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

No. 15-274 ) Siyreme Court. US.

In The FEB-3 206 |

Supreme Court of the United! Statesic cen |

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WHOLE WOMAN'S HEALTH, et al.,

Petitioners,

V.

JOHN HELLERSTEDT, M.D., Commissioner of the

Texas Department of State Health Services, et al.,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

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AMICUS CURIAE BRIEF OF MORE THAN 450

BIPARTISAN AND BICAMERAL STATE

LEGISLATORS AND LIEUTENANT GOVERNORS

IN SUPPORT OF THE RESPONDENTS AND

AFFIRMANCE OF THE FIFTH CIRCUIT

+

DENISE M. BURKE

MAILEE R. SMITH

Counsel of Record

AMERICANS UNITED FOR LIFE

655 15th St. NW, Suite 410

Washington, D.C. 20005

Telephone: 202-289-1478

Facsimile: 202-289-1473

Email: Mailee.Smith@AUL.org

NIKOLAS T. NIKAS

DORINDA C. BORDLEE

BIOETHICS DEFENSE FUND

3312 Cleary Avenue

Metairie, LA 70002

Telephone: 504-231-7234

info@bdfund.org

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................:cccceseeeees ili

STATEMENT OF INTEREST OF AMICI CU-

REN Sen ee 1

SUMMARY OF ARGUMENT ....................5.....00s 3

PIII ssc iciicniccstcsabaumminienlpanisabaeboamanitntdadnauaianl 6

I. The Legislature has an interest in pro-

tecting maternal health from the outset

of pregnancy, and a regulation enacted to

protect maternal health is valid where

there is a rational basis for its enactment

and it does not pose an undue burden ...... 6

Il. The Legislature must be given wide

discretion when there is medical disa-

greement, and according to Gonzales

such disagreement provides “sufficient

basis” to conclude that there is no undue

Itt csileiinieinteesdelesiinsicaditeanidadasiekinmaeiabbiditaain 15

III. Petitioners urge the adoption of a strict

scrutiny standard because the legislative

record and trial court testimony foreclose

their ability to meet the legal standards

established by this Court in Roe, Casey,

EME Ra Hees mR en ec 24

ee ehineiciecrnesinnmnninnnninnintpiennisienseadannesisinans 29

il

TABLE OF CONTENTS - Continued

Page

APPENDIX

Full List of Amici Curiae, by state:

SEITE insescncinintinapiinnstiniiidgnaiminsindemeieueaeneiaiatin App. 1

I siscsicisantenscnscnnnrtentinisnnitunamaninniianainnsinieminaiia App. 3

EIT iis dicesseienvirpttinsnininetiieeniataiiaianmiannpennmmeniinnniaiiniin’ App. 4

FI i ciiicssiannatasicemsniniceniedenntimeninnieimndiiteaingiaid App. 5

IIIT cis oicianiicnaleleiatdeeihcigndbdiesiaeaiadasaaaeaietiande App. 6

SETI cnisictiecsiedbiiaeiinbcsdianiciapupienndintammnenaamenial App. 7

GENE hicicitvsciitctinnciiiiciesiisstionnplannihonabsennbisnusmmetetnis App. 9

STITT sis scivinitiiniiinidhuactbabiipenanntnnniatiapamienmanidl App. 10

Tn cssicicedsshisiieieg cnieiebeteiiabeiviaiilaidiioibciaiiaeieiieneabin App. 11

ill

TABLE OF AUTHORITIES

Page

CASES

Akron v. Akron Center for Reproductive Health,

I es 9

Carey v. Population Services International, 431

| __ EE RS I SRanCe ae eI OED 9

Collins v. Texas, 223 U.S. 288 (1912) 0.0.0... 17

Connecticut v. Menillo, 423 U.S. 9 (1975)... 8

Doe v. Bolton, 410 U.S. 179 (1973)... eee 9,10

F-C.C. v. Beach Communications, Inc., 508 U.S.

SAREE EEE ESET epee een ea ee 22, 23

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

Greenville Women’s Clinic v. Bryant, 222 F.3d

AR RO ae ee na 20, 21

Heller v. Doe, 509 U.S. 312 (1993) ......... ee. 14, 22

Jacobson v. Massachusetts, 197 U.S. 11 (1905)......... 17

Jones v. United States, 463 U.S. 354 (1983).............. 17

Kansas v. Hendricks, 521 U.S. 346 (1997)........000000... 17

Lambert v. Yellowley, 272 U.S. 581 (1926)................. 17

Marshall v. United States, 414 U.S. 417 (1974)........ 17

Mazurek v. Armstrong, 520 U.S. 968 (1997)......passim

Planned Parenthood Arizona, Inc. v. Humble,

753 F.3d GOS (Sti Cir. BOVE) ......ccccccccccccccccsccccccecsees 23

Planned Parenthood Minnesota, North Dakota,

South Dakota v. Rounds, 686 F.3d 889 (2012)....21, 22

iv

TABLE OF AUTHORITIES — Continued

Planned Parenthood of Central Missouri uv.

Danforth, 428 U.S. 52 (1976).........ccccccccccccccosssssseesses 9

Planned Parenthood of Greater Texas Surgical

Health Services v. Abbott (Abbott II), 748

F.3d 583 (Sth Cir. 2014) ................cccccees 15, 22, 23, 25

Planned Parenthood of Southeastern Pennsyl-

vania v. Casey, 505 U.S. 833 (1992)............... passim

Planned Parenthood of Wisconsin, Inc. v.

Schimel, 806 F.3d 908 (7th Cir. 2015)........ 23, 24, 26

Roe v. Wade, 410 U.S. 113 (1973).................00005. passim

Simopoulos v. Virginia, 462 U.S. 506

EE a Seen eee ee 18, 21, 24, 25, 28

Stenberg v. Carhart, 530 U.S. 914 (2000).................. 17

Webster v. Reproductive Health Services, 492

a iaelnbaiinn 16

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

eel 24, 25, 28

Whole Woman’s Health v. Lakey, 769 F.3d 285

i a eebiol 14, 15

STATUTORY PROVISIONS

Pa acceptance 1

TT rai soeicspdiicsetbiatadsieiineinipscuieiatieiti 1

Antz. REV. STAT. § 36-449.05 ...............0cccccccssesscrssesceeesees 1

a Ty rs Op I inicsecceccctnsenecsncnsscnscticnsecnsen 1

LA. REV. STAT. §§ 40:2175.1 et seq. ........ccccccccceeseeeeeeeeeees 1

v

TABLE OF AUTHORITIES — Continued

Page

KAN. ADMIN. REGS. §§ 28-34-126 et seq. ...............:0000008 1

KAN. ADMIN. REGS. § 28-34-132................cccccceceeeeseeeeees 1

SEC enone nee ene eae yn mee 1

Mo. REV. STAT. § 197.200....................4.. REL Cena pe en oe 1

A I SI i calisicesistinniioneaipl 1

I i ies scsitrsinciiiadieigniibaimimenseinentindiin 2

| TEETER RL AOL RTE TE 2

a cll 2

TN PIII chiens ic iciisiccabingsinciceiasiiasnbsaiedbiceild 2

OTHER SOURCES

American College of Obstetricians and Gyne-

cologists, Standards for Obstetric-Gynecologic

I, I ec cisccinteicteciniaemeianiibadiandiameinisiin 18

Floor Statement of Senator Donna Campbell,

MD (July 12, 2013), available at http://

tlesenate.granicus.com/MediaPlayer.php?view_

id=9&clip_id=500 (beginning at 8:42:40) (last

I citcrecansecnnicnnenonnietnessinesesinein 26

Testimony of Dr. Mikael Love before the Com-

mittee on State Affairs (July 2, 2013), avail-

able at http://tlchouse.granicus.com/Media

Player.php?view_id=28&clip_id=6609 (begin-

ning at 3:20:30) (last visited Jan. 25, 2016)........... 27

1

STATEMENT OF INTEREST OF AMICI CURIAE’

Amici are more than 450 current bipartisan and

bicameral legislators’ along with lieutenant governors

from states that maintain similar abortion regula-

tions to those at issue in Texas House Bill (HB) 2.’ As

’ Pursuant to this Court’s Rule 37.3(a), Amici have consent

to file this brief from both parties; written consent accompanies

the brief. Pursuant to this Court’s Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part, and

no such counsel or party made a monetary contribution intended

to fund the preparation or submission of the brief.

* The full list of state legislators and lieutenant governors

appears in the appendix, listed by state.

* These states are Alabama, Arizona, Louisiana, Kansas,

Mississippi, Missouri, Oklahoma, Pennsylvania, Tennessee, and

Virginia. See, e.g., ALA. CODE § 26-23E-9 (requiring that abortion

or reproductive health centers comply with “ambulatory health

care occupancy” standards); ALA. CODE § 26-23E-4 (requiring

abortion providers to have staff privileges at an acute care

hospital) (in litigation); Ariz. Rev. Stat. § 36-449.03 (requiring

abortion clinics to meet comprehensive standards related to

physical facilities, supplies and equipment, personnel, patient

screening, the abortion procedure, recovery rooms, and report-

ing); La. Rev. Star. §§ 40:2175.1 et seg. (requiring compre-

hensive licensing standards); La. Rev. Star. § 40:1299.35.2

(requiring abortion providers to have active admitting privileges

at a local hospital) (in litigation); KAN. ADMIN. Recs. §§ 28-34-

126 et seq. (providing standards related to administration,

professional qualifications, patient and employee testing, and

physical-plant specifications); KAN. ADMIN. REGs. § 28-34-132

(requiring abortion providers to have admitting privileges at a

local hospital); Miss. CopE § 41-75-1 (requiring abortion provid-

ers to have admitting privileges at a local hospital) (in litiga-

tion); Mo. Rev. Stat. § 197.200 (defining “ambulatory surgical

center” to include facilities where five or more first-trimester

abortions are performed per month); OKLA. Star. tit. 63, § 1-748

(Continued on following page)

2

such, Amici have a unique interest in this case; any

decision herein will have a direct impact on the laws

they have already enacted in their respective states,

some of which are currently in litigation.

As representatives of the people of their respec-

tive states, Amici also have an interest in ensuring

that proper deference is afforded to their legislative

decisions and actions. This Court has clearly provided

that state and federal lawmakers are given “wide

discretion to pass legislation in areas where there

is medical and scientific uncertainty.” Gonzales v.

Carhart, 550 U.S. 124, 163 (2007). However, what

Petitioners urge here is actually a rejection of this

Court’s precedents and the implementation of a strict

scrutiny standard for reviewing abortion regulations.

This Court rejected strict scrutiny in Planned

Parenthocd of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), and it must reject Petitioners’

proffered standard as well.

(requiring abortion clinics to meet standards related to supplies

and equipment and requiring abortion providers to have admit-

ting privileges at a local hospital) (in litigation); 35 PENN. STAT.

§ 448.806 (requiring abortion facilities to meet the same stan-

dards as ambulatory surgical facilities); TENN. Cope § 68-11-201

(defining “ambulatory surgical treatment center” to include

most abortion providers) (in litigation); TENN. CoDE § 39-15-202

(requiring abortion providers to have admitting privileges at a

local hospital) (in litigation); VA. Cope § 32.1-127 (classifying

facilities in which five or more first trimester abortions per

month are performed as a category of “hospital” and regulating

the standards of health, hygiene, sanitation, construction, and

safety).

3

Indeed, this Court has repeatedly affirmed that

states have an interest in protecting maternal health

from the outset of pregnancy. See Gonzales, 550 U.S.

at 145; Casey, 505 U.S. at 846 (both citing Roe v.

Wade, 410 U.S. 113 (1973)). Petitioners ignore this

important state interest and are attempting to re-

verse the burden by requiring the State to prove the

effectiveness of a law in meeting its interest in pro-

tecting maternal health. As lawmakers, Amici urge

this Court to reject Petitioners’ transparent ploy to

undermine the discretion that must be afforded to

state lawmakers seeking to advance this interest, and

affirm the Fifth Circuit Court of Appeals.

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SUMMARY OF ARGUMENT

This case is about more than applying ambulato-

ry surgical center standards and admitting privileges

to Texas abortion clinics. While these provisions of

Texas House Bill (HB) 2, enacted in 2013, are certain-

ly front and center in the case, what is at stake is the

very standard that federal courts will use in review-

ing abortion regulations.

Contrary to this Court’s abortion jurisprudence,

the Petitioners are essentially arguing for a strict

scrutiny standard of review for abortion regulations.

What they ignore — and the Fifth Circuit got right — is

that this Court has explicitly rejected this approach

and has repeatedly affirmed the states’ interests in

protecting maternal health and regulating the medical

4

profession through commonsense abortion regula-

tions. See Part I, infra.

In both Gonzales v. Carhart and Planned

Parenthood v. Casey, this Court affirmed Roe uv.

Wade’s “essential” holding, which explicitly included

not only the woman’s “right” to “choose to have an

abortion” without “undue interference from the

State,” but also “the principle that the State has

legitimate interests from the outset of the pregnancy

in protecting the health of the woman. ~” Gonzales,

550 U.S. at 145; Casey, 505 U.S. at 846 (both citing

Roe, 410 U.S. 113).

Roe itself provides explicit direction as to the

breadth of this legitimate state interest. In Roe, the

Court held that the State’s legitimate interest in

regulating abortion to ensure “maximum safety” for

the woman “obviously extends at least to [regulating]

the performing physician and his staff, to the facili-

ties involved, to the availability of after-care, and to

adequate provision for any complication or emergency

that might arise.” Roe, 410 U.S. at 150. This language

validates both the provisions in HB 2 that Petitioners

challenge and the states’ interests in protecting

maternal health. See Part I, infra.

Significantly, this Court has already rejected the

application of the standard of review urged by Peti-

tioners. In Casey, this Court overruled previous

decisions that utilized a strict scrutiny standard, and

instead delineated the “undue burden” standard, with

“guiding principles” to assist courts in its application.

9)

See Part I, infra. Importantly, nowhere in this Court’s

abortion jurisprudence, and particularly its “guiding

principles” for the application of the undue burden

standard, has it ever required a state to prove that a

regulation “actually serve[s] the government’s inter-

est in promoting health.” Petitioners’ Question Pre-

sented I.a. Such a condition is just another way of

requiring a state to prove that a regulation is narrow-

ly tailored to achieve the State’s interest — i.e., strict

scrutiny. See Part I, infra.

Instead, through Casey and Gonzales, this Court

has set forth the threshold standard for reviewing

abortion regulations: a regulation enacted to protect

maternal health is valid where there is a rational

basis for its enactment and it does not pose an undue

burden. See id. Petitioners’ proffered standard would

make the rational basis prong of this Court’s test

meaningless. That cannot be what this Court intended.

Petitioners also ignore that the Legislature must

be given wide discretion to act when there is medical

disagreement. In fact, such disagreement provides

“sufficient basis” for a court to find, in a facial attack

against an abortion regulation, that there is no undue

burden. Gonzales, 550 U.S. at 163, 164; see also Part

II, infra. This Court has referred to such deference as

the “traditional rule,” even in the abortion context.

Gonzales, 550 U.S at 163. Such broad discretion

has been afforded repeatedly to state legislatures

throughout this Court’s jurisprudence, and it has

been echoed in the Fourth, Fifth, and Eighth Circuits

6

as well. On the other hand, the Seventh and Ninth

Circuits have strayed from this Court’s precedents

and adopted a strict scrutiny approach. See Part II,

infra.

The Petitioners urge the adoption of a strict

scrutiny standard because they cannot meet the legal

standards established by this Court in Roe, Casey,

and Gonzales. The legislative record and the record

before the trial court confirm that the Fifth Circuit

afforded proper deference to the state legislature. As

such, the most that Petitioners can demonstrate is

that there is disagreement in the medical community

— a “disagreement” which must be resolved in favor of

the State. See Part III, infra.

°

ARGUMENT

I. The Legislature has an interest in pro-

tecting maternal health from the outset of

pregnancy, and a regulation enacted to

protect maternal health is valid where

there is a rational basis for its enactment

and it does not pose an undue burden

In both Gonzales v. Carhart and Planned

Parenthood v. Casey, this Court affirmed Roe v.

Wade’s “essential” holding, which explicitly included

not only the woman’s “right” to “choose to have an

abortion” without “undue interference from the

State,” but also “the principle that the State has

legitimate interests from the outset of the pregnancy

7

in protecting the health of the woman. ” Gonzales,

550 U.S. at 145; Casey, 505 U.S. at 846 (both citing

Roe, 410 U.S. 113). Roe “was express in its recognition

of the State’s ‘important and legitimate interests in

preserving and protecting the health of the pregnant

woman. ’*” Casey, 505 U.S. at 875-76.

Roe itself provided explicit instruction as to the

breadth of the State’s legitimate interest, stating,

“(t]he State has a legitimate interest in seeing to it

that abortion, like any other medical procedure, is

performed under circumstances that insure maxi-

mum safety for the patient.” Roe, 410 U.S. at 150.

The Court found that the State’s legitimate interest

in regulating abortion to protect maternal health

“obviously extends at least to [regulating] the per-

forming physician and his staff, to the facilities

involved, to the availability of after-care, and to ade-

quate provision for any complication or emergency

that may arise.” Jd.

Preceded by the phrase “at least,” these examples

clearly set a floor, not a ceiling, of the “obvious”

interests and deference a state maintains in protect-

ing maternal health. Notably, the Court’s list of the

minimum “obvious” examples of measures advancing

women’s health goes beyond regulating the abortion

procedure itself and extends to regulations that

would ensure the qualifications of the physician and

the safety of care provided in a facility. Simply, the

State’s interest in maternal health is comprehensive

8

and deserving of wide deference.’ See also Part II,

infra.

In Casey, the Court elaborated on the “essential”

holding in Roe by explaining that the woman’s “right”

is not so unlimited that it is absolute. Casey, 505 U.S.

at 869.° In fact, the Court termed it an “overstate-

ment” to describe it as a “right to decide whether to

have an abortion ‘without interference from the

State.’” Id. at 875.° Rather, from the outset of preg-

nancy, a state can show concern for maternal health

and the life of the unborn child and act to further

those interests. Jd. at 846.

* The Court also expressed concern in Roe with what it

called illegal “abortion mills,” noting that their reported nega-

tive impact on women’s health “strengthens, rather than

weakens, the State’s interest in regulating the conditions under

which abortions are performed.” Roe, 410 U.S. at 150.

That the Court intended abortion clinics to abide by health

and safety regulations is confirmed in Connecticut v. Menillo,

where it stated, “Jane Roe had sought to have an abortion

‘performed by a competent, licensed physician, under safe,

clinical conditions,’ and our opinion recognized only her right to

an abortion under those circumstances.” 423 U.S. 9, 10 (1975)

(emphasis added).

* See also Casey, 505 U.S. at 873 (“ — not every law which

makes a right more difficult to exercise is, ipso facto, an in-

fringement of that right”).

* The Court later explained that Roe protects the “right to

decide to terminate a pregnancy free of undue interference by

the State.” Jd. at 887 (emphasis added). See also id. at 875 (“Not

all government intrusion is of necessity unwarranted.”).

9

This Court explained in Casey that after Roe,

many judicial decisions failed to give adequate defer-

ence to a state’s interest in maternal health and

instead “decided that any regulation touching upon

the abortion decision must survive strict scrutiny, to

be sustained only if drawn in narrow terms to further

a compelling state interest.” Jd. at 871. However, the

Court then held that “[nJot all of the cases decided

under that [strict scrutiny] formulation can be recon-

ciled with the holding in Roe itself that the State has

legitimate interests in the health of the woman and

in protecting the potential life within her.” Jd. The

decision was clear: the strict scrutiny standard has no

place in the review of abortion regulations.’

" This Court did not apply strict scrutiny in Roe or Doe v.

Bolton, 410 U.S. 179 (1973), nor between Roe and Akron v.

Akron Center for Reproductive Health, 462 U.S. 416 (1983). In her

dissent in Akron, Justice O’Connor provided a detailed analysis

demonstrating that the Court between Roe and Akron had not

treated abortion as a “fundamental right,” nor consistently

applied the strict scrutiny standard that accompanies a funda-

mental right. She stated:

The Court has never required that state regulation

that burdens the abortion decision be “narrowly

drawn” to express only the relevant state interest. In

Roe, the Court mentioned “narrowly drawn” legisla-

tive enactments, 410 U.S., at 155, but the Court never

actually adopted this standard in the Roe analysis.

Akron, 462 U.S. at 467 n.11 (O’Connor, J., dissenting). See also

Carey v. Population Services International, 431 U.S. 678, 704

(1977) (Powell, J., concurring) (stating that neither Planned

Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976),

nor Doe v. Bolton refer to the “‘compelling state interest’ test,”

(Continued on following page)

10

Rejecting these previous decisions that invalidat-

ed regulations “which in no real sense deprived

women of the ultimate decision,” the plurality in

Casey introduced the “undue burden” standard: only

where a state regulation imposes an undue burden on

a woman’s ability to choose abortion does the State

overreach. Jd. at 874. The Court elaborated:

A finding of an undue burden is a shorthand

for the conclusion that a state regulation has

the purpose or effect of placing a substantial

obstacle in the path of a woman seeking an

abortion of a nonviable fetus.

Id. at 877 As the Court further noted, “[a] particular

burden is not of necessity a substantial obstacle.” Jd.

at 887

Given that the “undue burden” standard estab-

lished a relatively new framework for evaluating

abortion regulations, the plurality in Casey provided

“guiding principles” to help direct the federal courts

as to what constitutes a “substantial obstacle”:

a) What is at stake is the woman’s right to

make the ultimate decision, not a right

to be insulated from all others in doing

SO.

b) Regulations which do no more than cre-

ate a structural mechanism by which the

State may express profound respect

and noting that Doe used the “reasonably related” test); Doe, at

U.S. 179, 195 (applying a “legitimately related” test).

c)

d)

Id. at 877-78 (citations omitted). Significant here is

what the Court did not include as a “guiding princi-

ple”: the Petitioners’ claim that a state must prove

the effectiveness of its regulation in order to success-

11

for the life of the unborn are permitted,

if they are not a substantial obstacle to

the woman’s exercise of the right to

choose.

Unless it has that effect on her right of

choice, a state measure designed to per-

suade her to choose childbirth over abor-

tion will be upheld if reasonably related

to that goal.

Regulations designed to foster the health

of a woman seeking an abortion are val-

id if they do not constitute an undue

burden.

fully defeat an undue burden challenge.

Further underscoring its determination that the

use of strict scrutiny is improper and that states may

enact abortion regulations aimed at protecting the

life of the mother or unborn child, the Court gave yet

another “summary” of its undue burden standard,

which included the following factors:

a)

To protect the central right recognized

by Roe v. Wade while at the same time

accommodating the State’s profound in-

terest in potential life, we will employ

the undue burden analysis. An un-

due burden exists if its purpose or

effect is to place a substantial obstacle in

12

the path of a woman seeking an abortion

before the fetus attains viability.

b) We reject the rigid trimester framework

of Roe. v. Wade. [T}hroughout preg-

nancy the State may take measures to

ensure that the woman’s choice is in-

formed, and measures designed to ad-

vance this interest will not be

invalidated as long as their purpose is to

persuade the woman to choose childbirth

over abortion. These measures must not

be an undue burden on the right.

c) As with any medical procedure, the State

may enact regulations to further the

health or safety of a woman seeking an

abortion.

d) Our adoption of the undue burden anal-

ysis does not disturb the central holding

of Roe v. Wade, and we reaffirm that

holding. Regardless of whether excep-

tions are made for particular circum-

stances, a State may not prohibit any

woman from making the ultimate deci-

sion to terminate her pregnancy before

viability.

Id. at 878-79 (emphasis added). Equating the regula-

tion of abortion to the regulation of any medical

* The Court also provided an additional summary factor

which dealt with regulations aimed at protecting the unborn

child after viability, which is not applicable here. Casey, 505 U.S.

at 879.

13

procedure, the Court held that only “unnecessary”

regulations which have the “purpose or effect of

presenting a substantial obstacle to a woman” pose

an undue burden. Jd. at 878. Importantly, nowhere in

the Court’s enunciation of the undue burden standard

— neither in its “guiding principles” nor in its “sum-

mary” — did the Court direct that a state regulation

aimed at furthering the health or safety of a woman

seeking an abortion be preemptively proven by the

State to actually meet that laudable goal.

In sum, strict scrutiny was rejected in Casey, and

regulations which serve a rational purpose and do not

place a substantial obstacle in the way of a woman’s

decision are constitutional.

In Gonzales, the Court elaborated on the signifi-

cant state interests that support an abortion regula-

tion and clarified that a rational basis inquiry does,

in fact, have a place in reviewing abortion regula-

tions. After recognizing that the State “has an inter-

est in protecting the integrity and ethics of the

medical profession” and has a “significant role to play

in regulating the medical profession,” the Court

determined, “(where it has a rational basis to act,

and it does not impose an undue burden,” the State

may enact abortion regulations “in furtherance of its

legitimate interests.” Gonzales, 550 U.S. at 157, 158

(citations omitted) (emphasis added). The Court

added that “[clonsiderations of marginal safety,

including the balance of risks, are within the legisla-

tive competence when the regulation is rational and

in pursuit of legitimate ends.” Jd. at 166.

14

Thus, the first step in evaluating the constitu-

tionality of an abortion regulation aimed at protect-

ing women’s health is to determine whether the State

has “a rational basis to act.” Id. at 158.° Then, once a

rational basis has been established, a court must

determine whether the regulation imposes an undue

burden on women seeking abortions. Jd.

At no point has the Court required a state to

prove whether an abortion regulation “actually

serve[s} the government’s interest in promoting

health.” Petitioner’s Question Presented I.a. Indeed,

such an inquiry is simply another way of asking the

Court to evaluate whether a regulation is narrowly

tailored to achieve the State’s interest — the very

strict scrutiny review this Court has explicitly reject-

ed. See Casey, 505 U.S. at 871.”

* Under the rational basis standard of review, courts must

presume that a law in question is constitutional and sustain it

so long as the law is rationally related to a legitimate state

interest. Heller v. Doe, 509 U.S. 312, 320 (1993). “(T]he burden is

on the one attacking the legislative arrangement to negative

every conceivable basis which might support it.” Jd. (citation

omitted). In other words, the test provides an incredibly high

level of deference to the State, placing the burden on the plain-

tiffs challenging a law to prove that the State has absolutely no

rational justification for enacting it. See also Part II, infra.

* The Fifth Circuit has a history of properly applying this

Court’s rational basis and undue burden review. See Whole

Woman’s Health v. Lakey, 769 F.3d 285, 293 (5th Cir. 2014)

(“Following Carha;t and Casey, our circuit conducts a two-step

approach, first applying a rational basis test, then independent-

ly determining if the burden on a woman’s choice is undue.”); id.

(Continued on following page’

15

II. The Legislature must be given wide dis-

cretion when there is medical disagree-

ment, and according to Gonzales such

disagreement provides “sufficient basis”

to conclude that there is no undue burden

In addition to the guidelines provided in Casey

for evaluating whether a regulation poses an undue

burden, this Court explicitly held in Gonzales that

state and federal lawmakers are given “wide discre-

tion to pass legislation in areas where there is medi-

cal and scientific uncertainty.” Gonzales, 550 U.S. at

163. In fact, when there is medical disagreement

regarding the alleged risks associated with a regula-

tion, that uncertainty “provides a sufficient basis to

conclude in [a] facial attack that the [regulation] does

not impose an undue burden.” Id. at 164 (emphasis

added).

at 297 (“ the district court’s approach ratchets up rational

basis review into a pseudo-strict-scrutiny approach by examin-

ing whether the law advances the State’s asserted purpose.

Under our precedent, we have no authority by which to turn

rational basis into strict scrutiny under the guise of the undue

burden inquiry.”); Planned Parenthood of Greater Texas Surgical

Health Services v. Abbott (Abbott IT), 748 F.3d 583, 594 (5th Cir.

2014) (“Nothing in the Supreme Court’s abortion jurisprudence

deviates from the essential attributes of the rational basis

test. ”); id. at 595 (“ . the State is not required under

rational basis review to choose the least restrictive means to

achieve a legitimate goal”); id. at 596 (rejecting the Seventh

Circuit’s use of strict scrutiny in evaluating abortion regulations

and stating, “[t]he first step in the analysis of an abortion

regulation, however, is rational basis review, not empirical basis

review”) (emphasis in original).

16

In Gonzales, the plaintiffs alleged that the feder-

al prohibition on partial-birth abortion created health

risks to women. This Court noted that there was

documented medical disagreement in the trial court

records regarding any alleged risks. Jd. at 162. De-

spite the fact that all three district courts weighed

the medical disagreement in favor of the plaintiffs,”

this Court reversed and held that its precedents

“instruct” that the prohibition “survive” the facial

challenge because of the wide discretion given to state

and federal lawmakers. Jd. at 163.

This Court further held that the “law need not

give abortion doctors unfettered choice in the course

of their medical practice, nor should it elevate their

status above other physicians in the medical commu-

nity.” Id.” Clearly, when professionals within the

“ Even the more “skeptical” district court for the Southern

District of New York found that “a significant body of medical

opinion” held that the partial-birth abortion procedure had some

safety advantages. Gonzales, 550 U.S. at 162-63. The fact that

this Court then reversed those lower court decisions demon-

strates that it provided wide discretion to lawmakers even in the

face of purported medical evidence favoring the plaintiffs.

* See also id. at 164 (“Medical uncertainty does not fore-

close the exercise of legislative power in the abortion context any

more than it does in other contexts.”). This Court also cited

Webster v. Reproductive Health Services for the proposition that

this Court (or any other federal court, for that matter) should

not serve as the country’s “ex officio medical board with powers

to approve or disapprove medical and operative practices and

standards throughout the United States.” Id. (citing Webster,

492 U.S. 490, 518-19 (1989)). If there is medical disagreement, a

state legislature is in the best position to evaluate the medical

(Continued on following page)

17

medical community disagree, the State is free to

enact regulations aimed at protecting patient health,

and the State is not required to prove that the result-

ing regulations will achieve the maximum safety it

seeks. Further, the testimony of abortion providers

should not be more heavily weighed than that of

physicians testifying in favor of a regulation. If legit-

imate medical disagreement exists, a regulation must

“survive” a facial attack. Jd.

Such deference to state officials was not a new or

anomalous construct when recognized in Gonzales. In

fact, the Court cited a long list of previous decisions”

and referred to the wide discretion standard as a

“traditional rule.” Id.

Even in Roe, this Court made clear the broad

discretion the State reserves to ensure maximum

patient safety, which “obviously” includes regulations

related to the performing physician and the facilities

involved. See Roe, 410 U.S. at 150; see also Part I,

data and enact commonsense regulations to enhance patient

safety.

This Court cited the following: Kansas v. Hendricks, 521

U.S. 346, 360 n.3 (1997); Jones v. United States, 463 U.S. 354,

364-65 n.13, 370 (1983); Lambert v. Yellowley, 272 U.S. 581, 597

(1926); Collins v. Texas, 223 U.S. 288, 297-98 (1912); Jacobson v.

Massachusetts, 197 U.S. 11, 30-31 (1905). The Court also cited

Stenberg v. Carhart, 530 U.S. 914, 969-72 (2000) (Kennedy, J.,

dissenting); Marshall v. United States, 414 U.S. 417, 427 (1974)

(“When Congress undertakes to act in areas fraught with

medical and scientific uncertainties, legislative options must be

especially broad.”).

18

supra. HB 2’s admitting privileges requirement and

mandate that abortion clinics meet the same stan-

dards as ambulatory surgical centers — which simply

require that abortion clinics meet commonsense

standards for safety and cleanliness — clearly fall

within the regulation of abortion providers and

facilities approved in Roe.

Cases following Roe echoed this deference to the

state legislatures. In the 1983 case Simopoulos v.

Virginia, this Court held that, in view of a state’s

interest in protecting the health of its citizens, it

“necessarily has considerable discretion in deter-

mining standards for the licensing of medical fa-

cilities.” 462 U.S. 506, 516 (1983). Significantly, in

Simopoulos, this Court upheld a second-trimester

ambulatory surgical center provision, even under

Roe’s restrictive, subsequently rejected trimester

framework. See generally, id."

Also noteworthy is this Court’s citation to the Standards

for Obstetric-Gynecologic Services of the American College of

Obstetricians and Gynecologists (ACOG) at the time:

Ambulatory care facilities providing abortion services

should meet the same standards of care as those rec-

ommended for other surgical procedures performed in

the physician’s office and outpatient clinic or the free-

standing and hospital-based ambulatory setting.

Simopoulos, 462 U.S. at 517 (citing ACOG, Standards for

Obstetric-Gynecologic Services (5h ed. 1982)). Yet ACOG would

now like this court to find that the ambulatory surgical center

requirements in HB 2 are medically unnecessary. ACOG may

have loosened its standards since 1983, but medical testimony

before the Texas Legislature and in the court record below

(Continued on following page)

19

Further, this Court has on at least two occasions

utilized its decision in Casey to support the wide

discretion standard. In the 1997 case Mazurek uv.

Armstrong, plaintiffs challeriged a Montana law

restricting the performance of abortions to licensed

physicians and claimed it had an invalid purpose

because “all health evidence” contradicted the State’s

claim that there was a health basis for the law. 520

U.S. 968 (1997). This Court held that Casey “squarely

foreclosed” this argument. Jd. at 973. In other

words, deference to the State is appropriate even

when a challenger alleges that a law is not based

upon scientific fact. Then in Gonzales, this Court

specifically held that the “traditional” wide discretion

demonstrates that not all medical professionals agree. See Part

III, infra; see also Brief of Amici Curiae Texas Legislators, filed

in support of Respondents; Brief of Amici Curiae American

Association of Pro-Life Obstetricians and Gynecologists, Ameri-

can College of Pediatricians, Christian Medical & Dental

Association, Catholic Medical Association, and Physicians for

Life, filed in support of Respondents.

* In Mazurek, the Court cited Casey for the holding that

“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.” Mazurek, 520 U.S. at 973 (citing Casey,

505 U.S. at 885) (italics omitted). The Court also stated, “Re-

spondents fall back on the fact that an anti-abortion group

drafted the Montana law. But that says nothing significant

about the legislature’s purpose in passing it.” Jd. Indeed, the

whole of this Court’s abortion jurisprudence undermines each

and every claim asserted by Petitioners and their amici.

20

rule is “consistent with Casey.” Gonzales, 550 U.S. at

163.

Other federal courts have followed this Court’s

lead and provided deference to state legislatures

when medical disagreement exists. In Greenville

Women’s Clinic v. Bryant, the Fourth Circuit reviewed

South Carolina’s comprehensive abortion clinic regu-

lations, which included a provision requiring that

every clinic be affiliated with a physician who has

admitting privileges at a local hospital. 222 F.3d 157,

161 (2000). The regulations also provided fire safety

and “design and construction” (i.e., physical plant)

requirements. Jd. at 161-62. The federal district court

had held that the regulations served “no legitimate

state interest given the lack of evidence that the

regulation will operate to improve the health care

currently being received in this state.” Jd. at 163.

However, the Fourth Circuit, properly applying this

Court’s abortion jurisprudence, rejected the district

court’s flawed conclusion.

After noting that the plaintiffs undertook a “heavy

burden” in bringing the facial challenge against

South Carolina’s clinic regulations, the Fourth Circuit

stated that the scope of a woman’s “right” to termi-

nate a pregnancy “is framed by the State’s ‘legitimate

interests from the outset of the pregnancy in pro-

tecting the health ofthe woman. ’” /d. at 163, 165-

66. In upholding the regulations, the Fourth Circuit

held, “that not all healthcare professionals agree

with the adoption of each specific aspect of the [clinic

regulations] is immaterial in light of South Carolina’s

21

‘considerable discretion’ in adopting licensing re-

quirements aimed at the health of women seeking

abortion.” Jd. at 169 (citing Simopoulos, 462 U.S. at

516). The Circuit further held that there is no re-

quirement that a state refrain from regulating abor-

tion facilities until a public-health problem manifests

itself. Jd. In the same vein, a state cannot be required

to prove the effectiveness of a regulation in address-

ing a public health concern that may not have mani-

fested itself yet.

The Eighth Circuit has also aptly applied this

Court’s “wide discretion” standard in its abortion

jurisprudence. In Planned Parenthood Minnesota,

North Dakota, South Dakota v. Rounds, the Eighth

Circuit reviewed South Dakota’s informed consent

language requiring that women contemplating abor-

tion be informed of an increased risk of suicide idea-

tion and suicide following abortion. 686 F.3d 889

(2012). In upholding the requirement, the Eighth

Circuit noted that this Court “‘has given state and

federal legislatures wide discretion to pass legislation

in areas where there is medical and scientific uncer-

tainty,’ and ‘[mJedical uncertainty does not foreclose

the exercise of legislative power in the abortion

context any more than it does in other contexts.’” Jd.

at 899-900 (quoting Gonzales, 550 U.S. at 163-64).

Specifically, the Eighth Circuit held that the

plaintiffs challenging the suicide advisory would have

to show that any medical and scientific uncertainty

had been resolved into a certainty against any causal

role of abortion — “that abortion has been ruled out, to

22

a degree of scientifically accepted certainty, as a

statistically significant causal factor in post-abortion

suicides” — and the plaintiffs could not meet that high

burden. Jd. at 900. Likewise, the presence of medical

disagreement in this case imposes an incredibly high

burden on the Petitioners. They must demonstrate

that all medical evidence is resolved in their favor — a

burden that they did not and cannot meet.

The Fifth Circuit also has a history of properly

weighing the states’ legitimate interests and provid-

ing appropriate deference to state legislative deci-

sions. In upholding HB 2’s admitting privileges

provision against a facial attack in Abbott IJ, the

Fifth Circuit held, “It is not the courts’ duty to second

guess legislative fact-finding, ‘improve’ on, or ‘cleanse’

the legislative process by allowing relitigation of the

facts that led to the passage of a law.” Abbott IJ, 748

F.3d at 594 (citing Heller v. Doe, 509 U.S. at 320, for

the principle that a state “has no obligation to pro-

duce evidence to sustain the rationality of a statutory

classification”). Because a determination of rational

basis does not lend itself to evidentiary inquiry in

court, a state is not required to “prove” that the

objective of a regulation would be fulfilled. Jd. (citing

F-C.C. v. Beach Communications, Inc., 508 U.S. 307,

315 (1993), for its holding that “a legislative choice is

not subject to courtroom fact-finding”). A court is

not to replace legislative predictions or calculations

with its own, “else it usurps the legislative power.”

Id. Rather, “judicial deference to legislative choice

‘preserve[s] to the legislative branch its rightful

23

independence and its abilit to function.’” Jd. (citing

F-C.C., 508 U.S. at 315). Further, the Fifth Circuit

held that the fact that reasonable minds differ on

legislation suffices to prove that a regulation has a

rational basis — and, in logical extension, it supports

the deference that must be provided to the State. Id.

On the other hand, discussion — not to mention

application — of the “wide discretion” standard is

glaringly missing from the recent Seventh and Ninth

Circuit decisions touted by the Petitioners. See

Planned Parenthood of Wisconsin, Inc. v. Schimel, 806

F.3d 908 (7th Cir. 2015); Planned Parenthood Arizo-

na, Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014).”

Neither court addressed the “wide discretion” lan-

guage in Gonzales, ignoring it completely.’ Instead,

those courts erroneously adopted a strict scrutiny

approach that has been explicitly rejected by this

Court.

Both the Seventh and Ninth Circuits improperly

shifted the burden to the State to prove the rationality

* Notably, the decision in Humble was not on the merits or

after examination of a complete record, but involved a prelimi-

nary injunction. Humble, 753 F.3d 905.

” Unlike the majority opinion in Schimel, the dissenting

opinion examined in detail this Court’s precedents and cited the

wide discretion afforded to states under both Mazurek and

Gonzales. Schimel, 806 F.3d at 922 (Manion, J., dissenting). See

also id. at 931 (referring to the majority opinion’s analysis as a

“home-brewed” undue burden standard that “finds no basis in

Gonzales, Casey, or any other case law other than that which it

created”).

24

of its regulation — applying that burden “exactly

backwards” and rejecting this Court’s precedent in

Mazurek. See Schimel, 806 F.3d at 924, 931 (Manion,

J., dissenting). Both Circuit courts undermined the

states’ Court-affirmed interests and have now jeop-

ardized the states’ ability to enact regulations aimed

at protecting maternal health. Jd. at 924-25. They

also acted contrary to this Court’s directive that

medical uncertainty provides a “sufficient basis” to

conclude, in a facial attack, that an abortion regula-

tion does not impose an undue burden. Gonzales, 550

U.S. at 164. Likewise, Petitioners are urging this

Court to undermine the states’ legitimate interests

and follow the Seventh and Ninth Circuits in reject-

ing this Court’s longstanding abortion precedents.

Ill. Petitioners urge the adoption of a strict

' scrutiny standard because the legislative

record and trial court testimony foreclose

their ability to meet the legal standards

established by this Court in Roe, Casey,

and Gonzales

Contrary to Petitioner’s claims, the Fifth Circuit

properly followed and applied this Court’s precedents.

The Fifth Circuit carefully examined this Court’s

abortion jurisprudence in the decision below, includ-

ing a discussion of the “considerable discretion” and

“wide discretion” afforded states by this Court in

Simopoulus and Gonzales. Whole Woman’s Health v.

Cole, 790 F.3d 563, 571, 575 (5th Cir. 2015). Citing

Mazurek and Gonzales, the Fifth Circuit ruled that

25

the medical uncertainty demonstrated in the record

here does not lead to the conclusion that the law is

unconstitutional. Jd. at 585 (citing Gonzales, 550 U.S.

at 163; Mazurek, 520 U.S. at 973). Indeed, Gonzales,

Mazurek, Simopolous, and Roe each support compre-

hensive clinic regulations and admitting privileges

requirements aimed at protecting the health and life

of the woman.

Petitioners’ proffered standard, which would

require the State to prove the effectiveness of its enact-

ed laws in meeting a desired state interest, not only

undermines the State’s legitimate interests in pro-

tecting maternal health, but also effectively guts this

Court’s directive that courts review the rational basis

supporting an enacted regulation. Indeed, there is no

reason to consider whether the State has a rational

basis if the next step in the undue burden inquiry is

to require the State to prove the effectiveness of a

regulation (i.e., strict scrutiny). The less stringent

standard is enveloped in the stricter standard. That

° This was not the first time that the Fifth Circuit has

properly examined and relayed this Court’s standard of review

in abortion cases. In Abbott II, the Fifth Circuit summarized this

Court’s precedent as follows:

Before viability, the State may not impose an “undue

burden,” defined as any regulation that has the pur-

pose or effect of creating a “substantial obstacle” to a

woman’s choice. In Gonzales, the Court added that

abortion restrictions must also pass rational basis re-

view.

Abbott I, 748 F.3d at 590 (citations omitted).

26

cannot possibly be what this Court intended, and

adopting Petitioners’ “home-brewed” standard would

effectively turn this Court’s abortion jurisprudence on

its head. Schimel, 806 F.3d at 931 (Manion, J., dis-

senting).

Simply, the Petitioners urge the adoption of a

strict scrutiny standard because they cannot meet the

legal standards explicit in Roe, Casey, and Gonzales.

See Parts I and II, supra. The most Petitioners can

demonstrate is that there is medical disagreement in

the medical community — a disagreement which must

be resolved in favor of the State. Moreover, such

medical disagreement provides “sufficient basis” to

conclude, in Petitioners’ facial attack, that there is no

undue burden. Gonzales, 550 U.S. at 164.

The legislative record and the record before the

trial court confirm that the Fifth Circuit afforded

proper deference to the state legislature. For exam-

ple, before the enactment of HB 2, Senator Donna

Campbell, MD, an emergency room physician, spoke

on the Senate floor about the reasonableness of

requiring abortion clinics to meet the same standards

as ambulatory surgical centers (ASCs). She ex-

plained that, in her 23 years as an ER docto., she had

personally cared for women with physical emergencies

* Floor Statement of Senator Donna Campbell, MD (July

12, 2013), available at http://tlesenate.granicus.com/MediaPlayer.

php?view_id=9&clip_id=500 (beginning at 8:42:40) (last visited

Jan. 25, 2016).

27

resulting from abortion. She further explained the

reasonableness of the standards. Back-up generators

are necessary in case a procedure is in progress when

the electricity goes out. Wider hallways are necessary

in order to bring in a gurney in the case of a medical

complication. Air flow systems assist in decreasing

the risk of infection. Requirements as simple as

lockers and janitors’ closets are necessary in order to

keep contaminates out of the operating room. Signifi-

cantly, Senator Campbell testified that medical

organizations like the American Medical Association

(AMA) do not speak for all doctors.

Likewise, Dr. Mikael Love, an _ obstetrician/

gynecologist in Austin — who is a Fellow in the Ameri-

can Congress of Obstetrics and Gynecology and the

Chairman of the CME Committee which oversees

physician education for seven area hospitals in Cen-

tral Texas — testified before the Committee on State

Affairs in favor of the admitting privileges require-

ment.” Specifically, he related that, as chairman of

the OB/GYN section at his hospital, he has signed off

on. the admitting privileges of abortion providers.

Importantly, he testified that requiring hospital

*” Testimony of Dr. Mikael Love before the Committee on

State Affairs (July 2, 2013), available at http://tichouse.granicus.

com/MediaPlayer.php?view_id=28&clip_id=6609 (beginning at

3:20:30) (last visited Jan. 25, 2016).

28

privileges for physicians who perform abortions is the

standard of care.”

The court record below also reflects the medical

testimony that was provided in favor of the provisions

in HB 2. The State supported the application of

ambulatory surgical center (ASC) standards to abor-

tion facilities through “expert testimony that the

sterile environment of an ASC was medically benefi-

cial because surgical abortion involves invasive entry

into the uterus, which is sterile.” Cole, 790 F.3d at

579. Likewise, the State offered expert testimony that

the admitting privileges requirement “leads to great-

er continuity of care and ‘assures peer-review of

abortion providers by requiring them to be creden-

tialed and hold admitting privileges at a local hospi-

tal, thereby protecting patients from less than

qualified providers.’” Jd. That medical testimony is

further buttressed by the medical amicus briefs filed

in this Court supporting HB 2 and the State of Texas.

Such medical evidence defeats Petitioners’ legal

claims. The most Petitioners can demonstrate is that

their medical experts disagree with the State’s medi-

cal experts. That disagreement places this case

squarely within the wide deference this Court guar-

antees to state and federal lawmakers. See Gonzales,

550 U.S. at 163; Mazurek, 520 U.S. at 973; Simopolous,

462 U.S. at 516. Petitioners may (erroneously) claim

” For more on the legislative record, see Brief of Amici

Curiae Texas Legislators, filed in support of Respondents.

29

that all health evidence contradicts the State’s

claims, but Casey “squarely foreclose[s] that claim.”

See Mazurek, 520 U.S. at 973.

Because Petitioners are hindered by this Court’s

abortion jurisprudence, they seek to have this Court

overturn its precedents and reject legislative defer-

ence. This effort must fail.

S

CONCLUSION

For the reasons above, this Court should affirm

the decision of the Fifth Circuit Court of Appeals.

Respectfully submitted,

DENISE M. BURKE

MAILEE R. SMITH

Counsel of Record

AMERICANS UNITED FOR LIFE

655 15th St. NW, Suite 410

Washington, D.C. 20005

Telephone: 202-289-1478

Facsimile: 202-289-1473

Email: Mailee.Smith@AUL.org

NIKOLAS T. NIKAS

DoRINDA C. BORDLEE

BIOETHICS DEFENSE FUND

3312 Cleary Avenue

Metairie, LA 70002

Telephone: 504-231-7234

info@bdfund.org

APPENDIX

i

APPENDIX TABLE OF CONTENTS

Page

Full List of Amici Curiae, by state:

ER apt AE ER NY SIN ee App. 1

SRA SEER Ss ae ee ee a Te App. 3

RETIREE eee aoe Re oa nt ne OU RE App. 4

EES Rs ae ew na a Re App. 5

aad App. 6

re lath SES Sa Re CR re ones App. 7

NE TIE SER ee one Se eer EE Ee App. 9

RESUS eae ee Re te me App. 10

ee EEE TEL eee ne CR Te a App. 11

App. 1

Alabama

Lt. Governor Kay Ivey

Representatives (48)

Will Ainsworth

Alan Baker

Mike Ball

Mack Butler

Donnie Chesteen

Steve Clouse

Terri Collins

Dickie Drake

Joe Faust

Allen Farley

David Faulkner

Bob Fincher

Matt Fridy

Danny Garrett

Victor Gaston

Lynn Greer

Tommy Hanes

Alan Harper

Ed Henry

Jim Hill

Mike Holmes

Mike Hubbard (Speaker

of the House)

Reed Ingram

Ken Johnson

Nathaniel Ledbetter

Paul Lee

Mac McCutcheon

Steve McMillan

Arnold Mooney

Barry Moore

Becky Nordgren

Jim Patterson

Phillip Pettus

Dimitri Polizos

Kerry Rich

Connie Rowe

Howard Sanderford

Chris Sells

David Sessions

Randall Shedd

Kyle South

Mark Tuggle

April Weaver

Ritchie Whorton

Rich Wingo

Jack Williams

(Mobile)

Jack Williams

(Birmingham)

Randy Wood

Senators (10)

Greg Albritton

Gerald Allen

Paul Bussman

Bill Hightower

Arthur Orr

Clay Scofield

Shay Shelnutt

Larry Stutts

Cam Ward

Phil Williams

App. 2

App. 3

Arizona

Representatives (26)

John Allen

Brenda Barton

Sonny Borrelli

Russell “Rusty” Bowers

Paul Boyer

Noel Campbell

Karen Fann

Mark Finchem

David Gowan, Sr.

(Speaker of the House)

Rick Gray

Anthony Kern

Jay Lawrence

Vince Leach

David Livingston

(Majority Whip)

Phil Lovas

Javan “J.D.” Mesnard

Darin Mitchell

Steve Montenegro

(Majority Leader)

Jill Norgaard

Justin Olson

Warren Petersen

Tony Rivero

T.J. Shope

Bob Thorpe

Kelly Townsend

Jeff Weninger

Senators (13)

Sylvia Allen (President

Pro Tempore)

Nancy Barto

Andy Biggs (President

of the Senate)

Judy Burges

David Farnsworth

Gail Griffin

(Majority Whip)

John Kavanagh

Debbie Lesko

Catherine Miranda

Don Shooter

Steve Smith

Steve Yarbrough

(Majority Leader)

Kimberly Yee

App. 4

Kansas

Representatives (32) Jack Thimesch

Tony Barton James Todd

Rick Billinger John Whitmer

a ta Senators (22)

Tom Arpke

Pete DeGraaf

Willie Dove (Majority Whip) Molly Baumgardner

Terry Bruce

Keith Esau orl

John Ewy (Majority Leader)

Jim Denning

Randy Garber Seen Sihemeah

Mario Goico (Assistant aaach 4. _—

Majority Leader) oimes

Dennis Hedke Dan Kerschen

Jerry Henry Forrest J. Knox

Brett Hildabrand Julia Lynn (Assistant

Becky Hutchins Majority Leader)

Mark Kahrs Garrett Love —

Jim Kelly (Majority Whip)

Mike Kiegerl pA eng

Charles Macheers et Saeicher

Craig McPherson Michael O’Donnell

Connie O’Brien Rob Olson

Jan Pauls Ralph Ostmeyer

Marc Rhoades Mary Pilcher-Cook

John Rubin Larry Powell

Ron Ryckman, Sr. me “4

Joseph B. Scapa reg om

Don Schroeder Caryn Tyson ~

Chuck Smith Susan Wagle (President

of the Senate)

Gene Suellentrop Richord Wilhern

Bill Sutton

App. 5

Louisiana

Lt. Governor Billy Nungesser

Representatives (18)

Beryl Amedee

Tony Bacala

Chris Broadwater

Patrick Connick

Greg Cromer

Stephanie Hilferty

Dorothy Sue Hill

Valarie Hodges

Frank Hoffman

Paul Hollis

Dodie Horton

Barry Ivey

Katrina Jackson (Past-Chair,

Legislative Black Caucus

and Author of the state’s

admitting privileges law)

Bernard LeBas

Joseph Lopinto

J. Rogers Pope

Scott Simon

Julie Stokes

Senators (11)

Conrad Appel

Regina Barrow

Ronnie Johns

Gerald Long (Senate

President Pro

Tempore)

Danny R. Martiny

Fred Mills

Beth Mizell

Blade Morrish

Jonathan Perry

Neil Riser

Mack “Bodi” White

Mississippi

Representatives (48)

Shane Aguirre

William Tracy Arnold

Nick Bain

Jim Beckett

Donnie Bell

Richard Bennett

Joel Bomgar

Scott Bounds

Randy P. Boyd

Chris Brown

Larry Byrd

Lester E. Carpenter

Gary Chism

Carolyn Crawford

Dana Criswell

Becky Currie

Scott DeLano

William C. Denny

Dan Eubanks

Mark Formby

Robert Fos.er

Herb Frierson

Andy Gipson

Jeffrey S. Guice

Philip Gunn (Speaker

of the House)

Jeff Hale

Joey Hood

Steve Hopkins

Bill Kincade

App. 6

Timmy Ladner

Trey Lamar

Vince Mangold

Roun S. McNeal

Nolan Mettetal

Sam Mims

John Moore

John Read

Randy Rushing

William Shirley

Jeff Smith

Gary Staples

Brad A. Touchstone

Jerry Turner

Tom Weathersby

Jason White

Patricia H. Willis

Cory Wilson

Henry Zuber

Senators (10)

Kevin Blackwell

Eugene S. Clarke

Joey Fillingane

Angela Hill

Gary Jackson

Chris Massey

Chad McMahon

David Parker

Sean Tindell

Michael Watson

App. 7

Missouri

Lt. Governor Peter Kinder

Representatives (84) Elaine Gannon

Justin Alferman Marsha Haefner

Sonya Anderson Jim Hansen

Allen Andrews Ronald Hicks

Kevin Austin Galen Higdon

Kurt Bahr Justin Hill

Chuck Basye Jay Houghton

Nathan Beard Tila Hubrecht

T. J. Berry Tom Hurst

Linda Black Delus Johnson

Jack Bondon Caleb Jones

Rick Brattin Jeff Justus

Cloria Brown Mike Kelley

Wanda Brown Bill Kidd

Eric Burlison S. Nick King

Jason Chipman Andrew Koenig

Kathie Conway Glen Kolkmeyer

Stephen Cookson Mike Lair

Kevin Corlew Bill Lant

Robert Cornejo Jeanie Lauer

Sandy Crawford Donna Lichtenegger

Paul Curtman Warren Love

Charlie Davis Steven Lynch

Shamed Dogan Kirk Mathews

Kevin Engler John McCaherty

Keith English Andrew McDaniel

Sue Entlicher Jeff Messenger

Scott Fitzpatrick Lynn Morris

Paul Fitzwater Dave Muntzel

Lyndall Fraker Jim Neely

Keith Frederick, M.D.

Donna Pfautsch

Patricia Pike

Dean Plocher

Jeff Pogue

Craig Redmon

Holly Rehder

Bill Reiboldt

Tim Remole

Shane Roden

Don Rone

Robert Ross

Lyle Rowland

Becky Ruth

Dan Shaul

Noel Shull

Lindell Shumake

Chrissy Sommer

Jered Taylor

Shelley Taylor

App. 8

Rob Vescovo

Nate Walker

John Wiemann

Ken Wilson

Anne Zerr

Senators (10)

Dan Brown

Michael Cunningham

Ed Emery

Will Kraus

Bob Onder, M.D.

Ron Richard (President

Pro Tempore)

Gary Romine

David Sater

Kurt Schaefer

Wayne Wallingford

App. 9

Oklahoma

Representatives (12)

Lisa J. Billy (Floor Leader)

Jon Echols

George Faught

Randy Grau (Assistant

Majority Whip)

Chris Kannady

Sally Kern

John Paul Jordan

Glen Mulready (Assistant

Majority Leader)

Jason W. Murphey

Tom Newell

Pam Peterson

Sean Roberts

Senators (4)

Josh Brecheen

Dan Newberry

Wayne Shaw

Greg Treat (Assistant Majority

Floor Leader)

App. 10

Pennsylvania

Representatives (43) Donna Oberlander

Matthew Baker (Majority Caucus

Bryan Barbin Secretary)

Stephen Bloom Tina Pickett

Karen Boback Jeff Pyle

Martin Causer Kathy Rapp

Jim Cox Harry Readshaw

Bryan Cutler Mike Reese

(Majority Whip) Brad Roae

Anthony DeLuca Rick Saccone

Russ Diamond Paul Schemel

Cris Dush Curt Sonney

Eli Evankovich Will Tallman

Garth Everett Jesse Topper

Mindy Fee Judy Ward

Matt Gabler Parke Wentling

Mauree Gingrich David Zimmerman

Keith Greiner Senators (10)

Susan Helm

David Hickernell Ryan Aument

Camera Bartolotta

Rich Irvin

Michele Brooks

Rob Kauffman .

“pyr ' John Eichelberger

Sid Michaels Kavulich Mike Fol

John Maher orn gear

antl Miles Scott Hutchinson

naneting Joseph Scarnati (Senate

John McGinnis

President Pro Tempore)

Daryl! Metcalfe

Lloyd Smucker

Brett Miller Pat Stef

Mark Mustio " ar

Elder Vogel

Tedd Nesbit

App. 1l

Tennessee

Lt. Governor Ron Ramsey

Representatives (16) Senators (13)

Mike Carter Paul Bailey

Bill Dunn Mae Beavers

John Holsclaw Mike Bell

Andy Holt Janice Bowling

Roger Kane Dolores Gresham

William Lamberth Mark Green

Ron Lollar Ferrell Haile

Susan M. Lynn Joey Hensley, M.D.

Debra Moody Jack Johnson

Mark Pody Brian Kelsey

John D. Ragan Steve Southerland

Jay D. Reedy Jim Tracy

Courtney Rogers Ken Yager

Jerry Sexton

Billy Spivey

Terri Lynn Weaver

App. 12

Virginia

Delegates (20)

Les Adams

Rich Anderson

Dickie Bell

Kathy Byron

Ben Cline

Mark Cole

M. Kirkland Cox (House

Majority Leader)

Matt Fariss

Nick Freitas

Todd Gilbert

Tim Hugo (House Majority

Caucus Chairman)

Steve Landes

Dave LaRock

Bob Marshall

Richard Morris

John O’Bannon, M.D.

Brenda Pogge

Margaret Ransone

Lee Ware

Tony Wilt

Senators (8)

Dick Black

Bill Carrico

Amanda Chase

Siobhan S. Dunnavant,

M.D.

Tom Garrett

Steve Newman (Senate

President Pro

Tempore)

Bryce Reeves

Glen Sturtevant