Amicus Curiae Brief — Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 464 (2017) (No. 16-1140)

No. 16-1140

IN THE

Supreme Court of the Anited States

NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES,

D/B/A NIFLA, ET AL.,

Petitioners,

Vv.

XAVIER BECERRA, ATTORNEY GENERAL, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

Steven A. Zalesin

Counsel of Record

Derek Borchardt

Zachary Kolodin

PATTERSON BELKNAP

WEBB & TYLER LLP

1133 Avenue of the Americas

New York, NY 10036

(212) 336-2000

sazalesin@pbwt.com

Attorneys for Amici Curiae

February 27, 2018

TABLE OF CONTENTS

INTEREST OF AMICT CURITAE. ...............0002000c0000000+-

SUMMARY OF ARGUMENT .........................00000000s

ITE chieeblteeeptiiatikiiidsicsdaneinereciginiientndenresine

I. Research shows that crisis

pregnancy centers provide

inaccurate or potentially

misleading information regarding

abortion and contraception. ....................

Il. Research demonstrates that the

vast majority of women who decide

to have an abortion are sure about

their decision, and want to avoid

delay in obtaining care............................

Ill. Research shows that women face

financial and logistical burdens

when accessing abortion, and lack

of access to insurance may

I io oriceiincetcnsnsncteintccscien

a. Lack of financial resources delays

I i ceictensncctiicenneccscenenssisens

b. Women face difficulties in

coverage for abortion. ..........................

IV. Research demonstrates the

importance of early entry into

prenatal care, but CPCs in

California do not assist women in

accessing prenatal care. ..........................

eT ceistctocnsintiptiiaphtaintainiontiniauiyndtinnimiianamnesatiat

3

14

18

20

TABLE OF AUTHORITIES

Page(s)

Statutes

CAL. Health & SAFETY CODE § 123472(a)(1)............. 13

Other Authorities

Abortion, Miscarriage, and Breast Cancer Risk:

2003 Workshop, Nat'l Cancer Inst., https://

www.cancer.gov/types/breast/abortion-

a a ccnssenmniieinnl 6

Amanda Dennis et al., A Qualitative

Exploration of Low-Income Women’s

Experiences Accessing Abortion in

Massachusetts, 25:5 WOMEN'S HEALTH

or concede 18

Amy G. Bryant & Erika E. Levi, Abortion

Misinformation from Crisis Pregnancy

Centers in North Carolina, 86

CONTRACEPTION 752 (2012) .................-...-- 5, 6, 7,8

Andrea Swartzendruber et al., Sexua/ and

Reproductive Health Services and

Related Health Information on Pregnancy

Resource Center Websites: A Statewide

Content Analysis, 28:1 WOMEN’S HEALTH

A ER ee rt ee 4, 5, 6, 7

APA TASK FORCE ON MENTAL HEALTH AND

ABORTION, REPORT OF THE APA TASK

FORCE ON MENTAL AND ABORTION 4

(2008), available at http://www.apa.org/

pi/wpo/mental-health-abortion-report.pdf .....

Aziza Ahmed, /nformed Decision Making and

Abortion: Crisis Pregnancy Centers,

Informed Consent, and the First

Amendment, 43:1 J. L., MED. & ETHICS 51

AS Ls <2, as ee

Corinne H. Rocca et al., Decisional Rightness

and Emotional Responses to Abortion in

the United States: A Longitudinal! Study,

10:7 PLOS ONE (2015), available at

http://journals.plos.org/plosone/article?id=

10.137 l/journal.pone.0128832.........................

Daniel Grossman et al., Effectiveness and

Acceptability of Medical Abortion

Provided Through Telemedicine, 118:2

OBSTETRICS AND GYNECOLOGY 296 (2011).......

Danielle Bessett et al., Out of Time and Out

of Pocket: Experiences of Women Seeking

State-Subsidized Insurance for Abortion

Care in Massachusetts, 21°S3 WOMEN’S

HEALTH ISSUES S21 (2011)......................000-000--

Deborah Karasek et al., Abortion Patients’

Experience and Perceptions of Waiting

Periods: Survey Evidence Before

Arizona’s Two- Visit 24-hour Mandatory

Waiting Period Law, 26-1 WOMEN’S

HEALTH ISSUES 60 (2016)....................---...000----

Diana Greene Foster et al., Socioeconomic

Outcomes of Women Who Receive and

Women Who Are Denied Wanted

Abortions in the United States, 108°3 AM.

J. OF PUB. HEALTH 407 (2018).........................

Eleanor A. Drey et al., Risk Factors

Associated with Presenting for Abortion

in the Second Trimester, 107:1

OBSTETRICS & GYNECOLOGY 128 (2006) .........

Find a Qualified Provider to Enroll,

California Department of Health

Services, http://www.dhcs.ca.gov/

services/medi-cal/eligibility/Pages/F ind-a-

Qualified-Provider-to-Enroll.aspx (as of

aE erica iessibbincediaadicaeininlichsecisasscsosneins

Impacted by Abortion, Care-Net,

https://www.care-net.org/impacted-by-

a Te

Jenna Jerman et al., Barriers to Abortion

Care and Their Consequences for

Patients Traveling for Services:

Qualitative Findings from Two States,

49:2 PERSPS. ON SEXUAL & REPROD.

lg Be

Jenna Jerman et al., CHARACTERISTICS OF

U.S. ABORTION PATIENTS IN 2014 AND

CHANGES SINCE 2008, 7 (2016) available

at https://www.guttmacher.org/sites/

default/files/report_pdf/characteristics-us-

abortion-patients-2014.pdf ...............00000.0.00...

iV

Jessica N. Sanders et al., The Longest Wait-

Examining the Impact of Utah’s 72-Hour

Waiting Period for Abortion, 26:5

WOMEN’S HEALTH ISSUES 483, 485 (2016)....

Joanne D. Rosen, The Public Health Risks of

Crisis Pregnancy Centers, 44:3 PERSPS.

ON SEXUAL & REPROD. HEALTH 201 (2012) ...

Joyce M. Piper, Presumptive Eligibility For

Pregnant Medicaid Enrollees- Its Effects

on Prenatal Care and Perinatal Outcome,

84:10 AM. J. PUB. HEALTH 1626 (1994).........

Katelyn Bryant-Comstock et al., /nformation

about Sexual Health on Crisis Pregnancy

Center Web Sites: Accurate for

Adolescents?, 29 J. OF PEDIATRIC &

ADOLESCENT GYNECOLOGY 22 (2016)............

Katrina Kimport et al., The Prevalence and

Impacts of Crisis Pregnancy Center Visits

among a Population of Pregnant Women,

CONTRACEPTION (forthcoming Mar. 2018)

abstract available at

http://www.contraceptionjournal.org/

article/S0010-7824(17)30262-7/fulltext........

Kimberly Kelly, #vangelical Underdogs:

/ntrinsic Success, Organizational

Solidarity, and Marginalized Identities as

Religious Movement Resources, 43:4 J. OF

CONTEMP. ETHNOGRAPHY 419 (2014)............

Kimberly Kelly, /n the Name of the Mother-

Renegotiating Conservative Women’s

Authority in the Crisis Pregnancy

Movement, 38:1 Signs: J. of Women in

Culture and Soc’y 203 (2012)...........0000000000.

Lauren J. Ralph et al., Measuring Decisional

Certainty Among Women Seeking

Abortion, 95:3 CONTRACEPTION 269 (2017)

Lawrence B. Finer et al., 7iming of Steps

and Reasons for Delays in Obtaining

Abortions in the United States, 74:4

Contraception 334 (2006)..................0.00000...

Liza Fuentes et al., Women’s Experiences

Seeking Abortion Care Shortly After the

Closure of Clinics Due to a Restrictive

Law in Texas, 93:4 CONTRACEPTION 292

ee icacthacnedhsrchandalnudideinatidnitlcka thidebpighesie

Lori R. Freedman et al., Religious Hospital

Policies on Reproductive Care: What Do

Patients Want to Know? 218:2 AM. J. OF

OBSTETRICS & GYNECOLOGY 251 (2018) .....

M. Antonia Biggs et al., Understanding Why

Women Seek Abortions in the United

States, 13:29 BMC WOMEN’S HEALTH 1, 5-

RE PENN ad ET EIR Ie Pts EEO

Marian Jarlenski et al., Medicaid

Enrollment Policy Increased Smoking

Cessation Among Pregnant Women But

Had No Impact On Birth Outcomes, 33:6

HEALTH AFFS. 997 (2014)...............000...000000-

vi

winesee 3, 4

a Bh

Mary Gatter et al., Helationship Between

Ultrasound Viewing and Proceeding to

Abortion, 123:1 OBSTETRICS &

I I ie ciice ces 10-11

Maryam Guiahi et al., Are Women Aware of

Religious Restrictions on Reproductive

Health at Catholic Hospitals? A Survey of

Women’s Expectations and Preferences

for Family Planning Care, 90

CONTRACEPTION 429 (2014) ............:ccccccceeeceeeeeeseoee i)

Nancy E. Reichman & Julian O. Teitler,

Timing of Enhanced Prenatal Care and

Birth Outcomes in New Jersey’s

HealthStart Program, 9:2 MATERNAL &

CHILD HEALTH J. 151 (June 2005)....................... 21

Nancy E. Reichman et al., 8:2 REV. ECON.

Be I oi ccencrctcsanveresesnepscces 21

Rachel K. Jones & Jenna Jerman, Abortion

Incidence and Service Availability in the

United States, 2014, 49:1 PERSPS. ON

SEXUAL & REPROD. HEALTH 17, 22 (2017)

available at

https://www.guttmacher.org/journals/psrh

/2017/01/abortion-incidence-and-service-

availability-united-states-2014 ..........................4.. 4

Rachel K. Jones & Jenna Jerman, How Far

Did US Women Travel for Abortion

Services in 2008?, 22:8 J. OF WOMEN’S

a 17

Vii

Rachel K. Jones et al., At What Cost?

Payment for Abortion Care by U.S.

Women, 23:3 WOMEN'S HEALTH ISSUES

Sa lassie 14

Rachel K. Jones et al., Differences in

Abortion Service Delivery in Hostile,

Middle-Ground and Supportive States in

2014, WOMEN’S HEALTH ISSUES

(forthcoming 2018), available at

http://www. whijournal.com/article/S 1049-

Ralitza Gueorguieva et al., Length of

Prenatal Participation in WIC and Risk of

Delivering a Small for Gestational Age

Infant- Florida, 1996-2004, 13:4

MATERNAL & CHILD HEALTH J. 479 (July

BBREEREITE aE EPO RE ie OS BE ps CPS a 21

EEA TR SSRIS dS aR ea l

Sarah C.M. Roberts &, Cheri Pies, Complex

Calculations: How Drug Use During

Pregnancy Becomes a Barrier to Prenatal

Care, 15 MATERNAL & CHILD HEALTH J.

NN chi ivatisstctssacdbcoeninaticsininssiiicsabscnscovbnscenscass 21

Sarah C.M. Roberts et al, Do 72-hour

Waiting Periods and Two- Visits

Requirements for Abortion Affect

Women’s Certainty? A Prospective Cohort

Study, 27:4 WOMEN’S HEALTH ISSUES 400

ESSER SS ANE REESE RES sco. AS a 1]

vill

Sarah C.M. Roberts et al., Out-of Pocket

Costs and Insurance Coverage for

Abortion in the United States, 24:2

WOMEN’S HEALTH ISSUES e211 (2014)13, 14, 16, 19

Sarah C.M. Roberts et al., Risk of Violence

from the Man Involved in the Pregnancy

after Receiving or Being Denied an

Abortion, 12:144 BMC MEDICINE 1 (2014) .......... 18

Sarah C.M. Roberts et al., Utah’s 72-Hour

Waiting Period for Abortion: Experiences

Among a Clinic-Based Sample of Women,

48:4 PERSPS. ON SEXUAL & REPROD.

I sais 15, 16

Susan A. Cohen, Sti// True: Abortion Does

Not Increase Women’s Risk of Menta!

Health Problems, 16:2 GUTTMACHER

I nn cwsineseinene aii 12

Susie Meister, How my job talking women

out of abortions made me pro-choice, Vox

(May 26, 2016),

https://www.vox.com/20 16/5/26/11760670/

Ushma D. Upadhyay et al., Denia/ of

Abortion Because of Provider Gestational!

Age Limits in the United States, 104:9

AM. J. OF PUB. Health 1687 (2014) .......... 13, 14, 19

Ushma D. Upadhyay et al., The Effect of

Abortion on Having and Achieving

Aspirational One-Year Plans, 15:102

BMC WOMEN’S HEALTH 1 (2015)....................00.... 17

ix

Valerie French et al., /nfluence of Clinician

Referral on Nebraska Women’s Decision-

to-Abortion Time, 93 CONTRACEPTION 236

Victoria Lazariu- Bauer et al., A Comparative

Analysis of Effects of Early Versus Late

Prenatal WIC Participation on Birth

Weight: NYS, 1995, 8:2 MATERNAL &

CHILD HEALTH J. 77 (June 2004) .....00....0......000.... 21

Vignetta E. Charles et al., Abortion and

Long-Term Mental Health Outcomes: A

Systematic Review of the Evidence, 78:6

CONTRACEPTION 436 (2008) ................cc-:000ce-00000+ 12

What is prenatal care and why is it

important, Eunice Kennedy Shriver Nat’!

Inst. of Child Health and Human Dev.,

https://www.nichd._nih.

gov/health/topics/pregnancy/

conditioninfo/prenatal-care................................+- 20

Worldwide Directory of Pregnancy Help,

HeartBeat International,

https://www. heartbeatinternational.org/w

orldwide-directory (filtered for California

a a niiasiniensad 23

INTEREST OF AMICI CURIAP:

Amici curiae are social science, public health, and

clinical researchers who have spent decades

conducting and _ publishing’ research about

reproductive medical services, including prenatal

care, abortion, and contraception. This includes

research on crisis pregnancy centers—nonprofit

organizations whose mission is to persuade women to

forgo abortion. Amuci believe that the Court's

resolution of this matter should be informed by valid

and credible research that relates to women’s

reproductive healthcare. As explained in this brief,

this research highlights the importance of equipping

women with the information necessary to facilitate

access to healthcare resources.

A full list of amici is attached as an appendix to this

brief.

SUMMARY OF ARGUMENT

Amici respectfully submit that this Court should

consider the issues presented in this case in light of

certain social science and public health research that

underscores the importance of equipping women

with the information necessary to facilitate access to

healthcare resources.

' Petitioners have filed a blanket consent to the filing of

amicus briefs, and Respondents have consented to the

filing of this brief.

Overwhelming evidence from social science research

demonstrates that the vast majority of women who

decide to have an abortion are sure about their

choice and want to avoid delay in obtaining care. For

these women, however, crisis pregnancy centers

(“CPCs”)—nonprofit organizations whose mission is

to persuade women to forgo abortion—may serve as a

hurdle in access to care. Research shows that CPCs

in many cases portray the services they provide in a

potentially misleading way, and as such, we believe

that there is a risk that women may visit certain

CPCs based on misconceptions. Furthermore,

irrespective of the reason women may visit a CPC,

research has shown that many CPCs disseminate

inaccurate medical information, which may risk

causing harm.

We support the disclosure requirements at issue in

this case, both in order to mitigate’ the

aforementioned risks and to reduce the barriers

facing women who wish to access family planning

services, abortion, and prenatal care. Extensive

research has documented the financial and logistical

barriers that women face when accessing

reproductive healthcare, including lack of insurance.

The substantial cost of abortion for uninsured

women is a particularly high hurdle. For states like

California that have expressed a public policy

interest in making abortion accessible, ensuring

access to insurance for abortion patients is therefore

essential. The Reproductive FACT Act effectuates

this public policy interest through the requirement

that all covered pregnancy-related facilities—CPCs

and other covered facilities alike—disclose to

patients that they may be eligible for free or

subsidized care through their county social services

office.

The benefits of such a disclosure may carry over to

women who want to carry their pregnancies to term

as well as to women who want an abortion. Early

access to prenatal care may provide important health

benefits, and California has a variety of public

programs designed to help women connect with and

finance such care. Although most CPCs market

themselves as providing healthcare services, they

typically do not offer prenatal care or connect women

with these public programs.

ARGUMENT

Research shows that crisis pregnancy centers

provide inaccurate or potentially misleading

information regarding abortion and

contraception.

CPCs are nonprofit organizations established with

the primary aim of persuading women to forgo

abortion.2, While the full number of CPCs in the

United States is unknown, prior estimates, which

amici believe are likely low, range from 2,500 to

4,000 centers across the country, compared to an

estimated 1,671 abortion providers.? CPCs have

2 See, e.g., Kimberly Kelly, /n the Name of the Mother:

Renegotiating Conservative Women’s Authority in the

Crisis Pregnancy Movement, 38:1 SIGNS: J. OF WOMEN IN

CULTURE AND Soc’y 203, 205 (2012) (ethnographic study

of the CPC movement).

3 See Aziza Ahmed, /nformed Decision Making and

Abortion: Crisis Pregnancy Centers, Informed Consent,

existed since the 1970s, but the sector has

experienced exponential growth in recent decades.‘

CPCs “have been widely criticized by advocacy

groups and others for deceptive practices,

misrepresenting their services, creating the

appearance that they are comprehensive

reproductive health clinics, and providing false and

misleading medical information.” And although

social science and public health research to date is

limited, studies have confirmed that some CPCs (a)

portray the services offered at their centers in a

potentially misleading way, and (b) disseminate

inaccurate information about reproductive health.

First, some CPCs market their services to pregnant

women and other women of reproductive age without

disclosing in advance that they do not provide

abortion or contraception. A recent study of the

websites of CPCs in Georgia found that, while almost

all of the assessed CPC websites advertised

and the First Amendment, 43:1 J. L., MED. & ETHICS 51,

51 (2015) (citing sources); Rachel K. Jones & Jenna

Jerman, Abortion Incidence and Service Availability in

the United States, 2014, 49:1 PERSPS. ON SEXUAL &

REPROD. HEALTH 17, 22 (2017), available at

https://www.guttmacher. org/journals/psrh/2017/0 /

abortion-incidence-and-service-availability- united-states:

2014.

‘ Kelly, supra note 2, at 210, 212.

5 Andrea Swartzendruber et al., Sexua/ and Reproductive

Health Services and Related Health Information on

Pregnancy Resource Center Websites’ A Statewide

jo Analysis, 28:1 WOMEN’S HEALTH ISSUES 14, 15

2018).

pregnancy testing and options counseling (98% and

84%, respectively), over half of the websites—58%—

lacked a notice that they did not provide or refer for

abortion, and 89% lacked a notice that they did not

provide or refer for contraception.* A study of North

Carolina CPCs, which relied on phone calls and

“secret shopper” visits (ie., visits by researchers

posing as potential clients in order to collect data),

found that 44% of the CPCs surveyed told clients

that they offer counseling on abortion and its risks,

while 59% disclosed that they did not provide or refer

for abortions.’

Second, CPCs have been found to provide inaccurate

and misleading medical information about abortion

and contraception. For example, even though the

possibility of a relationship between abortion and

breast cancer has been thoroughly debunked,* 16% of

the CPCs visited in the North Carolina study warned

women of a link between abortion and breast cancer,

and 11% made such claims on their websites.®

Similarly, the study of Georgia CPC websites found

that 8% of websites reviewed linked abortion to

® Jd. at 16.

7 Amy G. Bryant & Erika E. Levi, Abortion

Misinformation from Crisis Pregnancy Centers in North

Carolina, 86 CONTRACEPTION 752, 753 (2012).

8 See Swartzendruber, supra note 5, at 16 (citing sources):

Bryant & Levi, supra note 7, at 754 (same); Joanne D.

Rosen, The Public Health Risks of Crisis Pregnancy

Centers, 44:3 PERSPS. ON SEXUAL & REPROD. HEALTH 201,

201 (2012) (same).

® Bryant & Levi, supra note 7, at 753.

breast cancer.'° Such CPCs persist in making these

claims in the face of overwhelming evidence to the

contrary: in 2003, more than 100 of the world’s

leading experts who study pregnancy and breast

cancer risk “concluded that having an abortion or

miscarriage does not increase a woman’s subsequent

risk of developing breast cancer.”!!

The inaccurate information provided by CPCs does

not stop at unfounded claims about breast cancer.

The North Carolina study also found that counselors

at 21% of CPCs visited warned women of a phony

link between abortion and infertility.'"2 In fact,

medical evidence has clearly disproved the alleged

link.'8

CPCs often warn of adverse mental health

consequences of abortion, such as “post-abortion

syndrome.” According to the North Carolina study,

26% of the CPCs visited claimed a link between

abortion and mental health risks and 31% made such

claims on their websites.’ The study of Georgia

CPC websites found that 36% of the websites

reviewed claimed that abortion leads to mental

health problems.'® In point of fact, “post-abortion

syndrome” is not supported by credible medical

'© Swartzendruber, supra note 5, at 16.

'! Abortion, Miscarriage, and Breast Cancer Risk: 2003

Workshop, Nat'l Cancer Inst., https://www.cancer.gov/

types/breast/abortion- miscarriage: risk.

2 Bryant & Levi, supra note 7, at 753-54.

13 See id. at 754 (citing sources).

4 Id. at 753-54.

'S Swartzendruber, supra note 5, at 16.

research, nor recognized by the American

Psychological Association or the American

Psychiatric Association.'® Indeed, according to the

American Psychological Association’s Task Force on

Mental Health and Abortion, “[t/he best scientific

evidence published indicates that among adult

women who have an unplanned pregnancy the

relative risks of mental health problems is no greater

if they have a single first-trimester abortion than if

they deliver that pregnancy.”'? And a causal link

between multiple abortions and mental health harms

has not been established. '*

Beyond abortion, CPCs have also been found to

provide incorrect medical information about

contraception, often inaccurately downplaying its

efficacy. For example, 78% of CPC websites

surveyed in Georgia that contained information

about condoms included “statements that seemed to

be designed to undermine confidence in condom

effectiveness or false statements about condom

effectiveness.”'® Of the CPCs visited in North

'6 See Bryant & Levi, supra note 7, at 754: Rosen, supra

note 8, at 202.

'7 APA TASK FORCE ON MENTAL HEALTH AND ABORTION,

REPORT OF THE APA TASK FORCE ON MENTAL AND

ABORTION 4 (2008), available at http://www.apa.org/

pi/wpo/mental-health-abortion-report.pdf.

'8 Swartzendruber, supra note 5, at 19.

‘9 Jd. at 17

Carolina, 26% conveyed that condoms are

ineffective .2°

Although research on how women respond to

potentially misleading portrayals of services offered

or inaccurate medical information is still developing,

two recent studies suggest that some women may

misunderstand the services offered by CPCs. In a

recent study of women at Nebraska abortion clinics,

15% of women surveyed reported that they had

previously contacted a CPC, while 12% reported that

they had only contacted a CPC before presenting at

the abortion clinic.2! Furthermore, these women

mentioned CPC staff when asked to identify persons

“providing healthcare and with whom [they]

discussed the pregnancy,” underscoring the need for

clear and accurate information about CPCs’

intentions and services.22. In addition, a recent

qualitative study into the barriers to abortion care

that drive women to travel long distances for an

abortion found that four out of 29 women pointed to

encounters with CPCs as having impeded their

access to care.?%

20 Bryant & Levi, supra note 7, at 753. See also Katelyn

Bryant-Comstock et al., /nformation about Sexual Health

on Crisis Pregnancy Center Web Sites’ Accurate for

Adolescents? 29 J. OF PEDIATRIC & ADOLESCENT

GYNECOLOGY 22, 23-24 (2016).

2! Valerie French et al., Jnfluence of Clinician Referral on

Nebraska Women’s Decision-to-Abortion Time, 93

CONTRACEPTION 236, 238-39 (2016).

22 Jd. at 241.

23 See Jenna Jerman et al., Barriers to Abortion Care and

Their Consequences for Patients Traveling for Services:

More broadly, research suggests that women want to

know what treatment is available at a facility before

they seek care there. Specifically, one survey found

that more than 80% of women found it somewhat or

very important to know about a hospital’s religiously

motivated restrictions on care.24 Research also

shows that women expect to receive the full range of

reproductive health services whether or not the

facility where they seek health care has a religious

affiliation.25

Based on the research that has been conducted to

date, amici believe there is a risk that some women

may visit certain CPCs with a misconception about

which services are provided and which are not, and

while there, may receive scientifically and medically

inaccurate information. Such findings indicate that

patient interests are served by disclosures about

limitations on care, and information that may

connect them with the care they seek.

Qualitative Findings from Two States, 49:2 PERSPS. ON

SEXUAL & REPROD. HEALTH 95, 98 tbl. 2 (2017).

24 See Lori R. Freedman et al., Religious Hospital Policies

on Reproductive Care: What Do Patients Want to Know?

218:2 AM. J. OF OBSTETRICS & GYNECOLOGY 251 (2018).

25 See Maryam Guiahi et al., Are Women Aware of

Religious Restrictions on Reproductive Health at Catholic

Hospitals? A Survey of Women’s Expectations and

Preferences for Family Planning’ Care, 90

CONTRACEPTION 429 (2014).

Research demonstrates that the vast majority of

women who decide to have an abortion are sure

about their decision, and want to avoid delay in

obtaining care.

CPCs claim that their goal is to present “abortion-

minded” or “abortion-determined” women _ with

information and counseling intended to change their

minds about their pregnancy decision. They claim

that drawing women into CPCs will have a beneficial

effect on their decision-making by promoting

alternatives to abortion. In addition, they claim that

by dissuading women from choosing abortion, they

will prevent abortion-related regret.”6

Contrary to this premise, research shows that

women who present for an abortion are confident in

their decision.2”7. Indeed, the research demonstrates

2% See, eg. Impacted by Abortion, Care-Net,

https://www.care-net.org/impacted-by-abortion (providing

resources to cope with “ ‘abortion pain” and promote

“post-abortion recovery’); Susie Meister, How my job

talking women out of abortions made me pro-choice, Vox

(May 26, 2016), https://www.vox.com/2016/5/26/1 1760670/

crisis-pregnancy-center (describing the practices of a

particular CPC, including that the author was “directed

to tell women that studies show they will regret an

abortion for the rest of their lives”).

27 Lauren J. Ralph et al., Measuring Decisional Certainty

Among Women Seeking Abortion, 95:3 CONTRACEPTION

269 (2017) (based on a survey of over 300 women in Utah

family planning facilities, finding that the level of

uncertainty in abortion decision making is comparable to

or lower than other health decisions); Mary Gatter et al.,

Relationship Between Ultrasound Viewing and

Proceeding to Abortion, 123:1 OBSTETRICS &

10

that women deciding whether to have an abortion

are less conflicted than those making other common

healthcare decisions. And, once the decision is

made, they are unlikely to change their minds. One

study found that, among women in Utah who were

confident in their decision to have an abortion, 95%

were no less certain after they surpassed the state’s

mandatory three-day waiting period.”9

Research also demonstrates that women who have

decided to have an abortion want to do so without

delay. For example, 94% of medication abortion

patients said it was very important to them to have

an abortion early in pregnancy.*® In fact, most

abortion patients, including 52% of those obtaining

abortions in the first trimester, said they would have

preferred to have had an abortion earlier, but

GYNECOLOGY 81 (2014) (based on a sample of over 15,000

women, finding that 85% of the women presenting at

California abortion clinics were confident and clear about

the decision to have an abortion, and among these,

viewing an ultrasound image of the fetus had no effect on

the ultimate decision to have an abortion).

28 Ralph, supra note 27, at 276 (finding that women were

less conflicted about the decision to have an abortion than

were all genders regarding reconstructive knee surgery,

as well as compared to men deciding on prostate cancer

treatment options).

29 Sarah C.M. Roberts et al, Do 72-hour Waiting Periods

and Two-Visits Requirements for Abortion Affect

Women's Certainty? A Prospective Cohort Study, 27:4

WOMEN’S HEALTH ISSUES 400 (2017).

%© Daniel Grossman et al., Effectiveness and Acceptability

of Medical Abortion Provided Through Telemedicine,

118:2 OBSTETRICS AND GYNECOLOGY 296 (2011).

financial limitations (or lack of knowledge about

pregnancy) caused delay.*!

Furthermore, women who have had an abortion

overwhelmingly continue to believe they made the

right decision after the abortion.*2 In one study of

post-abortion emotions that women experience, more

than 95% of women reported that the abortion was

the right decision at all points over the three years

following the abortion, and the feeling of decisional

rightness tended to increase over time.**

Neither does abortion have a negative effect on

women’s mental health. Recent studies and

systematic reviews of the literature have found that,

contrary to claims made by abortion opponents,

abortion does not cause depression, suicidal ideation,

anxiety, or other mental health harms.**

3! Lawrence B. Finer et al., Timing of Steps and Reasons

for Delays in Obtaining Abortions in the United States,

74:4 CONTRACEPTION 334 (2006).

%2 Corinne H. Rocca et al. Decisional Rightness and

Emotional Responses to Abortion in the United States: A

Longitudinal Study, 10:7 PLOS ONE (2015), available at

http://journals. plos.org/plosone/article?id= 10.137 1/journal.

pone.0128832.

33 Jd. at 7.

%4 See, e.g., Vignetta E. Charles et al., Abortion and Long-

Term Mental Health Outcomes: A Systematic Review of

the Evidence, 78:6 CONTRACEPTION 436, 439-448 (2008);

Susan A. Cohen, Stil// True: Abortion Does Not Increase

Women’s Risk of Mental Health Problems, 16:2

GUTTMACHER POL’Y REV. 13, 13—14 (2013).

12

Research shows that women face financial and

logistical burdens when accessing abortion, and

lack of access to insurance may contribute to

delays.

For women paying out of pocket, abortion is

expensive, with the median cost ranging from $490

to $1,750, depending on the timing of the

procedure.*® Such costs would consume 24% to 85%

of the monthly income of a family of four living at the

federal poverty line—a level that exceeds the

monthly income of nearly half of abortion patients.

For states like California that have expressed a

public policy interest in making abortion accessible,

ensuring access to insurance for abortion patients is

therefore essential. The notice required of all

licensed covered facilities under the FACT Act (the

“signage requirement”)—which provides information

about how to access public programs that provide

“free or low-cost access to comprehensive family

planning services, (including all FDA-approved

methods of contraception), prenatal care, and

abortion for eligible women”—effectuates this

important state policy.*®

35 Sarah C.M. Roberts et al., Out-ofPocket Costs and

Insurance Coverage for Abortion in the United States,

24:2 WOMEN’S HEALTH ISSUES e211, e214 (2014). Other

studies have found similar cost increases over time. See,

e.g, Ushma D. Upadhyay et al., Denial of Abortion

Because of Provider Gestational Age Limits in the United

States, 104:9 AM. J. OF PUB. HEALTH 1687 (2014).

36 CAL. HEALTH & SAFETY CODE § 123472(a)(1).

13

A. Lack of financial resources delays access to

abortion.

For women who cannot use insurance to pay for their

abortions, the need to pay out of pocket is a

significant barrier, leading some woman to forgo

payment of other bills.*’7 For more than half of

women paying for an abortion out-of-pocket, these

costs were equivalent to more than one-third of

monthly personal income, and this was closer to two

thirds among those receiving later abortions.** Lack

of financial resources is associated with longer delays

in obtaining an abortion, which may result in a

woman being unable to obtain an abortion at all due

to exceeding the gestational limit for her state or

care provider.®® Indeed, among women denied an

abortion because their pregnancies had advanced

beyond the provider's gestational limit, the need to

raise funds to pay for the procedure was the most

commonly reported reason for delay.*°

Such hardships are especially challenging because

the most common reasons that women seek abortions

are financial.*! As referenced above, nearly half of

abortion patients live below the federal poverty level

37 Rachel K. Jones et al., At What Cost? Payment for

Abortion Care by U.S. Women, 23:3 WOMEN'S HEALTH

ISSUES e173 (2013).

38 Roberts et al., supra note 35, at e214.

39 Upadhyay et al., supra note 35, at 1689.

% Id.

‘| M. Antonia Biggs et al., Understanding Why Women

Seek Abortions in the United States, 13:29 BMC

WOMEN’S HEALTH 1, 5-6 (2013).

14

(.e., $24,600 annual income for a family of four), and

three in four live below 200% of the poverty line.‘

In such circumstances, missing one day of work—

much less two—means losing wages that an

individual or family can ill-afford to forgo.

When women face delays in obtaining an abortion,

the logistical and financial burdens they face

multiply. On average, a woman must wait at least a

week between when she attempts to make an

appointment and when she receives an abortion.*®

Additionally, in many cases, personal

circumstances—such as the need to arrange for

childcare or transportation, or to raise money to pay

for the procedure—may cause additional delays.“4

42 JENNA JERMAN ET AL., CHARACTERISTICS OF U.S.

ABORTION PATIENTS IN 2014 AND CHANGES SINCE 2008, 7

(2016), available at https://www.guttmacher.org/sites/

default/files/report_pdf/characteristics-us-abortion-

patients-2014.pdf.

*® The median is seven days, while the average is 10 days.

Moreover, poorer women wait two to three days longer

than the typical woman. See Finer et al., supra note 31,

at 338, 343.

“4 See Liza Fuentes et al., Women’s Experiences Seeking

Abortion Care Shortly After the Closure of Clinics Due to

a Restrictive Law in Texas, 93:4 CONTRACEPTION 292

(2016) (finding, in the context of the HB2-related clinic

closures, that women who had to arrange transportation

or could not take time off of work on pee day of the next

available appointment were delayed even further); see

also Sarah C.M. Roberts et al., Utah's 72-Hour Waiting

Period for Abortion: Experiences Among a Clinic-Based

Sample of Women, 48:4 PERSPS. ON SEXUAL & REPROD.

HEALTH 179, 185 (2016) (finding that having to raise

additional funds was a reason for waiting longer than the

required 72-hours).

15

Delays also have the effect of increasing the cost of

an abortion. Abortion in the first trimester is

substantially less expensive than in the second

trimester: the median price of a surgical abortion at

10 weeks is $508, while the cost rises to $1,195 at

week 20.5 Another study found that abortion (up to

14 weeks) is $490, compared to $750 for weeks 14 to

20, and $1,750 after week 20.6 The rising cost of

abortion as gestational age increases poses a

profound challenge to the affordability of the

procedure for lower-income women. As one Utah

woman explained: “I knew the longer it took, the

more money it would cost .... We are living

paycheck to paycheck as it is, and if I [had] gone one

week sooner, it would have been $100 less.”47

Moreover, delays raise the cost of each step of

obtaining an abortion—not just the cost of the

procedure. For example, one recent study found that

Utah’s mandatory waiting period caused 47% of

women having an abortion to miss an extra day of

work.*8 More than 60% were negatively affected in

* Rachel K. Jones et al., Differences in Abortion Service

Delivery in Hostile, Middle-Ground and Supportive States

in 2014, WOMEN’S HEALTH ISSUES (forthcoming 2018),

available at http://www.whijournal.com/article/S1049-

3867(17)30536-4/pdf.

46 Roberts et al., supra note 35. Other studies have found

similar increases over time. See, e.g, Upadhyay et al.,

supra note 35 at 1687.

47 Roberts et al., supra note 44, at 184.

‘8 Jessica N. Sanders et al., The Longest Wait: Examining

the Impact of Utah’s 72-Hour Waiting Period for

Abortion, 26:5 WOMEN’S HEALTH ISSUES 483, 485 (2016).

16

other ways, including increased transportation costs,

lost wages by a family member or friend, or being

required to disclose the abortion to someone whom

they otherwise would not have told.49 And because

many clinics do not offer second-trimester abortions,

a woman who has been delayed into the second

trimester will typically be required to travel farther

to obtain an abortion, thereby incurring additional

travel and related costs, such as lost wages.*

As discussed above, sometimes women are delayed

past the point in time at which a state or clinic no

longer permits abortion. Denial of abortion services

due to exceeding gestational limits has serious

consequences. When women are denied wanted

abortions, they are less likely to be employed, and

more likely to fall below the poverty level—even

though they are more likely to receive increased

levels of public assistance.®! They are also less likely

to achieve aspirational plans for the coming year.®?

49 Jd; accord Deborah Karasek et al., Abortion Patients’

Experience and Perceptions of Waiting Periods: Survey

Evidence Before Arizona’s Two-Visit 24-hour Mandatory

foe Period Law, 26:1 WOMEN’S HEALTH ISSUES 60

2016).

50 Rachel K. Jones & Jenna Jerman, How Far Did US

Women Travel for Abortion Services in 2008?, 22:8 J. OF

WOMEN’S HEALTH 706 (2013).

5! Diana Greene Foster et al., Socioeconomic Outcomes of

Women Who Receive and Women Who Are Denied

Wanted Abortions in the United States, 108:3 AM. J. OF

PUB. HEALTH 407 (2018).

52 Ushma D. Upadhyay et al., The Effect of Abortion on

Having and Achieving Aspirational One-Year Plans,

15:102 BMC WOMEN’S HEALTH 1 (2015).

17

And they are more likely to remain in relationships

with partners who subject them to physical

violence.™

B. Women Face Difficulties in Obtaining and

Using Insurance Coverage for Abortion.

Research shows that women seeking abortion face

hurdles in obtaining insurance coverage, even when

public programs are available. In Massachusetts,

where public insurance covers abortion, some women

still paid out of pocket for abortion because they were

uninsured. Most commonly, uninsured women

reported that they either (a) had applied for

insurance but not yet been approved; (b) faced

challenges in navigating the enrollment process; or

(c) had difficulty recertifying eligibility.‘ Also in

Massachusetts, women who had been referred to

subsidized insurance programs at the time they were

seeking abortion widely reported that the application

process was confusing—with younger women

reporting the highest levels of confusion with the

process.

583 Sarah C.M. Roberts et al., Risk of Violence from the

Man Involved in the Pregnancy after Receiving or Being

Denied an Abortion, 12:144 BMC MEDICINE 1 (2014).

* Amanda Dennis et al., A Qualitative Exploration of

Low-Income Women’s Experiences Accessing Abortion in

Massachusetts, 25:5 WOMEN'S HEALTH ISSUES 463 (2015).

‘ Danielle Bessett et al., Out of Time and Out of Pocket:

Experiences of Women Seeking State-Subsidized

Insurance for Abortion Care in Massachusetts, 21:S3

WOMEN’S HEALTH ISSUES S21 (2011).

Lack of insurance, or problems with insurance, may

lead to delay. In a study comparing women who

received an abortion with those who were denied an

abortion because of gestational limits, women

commonly cited “insurance problems” as a factor

delaying their abortions, including administrative

and logistical problems like having to determine

whether the procedure was covered among women

with insurance, or waiting for Medicaid-based

coverage where available. In a study focused on

California women, women who had second trimester

abortions were more likely to report trouble with

insurance coverage as a factor causing delay than

first trimester patients.°’ More generally, in states

where public insurance includes coverage for

abortion, residents are less likely to report cost as a

reason for delay.**

Given these difficulties, delays related to insurance

coverage, and burdens exacerbated by delays,

California has a compelling interest in informing

women that public programs exist, and how they can

access them.

% Upadhyay et al., supra note 35, at 1689, 1691.

57 Eleanor A. Drey et al., Risk Factors Associated with

Presenting for Abortion in the Second Trimester, 107:1

OBSTETRICS & GYNECOLOGY 128 (2006). One confounding

factor noted by the authors is that second trimester

patients may also have been more likely to need

insurance, because the cost of the procedure rises with

gestational age. Id.

58 Sarah C.M. Roberts et al., Out-ofPocket Costs and

Insurance Coverage for Abortion in the United States,

24:2 WOMEN’S HEALTH ISSUES e211 (2014)

19

IV. Research demonstrates the importance of early

entry into prenatal care, but CPCs in California

do not assist women in accessing prenatal care.

Of course, some women who visit CPCs do not want

abortions, but rather seek assistance with respect to

pregnancies they plan to carry to term.” These

women go to CPCs to obtain pregnancy tests,

ultrasounds, and other services. Studies to date

indicate that CPCs typically do not provide onsite

prenatal care.®

Early entry into prenatal care can facilitate

behaviors that are important for birth, infant, and

child outcomes. For example, early enrollment in

prenatal care may identify and treat key health

issues, prevent harms to the fetus from ongoing use

of medications that are not safe during pregnancy,

and provide links to key services and supports that

have been shown to improve birth outcomes.®!

59 See Kimberly Kelly, Evangelical Underdogs: Intrinsic

Success, Organizational Solidarity, and

Identities as Religious Movement Resources, 43:4 J. OF

CONTEMP. ETHNOGRAPHY 419, 423 (2014); Katrina

Kimport et al. The Prevalence and Impacts of Crisis

Pregnancy Center Visits among a Population of Pregnant

Women, CONTRACEPTION (forthcoming Mar. 2018),

abstract available at http://www.contraceptionjournal.org/

article/S0010-7824(17)30262-7/fulltext.

®° Kimport et al., supra note 59.

6! See What is prenatal care and why is it important,

Eunice Kennedy Shriver Nat'l Inst. of Child oo Vn

Human Dev., https://www.nichd.nih.

pregnancy/conditioninfo/prenatal-care — ~~ 4

prenatal care can help ensure the onlieaiean women

20

Although prenatal care confers these benefits,

women may not know that they are eligible for

pregnancy-specific coverage, and bureaucratic

hurdles to enrolling can be a deterrent.®2 Among the

measures found to facilitate earlier entry into

prenatal care is “presumptive _ eligibility.”

“Presumptive eligibility’ means that states may

allow certain providers (such as local health

departments, community health centers, and

hospitals) to determine temporary eligibility for

Medicaid, and to provide prenatal care while the

take are safe); see also Nancy E. Reichman et al., 8:2 REV.

ECON. HOUSEH. 171 GWune 2010) (finding that first-

trimester prenatal care appears to decrease maternal

postpartum smoking by approximately five percent):

Ralitza Gueorguieva et al, Length of Prenatal

Participation in WIC and Risk of Delivering a Small for

Gestational Age Infant: Florida, 1996-2004, 13:4

MATERNAL & CHILD HEALTH J. 479 (July 2009) (finding

that enrollment in WIC and Medicaid-funded prenatal

services was associated with reduced incidence of low

birth weight); Nancy E. Reichman & Julian O. Teitler,

Timing of Enhanced Prenatal Care and Birth Outcomes

in New Jersey’s HealthStart Program, 9:2 MATERNAL &

CHILD HEALTH J. 151 GWune 2005) (finding that

initiating prenatal care in the first or second trimester

was associated with a l-day advantage in gestational

age); Victoria Lazariu-Bauer et al, A Comparative

Analysis of Effects of Early Versus Late Prenatal WIC

Participation on Birth Weight: NYS, 1995, 8:2 MATERNAL

& CHILD HEALTH J. 77 (June 2004) (finding that infants

born to WIC participants who enrolled in prenatal care

early were heavier than those who enrolled late).

6&2 Sarah C.M. Roberts &, Cheri Pies, Complex

Calculations: How Drug Use During Pregnancy Becomes

a Barrier to Prenatal Care, 15 MATERNAL & CHILD

HEALTH J. 333 (2011).

21

application is being processed.®’ As a consequence,

patients can enroll in coverage and obtain care on

the spot, instead of having to wait for coverage, and

make additional visits to a health care facility when

coverage is approved.*4 Presumptive eligibility has

been shown to lead to increased use of prenatal care,

and certain beneficial outcomes, such as smoking

cessation.®

Based on publicly accessible information provided by

California’s Department of Health Care Services,

CPCs generally do not enroll women who want to

continue their pregnancies into presumptive

eligibility insurance so that they can _ receive

subsidized prenatal care.“6 The FACT Act’s signage

63 Joyce M. Piper, Presumptive Eligibility For Pregnant

Medicaid Enrollees: Its Effects on Prenatal Care and

Perinatal Outcome, 84:10 AM. J. PUB. HEALTH 1626

(1994).

64 Id.

65 Marian Jarlenski et al., Medicaid Enrollment Policy

Increased Smoking Cessation Among Pregnant Women

But Had No Impact On Birth Outcomes, 33:6 HEALTH

AFFS. 997 (2014).

*6 This conclusion was derived by cross-referencing a

directory of pregnancy service providers provided by

amicus curiae HeartBeat International (“HeartBeat”)

with California’s list of providers that are eligible to

enroll women in presumptive eligibility. HeartBeat is a

501(c)(3) organization that “serves approximately 2,400

pro-life centers, maternity homes, and non-profit adoption

agencies in over 50 countries—making Heartbeat the

world’s largest such affiliate network.” Amicus Curiae

Brief of HeartBeat International at 1. Among other

services, HeartBeat provides a “Worldwide Directory of

Pregnancy Help,” which lists 357 service providers in

22

requirement thus makes use of an opportunity to

connect women with coverage at the time and place

that they are seeking pregnancy-related services—an

opportunity that might otherwise be missed. Indeed,

neither petitioners nor their amici have identified

whether CPCs use any other means to inform women

how to obtain insurance coverage for pregnancies

that they plan to continue.

CONCLUSION

We respectfully request the Court consider the issues

presented in this case in light of the social science

and public health research discussed above.

Dated: February 27, 2018

Respectfully submitted,

Steven A. Zalesin

Counsel of Record

Derek Borchardt

California alone, of which 71 are HeartBeat affiliates.

Only 4.2% of service providers listed, and 8.4% of

HeartBeat affiliates are eligible to enroll women into

presumptive eligibi..ty insurance so that they can receive

subsidized prenatal care. Compare Worldwide Directory

of Pregnancy Help, HeartBeat _ International,

https://www.heartbeatinternational.org/worldwide-

directory (filtered for California as of Feb. 25, 2018), with

Find a Qualified Provider to Enroll, California

Department of Health Services, http://www.dhcs.ca.gov/

services/medi-cal/eligibility/Pages/F ind-a-Qualified-

Provider-to-Enroll.aspx (as of Feb. 25, 2018).

23

Zachary Kolodin

PATTERSON BELKNAP

WEBB & TYLER LLP

1133 Avenue of the Americas

New York, NY 10036

(212) 336-2000

sazalesin@pbwt.com

Attorneys for Amici Curiae

24

APPENDIX

A-1

AMICI CURIAE!

M. Antonia Biggs, PhD

University of California, San Francisco

Kelly Blanchard, MSc

Ibis Reproductive Health

Robert Blum, MD, MPH, PhD

John Hopkins Bloomberg School of Public Health

Claire Brindis, DrPH

University of California, San Francisco

Katelyn Bryant-Comstock, MPH

Duke Center for Global Reproductive Health

Carrie Cwiak, MD, MPH

Emory University, School of Medicine

Diana Greene Foster, PhD

University of California, San Francisco

Lori Freedman, PhD

University of California, San Francisco

Matt Freeman, DNP, MPH

Valerie French, MD, MAS

' Institutional affiliations provided for identification

purposes only. The views expressed in this brief do not

necessarily reflect the views of amici’ affiliated

institutions.

Liza Fuentes, DrPH

Guttmacher Institute

Maria Gallo, PhD

Ohio State University

Laurie Gaydos, PhD

Emory University, Rollins School of Public

Health

Caitlin Gerdts, PhD, MHS

Ibis Reproductive Health

Daniel Grossman, MD

University of California, San Francisco

Kelli Hall, PhD

Emory University, Rollins School of Public

Health

Luciana Hebert, PhD

University of Chicago

Kristine Hopkins, PhD

University of Texas at Austin

Jenna Jerman, MPH

Guttmacher Institute

Rachel K. Jones, PhD

Guttmacher Institute

Theodore Joyce, PhD

Baruch College and Graduate Center of the City

University of New York

A-3

Megan Kavanaugh, DrPH

Guttmacher Institute

Kimberly Kelly, PhD

Mississippi State University

Katrina Kimport, PhD

University of California, San Francisco

Missy Kottke, MD, MPH, MBA

Emory University School of Medicine

Erika Levi, MD, MPH

Albert Einstein College of Medicine

Lisa Harris, MD, PhD

University of Michigan

Anna Newton-Levinson, MPH

Emory University, Rollins School of Public

Health

Nadine Peacock, PhD

University of Illinois at Chicago, School of Public

Health

Joseph E. Potter, PhD

University of Texas at Austin

Sarah CM Roberts, DrPH

University of California, San Francisco

Corinne Rocca, PhD, MPH

University of California, San Francisco

A-4

Roger Rochat, MD

Emory University, Rollins School of Public

Health

Joanne Rosen, JD, MA

John Hopkins Bloomberg School of Public Health

Jessica Sales, PhD

Emory University, Rollins School of Public

Health

John Santelli, MD, MPH

Columbia University Mailman School of Public

Health

Amanda Jean Stevenson, PhD

University of Colorado, Boulder

Debra Stulberg, MD

University of Chicago

Andrea Swartzendruber, PhD, MPH

University of Georgia

Terri-Ann Thompson, PhD

lbis Reproductive Health

Janet Turan, PhD, MPH

University of Alabama at Birmingham

Abigail Norris Turner, PhD

Ohio State University

A-5

Ushma Upadhyay, PhD, MPH

University of California, San Francisco

Kari White, PhD, MPH

University of Alabama at Birmingham

Sharon Wilsnack, PhD

University of North Dakota

Laurie Schwab Zabin, PhD

John Hopkins Bloomberg School of Public Health

A-6