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

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## Record

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

## Text

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.

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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

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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

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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)

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A61. Public record. Not legal advice.