No. 15-274 IN THE Supreme Court of the United States WHOLE WOMAN’S HEALTH, et al., Petitioners, v. KIRK COLE, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al., Respondents. On Writ of Certiorari To The United States Court of Appeals For The Fifth Circuit BRIEF FOR NATIONAL ABORTION FEDERATION AND ABORTION PROVIDERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS LISA M. BROWN JANICE M. MAC AVOY* HEATHER D. STEPHEN M. JURIS SHUMAKER JENNIFER L. COLYER NATIONAL ABORTION JESSE R. LOFFLER FEDERATION ANDREW B. CASHMORE 1660 L Street NW *Counsel of Record Suite 450 FRIED, FRANK, HARRIS, SHRIVER Washington, D.C. & JACOBSON LLP 20036 One New York Plaza [email protected] New York, New York 10004 (202) 667-5881 [email protected] (212) 859-8000 Counsel for Amici Curiae LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... ii STATEMENT OF INTEREST OF AMICI CURIAE NATIONAL ABORTION FEDERATION ................. 1 SUMMARY OF ARGUMENT .................................... 3 ARGUMENT .............................................................. 7 I. H.B.2 HAS DRAMATICALLY REDUCED THE AVAILABILITY OF ABORTION CARE IN TEXAS .......................................... 8 II. TEXAS’S REMAINING PROVIDERS CANNOT REPLACE THE SERVICES THAT WERE LOST AS A RESULT OF H.B.2 ........................................................... 16 III. H.B.2 IMPOSES AN UNDUE BURDEN ON TEXAS WOMEN .................................. 20 CONCLUSION ......................................................... 37 TABLE OF AUTHORITIES Cases Page(s) Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ............................... 25 Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) .......................... 14, 25 June Medical Services, LLC d/b/a/ Hope Medical Group for Women v. Caldwell, No. 3:14-cv-00525 (M.D. La. Aug. 31, 2014) ...... 24 Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014), cert. denied 135 S. Ct. 870 (2014) ....................... 30 Planned Parenthood Se. Inc., v. Strange, 33 F. Supp. 3d 1330 (M.D. Ala. 2014) ........... 13, 30 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ...................................... passim Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015) ....................... passim Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013), cert. denied, 134 S. Ct. 2841 (2014) .............. 14, 30 Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015) ................................ 19 Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014). .......... passim ii Constitutional Provisions, Statutes and Rules U.S. Const. amend. XIV ............................................ 37 Tex. Health & Safety Code Ann. §171.012 (West 2014) .......................................................... 31 Tex. Health & Safety Code Ann. §171.044 (West 2014) ............................................................6 Tex. Health & Safety Code Ann. §171.063 (West 2014) .......................................................... 31 Texas House Bill 2 (codified at Tex. Health & Safety Code Ann. §§171.0031, 171.041 to .048, 171.061 to .064, 245.010 to .011 .................. passim Supreme Court Rule 37.6 ........................................... 1 Other Authorities Brief of Amici Curiae Women Injured by Abortion and an Abortion Survivor, Whole Woman’s Health v. Lakey, No. 14-50928 (5th Cir. Nov. 10, 2014) .........................................8 Brief for Petitioners, Whole Woman’s Health, et al. v. Cole, No. 15-274 (filed Dec. 28, 2015) ........ 10 Department of State Health Services, Maternal Mortality and Morbidity Task Force Report (Sept. 2014) ............................................................9 Exceptionally Deadly, The Economist (July 18, 2015) ........................................................9 iii Manny Fernandez, Abortion Law Pushes Texas Clinics to Close Doors, N.Y. Times (Mar. 6, 2014) ....................................................... 12 Fewer Abortion Clinics in Texas, N.Y. Times (June 10, 2015) ....................................................2 9 Daniel Grossman, et al., Change in Abortion Services After Implementation of a Restrictive Law in Texas, 90(5) Contraception 496 (2014) ................ 6, 17, 33 Daniel Grossman et al., The Public Health Threat of Anti-Abortion Legislation, 89(2) Contraception 73 (2014) ............................. 35 Kinsey Hasstedt, The State of Sexual and Reproductive Health and Rights in the State of Texas: A Cautionary Tale, 17 Guttmacher Policy Review 14 (2014) ............... 9 Erica Hellerstein, The Rise of the DIY Abortion in Texas, The Atlantic (June 27, 2014) .......... 8, 35 Olga Khazan, The Difficulty of Getting an Abortion in Texas, The Atlantic (Jan. 14, 2014) .......................................................8 Andrea Rowan, Prosecuting Women for Self- Inducing Abortion: Counterproductive and Lacking Compassion, 18 Guttmacher Policy Review 70 (2015) ..................................................3 6 Angel San Juan, Beaumont’s Only Abortion Clinic Is Closing, 12NewsNow (Beaumont, TX) (Mar. 16, 2014) .................................................... 29 iv Kim Soffen, How Texas Could Set National Template for Limiting Abortion Access, N.Y. Times (Aug. 19, 2015) .................................. 21 TEXAS HEALTH AND HUMAN SERVICES COMMISSION, FACTORS INFLUENCING HEALTH CARE ON THE TEXAS-MEXICO BORDER (2014) ......................................................2 3 Texas Policy Evaluation Project, Abortion Wait Times in Texas: The Shrinking Capacity of Facilities and the Potential Impact of Closing Non-ASC Clinics (Oct. 5, 2015) ............................ 6, 18, 19, 31, 32, 33 Texas Policy Evaluation Project, Access to Abortion Care in the Wake of HB2 (July 1, 2014) .......................................................2 1 Ushma D. Upadhyay et al., Denial of Abortion Because of Provider Gestational Age Limits in the United States, Am. J. Pub. Health (Sept. 2014) ..........................................................3 4 v STATEMENT OF INTEREST OF AMICI CURIAE NATIONAL ABORTION FEDERATION1 The National Abortion Federation (“NAF”) in conjunction with NAF members listed below, submit this amici curiae brief in support of the appeal of Whole Woman’s Health v. Cole, filed by 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. on December 28, 2015. NAF is the professional association of abortion providers. Its mission is to ensure safe, legal, and accessible abortion care, which promotes health and justice for women. NAF’s members include nearly 400 private and non-profit clinics, Planned Parenthood affiliates, women’s health centers, physicians’ offices, and hospitals. Together they care for half the women who choose abortion in the U.S. and Canada each year, including Texas women. NAF is the leading organization offering accredited continuing medical education to health care professionals in all aspects of abortion care. Its member providers adhere to NAF’s evidence-based 1 The parties in this case have consented to the filing of this brief. Pursuant to Rule 37.6, 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 their counsel, has made a monetary contribution to the preparation or submission of this brief. 1 Clinical Policy Guidelines, which set the standards for quality abortion care. Through its supporting organization, NAF Hotline Fund, NAF also operates a toll-free Hotline, which was established in 1979 to help women access unbiased information and referrals to NAF member providers offering safe, high-quality abortion care. The Hotline receives thousands of calls each week from women, their partners, families, and friends. The Hotline offers factual information about pregnancy and abortion; confidential, non- judgmental support; referrals to quality abortion providers in the caller’s area; limited financial assistance; help understanding state abortion restrictions; and case management for women with special or unique needs. NAF and its members thus have a direct and deep-seated interest in this litigation, and in the well- settled constitutional right this Court reaffirmed in Planned Parenthood v. Casey. NAF respectfully asks this Court to consider this brief in support of Petitioners’ brief and oral argument. The following NAF members, not parties to this litigation but providing abortion care in Texas or in neighboring states, also join this brief as amici:  Alamo Women’s Reproductive Services (San Antonio, Texas)  Houston Women’s Clinic (Houston, Texas)  Southwestern Women’s Surgery Center 2 (Dallas, Texas)  Women’s Center of Houston (Houston, Texas)  Routh Street Women’s Clinic (Dallas, Texas, closed June 13, 2015, as a result of H.B.2 )  Southwestern Women’s Options (Albuquerque, New Mexico)  Hope Medical Group for Women (Shreveport, Louisiana) SUMMARY OF ARGUMENT Texas House Bill 2 (“H.B.2”)2 is an unprecedented infringement upon Texas women’s right to choose abortion care without undue state interference. H.B.2 also constitutes a direct assault on the principles this Court held to be the law of the land in Casey. The Texas legislators and elected officials who sponsored and supported H.B.2 bluntly acknowledged that their overarching intent was to end or sharply curtail access to abortion care in Texas, and it is undeniable that the corresponding impact on Texas women has been to severely restrict their access. As the District Court found, H.B.2 immediately halved the number of Texas abortion providers. See Whole Woman’s Health v. Lakey, 46 2 83rd Leg., 2nd Spec. Sess. (Tex. 2013), codified at Tex. Health & Safety Code Ann. §§171.0031, 171.041 to .048, 171.061 to .064, 245.010to .011. 3 F. Supp. 3d 673, 681 (W.D. Tex. 2014). But for this Court’s intervention and interim stay, H.B.2 would have eliminated more than 75% of Texas abortion providers. If the Fifth Circuit’s mandate is permitted to take effect, the anticipated result will be devastating. Ten or fewer providers will remain in Texas, as compared with the more than 40 providers that were in existence immediately prior to H.B.2’s enactment. Moreover, apart from a McAllen abortion care provider that would be subject to highly restrictive conditions imposed by the Fifth Circuit, those providers that remain will be confined to four metropolitan areas—hundreds of miles away from many low-income and underserved communities that most need timely, quality, and affordable care. Based on H.B.2’s impact thus far, the handful of remaining providers will not be able to compensate for the forced shutdown of the majority of Texas’s abortion providers. Rather, the remaining providers will be overburdened, delaying access to abortion care, and creating unnecessary hurdles for women who choose to exercise the fundamental right this Court reaffirmed in Casey. Indeed, wait times already have quadrupled at some providers, pushing many Texas women as much as three weeks further into their pregnancies before they can access care. This delay, as well as the other more severe obstacles imposed on hundreds of thousands of Texas women who have no access to nearby providers, will only be exacerbated if H.B.2 is allowed to go into effect as the Fifth Circuit intended and roughly half of the providers that currently remain open are 4