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

Supreme Court of the Anited tates... i

WHOLE WOMAN’S HEALTH; AUSTIN WOMEN’S

HEALTH CENTER; KILLEEN WOMEN’S

HEALTH CENTER; NOVA HEALTH SYSTEMS D/B/A

REPRODUCTIVE SERVICES; SHERWOOD C. LYNN,

JR., M.D.; PAMELA J. RICHTER, D.O.; and LENDOL L.

DAVIS, M.D., on behalf of themselves and their patients,

Petitioners,

v.

KIRK COLE, M.D., Commissioner of the

Texas Department of State Health Services;

and MARI ROBINSON, Executive Director of the

Texas Medical Board, in their official capacities,

Respondents.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

+

BRIEF OF AMICI CURIAE PLANNED

PARENTHOOD FEDERATION OF AMERICA,

PLANNED PARENTHOOD OF GREATER

TEXAS SURGICAL HEALTH SERVICES,

PLANNED PARENTHOOD CENTER FOR CHOICE,

AND PLANNED PARENTHOOD

SOUTH TEXAS SURGICAL CENTER

IN SUPPORT OF PET?TIONERS

°

CARRIE Y. FLAXMAN

Counsel of Record

HELENE T. KRASNOFF

PLANNED PARENTHOOD FEDERATION

OF AMERICA

1110 Vermont Avenue, NW

Suite 300

Washington, DC 20005

(202) 973-4800

- carrie. flaxman@ppfa.org

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800)

WWW .COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

po ge rere i

TABLE OF AUTHORITIES ......................cceeeeeeee ili

STATEMENT OF INTEREST ...........................4. 1

SUMMARY OF ARGUMENT .........00.000.0.000..... 3

| ____ERRR RTE SEE SEED URES SS RATE cnc More ee ate eee 6

I. THE CHALLENGED TEXAS PROVI-

SIONS, IF PERMITTED TO TAKE EF-

FECT, WILL HAVE A DEVASTATING

IMPACT ON TEXAS WOMEN .................. 6

A. The Realities of Building and Operat-

ing ASCs, Particularly Those That

Provide Abortion, Will Prevent Other

ASCs from Being Built........................ 7

B. The Admitting Privileges Require-

ment Combined with Other Chal-

lenges of Providing Abortions in

Texas Will Further Prevent Other

ASCs from Being Built or Expanding

SEE icesnnaniesoniéntatedeetiuasiedamnmniiniidainn 12

C. The Challenged Provisions, If Permit-

ted to Take Effect, Will Harm Texas

Women, Rather than Protect Their

ETSI. SA: ere Las 17

Il. PERMITTING THE CHALLENGED

PROVISIONS TO TAKE EFFECT WILL

ENDANGER WOMEN SEEKING SAFE

ABORTION ELSEWHERE IN THE

a LST NDE EE TTS 20

ll

TABLE OF CONTENTS -— Continued

Page

A. Other Courts Have Enjoined Admit-

ting Privileges Requirements After

Concluding That They Would Impose

an Undue Burden on Women’s Right

ae 21

Fe ARLE EEE. BCMA Ore ey we ern 21

EEE eee eee 26

B. Courts Have Enjoined Other Types

of Abortion Restrictions That Block

Women’s Access to Abortion Without

Furthering Women’s Health................. 30

Se ctinntnininindtescnsaitinetiinninmninnhsnnbismcpetiin 35

ill

TABLE OF AUTHORITIES

Page

CASES

Allergan, Inc. v. Alcon Labs., Inc., 324 F.3d

I I eaten 31

Jackson Women’s Health Org. v. Currier, 940

F. Supp. 2d 416 (S.D. Miss. 2013), aff'd as

modified, 760 F.3d 448 (5th Cir. 2014), reh’g

denied, No. 13-60599 (5th Cir. Nov. 20, 2014)........ 14

Planned Parenthood Ariz., Inc. v. Humble, 753

F.3d 905 (9th Cir.), cert. denied, 135 S. Ct.

REESE a amen eco seas 31, 32, 33, 34, 35

Planned Parenthood of Greater Tex. Surg.

Health Servs. v. Abbott, 951 F. Supp. 2d 891

(W.D. Tex. 2013), rev’d, 748 F.3d 583 (5th Cir.

2014), reh’g denied, 769 F.3d 330 (5th Cir.

A ESSE eRe eae SP RE oon eb Ease 4, 13, 33

Planned Parenthood of Wis., Inc. v. Schimel,

806 F.3d 908 (7th Cir. 2015) ........ cece eeeeeeee passim

Planned Parenthood of Wis., Inc. v. Van Hollen,

94 F.Supp. 3d 949 (WD. Wis.), aff'd,

Planned Parenthood of Wis., Inc. v. Schimel,

806 F.3d 908 (7th Cir. 2015) .................. 15, 23, 24

Planned Parenthood Southeast, Inc. v. Strange, 33

F. Supp. 3d 1330 (M.D. Ala. 2014).....13, 14, 27, 28, 29

Planned Parenthood Southwest Ohio ov.

DeWine, 696 F.3d 490 (6th Cir. 2012) 0.00.00... 33

Wash. Legal Found. v. Henney, 202 F.3d 331

ES ae enna 31

iv

TABLE OF AUTHORITIES — Continued

Page

West Ala. Women’s Center v. Williamson, No.

2:15-cv-497-MHT, ___ F. Supp. 3d ___, 2015

WL 4873125 (M.D. Ala. Aug. 13, 2015) .................. 26

Whole Woman’s Health v. Lakey, 46 F. Supp. 2d

673 (W.D. Tex. Aug. 29, 2014)... passim

STATUTES

25 Tex. Admin. Code §§ 139.1-139.6 0.0.0.0... 12

House Bill 2, 83d Leg., 2d Called Sess. (Tex.

STE inancipennmnaniamiiiininnintaneiidiiniadepnibdimibeennaini passim

House Bill 57, Reg. Sess. (Ala. 2013)...................0.008 26

Tex. Health & Safety Code Ann. § 171.004.................. 7

Tex. Health & Safety Code Ann. § 171.012................ 16

Tex. Health & Safety Code Ann. § 171.063(a)(2)....... 16

Wisconsin Act 37 of 2013, codified at Wis. Stat.

I a ee 21

OTHER AUTHORITIES

Abortion Wait Times in Texas: The Shrinking

Capacity of Facilities and the Potential Im-

pact of Closing Non-ASC Clinics, Tex. Pol’y

Evaluation Project (Oct. 2015), https://

utexas.app.box.com/AbortionWaitTimeBrief ......... 17

v

TABLE OF AUTHORITIES — Continued

Am. Coll. of Obstetricians & Gynecologists,

Practice Bulletin No. 143: Medical Manage-

ment of First Trimester Abortion 2 (Mar.

IE crecesrstainnrnssavneneemmnminnmnneimesmennnnnen

Andrea Grimes, Anti-Abortion Groups Take to

the Courts to Block Abortion Clinic Trying to

Comply With HB 2, RH Reality Check

(Feb. 4, 2015), http://rhrealitycheck.org/article/

2015/02/04/anti-abortion-groups-take-courts-

block-abortion-clinic-trying-comply-hb-2/ ........

Becca Aaronsen, New Abortion Limits, but

More Money for Women’s Health, Tex. Tribune

(Aug. 9, 2013), http://apps.texastribune.org/

politics-of-prevention/new-limits-more-money/.

Bill Murphy, Houston Planned Parenthood

Expansion Draws Protests, Hous. Chron. (Sept.

9, 2008), http://www.chron.com/life/houston-

belief /article/Houston-Planned-Parenthood-

expansion-draws-1786909. php ...................00005

Br. of Amici Curiae Am. Coll. of Obstetricians

& Gynecologists & Am. Med. Ass’n in Supp.

of Pls.-Appellants & in Supp. of Reversal,

Planned Parenthood Ariz., Inc. v. Humble,

753 F. 3d 905 (9th Cir. 2014) (No. 14-15624) ...

Br. for Amici Curiae Am. Coll. of Obstetricians

& Gynecologists et al. in Supp. of Pet. for

Writ of Certiorari, Whole Woman’s Health v.

Dn a

Page

vl

TABLE OF AUTHORITIES — Continued

Br. of Amicus Curiae Am. Pub. Health Ass’n in

Supp. of Pet. for Writ of Certiorari, Whole

Woman's Health v. Cole, No. 15-274 .......ccccccceseeeeee 18

Daniel Grossman et al., Change in Abortion

Services After Implementation of a Restrictive

Law in Texas, 90 Contraception 496 (2014)........... 33

David Saleh Rauf, 19,000 Weigh in on New

Abortion Rule, San Antonio Express-News

(Dec. 11, 2013), http://www.expressnews.com/

news/politics/article/19-000-weigh-in-on-new-

abortion-rule-5057062. php ................cccccceesseeeeeeeeeeeees 4

Doris Dixon, What Happens when Abortion

Clinics Close, MSNBC (Oct. 15, 2014, 3:30 PM),

http://www.msnbc.com/msnbc/what-happens-

when-abortion-climics-close..............ccsceseeeeeeesees 19, 20

Hannah Levintova & Kristine Stolakis, Su-

preme Court Allows Texas Abortion Clinics

to Reopen, Mother Jones (Aug. 28, 2014),

http://www.motherjones.com/politics/2014/08/

texas-wendy-davis-sb5-abortion-surgical-center ......... 9

Hannah Neuman, Abortion in Waco No Longer

an Option, Baylor Lariat (Oct. 8, 2014),

http://baylorlariat.com/2014/10/08/abortion-in-

waco-no-longer-an-OptiONn/..............:ccccceeeeseeeeeeeeeeees 14

Jeffrey Toobin, Daughters of Texas: The Fight

for Abortion Rights, New Yorker (Aug. 5,

2013), http://www.newyorker.com/magazine/

2013/08/05/daughters-of-texas...............cc0cceceesseeeeeees 3

vil

TABLE OF AUTHORITIES — Continued

Jessie Degollado, Protest Targets Abortion

Facility Built to Comply with New Law,

KSAT (Oct. 23, 2014), http://www.ksat.com/

news/protest-targets-abortion-facility-built-

to-comply-with-new-law..................:sseseeseeeeeeeees

Jordan Smith, What Now? What Next?: With

Clinics Already Closing, Texas’ Extreme

Abortion Restrictions Head to the Cts.,

Austin Chron. (July 26, 2013), http://www.

austinchronicle.com/news/2013-07-26/what-

ERS EE SERA Sk SOE CO

Josh Baugh, Change in City Zoning Rules For

Abortion Providers OKd, San Antonio

Express-News (Dec. 17, 2015), http://www.

expressnews.com/news/local/article/Change-in-

city-zoning-rules-for-abortion-6706271.php.....

Kim Soffen, How Texas Could Set National

Template for Limiting Abortion Access, N.Y.

Times (Aug. 20, 2015), http://www.nytimes.com/

2015/08/20/upshot/how-texas-could-set-national-

template-for-limiting-abortion-access.html?_r=0

Laura Bassett, Wendy Davis, Texas Democrat,

Fights Abortion Bill with 13-Hour Filibuster,

Huffington Post (June 25, 2013), http://www.

huffingtonpost.com/2013/06/25/wendy-davis-

filibuster_n_3498699.html.............00000cccccccccee eee

Lianne Hart, Antiabortion Effort Targets

Unbuilt Clinic, LA Times (Dec. 14, 2003),

http://articles.latimes.com/2003/dec/14/nation/

STEERER REE ae eterna Sees eNO ae

Page

poet 14

viil

TABLE OF AUTHORITIES — Continued

Mark Reagan, The Planned Parenthood Facility

on Babcock is Properly Zoned and Permitted,

San Antonio Current (Oct. 9, 2015), http://

www.sacurrent.com/Blogs/archives/2015/10/09/

the-planned-parenthood-facility-on-babcock-

is-properly-zoned-and-permitted.......................

MaryAnn Martinez, Protestors Pressure City

Over Planned Parenthood Clinic, KENS5

Eyewitness News _ (Apr. 2, 2015),

http://www.kens5.com/story/news/local/2015/

04/02/protestors-pressure-city-over-planned-

SITE PIE osccccncsccvcesescsecscecnvcnssscosenses

Melanie Wiegernick et al., Medical Abortion

Practices: A Survey of National Abortion

Federation Members in the United States, 78

Contraception 486 (2008)................cccccecceeceeeeeees

Melissa Fletcher Stoeltje, Lawsuit Calls Foul

on New Abortion Facility, San Antonio

Express-News (Jan. 15, 2015), http://www.

expressnews.com/news/local/article/Lawsuit-

calls-foul-on-new-ambulatory-surgical-6018923.

Melissa Fletcher Stoeltje, Planned Parenthood

Will Expand Services With New Center, San

Antonio Express-News (Oct. 11, 2014), http://

www.expressnews.com/news/locaV/article/Planned-

Parenthood-will-expand-services-with-new-

NS ssuusisinaipsboes

Page

ix

TABLE OF AUTHORITIES — Continued

Paul J. Weber, Planned Parenthood: No New

Texas Abortion Clinics, NBCDFW (June 20,

2015), http://www.nbcdfw.com/news/local/

Planned-Parenthood-No-New-Texas-Abortion-

Se . ccseeesseueenanbusos

Pls.” Rep. in Supp. of Mot. for TRO & Prelim.

Inj., Ex. 2, Decl. of Timothy Kress, M.D.,

Planned Parenthood Ariz. v. Humble, 13

F.Supp. 3d 1017 (D. Ariz. 2014) (No. 14-

a Aetinctndcdisseisindeineenainiendinciatninteainiciinssnaiiibeninesidantibie

Respts.’ Opp. to Appl. for a Stay Pending the

Filing and Disposition of a Pet. for a Writ of

Cert., Whole Woman’s Health v. Cole, 790

F.3d 563 (5th Cir. 2014) (No. 14-50928)............

Sandhya Somashekhar, Admitting-Privileges

Laws Have Created High Hurdle for Abor-

tions Providers to Clear, Washington Post (Aug.

10, 2014), https://www.washingtonpost.com/

national/2014/08/10/62554324-1d88-11e4-82f9-

2cd6fa8da5c4_story. html ...............ccccccceceeeeeeeeees

Stephen Young, Planned Parenthood Will Open

a New Dallas Clinic to Clear Texas’ New

Hurdles, Dallas Observer (July 15, 2014),

http://www.dallasobserver.com/news/planned

-parenthood-will-open-a-new-dallas-abortion-

clinic-to-clear-texas-new-hurdles-71146511 .......

Page

x

TABLE OF AUTHORITIES -— Continued

Texas Abortion Ruling Means More Calls,

Longer Waits at Clinics, S.F. Gate (Oct. 12,

2014), http://www.sfgate.com/news/article/

Texas-abortion-ruling-means-more-calls-longer-

EERIE a cee NT re 7 eee

U.S. Food & Drug Admin., Use of Approved

Drugs for Unlabeled Indications, 12 FDA

Drug Bulletin 4 (Apr. 1982).....................:00000000

U.S. Food & Drug Admin., Regulatory Infor-

mation: “Off-Label” and Investigational Use

of Marketed Drugs, Biologics, and Medical

Devices — Information Sheet, http://www.

fda.gov/RegulatoryInformation/Guidances/

ucm126486.htm (last updated June 25, 2014)..

Ushma Upadhyay, Abstract P12: State Law

Requiring FDA Protocol for Medication Abor-

tion is Associated with Increased Need for Ad-

ditional Interventions, 92 Contraception 359

(2015), http://dx.doi.org/10.1016/.contraception.

IIE etnessneciinisiiasetinionenininnunininesimemnnmemienite

Page

1

STATEMENT OF INTEREST’

Amicus Planned Parenthood Federation of Amer-

ica (“PPFA”) is the oldest and largest provider of

reproductive health care in the United States, deliv-

ering medical services through over 650 health cen-

ters operated by 59 affiliates. Its mission is to provide

comprehensive reproductive health care services and

education, to provide educational programs relating

to reproductive and sexual health, and to advocate for

public policies to ensure access to health services.

Planned Parenthood affiliates provide care to approx-

imately 2.5 million women and men each year. One

out of every five women in the United States has

received care from Planned Parenthood. PPFA and its

affiliates have an interest in ensuring the continued

availability of safe and legal abortion throughout the

United States.

Amicus Planned Parenthood of Greater Texas

Surgical Health Services (“PPGTSHS”) and affiliated

entities collectively provide a full range of reproduc-

tive health care services, including family planning

services, testing and treatment for sexually trans-

mitted infections, and cancer screening services

throughout eight counties in Texas, providing care to

nearly 85,000 patients annually. PPGTSHS provides

‘ Written consents to the filing of this brief are on file with

the Clerk of Court. No counsel for a party authored this brief in

whole or in part, and no person other than Amici or their

counsel made a monetary contribution to the preparation or the

submission of this brief.

2

abortions at licensed ambulatory surgical centers

(“ASCs”) in Austin, Dallas, and Fort Worth.

Amicus Planned Parenthood Center for Choice

(“PPCFC”) and an affiliated entity together provide a

full range of reproductive health care services, includ-

ing family planning services, testing and treatment

for sexually transmitted infections, and cancer

screening services throughout three counties in

Texas, providing care to over 35,000 patients annual-

ly. PPCFC provides abortions at a licensed ASC in

Houston.

Amicus Planned Parenthood South Texas Surgi-

cal Center (“PPSTSC”) and affiliated entities collec-

tively provide a full range of reproductive health care

services, including family planning services, testing

and treatment for sexually transmitted infections,

and cancer screening services throughout two coun-

ties in Texas, providing care to over 20,000 patients

annually. PPSTSC provides abortions at a licensed

ASC in San Antonio.

PPGTSHS, PPCFC, and PPSTSC (“Texas Amici”)

are the only Planned Parenthood affiliates that

provide abortions in Texas. Texas Amici, along with

other affiliated Planned Parenthood entities, have

been trusted providers of reproductive healthcare in

Texas for more than seventy-five years.

+

3

SUMMARY OF ARGUMENT

Amici Planned Parenthood Federation of Ameri-

ca, Planned Parenthood of Greater Texas Surgical

Health Services, Planned Parenthood Center for

Choice, and Planned Parenthood South Texas Surgi-

cal Center (“Planned Parenthood”) submit this brief

in support of Petitioners. Planned Parenthood oppos-

es abortion restrictions, like the challenged provisions

of House Bill 2, 83d Leg., 2d Called Sess. (Tex. 2013)

(“HB 2”), that harm rather than serve women’s health

and prevent women from accessing safe, legal abortions.

Consistent with Petitioners’ position in this

litigation, Planned Parenthood has always opposed

HB 2, working against it tirelessly when it was being

considered in the Texas legislature.’ With respect to

the ASC requirement specifically, Planned Parenthood

continued to work against it even after HB 2 was

pushed through the legislature, submitting comments

when the State was developing its implementing

regulations. In those comments, Planned Parenthood

* See Jeffrey Toobin, Daughters of Texas: The Fight for

Abortion Rights, New Yorker (Aug. 5, 2013), http://www.

newyorker.com/magazine/2013/08/05/daughters-of-texas (stating

that “Planned Parenthood, like most medical groups in the state,

opposes” HB 2’s provisions, including the ASC requirement);

Laura Bassett, Wendy Davis, Texas Democrat, Fights Abortion

Bill with 13-Hour Filibuster, Huffington Post (June 25, 2013),

http//www.huffingtonpost.com/2013/06/25/wendy-davis-filibuster_

n_3498699.html (reporting that Cecile Richards, President of

Planned Parenthood Action Fund, flew to Texas to support

legislators opposing HB 2).

4

noted that the ASC requirement is medically unnec-

essary given how safe and heavily regulated abortion

is, and argued that the requirement would harm the

health and violate the constitutional rights of Texas

women.”

Indeed, contrary to claims made by Respondents,

permitting the ASC and admitting privileges re-

strictions of HB 2 to go into effect will do nothing to

further the health of women in Texas. Amici, who

have provided safe abortions in Texas for decades, can

confirm, as the district court properly found, that

women do not obtain better care at ASCs or from

physicians who have admitting privileges. See Pet.

App. 146a (“[Wjomen will not obtain better care or

experience more frequent positive outcomes at an

ambulatory surgical center as compared to a previ-

ously licensed facility.”); see also id. (finding that the

ASC requirement has “such a tangential relationship

to patient safety in the context of abortion as to be

nearly arbitrary”); Planned Parenthood of Greater

Tex. Surg. Health Servs. v. Abbott, 951 F. Supp. 2d

891, 900 (W.D. Tex. 2013) (concluding that “there is

no rational relationship between improved patient

outcomes and hospital admitting privileges within 30

miles of a facility in which a physician provides

* See David Saleh Rauf, 19,000 Weigh in on New Abortion

Rule, San Antonio Express-News (Dec. 11, 2013), http://www.

expressnews.com/news/politics/article/19-000-weigh-in-on-new-

abortion-rule-5057062.php.

5

abortion services”), rev'd, 748 F.3d 583 (5th Cir. 2014),

reh’g denied, 769 F.3d 330 (5th Cir. 2014).

Instead, if the challenged provisions are permit-

ted to take effect, there will be dire consequences for

Texas women. Contrary to Respondents’ suggestion

that Planned Parenthood or other providers will

simply build more ASCs to accommodate women

seeking abortion, HB 2 and other burdensome and

medically unnecessary state regulations with which

abortion providers must comply and the hostile

environment in which they operate will prevent

additional health centers from being built. Planned

Parenthood saw the tragic outcomes for women that

resulted from enforcement of the ASC requirement

over a nearly two-week period in October 2014, when

over a dozen abortion facilities closed overnight, and

the same tragic outcomes will occur should HB 2 take

full effect.

The consequences of the Court’s ruling in this

case will reverberate far beyond Texas. In recent

years, states around the country have enacted similar

abortion restrictions that purport to advance women’s

health but fail to do so. Planned Parenthood has

challenged a number of those requirements, including

in Alabama, Arizona, Ohio, and Wisconsin. Where

those laws have been permitted to take effect, women

seeking abortion have suffered devastating conse-

quences. In other states, courts that have evaluated

the extent to which the restrictions actually promote

women’s health and their real-world impact on wom-

en’s ability to access abortions have enjoined them.

6

If courts are permitted to abdicate their constitution-

al responsibility to review those restrictions, as the

Fifth Circuit did, women’s access to safe abortion

throughout the country will be endangered.

¢

ARGUMENT

I. THE CHALLENGED TEXAS PROVISIONS,

IF PERMITTED TO TAKE EFFECT, WILL

HAVE A DEVASTATING IMPACT ON

TEXAS WOMEN.

Should the ASC requirement take effect, Texas

will be left with only ten abortion clinics. The clinics

that remain will be in the four metropolitan areas of

Houston, Dallas-Fort Worth, Austin, and San Anto-

nio, with a limited facility in McAllen operating

pursuant to the Fifth Circuit's narrow injunction,

leaving women in vast swathes of the state hundreds

of miles from the closest abortion provider.

Respondents would have this Court believe that

this widespread closure of abortion clinics will not

place a substantial obstacle in the paths of Texas

women seeking abortions. Their position completely

ignores the realities of providing abortions in Texas.

The overwhelming challenges of compliance with HB

2 and other state restrictions, as well as the difficul-

ties of operating in an environment that is hostile to

abortion, will prevent other ASCs from opening and

the existing ASCs from expanding. The result for

Texas women will be tragic.

7

A. The Realities of Building and Operat-

ing ASCs, Particularly Those That Pro-

vide Abortion, Will Prevent Other ASCs

from Being Built.

The suggestion that any burden created by the

ASC requirement will be remedied because Texas

Amici or other providers will simply build new ASCs

is unfounded. Respts.’ Opp. to Appl. for a Stay Pend-

ing the Filing and Disposition of a Pet. for a Writ of

Cert. at 18, Whole Woman’s Health v. Cole, 790 F.3d

563 (5th Cir. 2014) (No. 14-50928). It completely

disregards the significant challenges involved in

building an ASC to provide abortions, as well as the

extreme environment in which abortion providers in

Texas must operate.

As an initial matter, the Texas Amici built ASCs

not because such facilities are medically necessary,

but to ensure that even if a medically unnecessary

ASC requirement were imposed, Texas Amici could

continue to provide care to their patients. Texas

Amici built two ASCs only after the Texas legislature

enacted medically unwarranted legislation in 2003

requiring abortions at sixteen weeks of pregnancy or

later to be performed in ASCs, in order to provide

that desperately needed service to patients.‘ Moreover,

* Tex. Health & Safety Code Ann. § 171.004; Jordan Smith,

What Now? What Next?: With Clinics Already Closing, Texas’

Extreme Abortion Restrictions Head to the Cts., Austin Chron.

(July 26, 2013), http://www.austinchronicle.com/news/2013-07-

26/what-now-what-next/.

8

as HB 2 was enacted, given the inherent uncertainty

of litigation and the significant time frames involved

in building ASCs, PPGTSHS and PPSTSC each made

the difficult decision to build ASCs (with PPGTSHS

building two and PPSTSC building one) to ensure

that no matter what the outcome, they could continue

to pursue their mission of providing the full range of

reproductive health services to patients.” Having built

those ASCs, the Texas Amici have no current plans to

build additional ASCs.

Texas Amici can confirm the evidence before the

district court and the district court’s findings that

building an ASC is a lengthy, very expensive process

that can be fraught with problems due to opposition

to abortion. The district court correctly found that the

cost to convert an existing facility to an ASC “will

undisputedly approach 1 million dollars and will most

likely exceed 1.5 million dollars” and that the cost of

acquiring land and constructing a new compliant

clinic “will likely exceed three million dollars.” Pet.

App. at 140a. The actual building costs of the

Planned Parenthood ASCs have exceeded the court’s

* See, e.g., Stephen Young, Planned Parenthood Will Open a

New Dallas Clinic to Clear Texas’ New Hurdles, Dallas Observer

(July 15, 2014), http://www.dallasobserver.com/news/planned-

parenthood-will-open-a-new-dallas-abortion-clinic-to-clear-texas-

new-hurdles-7114651; Melissa Fletcher Stoeltje, Planned

Parenthood Will Expand Services With New Center, San Antonio

Express-News (Oct. 11, 2014), http://www.expressnews.com/news/

local/article/Planned-Parenthood-will-expand-services-with-new-

5816986.php.

9

findings, costing up to 6.5 million dollars per facility

to build.”

The process of building an ASC, moreover, can

take several years from the beginning of fundraising

to the completion of construction, six years in the case

of PPCFC’s ASC in Houston.’ The effort to open the

newest Planned Parenthood ASC, PPSTSC’s ASC in

San Antonio, took far longer than expected and was

beset by challenges. PPSTSC’s existing health center

did not have the space needed to be retrofitted as an

ASC. Raising the substantial funds needed was a

significant hurdle, and just getting a suitable proper-

ty under contract took nearly a year. Local opposition

to the clinic resulted in significant delays in construc-

tion, including losing building subcontractors because

of the presence of protesters at the building site and

their efforts to harass individuals involved in the

project (and their families).* Even after the construction

* See, e.g., Stoeltje, supra note 5; see also Hannah Levintova

& Kristine Stolakis, Supreme Court Allows Texas Abortion

Clinics to Reopen, Mother Jones (Aug. 28, 2014), http://www.

motherjones.comy politics/20 14/08/texas-wendy-davis-sb5-abortion-

surgical-center (stating that PPGTSHS’s Dallas ASC cost $6.1

million).

” Becca Aaronsen, New Abortion Limits, but More Money

for Women’s Health, Tex. Tribune (Aug. 9, 2013), http://apps.

texastribune.org/politics-of-prevention/new-limits-more-money/.

* See, eg., Jessie Degollado, Protest Targets Abortion

Facility Built to Comply with New Law, KSAT (Oct. 23, 2014),

http://www. ksat.com/news/protest-targets-abortion-facility-built-

to-comply-with-new-law; Andrea Grimes, Anti-Abortion Groups

Take to the Courts to Block Abortion Clinic Trying to Comply

(Continued on following page)

10

was completed, meritless zoning challenges brought

by local organizations opposed to abortion further

delayed the opening of the ASC and caused PPSTSC

(and the City of San Antonio) to spend additional

time and resources.” As a result, PPSTSC opened its

ASC nearly a year after it had planned, and had this

Court not issued a stay in this case, it would have been

unable to provide abortions at its previously-licensed

With HB 2, RH Reality Check (Feb. 4, 2015), httpW

rhrealitycheck.org/article/20 15/02/04/anti-abortion-groups-takey

courts-block-abortion-clinic-trying-comply-hb-2/ (discussing ant#

Planned Parenthood organizations’ attempts to harass construc-

tion companies). PPSTSC’s experience was similar to that

experienced by other Texas Amici when they built ASCs. See

Bill Murphy, Houston Planned Parenthood Expansion Draws

Protests, Hous. Chron. (Sept. 9, 2008), http://www.chron.com/

life/houston-belief/article/Houston-Planned-Parenthood-expansion-

draws-1786909.php (opponents protested outside construction

site and contractor’s office); Lianne Hart, Antiabortion Effort

Targets Unbuilt Clinic, LA Times (Dec. 14, 2003), http:/

articles.latimes.com/2003/dec/14/nation/na-clinicl4 (discussing

anti-Planned Parenthood campaign to pressure subcontractors

to boycott construction of Planned Parenthood health center in

Austin).

* See, e.g., Mark Reagan, The Planned Parenthood Facility

on Babcock is Properly Zoned and Permitted, San Antonio

Current (Oct. 9, 2015), http//www.sacurrent.com/Blogs/archives/

2015/10/09/the-planned-parenthood-facility-on-babcock-is-properly-

zoned-and-permitted; Melissa Fletcher Stoeltje, Lawsuit Calls

Foul on New Abortion Facility, San Antonio Express-News (Jan.

15, 2015), http://www.expressnews.com/news/local/article/Lawsuit-

calls-foul-on-new-ambulatory-surgical-6018923.php; MaryAnn

Martinez, Protestors Pressure City Over Planned Parenthood

Clinic, KENS5 Eyewitness News (Apr. 2, 2015), http://www.

kens5.com/story/news/local/2015/04/02/protestors-pressure-city-

over-planned-parenthood/70814494/.

11

abortion facility in San Antonio while waiting for the

ASC to be completed.”

Once open, the costs of operating an ASC — given

the numerous requirements imposed on ASCs that

are wholly unnecessary to the provision of safe abor-

tions — are prohibitive. See Pet. App. at 140a-l4la

(“Combined with evidence of operational costs and

profit margins associated with operating an abortion

facility, the court concludes that few, if any, new

compliant abortion facilities will open to meet the

demand resulting from existing clinics’ closure.

Existing clinics, unable to meet the financial burdens

imposed by the new regulatory regime, will close as a

result.”). For example, the staffing requirements,

including the need for additional nursing and phar-

macy staff, are not only unnecessary to the provision

of abortion but also exceedingly difficult to comply

with. Among other unnecessary requirements, expen-

sive “terminal cleaning,” critical in a sterile hospital

operating room setting but not medically needed

for abortion (and certainly not for the provision of

abortion via medication), is required before every

° Even if PPSTSC had the funds to build another ASC, or

the ability to raise those funds (which it does not), local oppo-

nents of abortion recently obtained changes to the zoning rules

to make it harder for ASCs to be constructed in certain parts of

San Antonio, specifically to prevent such a new facility. Josh

Baugh, Change in City Zoning Rules For Abortion Providers

OK'd, San Antonio Express-News (Dec. 17, 2015), http://www.

expressnews.com/news/local/article/Change-in-city-zoning-rules-

for-abortion-6706271.php.

12

procedure day. The costs of overhead, including

maintaining HVAC systems suited to hospital operat-

ing rooms but not needed to provide safe abortions,

are significant." For all of these reasons, the sugges-

tion that providers, including the Texas Amici, will

simply build more ASCs should the ASC requirement

take effect is not only impractical, but it is also disin-

genuous.

B. The Admitting Privileges Requirement

Combined with Other Challenges of

Providing Abortions in Texas Will Fur-

ther Prevent Other ASCs from Being

Built or Expanding Services.

Even if the ASC requirement alone did not pose a

virtual brick wall preventing the further expansion of

abortion services in Texas, the ASC requirement does

not operate in a vacuum, such that a provider with

sufficient funds and wherewithal to withstand delays,

opposition from protestors, and other challenges

may simply build or convert a facility to an ASC

and begin providing abortions. On the contrary, the

admitting privileges requirement poses an addition-

al (and also medically unnecessary) barrier that

makes it extremely difficult, and sometimes impossi-

ble, to operate and/or to expand, particularly given

'' See 25 Tex. Admin. Code §§ 139.1-139.6; Br. for Amici

Curiae Am. Coll. of Obstetricians & Gynecologists et al. in Supp.

of Pet. for Writ of Certiorari, Whole Woman’s Health v. Cole, No.

15-274, at 10-12.

13

the challenges of operating in an environment that is

hostile to abortion.

As an initial matter, it is extremely difficult for

health centers to recruit physicians who already have

admitting privileges within thirty miles of the health

center because those physicians are often unwilling to

provide abortions due to fears of violence, harassment

or professional consequences for their separate pri-

vate practices. See, e.g., Abbott, 951 F. Supp. 2d at

901; Planned Parenthood Southeast, Inc. v. Strange,

33 F. Supp. 3d 1330, 1333-34 (M.D. Ala. 2014). Other

doctors are precluded by their private practice con-

tracts from providing abortions. Abbott, 951 F. Supp.

2d at 901. And, while each of these problems exists in

the cities, they are particularly acute in smaller

communities.

Moreover, a physician who is willing to provide

abortions or to travel to another community to do so

often cannot obtain admitting privileges within thirty

miles of the abortion clinic for a variety of reasons,

including that these physicians do not meet hospitals’

requirements that they admit a certain number of

patients to the hospital each year (because abortion is

extremely safe and rarely requires follow up care in a

hospital) and that they live and/or work near the

hospital. Jd. at 900-01 (finding it is extremely difficult

for abortion providers to obtain admitting privileges

because they cannot comply with hospitals’ varying

requirements). In addition, hospitals control whether

or not they grant privileges to a physician and can

deny privileges simply because they do not want to be

14

associated with abortion. Strange, 33 F. Supp. 3d at

1343; Jackson Women’s Health Org. v. Currier, 940

F. Supp. 2d 416, 421 (S.D. Miss. 2013), aff’d as modi-

fied, 760 F.3d 448 (5th Cir. 2014), reh’g denied, No.

13-60599 (5th Cir. Nov. 20, 2014).

Indeed, while Planned Parenthood affiliates

provided abortions for many years in Waco, Texas as

well as in the West Texas cities of Lubbock, Odessa,

San Angelo, and Midland, they have been unable to

offer abortions in any of those communities since

2013.” Given that these clinics no longer provide

abortions, there are no abortion providers between

San Antonio and El Paso, a distance of 550 miles.

Texas Amici are unable to find local physicians in

those communities with privileges who are willing to

provide abortions due to the size of those communi-

ties and the hostility that abortion providers face.”

* See, e.g., Hannah Neuman, Abortion in Waco No Longer

an Option, Baylor Lariat (Oct. 8, 2014), http://baylorlariat.com/

2014/10/08/abortion-in-waco-no-longer-an-option/; Kim Soffen,

How Texas Could Set National Template for Limiting Abortion

Access, N.Y. Times (Aug. 20, 2015), http:?//www.nytimes.com/2015/

08/20/upshot/how-texas-could-set-national-template-for-limiting-

abortion-access.html?_r=0.

* Paul J. Weber, Planned Parenthood: No New Texas

Abortion Clinics, NBCDFW (June 20, 2015), http?//www.nbedfw.com/

news/local/Planned-Parenthood-No-New-Texas-Abortion-Clinics-

308718241.html. See generally Sandhya Somashekhar, Admitting-

Privileges Laws Have Created High Hurdle for Abortions

Providers tc Clear, Washington Post (Aug. 10, 2014),

https://www. washingtonpost.com/national/20 14/08/10/62554324-

1d88-11e4-82f9-2cd6fa8da5c4_story.html.

15

Planned Parenthood physicians in the past traveled

to those communities, but a physician traveling to

provide abortions cannot obtain local admitting

privileges due to the various hospital requirements

outlined above. The same challenges would face Texas

Amici if they ever sought to provide abortions in the

Rio Grande Valley.

As a result of the admitting privileges require-

ment (and the difficulty of recruiting physicians

willing to provide abortions who have or could obtain

local admitting privileges), merely having the funds

to build and operate an ASC, which itself poses

tremendous hurdles, does no good; providers cannot

simply build an ASC and begin providing abortions.

The same challenges also make it difficult for

existing providers to expand their capacity to provide

abortions to women who need them, even if the ASC

is built. Many physicians who provide abortions (and

have admitting privileges) already balance full-time

professional responsibilities with their provision of

care for Planned Parenthood and would have difficul-

ty expanding their hours to provide additional ser-

vices. See, e.g., Planned Parenthood of Wis., Inc. v.

Van Hollen, 94 F. Supp. 3d 949, 981 (W.D. Wis.), aff’d,

Planned Parenthood v. Schimel, 806 F.3d 908 (7th

Cir. 2005). Those physicians are available to a partic-

ular abortion facility only one or two days per week,

or even less frequently.

The difficulty of expanding services given the

small pool of physicians who can and are willing to

16

provide abortions in Texas is compounded by a sepa-

rate state requirement that patients undergo a man-

datory state-directed counseling session, provided in

part by the same physician who will perform the

abortion, as well as an ultrasound performed by that

same physician, at least twenty-four hours in advance

of the abortion. Given that the physician must be

available for the initial visit and for the abortion, the

availability of physicians to provide additional abor-

tions at the remaining clinics should HB 2 take effect

is even further limited.” These challenges are en-

hanced when physicians are temporarily unavailable

because of vacations or for personal reasons such as

illness.

Indeed, even without HB 2 taking full effect,

Texas Amici face struggles in providing abortions

within the confines of the existing Texas abortion

“ Tex. Health & Safety Code Ann. § 171.012. Unless a

patient lives more than 100 miles from any provider, the coun-

seling must occur in person. Id.

‘* This problem is compounded for medication abortions,

since Texas also requires abortion providers to adhere to an

outdated protocol for medication abortion requiring four visits

by a patient te the abortion facility within an approximately

two-week period (one for the state-mandated information and

three for the abortion). Tex. Health & Safety Code Ann.

§ 171.063(aX2). The difficulty, and often impossibility of ensur-

ing that a physician is available for multiple visits, let alone the

same physician, makes it extremely difficult for Texas providers

to offer medication abortion at all. Indeed, the number of

medication abortions in the state dropped dramatically after HB

2. See infra Part II.B.

17

restrictions, which hamper their ability to provide

care and cause unnecessary delays. There is, there-

fore, no reason to believe that additional abortion

services will be readily available in Texas, if HB 2 is

allowed to take full effect.

C. The Challenged Provisions, If Permitted

to Take Effect, Will Harm Texas Women,

Rather than Protect Their Health.

Because it is unlikely that new ASCs will be built

and because existing ASCs will have difficulty ex-

panding, the challenged provisions, if permitted to

take effect, will harm the women of Texas by denying

or delaying the care they need.

For some women who must travel to obtain an

abortion, the effect of the challenged provisions will

be dire. The law’s burdens will fall hardest on women

who do not have sufficient financial resources, who

have jobs without flexible schedules or paid time

away from work needed to travel to one of the few

remaining abortion providers, or who cannot access

child care. Pet. App. 144a (“The act’s two requirements

erect a particularly high barrier for poor, rural, or

disadvantaged women throughout Texas, regardless

of the absolute distance they may have to travel to

'* Abortion Wait Times in Texas: The Shrinking Capacity of

Facilities and the Potential Impact of Closing Non-ASC Clinics,

Tex. Pol'y Evaluation Project (Oct. 2015), https//utexas.app.box.com/

Abortion WaitTimeBrief.

18

obtain an abortion.”). It is, therefore, completely

disingenuous for Respondents to pretend that wide-

spread closures of abortion facilities will not place

substantial obstacles in the paths of Texas women,

particularly women with the fewest financial re-

sources.

For women who have the resources to travel or

who are located near the remaining clinics, the im-

pact will be no less devastating. There are more than

five million women of reproductive age living in Texas

today — the second largest state in both population

and geographical size. If this Court upholds the

decision below, there will be only ten abortion provid-

ers left state-wide (five of them Planned Parenthood

facilities). Because as explained above, new ASCs will

be unlikely to open and the existing ASCs will face

overwhelming barriers to expanding services, many

women will be left unable to access care, or to access

it in a timely manner. And while abortion is safe

throughout pregnancy, both its risk and cost increase

with delay.” This means that rather than improve

women’s health, these restrictions will actually make

many women’s abortions /ess safe.

The devastating impact of these restrictions was

confirmed during the nearly two-week period in

October 2014 when the ASC requirement took effect

" See Br. of Amicus Curiae Am. Pub. Health Ass’n in Supp.

of Pet. for Writ of Certiorari, Whole Woman’s Health v. Cole, No.

15-274, at 22-23.

19

prior to this Court entering a stay.” A dozen providers

shuttered their operations overnight, and the follow-

ing day, Texas Amici’s health centers were inundated

with desperate phone calls from women who had

planned to obtain care from those now-shuttered

providers.” On October 3, 2014, PPCFC’s call center

received 572 phone calls from the Houston area, more

than six times the usual call volume for a Friday.

Some of these patients had received phone calls from

providers with whom they had scheduled appoint-

ments informing them that the providers could not

treat them. Others had arrived at the shuttered

providers’ facilities for their appointments only to find

out that they could not obtain the care they needed.”

One woman had traveled to Houston to obtain an

abortion from one of the shuttered providers. She had

her first visit with that physician on Thursday, as

required by Texas law, and had already undergone

the mandatory ultrasound. The abortion was sched-

uled for the next day, and she was staying in a Hou-

ston hotel, having left her young children at home

with a friend. When she reached out to PPCFC, she

* Doris Dixon, What Happens when Abortion Clinics Close,

MSNBC (Oct. 15, 2014, 3:30 PM), http://www.msnbc.com/msnbc/

what-happens-when-abortion-clinics-close; Texas Abortion Ruling

Means More Calls, Longer Waits at Clinics, S.F. Gate (Oct. 12,

2014), http://www.sfgate.com/news/article/Texas-abortion-ruling-

means-more-calls-longer-5818346.php.

Dixon, supra note 18.

- =

20

was frantic and said that she needed to get home to

her children. PPCFC tried to help her make ar-

rangements to remain in Houston for another night

so that she could be treated. In the end, she decided

that she could not be away from her children another

night, and left PPCFC sobbing.”

This story is just one of many that Texas Amici

heard, and it does not even demonstrate the full

extent of the burden placed on women when abortion

facilities are forced to close, since this woman was

relatively privileged, with the means for travel and

an overnight stay and the ability to obtain some child

care. As explained above, for women without such

means, the effects of the challenged requirements are

even more extreme.

Thus, there is no doubt that restrictions at issue

here would place substantial obstacles in the paths of

Texas women seeking care.

Il. PERMITTING THE CHALLENGED PROVI-

SIONS TO TAKE EFFECT WILL ENDAN-

GER WOMEN SEEKING SAFE ABORTION

ELSEWHERE IN THE UNITED STATES.

Texas is not the only state in recent years to

enact abortion restrictions that purport to further

women’s health but in fact do not actually serve that

goal. Planned Parenthood affiliates throughout the

* Id.

21

country have challenged those restrictions to ensure

that women can continue to access safe and legal

abortions. And those cases, which this case will

certainly impact, demonstrate the important role that

the courts play in protecting constitutional rights.

The Court should ensure that abortion restrictions,

when viewed in light of the real-world contexts in

which women live and providers operate, actually

promote women’s health and do not impose burdens

that are undue. Without such scrutiny, a woman’s

right to choose will remain the illusory one it was

rendered by the decision below.

A. Other Courts Have Enjoined Admit-

ting Privileges Requirements After

Concluding That They Would Impose

an Undue Burden on Women’s Right to

Abortion

Planned Parenthood affiliates, along with other

providers, have challenged local admitting privileges

requirements in Alabama and Wisconsin, and courts

in those states, like the district court below, have

properly held that such laws impose a constitutional-

ly undue burden on women.

1. Wisconsin

In 2013 (the same year Texas enacted HB 2), the

Wisconsin legislature passed Wisconsin Act 37 of

2013, codified at Wis. Stat. Ann. § 253.095, which,

like Texas HB 2, required admitting privileges at a

22

hospital within thirty miles of the location where the

abortion is performed. The law was enacted less than

a month after it was proposed, and went into effect

essentially overnight, even though, as the Seventh

Circuit observed in upholding the permanent injunc-

tion against it, there is “no way” a physician who

provides abortion “or any other type of doctor for that

matter, could obtain admitting privileges so quickly.”

Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d

908, 911 (7th Cir. 2015). The law was opposed by all

of the leading state medical associations, the only

physician who testified in the legislature testified

against it, and the only testimony in its favor was

provided by a representative of Wisconsin Right to

Life. Id. at 914.

Planned Parenthood of Wisconsin (“PPWI”) and

Affiliated Medical Services (“AMS”), the only outpa-

tient abortion providers in the state, challenged the

law. If it had been permitted to take effect, it would

have had devastating consequences for Wisconsin

women seeking abortion, just as HB 2 would in Texas.

A full trial on the merits showed that the two physi-

cians at AMS, the state’s largest clinic and one of only

four remaining in the entire state, are unable to

obtain privileges. In fact, those physicians are ineligi-

ble to even apply for privileges: As physicians whose

practices consist almost exclusively of outpatient

practice, they “lack recent experience in performing

inpatient medical procedures for which hospitals

would grant admitting privileges.” Jd. at 916. Given

how safe abortion is, moreover, they also cannot

23

satisfy requirements imposed by hospitals of certain

minimum admissions, despite being the most experi-

enced providers of abortion in the state. Van Hollen,

94 F. Supp. 3d at 978, 983.

Furthermore, AMS is unable to hire new physi-

cians who have or who can obtain admitting privileg-

es because of hostility to abortion and the physicians

who provide them. As the Seventh Circuit stated, “it

is difficult to hire such doctors because of the

vilification, threats, and sometimes violence directed

against abortion clinics and their personnel in states,

such as Wisconsin, in which there is intense opposi-

tion to abortion.” Schimel, 806 F.3d at 917; Van

Hollen, 94 F. Supp. 3d at 983 (“(SJignificant barriers

to recruiting and retaining practitioners present a

real and growing threat to the availability of abortion

services in Wisconsin.”). The district court noted that

“{olne of the most striking aspects of the trial” was

testimony by physicians about their “personal experi-

ences with harassment and threats,” which included

harassment at work and at home. Van Hollen, 94

F. Supp. 3d at 983. PPWI’s Medical Director, a board-

certified ob-gyn and Assistant Professor of Obstetrics

and Gynecology at the Medical College of Wisconsin,

testified:

I am verbally harassed every time I go to

Planned Parenthood. Even when I’m going to

the colposcopy clinic I may be harassed. I’ve

had protesters at my home. I’ve had protest-

ers march up and down my street. They have

gone door to door to my neighbors handing

24

them pamphlets, videotapes, saying “We are

here because a babykiller ... lives in your

neighborhood.”

Id.

If Wisconsin were able to enforce the admitting

privileges requirement, AMS would be forced to close,

with several immediate consequences for Wisconsin

women. First, the PPWI health centers that would

remain lack the capacity to provide the needed care.

An eight-to-ten-week delay for abortions would ensue,

the district court found, driven in part by the over-

whelming difficulty of recruiting new physicians who

are both willing to provide abortions and able to

obtain necessary admitting privileges. Id. at 990.”

The delay will push some women outside the window

when abortions are available, completely denying

them that care, while forcing other women to obtain

later abortions, which are not only more expensive,

but carry more risk. Second, AMS is the only outpa-

tient provider in Wisconsin that provides abortions at

or after nineteen weeks of pregnancy, and closing

AMS will result in women being unable to obtain

” Because of hospital requirements that physicians with

privileges admit a certain number of patients as well as demon-

strate ongoing competence in performing inpatient procedures,

the long-term ability of PPWI’s physicians to maintain privileges

is in doubt. “Planned Parenthood’s clinics could also face having

to close or significantly reduce the abortions they perform,

within a few years, despite currently having doctors with

admitting privileges.” Schimel, 806 F.3d at 917; see also Van

Hollen, 94 F. Supp. 3d at 984.

25

abortions in Wisconsin after that point in pregnancy.

Schimel, 806 F.3d at 918.

Travel to Chicago would not, and could not,

substitute for the closure of AMS. Not only is the

availability of out-of-state clinics legally irrelevant,

id. at 918-19, but the trip would also prevent low-

income women, who make up the majority of the

women seeking outpatient abortion in Wisconsin,

from obtaining abortions:

[A] 90-mile trip is no big deal for persons

who own a car or can afford an Amtrak or

Greyhound ticket... . But for [patients below

the poverty line] ... a round trip to Chicago,

and finding a place to stay overnight in Chi-

cago should they not feel up to an immediate

return to Wisconsin after the abortion, may

be prohibitively expensive. ... These women

may also be unable to take the time required

for the round trip away from their work or

the care of their children. The evidence at

trial, credited by the district judge, was that

18 to 24 percent of women who would need to

travel to Chicago or the surrounding area for

an abortion would be unable to make the

trip.

Id. at 919.

Thus, the Wiscensin privileges requirement, like

HB 2, would have “substantially curtailed the availa-

bility of abortion in Wisconsin, without conferring an

offsetting benefit (or indeed any benefit) on women’s

26

health,” id. at 916, and therefore the Seventh Circuit

properly held it unconstitutional.

2. Alabama

The same year as Texas and Wisconsin, Alabama

also enacted a similar hospital privileges law, House

Bill 57, Reg. Sess. (Ala. 2013). If that law had been

permitted to take effect, it would have forced three of

the state’s remaining five abortion clinics to close,

leaving the three largest cities in the state (Birming-

ham, Mobile and Montgomery) without abortion

providers.” Planned Parenthood Southeast (“PPSE”)

(which operates health centers in Birmingham and

Mobile), along with Reproductive Health Services in

Montgomery, challenged that law, and after extended

proceedings, including a ten-day trial, the district

court held it unconstitutional.

Echoing the findings of the other district courts

to have considered such laws, the Alabama court

* Since the Alabama trial, the physician who provided

abortions ‘in Tuscaloosa retired, and his replacement has been

unable to obtain local hospite! privileges. Should the Alabama

requirement be permitted to take effect, Alabama would be left

with only one abortion provider — in the northern city of Hunts-

ville. The Huntsville clinic, however, has also had significant

difficulties hiring physicians with admitting privileges and

complying with a related requirement that clinics maintain an

agreement with an “outside covering physician” with hospital

privileges. West Ala. Women’s Center v. Williamson, No. 2:15-cv-

497-MHT, __ F. Supp. 3d __,, 2015 WL 4873125 at *5 (M.D.

Ala. Aug. 13, 2015).

27

found that “none of the doctors who provide abortions

in Montgomery, Birmingham, and Mobile would be

able to obtain staff privileges that satisfy the re-

quirements of [Alabama’s privileges law] and that no

doctors who currently hold or could obtain such

privileges would begin performing abortions in those

cities.” Strange, 33 F. Supp. 3d at 1341. Local resi-

dency requirements imposed by hospitals on their

medical staff members would prevent the clinics’

current physicians, all of whom travel to Alabama to

provide abortions, from obtaining privileges, as would

requirements that physicians admit a certain number

of patients on a regular basis. Jd. at 1343.

Nor will any local physicians be willing to pro-

vide abortions. The district court found that this was

so for several reasons, including that “the decision to

perform abortions carries detrimental professional

consequences in Alabama.” Jd. at 1348. Indeed, for

example, the court found that affiliation by two

physicians with the clinic in Huntsville resulted in

protest activity that ultimately caused the complete

loss of their private practices. Essentially, physicians

must choose between providing abortion and main-

taining their private practices. Jd. at 1350.

Moreover, “violence against and harassment of

abortion providers, beyond run-of-the-mill political

protest, persist” and are a further barrier to doctors

being willing to provide abortion. Jd. at 1348. The

district court noted that “abortion providers and

women seeking abortions in Alabama today live and

work in a climate of extreme hostility to the practice

of abortion.” Jd. at 1334. The clinics offered many

28

“examples of doctors declining requests to affiliate

with a clinic ... out of fear for the physical safety of

themselves and their families.” Jd. at 1352.

Evidence of this hostility was found in the pro-

ceedings themselves. Physicians for the plaintiffs,

who were referred to only by pseudonyms to protect

their identities and who appeared in open court

behind a curtain, testified about “their daily fears for

their professional livelihoods as well as their personal

safety.” Id. Dr, Mary Roe, a PPSE physician:

testified that: “Every time I go to work,

whether it’s in Birmingham or Mobile, I’m

always afraid that there will be somebody

who is in the crowd who is passionate

enough about the topic that they’re willing to

shoot. I worry about my children. I worry

about my husband, my extended family.” . ..

As she delivered this testimony, there was a

hush over the courtroom, as the court and all

others in attendance heard the palpable fear

in her voice.

Id. at 1351 (internal citations omitted). Dr. Roe’s fears

are far too real, as was shown with the shooting at a

Planned Parenthood health center in Colorado

Springs just this past November.

Being “firmly convinced that ... [the require-

ment] would wipe out the availability of abortion

services in Montgomery, Birmingham, and Mobile,”

id. at 1355, the district court outlined the devastating

consequences that would result for Alabama women

seeking abortion. First,

29

[fJor [women living in poverty], going to an-

other city to procure an abortion is particu-

larly expensive and difficult. Poor women are

less likely to own their own cars and are in-

stead dependent on public transportation,

asking friends and relatives for rides, or bor-

rowing cars; ‘* ey are less likely to have in-

ternet access; many already have children,

but are unlikely to have regular sources of

child care; and they are more likely to work

on an hourly basis with an inflexible sched-

ule and without any paid time off.

Id. at 1357. And, second, given the reduction in the

number of available providers, all women seeking

abortions would be harmed: “[T]here would simply be

fewer abortions performed in the State than there

would be women who would otherwise seek to obtain

them ... preventling]) some women and harmfully

delay[ing] other women from obtaining abortions.” Jd.

at 1362. Because of the difficulties of compliance with

the burdensome regulations faced by all of the clinics

in Alabama, the district court noted the “significant

likelihood that Alabama would be left in the foreseea-

ble future without a single abortion clinic.” Jd. Find-

ing the “obstacles imposed by the ... requirement

more severe than warranted by the State’s [health-

related] justifications for the regulation,” id. at 1377,

the district court protected the continued availability

of abortions in Alabama and struck the requirement.

This Court should do the same with Texas HB 2,

and ensure not only that women in Texas, but also

30

women in other states like Wisconsin and Alabama,

are able to continue to access safe and legal abortions.

B. Courts Have Enjoined Other Types

of Abortion Restrictions That Block

Women’s Access to Abortion Without

Furthering Women’s Health.

ASC and admitting privileges requirements are

not the only abortion restrictions that states have

enacted in recent years, claiming that they further

women’s health when they in fact do not. Therefore,

the Court’s ruling in this case will impact not only

Texas, and its ASC and admitting privileges require-

ments, but other abortion restrictions as well. It is

critical to women’s ability to continue to access safe

abortion that the Court’s ruling requires meaningful

scrutiny of laws that restrict abortion for the asserted

purpose of promoting women’s health.

For example, several states, including Texas,

Ohio, and Arizona, have restricted the provision of

safe, early abortion by placing medically unwarranted

limits on the use of medication abortion. Medication

abortion typically involves two kinds of prescription

pills, mifepristone and misoprostol, and for approxi-

mately fifteen years, women who are no more than

nine or ten weeks pregnant have been able to utilize

those medications to end their pregnancies.

Mifepristone was approved by the Food and Drug

Administration (“FDA”) in 2000. The approval was

based on clinical trials that were completed before

31

1996 and demonstrated that a certain regimen was

safe and effective through seven weeks of pregnancy.

Accordingly, the approved mifepristone label reflects

that regimen and that gestational age. But, even by

2000, additional studies showed that a_ protocol

different from the one on the label — requiring less

mifepristone and one fewer visits to the clinic — was

superior and could be safely and effectively used later

in pregnancy. Planned Parenthood Ariz., Inc. v.

Humble, 753 F.3d 905, 907-08 (9th Cir.), cert. denied,

135 S. Ct. 870 (2014).% Such an “evidence-based” or

“off-label” use is common in medicine and has been

recognized by the FDA as good medical practice.”

Therefore, the overwhelming majority of the more

than two million American women who have safely

* Melanie Wiegernick et al., Medical Abortion Practices: A

Survey of National Abortion Federation Members in the United

States, 78 Contraception 486, 489 (2008) (finding that as early

as 2001, just four percent of surveyed providers reported using

the regimen on the FDA label).

* See Allergan, Inc. v. Alcon Labs., Inc. 324 F.3d 1322, 1324

n.1 (Fed. Cir. 2003) (per curiam); Wash. Legal Found. v. Henney,

202 F.3d 331, 333 (D.C. Cir. 2000); U.S. Food & Drug Admin.,

Use of Approved Drugs for Unlabeled Indications, 12 FDA Drug

Bulletin 4, 5 (Apr. 1982) (“[Alccepted medical practice often

includes drug use that is not reflected in approved drug label-

ing.”); U.S. Food & Drug Admin., Regulatory Information: “Off-

Label” and Investigational Use of Marketed Drugs, Biologics,

and Medical Devices ~ Information Sheet, http://www.fda.gov/

RegulatoryInformation/Guidances/ucm126486.htm ‘last updated

June 25, 2014) (“Good medica] practice and the dest interests of

the patient require that physicians use legally available drugs,

biologics and devices according to their best knowledge and

judgment.”).

32

used mifepristone to terminate an early pregnancy

have followed an evidence-based protocol different

from the one on the mifepristone label. That protocol

is considered “best practices .. by practicing doc-

tors,” including leading professional organizations,

such as the American College of Obstetricians and

Gynecologists. Jd. at 908; see also id. (evidence-based

protocol has “clear advantage” over the label protocol,

including because it results in a lower rate of ongoing

pregnancies and requires fewer surgical interventions

to complete the abortion).”

Nevertheless, several states have sought to

reverse this medical progress, and buck the recom-

mendations of leading medical groups, by requiring

physicians to use the outdated protocol. By doing so,

those states have banned medication abortion after

seven weeks (when it is otherwise available until nine

or ten) and required that, if medication abortion is

offered, women follow the rarely used, outdated

protocol. See id. at 915-16. Thus, despite claiming to

further women’s health, these states have mandated

* See also Am. Coll. of Obstetricians & Gynecologists,

Practice Bulletin No. 143: Medical Management of First Tri-

mester Abortion 2 (Mar. 2014) (“Based on efficacy and the

adverse effect profile, evidence-based protocols for medication

abortion are superior to the FDA-approved regimen.”); Br. of

Amici Curiae Am. Coll. of Obstetricians & Gynecologists & Am.

Med. Ass’n in Supp. of Pls.-Appellants & in Supp. of Reversal,

Planned Parenthood Ariz., Inc. v. Humble, 753 F. 3d 905 (9th

Cir. 2014) (No. 14-15624).

33

“a less safe, less effective treatment regimen.” Jd. at

916.

Planned Parenthood affiliates in Ohio and Texas

Amici, along with other providers, challenged the

Ohio and Texas restrictions, but those courts did not

consider if the restriction actually promoted women’s

health, and those laws were upheld. See Planned

Parenthood Southwest Ohio v. DeWine, 696 F.3d 490

(6th Cir. 2012); Abbott, 951 F. Supp. 2d at 906. Con-

sequences for women in those states have been dra-

matic. In Ohio, the number of medication abortions

declined precipitously even while medication abor-

tions increased nationally. One Planned Parenthood

Ohio affiliate saw use of medication abortion plum-

met from 37% of all first trimester abortions to 14%.”

The effects of this type of restriction are also stark in

Texas, with the number of medication abortions

declining by 70%.”

And medical research in those states following

implementation of those laws is beginning to confirm

that mandating the outdated label protocol harms

women’s health. For example, upcoming research

involving the operation of Ohio’s restriction shows

that the outdated label requirement has increased

” Decl. of Timothy Kress, M.D. §§ 4-5, Pls.’ Rep. in Supp. of

Mot. for TRO & Prelim. Inj., Ex. 2, Planned Parenthood Ariz. v.

Humble, 13 F. Supp. 3d 1017 (D. Ariz. 2014) (No. 14-01910).

* Daniel Grossman et al., Change in Abortion Services After

Implementation of a Restrictive Law in Texas, 90 Contraception

496, 499 (2014).

34

the need for medical intervention subsequent to the

abortion.”

By contrast, the U.S. Court of Appeals for the

Ninth Circuit has preliminarily blocked a similar

Arizona law from taking effect, in a challenge brought

by Planned Parenthood Arizona and another provider.

That court looked at the evidence before it, and held

that the law could not stand when the burdens it

imposed were weighed against the state’s justifica-

tions. Humble, 753 F.3d at 913. The Humble court

explained that because many women do not discover

they are pregnant in the first seven weeks (when the

label regimen is available), the “law will effectively

ban medication abortion outright ... [flor a signifi-

cant number of women.” /d. at 915.

Moreover, for women who are still within the

window in which the regimen is available, the extra

dosage of the medication and the extra clinic visit

require at least $200 more than the evidence-based

regimen, not including the costs to the patient in-

volved with the additional trip. “[TJhese increased

costs would reduce the number of women who receive

abortions, many of whom ... are poor. .. [F Jor these

women, the additional costs are significant and

* Ushma Upadhyay, Abstract P12: State Law Requiring

FDA Protocol for Medication Abortion is Associated with In-

creased Need for Additional Interventions, 92 Contraception 359,

367-68 (2015), http://dx.doi.org/10.1016/).contraception.2015.06.062;

ACOG, Medical Management of First Trimester Abortion, supra

note 26, at 11.

35

sometimes prohibitive.” Jd. at 916. Perhaps most

importantly, the Humble court recognized that requir-

ing women to follow the outdated regimen, rather

than promoting women’s health as the state claimed,

would actually impose “increas(ed] heath risks.” /d.

It, therefore, was likely to impose an undue burden.

As is demonstrated from these cases that

Planned Parenthood affiliates have litigated in the

past several years alone, the Court’s ruling in this

case will impact not only millions of women in Texas,

but women seeking abortion throughout the country.

For more than forty years, this Court has protected

women’s right to choose abortion and in order to

ensure this protection is meaningful for all women, it

should declare Texas HB 2 unconstitutional.

¢

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be reversed.

Respectfully submitted,

CARRIE Y. FLAXMAN

Counsel of Record

HELENE T. KRASNOFF

1110 Vermont Avenue, NW

Suite 300

Washington, DC 20005

carrie.flaxman@ppfa.org

Counsel for Amici Curiae

January 4, 2016