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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A78

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0610%3A78. Public record. Not legal advice.