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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A58

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

a
No. 15-274

EB -2 2016

OFFIME OF THE Ci ORK

Jn The
Supreme Court of the Anited

WHOLE WOMAN’S HEALTH, &£T AL.,

Petitioners,
Vv

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

BRIEF OF LIVE ACTION
AMICUS CURIAE IN SUPPORT
OF RESPONDENTS

STEPHEN L. BRAGA

Law Office of Stephen L. Braga PLLC
3079 Woods Cove Lane

Woodbridge, VA 22192

(703) 623-2180

bragalaw@gmail.com

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................-.cccccsssessseesseees il
STATEMENT OF INTEREST .................-..cccccseeceeeseee 1
SUMMARY OF ARGUMENT ...............ccccccccesseseeeesees 3
STEIN eae ee ee Se 6

I. H.B. 2’s HEALTH PROVISIONS
ARE NOT UNNECESSARY ...............:00000 7
A. Ambulatory Surgical Centers............ 9
B. Hospital Admitting Privileges......... 14

C. The Legal Consequence of

ICE eee 22

Il. H.B. 2’s HEALTH PROVISIONS
IMPOSE NO UNDUE BURDEN. ............. 26
A. The Decision Below.......................... 28

IIT sccsivinsisiisisciccinninciessuithativninsiinnagteininsniaimiaiie 35

TABLE OF AUTHORITIES
CASES

Armour v. City of Indianapolis, Ind..,
I i I ii cciicniisicnadesinninigeianpenesinids 37

Byer v. Doe, CO El Paso City. Dist. Ct. 4th JD,
Case No. 13CV1045 (Feb. 6, 2013)................... 15

Cormier v. Karpen,
No. 93-33063 Dist. Ct. of Harris Cnty.,
Ts Sy Ee nnccnicnebsccnentesinmmnistemesceviens 18

Gonzales v. Carhart,
2 8 22, 23, 28

Gravely v. Stephens, Circuit Ct. of Kanawha
Cnty., W. Va., Civil Action No. 13C1104

EI IIIT iesstsicniacsenhipdeinipntiieiinitnineiteaibinanpiineniaaied 16
Mazurek v. Armstrong,
SEER ERNE re 24

Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833

Planned Parenthood of Wisconsin, Inc. v.
Schimel, 806 F.3d 908 (7th Cir. 2015) 22, 29, 30

Roe v. Wade,
I a 1, 3, 23

iil

Simopoulos v. Virginia,

SE ae Ge Ce ctv ecncvevcescesevencnenssscnenevens

Whalen v. Roe,

SF Ss CIR GEG UP erevenvcsencensnsiscennennensenensse

Whole Woman's Health, et al. v. Cole, et ai.,

No. 14-50928 (5th Cir. June 9, 2015)........

Williamson v. Lee Optical of Oklahoma, Inc.,

Sg 2 eee

OTHER AUTHORITIES

10 Women Who Decided To Stop Or Reverse
Their Abortion, Live Action News (Jan.

Anna Higgins, Improve Women's Health Care
with Physician Admitting Privilege
Laws, AMERICAN THINKER (August

Be cninnitstininniiennmcniiamininsnahddenepeimnemnen

Brian Lyman, State Witness: Admitting
Privileges Can Help Patients,
MONTGOMERY ADVERTISER (June 5,

Calvin Freiburger, 2 of 3 Abortion Mills in
South Carolina May Close After State
Suspends Licenses, Live Action News

es Bits CE etcencnnctnensccnssinionninnnsensinmases

iV

Carole Novielli, Georgia TV Station Uncovers
Health Violations at Multiple Abortion

Clinics, Live Action News (Dec. 14, 2015)

Cassy Fiano, Autopsy Report Points to
Planned Parenthood’s Negligence in
Tonya Reaves’ Death, Live Action News

Se Oe a,

Cassy Fiano, Carhart's Emergency Abortion
Hotline Sends Patients to Horse
Business, Live Action News (Feb. 18,

Cassy Fiano, Gosnell is not alone: Why we
need more investigations and stricter
regulations, Live Action News (Jan. 7,

IE vasvevesvesnsnnisecteensueninteiacsatnntsonyenmesimeenens

Cassy Fiano, Ohio AG: Planned Parenthood
Has Been Illegally Disposing Aborted
Babies in Landfills, Live Action News

GR, Bei Se ee ccnccnecncscesvessevsmcscsssvssensesncsnens

Danny Burton, Florida Not Backing Down in
Case Against Planned Parenthood, Live

Action News (Aug. 21, 2015)......................

Inhuman: Undercover in American’s Late-
Term Abortion Industry, Jennifer

Morbelli’s Story, Live Action .....................

a 12

Kristi Burton Brown, Planned Parenthood,
Left to Itself, Becomes Another House of
Horrors, Live Action News (Apr. 10,

ET sincseneeccnesonevenmsnneeniensemrectpnsneenammnanenseneenees

Kristi Burton Brown, Planned Parenthood
Caught Illegally Storing Aborted Babies
in Janitor’s Closet, Live Action News

ee Se ID secicsciicicrennnscnesnisdencenssiiinettedeannes

Mammosham Project: False Mammogram
Claims by Planned Parenthood, Live
Action, investigative videos dated Oct. 1,

2015 and March 29, 2011 ..............ccecseeeeees

Report of the Grand Jury, IN THE COURT
OF COMMON PLEAS FIRST
JUDICIAL DISTRICT OF
PENNSYLVANIA CRIMINAL TRIAL
DIVISION, MISC. NO. 0009901-2008,

GEpORE GUT BARES: Col q.cccccccccccccssccsccsccccesess

Sifferlin, Alexandra, Texas Abortion Bill: Is
There a Medical Case for More
Regulation of Outpatient Clinics?, TIME

SR laa LE ALR RS

State Facts About Abortion, by Guttmacher

Steve Miller, Documents Shed Light on
Woman’s Death After Abortion, CBS

CHICAGO (July 24, 2012) .......ccccccccsecsseeseeee

vi

Steven Ertelt, Autopsy Proves Planned
Parenthood Killed Woman in Botched
Abortion, LifeNews.com (Sept. 11, 2012)......... 10

STATEMENT OF INTEREST'

At the time of its decision in Roe v. Wade, 410 U.S.
113 (1973)(“Roe”), this Court acknowledged its
“awareness” of “the sensitive and emotional nature
of the abortion controversy, of the vigorous opposing
views, even among physicians, and of the deep and
seemingly absolute convictions that the subject
inspires.” Jd. at 116. In the forty-three years since
Roe, the “emotional nature” of the controversy and
its “vigorous opposing views” have not ebbed in the
slightest.

Live Action is a new media nonprofit organization
dedicated to building a culture of life and advancing
human rights. As relevant herein, Live Action is
dedicated to educating the public about the “vigorous
opposing views” surrounding abortion and the
practices of those who provide abortion services.
While Live Action seeks to protect the vulnerable
lives of the preborn through the elimination of
abortion, it also seeks to further the health and
safety of the women who nonetheless decide to have
an abortion. As the theme of this year’s March For
Life put it: “To be pro-life is to be pro-woman.”

Live Action uses investigative journalism, factual
research and data analysis to prepare such
information for dissemination to the public. Because
of Live Action’s undercover investigative work, it has

1 Counsel for both parties have consented to the filing of
this brief. No counsel for a party authored this brief in
whole or in part, and no person other than Amicus or its
counsel made any monetary contribution to the preparation
or the submission of this brief.

a unique "inside" perspective into abortion facilities.
For example, Live Action’s video footage shows
facility workers repeatedly lying to women about:

¢ how developed their babies are and
whether or not the preborn can feel pain

during an abortion
Jiwww.youtube.com/watch?v=Q04-
12cm > and

¢ the potential complications of
abortionprocedures and whether the facility
had previous abortion-induced emergencies
that sent clients to the emergency room

(https://www.youtube.com/watch?v=pSoPys6
KyblI)

Live Action investigations also found abortionists:

* trying to cover up sex crimes committed
against minors by offering to provide
abortions and not alert law enforcement, as
legally required
(https:/iveaction.org/monalisa/);

® promoting sex-selective abortions
(https:/liveaction.org/gendercide/); and

* admitting that they would break the law
by refusing to perform mandatory life-saving
procedures on babies born alive from botched
abortions (http:/liveaction.org/inhuman
/investigation-2-washington-d-c/).

Live Action’s investigations revealed examples of
these types of violations at multiple facilities, fairly
demonstrating repeated questionable and unethical]
conduct. Such behavior shows that the abortion
industry regularly puts its own interests above those
of its patients as well as the law. When it comes to
health and safety standards, these practices can
have literally deadly consequences.

Live Action was founded in 2003 by then fifteen
year-old Californian Lila Rose. A core mission of
Live Action is to speak for those - born and preborn -
whose voices might not otherwise be heard in this
“sensitive and emotional” controversy, on precisely
these types of issues. On behalf of its many
constituents nationwide, it is a privilege for Live
Action to speak on their behalf to this Court as well.

SUMMARY OF ARGUMENT

Roe and its progeny have always recognized the
right of states to regulate aspects of abortion
practice. A woman’s “right” to have an abortion “is
not absolute, and is subject to some limitations; and

at some point, the state interests as to protection
of health, medical standards, and prenatal life,
become dominant.” Roe at 155-156. Or, as the
Court’s Joint Opinion by Justices O’Connor,
Kennedy and Souter in Casey, put it perhaps best:
“the State has legitimate interests from the outset of
the pregnancy in protecting the health of the woman
and the life of the fetus that may become a child.”
Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 846 (1992)(“Casey”).

In furtherance of these state interests, in July 2013,
“the State of Texas passed H.B. 2, which contained
various provisions relating to abortion.” Whole
Woman’s Health, et al. v. Cole, et al., No. 14-50928,
Mem. Op. 1, 18 (5th Cir. June 9, 2015)(“Cole”). One
provision “requires a physician performing an
abortion to have admitting privileges at a hospital
within thirty miles of the location where the abortion
is performed (the ‘admitting privileges
requirement’).” Jd. A “second provision requires all
abortion clinics to comply with standards set for
ambulatory surgical centers (the ‘ASC
requirement’).” Jd. Both of these provisions were
added to the Texas Health & Safety Code for the
stated purpose of “rais[ing] the standard and quality
of care for women seeking abortions and

protect(ing] the health and welfare of women seeking
abortions.” Jd.

Before this Court, Petitioners attack these provisions
of H.B. 2 as “failing to advance the State’s interest in
promoting health - or any other valid interest.”
Petition For Writ Of Certiorari at i.2 This is an
“absolute” position. Petitioners do not claim that
H.B. 2 fails to advance the State’s interests enough;
rather they claim that it fails to advance these state
interests at all. This absolute position is, however,
absolutely wrong.

There are many reported incidents, some compiled
by Live Action and detailed herein, of woeful

2 The unidentified “other” interest, as Casey recognized, is
the life growing inside the pregnant woman seeking an
abortion. This is not just “any other” interest, as Petitioners
attempt to downplay it.

abortion facility health failures across the country.
Health and safety regulations have been repeatedly
violated, as have proper health and safety practices.
The health - indeed the very lives - of women have
been repeatedly compromised as a result. These
incidents show a real world need for greater health
and safety protections in abortion practice. There is,
thus, a self-evident advancement of the state’s
interests through the enactment of statutes
providing such protections like H.B. 2.

In view of the documented record of these repeated
health and safety difficulties in the abortion
industry, it appears disingenuous for the abortion
providers to maintain their absolutist position that
statutory provisions like those in H.B. 2 completely
fail to advance any state interest in promoting
health. It seems insincere to claim that such
statutory provisions are wholly unnecessary, because
women’s health during abortions is somehow already
perfectly protected. It is nothing new for the
abortion industry to take such self-serving positions
to justify its actions on points of criticism, especially
its own health and safety record.

The true national health and safety record of the
abortion industry amply justifies the State of Texas’
desire to “raise the standard and quality of care for
women seeking abortions and to protect the health
and welfare of women seeking abortions” through
the enactment of H.B. 2. There is nothing
illegitimate about such a well-grounded decision,
and this Court is in no position otherwise to second-
guess the reasons for its enactment. Such legislative
determinations by the elected representatives of a

State’s citizenry are entitled to deference, even if
others might disagree with them. The decision
below upholding the State of Texas’ enactment of
H.B. 2 should be affirmed.

ARGUMENT

Because the subject matter of this case is abortion, it
has generated great interest. However, the case is
actually quite straightforward, and its resolution is
controlled by existing precedent. In the Joint
Opinion for the Court in Casey, this Court held that
pre-viability “[rjegulations designed to foster the
health of a woman seeking an abortion are valid if
they do not constitute an undue burden.” Casey at
877 The Court then further explained that: “As
with any medical procedure, the State may enact
regulations to further the health or safety of a
woman seeking an abortion. Unnecessary health
regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking
an abortion impose an undue burden on the right.”

Id. at 878 (emphasis added). H.B. 2 creates no such
“substantial obstacle.”

I.

H.B. 2’s HEALTH PROVISIONS ARE NOT
UNNECESSARY

We live in an uncertain world. As a result, we can
expect emergencies to occur at abortion facilities.
We can also expect medical malpractice and other
negligence to happen at those facilities. And
unfortunately, if the past is prologue, we can expect
criminal misconduct in some facilities as well. Each
time such events re-occur, the health of women
undergoing an abortion in those facilities is put in
jeopardy. Some pregnant women have even lost
their lives when abortion facilities have been unable
to address these situations adequately.

For present purposes, there are two aspects to this
problem: 1) the availability of proper surgical
conditions and equipment at abortion facilities; and
2) the continuity of information and care for patients
who have to be transferred from the facility to a
hospital because of their condition. The ASC
requirement of H.B. 2 addresses the first aspect,’
while the “admitting privileges” requirement

8 The petitioners’ expert below opined that “the ASC’s
requirement’s construction standards were ‘largely aimed at
maintaining a sterile operating environment.” Cole at 22 n.
17. The State’s expert testified “that the sterile
environment of an ASC was medically beneficial because
surgical abortion involves invasive entry into the uterus,
which is sterile. Accordingly, the State’s expert opined that
abortion procedures should ‘be performed in an ASC where
the higher standard of care is required so as to better
protect the patient’s health and safety.” Id. at 22.

addresses the second.‘

The case of Kermit Gosnell provides a horrifying
example of both risks that pregnant women seeking
an abortion can suffer. As a Pennsylvania grand
jury concluded, the inadequate conditions at
Gosnell’s abortion facility combined with his refusal
to cooperate with the local hospital led to the death
of his patient, Nepalese refugee Karnamaya Mongar:

Office workers had her sign various forms
that she could not read, and then began
doping her up. She received repeated
unmonitored, unrecorded intravenous
injections of Demerol, a sedative seldom used
in recent years because of its dangers. ...

After several hours, Mrs. Mongar simply
stopped breathing. When employees finally
noticed, Gosnell was called in and briefly
attempted to give CPR. He couldn’t use the
defibrillator (it was broken); nor did he
administer emergency medications that
might have restarted her heart. After further
crucial delay, paramedics finally arrived, but
first the clinic staff hooked up machinery

‘ As the State’s expert testified below, “the physician
performing the abortion ‘is the most knowledgeable about
the procedure and the patient,’ whereas an emergency room
‘physician has no prior relationship with the abortion
patient and is unfamiliar with her medical history and
preferences.’ Thus, it was the State’s expert’s opinion that
the admitting privileges requirement would lead to greater
continuity of care, increased quality of care, and fewer risks
from complications.” Cole at 23 n. 19.

and rearranged Mongar’s body to make it
look like they had been in the midst of a
routine, safe abortion procedure.

Even then, there might have been some slim
hope of reviving Mrs. Mongar. The
paramedics were able to generate a weak
pulse. But, because of the [narrow] cluttered
hallways and the padlocked emergency door,
it took them over twenty minutes just to find
a way to get her out of the building.

Doctors at the hospital managed to keep her
heart beating, but they never knew what
they were trying to treat, because Gosnell
and his staff lied about how much anesthesia
they had given, and who had given it.5

A. Ambulatory Surgical Centers

True Stories: Regrettably, Gosnell’s case is not the
only example of unconscionable harm befalling
women patients in abortion facilities due to lack of
adequate medical conditions. On July 20, 2012,
twenty four-year-old Tonya Reaves began bleeding
shortly after her 11 a.m. abortion at a Planned
Parenthood abortion facility in Chicago. Twelve

5 Report of the Grand Jury, IN THE COURT OF COMMON
PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION, MISC. NO. 0009901-2008,

psn ee an ee
Tict: dical pdf (pp. 7-
8)).

6 Steve Miller, Documents Shed Light on Woman’s Death
After Abortion, CBS CHICAGO (July 24, 2012)(found at:,

10

hours later, Tonya died at a nearby hospital.? The
Medical Examiner’s autopsy report revealed that
pieces of placenta were still attached to the inside of
her womb and that an extensive uterine perforation
caused her enormous internal bleeding. Tonya had
languished for over five hours (from 11 a.m. to 4:30
p.m.) at the abortion clinic before being taken to a
hospital, where her treatment by the trauma team
came too late to save her life. An examination of
phone records indicates that no 911 call was ever
made from the abortion facility for emergency
assistance to Tonya.!°

A Live Action investigative report in 2012 revealed
that, at Planned Parenthood facilities alone, there
had been fourteen cases of serious medical
emergencies within the prior twenty-four months.
See https//www.youtube.com/watch?v=pSoPys6Kyb!
(LiveActionAdvocate.org). To make matters even
worse, the investigative report also details Planned
Parenthood personnel refusing to disclose those
emergencies to women asking about the health and

" Cassy Fiano, Autopey Report Points to Planned
Parenthood’s Negligence in Tonya Reaves’ Death, LIVE
— oan ty po. arene at:

9 Id.
10 Steven Ertelt, Autopsy Proves Planned Parenthood Killed
Woman in Botched Abortion, LifeNews.com (Sept. 11, ann2)

ll

safety risks and record during abortions at those
very same clinics. The report also reveals one
Planned Parenthood facility in Virginia Beach
directing an ambulance responding to its 911 call to
drive around to the back door of the clinic -
presumably so no one would see it.

This record of abortion facility emergencies and
dishonesty is frightening.'! Planned Parenthood
holds itself out as running state-of-the-art abortion
facilities. One can only wonder then what kinds of
emergencies are happening without disclosure at the
lesser known clinics, like Gosnell’s “house of
horrors.” Every woman expects and deserves better
treatment than this.

Regulatory Compliance: Recent investigations in
Delaware, Florida, South Carolina and Georgia have
all found violations of state law licensing and/or
health requirements. See (Delaware) Kristi Burton
Brown, Planned Parenthood, Left to Itself, Becomes
Another House of Horrors, Live Action News (Apr.

10, 2013Xfound at: http //bveactionnews.org/

(Florida) — Burton, Florida

11 In its Mammosham Investigation, Live Action found
Planned Parenthood facilities around the nation admitting
that they did not provide mammograms, despite the public
claim of Planned Parenthood CEO Cecile Richards that
Planned Parenthood did provide mammograms to women.
See Mammosham Project: False Mammogram Claims by
Planned Parenthood, Live Action, investigative videos dated
_ 1, — _— poe

12

Not Backing Down in Case Against Planned
ee Live Action News (Aug. 21, aceshauns

cmalendanndiengalimens of illegal
second trimester abortions); (South Carolina) Calvin
Freiburger, 2 of 3 Abortion Mills in South Carolina
May Close After State Suspends Licenses, Live Action
News (Sept. 11, 2015 found

sible lommatmons TETaBNee Planned
Parenthood, health inspectors found 21 violations,
including expired medications, incomplete records,
improper disposal of infectious waste, and
noncompliance with the Women’s Right to Know Act,
which imposes a 24-hour waiting period, along with
information on fetal development and ultrasound
services, before abortion); (Georgia) Carole Novielli,
Georgia TV Station Uncovers Health Violations at
Multiple Abortion Clinics, Live Action News (Dec.

14, ee a nite Acnesten ORES ARMAS

——

Even in Pennsylvania, which increased its
inspections of abortion facilities after the Gosnell
tragedy detailed above, two other facilities remain
open which have been in and out of compliance with
state law for years. The violations at those clinics
include: failure to perform required tests on women
prior to abortions, no emergency call system in the
operating room or recovery area, lack of appropriate
electrical testing, the combining of clean and soiled
work areas, failure to complete the required
background checks on its employees who worked

13

directly with children, failure to comply with state
law regarding potentially abused minors, the
discarding of standard practice for decontamination
of surgical instruments in favor of Planned
Parenthood’s own standards, and the storage of
aborted babies in a janitor’s closet. See Kristi
Burton Brown, Planned Parenthood Caught Illegally
Storing Aborted Babies in Janitor’s Closet, Live
Action News Grew. 20, are seanaer ye at:

The examples above are just a few of the many. See
generally Cassy Fiano, Gosnell is not alone: Why we
need more investigations and stricter regulations,
Live Action News (Jan. 7, 2016)(found at:
http//liveactionnews.org/gosnell-not-alone-need-
investigations-stricter-regulations/). To say that the
abortion industry is poor at self-regulation is an
understatement; it is completely incompetent at
doing so.

Medical opinion: Respected medical professionals
have spoken out on the rationality of ASC standards
for abortion facilities. Dr. Geoffrey Keyes, President
of the American Association for Accreditation of
Ambulatory Surgery Facilities explains that

12 While the storage of aborted babies in a janitor’s closet is
admittedly shocking to think about, it is regrettably on par
with other recent stories reported concerning the disposal of
aborted fetuses at a landfill in Ohio. See e.g., Cassy Fiano,
Ohio AG: Planned Parenthood Has Been Illegally Disposing
Aborted Babies in Landfills, Live Action News (Dec. 11,

cane eyo at: tenye w ye

14

appropriate medical care for patients is the central
issue.

The argument on one side is that people who
are demanding licensing and accreditation
are anti-abortion. Those who don’t want it,
are pro-abortion. I don’t think that’s the
issue....There is nothing wrong with having
standards to adhere to when you are
performing procedures on patients.

See Sifferlin, Alexandra, Texas Abortion Bill: Is
There a Medical Case for More Regulation of
ae Clinics?, TIME (July 3, a at:

Speaking generally about ASC standards, Dr. Robert
Glatter, an emergency medicine physician at Lenox
Hill Hospital in New York told TIME:

Although there is added cost for the setup
and accreditation of such facilities, it
protects both physicians as well as patients,
and thus creates standards for care and
safety. Without strict regulation, oversight,
and minimum standards, patients can be at
risk for adverse outcomes.

The elimination of such risks, of course, is the
paradigmatic Hippocratic goal.

B. Hospi ilege

True Stories: While hospitals may well treat women
regardless of the abortionists’ admitting privileges,

15

without these privileges, the continuity of care is
damaged and women’s lives are at risk as emergency
room doctors spend valuable time trying to piece
together a life-threatening medical situation. The
woman is the one who suffers from the lack of
continuity which can cause such inadequate care.

In 2013, two women from Colorado and West
Virginia filed complaints based on the dangerous
treatment they received at abortion facilities.
Though the cases were dismissed on legal grounds,
what both women suffered through was horrific.

40-year old Ayanna Byer, sued Planned Parenthood
in Colorado after a botched abortion which she tried
to halt after realizing that she had not received any
anesthesia for the surgical abortion. But the doctor
proceeded against her wishes. Several days later
she arrived at the emergency room with extreme
pain and bleeding due to fetal tissue that had been
left inside her uterus.!° The physician on call for the
emergency room wrote an appropriately scathing
certified review following the high risk emergency
surgery he had to perform on Ms. Byer:"4

It is not acceptable to refer your patients to
the emergency department and assume the
on-call doctor will take care of any

13 See Complaint in Byer v. Doe, CO El Paso City. Dist. Ct.
4th JD, Case - 13CV 1045 (Feb. 6, veer ens at:

M Certified Review by Steven A. Foley, M.D. bios Doe,
CO E] Paso Cty. Dist. Ct. 4th JD, Case No. 13CV1045 (Feb.

6, 2013Xfound at: http/www.adfmedia.org/ files/ByerFoley
Statement.pdf).

16

complications and assume all the risk
associated with the complications.

No practicing physician can maintain
privileges to practice and perform surgery if
they do not provide specific coverage for their
patients in case of a complication. It is
considered abandonment of your patient.

Itai Gravely underwent a botched abortion that left
her in severe pain and bleeding. Her complaint'5
states that more than three hours passed from the
time she called an ambulance to the time emergency
room doctors were able to determine that her 13-
week-old baby’s skull had been left inside her body -
a fact which her abortionist presumably knew and
should have shared with the ER doctors at the
outset.

Surely it is rational for the state to insist that
abortionists stop abandoning their patients at the
moment of danger and possible death, and to
determine that continuity of care is essential to the
safety of women.!® The course of a woman’s
treatment may be very different if the person who

15 See Complaint in Gravely v. Stephens, Circuit Ct. of
Kanawha Cnty., W. Va., Civil Action No. 13C1104 (June 7,

2013)found at: http//www.adfmedia.org/files/
GravelyComplaint.pdf).

16 Cf. Casey at 885 (“Our cases reflect the fact that the
Constitution gives the States broad latitude to decide that
particular functions may be performed only by licensed
professionals, even if an objective assessment might suggest
that those same tasks could be performed by others. See
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483
(1955)”).

17

just performed her abortion is involved. The
information an abortionist can provide could be life-
saving, especially in cases where time is of the
essence.

The February 7, 2013 death of Jennifer Morbelli, a
29 year-old schoolteacher from White Plains, New
York may be the most tragic example of the danger
women are put in when an abortionist has no
admitting privileges. Abortionist LeRoy Carhart
instructed his patients to call him if they
experienced complications instead of telling them to
go to an emergency room immediately.'’? This is
what happened when Morbelli’s family tried to call
Carhart:

By Thursday [after her abortion was
complete], Jennifer was experiencing chest
pains. The family tried repeatedly to reach
“circuit abortionist” Dr. Carhart, who was
unavailable... Jennifer’s condition
deteriorated so much that at 5:00 am, her
mother...chauffeured her again...to Shady
Grove Adventist Hospital in Rockville,
Maryland.

17 See Cassy Fiano, Carhart's Emergency Abortion Hotline
Sends Patients to Horse Business, Live Action News (Feb.

18, 2013Xfound at: oo ee agree ey

er mee am of Carhart' 8 tasteustions Guten: "If. you feel
that something is wrong and you need to be seen do not go
to the ER, call and we will meet you at the clinic.”
(Emphasis added). One of the staff is identified as Carhart’s
wife “Mary” and the phone number to call was to their
“horse equipment business").

18

As Jennifer’s life was slipping away, LeRoy
Carhart was called but was unavailable to
provide “informational assistance” to medical
personnel. ... [A]mniotic fluid in her
womb spilled into her bloodstream, making it
impossible for her blood to clot. Jennifer
coded six times before dying. Carhart did
eventually check in by phone, but he failed to
make it to the hospital before Jennifer died.

Inhuman: Undercover in American’s Late-Term
Abortion Industry, Jennifer Morbelli’s Story, LIVE

ACTION (found at: https://liveaction.org/inhuman/
jennifer-morbellis-story/).

Pregnant women are not the unly ones who face risk
when an abortionist refuses to cooperate with a
hospital, sometimes their babies do as well. In
Cormier v. Karpen, patient Cormier asserted that
Karpen refused to refer her to a hospital when she
changed her mind and wanted to reverse her
abortion. See Plaintiffs Original Petition, Cormier v.
Karpen, No. 93-33063, Dist. Ct. of Harris Cnty., Tex.,

152nd Jud. Dist. (found at: http://operationrescue.

org/pdfs/Nicholette.pdf). Cormier ultimately went to
a hospital despite Karpen’s refusal to refer her. She

delivered a living 1 lb. 13 oz. baby girl who she
named Ashley.!®

18 Women can and do change their minds about abortions,
even at the last minute like Ashley Cormier’s mother did.
See 10 Women Who Decided To Stop Or Reverse Their
Abertion, Live — News —e ae at:

about-their-abortion/). When this — Cc“ ensuring
the health and safety of the preborn lives those women are

19

Little Ashley Cormier was born and experienced life
outside the womb because her mother was able to
get to a hospital for care beyond that being
“provided” by her abortionist. She is not the only
one. In 2015, Melissa Ohden testified before
Congress about how she also survived a botched
abortion as an infant because she was able to be

cared for in a hospital. See http://Ajudiciary. house.
-47 2- 57-

cammaiien of Ashley _— Melissa, and who knows how
many unreported others, testify to the importance of
effective hospital care for women who experience
abortion malpractice, both for themselves and for the
precious lives within them.12

carrying also becomes a paramount state interest, as this
Court recognized in Casey.

19 Although this case is primarily about the woman abortion
patient’s health and safety, it is also an indisputable fact
that - for a variety of reasons - some babies are born alive in
abortion facilities. The health and safety of those babies
must therefore be taken into account as well. Live Action’s
investigations have uncovered numerous instances where
abortion providers have exhibited complete disregard for
their health care obligations to babies born alive in abortion
facilities. Live Action’s “Inhuman” investigation
(Documented here: http-/Miveaction org/inhuman/) related
the story of “Angele,” who gave birth to her living son in an
abortion facility's bathroom in Florida. Since the baby had
survived the abortion, the clinic locked mother and son in
the bathroom, and attempted to bar ambulance workers,
called by “Angele’s” friend, from entering. Baby Rowan died.
ae from the Inhuman Fact Sheet

an seein facility i in Phoenix, oo :

20

Medical opinion: Medical experts and doctors have
also testified in court that requiring physician
admitting privileges helps to ensure that women
receive better care. For example, Dr. Geoffrey
Keyes, president of the American Association for
Accreditation of Ambulatory Surgical Facilities
(AAAA-SPF), testified in Alabama that his
organization “would not look favorably” on abortion
facilities and doctors where “[t]here's no continuity
of care, no credentialing of physicians in the
community.”2° As a Report of a Joint Commission of
many of the nation’s leading hospitals, including
Johns Hopkins, Mayo Clinic and New York
Presbyterian - “80 percent of serious medical errors

Finally, and most shockingly, both Dr. Mercer and
“Linda,” the clinic counselor, assure our investigator
that they will not resuscitate” if her baby is born
alive. In fact, Dr. Mercer tells her not to go to the
hospital if she starts to deliver a live baby because
“emergency room physicians would treat you as
though you were someone with a desired pregnancy...
they would intervene.” The abortion clinic, however,
would “absolutely not” try to save the baby. The
counselor admits that babies have been born alive
after abortions at this clinic. Our investigator then
asks, “So you would just let it die on its own if it was
whole and breathing?” “Mm-hm, mm-hm. They will
not resuscitate.”

20 Brian Lyman, State Witness: Admitting Privileges Can

Help Patients, MONTGOMERY ADVERTISER (June 5,

2014)(found at: htpufrere montgomervadvertiser.com/

21

involve miscommunication between caregivers when
patients are transferred or handed off.”?!

Similarly, Dr. John Thorp, a board certified Ob/Gyn,
noted that common-sense admitting privilege
requirements allow for more thorough evaluation of
the competency of doctors, ensure vital continuity of
care for patients, facilitate better communication
between doctors and hospitals regarding patient
information and potential complications, and
validate important ethical considerations by
preventing patient abandonment. In his view,
“(s]uch tremendous benefits for the health and safety
of women should compel every state to enact
physician-admitting requirements.” See n. 21 supra.
Dr. Thorp also cited analysis and statistics noting
that “73 percent of ERs nationwide _ilack adequate
on-call coverage by specialist physicians, including
Ob/Gyns. Thus, requiring abortion providers to
obtain admitting privileges will reduce the delay in
treatment and decrease health risk for abortion
patients with critical complications.” Jd.?2

21 Anna Higgins, Improve Women's Health Care with
Physician Admitting Privilege Laws, AMERICAN
—— — - ne at:

#ixzz3yrlgXNHQ).
22 The wisdom of hospital admission privileges has been

ized outside the abortion arena as well. On August 29,
2014, NBC News Chief Medical Editor, Dr. Nancy
Snyderman, spoke out about the hospitalization of comedian
Joan Rivers (who died after emergency complications from
reer enn Rpm «dl Benen — — Report:

22

C. The Legal Consequence Of Uncertainty

Petitioners contend, as a 2-1 Seventh Circuit panel
apparently accepted in Planned Parenthood of
Wisconsin, Inc. v. Schimel, 806 F.3d 908 (7th Cir.
2015X“Schime!”), that H.B. 2’s ASC and admitting
privileges provisions do nothing to advance the
protection of women’s health and safety or any other
state interest. This is a theoretical position,
necessarily based on the premise that if things go as
planned, then ambulatory surgical centers and
hospital admitting privileges theoretically add
nothing to the safe practice of abortion. As the
factual examples and medical opinions recounted
above all too readily reveal, events do not always
unfold as they should in abortion facilities and
medical emergencies do indeed arise. The
Petitioners’ certainty that nothing could or does go
medically wrong at abortion facilities is a self-
serving fantasy, as Karnamaya Mongar’s experience
proves all too well.

Once this uncertainty is recognized then, as the
Fifth Circuit properly found, this Court’s holding in
Gonzales v. Carhart, 550 U.S. 124 (2007) becomes
central: “The Court has given state and federal

“The really important thing here is that every time
you think you’re going to have a procedure, no matter
how minor, you have to constantly remind yourself
that although these things are rare, they can happen.
And one more thing I should say, make sure your
doctor has admitting privileges to the local hospital,
because in this case it may well have saved Joan
Rivers’ life.”

23

legislatures wide discretion to pass legislation in
areas where there is medical and scientific
uncertainty. Medical uncertainty does not
foreclose the exercise of legislative power in the
abortion context any more than it does in other
contexts.” Cole at 16 (quoting Gonzales). Legislative
bodies are more appropriately equipped than courts
for dealing with society's solutions to an uncertain
world, as well as being politically accountable for
them. See Gonzales, 550 U.S. at 166 (“considerations
of marginal safety, including the balance of risks, are
within the legislative competence”).

This Court noted in Roe, “the State has a legitimate
interest in seeing to it that abortion, like any other
medical procedure, is performed under
circumstances that insure maximum safety for the
patient.” Roe at 150 (emphasis added). That is
precisely what H.B. 2 endeavors to ensure. By
increasing ambulatory surgical center requirements
and imposing hospital admitting privileges, the
Texas Legislature was plainly trying to raise the
ceiling for women’s health care during abortion,
rather than preserving the floor for such care. Such
a choice between medical advancement and the
status quo has always been viewed as the State’s
decision to make. Cf. Whalen v. Roe, 429 U.S. 589,
603 (1977)(practice of medicine has always been
subject to reasonable licensing and regulation by the
State).

In light of the foregoing, petitioners’ claim that H.B.
2 was enacted for the unexpressed purpose of
blocking abortions rings especially hollow. As the
Fifth Circuit recognized, this Court’s own precedents

24

in Mazurek and Casey “squarely foreclose” this
argument:

Respondents claim in this Court that the
Montana law must have had an invalid
purpose because all health evidence
contradicts the claim that there is ery health
basis for the law. But this line of
argument is squarely foreclosed by Casey
itself. In the course of upholding the
physician-only requirement at issue in that
case, we emphasized that ‘(oJur cases reflect
the fact that the Constitution gives the
States broad latitude to decide that
particular functions may be performed only
by licensed professionals, even if an objective
assessment might suggest that those same
tasks could be performed by others.’

Cole at 14 (quoting Mazurek v. Armstrong, 520 U.S.
968, 973 (1997)).

As a matter of law, therefore, Texas must be found to
have enacted H.B. 2 for its stated reason of “rais[ing]
the standard and quality of care for women seeking
abortions and _protect([ing] the health and welfare
of women seeking abortions.” As both courts below
found: “both the admitting privileges and ASC
requirements [are] rationally related to a legitimate
state interest.” Cole at 31. And as a matter of fact,
H.B. 2 has already had a positive impact protecting
women seeking abortions in Texas.

Douglas Karpen is a Houston abortionist who
stopped practicing because of his inability to comply

25

with by H.B. 2’s admission privileges requirement.
Karpen’s dangerous practices not only endangered
women, but they also cost the lives of preborn
children. A video located at this link
(http://liveaction.org/inhuman/ gosnell-is-not-alone-
douglas-karpen-houston-tx/) shows three
whistleblowers from Karpen’s abortion facility
exposing the barbarity and complete lack of basic
humanity and safety, including the killing of babies
who were born alive and who may have survived if
medical care were provided. As Live Action reported:

Karpen’s former assistants accused the
abortionist of committing abortions after the
Texas limit of 24 weeks’ gestation and killing
“three to four” born-alive babies a day by
cutting their spinal cords, forcing
instruments into the soft spots of their

heads, or even twisting their heads off their
necks.

The former assistants recalled the infants’
little torsos rising and falling with each
breath: “It was still alive because it was still
moving and you could see the stomach
breathing.” Karpen would then “force [the
instrument] through the stomach.” ...

“Sometimes he couldn’t get the fetus [sic] out

he would yank pieces - piece by piece ”
said Deborah Edge, who assisted Karpen
during abortions. “And I’m talking about the
whole floor dirty. I'm talking about me
drenched in blood.”

26

Edge also described “several occasions” of
women going into labor after Karpen
inserted too many laminaria, quickly
widening the cervix. “Sometimes they would
get to the clinic and they wouldn’t make it to
the OR room [sic] because they’re in a line

and on some occasions we had women that
were - um, the fetus [sic] were falling into
the toilet.”

Karpen’s former assistants also accused him
of “ripping the uterus and not letting the
patients know, trying to stitch them back
together and send them back home with the
package of gauze _—i but never telling the
woman, Hey, I ripped your cervix.”

The State of Texas and the women of Texas seeking
abortions are all certainly better off without Karpen.

Il.

H.B. 2’s HEALTH PROVISIONS IMPOSE NO
UNDUE BURDEN

“Regulations designed to foster the health of a
woman seeking an abortion are valid if they do not
constitute an undue burden.” Casey at 877. “The
very notion that the State has a substantial interest
in potential life leads to the conclusion that not all
regulations must be deemed unwarranted. Not all
burdens on the right to decide whether to terminate
a pregnancy will be undue. In our view, the undue
burden standard is the appropriate means of

27

reconciling the State's interest with the woman's
constitutionally protected liberty.” Jd. “As with any
medical procedure, the State may enact regulations
to further the health or safety of a woman seeking

an abortion. Unnecessary health regulations that
have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an

undue burden on the right.” Jd. at 878 (emphases
added).

The Joint Opinion in Casey also provided clear
examples of what did not constitute a “substantial
obstacle” under the foregoing test. For example,
with respect to the waiting period before it, the
Casey Court wrote: “We do not doubt that, as the
District Court held, the waiting period has the effect
of "increasing the cost and risk of delay of abortions,"
but the District Court did not conclude that the
increased costs and potential delays amount to
substantial obstacles.” Casey at 886 (citation
omitted). Similarly, then-Chief Justice Rehnquist
recognized in his separate opinion in Casey:
“Petitioners are correct that such a provision will
result in delays for some women that might not
otherwise exist, therefore placing a burden on their
liberty. Put the provision in no way prohibits
abortions ....” Casey at 944, 969 (Rehnquist, J.,
concurring in part, dissenting in part). The Joint
Opinion also went into even greater detail:

As our jurisprudence relating to all liberties
save perhaps abortion has recognized, not
every law which makes a right more difficult
to exercise is, ipso facto, an infringement of
that right. An example clarifies the point.

28

We have held that not every ballot access
limitation amounts to an infringement of the
right to vote. Rather, the States are granted
substantial flexibility in establishing the
framework within which voters choose the
candidates for whom they wish to vote. The
abortion right is similar. Numerous forms of
state regulation might have the incidental
effect of increasing the cost or decreasing the
availability of medical care, whether for
abortion or any other medical procedure. The
fact that a law which serves a valid purpose,
one not designed to strike at the right itself,
has the incidental effect of making it more
difficult or more expensive to procure an
abortion cannot be enough to invalidate it.

Casey at 873-874 (emphasis added; citations
omitted). In sum, incidental effects of making
abortions more difficult, more expensive and/or more
time-consuming to obtain are NOT the types of
“substantial obstacles” that constitute an “undue
burden” according to this Court’s precedents.”

e i WwW

After reviewing the testimony and evidence from the
district court, the Fifth Circuit largely ruled for the
Respondents and correctly reversed the district
court’s decision to enjoin certain of H.B. 2’s
provisions. Following the logic of this Court’s

23 See also Gonzales v. Carhart, supra (holding that a
federal law criminalizing partial-birth abortion did not
violate Casey because it did not impose an "undue burden").

29

decision in Casey, the Fifth Circuit found that the
law furthered the legitimate state purpose of
protecting pregnant women’s health and that the
“incidental” effects of complying with the law did not
constitute substantial obstacles to women procuring
abortions. The Fifth Circuit’s decision also to afford
Petitioners some limited relief below amply
evidences the great care that Court took in resolving
this sensitive case.

ASCs: Because a surgical abortion is typically an
outpatient procedure, the Texas Legislature
intended for H.B. 2 to bring abortion facilities under
the umbrella of ambulatory surgical treatment
centers (“ASCs”), which are the types of facilities
that offer general outpatient surgeries in the state.
The ASC requirements include provisions ranging
from placing a liquid or foam dispenser at each hand
washing facility to physical plant requirements
involving fire safety mechanisms and plumbing. Cole
at 19, 22. This is precisely the kind of legislation
this Court had in mind in Simopoulos v. Virginia
when it held that “[i]n view of its interest in
protecting the health of its citizens, the State
necessarily has considerable discretion in
determining standards for the licensing of medical
facilities.” 462 U.S. 506, 516 (1983).

Despite the teachings of Casey and Simopoulos, the
Seventh Circuit recently held that legislatures may
enact such requirements “in the name of protecting
the health of women who have abortions, yet as in
this case the specific measures they support may do
little or nothing for health, but rather strew
impediments to abortion.” Schimel at 921. In

30

reaching that conclusion, the Seventh Circuit cited
the lack of evidence of complications from abortion
for concluding that the legislature must have hidden
its true intent of ending abortion under the guise of
promoting women’s health. But as demonstrated
above, there is ample evidence that complications
from abortions are significant health problems in the
real world. When abortion facilities do not meet
sensible commonsense standards, medical
complications inevitably follow. Just ask Jennifer
Morbelli’s family.

Admitting Privileges: The Texas Legislature also
enacted H.B. 2 to require abortionists to have

admitting privileges at a local hospital. As the Fifth
Circuit found, this requirement was intended to
ensure the continuity of care for a compromised
patient between the abortion facility and the
hospital to which she is transferred. In Schimel, the
Seventh Circuit deemed this requirement
unconstitutional as well because of its conclusion
that “complications from an abortion are both rare
and rarely dangerous—a fact that further attenuates
the need for abortion doctors to have admitting
privileges.” Schimel at 912. Once again however, as
demonstrated above, real world abortion experience
shows ample evidence that medical complications do
indeed arise during abortions and that those
complications can be deadly dangerous when they
do.

The Real World: Petitioners’ challenges to H.B. 2
proceed from the same flawed premise as that
accepted by the Seventh Circuit majority in Schimel.
This premise is that abortions are perfectly safe,

31

with no need for additional medical protections,
because complications are so rare. But what is the
test for such “rarity”? Is it strictly a numerical
counting of events or does it include the end result of
those events as well? Should a health and safety
provision be rejected because it might only be needed
to save the life of one woman? Two, three, four, ?
And why isn’t a legislative body the right entity to
make that decision for its particular state? Ifthe
State of Texas wants to try to ensure that not even a
single woman dies because of a medical emergency
during abortion, isn’t it entitled to do so? Doesn’t a
State have the right to raise the ceiling of future
care for all patients within its borders rather than
risking the health or safety of even one patient to the
floor of past medical practice? Certainly, if Illinois
were to choose to alter its regulatory scheme for
abortion clinics in response to the tragic death of
Tonya Reaves, such legislative reaction would

be well within the state's legitimate interest of
protecting the health and safety of its women.

In the real world, there is nothing “undue” about
whatever burdens are imposed by H.B. 2 in its
efforts to protect the lives of such women and the
preborn lives within them. To the contrary, those
burdens are only incidental to a due regard for their
health and safety. With regard to the ASC
requirements, the record below indicates that _
“[sleven ASCs in five major Texas cities (Austin,
Dallas, Fort Worth, Houston and San Antonio) were
licensed to perform abortions and would be able to
continue providing abortions after the ASC
requirement went into effect,” and that another
abortion provider “planned to open an [additional]

32

ASC in San Antonio” in the future. Cole at 21.
Based on this record, the Fifth Circuit logically
concluded that “[t]he fact that there are currently
licensed ASCs in Texas where abortions are
performed and that abortion providers have plans to
open more attests that it is indeed possible for
abortion providers to comply with the ASC
requirement.” Jd. at n.15.

With regard to the admitting privileges requirement,
the record below reflects Petitioners complaint that
“abortion physicians were being denied admitting
privileges, not because of their level of competence,
but for various other reasons.” Cole at 23. But those
physician “admitting privilege” decisions are made
by individual hospitals, not mandated by the State
and certainly not ordained by anything in H.B. 2.
Whether or not a particular doctor is given
admitting privileges by an individual hospital is,
thus, NOT an obstacle - let alone a substantial
obstacle - created by the Texas Legislature’s
enactment of H. B. 2. Under H.B. 2, each individual
hospital could also just as easily grant all of those
doctors admitting privileges. H.B. 2 does not
predetermine the result of those decisions one way or
the other.

2 Of course, if a hospital refuses admitting privileges to a
doctor, it may be an indicator of the physician’s abilities (or
lack thereof), another traditionally accepted means for the
State to ensure that its women are in competent hands. For
example, Dr. Carhart, the abortionist whose lack of care led
to the death of Jennifer Morbelli, did not have admitting
privileges in any of the states he traveled to perform late-
term abortions. See n. 17 supra. But other, properly
qualified physicians apparently had no difficulty obtaining

33

Overall, implementation of H.B. 2’s provisions may
require some women seeking abortions in Texas to
travel somewhat farther, to wait somewhat longer
and even to pay somewhat more to procure an
aborticn. But, as then-Chief Justice Rehnquist
noted in Casey, “the provision[s] in no way prohibit[)
abortion.” Under this Court’s precedents, incidental
effects of making abortions more difficult, more
expensive and/or more time-consuming to obtain are
simply NOT the types of “substantial obstacles” that
constitute an “undue burden.” Yet those are exactly
the type of burdens being complained about by
Petitioners here, and they should be promptly
rejected here as well.

Do Petitioners really believe that women in Texas
have a constitutional right to assert that a particular
amount of waiting time is too long or that a 150
miles driving distance is too far to travel? How could
such a “right” be administered nationally when
traffic congestion in Manhattan or Los Angeles
might cause a patient to endure an even greater
amount of time to travel a shorter distance than
elsewhere? Or in South Dakota where a single
abortion clinic has to be traveled to by all women in
the State regardless of their starting point, which
might be as much as six hours away? And how does

such privileges. See Hearing on H.B. 2816 Befors the H.
Comm. on State Affairs, 83d Leg., R.S. (March 27,
2013\Rep. Laudenberg stating that “already two-thirds of
[doctors performing abortions] do have admitting
privileges”).

25 See State Facts About Abortion, by Guttmacher
Institute: https//www.guttmacher.org/pubs/sfaa/
pdf/south dakota.pdf)

34

one compare such interests between women in the
smal) State of Rhode Island and those in the massive
State of Alaska? Are Rhode Islanders‘ rights
somehow greater than Alaskans’ by the sheer
happenstance of geography? And what about cross-
border travelers? As the Fifth Circuit found below:
“although the nearest abortion facility in Texas is
550 miles away from E] Paso, there is evidence that
women in El Paso can travel the short distance to
Santa Teresa [New Mexico] to obtain an abortion
and, indeed, the evidence is that many did just that
before H.B. 2.” Cole at 55. These are all just
incidental logistical effects. Nothing more and
nothing le 3s.

Fortunately, there is no constitutional obligation for
this Court to become such a nationwide traffic
controller for abortion patients. It is within the
state’s purview to determine if a regulation is
rational for its own citizens, and it is not the right of
any particular industry to demand that its own
services be more accessible and cost-effective to the
public. If any other elective medical industry
compla ned that rational state regulations were
increasing the transportation costs, childcare costs,
waiting time, or travel of its patients, this would be
considered a problem of the industry itself or simply
an unpleasant part of a patient’s exercise of choice in
obtaining an elective procedure. The state has no
constitutional responsibility to ensure that every
patient has low-cost transportation, an elimination
of wait time, or short travel to every elective medical
procedure. Meeting the business interests of the
abortion industry is hardly the duty of the state.

35

CONCLUSION
As this Court recognized in Casey:

Abortion is a unique act. It is an act fraught
with consequences for others: for the woman
who must live with the implications of her
decision; for the persons who perform and
assist in the procedure; for the spouse,
family, and society which must confront the
knowledge that these procedures exist,
procedures some deem nothing short of an
act of violence against innocent human life;
and, depending on one's beliefs, for the life or
potential life that is aborted.

Casey at 852. One of those consequences is the
health risk to the mother arising from unforeseen
emergencies, medical negligence and/or criminal
misconduct during the course of an abortion.
Because of the inextricable link between the mother
and baby through pregnancy, that consequence
carries over to the potential life she is carrying in
utero as well. Real-world health risks naturally and
undeniably apply to both the mother and to the
potential life within her during an abortion. No one
should want a pregnant mother to face a scintilla
more of that risk than absolutely necessary in this
situation.

It does no good for Petitioners to deny this reality to
effectively maintain that health and safety interests
will not be advanced by H.B. 2’s provisions. How
could it not possibly advance women’s health
interests to have the benefit of an “ambulatory

36

surgical center” available during an abortion? And
how could it not possibly advance women’s health
interests to have their abortionists fully “admitted”
to a nearby hospital where those women might have
to be transferred to in the event something goes
horribly wrong during the abortion?

In its parens patriae responsibility for the health and
safety of its citizens (and potential citizens), the
sovereign State of Texas has decided that women
seeking abortions within the state should be afforded
the two additional health and safety protections
provided by H.B. 2. Instead of being lauded for these
efforts “to raise the standard and quality of care for
women seeking abortions and to protect the health
and welfare of women seeking abortions,” however,
Texas has been vilified. There is no warrant for
that.

It is indisputable that some women experience
medical catastrophes at abortion facilities, and that
some women suffer greatly as a result. Some women
even die. It is also indisputable, as the tragic death
of Joan Rivers readily reveals, that there are
significant - and potentially life-threatening results -
associated with seemingly routine medical
procedures. Anyone who has had to give informed
consent to such a procedure understands the reality
of such risks. It is precisely why such informed
consent is required. Thus, the reality of the risks of
potential complications in our uncertain modern
world is simply undeniable. This Court should
recognize them, just as the State of Texas did.

37

At bottom, there is no reason for this Court to undo
the carefully crafted and sovereign work of the Texas
State Legislature in enacting this law “to raise the
standard and quality of care for women seeking
abortions and to protect the health and welfare of
women seeking abortions.” The State is only
required to draw a “rational” line to achieve such
legitimate government purposes, not a “perfect line.”
Armour v. City of Indianapolis, Ind., 132 S.Ct. 2073,
2083 (2012). Here, Texas has plainly done so.

Expert testimony below indicated that H.B. 2’s ASC
and admitting privileges requirements “result in
patients receiving a higher quality of care.” Cole at
22-23 n.18. That is precisely what a State should
seek for its citizens. That is protective of women’s
health, not destructive of it.

The decision below should be affirmed.
Respectfully submitted,

STEPHEN L. BRAGA

(Counsel of Record)

Law Office of Stephen L. Braga PLLC
3079 Woods Cove Lane

Woodbridge, VA 22192

(703) 623-2180

bragalaw@gmail.com

February 2, 2016
Counsel for Amicus”

26 Counsel of record gratefully acknowledges the substantial
assistance of co-counsels Kristine Brown, William Brewer
and Kathleen Braga in the research and preparation of this
amicus brief.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A58. Public record. Not legal advice.