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

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| No. 15-274 JAN - 4 2016

~ OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

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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,

KIRK COLE, M.D., Commissioner of the Texas Department of

State Health Services; MARI ROBINSON, Executive Director

of the Texas Medical Board, in their official capacities,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE

SERVICE WOMEN’S ACTION NETWORK AND

RETIRED OR FORMER MILITARY OFFICERS

IN SUPPORT OF PETITIONERS

Agnes Dunogué

Counsel of Record

Laura Caldwell

Jae Young Jeong

SHEARMAN & STERLING LLP

599 Lexington Avenue

New York, New York 10022

212-848-4000

agnes.dunogue@shearman.com

Jatiuary 4, 2016 Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE. ...................

SUMMARY OF ARGUMENT........................

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HB2 IMPOSES PARTICULAR

UNDUE BURDENS ON THE

CONSTITUTIONAL RIGHTS

OF SERVICE WOMEN......................

A. HB2’s Effects Are Directly

Relevant to Service Women

Because, If Seeking Abortion

Care, They Must Use Outside

Facilities In Many Instances ......

B. HB2 Substantially Constrains

Service Women’s Access to

Abortion Care Because They

Have Limited Ability to Leave

Military Bases, Travel for

Longer Distances and Wait

Oe I TI niicecertccsmasasenisnnins

C. HB2 Could Force Service Women

In Need of Abortion Care to

Disobey Military Rules—and

Potentially Face Very Serious

Consequences—or Resort to

Unsafe or Illegal Methods of

Ending a Pregnancy....................

D. The Greater Burdens Imposed

by HB2 Would Be Particularly

Detrimental to Junior Service

Women Beginning Their Military

SERRATE ee ee ae

E. HB2 Particularly Restricts

Service Women’s Ability to

Access Abortion Services Prior

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Il. HB2’°S BURDENS ON SERVICE

WOMEN AFFECT THE RIGHTS

OF A GROWING AND VITAL

COMPONENT OF OUR ARMED

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APPENDIX

Figure 1: Location of open facilities

providing abortion care in relation

to military bases, pre-HB2................

Figure 2: Location of open facilities

providing abortion care in relation

to military bases, post-HB2...............

TABLE OF AUTHORITIES

Page(s)

CASES

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

806 F.3d 908 (7th Cir. 2015).........00.00000... 18

Planned Parenthood v. Casey,

RE Ro eee ee 6

Rostker v. Goldberg,

Ge Ws ee Se itviishivencvctenceaaee 25

STATUTES, RULES AND REGULATIONS

OD Ses Ob Be idinesiseecocctcduasetcimanaaen 12

Army Reorganization Act,

Pub. L. No. 30-192,

a RD, Tale ee cnntcinttnicenitiatadinatanane 24

Naval Service Appropriations Act,

Pub. L. No. 115-116,

BR gern 24

Women’s Armed Services Integration

Act of 1948,

Pub. L. No. 625-449,

Be SFr NE cieiesiciinsscitstncsntinmbinidnamamena 24

Texas House Bill 2,

83d Legis., 2d Spec. Sess. (Tex. 2013) .....passim

Rule 37.6 of the Supreme Court

—~§ ht ASE 1

Page(s)

Army Reg. 40-400 (July 8, 2014),

http://www.apd.army.mil/pdffiles/

GS 12, 13

Army Reg. 600-8-10 (Aug. 4, 2011),

http://www.apd.army.mil/pdffiles/

FEE 15, 16

Army Reg. 614-30 (Jan. 27, 2015),

http://www.apd.army.mil/pdffiles/

a rcenneene 22

OTHER AUTHORITIES

Dep’t of the Air Force, Air Force Guidance

Memorandum to AFI 48-123,

Medical Examinations and

Standards (2013),

http://www.aangfs.com/wp-content/

uploads/2012/10/AFI1-48-123-Medical-

Examination-Standards.pdf..................... 22

Dep’t of the Air Force, Air Force

Instr. 44-102 (Mar. 17, 2015),

http://static.e-publishing.af.mil/

production/1/af_sg/publication/

afi44-102/afi44-102.pdf ..................ccc cece 13

Dep’t of the Army, Memorandum for

All Assigned/Attached Personnel

(Dec. 1, 2015),

http://usasma.armylive.dodlive.mil/

files/2013/07/USASMA-Policy-Memo-

03-Military-Leave-Passes-Permissive-

ES A eae 15, 16, 17

U.S. Army, Article 15 Information,

Fort Jackson, South Carolina,

http://jackson.armylive.dodlive. mil/

staff/osja/tds/article-15/

(last visited Dec. 29, 2015)......................

Dep’t of Def., Military Deployment Guide:

Preparing You and Your Family for

the Road Ahead,

http://download.militaryonesource.mil/

12038/Project%20Documents/

MilitaryHOMEFRONT/Troops%20

and%20Families/Deployment%20

Connections/Pre-Deployment%20

I etinsccsissinesesstinisilasininasiiinmninmmaietnniiis

Dep't of Def., The United States Military

Enlisted Rank Insignia,

http://www.defense.gov/About-DoD/

Insignias/Enlisted

(last visited Dec. 29, 2015)......................

Dep’t of Def., Women in Service Review

Selective Service Legal Analysis,

http://www.defense.gov/Portals/1/

Documents/wisr-studies/Women%

20In%20Service%20Review%

20Selective%20Service%20Legal%

20Analysis.pdf

(last visited Dec. 29, 2015)......................

Page(s)

Office of the Deputy Assistant Secretary

of Defense (Military Community and

Family Policy), 2014 Demographics—

Profile of the Military Community (2014),

http://download.militaryonesource.mil/

12038/MOS/Reports/2014-Demographics-

EMER eae ee a 7, 25

DA Form 31, Request and Authority

for Leave, http://armypubs.army.mil/

I eiiiiiniininrenenimnpnesesnnns 15, 16

Dep’t of the Navy, Bureau of Med. & Surgery,

BUMED Instr. 6300.16A (Apr. 28, 2014),

http://www.med.navy.mil/directives/

External Directives/6300.16A.pdf............. 13

Abortions, Tricare,

http://www.tricare.mil/CoveredServices/

IsItCovered/Abortions.aspx?p=1

(last updated Oct. 9, 2014)................000.... 12, 13

Ashton B. Carter, Sec’y of Def.,

Pentagon Press Briefing Room,

Remarks on the Women-in-Service

Ee 24

Defense Health Care: Health Care Benefit

for Women Comparable to Other Plans,

GAO-02-602 (May 2002),

http://www.gao.gov/new.items/

RE TTT Hee eee PRD 19, 21

Vii

Page(s)

History, Fort Hood,

http://www.hood.army.mil/history.aspx

(last visited Dec. 29, 2015).............00.0000... 15

Joint Base San Antonio

(Lackland Randolph Sam Houston),

Texas, MilitaryINSTALLATIONS,

http://www.militaryinstallations.dod.mil/

MOS/f?p=MI:CONTENT:0::::P4_INST_ID,

P4_CONTENT_TITLE,P4_CONTENT_

EKMT_ID,P4_CONTENT_DIRECTORY,

P4_INST_TYPE:7450, Fast%20Facts,30.

90.30.30.60.0.0.0.0,1, INSTALLATION

(last visited Dec. 29, 2015)..............000.000.. 7

Joseph L. Jordan, Article 92 Failure to

Obey Order or Regulation,

http://www.jordanucm)law.com/

Articles/Article-92-Failure-to-Obey-

Order-or-Regulation.aspx

(last visited Dec. 29, 2015)....................... 20

Major Military Installations, Texas Almanac,

http://texasalmanac.com/topics/

government/major-military-installations

(last visited Dec. 29, 2015)............000000000.. 15

Memorandum from Martin E. Dempsey,

Chairman, Joint Chiefs of Staff &

Leon E. Panetta, Sec’y of Def., to

Secretaries of the Military Departments

on the Elimination of the 1994 Direct

Ground Combat Definition and

Assignment Rule (Jan. 24, 2013)............. 24

viii

Page(s)

Mil. Leadership Diversity Comm'n, From

Representation to Inclusion:

Diversity Leadership for the

21st-Century Military (2011)............... 24, 25, 26

Meghann Myers, Mabus to push big

changes to PT, career opportunities,

Navy Times (May 13, 2015),

http://www.navytimes.com/story/

military/2015/05/12/navy-secretary-

mabus-fitness-women-seals-changes/

SETI Gaisiciicicieinisuananbiieiccebetetlegnieintimatintiainneiiiseinan 25

Pregnancy FAQs, Navy Personnel Command,

http://www. public.navy.mil/bupers-npc/

organization/bupers/WomensPolicy/

Pages/FAQs-Women’sPolicy.aspx

(last visited Dec. 29, 2015).....................5. 22

State of Texas, MilitaryINSTALLATIONS,

http://www. militaryinstallations.dod.mil/

pls/psgprod/f?p=MI:CONTENT:0::::

P4_INST_ID,P4_TAB:320049,SI

(last visted Dec. 29, 2015)..................... 7, la, 2a

David Vergun, Doc gives candid talk on

women’s issues in military,

U.S. Army (Sept. 22, 2014),

http://www.army.mil/article/134176/

Doc_gives_candid_talk_on_women_s_

6 SEER AR 19

Page(s)

Marshall L. Wilde, Air Force Women’s Access

to Abortion Services and the Erosion

of 10 U.S.C. § 1093, 9 Wm. &

Mary J. Women & L. 351 (2003),

http://scholarship.law.wm.edu/cgi/

viewcontent.cgi?article=1168&

I iiicincccesnansticnmbanneteninmnsnienne 15

INTEREST OF AMICI CURIAE

The Service Women’s Action Network (“SWAN”)

and the following retired or former military officers

submit this amicus brief! in support of Petitioners

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.

SWAN is a nonpartisan, nonprofit organization

that advocates for the increasing number of women

who serve, or have served, in our nation’s military.

Its mission includes educating the public and

decision-makers about issues threatening equal

opportunity and freedom to serve without discrimi-

nation. SWAN also seeks to help further veterans’

services to ensure high-quality benefits for women

veterans and their families. SWAN believes that

protecting service women’s constitutional rights

and access to health care is important both to serv-

ice women and their families and the military more

broadly. SWAN and its members therefore have a

well-founded and direct interest in this litigation.

Additionally, the following individual amici are

retired or former officers of the U.S. military who

have had decades of extensive experience and

| The parties in this case have consented to the filing of

this brief. Pursuant to Rule 37.6 of the Rules of the Supreme

Court of the United States, amici curiae state that no counsel

for a party has authored this brief, in whole or in part, and no

person, other than amici curiae or its counsel, has made a mon-

etary contribution to the preparation or submission of this brief.

accomplishment in military leadership. These

amici also support protecting service women’s con-

stitutional rights and access to health care and

have an interest in furthering such goals.

Major General Donna F Barbisch (U.S. Army, Ret.)

started her military career as a private first class

and rose to the rank of major general over a mili-

tary career spanning more than 38 years. She is on

the advisory boards of the Army Women’s Founda-

tion and the Women in Military Service to America.

Colonel Ellen H. Haring (U.S. Army, Ret.) served

over 28 years, including as a platoon leader, com-

mander, executive officer, and bridge commander.

She is currently a Senior Fellow and Program

Director with Women in International Security in

Washington, D.C., where she directs the Combat

Integration Initiative, which is an independent

oversight body that provides research and recom-

mendations on the U.S. military’s integration of

women into ground combat specialties and units.

Colonel Haring is also a member of the Board of

Directors of SWAN.

Janet C. Jacobson, M.D. (former Lieutenant

Commander, U.S. Navy) served as a fighter pilot

for 11 years, flying the FA-18 Hornet. Dr. Jacobson

then attended medical school, completed a residen-

cy in obstetrics and gynecology at the University of

Colorado, and a fellowship in Family Planning at

the University of Utah.

Lieutenant General Claudia J. Kennedy (U.S.

Army, Ret.) served for 31 years and was the first

woman to reach the rank of three-star general in

the U.S. Army. She was promoted to Lieutenant

General and assigned to the position of Deputy

Chief of Staff for Intelligence as of May 1997, and

served in various commands across the United

States and Europe. Lieutenant General Kennedy

has received several military honors, including the

Legion of Merit.

Colonel Richard L. Klass (U.S. Air Force, Ret.)

flew over 200 combat missions in Vietnam and

served as a White House Fellow in the Nixon

Administration and in the Pentagon in the Carter

Administration, where he dealt with strategic arms

control issues. He has received several military

honors, including the Silver Star, Legion of Merit,

Distinguished Flying Cross, and Purple Heart.

Captain Lawrence J. Korb (U.S. Navy, Ret.)

served as Assistant Secretary of Defense (Manpow-

er, Reserve Affairs, Installations and Logistics)

from 1981 1984, for which he was awarded the

Department of Defense’s medal for Distinguished

Public Service. He also served four years on active

duty as a Naval Flight Officer. Captain Korb is cur-

rently a Senior Fellow at the Center for American

Progress, a senior advisor to the Center for Defense

Information and an adjunct professor at George-

town University.

Major General Dennis J. Laich (U.S. Army, Ret.)

served for 35 years. The last 14 of those years were

spent in various command positions, with the most

recent being commander of the 94th Regional

Readiness Command in Fort Devens, Massachu-

setts. He is currently serving as Ohio Dominican

University’s PATRIOTS Program director, where

he is also the University’s support liaison for vet-

erans applying for the PATRIOTS Program.

Lieutenant Colonel Kenneth J. Murray (U.S. Air

Force, Ret.), who was admitted to the bars of Mas-

sachusetts, Florida, and Arizona, was an Air Force

GS-14 Contract Trial Attorney from 1980 to 1999.

Captain Dwayne A. Oslund (U.S. Navy, Ret.)

served for 25 years. He was a helicopter pilot who

commanded a primary flight training squadron in

Corpus Christi, Texas, at which time he was in

charge of 100 instructor pilots and 250 flight stu-

dents from the Navy, Marine Corps, and Coast

Guard. More recently, Captain Oslund was a mem-

ber of a group of retired senior officers and enlisted

personnel who successfully advocated for the pas-

sage of the Shaheen Amendment to the National

Defense Authorization Act, which extended military

abortion care to active duty women and dependents

who became pregnant as a result of rape or incest.

Captain Joellen D. Oslund (U.S. Navy, Ret.)

served for 25 years. She was the first female heli-

copter pilot in the Navy and the fourth woman to

earn Navy wings. Captain Oslund was a plaintiff in

Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978), a

lawsuit that successfully challenged a statute that

restricted women in the Navy from all assignments

at sea. In 2012 and 2013, she was also a member of

a group of retired senior officers and enlisted per-

sonnel who successfully advocated for the passage

of the Shaheen Amendment.

Major General Gale S. Pollock (U.S. Army, Ret.)

served for 36 years as an Army Nurse. She was the

first woman non-physician to serve as the Com-

mander of the Army Medical Department and Act-

ing Surgeon General of the U.S. Army. Her past

military assignments include service as Command-

er of Martin Army Community Hospital and Com-

manding General of Tripler Army Medical Center.

She has also served as an advisor on many boards,

including Aetna Military Advisory Board and

Humana Veterans Advisory Board, and was previ-

ously a Department of Defense Medical Advisor to

a U.S. Congressional Committee.

Colonel Katherine E. Scheirman, M.D. (U.S. Air

Force, Ret.) served more than 20 years as a physi-

cian in the Air Force. Her last assignment was as

Chief of Medical Operations for U.S. Air Forces in

Europe, at Ramstein Air Base, Germany, where

she was responsible for overseeing more than 700

medical personnel and 11 chiefs of medical staff, as

well as medical operations for ten hospitals and

clinics, an Aeromedical Evacuation Squadron, and

an Air Force squadron at Landstuhl] Regional Med-

ical Center. Since retiring, Colonel Scheirman has

served as chair of the Council of Fellows of the

American College of Physician Executives and as a

senior advisor to VoteVets.org.

Captain Glenna L. Tinney (U.S. Navy, Ret.) was

one of the original 12 Navy social workers recruited

for active duty in 1980, and served for 24 years work-

ing with military families and managing worldwide

family violence and sexual assault programs. She cur-

rently serves as the Military Advocacy Program Coor-

dinator for the Battered Women’s Justice Project, a

national technical assistance provider for the Depart-

ment of Justice Office on Violence Against Women.

Amici respectfully ask that this Court consider

this brief, which seeks to inform the Court as to the

particular burdens that the act at issue imposes on

the constitutional rights of women serving in the

armed forces.

SUMMARY OF ARGUMENT

If Texas House Bill 2, 83d Legis., 2d Spec. Sess.

(Tex. 2013) (“HB2”) is permitted to stand, it would

affect the rights of all women in Texas—but it

would have specific consequences for the rights and

health cf service women. This Court upheld “the

right of the woman to choose to have an abortion

before viability” and articulated the “undue bur-

den” test, in Planned Parenthood v. Casey, when

holding that a restriction on that right violates the

Due Process Clause if it has the purpose or effect of

imposing an undue burden on women seeking abor-

tion care. 505 U.S. 833, 845-46 (1992) (opinion of

the Court); id. at 876-77 (joint opinion of O’Connor,

Kennedy & Souter, JJ.). This Court held that

“luJnnecessary health regulations that have the

purpose or effect of presenting a substantial obsta-

cle to a woman seeking an abortion impose an

undue burden on th{is] right.” Jd. at 878. The pas-

sage and implementation of HB2 constitutes an

undue burden on the constitutional rights of serv-

ice women.

There are 13 military bases in Texas (as well as

several recruiting battalions).* As of 2014, there

were almost 118,000 active duty service members

in Texas,? and women generally constitute over

15% of the military population.‘ If HB2 is upheld,

many thousands of servicewomen in Texas—as well

as dozens of thousands of female military depend-

ents—will be affected.

The rights of female service members are and

will be particularly burdened by HB2—simply

because they have chosen to serve their country. If

HB2 is permitted to fully take effect—along with

the final rules adopted by the Texas Department of

State Health Services to implement it—then the

great majority of facilities that previously provided

2 See State of Texas, MilitaryINSTALLATIONS, http://

www.militaryinstallations.dod.mil/pls/psgprod/f? p=MI:CON-

TENT:0::::P4_INST_ID,P4_TAB:320049,SI (last visited Dec.

29, 2015). Joint Base San Antonio encompasses the three sep-

arate installations of Fort Sam Houston, Lackland Air Force

Base and Randolph Air Force Base. See Joint Base San Anto-

nio (Lackland Randolph Sam Houston), Texas, MilitaryIN-

STALLATIONS, http://www.militaryinstallations.dod.mil//MOS/

f?p=MI:CONTENT:0::::P4_INST_ID,P4_CONTENT_TITLE,P4_

CONTENT_EKMT_ID,P4_CONTENT_DIRECTORY,P4_INST_

TYPE:7450, Fast%20F acts,30.90.30.30.60.0.0.0.0,1 INSTALLA-

TION (last visited Dec. 29, 2015).

3 See Office of the Deputy Assistant Secretary of Defense

(Military Community and Family Policy), 2014 Demograph-

ics—Profile of the Military Community, 19 (2014) (“2014

Demographics Report”), http://download.militaryonesource.mil/

12038/MOS/Reports/2014-Demographics-Report.pdf.

4 See id. at 18.

abortion services in Texas will close. Ten or fewer

such facilities in the State would remain, with none

at all in various areas of the State. Because of

restrictions in the military on access to abortion

services, female service members who seek abor-

tion care must often do so through private facilities

outside of military bases—such as licensed abor-

tion facilities that have already closed, or will be

forced to close, in Texas. With ten or fewer abortion

providers likely to remain open in Texas—all but

one of which will be concentrated in Texas’s four

principal metropolitan areas—many service women

will be left without access to any reasonably acces-

sible providers. In fact, the entire western half of

the state, covering over 130,000 square miles—in

which five large military bases are located—would

lack any abortion care providers at all. The illus-

trations in the Appendix show the stark reduction

in female service members’ access to abortion serv-

ice providers that would result from HB2.

The drastic reduction of abortion service

providers in Texas resulting from HB2, and the

attendant highly significant increases in time

required to seek abortion care, particularly bur-

dens female military members’ constitutional

rights, due to specific characteristics of military

service. The implementation of HB2 requires

women seeking abortion services in Texas to travel

much greater distances, and potentially to wait sig-

nificantly longer to obtain an appointment and

care. For example, if HB2 remains in effect, the

closest facility for service women at Goodfellow Air

Force Base would be in San Antonio, which is 199

miles away, about a three-hour drive—instead of

the previously existing closest facility about 15

minutes away.° Similarly, service women at Dyess

Air Force Base would have to travel 157 miles to

Fort Worth, requiring a drive of over two hours, to

reach an abortion facility post-HB2—as opposed to

less than 15 minutes pre-HB2.° Service women at

Fort Hood would have to travel approximately 75

miles to Austin, a drive of almost an hour and a

half—instead of less than ten minutes to the previ-

ously open facility.’ Service women cannot choose

where they are based, and they cannot simply trav-

el at will to distant abortion care providers.

In order to leave her military base—and to be

away from the base for a sufficient amount of time

to travel to such a provider and obtain such care—

a service woman must obtain leave, or be on an

approved pass. The process of requesting leave or a

pass can be cumbersome. It requires a superior’s

approval or signature and there is no guarantee

that such leave will be granted, either at all or for

the necessary amount of time. Moreover, the time

and delays involved in obtaining the necessary

leave all decrease service women’s opportunities to

obtain abortion care in a timely manner. In addi-

tion, having to go through the process of obtaining

leave and providing necessary documentation (and,

5 See Appendix.

6 See id.

7 See id.

potentially, explanations for the request) may

deter service women from seeking abortion care.

Alternatively, if a service woman decides to disobey

military rules because she deems that she must do

so in order to obtain abortion care, due to the con-

straints imposed by HB2, she would face potential

serious consequences that do not apply to civilian

women. In addition, HB2 places particular burdens

on service women in Texas preparing to enter

deployment zones: severely limiting those women’s

timely access to abortion care before being

deployed can lead to them being unable to join

their units in an overseas tour of duty.

Thus, HB2 imposes substantial obstacles to, and

significantly burdens the constitutional rights of,

service women seeking abortion care.

HB2’s burdens on service women are particular-

ly objectionable as women continue, and are

increasingly recognized, to be a growing and vital

part of the United States’ armed forces. Based on a

recent change in policy, all combat positions in all

branches of the military will be open to women.

Various members of the military have recognized

the importance of recruiting and retaining all tal-

ented individuals—including women—and achiev-

ing diversity in the armed forces. As part of

continuing to further this goal, service women’s

constitutional rights must be protected. Failing to

do so may undermine maintaining and perfecting a

diverse and effective armed forces. Amici curiae

therefore respectfully urge the Court to reverse the

Fifth Circuit’s decision, which upholds the undue

burdens imposed by HB2.

ARGUMENT

I. HB2 IMPOSES PARTICULAR UNDUE

BURDENS ON THE CONSTITUTIONAL

RIGHTS OF SERVICE WOMEN

Due to existing restrictions on abortion care at

military hospitals or by military providers, service

women must in many instances rely on outside

facilities for abortion care. HB2 specifically affects,

and imposes substantial obstacles on, the ability of

service women to access abortion care because it

drastically reduces the number of abortion facili-

ties operating in the state, making it much less

likely that a service woman will be able to access

abortion care at all, due to particular realities of

military life and service.

A. HB2’s Effects Are Directly Relevant

to Service Women Because, If Seeking

Abortion Care, They Must Use Out-

side Facilities In Many Instances

As a factual matter, service women who seek

abortion care must often rely on outside facilities.

By statute, military medical facilities may provide

abortion care only when the pregnancy results from

rape or incest, or endangers the life of the woman.

10 U.S.C. § 1093.8 Furthermore, military regula-

tions may in some instances further restrict the

availability of abortion services at military facili-

ties. For example, Army Regulation 40-400 pro-

vides that “[a]bortions may be performed in Army

MTFs [medical treatment facilities] at Government

expense only when the life of the mother would be

endangered if the fetus were carried to term.”®

This limitation on abortion care available to

service women is also reinforced by the limited

funding for abortion services in the military system

under Tricare health insurance, the health insur-

ance provider for the armed services. Tricare pro-

vides insurance coverage for abortions only in the

case of a pregnancy that results from rape or

incest, or that endangers the life of the woman.'®

Further, for the abortion to be covered under Tri-

care, in the case of rape or incest “[a] physician

must note in the patient’s medical record that it is

their good faith belief, based on all available infor-

mation, that the pregnancy was the result of an act

8 This restriction on medical treatment facilities or other

facilities of the Department of Defense applies independently

of the source of funding for the procedure (i.e., even if the

service woman seeking such services was prepared and able

to cover the cost of such services). See 10 U.S.C. § 1093.

9 Army Reg. 40-400, at 2-18 (July 8, 2014), http://www.

apd.army.mil/pdffiles/r40_400. pdf.

10 Abortions, Tricare, http://www.tricare.mil/Covered

Services/IsItCovered/Abortions.aspx?p=1 (last updated Oct. 9,

2014).

of rape or incest.”'' In the case of the endanger-

ment of the woman’s life, a “physician must certify

that the abortion was performed because the life of

the mother would be endangered if the fetus were

carried to term.”!?

Moreover, even service women who seek abortion

care and whose pregnancies do fall within these

very limited statutory and regulatory restrictions

may need to seek care outside of military medical

facilities. Military doctors can assert moral or reli-

gious objections and decline to perform abortion

services at all, even if a woman’s pregnancy falls

within one of the categories described above.'*

Therefore, even when seeking an abortion in con-

nection with a pregnancy that endangers her life or

results from rape or incest, a woman will not nec-

essarily be able to obtain the procedure on her

base, and may need to seek an outside service

provider.

Thus, the effects of HB2 are directly relevant to

service women. If the Fifth Circuit’s decision is

affirmed, HB2 will eliminate over 75% of Texas

7 =

Ss Md.

13 See, e.g., Army Reg. 40-400, at 2-18.f; Dep't of the Navy,

Bureau of Med. & Surgery, BUMED Instr. 6300.16A, at 5.b(2)

& 5.c(2) (Apr. 28, 2014), http://www.med.navy.mil/directives/

ExternalDirectives/6300.16A.pdf; Dep’t of the Air Force, Air

Force Instr. 44-102, at 4.5.2 (Mar. 17, 2015), http://static.e-

publishing.af.mil/production/1/af_sg/publication/afi44-

102/afi44-102.pdf.

abortion providers, resulting in long-distance trav-

el, overburdened staff, longer waits, and other

restrictions to access. See Appendix. Service

women would especially feel the effects of those

consequences, with some women living on military

bases in Texas having to drive several hours (and

possibly having to obtain overnight accommoda-

tion) in order to access abortion care.

B. HB2 Substantially Constrains Service

Women’s Access to Abortion Care

Because They Have Limited Ability to

Leave Military Bases, Travel for

Longer Distances and Wait to Receive

Care

A service woman’s ability to leave her military

base to access abortion care is limited. Thus, HB2’s

effects—of drastically reducing the number of

available service providers in Texas and signifi-

cantly increasing the amount of time necessary to

seek abortion care—are particularly burdensome

for service women, and impose substantial obsta-

cles on service women seeking abortion care.

General leave and pass policies are formulated

by the respective branches of the armed forces, and

specific policies vary from base to base, sometimes

even between units within bases. The leave and

pass policies for the Army, discussed below, are

illustrative.'* In order to request leave, a service

14 In Texas, the Army operates Fort Hood, the largest

active duty armored post in the U.S. Armed Services (see His-

member must first fill out a form (DA Form 31)!®

and obtain prior approval from her unit command-

er, a process which might take days or weeks.'®

According to Army regulations, the decision to

approve a leave request is entirely discretionary.’

A DA Form 31 is also required for a shorter dura-

tion “pass”!® if a service woman is not remaining

tory, Fort Hood, http://www.hood.army.mil/history.aspx (last

visited Dec. 29, 2015)), as well as Fort Bliss, Fort Sam Houston,

and Red River Army Depot (see Major Military Installations,

Texas Almanac, http://texasalmanac.com/topics/government

/major-military-installations (last visited Dec. 29, 2015)).

16 DA Form 31, Request and Authority for Leave, http://

armypubs.army.mil/eforms/pdf/A31.PDF.

16 Army Reg. 600-8-10, at 4-3, 4-4, Table 4-2 (Aug 4, 2011),

http://www.apd.army.mil/pdffiles/r600_8_10.pdf.

17 See Army Reg. 600-8-10, at 12-3.b (“Approval authori-

ties consider their annual leave program, applicable policy

criteria, and mission requirements when processing leave

requests”); see also Dep’t of the Army, Memorandum for

All Assigned/Attached Personnel (Dec. 1, 2015), http://

usasma.armylive.dodlive. mil/files/2013/07/USASMA-Policy-

Memo-03-Military-Leave-Passes-Permissive-TDY-Dec-15.pdf

(“Policy Mem. #03”) (“All leave requests will be coordinated

with the supervisor and balanced against mission.”); see also

Marshall L. Wilde, Air Force Women’s Access to Abortion

Services and the Erosion of 10 U.S.C. § 1093, 9 Wm. & Mary

J. Women & L. 351, 352 (2003), http://scholarship.law.wm.edu/

cgi/viewcontent.cgi?article=1168&context=wmjow! (“Should

an active duty military woman choose to have an abortion,

she must request leave, which her commander has no obliga-

tion to grant.”).

18 A regular pass is a “short, non-chargeable, authorized

absence from post or place of duty during normal off duty

“in the vicinity of her normal duty station.”!®

The regulations do not define the distance that is

considered to be “in the vicinity,” but individual

units may set a mileage restriction. For example, in

the case of assigned and attached personnel of the

U.S. Army Sergeants Major Academy at Fort Bliss,

“[sJoldiers traveling more than 150 miles from Fort

Bliss on non-duty days are required to have an

approved mileage pass granted by the Executive

Director for their department.””° As with leave, the

unit commander must approve regular passes, and

the decision to grant passes is also discretionary.

See Army Reg. 600-8-10, at 5-27.b, 5-28, Table

5-14. Furthermore, non-local travel may require

documentation in addition to DA Form 31.?!

hours.” Army Reg. 600-8-10, at 5-27.a. Under Army regula-

tions, a regular pass “will normally be from the end of norma!

duty hours on one day to the beginning of working hours the

next duty day.” Army Reg. 600-8-10, at 5-27.e. Further, a reg-

ular pass period cannot be longer than three days, Army Reg.

600-8-10, at 5-27.e(2), nor can pass periods be granted back to

back, Army Reg. 600-8-10, at 5-27.g.

19 The regulation states: “Use the DA Form 31 to author-

ize absence” but adds that “[a] DA Form 31 is not required if

Soldier will remain in the vicinity of his or her normal duty

station unless form is required to ensure Soldier is not select-

ed for duty during the period.” Army Reg. 600-8-10, at 5-28,

Table 5-14.

20 Policy Mem. #03.

21 A policy memorandum for assigned and attached per-

sonnel of the U.S. Army Sergeants Major Academy at Fort

Bliss in Texas, for example, mandates that “[a]ll Soldiers tak-

ing non-local leave will complete a POV Risk Assessment and

If HB2 is upheld and fully implemented, causing

the vast majority of previously existing licensed

abortion facilities in Texas to close—with only ten

or fewer facilities remaining open—then service

women in that State seeking abortion care would

likely need to go through the process of requesting

leave or a pass to leave their base and travel to

obtain such care. After HB2, the majority of the

military bases in Texas would be over a two-hour

drive away from a remaining facility in the State—

with some over three or even seven hours’ drive

away. For example, prior to HB2, there was a

licensed abortion facility located near the Corpus

Christi Army Depot; with HB2 in effect, the closest

facility would be over 150 miles away and over a 2-

hour drive away, in San Antonio.” Furthermore, if

a service woman does not have access to a car—

which may often be the case for junior service

members—traveling to such facilities would be all

the more challenging. See infra Part I.D. 7°

The consequent burdens imposed on a service

woman’s ability to obtain abortion care are mani-

fold. First, a service woman may simply not be able

the online Travel Risk Planning System (TRIPS), both of

which will be approved by first line supervisors.” Policy Mem.

#03.

22 See Appendix.

23 In addition, a service woman who has an abortion may

require recovery time and would likely have to inform her

chain of command of her medica! state in order to be excused

from training events.

to obtain the leave necessary to travel off-base and

seek abortion care from a far more distant

provider, when factoring in time to travel to distant

facilities to obtain abortion care, which will be a

reality for many service women based in Texas if

HB2 is upheld. Second, the time and delays

involved in obtaining the necessary leave to travel

the longer distances resulting from HB2, as well as

the increased waiting time for appointments due to

the lack of availability, all decrease the likelihood

that service women will be able to obtain an abor-

tion in a timely manner.*4 Third, having to provide

documentation and go through the process of

obtaining leave may act as a deterrent to service

women seeking abortion care, particularly if a serv-

ice member may have to disclose the reason why

she is requesting leave.” Moreover, to the extent a

24 Studies recently credited by the Seventh Circuit in

Planned Parenthood of Wis., Inc. v. Schimel found that the

rate of major complications arising out of an abortion during

the first trimester is 0.05-0.06 percent (between five one-hun-

dredths of 1 percent and six one-hundredths of 1 percent),

whereas the rate of major complications for second trimester

abortions is 1.3 percent. 806 F.3d 908, 913, 920 (7th Cir.

2015) (citing to studies).

25 For example, in a report published by the United

States General Accountability Office (“GAO”) focusing on

service women's healthcare benefits, it was noted that:

“(Department of Defense] officials told us that reports from

the field have indicated that some line commanders, includ-

ing officers and senior enlisted personnel, may not under-

stand the importence of women’s health care. For active

duty women, explaining their specific ailment to their com-

manding officer (usually male) or appearing like they need

woman seeking to obtain abortion services is

required to be accompanied, a service woman

would also need to find someone willing and able to

accompany her—and such a person, if also a serv-

ice woman, would similarly need to go through the

process of obtaining leave or a pass in order to trav-

el to and from the facility.

Thus, the consequences of HB2 would be

extremely burdensome, and create substantial

obstacles, for a service woman seeking an abortion

in light of the particular limitations on her ability

to seek abortion care outside of her military base.

C. HB2 Could Force Service Women In

Need of Abortion Care to Disobey

Military Rules—and Potentially Face

Very Serious Consequences—or Resort

to Unsafe or Illegal Methods of End-

ing a Pregnancy

If a service woman decides to disobey military

rules in order to obtain abortion care, due to the

constraints imposed by HB2, she would face partic-

ular consequences that do not apply to women who

special treatment may make them reluctant to seek the care

they need.” See Defense Health Care: Health Care Benefit for

Women Comparable to Other Plans, GAO-02-602, 14-15 (May

2002) (“Defense Health Care Report”), http://www.gao.gov/

new.items/d02602.pdf; see also David Vergun, Doc gives can-

did talk on women’s issues in military, U.S. Army (Sept. 22,

2014), http://www.army.mil/article/134176/Doc_gives_can-

did_talk_on_women_s_issues_in_Military (describing issues

related to women’s health that service women encounter, of

which their male counterparts are often unaware).

do not serve in the military. For instance, if a serv-

ice woman does not obtain the necessary leave, she

might decide to leave the base without permission,

or—especially in geographic areas where facilities

are few and far between—travel beyond the limits

of the permitted travel radius or time limitation

allowed for her leave. Even if a service woman is

granted leave to travel, she may end up missing

scheduled duty due to a change in schedule, unex-

pected difficulties in reaching the facility, or other

delays. A service woman could be subject to pun-

ishment as a result of disobeying military orders,

rules or regulations. For example, a service woman

could potentially face restrictions, extra days of

duty, forfeiture of pay, written or oral reprimand

and a reduction of grade of their ranking.”® At a

more extreme level, if a service member were court-

martialed pu:suant to UCMJ Article 92 for “failure

to obey a lawful order,” she could receive a bad con-

duct discharge, forfeiture of all allowances and pay

and up to six months confinement if found guilty of

this offense.2’ Thus, HB2 may lead to particularly

serious consequences for service women.?®

26 See U.S. Army, Article 15 Information, Fort Jackson,

South Carolina, http://jackson.armylive.dodlive.mil/staff/osja/

tds/article-15/ (last visited Dec. 29, 2015).

27° See Joseph L. Jordan, Article 92 Failure to Obey Order

or Regulation, http://www.jordanucmjlaw.com/Articles/Article-

92-Failure-to-Obey-Order-or-Regulation.aspx (last visited

Dec. 29, 2015).

28 In addition, if a service woman is unable to obtain abor-

tion care from an authorized provider as a result of HB2, she

D. The Greater Burdens Imposed by HB2

Would Be Particularly Detrimental to

Junior Service Women Beginning

Their Military Careers

The greater burdens imposed by HB2 would like-

ly fall hardest on women in the most junior of

enlisted ranks, at the outset of their military

careers. As a result of HB2, many service women in

Texas seeking abortion care will need to travel

much further to obtain such services. This addi-

tional travel will involve increased transportation

costs—and will require a service woman to either

obtain access to a car or rely on likely indirect and

time-consuming public transportation. Such trans-

portation requirements and increased expenses

would be particularly burdensome for junior serv-

ice women. For example, the base pay of a Private

(E1) with less than two years of experience in the

Army is less than $19,000 a year.” Thus, HB2 is

especially burdensome for women who have recent-

ly started to serve in the armed forces—and whose

service may be derailed as a consequence.*”

may resort to using unsafe or illegal methods to end her

unwanted pregnancy. As for all women, this could have sig-

nificant deleterious effects on her health and life.

28 See Dep’t of Def., The United States Military Enlisted

Rank Insignia, http://www.defense.gov/About-DoD/Insignias/

Enlisted (last visited Dec. 29, 2015).

30 See Defense Health Care Report, at 24 (“Many of the

Army’s, Navy's, and Air Force’s education initiatives aim to

educate leaders and beneficiaries about health care services

for women, including family planning and pregnancy well-

E. HB2 Particularly Restricts Service

Women’s Ability to Access Abortion

Services Prior to Deployment

HB2 places particular restrictions on service

women in Texas preparing to enter deployment

zones. If a service woman becomes aware of an

unwanted pregnancy prior to deployment, and

wishes to seek an abortion, she may need to do so

very quickly before she is deployed—or else risk

not being able to join her unit during their deploy-

ment.*! But the drastically reduced availability of

abortion care resulting from HB2 may simply make

it impossible for a service woman in Texas to obtain

such care prior to deployment. Indeed, preparation

for deployment begins shortly after the mobiliza-

tion alert and can involve required briefings, addi-

tional training, medical and dental evaluations,

ness. According to Army officials, unplanned pregnancies can

disrupt work and training situations. Army officials told us

various studies show that more than half of births to active

duty women in the Army are from unplanned pregnancies.”).

31 Regulations and policies prohibit the deployment of

service women while pregnant (or require transfer as soon as

possible of a service woman whose pregnancy is discovered

while she is deployed). See, e.g., Army Reg. 614-30, Table 3.1

(Jan. 27, 2015), http://www.apd.army.mil/pdffiles/r614_30.pdf;

Dep’t of the Air Force, Air Force Guidance Memorandum to

AFI 48-123, Medical Examinations and Standards, 175

(2013), http://www.aangfs.com/wp-content/uploads/2012/10/

AFI-48-123-Medical-Examination-Standards.pdf; Pregnancy

FAQs, Navy Personnel Command, http://www.public.navy.mil/

bupers-npc/organization/bupers/WomensPolicy/Pages/FAQs-

Women’sPolicy.aspx (last visited Dec. 29, 2015).

and possibly counseling to ensure that the service

member is ready and able to be deployed.** Having

to travel long distances for an appointment at

one of a very few number of providers—as a result

of HB2—is incompatible with preparing for

deployment.

* * *

Thus, for all of the above reasons, HB2—which

constitutes an undue burden on all women’s consti-

tutional rights in Texas—specifically and signifi-

cantly burdens the constitutional rights of service

women to seek abortion care.

Il. HB2’"S BURDENS ON SERVICE WOMEN

AFFECT THE RIGHTS OF A GROWING

AND VITAL COMPONENT OF OUR

ARMED FORCES

HB2’s burdens on service women are particular-

ly egregious as women continue and are increas-

ingly recognized to be a growing and important

part of our armed forces.

In just the latest example of this recognition, on

December 3, 2015, Secretary of Defense Ashton B.

Carter announced that all combat positions in all

branches of the military would be open to women,

32 Dep't of Def., Military Deployment Guide: Preparing

You and Your Family for the Road Ahead, 4, http://download.

militaryonesource. mil/12038/Project%20Documents/Military

HOMEFRONT/Troops%20and%20Families/Deployment%20

Connections/Pre-Deployment%20Guide.pdf (last updated

Feb. 2012).

without exception.** This decision followed a rec-

ommendation by the Military Leadership Diversity

Commission, which stated that granting service

women access to combat positions would eliminate

one of the main structural barriers to promotion in

the military, because an overwhelming majority of

officers and generals come from combat positions.**

Secretary Carter’s groundbreaking decision was

the most recent indicator of the military’s increas-

ing support for the inclusion of women. Women

have served their country in the armed forces since

the turn of the 20th century, when Congress

authorized women to work in the Army and Navy

Nurse Corps in 1901 and 1908, respectively. Army

Reorganization Act, Pub. L. No. 30-192, 31 Stat.

748, 753 (1901); Naval Service Appropriations Act,

Pub. L. No. 115-166, 35 Stat. 127, 146 (1908). After

women served on a limited and temporary basis in

World War II, the Women’s Armed Services Inte-

gration Act of 1948 created a permanent place for

women in the military. Pub. L. No. 625-449, 62

Stat. 356 (1948). In 2013, Secretary of Defense

Leon Panetta overturned the ground combat exclu-

sion rule for women.** Following a careful three-

33. Ashton B. Carter, Sec’y of Def., Pentagon Press Briefing

Room, Remarks on the Women-in-Service Review (Dec. 3,

2015).

34 Mil. Leadership Diversity Comm'n, From Representa-

tion to Inclusion: Diversity Leadership for the 21st-Century

Military 67 (2011) (“Diversity Leadership Report”).

35 See Memorandum from Martin E. Dempsey, Chairman,

Joint Chiefs of Staff & Leon E. Panetta, Sec’y of Def., to

year review period, Secretary Carter determined

that women should not be excluded from any posi-

tions.*6

Women currently constitute between 7 and 20

percent of soldiers in each branch,*’ and the mili-

tary has prioritized the inclusion of women during

all stages of their careers, from recruitment and

accession to assignments, promotion, and reten-

tion.*® Recruitment goals for women in the coming

years have been increased—for example, U.S. Sec-

retary of the Navy Ray Mabus has emphasized the

importance of recruiting of women, recently indi-

cating that he wishes to increase female recruit-

ment to 25 percent, up from the current 18 percent

for the Navy and about 5 percent for the Marines.*®

Secretaries of the Military Departments on the Elimination of

the 1994 Direct Ground Combat Definition and Assignment

Rule (Jan. 24, 2013).

36 ~An analysis released by the Pentagon states that Sec-

retary Carter's decision to open all jobs in combat to female

service members “further alters the factual backdrop” of Ros-

tker v. Goldberg, 453 U.S. 57 (1981), which exempted women

from a military draft. Dep’t of Def., Women in Service Review

Selective Service Legal Analysis, http://www.defense.gov/

Portals/1/Documents/wisr-studies/Women%201n%20

Ser. ice%20Review%20Selective%20Service%20Legal%20

Analysis.pdf (last visited Dec. 29, 2015). This raises the pos-

sibility that the Military Selective Service Act may change.

37 See 2014 Demographics Report, at 18-20.

38 See Diversity Leadership Report, at 39-40.

38 Meghann Myers, Mabus to Push Big Changes to PT,

Career Opportunities, Navy Times (May 13, 2015), http://

Many in the military have recognized that the

armed forces are more effective when composed of

a diverse set of individuals. According to General

George W Casey, Jr., diversity is a “combat multi-

plier” because it allows for “different views to deal

with diverse culture and the complexities” that the

military confronts.*° Furthermore, an active

approach to diversity helps to ensure that no tal-

ented individuals are “left behind” due to prejudice

or discrimination.*!

In order to further the inclusion of women in the

armed forces and as more women join the ranks,

service women’s constitutional rights—including

not being subject to undue burdens on access to

abortion care—must be protected. Failing to do so

is inconsistent with, and may undermine, the cur-

rent trend of increasing recruitment and retention

of women in the military, and thus hinder the goal

of a diverse and effective armed forces.

www.navytimes.com/story/military/2015/05/12/navy-

secretary-mabus-fitness-women-seals-changes/27170391.

40 Diversity Leadership Report, at 16.

41 Jd. at 17.

CONCLUSION

For the foregoing reasons, amici curiae respect-

fully urge the Court to reverse the Fifth Circuit's

decision.

Respectfully submitted,

AGNES DUNOGUE

Counsel of Record

LAURA CALDWELL

JAE YOUNG JEONG

SHEARMAN & STERLING LLP

599 Lexington Avenue

New York, New York 10022

212-848-4000

Counsel for Amici Curiae

January 4, 2016

APPENDIX

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Figure |: Location of open facilities providing abortion care (balloon

markers) in reiation to military bases (stars), pre-HB2

Sources: State of Texas, MilitaryINSTALLATIONS,

http://www .militaryinstallations.dod.mil/pls/psgprod/f?p=MI:CONTENT-0:"::P4_ INST ID.P4_

TAB:320049,SI (last visited Dec. 29, 2015); J.A. 229-30.

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Figure 2: Location of open facilities providing abortion care (balloon

markers) in relation to military bases (stars), post-HB2

Note that, according to Petitioners, the McAllen clinic would only be

able to provide limited services. See J.A. 1431.

Sources: State of Texas, MilitaryINSTALLATIONS,

http://www. militaryinstallations.dod.mil/pls/psgprod/f?p=MI:CONTENT:0::::P4 INST_[D,P4_

TAB:320049,SI; (last visited Dec. 29, 2015); J.A.1429-42.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.