one such reaction.”

The Congressional Staff Report on RU-486 cited

FDA findings concerning the physical risks to women

taking the RU-486 regimen.’ These included: “ab-

dominal pain; uterine cramping; nausea; headache;

* Congressional Staff Report, The FDA and RU-486:

Lowering the Standard for Women’s Fealth, prepared for the

Chairman of the House Subcommittee on Criminal Justice, Drug

Policy and Human Resources, at page 30 (Oct. 2006), archived at

http///old.usccb.org/prolife/issues/ru486/SouderStaffReportonR U-

486.pdf (citing FDA findings and reporting adverse reactions).

* See Danco’s MIFEPREX™ (abel, available at http//www.

accessdata.fda.gov/drugsatfda_docs/label/2000/20687\bl.htm (last

visited Jan. 14, 2016).

* Id. (stating adverse reactions include abdominal pain,

uterine cramping, nausea, vomiting, diarrhea, pelvic pain,

fainting, headache, dizziness, and asthenia).

* Congressional Staff Report, The FDA and RU-486:

Lowering the Standard for Women’s Health, prepared for the

Chairman of the House Subcommittee on Criminal Justice, Drug

Policy and Human Resources, at page 30 (Oct. 2006), archived at

http://old.usccb.org/prolife/issues/ru486/SouderStaffReportonRU-

486.pdf.

vomiting; diarrhea; dizziness; fatigue; back pain;

uterine hemorrhage; fever; viral infections; vaginitis;

rigors (chills/shaking); dyspepsia; insomnia; asthenia;

leg pain; anxiety; anemia; leucorrhea; sinusitis;

syncope; endrometritis/salpingitis/pelvic inflammato-

ry disease; decrease in hemoglobin greater than 2

g/dL; pelvic pain; and fainting.”

Furthermore, the FDA’s Medical Officer’s review

indicated that, “[mjore than one adverse event was

reported for most patients. Approximately 23% of

the adverse events in each gestational age group were

judged to be severe.” The Congressional Staff Report

calls these “startling adverse effects.”

The Report also expressed concern about “the

incredibly high failure rate of the drug.” The FDA

knew the failure rate was averaging 14.6% in the

U.S. trial testing of the drug through 63 days gesta-

tion. The findings were that 27% had ongoing preg-

nancies, 43% had incomplete abortions, 10%

requested and had surgical terminations, and the

remaining 20% of patients had surgical terminations

performed because of medical indications directly

related to the medical procedure.”

* Id.

” Id.

* Id. (stating these startling adverse effects were known by

the FDA during the RU-486 NDA review process).

* Id.

° Id.

The Congressional Staff Report stated the “best”

outcome was where the pregnancies were less than or

equal to 49 days, but there was still a 7.9% failure

rate of RU-486 requiring surgical intervention." The

Report warned that as “the gestational age increases,

the failure rate of RU-486 increases rapidly. ””

This is why the “off label” use for increased gesta-

tional age of RU-486 was not approved. The Report

surmised that: “By any objective standard, a failure

rate approaching eight percent and requiring subse-

quent surgical intervention as the ‘best’ outcome is a

dismal result.””

Therefore, the Congressional Staff Report con-

cluded that: “The integrity of the FDA in the approval

and monitoring of RU-486 has been substandard and

necessitates the withdrawal of this dangerous and

fatal product before more women suffer the known

and anticipated consequences or fatalities.” It fur-

ther concluded: “RU-486 is a hazardous drug for

women, its unusual approval demonstrates a lower

standard of care for women, and its withdrawal from

the market is justified and necessary to protect the

public’s health.””

" Id.

” Id. (stating increased to “17% in the 50-56 days gestation

group, and 23% in the 57-63 days gestation group”).

* Id.

* Id. at 40.

* Id.

In 2011, the FDA issued a report on the post-

marketing events of RU-486.° The FDA reported that

there were 2,207 adverse events (complications) in

the United States related to the use of RU-486,

including hemorrhaging, hlood loss requiring transfu-

sions, serious infections, and death.” Among the

2,207 adverse events were 14 deaths, 612 hospitaliza-

tions, 339 blood transfusions, and 256 infections

(including 48 “severe infections”).

In its 2015 pronouncement concerning RU-486,

the FDA warned about sepsis infection and recom-

mended that “healthcare practitioners have a high in-

dex of suspicion for serious infection and sepsis. ””

Women who have taken RU-486 and “develop stom-

ach pain or discomfort, or have weakness, nausea,

vomiting or diarrhea with or without fever ” may

have an indication that sepsis is present.” Because

sepsis is a potentially life-threatening complication

and can damage organs and cause them to fail, the

* Food and Drug Administration, Mifepristone U.S. Post-

marketing Adverse Events Summary Through 04/30/2011 (July

2011), available at http//www.fda.gov/downloads/Drugs/Drug

UCM263353.pdf (last visited Jan. 14, 2016).

" Id.

* Id.

* Food and Drug Administration, Mifeprex (mifepristone)

Information (07/17/2015), available at http://www.fda.gov/Drugs/

DrugSafety/PostmarketDrugSafetyInformationforPatientsand

Providers/ucm111323.htm (last visited Jan. 14, 2016).

* Id.

FDA warns that “immediate treatment with antibiot-

ics that includes coverage of anaerobic bacteria such

as Clostridium sordellii” should be initiated.”

In analyzing the scientific literature, medical

researchers have concluded that there are increased

physical risks with the RU-486 regimen.” They also

report that: “Mifepristone abortion has 10 times more

risk of death from infection than surgical abortion

and 50 times more risk of death from infection com-

pared to childbirth.”

* Id.

™ Shuping, Harrison, Gacek, Medical Abortion with Mife

pristone (RU-486) Compared to Surgical Abortion (Apr. 16,

2007), available at http://www.lifeissues.net/writers/shu/shu_06

mifepristone_ru486.html (last visited Jan. 23, 2016).

® Id. (citations omitted).

The protections provided in H.B. 2 are necessary

and important to protect women when these severe

complications occur. Abortionists need hospital privi-

leges for access to emergency care when there are

physical complications.“ Women must have truthful

and accurate information about the risks and under-

stand that emergency treatment may be needed and

know how to access it.” Continuity of care is im-

portant for both the current and future pregnancies.

B. The Real Life Experiences of Women

Demonstrate the Dangers of Medical

Abortions Which Require Ongoing Medi-

cal Treatment.

A significant percentage of women have had

medical abortions. Approximately 1.2 million abor-

tions are performed each year in the United States.”

Of that number, 17% of all abortions are medical

abortions.” For pregnancies within the first nine

weeks, that percentage rises to one-quarter of the

* See Affidavit of Dr. Mayra Thompson, Appendix C.

* Guttmacher Institute, Fact Sheet: Facts on Induced

Abortions in the United States (Aug. 2011), available at

http//www.guttmacher.org/pubs/fb_induced_abortion.htm] (last

visited Jan. 14, 2016).

* Id.

abortions are medical abortions.” Therefore, approx-

imately 200,000 women are at risk each year for

physical harm from medical abortions such as the

RU-486 regimen. This number will continue to grow

as the use of RU-486 is on the rise.” Thus, women are

entitled to the safety measures of H.B. 2 in providing

for ambulatory surgical centers where doctors are in

close proximity and there is an ongoing doctor-patient

relationship for the continuity of her care.

Amicus Monty Patterson understands the physi-

cal health risks of medical abortions (RU-486) in-

cluding the risk of death. His daughter Holly was

seventeen years old when she discovered she was

seven-weeks pregnant.” On September 10, 2003,

Holly went to a Planned Parenthood clinic to termi-

nate her pregnancy with a medical abortion.”

On September 13, Holly repeatedly called the

Planned Parenthood clinic hotline and complained of

* Id.

* Stein, As Abortion Rate Drops, Use of RU-486 Is on Rise,

Washington Post (Jan. 22, 2008), available at http://www.

washingtonpost.com/wp-dyn/content/article/2008/0 1/2 1/AR20080

12102075.htm! (last visited Jan. 23, 2016) (RU-486-induced

abortions have been rising by 22 percent a year).

* Abortion Pill Risks: Just the Facts, Holly Patterson’s

Story, available at http://abortionpillrisks.org/real-stories/hollys-

story/ (last visited on Jan. 14, 2016).

severe cramping.” She was told her symptoms were

normal and simply to take the clinic prescribed

Tylenol-Codeine painkiller.” After calling the clinic’s

hotline again, she was told to go to a local hospital’s

emergency room if the pain continued.”

By September 14, Holly went to the emergency

room because she was still experiencing extreme

cramping and bleeding.” Although the doctor there

was told about her abortion, he sent her home after

an injection of narcotics and yet more painkillers.”

The severity of the pain continued and Holly was

weak, vomiting, and unable to walk.” On September

17, she was re-admitted to the hospital where she

died later that afternoon.”

On October 31, 2003, the Alameda, California

coroner’s office issued a report concluding that Holly

Patterson died from septic shock, due to endomy

ometritis (uterus related blood infection), due to a

therapeutic, drug-induced abortion.” Although Holly’s

we!

* Id.

” Id.

” ©.

* Id.

was the first death in the United States after taking

RU-486, unfortunately, other women have also died.“

Medical abortions pose significant physical risks

including death, and therefore, H.B. 2 enacted rea-

sonable protections for women by providing a quali-

fied doctor who can give continuity of care. Providing

for the safety of drugs and medical procedures are

within the legitimate function of the State,” and

therefore, H.B. 2 is constitutional.

Il. WOMEN CONSIDERING A SURGICAL

ABORTION DESERVE THE SAME SAFETY

PROTECTIONS AS ANY OTHER PERSON

HAVING AN OUT-PATIENT SURGERY.

It is well documented that there are risks and

complications of surgical abortions. Therefore, the

State of Texas has a legitimate and constitutional

right to protect women.

the RU-486 regimen).

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

(recognizing that “[a]s with any medical procedure, the State

may enact regulations to further the health or safety of a woman

seeking an abortion”). Jd. at 878.

A. The Protections of H.B. 2 Are Justified

Because Surgical Abortions Pose Risks

of Significant Physical Complications.

There are a variety of physical complications that

can occur with an abortion.” Some of the immediate

physical complications include cervical injuries and

perforated uterus, acute or chronic pain, organ or

system failures cerebrovascular diseases, circulatory

diseases, disseminated intravascular coagulation,

amniotic fluid embolism, pulmonary embolism, and

adult respiratory distress syndrome, various infec-

tions such as septic abortion, acute renal failure from

septic abortion, autoimmune disease, endometritis,

genital tract infection, pelvic inflammatory disease,

and bacterial vaginosis.“

“ Thomas W. Strahan Memorial Library, Physical Effects of

Abortion, available at http-//abortionrisks.org/index.php?title=

Physical_Effects_of_Abortion#Cervical_Injuries (last visited Jan.

14, 2016).

“ Affidavit of Dr. Mayra Thompson at Appendix C. There is

also a negative impact on later pregnancies such as infertility,

ectopic pregnancy, placenta previa, subsequent miscarriages,

premature birth, or low birth weight, and various cancer risks

such as breast cancer. Id. See generally Thomas W. Strahan

Memorial Library, Physical Effects of Abortion, available at http://

abortionrisks.org/index. php?title=Physical_Effects_of_Abortion#

Cervical_Injuries (last visited Jan. 14, 2016) (confirming both

immediate complications and the negative impact on later

pregnancies).

The risk of physical complications can occur at

any stage of pregnancy,“ and therefore, the protec-

tions provided in H.B. 2 are necessary for a woman's

health. Based on the reliable scientific evidence,

however, the physical risks are fewer the earlier a

woman is in her pregnancy.” The Texas Woman’s

Right to Know Booklet warns:

The risks are fewer when an abortion is done

in the early weeks of pregnancy. The further

along in the pregnancy, the greater the

chance of serious complications and the

greater the risk of dying from the abortion

procedure.”

Mortality rates are significantly greater the later

the abortion.” This is confirmed by record linkage

studies in Finland, Denmark, and the United States

“ See Reardon & Coleman, Short and Long Term Mortality

Rates Associated with First Pregnancy Outcome: Population

MOontTor 71-76 (Aug. 2012), available at http://www.medscimonit.

com/fulltxt.php?ICID=883338; see also Affidavit of Dr. Mayra

Thompson at Appendix C.

“ Tex. Dep't of Health, A Woman’s Right to Know Booklet,

available at https://www.dshs.state.tx.us/wrtk/default.shtm (last

visited Jan. 14, 2016) (produced by the Dep’t of Health after

extensive hearings by the medical board and based on the

scientific evidence).

“ Id.

“ Id. The booklet states that there is one death per every

530,000 abortions if you are at 8 weeks or less; one death per

17,000 abortions for pregnancies at 16-20 weeks; and one death

per 6,000 abortions at 21 weeks and more.

which clearly demonstrate that abortion is associated

with significantly higher mortality rates.“ Further-

more, the reliable scientific evidence demonstrates

that “each additional abortion is associated with an

even higher death rate.”” Texas’ goal to protect wom-

en’s health is constitutional because it is based on

reliable scientific evidence and the legitimate interest

of the State.

In Roe, this Court acknowledged the state’s right

to regulate abortion to protect women’s health when

the risk of death associated with abortion is greater

than the risk of death associated with childbirth.”

In 1973, the Roe Court believed that the risk of

death associated with abortion was after the first

“ See, e.g., Reardon & Coleman, Short and Long Term

Mortality Rates Associated with First Pregnancy Outcome:

Population Register Based Study for Denmark 1980-2004, 18(9)

MEp. Sci. Monttor 71-76 (Aug. 2012), available at http://www.

medscimonit.com/fulltxt.php?ICID=883338; M. Gissler et al.,

Injury Deaths, Suicides and Homicides Associated with Preg-

nancy, Finland 1987-2000, 15 Eur. J. Pus. HEALTH 459 (2005);

M. Gissler et al., Suicides After Pregnancy in Finland, 1987-94:

“ Elliot Institute, Abortions Increase Risk of Maternal

Death: New Study, available at http://afterabortion.org/2012/

multiple-abortions-increase-risk-of-maternal-death-mew-study/ (last

visited Jan. 14, 2016) (stating “Women who had two abortions

were 114% more likely to die during the period examined, and

women had three or more abortions had a 192% increased risk of

death”).

* Roe v. Wade, 410 U.S. 113, 149 (1973).

trimester.” Scientific studies now confirm that child-

birth is safer than abortion whether in the early or

late stages of pregnancy.” The incontrovertible evi-

dence based on record linkage studies from Finland,

Denmark, and the United States, provides reliable

scientific evidence that the risk of death to women is

higher than childbirth at all stages, including within

the first 180 days after a first trimester abortion.”

Therefore, under Roe’s reasoning and the current

scientific evidence, the state has a right to enact

health and safety regulations in the first trimester.

In addition, the psychological consequences of

abortion can lead to physical harm, and therefore, it

" Id. (stating “that abortion in early pregnancy, that is,

prior to the end of the first trimester, although not without its

risk, is now relatively safe”).

“ See Saunders & Novick, Study Confirms Childbirth is

Safer for Women than Abortion (Sept. 13, 2012), available at

http//www. lifenews.com/2012/09/13/study-confirms-childbirth-is-

safer-for-women-than-abortion/ (last visited Jan. 14, 2016). A

study in Denmark of almost half a million women complements

similar data from Chile and Ireland that confirms legalizing

abortion does not decrease maternal mortality rates. Id.

* Reardon & Coleman, Short and Long Term Mortality

Rates Associated with First Pregnancy Outcome: Population

Monitor 71-76 (Aug. 2012), available at http://www.

medscimonit.com/fulltxt.php?ICID=883338. Dr. Reardon asserts

that any claims to the contrary are due to reviewers specifically

excluding record linkage studies to promote the myth of abortion

safety. See Reardon, Rebuttal of Raymond and Grimes, 793)

LINACRE Q. 259-60 (Aug. 2012) (criticizing studies that do not

use linkage studies).

is important to have continuity of care by the attend-

ing physician who understands what transpired

during the abortion and the consequences after the

abortion. It is well recognized that some women

experience sadness, grief, and feelings of loss follow-

ing an abortion and that it can led to clinically signif-

icant psychological disorders such as depression and

anxiety.“ These negative psychological effects of

abortion can lead to negative physical consequences

such as alcohol and substance abuse.” Scientific

studies have shown that abortion is “significantly

linked to behavioral changes such as promiscuity,

smoking, drug abuse, and eating disorders which all

contribute to increased risks of health problems.”

The scientific studies also demonstrate that women

who have multiple abortions face a much greater risk

of experiencing these complications.” Thus, many

“ The principle has been recognized by this Court, the

Texas Department of Health, and the American Psychiatric

Association. See Gonzales v. Carhart, 550 U.S. 124, 159 (2007);

Tex. Dep’t of Health, A Woman’s Right to Know Booklet at 16,

available at https//www.dshs.state.tx.us/wrtk/default.shtm (lasted

visited Jan. 7, 2016); American Psychiatric Association, APA

Abortion Report (2008), available at http//www.abortionrisks.

org/index.php?title=APA_Abortion_Report#Others_Recommending__

Screening_and_Doctor.27s_Obligation (last visited Jan. 14, 2016).

* Elliot Institute, Abortion Risks: A List of Major Physical

Complications Related to Abortion (citing reliable scientific

studies), available at http://afterabortion.org/1999/abortion-risks-

a-list-of-major-physical-complications-related-to-abortion/ (last

visited Jan. 14, 2016).

* Id.

” Id.

have advocated that there needs to be appropriate

screening.”

The scientific studies confirm the real life experi-

ences of post-abortive women. Amicus Cindy William-

son states:

Afterward [sic] the abortion, my rebellion

turned to destructive behavior. | tried to

drink away the memory of killing my unborn

child, and I turned to drugs. My self-worth

plunged, I felt like I didn’t deserve to be a

mother to the daughter that I had. I lost cus-

tody of her because I was unable to keep a

job and because of my destructive lifestyle —

drinking, drugs, my weight dropping to a

dangerous 88 pounds, and not caring about

anything.”

Amicus Brandi Dudley states:

I was told over and over this was the best

solution to the problem. I was told by people

who I respected that having an abortion

“ For example, see American Psychiatric Association, APA

Abortion Report (2008), available at http//www.abortionrisks.

org/index.php?title=APA_Abortion_Report#Others_Recommending _

Screening _and_Doctor.27s_Obligation (last visited Jan. 14, 2016)

(recommending screening); Gallagher, Without Pre-Abortion

Screening Abortion Endangers Women’s Health (Apr. 27, 2004),

available at http://www.lifenews.com/2004/04/27/nat-478/ (last

visited Jan. 23, 2016) (discussing Dr. Reardon’s call for screening

based on 63 medical studies).

“ Statement of Cindy Williamson, available at trinitylegal

center.org (last visited Jan. 14, 2016).

would allow me to move on and excel in

life. That was a grievously wrong statement

because instead of excelling, I began a self-

sabotaging lifestyle.”

Abortion is a short-term solution with long-term

physical and psychological consequences that may

begin immediately, but can last for years.” The courts

have recognized what the post-abortive women have

experience. For example, in Women’s Medical Center

of Northwest Houston v. Bell,” the Court of Appeals

for the Fifth Circuit concluded that “abortion is

almost always a negative experience for the pa-

tient. ™ In 2007, this Court recognized that “it

seems unexceptionable to conclude some women come

to regret their choice to abort the infant life they once

created and sustained™ and recognized that “Severe

depression and loss of esteem can follow.”

” Statement of Brandi Dudley, available at trinitylegal

center.org (last visited Jan. 14, 2016).

" See genercily Schlueter, 40th Anniversary of Roe v. Wade:

Reflections Past, Present and Future, 40 Onto No. U. L. Rev. 105

(2013) (citing women’s affidavits); MELINDA TANKARD REIST,

GrviInc Sorrow Worps: WoMEN’s Stories Or GRIEF AFTER

ABORTION 10 (2000) (“A woman never forgets a pregnancy and

the baby that might have been.”).

™ 248 F.3d 411 (5th Cir. 2001).

“ Gonzales v. Carhart, 550 U.S. 124, 159 (2007).

* Id.

B. H.B. 2 Should Be Upheld Because Am-

bulatory Surgical Centers Benefit and

Protect Women and Can Save a Woman’s

Life When There Are Complications.

ASCs have a “strong track record of quality care

and positive patient outcomes™ in more than 5,300

ASCs in the United States that perform 23 million

surgeries annually.” In Texas, there are 430 ASCs

providing a high quality, low cost alternative for

surgeries.” To ensure the quality of care, Texas has

enacted common sense safety measures including the

requirement for abortions to be done at ASCs.” The

following is a sample of the ASC standards in five

major areas:

* There should be appropriate standards

for the “construction and design [of the

facilities,) including plumbing, heating,

lighting, ventilation, and other design

standards. ”” These are necessary to

“ Ambulatory Surgical Center Association, History of ASCs,

available at http//www.ascassociation.org/advancingsurgicalcare/

whatisanasc/historyofascs (last visited Jan. 14, 2016).

” Id.

* See Texas Ambulatory Surgical Center Society, Ambulatory

Surgery Center Facts, available at http://www.texasascsociety.

org/surgery-center-facts (last visited Jan. 14, 2016).

” See generally Schlueter, 40th Anniversary of Roe v. Wade:

Reflections Past, Present and Future, 40 Ono No. U. L. Rev. 105

(2013) (urging safety measures such as ASCs to protect women

considering an abortion).

” Tex. HEALTH & SaFety Cope ANN. § 243.010(aX(1).

“ensure the health and safety of [surgi-

cal] patients.””

¢ “(Tjhe qualifications of the professional

staff and other personne!” should be ap-

propriate for the surgical procedure.”

Women are entitled to competent medi-

cal care for all surgical procedures.

¢ The facility should have and maintain

the necessary “equipment [that is] es-

sential to the health and welfare of pa-

tients," including the necessary

emergency equipment if there are abor-

tion complications.

* “(Tjhe sanitary and hygienic conditions

lof) the center and its surroundings”

should meet the minimum requirements

of other ambulatory surgical centers.”

Women are entitled to clean facilities

and instruments to prevent infection,

which may lead to illness or death.

* There must be “a quality assurance pro-

gram for patient care.””

ASCs must comply with an extensive set of

inection prevention standards that are monitored

” =

™ Id. § 243.010(aX2).

™ Id. § 243.010(aX3).

* Id. § 243.010(a)(4).

™ Id. § 243.010 aX5).

internally at each ASC daily and evaluated by ex-

ernal inspectors trained in the use of a rigorous,

detailed infection prevention survey tool.” This is

important for women due to the risk of infection

following an abortion.

ASCs provide for a clean and safe environment to

have an abortion. They are an important step in

protecting women from abortionists such as Kermit

Gosnell whose clinic was called a “house of horrors.””

The Grand Jury in the Kermit Gosnell case stated:

The clinic reeked of animal urine, courtesy of

the cats that were allowed to roam (and defe-

cate) freely. Furniture and blankets were

stained with blood. Instruments were not

properly sterilized. Disposable medical sup-

plies were not disposed of; they were reused,

over and over again. Medical equipment —

such as the defibrillator, the EKG, the pulse

oximeter, the blood pressure cuff — was gen-

erally broken; even when it worked, it wasn’t

used. The emergency exit was padlocked

shut. And scattered throughout, in cabinets,

in the basement, in a freezer, in jars and

" See Ambulatory Surgical Center Association, Quality of

Care in ASCs, available at http//www.ascassociation.org/

advancingsurgicalcare/qualityandpatientsafety/qualityofcareinascs

(last visited Jan. 14, 2016).

” The District Attorney described Kermit Gosnell’s facility

as a “house of horrors.” NBC News, “House of Horrors” Alleged at

Abortion Clinic (Jan. 19, 2011), available at http://www.nbcnews.

com/id/41154527/ns/us_news-crime_and_courts/t/house-horrors-

alleged-abortion-clinic/#.VpVZv73-km0 (last visited Jan. 14, 2016).

bags and plastic jugs, were fetal remains. It

was a baby charnel house.”

No woman should have to endure the conditions

that existed in the Gosnell “house of horrors.” Women

deserve better and H.B. 2 provides the safety meas-

ures to ensure that this type of conduct does not exist

in Texas. ASCs are a means to ensure a clean and

safe facility.”

It has been reported that the conditions and

practices of Kermit Gosnell are not uncommon.”

For example, Douglas Karpen, a Houston, Texas

abortionist, has been described as Gosnell’s Texas

counterpart.” Three employees from his clinic came

forward to describe the conditions in those clinics and

Karpen’s practices.” In addition, a lawsuit was filed

™ Grand Jury Report, MISC. NO. 0009901-2008 at 2,

available at http://www.phila.gov/districtattorney/PDFs/Grand

JuryWomensMedical.pdf (last visited Jan. 14, 2016). See gener-

ally Calhoun, Stopping Philadelphia Abortion Provider Kermit

Gosnell and Preventing Others Like Him: An Outcome that Both

Pro-choicers and Pro-lifers Should Support, 57 ViLu. L. REv. 1

(2012).

”™ Tex. HEALTH & SAFETY Cope ANN. § 243.010(aX4).

” Jasper, Another House of Horrors: Gosnell’s Abortion

Counterpart in Texas (May 16, 2013), available at http://www.

thenewamerican.com/usnews/crime/item/15423-another-house-of-

horrors-gosnell-s-abortion-counterpart-in-texas (last visited Jan.

14, 2016) (discussing investigations by Life Dynamics and Live

Action).

" Id.

”

by Melanie Mendoza.“ According to the complaint,

Melanie went to the emergency room because the

pain was so intense following the abortion.” The Ob-

Gyn attending doctor determined that there was a

tear in the uterus and Melanie was bleeding internal-

ly.” The bleeding was so severe and injuries so exten-

sive that the attending doctor elected to do an open

procedure.” She concluded that the injuries caused by

Karpen were “one the worst injuries to the uterus

that she had ever seen or read about.” Karpen did

not have hospital privileges,” and therefore, there

was no assurance of his qualifications or his ability to

provide the continuity of care that Melanie needed.

At an ASC, there is “post-op monitoring” for the

required period of time ard extended care is given if

needed.” Both of H.B. 2’s provisions requiring ASCs

and hospital privileges would have protected Melanie.

* See Mendoza v. Karpen et al., Docket number 2014-12321,

available at http://operationrescue.org/pdfs/Mendoza%20v%20

Karpen%20botched®20abortion%20lawsuit.pdf (last visited Jan.

14, 2016).

“ Id. at para. 10.

* Id.

at |

" Id.

“ Enriquez, “Texas Gosnell” Douglas Karpen No Longer

Terminating Unborn Texans (June 15, 2014), available at

http://liveactionnews.org/texas-gosnell-douglas-karpen-no-longer-

terminating-unborn-texang/ (last visited Jan. 14, 2016).

” Affidavit of Dr. Noreen Johnson at Appendix B.

ASCs have monitoring and emergency equipment

that can save a woman’s life when there are complica-

tions! Amicus Eileen Smith knows first hand of the

heartbreak when emergency equipment is not availa-

ble to save a woman’s life. Her daughter, Laura

Smith, was a twenty-two year-old abortion patient

who was thirteen-weeks pregnant when she sought a

legal abortion at the Women’s Health Center, in

Hyannis, MA on September 13, 2007” During the

abortion, Laura’s heart, pulse, and blood pressure

were not monitored, and there was no oxygen source

in the room.” Abortionist Osathanondh and an office

worker who had no training in _ resuscitation

measures were the only ones with Laura during and

after the abortion.” Osathanondh called Laura’s

name in an effort to awaken her, but he received no

response.” He then failed to timely initiate a call to

911. Laura was pronounced dead by the time she

arrived at Cape Cod Hospital.”

Although Osathanondh tried to deny the allega-

tions, it was later determined that he did not have

any means of monitoring Laura’s heart, and did not

have oxygen or a functioning blood pressure cuff in

” Life Dynamics, Laura Hope Smith Dead After Legal

Abortion, available at https://lifedynamics.com/laura-hope-smith-

dead-legal-abortion/ (last visited Jan. 14, 2016).

™ Id.

” 2.

“ Id.

the room during Laura’s abortion.” A report issued by

the Board of Registration in Medicine said the abor-

tion doctor, “engaged in conduct that calls into ques-

tion his competence to practice medicine.” The board

also concluded that he “failed to adhere to basic

cardiac life support protocol” and did not call 911 in a

timely manner.”

If health and safety measures had been in

place in Massachusetts when Laura Smith had her

abortion, this tragedy could have been avoided.

Examples such as Laura’s case are exactly why H.B.

2 is necessary and important to save the lives of

Texas women. Amici urge this Court to uphold the

common sense protections of H.B. 2.

” Bennington Banner, Trial Set for Mass. Doc in Abortion

Patient Death (Sept. 13, 2010), available at http://www.

benningtonbanner.com/news/ci_16067872 (last visited Jan. 14,

2016).

" See Life Dynamics, Laura Hope Smith Dead After Legal

Abortion, available at https://lifedynamics.com/laura-hope-

smith-dead-legal-abortion/ (last visited Jan. 14, 2016).

” Id. As a result of Laura’s death, prosecutors charged

Osathanondh with manslaughter. In 2010, he was sentenced to

six months in prison, but served only three months. Subsequently

Eileen Smith filed a civil suit which was settled and

Osathanondh agreed to pay the family a substantial sum of

money as a punitive measure. /d.

C. The Requirement That Doctors Have

Privileges at Local Hospitals Is Implicitly

Good for Women and Provides Conti-

nuity of Their Care When Complications

Arise.

At least fifteen states have adopted laws or

regulations that require abortionists to have admit-

ting privileges at a nearby hospital.” Generally, when

a doctor has admitting privileges, the doctor can

transfer a patient to a local hospital if complications

arise during or after an abortion and can provide the

continuity of care that is needed.”

H.B. 2 requires that abortionists have admitting

privileges at local hospitals within thirty miles from

the place of the abortion.” The Texas Legislature

stated that the purpose of this requirement was to

raise the standard and quality of care for women

* See ALA. CopE § 26-23E-4; Ariz. Rev. Stat. § 36-449.03;

ARK. CopDE ANN. § 20-16-1504; FLa. Star. § 390.012; IND. CopE

§ 16-34-2-4.5; Kan. Stat. ANN. §65-4a09; La. StatT. ANN.

§ 40:1299.35.2; Miss. Cope ANN. §41-75-1; Mo. Rev. Star.

§ 188.080; N.D. Cent. Cope § 14-02.1-04; OKLA. Star. tit. 63, § 1-

748; TENN. CODE ANN. § 39-15-202; Tex. HEALTH & Sarety CoDE

ANN. § 171.0031; UTAH ADMIN. CoDE R. 432-600-13; Wis. Star.

§ 253.095.

” Shimabukuro, Abortion, Hospital Admitting Privileges,

and Whole Woman’s Health v. Cole (Sept. 25, 2015), available at

https://www.fas.org/sgp/crs/misc/R44205.pdf (last visited Jan. 14,

2016) (providing a report for the Congressional Research

Service).

Tex. HEALTH & SAFETY CoDE ANN. § 171.0031(a\1).

seeking abortions, and protects their health and

welfare.”

A physician having local hospital privileges is

important for several reasons. First, hospital privi-

leges help ensure qualified and competent doctors

work at the hospital. This is because:

The physicians on the hospital’s credentialing

committee investigate the applicant’s back-

ground to determine the extent of his past

medical training and performance, whether

he is licensed and board certified, he carries

malpractice insurance, and any other infor-

mation that they believe is relevant.”

Second, physical complications can occur during

or after an abortion that requires hospitalization.

Some reports claim that approximately 1,000 Texas

women per year require hospitalization due to com-

plications of the abortion.“* Planned Parenthood’s

expert admitted at the trial concerning H.B. 2 that

* See Whole Woman's Health v. Cole, 790 F.3d 563, 576

(5th Cir. 2015).

'* Neff, Physician Staff Privilege Cases: Antitrust Liability

and the Health Care Quality Improvement Act, 29 Wm. & Mary

L. Rev. 609, 613-14 (1988).

'® Affidavit of Carol Everett at Appendix A.

'* Sullenger, Nearly 1,000 Texas Women Hospitalized Every

Year After Botched Abortions (Apr. 22, 2014), available at http://

www.lifenews.com/2014/04/22/nearly-1000-texas-women-hospitalized-

every-year-after-botched-abortions/ (last visited Jan. 14, 2016).

210 women went to the emergency room.” The Court

of Appeals stated that:

During these proceedings, Planned Parent-

hood conceded that at least 210 women in

Texas annually must be hospitalized after

seeking an abortion. Witnesses for both sides

further testified that some of the women

who are hospitalized after an abortion have

complications that require an Ob/Gyn spe-

cialist’s treatment.”

Third, in many hospitals, specialists such as

Ob-Gyns are not on call.” Relying on the comprehen-

sive testimony and data by Dr. John Thorp, the Court

of Appeals for the Fifth Circuit recognized the “lack of

adequate on-call coverage by specialist physicians,

including Ob/Gyns.”"” Thus, the court concluded that

“requiring abortion providers to obtain admitting

privileges will reduce the delay in treatment and

decrease health risk for abortion patients with critical

complications.””” Such safety measures are reasona-

ble and protect women.

Fourth, an abortionist without having local hos-

pital privileges is like an itinerant surgeon which is

‘* Planned Parenthood v. Abbott, 748 F.3d 583, 595 (5th Cir.

2014).

we! |

'” Td. at 592.

-' oe

proscribed.” In states such as South Dakota, the

abortionist is flown in from another state for the day

to do abortions and flies home at the end of the day."”

Therefore, if a woman has complications, “local

doctors who are strangers to the patient and were in

no way involved in the abortion procedure must see

her.” This practice is not in the best interests of

women.

In fact, the American College of Surgeons has

standards concerning the relationship of the surgeon

to the patient and its proscription of what is called

“itinerant surgery.” Part of the ethical responsibility

of the surgeon is to “ensure appropriate continuity of

care of the surgical patient.”

In Texas, if the abortionist does not have local

hospital privileges, he or she would not be able to

"° See American College of Surgeons, Statement of Princi-

ples, subsection F, available at https://www.facs.org/about-acs/

statements/stonprin#anchor172291 (last visited Jan. 14, 2016).

“! §.D. Task Force Report, available at http//www.dakota

voice.com/Docs/South®20Dakota%20Abortion%20Task%20F orce

%20Report.pdf 18 (last visited Jan. 14, 2016).

™ Id.

'’ Td. “Itinerant surgery involves the practice of a physician

outside the physician’s normal geographical area of practice to

perform surgery where the physician is not personally involved

in the original diagnosis or preparation of the patient and is not

involved in follow-up care.” Jd. at n.5.

"™* See American College of Surgeons, Statement of Principles,

subsection F, available at https://www.facs.org/about-acs/

statements/stonprin#anchor172291 (last visited Jan. 14, 2016).

provide the continuity of care that is critically neces-

sary when complications occur. This in essence is a de

facto itinerant surgeon.”

In addition, it is important for a woman to have

an ongoing relationship with her doctor as this Court

surmised in Roe because complications can arise

either immediately or over time. The scientific stud-

ies demonstrate that approximately ten percent of

post-abortive women suffer from immediate complica-

tions.’”* Of this number, one-fifth or two percent were

considered major complications.’ Some complications

take time to develop and will not be apparent for

days, months or even years.”

The scientific studies confirm the real life experi-

ences of post-abortive women. Amicus Joyce Zounis

states that:

"® Affidavit of Carol Everett at Appendix A (stating that

some of her abortionists lived some distance from their clinics

and would move from clinic to clinic).

"* Elliot Institute, Abortion Risks: A List of Major Physical

Complications Related to Abortion (citing studies), available at

http///afterabortion.org/1999/abortion-risks-a-list-of-major-physical-

complications-related-to-abortion/ (last visited Jan. 14, 2016).

117 vf d.

* Id. See generally JoHN C. WILKE & BARBARA H. WILKE,

ABORTION: QUESTIONS AND ANSWERS 50 (2003) (“5 years is common,

10 or 20 not unusual.”); Elliot Institute, Abortion Complications,

available at http://afterabortion.org/1990/abortion-complications/

(last visited Jan. 14, 2016) (“The best available data indicates

that on average there is a five to ten year period of denial during

which a woman who was traumatized by her abortion will

repress her feelings.”).

Eleven years, three clinics, two states, seven

abortions, and not once was I told of the

physical risks I would su‘fer later: the neces-

sity of bi-lateral mammograms and fear of

breast cancer; ovarian cysts; being bed rid-

den for five months in my last pregnancy and

having to explain the possibly [sic] of “mom-

my dying” to my four young children due to

placenta previa, which resulted in my losing

all but two pints of blood; and, a partial

hysterectomy at delivery.’”

Amicus Toni Cordell understands the physical

consequences of abortion. She states that although

the baby was gone, the consequences for her body

began less than a year later.” Her uterus collapsed

and required a partial hysterectomy. There were

eventually seven surgeries which removed all of her

female organs and had to rebuild her bladder and

urethra.

The physical complications may have life-long

consequences. Jackie Bullard states that:

Five days later, I went to the hospital with

cramping, bleeding, and running a fever.

I had a raging infection, and an emergency

D & C was done to scrape out the baby parts

that had been left inside of me. After

™ Statement of Joyce Zounis, available at trinitylegal

center.org (last visited Jan. 14, 2016).

” Statement of Toni Cordell is on file with Trinity Legal

Center.

unsuccessful fertility treatments, a test re-

vealed scar tissue damage from the complica-

tions of my incomplete abortion. When the

doctor told me I could never have children, I

was devastated. That day I knew I had taken

the life of the only child I would ever carry.”

Therefore, when complications arise, it is not in

the best interests of the woman to have local doctors

who are “strangers” to the patient and were not

involved in the abortion procedure. Itinerant surgery

is proscribed. Thus, for the health and safety of

women, H.B. 2 provides a reasonable requirement

that an abortionist have local hospital privileges.

D. Having Hospital Privileges Supports

Roe’s Assumption of a Normal Doctor-

Patient Relationship.

A doctor having hospital privileges would support

this Court’s assumption in Roe of a normal doctor-

patient relationship by providing for a woman’s

continuity of care after the abortion. Women consider-

ing an abortion should be given the same continuity

of care that any surgical patient currently has and

would expect as a normal doctor-patient relationship.

™ Statement of Joyce Zounis, available at trinitylegal

center.org (last visited Jan. 14, 2016).

In the abortion industry, normal doctor-patient

relationships are not formed.” Generally, patients do

not have continuity of care from the abortion provid-

er, but patients are “told if they had a problem to go

to the nearest Emergency Room.” This is neither

continuity of care nor a normal doctor-patient rela-

tionship.

At the heart of Roe is the assumption that the

abortion decision should be made by a woman in

consultation with her personal doctor.™ In its deci-

sion, the Court repeatedly referenced the assumption

that the woman’s decision would be made privately in

consultation with her physician. Abortion practice,

however, does not usually involve a normal doctor-

patient relationship, nor is it a voluntary, informed

private decision between a woman and her doctor.”

Usually women do not see the abortionists until just

before the procedure is performed.™

Affidavit of Dr. Noreen Johnson at Appendix B. Dr.

Johnson performed abortions for approximately five years and is

well acquainted with the abortion industry. Id.

™ See Roe v. Wade, 410 U.S. 113, 153 (1973) (“All these are

factors the woman and her responsible physician necessarily

will consider in consultation.”).

See S.D. Task Force Report, available at http://www.

dakotavoice.com/Docs/South%20Dakota%20Abortion®20Task%

20Force%20Report.pdf 16-17 (last visited Jan. 14, 2016) (finding

“no true physician-patient relationship”).

™ Id. at 16 (finding the abortionist “sees the pregnant

mother for the first time in the procedure room, only after the

(Continued on following page)

While the Court’s opinion in Roe focused on the

woman’s initial decision to obtain an abortion, the

underlying assumption that the attending physician

would be involved — by parity of reasoning — the

woman should have the benefit of counsel from her

physician if complications should arise post-abortion.

For example, the physician who performed the

abortion would normally be in the best position to

assess the complication, based on his or her knowl-

edge of the woman’s condition and the procedures

that either had been used, or not used, during the

abortion. It would be potentially harmful to the

woman to be admitted to a hospital post-abortion,

and not have the advice and care of the physician

who performed the abortion - a medical procedure

which the Court itself acknowledges can lead to

complications.”

Documents are available on a clearinghouse

website concerning abortionists’ conduct where there

should have been an ongoing doctor-patient relation-

ship which would have helped and benefited the

woman.” For example, abortionist James Pender-

graft, a Florida abortionist, sent a patient to the

consent form has been signed and the woman has made her

commitment to undergo the abortion”).

™" Roe v. Wade, 410 U.S. 113, 145-46 (1973).

The website Abortion.Docs.org is a clearinghouse for

information from across the nation. The searchable database has

documents such as health code violations, abortion injuries,

malpractice claims, disciplinary action, and criminal conduct.

hospital for a potential uterine perforation, but he

failed to tell the physicians at the hospital that he

had already removed the baby’s leg.” Because the

hospital physician did not know this, he had to search

the woman’s uterus and then do X-rays and a CT scan

to make sure he did not cause an infection by leaving

the missing body part in her uterus. The Administra-

tive Law Judge found that Pendergraft “breached the

standard of care” which constituted medical malprac-

tice.” This case illustrates the problem of not having

the continuity of care from the attending physician.

H.B. 2 supports the belief that a woman should

have the medical advice of her physician post-

abortion. This is certainly consistent with Roe’s

assumption that there would be an ongoing normal

doctor-patient relationship. If that physician does not

have admitting privileges where his patient must

seek medical attention, then the information may be

incomplete or limited to remote transmission of

information as demonstrated in the Pendergraft

case. This is a serious problem because “80 percent of

serious medical errors involve miscommunication be-

ween caregivers when patients are transferred or

‘* Dep't of Health, Board of Medicine v. Pendergraft, State

of Florida Division of Administrative Hearings, DOH case No.

10-0208 (2010), available at http://abortiondocs.org/wp-

content/uploads/2012/01/pendfinal012610.pdf (last visited Jan.

14, 2016).

‘” Id. at 20-21. Based on the findings, the Administrative

Law Judge imposed a two-year suspension, followed by a three-

year probation, and a fine of $20,000.00. Id. at 25.

handed-off.”” Women should have the benefit of her

attending physician’s continuity of care so that any

comlications can be accurately and efficiently ad-

dressed.

There are “serious and detrimental effects for

women” if H.B. 2 is not upheld.™ This is because it

would “(1) keep the abortion doctor unaccountable to

his patient and to the community in which he practic-

es; (2) allow him to provide women with substandard

medical care which places their lives in danger; and,

(3) would protect the doctor and harm the woman.”™

Therefore, H.B. 2’s requirement for abortionists

to have hospital privileges is necessary for the health

and safety of women and supports this Court’s as-

sumption in Roe of a normal doctor-patient relation-

ship.

Planned Parenthood v. Abbott, 748 F.3d 583, 592 (5th Cir.

2014) (citing testimony of Dr. John Thorp referring to several

significant studies).

'® Affidavit of Dr. Noreen Johnson at Appendix B.

~ 2

Ill. THIS COURT HAS RECOGNIZED THAT

BROAD DEFERENCE SHOULD BE GIVEN

TO LEGISLATIVE FINDINGS AND ENACT-

MENTS, AND THEREFORE, THE COURT

OF APPEALS’ DECISION SHOULD BE

AFFIRMED.

A. Health Issues Are Complex Issues That

Are Fact Bound and Involve National

and State Policy That Are Best Left to the

Legislative Branches of Government.

For over a century prior to Roe v. Wade™ and Doe

v. Bolton, health issues such as abortion were

traditionally state issues.” This Court recognized

that under what was later called the state’s “police

power,” the states could regulate “health laws of every

description.”” Furthermore, this Court has given

deference to legislative judgments.”

'™ 410 U.S. 113 (1973).

'*® 410 U.S. 179 (1973).

'* Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204 (1824).

'" Id. at 203.

‘* Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (stating

state and federal legislatures have wide discretion to pass

legislation where there is medical and scientific uncertainty);

Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 195

(1997) (stating substantial deference should be given because

legislature is better equipped to amass and evaluate the vast

amounts of data on legislative issues and out of respect for

legislative authority); Dominion Hotel v. State of Arizona, 249

U.S. 265, 268 (1919) (stating deference due to legislative judg-

ments has been repeatedly emphasized).

Since Roe, this Court has continued to recognize

that states may make reasonable regulations that do

not impose an undue burden for the health and safety

of women.” In Planned Parenthood v. Casey, this

Court recognized that because the State has a sub-

stantial interest in the life of the unborn child, the

State may promulgate regulations that do not create

an undue burden on the woman’s right to decide.” In

particular, regulations that are “designed to foster the

health of a woman seeking an abortion are valid if

they do not constitute an undue burden.” This

Court recognized that “[aJs with any medical proce-

dure, the State may enact regulations to further the

health or safety of a woman seeking an abortion.”

Furthermore, this Court has upheld health

regulations that “are not efforts to sway or direct a

woman’s choice, but rather are efforts to enhance the

deliberative quality of that decision or are neutral

regulations on the health aspects of her decision.”

The Texas Legislature did not attempt to sway a

woman’s decision but to protect her health once the

decision is made.

'* See Gonzales v. Carhart, 550 U.S. 124, 146 (2007);

Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992).

‘ Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992).

'" Id. at 877.

'‘* Td. at 878.

‘* Id. at 917 (Stevens, J., concurring in part and dissenting

in part) (providing examples of valid regulations).

As long as there is a “commonly used and gener-

ally accepted method” of abortion, there is not a “sub-

stantial obstacle to the abortion right.” Specifically,

this Court stated in Gonzales that “[clonsiderations

of marginal safety, including balance of risks, are

within the legislative competence when the regula-

tion is rational and in pursuit of legitimate ends.”

H.B. 2’s effort to protect the health and safety of

women is a legitimate end as articulated by this

Court.

As one federal court recognized: “Historically,

laws regulating abortion have sought to further the

state’s interest in protecting the health and welfare of

pregnant women. ” In furtherance of its interest,

the State of Texas passed H.B. 2 to protect pregnant

women from the significant known risks and compli-

cations that can occur during and after an abortion.

This is within the State’s authority and competence,

and therefore, should be given deference.

‘“ Gonzales v. Carhart, 550 U.S. 124, 165 (2007).

** 550 U.S. 124 (2007).

‘* Id. at 166.

‘" McCormack v. Hiedeman, 694 F.3d 1004, 1010 (9th Cir.

2012).

B. The H.B. 2 Provisions Are Within This

Court’s Constitutional Framework and

Should Be Upheld.

Since Casey, the Texas Legislature has properly

exercised its authority to protect women who are

considering an abortion. For example, the Texas

Legislature passed the State’s Woman’s Right to

Know law™ and the Texas Department of Health

Services produced A Woman’s Right to Know Book-

let.“ The Booklet was produced after extensive

hearings by the medical board to provide accurate,

scientifically based information for women consider-

ing an abortion. In addition, there is an annual

review of the Booklet to ensure that information is

“based on current and relevant science and evidence-

based literature, medical professional resources, and

government health and medical resources.”””

The Texas Legislature’s enactment of H.B. 2

is another step in protecting women by providing

‘“ During the 2003 session, the Texas Legislature passed

the Woman’s Right to Know Act (House Bill 15), codified at Tex.

HEALTH & SAFETY CODE § 171.001 et seq.

‘° Texas is just one of twenty-seven states that have A

Woman's Right to Know \aw and booklets so that a woman will

know the medical risks associated with abortion and have

scientifically accurate medical facts about the development of

her unborn child. See A Woman’s Right to Know: Casey-style

Informed Consent Laws, available at http://www.nric.org/

uploads/stateleg/WRTKF actSheet. pdf (last visited Jan. 14, 2016).

“ A Woman’s Right to Know, available at https://www.dshs.

state.tx.us/wrtk/default.shtm (last visited Jan. 14, 2016).

common sense safety laws for women considering an

abortion just as any other surgical out-patient has.”

As the Texas law states, the “rules must contain

minimum standards to protect the health and safety

of a patient of an abortion facility. ””

When then-Governor Perry signed H.B. 2, he

stated: “It is our responsibility and duty to im-

prove the quality of care women receive, ensuring

that any procedure they undergo is performed in

clean, sanitary and safe conditions, by capable per-

sonnel.”

Reflecting back on the passage of H.B. 2, then-Lt.

Governor Dewhurst emphasized the importance of

the law for the protection of women.” He stated: “

it is useful to remember that the bill made Texas

the 28th state to order the highest standards of care

‘* In Texas, there are 430 ambulatory surgery centers. See

Texas Ambulatory Surgical Center Society, Ambulatory Surgery

Center Facts, available at http://www.texasascsociety.org/

surgery-center-facts (last visited Jan. 14, 2016). Today, almost

75% of all surgeries are performed on an outpatient basis and

more than half of them are done in an ambulatory surgery

center. Id.

Tex. HEALTH & SaFeTy Cope § 245.010a).

‘® Smith, Perry Signs HB 2, The Austin Chronicle (July 18,

2013), available at http://www.austinchronicle.com/daily/news/

2013-07-18/perry-signs-hb2/ (last visited Jan. 14, 2016).

’ Dewhurst, One Year Later: HB 2 and the Pro-Life

Movement in Texas (Jul. 18, 2014), available at http://townhall.

com/columnists/daviddewhurst/2014/07/18/one-year-later-hb-2-and-

the-prolife-movement-in-texas-n1863568/page/full (last visited

Jan. 27, 2016).

at abortion facilities.” In addition, the Legislature

“appropriated $179 million in new state funding for

women’s health services including preventative care

and screenings. The 83rd Legislature should be re-

membered for the advances we made in women’s

health.”

The Texas Legislature is not alone in providing

safety laws. For example, twenty-two states require

ASC-type facilities” and ten states require abortion-

ists to have hospital privileges.’ Another nine states

require that there be either hospital privileges or an

alternative agreement.” Thus, Texas has taken

reasonable and common sense steps to protect women

based on reliable scientific data and what is required

for other types of out-patient surgeries. H.B. 2 is

reasonable and should be upheld.

Furthermore, legislative bodies, unlike courts,

are able to hold hearings, review the scientific data,

and enact or revise health and safety laws to keep

pace with the scientific evidence.” If legislatures are

-o

‘“* Guttmacher Institute, State Policies in Brief (Dec. 1, 2015),

available at http://www.guttmacher.org/statecenter/spibs/spib_

TRAP pdf (last visited Jan. 14, 2016).

'” Id. (stating that in five states the law is temporarily

enjoined pending a final decision in the courts).

'* Id. (stating Arkansas’ policy takes effect later in 2016).

‘*® See McCorvey v. Hill, 385 F.3d 846, 852 (5th Cir. 2004)

(Jones, J., concurring but also writing the majority opinion for

the panel). Judge Jones stated that she could not “conceive of

(Continued on following page)

not able to evaluate the evolving medical knowledge

and scientific evidence, then it “leaves our nation in a

position of willful blindness.” Thus, this Court has

correctly given deference to legislative enactments

and findings.

The Amici urge the Court to give deference to

H.B. 2 which was enacted to protect the health and

safety of women seeking an abortion once they have

made the decision to have an abortion. H.B. 2’s safety

provisions are based on current, scientific evidence

and thus should be upheld.

any judicial forum in which McCorvey’s evidence could be aired.”

Id. By constitutionalizing the issue, legislative bodies cannot

meaningfully debate the scientific evidence and this has led to a

“perverse result” which affects over a million women each year.

Id.

Id. at 853.

CONCLUSION

For the foregoing reasons, the requirements of

H.B. 2 should be upheld and the decision of the

United States Court of Appeals for the Fifth Circuit

affirmed.

Respectfully submitted,

LINDA BOSTON SCHLUETER

Counsel for Amici Curiae

APPENDIX A

Affidavit of Carol Everett

STATE OF TEXAS § KNOW ALL

§ MEN BY THESE

COUNTY OF WILLIAMSON § PRESENTS

BEFORE ME, the undersigned authority on this

day personally appeared Carol Everett who is per-

sonally known to me, and after being by me first duly

sworn according to law on her oath did depose and

say that:

“My name is CAROL EVERETT. I am over

the age of eighteen (18) years of age and I am

fully competent to make this Affidavit. I re-

side in Round Rock, Texas. I have personal

knowledge of the facts stated herein and the

following is true and correct.

I know firsthand about abortion and the

abortion industry. I have been both a con-

sumer and provider. I was involved in the

operation of abortion facilities from 1977 to

1983, overseeing 35,000 abortions. I was

formerly part owner of Dallas’ largest abor-

tion chain.

Since leaving the abortion industry, I have

been committed to safeguarding the health of

women and their babies all over this nation.

I speak to the men and women who have ex-

perienced an abortion to offer a message of

healing and hope.

I formed The Heidi Group to help girls and

women in unplanned pregnancies make posi-

tive, life-affirming choices for themselves and

their babies. Our role is to connect girls and

women to the best resources available. At the

Heidi Group, we affirm the dignity and value

of girls, women, and families. It is our goal to

make sure that before a girl or a woman

walks through the door of an abortion facil-

ity, she sees the full picture of the resource

community waiting to embrace her and her

unborn baby.

My Abortion Experience

I was married, had an 8 year-old daughter

and a 10 year-old son when I found myself

pregnant again. When I excitedly told my

husband of the pregnancy, his initial reaction

was, “you'll just have to have an abortion.”

Searching for help, I went to my doctor and

told him that my husband didn’t want me to

have this baby. Without discussion, he of-

fered an illegal abortion. I was looking for

someone to tell me not to have the abortion,

but I ran into an abortion salesman. And

that is what happens in our nation today as

employees of abortion facilities may earn a

higher rate per hour or a commission for

abortion appointments completed. Every phy-

sician performs abortions on a straight com-

mission. Abortion physicians are only paid

for their services after the abortion proce-

dure is complete. Abortion physicians strive

to perform ten to twelve first trimester abor-

tions per hour, paid approximately one-third

of the total fee. Second and third trimester

abortions require more of the physician’s

time because the baby’s muscle structure is

more strongly developed and takes longer to

remove. Second and third trimester physi-

cian procedure fees are approximately fifty

percent of the total cost. A late term physi-

cian specialist strives to perform two to three

second and third trimester abortions per

hour.

When I woke from my abortion, I picked up

the telephone, and literally started working

from my hospital bed, not realizing that I

was already running from that decision. |

know first-hand the devastation of abortion —

— my life rapidly went downhill. Within a

month, I was having an affair which I had

never done before. Very soon I started drink-

ing; I had not ever drunk in my life. Shortly

thereafter, my marriage broke up.

Then I started seeing a psychiatrist daily. At

the rate of $125.00 an hour, I could not go on

with this very long. So I decided to do what I

called, “get hold of myself.” I changed every-

thing I could in my life, except my children. I

got away from the job [d had; now away

from my husband, and decided I would make

it on my own. What I'm telling you is the

story about how my life went along at a pretty

good level for a while, and the moment I had

that abortion, it went straight downhill. I

think that is what happens to every woman

who has an abortion.

Abortion is devastating to women and ba-

bies, but it also has very negative conse-

quences for fathers. My former husband now

struggles with our abortion.

The Abortion Business

10. When I did “get hold of myself”, I went to

11.

work for a man who had a medical supply

business. At about this time, abortion be-

came legal in the State of Texas, and very

soon we had a new account that was very

profitable. The medical supply company was

making thousands of dollars a month from

this one account. My employer determined to

understand exactly what sort of business

this new account was and found it to be an

abortion facility. This man who told me he

never wanted to see an abortion, never

wanted to know what an abortion really was,

opened his first abortion clinic, and soon he

had four.

All this time he kept inviting me to join him.

He said that with my daily contact with phy-

sicians, I was in a perfect position to sell

abortions for his clinics. He would pay $25

per completed abortion. I kept selling medi-

cal supplies and sold a few abortions along

the way. But the day came when I needed to

make more money. So I told him that I was

quitting my job; I wanted to go with another

company. So, he got me on the fringe of the

12.

13.

abortion industry by asking me to set up re-

ferral clinics all over Texas, Oklahoma and

Louisiana. And I did that for a while and it

was quite profitable.

Then he asked me to work ai one of the clin-

ics for a month. I immediately recognized

ways to sell more abortions. With just a very

few small changes, in one of his clinics, abor-

tions went from 190 to 195 per month to over

400 per month. Our telephone counselors

booked abortions for both the Dallas and

Fort Worth clinics. The last month I was

with him in those two clinics, he was doing

something over 800 abortions a month. I per-

sonally participated in approximately 10% of

the abortion procedures performed at the two

facilities.

In addition to other duties, I was in charge of

training employees we called “counselors.”

These counselors were not trained to counsel

a woman about her options or to provide ac-

curate, “ruthful information about an abor-

tion. Information about fetal development or

the risks of abortion was not provided. We

did not counsel our patients as to the poten-

tial physical and emotional consequences of

having an abortion. What we did could not

be considered counseling. Our people were

trained as telemarketers. We learned how to

exploit the fears of our callers. We sold abor-

tions. I believe that states should require full

and accurate informed consent counseling

and should require statistical reporting to

14.

15.

16.

compile data for accurate informed consent

forms.

The strategy of the abortion industry is to

gain the trust of young people by offering se-

crecy and promiscuity via free and inexpen-

sive birth control, and then banking on their

inevitable return when pregnancy occurs. We

deliberately prescribed low-dosage birth con-

trol to help ensure that pregnancies oc-

curred. The goal was three to five abortions

from girls between the ages of 13 and 18. The

record was nine from one girl.

It has been my experience that when a woman

or a young girl learns that she is pregnant,

she may not want an abortion. She may only

want information. The person who answers

the phone in an abortion facility is paid and

trained to be her friend. Her job is to sell her

an abortion by asking questions and leading

her to believe an abortion is her only option —

the answer to every question.

Since I had doubled his business, I asked for

an equity interest in the business. He said

no. I placed my Yellow Page ad to come out in

six months for my own abortion clinic. We

opened the first clinic. And then I opened a

second clinic in the Dallas area. We did over

500 abortions a month in those two clinics. I

was compensated at the rate of $25.00 per

case, plus one-third of the clinics, so you can

imagine what my motivation was. I sold

abortions. I had made $150,000; was on tar-

get in 1983 to make about $260,000; and my

17.

18.

19.

20.

goal when we opened our five clinics was to

complete 40,000 abortions annually. I would

have been making a million dollars a year.

Abortion is a very lucrative business. Abor-

tion facilities sell abortions. They don’t sell

keeping the baby. They don’t sell placing the

baby for adoption. The only “choice” offered

by the abortion industry is abortion.

It is becoming more lucrative with the RU-

486 regimen. These medical abortions sell

pills with minimal oversight and follow-up.

The potential of a1 RU-486 abortion is that if

the pill does not completely abort the baby,

the woman may be subjected to a second pro-

cedure — a surgical abortion in some cases for

a second full fee.

Since 2000 when the FDA approved the RU-

486 regimen, I have met with women who

have taken RU-486. They have had more

severe physical and psychological complica-

tions than women who have had surgical

abortions. For example, the physical issues

include severe hemorrhaging and pain from

RU 486. In addition, some of the most severe

post-abortion syndrome occurs because the

women actually see the baby after it is ex-

pelled.

Abortion facilities do not discuss the baby in

accurate terms. Even when the women [sic]

asks if it is a baby, abortion clinic employees

answer “no, it’s a product of conception”; “it’s

a blood clot”; “it’s a piece of tissue” They do

not tell them it’s a fetus because that almost

21.

22.

23.

humanizes it too much. It is never a baby. We

never explained that every baby had to be

reconstructed in the Centra: Supply room to

be certain all parts had been removed. If a

body part is not present, the woman may

have to return to the procedure room to com-

plete removal of the baby body parts and

thus prevent infection.

This is what causes such psychological

trauma certainly with RU-486 because the

woman sees for herself that she was lied to

and it really is a baby that she has just ex-

pelled in the toilet or shower.

They also mislead women as to what will oc-

cur. For example, women ask if it will hurt.

They say no and explain that the uterus is a

muscle and it is a cramp to open it; a cramp

to close it; it is a slight cramping sensation.

Because every woman has had cramps, they

think that is what they have experienced be-

fore. But women who have taken RU-486

state that it is severe cramping like they

have never experienced before.

I have worked with a Houston woman who

was given RU-486. Ten weeks later, she

thought she was pregnant again, but when

she went to the abortion facility she learned

she had an incomplete abortion. This time,

for a second fee, a surgical abortion was per-

formed and she was sent home with an IV in

her arm. When she called the abortion facil-

ity, she was told to meet clinic staff in a park

and they would take it out. Recognizing this

24.

was substandard medical care, the woman

went to an Emergency Room where a physi-

cian removed the IV.

Many women who had abortions at my clin-

ics had major physical complications requir-

ing hospitalization. The last 18 months I was

in the abortion business, one out of every 500

women had major surgery requiring hospi-

talization. (Hysterectomy, colostomies due to

bowel perforation and one woman bled to

death. We moved that woman from the clinic

so the staff would not be aware of the death.)

Patients were moved to hospitals by private

car — never by ambulance. (An ambulance at

an abortion facility was considered negative

advertisement.) We transported patients in

crisis in some cases more than 30 miles, but

at the very least across town to a hospital we

trusted to keep the abortion complication

admission secret. Our medical director al-

ways had a hospital that he promised his

private admissions in return for handling the

next abortion clinic emergency. If the special-

ties of other physicians were required, the

medical director called in favors from friend-

ly physicians. The patient and her needs

were secondary to the protection of the clinic

and its reputation even to the point of falsifi-

cation of the medical record. The require-

ment of admitting privileges for abortion

physicians would have forced our abortion

physicians to consider the needs of the woman

in crisis before the reputation of the abortion

clinic.

25.

26.

27.

28.

Al10

Based on my experience, I now believe that

women should have been given accurate in-

formation about the physical and emotional

consequences of abortion so that they could

make an informed decision.

Some of our abortion physicians were circuit

rider physicians, living some distance from

our clinics. They moved from abortion clinic

to abortion clinic, working for different own-

ers.

Ordinary day surgery and physician’s offices

meet the standards of Medicare in order to

be paid for services by insurance. Abortion is

a cash or credit card business, thus no need

to meet the minimum standards of quality

health care.

Based on the fact that abortion physicians

strive to perform a minimum of 10 to 12

abortions per hour, it is almost impossible to

keep surgical instruments clean and sterile.

For instance, 50 abortions are scheduled for

a day. Two abortion physicians are working

at a rate of 20 to 24 abortions an hour. The

abortion facility only has 21 sets of surgical

instruments. The physicians are each work-

ing from two rooms. The first two procedures

are completed and both physicians rush to

the next room to perform the second surgical

procedure. The instruments and the “prod-

ucts of conception” are sent to Central Sup-

ply. The technician reconstructs the babies to

be certain all body parts are removed. (If a

baby’s body part is missing, the woman may

All

be subjected to a second abortion procedure.)

The instruments are washed, placed in ster-

ile wrap and placed in a steam sterilizer. The

temperature for sterility is required to reach

270 degrees. It takes several minutes for the

temperature to be reached. After holding the

temperature at 270 degrees for 20 minutes to

sterilize instruments, it takes some time for

the steam to release. The instruments are

removed but they are far too hot to touch. By

now the technician has a stack of instru-

ments ready to go but the problem now is

that the two abortion physicians are so far

ahead of the sterilization process, it is hu-

manly impossible to keep the instruments

sterile. The unwritten protocol of the abor-

tion clinic at this point changes from com-

plete sterilization to using a product like

Cidex that is supposed to sterilize but again,

the problem of time. Now the tech must

wash instruments and leave in the steriliza-

tion product long enough to completely steri-

lize. At some point, the process is abandoned

and the technician simply must supply the

abortion physician with instruments to con-

tinue his work at 10 to 12 abortions each

hour. Instruments are washed and returned

to the line for procedures. I saw one abortion

physician use instruments straight out of the

sterilizer that were so hot, he had to use an

oven mitt to insert the dilators. That wom-

an’s cervix was surely burned, even scarred.

What sort of complications with future fer-

tility? In one of the 450 existing ambula-

tory surgical facilities in Texas, the medical

A12

industry standard requirement for surgical

sterilization of all instruments would protect

the health of women. The simple requirement

for the physician to write surgical notes be-

fore the next procedure would be a second

safety factor for the women and at the very

least would insure accurate medical records

for each patient.

29. I support the health and safety provisions of

HB 2 because ASCs have strict requirements

for cleanliness and sterilization which would

- correct the problems in abortion clinics. In

addition, having hospital admitting privi-

leges provides continuity of care when com-

plications occur for either surgical or medical

abortions.

Further Affiant sayeth not.”

/s/ Carol Everett

Carol Everett

SWORN TO AND SUBSCRIBED BEFORE ME, the un-

dersigned authority, on this 18 day of January 2016.

KAMALI KAYE _|/s/ KBarron

BARRON NOTARY PUBLIC IN

Notary Public, AND FOR THE

[SEAL] State of Texas STATE OF TEXAS

My Commission Notary Public,

Expires County, Texas

August 20, 2019 My Commission

Expires: 8/20/19

APPENDIX B

Affidavit of Dr. Noreen Johnson

STATE OF TEXAS § KNOW ALL

§ MEN BY THESE

COUNTY OF BRAZOS § PRESENTS

BEFORE ME, the undersigned authority on this

day personally appeared Noreen Johnson who is per-

sonally known to me, and after being by me first duly

sworn according to law on her oath did dispose [sic]

and say that:

“My name is Noreen Johnson. I am over the

age of eighteen (18) years of age and I am

fully competent to make this affidavit. I cur-

rently reside and practice Gynecology in

Bryan/College Station Texas. I am Board

Certified in Obstetrics and Gynecology since

1981 and a Fellow of the American College of

OB-GYN since 1983. I feel fully qualified to

make this affidavit based on my clinical

knowledge and personal experience as an ex

abortion provider. The facts stated herein are

accurate and true.

I was trained in the abortion procedure dur-

ing my Residency at MLK Hospital in Los

Angeles, California. I moonlighted in three

(3) different abortion clinics during the years

of 1979-1981, performing on a busy Saturday

up to thirty (30) abortions a day and during a

weekday up to 10 abortions. Pregnancies less

than ten (10) weeks took no more than six (6)

minutes each and ten to fourteen (10-14)

weeks up to ten (10) minutes. Patients were

told if they had a problem to go to the near-

est Emergency Room.

As we consider H.B. 2 one must recognize

that the abortion clinic is unlike other med-

ical offices where less invasive procedures

are performed and more regulations are im-

posed. Doctors seeing patients in a commun-

ity clinic adhere to a standard of care which

requires them to have hospital privileges

where they practice medicine and be availa-

ble to their patients for follow up in the event

of problems or complications. Failure to do

so constitutes abandonment. How could less

care be suggested for patients undergoing a

surgical procedure such as abortion.

An abortion can carry serious risks and com-

plications which can be immediate and life

threatening such as hemorrhagic, anesthetic

and respiratory complications. Hence the

need for these procedures to be carried out in

a professional environment with trained staff,

adequate lighting, essential equipment and

sanitary conditions. In the professional set-

ting of an ASC proper informed consent

would be customary and could include informa-

tion on abortion procedures, fetal develop-

ment, the offering of ultrasound, alternatives

to abortion, information on risks and compli-

cations of abortion including psychological

consequences and the effects of abortion on

the extended family. In an ASC post-op moni-

toring for the required time is provided and

also for extended care if needed.

Information on medical abortion should also

be made available to Patients, especially

since thirty percent (30%) of all first tri-

mester abortions are being done by medical

means in the doctor’s office. These abortions

are usually advised for pregnancies less than

seven (7) weeks, but now the envelope is be-

ing pushed to later gestational age which

makes the risk of complications greater. Dur-

ing these procedures the patient is given the

abortion pill, the most popular of these is

RU486, on the first day of the abortion. This

pill prevents the placenta from nurturing the

embryo, which dies and sets in motion the

abortion. The procedure is completed two (2)

days later when the second abortion pill is

given to cause contractions of the uterus to

abort the fetus and placenta along with

bleeding, which may last up to two (2) weeks.

The same complications as with a suction

abortion can occur later, such as bleeding, in-

fection, incomplete abortion and repeat D&C

to evacuate the uterus.

Having performed abortions myself for about

five (5) years I can attest to the nature of the

abortion industry. Doctors perform abortions

for monetary gain. It is a lucrative cash bus-

iness, a lot more lucrative nowadays than

thirty (30) years ago, since demand now out-

weighs supply. Fewer doctors are performing

abortions and abortion clinics are closing.

This is not a reputable occupation for a med-

ical professional and abortion doctors are of-

ten ostracized from mainstream medicine.

So, abortion doctors have no camaraderie

with physicians in the community where

they live and are itinerant from clinic to clin-

ic within their state and sometimes travel

out of state doing abortions. They never form

doctor-patient relationships. This serves the

patient fine because during the abortion pro-

cedure, the woman never makes eye contact

with the doctor because his is a face she never

wants to remember for the rest of her life. As

far as the doctor is concerned she is just an-

other cash ticket. As soon as he’s done with

her, it’s on to the next patient and then out

the door, accountable to no one.

7. Failure to implement and uphold H.B. 2 has

serious and detrimental effects for women

because it would (1) keep the abortion doctor

unaccountable to his patient and to the com-

munity in which he practices; (2) allow him

to provide women with substandard medical

care which places their lives in danger; and,

(3) would protect the doctor and harm the

woman.

Further Affiant sayeth not.”

/s/ Dr. Noreen Johnson

Dr. Noreen Johnson

SWORN TO AND SUBSCRIBED BEFORE ME, the un-

dersigned authority, on this 22 day of January 2016.

SHERYL ANN CONNER

MY COMMISSION

EXPIRES

June 4, 2019

/s/ Sheryl Ann Conner

NOTARY PUBLIC IN AND

FOR THE STATE OF TEXAS

Notary Public,

Brazos County Texas

My Commission Expires: 06/04/2019

[SEAL]

APPENDIX C

Affidavit of Dr. Mayra Thompson

STATE OF TEXAS § KNOW ALL

§ MEN BY THESE

COUNTY OF DALLAS § PRESENTS

BEFORE ME, the undersigned authority on this

day personally appeared Dr. Mayra Jimenez Thomp-

son who is personally known to me, and after being

by me first duly sworn according to law on her oath

did depose and say that:

“My name is Dr. Mayra Jimenez Thompson. I am

over the age of eighteen (18) years of age and |

am fully competent to make this Affidavit. I re-

side in Dallas, Texas. I have personal knowledge

of the facts stated herein and the following is

true and correct.

I have thirty-five years of experience in Obstet-

rics & Gynecology. I am board certified in obstet-

rics and gynecology and am a Fellow of the

American Congress of Obstetricians and Gyne-

cologists as well as a member of the Association

of Advanced Laparoscopic Surgeons and Ameri-

can Association of Gynecologic Laparoscopists. In

2013, I was named one of the Super Doctors in

Texas for Gynecology-Obstetrics and in 2015, as

well as previous years, was named as one of the

Best Doctors in Dallas by D Magazine.

I am a Professor of Obstetrics and Gynecology

and teach at UT Southwestern Medical Center. I

see patients at the Lowe Foundation Center for

Women’s Preventative Health Care.

Management of medical elective abortion using

the RU-486:

The FDA has approved the use of RU-486 along

with misoprostol for medical induced abortion

under a specific protocol and guidelines in an at-

tempt to improve safety issues. There is a re-

stricted use protocol which is clearly stated on

the Manufacturer’s website and the physician

must obtain certification to prescribe the medica-

tion as well as agree to obtain a patient’s written

agreement as required by the FDA.

A qualified physician must distribute and super-

vise the use of the medications as delineated by

this protocol.

The qualifications state that:

* The doctor must have the ability to date

pregnancies adequately and diagnose tubal

pregnancies.

¢ The doctor must be qualified to provide any

necessary surgery.

* The doctor must ensure that the women have

access to medical facilities for emergency

care, and must agree to other responsibili-

ties, such as dispensing the Medication

Guide and reporting adverse events.

¢ The physician and the patient must sign an

agreement regarding the gestational age

which must be no more than 49 days and the

10.

11.

12.

follow up required return office visits at day

3 and day 14 following the prescription of the

RU486.

The importance of the 3rd day is to evaluate the

patient for the addition of misoprostol which

should be given in an oral form since the use of

vaginal may be associated with severe infection

and is the only approved method of administra-

tion.

These restrictions and requirements of compli-

ance to the regimen were instituted to provide for

the safety and effectiveness of the drug(s) when

used in women for the purpose of medical in-

duced abortion.

The FDA did not allow for off-label use of the

drugs and involves a 14 day period of surveil-

lance.

Considering the strict protocol delineated by the

FDA, strict supervision and regulations need to

be in place to guarantee the safe use of this med-

ication.

The reason for strict supervision and regulations

is that there is a very high risk of hemorrhage

from a ruptured ectopic or tubal pregnancy which

could lead to death if not recognized. It makes

this a dangerous drug that must be monitored

closely.

The risk of infection and sepsis has been reported

by the FDA who stated that several of the women

who died in the United States died from sepsis

after medical abortion with RU-486 and miso-

prostol.

13.

14.

15.

The warning signs must be recognized by all the

abortion providers and they must advise the pa-

tients of the symptoms whi: i) would initiate con-

tacting the physician.

The restrictions imposed by the FDA dictates

that the use of RU-486 must be regulated by

strict guidelines, accurate record keeping with

scheduled reporting of use, complications, and

distribution with serial and lot numbers. This re-

porting should include documentation of full in-

formed consent as well as the patient agreement.

Access to emergency care by a physician must be

well established to handle the complications or

risks and the patient must understand how to ac-

cess the emergency care. This process should be

in conjunction with the procedures the manufac-

turer has in place for monitoring of the drug(s).

The FDA did not allow for off-label use of the

Mifeprex and the misoprostol for medical abor-

tion due to the above named risks that generated

the restrictions. There is to be no deviation from

the protocol in order to minimize the risk of the

dangers of the drug. This is meant for the safety

of the patient who is to receive the drugs.

Statement regarding the number of procedures

within one hour or 60 min time period:

16. In my experience, the surgical procedure involved

in a suction curettage performed in the first tri-

mester of pregnancy cannot safely be performed

in less than 20 minutes actual operating time.

18.

19.

20.

21.

This minimum of 20 minutes does not even

account for the aseptic preparation, the draping

nor the pre-op analgesic/anesthetic administra-

tion.

Current acceptable standard of care dictates a

time out with the entire team in the immediate

pre-procedure time which takes anywhere from

2-10 minutes to verify procedure, medical history,

allergies, and risks.

The safety of the patient which in this case

involves a woman, cannot be guaranteed when

multiple procedures performed by one doctor in

one sixty minute (one hour) period of time ex-

ceeds at the very minimum, three procedures.

Most physicians, who perform D and C proce-

dures in their offices (in non-pregnant patients)

allow 30 to 45 minutes per procedure. A pregnant

uterus poses more complex procedural require-

ments that could justify a longer period of time,

not less.

The pregnant uterus is much softer and more

amenable to perforation or damage and therefore

has a greater risk of hemorrhage or infection.

The aseptic environment in an ASC guards

against these risks. Considering that the surgical

abortion is a procedure with life threatening

risks, appropriate surgical protocol with aseptic

techniques, evaluation of medical risks, appro-

priate time out with the entire surgical team to

ensure patient safety and access to materials in

the event of a complication, these procedures are

best performed in an ASC. This will also guard

against too short of a time designated per proce-

dure to be performed.

H.B.2 provisions for ASCs and doctor privileg-

es at local hospitals.

22. The ASC standards provide for a follow up com-

23.

24.

munication with the patient to assess the post-

operative condition. In the event of a suspected

complication, the patient is advised on whether

or not to contact her physician. The need for on-

going doctor-patient care is provided for by these

standards so the patient is not felt to be aban-

doned. The goal of this approach, the first and

foremost one, is of patient safety. Access to the

physician who performed the abortion for ongoing

care when considering the potential complica-

tions is a must.

Abortion, whether surgical or medical (RU-486),

has physical risks including the risk of death.

This risk is at all stages of pregnancy but in-

creases with the advancing trimesters. It also in-

creases with subsequent abortions and/or

pregnancies.

These physical risks include: the immediate

physical complications include cervical injuries

and perforated uterus; acute or chronic pain; or-

gan or system failures cerebrovascular diseases,

circulatory diseases, disseminated intravascular

coagulation, amniotic fluid embolism, pulmo-

nary embolism, and adult respiratory distress

syndrome; various infections such as septic

abortion, acute renal failure from septic abortion,

autoimmune disease, endometritis, genital tract

25.

26.

27.

28.

infection, pelvic inflammatory disease, bacterial

vaginosis.

Abortion can also affect later pregnancies such as

infertility, ectopic pregnancy, placenta previa,

subsequent miscarriages, premature birth, or

law [sic] birth weight; and various cancer risks

such as breast cancer.

The follow up communication and information on

access to the physician guaranteed by the stand-

ards of the ASCs protect and benefit women

when these complications arise.

When these complications arise, it is good for the

woman to have her attending physician present

and have doctor privileges at the local hospital in

order to provide details of the care that may not

be readily available in an emergency situation

from anywhere else. Based on my medical exper-

tise and experience, I have personally seen and

heard of other physical complications that women

experience from both surgical and medical abor-

tions.

Based on my medical expertise and experience,

I can say that the safety measures provided in

H.B. 2 requiring abortions to be performed at

ASCs and doctor privileges at local hospitals are

reasonable and necessary for the health and safe-

ty of women considering an abortion.

Further Affiant sayeth not.”

/s/ Mayra J. Thompson

Mayra J. Thompson, MD, FACOG

SWORN TO AND SUBSCRIBED BEFORE ME, the un-

dersigned authority, on this 21 day of January 2016.

KATHERINE /s/ Katherine Spinks

SPINKS NOTARY PUBLIC

Notary Public, IN AND FOR THE

State of Texas STATE OF TEXAS

[SEAL] My Commission

Expires

November 05, 2017

Notary Public, Dallas

County, Texas

My Commission

Expires: 11-5-17

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