in the united states court of appeals for...

No. 13-60599

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARY CURRIER, M.D., M.P.H., in her official capacity as

State Health Officer of the Mississippi Department of Health, et al.,

Appellants,

v.

JACKSON WOMEN’S HEALTH ORGANIZATION et al.,

Appellees.

On Appeal from the United States District Court for

the Southern District of Mississippi, No. 3:12-cv-00436-DPJ-FKB

BRIEF OF GOVERNOR PHIL BRYANT AS AMICUS CURIAE

IN SUPPORT OF DEFENDANTS AND REVERSAL

Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 [email protected] Counsel for Governor Bryant

Case: 13-60599 Document: 00512459118 Page: 1 Date Filed: 12/03/2013 Case: 13-60599 Document: 00512455344 Page: 1 Date Filed: 11/27/2013

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

TABLE OF AUTHORITIES .................................................................................... ii

IDENTITY AND INTEREST OF THE AMICUS CURIAE ..................................... 1

BACKGROUND ....................................................................................................... 2

I. The Admitting-Privileges Requirement Simply Holds Abortion Facilities To The Same Standard As Other Outpatient Surgical Facilities ..................... 2

II. Upon Signing House Bill 1390 Into Law, Governor Bryant Reiterated His General Opposition To Abortion While Also Citing The Health Benefits Of This Law ..................................................................................................... 6

ARGUMENT ............................................................................................................. 8

Summary of Argument............................................................................................... 8

I. Plaintiffs Have Challenged The Admitting-Privileges Requirement On Its Face, Not As Applied. ..................................................................................... 9

II. This Court’s Recent Opinion In Abbott Makes Clear That The Admitting-Privileges Requirement Furthers A Legitimate State Interest And Does Not Impose An Undue Burden. ..................................................................... 16

III. Gonzales v. Carhart Reaffirms That The Constitution Does Not Entitle Plaintiffs To Special Exemptions From Generally Applicable Regulations Of The Medical Profession. ........................................................................... 20

CONCLUSION ........................................................................................................ 22


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TABLE OF AUTHORITIES

Cases

Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996) ................................................................................ 15

Carter v. Luminant Power Servs. Co., 714 F.3d 268 (5th Cir. 2013) .............................................................................. 14

Castilleja v. So. Pac. Co., 445 F.2d 183 (5th Cir. 1971) .............................................................................. 19

Citizens United v. F.E.C., 558 U.S. 310 (2010) ............................................................................................ 15

Deen v. Darosa, 414 F.3d 731 (7th Cir. 2005) .............................................................................. 14

Equitable Life Assurance Soc’y of U.S. v. MacGill, 551 F.2d 978 (5th Cir. 1977) .............................................................................. 14

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................................................................................ 17

Gonzales v. Carhart, 550 U.S. 124 (2007) .....................................................................................passim

Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control, 317 F.3d 357 (4th Cir. 2002), cert. denied, 538 U.S. 1008 (2003) ................ 5, 17

Harris v. McRae, 448 U.S. 297 (1980) ............................................................................................ 10

Hood ex rel. State Tobacco Litig., 958 So. 2d 790 (Miss. 2007) ................................................................................. 1

Kansas v. Hendricks, 521 U.S. 346 (1997) ............................................................................................ 20

Mazurek v. Armstrong, 520 U.S. 968 (1997) ........................................................................................ 8, 21


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Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991) .............................................................................................. 15

Nat’l Advertising Co. v. City of Rolling Meadows, 789 F.2d 571 (7th Cir. 1986) .............................................................................. 14

Orloff v. Willoughby, 345 U.S. 83 (1953) .............................................................................................. 14

Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984) ........................................................................ 14, 15

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, --- F.3d ----, 2013 WL 5857853 (5th Cir. Oct. 31, 2013), application to vacate stay denied --- S. Ct. ----, 2013 WL 6080269 (Nov. 19, 2013) .......passim

Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) .............................................................................. 11

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .....................................................................................passim

Roe v. Wade, 410 U.S. 113 (1973) ........................................................................................ 6, 21

Sanford’s Estate v. CIR, 308 U.S. 39 (1939) .............................................................................................. 14

Singleton v. Wulff, 428 U.S. 106 (1976) ............................................................................................ 10

State v. McPhail, 180 So. 387 (Miss. 1938) ...................................................................................... 1

TI Fed. Credit Union v. DelBonis, 72 F.3d 921 (1st Cir. 1995) ................................................................................. 14

U.S. Nat’l Bank of Ore. v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) ............................................................................................ 14


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United States v. Guest, 383 U.S. 745 (1966) ............................................................................................ 19

Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) .............................................................................. 13

Whalen v. Roe, 429 U.S. 589 (1977) ............................................................................................ 10

Women’s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989) .............................................................. 2, 8, 17, 21

Constitutional Provisions, Statutes, Rules, and Regulations

Fed. R. App. P. 29 ...................................................................................................... 1

Miss. Admin. Code § 15-16-1:42.9.7 ........................................................................ 3

Miss. Code Ann. § 41-75-1 .......................................................................... 2, 3, 4, 16

Miss. Code Ann. § 41-75-3 .................................................................................... 2, 7

MISS. CONST. art. 5, § 123 .......................................................................................... 1

MISS. CONST. art. 14, § 268 ........................................................................................ 1

Miss. Gen. Laws 2005, Ch. 478 (S.B. No. 2883) ...................................................... 3

Miss. Gen. Laws 2012, Ch. 331 (H.B. No. 1390) ................................................. 1, 4

Tex. Health & Safety Code § 171.0031 ................................................................... 16

Other Materials

Alabama Department of Public Health, Health Care Facilities Directory, at http://www.adph.org/healthcarefacilities/........................................................... 19

Mississippi State Department of Health, Mississippi Statistically Automated Health Resource System, at http://mstahrs.msdh.ms.gov/forms/pregtable.html, and http://mstahrs.msdh.ms.gov/help/preghelp.html ................................................ 18


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Mississippi State Department of Health, 2012 Vital Statistics, at p.177 tbl.25, available at http://msdh.ms.gov/phs/2012/Bulletin/vr2012.pdf ......................... 18

Louisiana Department of Health & Hospitals, at http://dhh.louisiana.gov/index.cfm/directory/category/276 ............................... 19

Planned Parenthood, “Find a Health Center,” at http://www.plannedparenthood.org/ ................................................................... 19

Press Release, Governor Phil Bryant Signs House Bill 1390, Apr. 16, 2012, available at http://www.governorbryant.com/governor-phil-bryant-signs -house-bill-1390/ ................................................................................................... 7


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IDENTITY AND INTEREST OF THE AMICUS CURIAE1

As chief executive of the State of Mississippi, Governor Bryant has a

substantial and legitimate interest in defending the constitutionality of

Mississippi’s laws and seeing that they are faithfully executed. The Governor’s

paramount obligation to “faithfully support the Constitution of the United States

and the Constitution of the State of Mississippi,” MISS. CONST. art. 14, § 268,

would have required him to veto the bill at issue in this appeal2 if he believed that

it violated either Constitution. Having reviewed the legislation and determined

that it was both constitutional and an appropriate regulation of the medical

profession, Governor Bryant signed it into law and now has a constitutional duty to

see that it is “faithfully executed.” MISS. CONST. art. 5, § 123.3

Governor Bryant submits that this brief is desirable and relevant to this

appeal, see Fed. R. App. P. 29(b)(2), because it highlights what he considered the

most significant proof that the law is constitutional, namely, that it merely holds

abortion clinics to the same legitimate health and safety standard as other types of

1 All parties have consented to the filing of this brief. No party’s counsel authored this brief in whole or in part. No party or party’s counsel or any other person contributed money intended to fund the preparation or submission of the brief. See Fed. R. App. P. 29(a) & (c)(5). 2 Miss. Gen. Laws 2012, Ch. 331 (H.B. No. 1390). 3 See Hood ex rel. State Tobacco Litig., 958 So. 2d 790, 804 (Miss. 2007) (“[T]he Governor is under a solemn duty to act to assure faithful execution of our laws.”); State v. McPhail, 180 So. 387, 389 (Miss. 1938) (“The constitutional and statutory provisions requiring the Governor to see that the laws are executed have no obscure or technical meaning; neither were they intended as a mere verbal adornment of his office. They mean what is in the ordinary import of the language used, to wit, that the laws shall be carried into effect, that they shall be enforced.”).


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outpatient surgical facilities. As the U.S. Supreme Court has held, the Constitution

does not “elevate [abortion doctors’] status above other physicians in the medical

community.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007). Therefore,

“legitimate state regulation of surgical procedures is not rendered unconstitutional

because it is specifically applied to abortion.” Women’s Health Ctr. of West

County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989). The Constitution

simply does not entitle abortion doctors to special exemptions from legitimate state

medical regulations. Governor Bryant’s interest in this appeal is in protecting the

State’s authority to enforce such regulations.

BACKGROUND

I. The Admitting-Privileges Requirement Simply Holds Abortion Facilities To The Same Standard As Other Outpatient Surgical Facilities

Chapter 75 of Title 41 of the Mississippi Code establishes health and safety

standards for both “ambulatory surgical facilities” and “abortion facilities,” such as

the plaintiff clinic. Miss. Code Ann. § 41-75-3. An “ambulatory surgical facility”

is an outpatient surgical facility.4 That is, it is a facility at which, much like an

abortion facility, the patient arrives for a surgery and “expect[s] to be discharged

on the same day.” Id., § 41-75-1(d). An “abortion facility” is, as its name

4 Id., § 41-75-1(a) (“‘Ambulatory surgical facility’ means [an] institution that is primarily … established for the purpose of providing elective surgical treatment of ‘outpatients’ whose recovery, under normal and routine circumstances, will not require ‘inpatient’ care.”).


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indicates, “a facility operating substantially for the purpose of performing

abortions.” Id., § 41-75-1(f).

Recognizing that an abortion facility is simply an outpatient surgical facility

with a very unique purpose, Mississippi law has provided since 2005 that “Level I

abortion facilities[5] shall be required to meet minimum standards for abortion

facilities and minimum standards for ambulatory surgical facilities as established

by the [Mississippi State Department of Health].” Id., § 41-75-1, as amended by

Miss. Gen. Laws 2005, Ch. 478, § 1 (S.B. No. 2883).

Despite the Legislature’s expression of intent that abortion facilities should

comply with the requirements applicable to ambulatory surgical facilities, the

plaintiff clinic was not held to that standard in full for the next seven years. During

that time, all physicians associated with “ambulatory surgical facilities” were

required to have admitting privileges at a local hospital. See Miss. Admin. Code §

15-16-1:42.9.7. However, the same regulation required only “one physician

member performing abortion procedures in the facility [to] have admitting

privileges in at least one local hospital.” Id. (emphasis added).

House Bill 1390, enacted during the State’s 2012 legislative session,

amended Miss. Code Ann. § 41-75-1(f) to close this regulatory loophole that had

exempted abortion facilities from a standard generally applicable to the broader 5 The plaintiff clinic is a “Level 1” facility. Only Level 1 facilities may perform abortions after the first trimester. Miss. Code Ann. § 41-75-1(e).


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class of outpatient surgical facilities. Miss. Gen. Laws 2012, Ch. 331 (H.B. No.

1390).6 The bill simply requires—as was already required of all other outpatient

facilities—that “[a]ll physicians associated with the abortion facility must have

admitting privileges at a local hospital.” As discussed infra, the Constitution

permits a State to apply such general regulations of surgical procedures to abortion

facilities. Abortion facilities are not constitutionally entitled to special exemptions

from such laws.

Moreover, as explained in detail by Dr. John Thorp7 and Dr. James

Anderson,8 the admitting-privileges requirement serves valid and legitimate

medical purposes in the abortion context, just as it always has with respect to

outpatient surgeries generally. “Termination of a pregnancy is not a benign

medical procedure. In some cases, serious complications, even life-threatening

ones, arise and necessitate optimal and evidence-based treatment.”9 When the

6 The bill also amended § 41-75-1(f) to provide that “[a]ll physicians associated with an abortion facility must be board certified or eligible in obstetrics and gynecology, and a staff member trained in CPR shall always be present at the abortion facility when it is open.” Plaintiffs have challenged the board-certification requirement, but it is not at issue in this appeal. 7 Dr. Thorp is a Distinguished Professor of Obstetrics and Gynecology (OB/GYN) at the University of North Carolina (UNC-Chapel Hill) School of Medicine and a Professor in the Department of Maternal and Child Health at the UNC-Chapel Hill School of Public Health. He teaches both medical students and residents in OB/GYN and has administrative oversight over abortion services at the UNC-Chapel Hill academic health center. See Doc. 20-1, ¶ 3. 8 Dr. Anderson has been a clinical professor in the Department of Family Practice at the Medical College of Virginia (Virginia Commonwealth University) since 1995. Doc. 20-2, ¶ 2. He has been a practicing emergency room physician for over twenty-two years. Id., ¶ 1. 9 Doc. 20-1, ¶ 21; accord Doc. 20-2, ¶¶ 12–15 (describing “serious and life-threatening” potential complications from abortions).


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doctor who performs an abortion “has admitting and treating privileges at a local

hospital, he or she is more likely to effectively manage patient complications by

providing continuity of care and decrease the likelihood of medical errors.”10

Among other potential issues, “medication errors resulting from either incomplete

medication history taken at admission or from inadequate communication between

community and hospital caregivers are one of the leading causes of patient harm in

hospitals,” “often result[ing] in … subsequent[] adverse drug events and

potentially life-threatening situations for patients.”11 In addition, the admitting-

privileges requirement ensures that a specialist will be available to treat

complications, something that many emergency rooms cannot provide.12 The State

certainly has a legitimate interest in taking steps to mitigate risks such as these.

Indeed, as the Fourth Circuit put it, “requirements of having admitting privileges at

local hospitals … are … obviously beneficial to patients.” Greenville Women’s

Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control, 317 F.3d 357, 363 (4th

Cir. 2002) (emphasis added), cert. denied, 538 U.S. 1008 (2003).

10 Doc. 20-1, ¶ 23; accord Doc. 20-2, ¶¶ 10–11 (explaining that an admitting-privileges requirement “maintains continuity of care that ensures better care and minimizes time delays for treatment of critical conditions”—and that discontinuity of care “can have life-threatening implications”). 11 Doc. 20-1, ¶ 23. 12 Id., ¶ 24 (“Nationally, 73% of emergency departments report inadequate on-call coverage by specialist physicians, including obstetricians/gynecologists who are particularly difficult to secure.”).


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II. Upon Signing House Bill 1390 Into Law, Governor Bryant Reiterated His General Opposition To Abortion While Also Citing The Health Benefits Of This Law

Given that plaintiffs have at times sought to make the public statements of

Governor Bryant an issue in this lawsuit, it is necessary to place those statements

in proper context. Governor Bryant has long made clear that he is pro-life and

opposed to abortion. He believes that Roe v. Wade was wrongly decided and

should be overruled because nothing in the Constitution grants a right to end the

life of an unborn child. That idea is not just wrong but a perversion of the concept

of liberty upon which this Nation was founded.

Governor Bryant has said all this for years. Accordingly, it should be no

surprise to anyone that he has vowed to “continue to work to make Mississippi

abortion-free.” Pls.’ Compl., Doc. 1, ¶ 19; Pls.’ Am. Compl., Doc. No. 30, ¶ 24

(quoting Phil West, Mississippi Senate Passes Abortion Regulation Bill, THE

COMMERCIAL APPEAL, Apr. 4, 2012).

Contrary to plaintiffs’ suggestions, however, that comment lacks legal

significance. To begin with, Governor Bryant also made clear that he supports the

law at issue in this case for public health reasons. Indeed, in the very article

selectively quoted in the Complaint and Amended Complaint, Governor Bryant is

first quoted as stating that “[t]his legislation is an important step to strengthening

abortion regulations and protecting the health and safety of women.” Exh. E to


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Pls.’ Am. Compl., Doc. 30-5 (emphasis added). The Governor’s statement upon

signing the bill similarly reiterated his general opposition to abortion while at the

same time citing the public health reasons for this law:

I believe that all human life is precious, and as governor, I will work to ensure that the lives of the born and unborn are protected in Mississippi. This bill requires all physicians associated with an abortion clinic in Mississippi to be board-certified or eligible in obstetrics and gynecology. To further protect patient safety in the event of a complication during the procedure, this bill also requires the physician to have staff and admitting privileges at a local hospital.13

Governor Bryant’s statements regarding House Bill 1390 are consistent with

the overall legislative purpose of Chapter 75 of Title 41 of the Mississippi Code:

“to protect and promote the public welfare by providing for the development,

establishment and enforcement of certain standards in the maintenance and

operation of ambulatory surgical facilities and abortion facilities which will ensure

safe, sanitary, and reasonably adequate care of individuals in such facilities.”

Miss. Code Ann. § 41-75-3.

Moreover, the Governor’s statements have no effect on the “burden,” if any,

that an admitting-privileges requirement imposes on the “right to define one’s own

concept of existence, of meaning, of the universe, and of the mystery of human

life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Given

13 Press Release, Governor Phil Bryant Signs House Bill 1390, Apr. 16, 2012, available at http://www.governorbryant.com/governor-phil-bryant-signs-house-bill-1390/.


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the plainly rational and legitimate medical reasons for the law, Governor Bryant’s

general opposition to abortion cannot render the law unconstitutional.14 That

plaintiffs feel compelled to rely on such comments as “evidence” only speaks to

the fundamental weakness of their claim.

ARGUMENT

Summary of Argument

The admitting-privileges requirement furthers a legitimate state interest in

continuity of patient care. This valid regulation of the medical profession

previously served and continues to serve that purpose in all other outpatient

surgical facilities. House Bill 1390 merely extends the requirement to abortion

facilities. Such equal treatment of abortion doctors is constitutionally permissible.

The Constitution does not “elevate their status above other physicians in the

medical community,” Gonzales v. Carhart, 550 U.S. 124, 163 (2007), or entitle to

them special exemptions from “legitimate state regulation of surgical procedures,”

Women’s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th

Cir. 1989).

The district court’s determination that the requirement nonetheless violates

or likely violates the Constitution seems to rest on the flawed premise that any

14 Cf. Mazurek v. Armstrong, 520 U.S. 968, 973 (1997) (“[T]hat an anti-abortion group drafted the … law … says nothing significant about the legislature’s purpose in passing it.”); see also id. at 972 (questioning “the correctness of the … premise” that a law’s “purpose” can render it invalid even if it does not impose an undue burden in practice).


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licensing standard that the plaintiff clinic cannot meet must be unconstitutional

unless, perhaps, the State can show that the requirement is, in some undefined

sense and to some undefined degree, “necessary.” Doc. 131 at 4. The district

court’s opinion also mischaracterized the plaintiffs’ challenge to the requirement as

“as applied” rather than “facial,” which led it to apply the wrong legal standards

and ultimately to the wrong result. Under the correct standards—including this

Court’s recent opinion permitting enforcement of Texas’s substantively identical

admitting-privileges requirement15 and the Supreme Court’s decision in Gonzales

v. Carhart—the order granting a preliminary injunction must be reversed.

I. Plaintiffs Have Challenged The Admitting-Privileges Requirement On Its Face, Not As Applied.

The district court erroneously characterized plaintiffs’ challenge to the

admitting privileges requirement as an “as-applied” challenge rather than a “facial”

one. Abortion doctors and clinics such as plaintiffs lack any freestanding

constitutional right to perform abortions and, as such, may assert only their

patients’ rights. Therefore, a true as-applied challenge to an abortion regulation

must identify “discrete and well-defined instances” in which patients’ rights would

be unconstitutionally burdened by the law. Gonzales, 550 U.S. at 167. Plaintiffs

15 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, --- F.3d ----, 2013 WL 5857853 (5th Cir. Oct. 31, 2013), application to vacate stay denied --- S. Ct. ----, 2013 WL 6080269 (Nov. 19, 2013).


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did not do so in this case but instead sought to block “any and all” applications of

the law—a classic facial challenge.

“[T]he general rule is that a litigant may only assert his own constitutional

rights.” McGowan v. Maryland, 366 U.S. 420, 429 (1961) (quotation marks

omitted). Abortion doctors and facilities such as plaintiffs do not have a

constitutional right to carry out abortions. In this context, however, the Supreme

Court has made an exception to the general rule that one may not assert the

constitutional rights of others, holding that “it generally is appropriate to allow a

physician to assert the rights of women patients as against governmental

interference with the abortion decision.” Singleton v. Wulff, 428 U.S. 106, 118

(1976) (plurality opinion) (emphasis added).

An important corollary of this special rule of third-party standing is that

while abortion doctors and facilities may have standing to challenge abortion

regulations, their constitutional claims are necessarily and strictly derivative of the

rights of their patients. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 884 (1992) (“Whatever constitutional status the doctor-patient relation

may have as a general matter, in the present context it is derivative of the woman’s

position.”); Harris v. McRae, 448 U.S. 297, 318 n.21 (1980) (“the constitutional

entitlement of a physician [to perform a government-funded abortion] is no broader

than that of his patient” to obtain one); Whalen v. Roe, 429 U.S. 589, 604 (1977)


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(“the doctors’ claim is derivative from, and therefore no stronger than, the

patients’” own constitutional right of privacy); Planned Parenthood of Ind., Inc. v.

Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 987 (7th Cir. 2012) (“Under

existing precedent any protection for Planned Parenthood as an abortion provider is

‘derivative of the woman’s position.’” (quoting Casey)), cert. denied, 133 S. Ct.

2738 (2013). Therefore, an abortion facility’s claim is no broader or stronger than

that of its patients. In addition, the facility must show that the law imposes an

unconstitutional burden on its patients’ rights—not just that the law is somehow a

burden or inconvenience to the clinic or its doctors.

The purely derivative nature of abortion clinics’ and doctors’ claims is also

of critical importance to the question whether a challenge to law regulating

abortion is facial or as-applied. Because abortion providers have no constitutional

right to carry out abortions and may sue only to vindicate whatever rights their

patients possess, a true as-applied challenge is not simply one that tests the law as

applied to whatever clinics or doctors happen to be the named plaintiffs in the

lawsuit. Rather, the Supreme Court has held that an as-applied challenge to a law

regulating abortions must identify “discrete and well-defined instances” in which

patients’ rights would be unconstitutionally burdened. Gonzales, 550 U.S. at 167.

No such as-applied challenge has been made in this case. Plaintiffs’

evidence has consisted only of broad, unsupported, and self-serving generalizations


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that the clinic’s closure would impose a hardship on some undefined group. See

Doc. 5-2, ¶ 20; Doc. 23-2, ¶¶ 14–19. Plaintiffs contradicted even this vague claim

by averring that “many of the Clinic’s patients travel from more than 3-4 hours

away to seek abortion services,” including “from Louisiana, Alabama and

Tennessee.” Doc. 5-1, ¶ 8. Logically, of course, it is no more burdensome to

travel an equal or lesser distance to any of the several clinics doing business in

Louisiana, Alabama, or Tennessee. See infra pages 18–19. In any event, plaintiffs

failed to identify any “discrete and well-defined instances” in which patients’

rights would be violated. Gonzales, 550 U.S. at 167.

The nature of the relief plaintiffs seek is consistent with the evidence they

presented. From the outset, they have demanded broad declaratory and injunctive

relief invalidating and enjoining the enforcement of the admitting-privileges

requirement in “any and all” of its applications. Doc. 46 at 15; accord Doc. 30 at

17. Ultimately, the district court did just that, “enjoin[ing] … any and all forms of

enforcement of the Admitting Privileges Requirement.” Doc. 81 at 13. The

district court viewed the plaintiffs’ challenge as an “as-applied” one because it

“affects only this clinic.” Id. at 5. In fact, the court subsequently emphasized that

plaintiffs’ claim is “that this Act” is unconstitutional “as-applied to this clinic.”

Doc. 131 at 2 (emphasis by the court).


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The district court’s characterization of plaintiffs’ challenge to the admitting-

privileges requirement as an as-applied challenge was mistaken. A true as-applied

challenge would have required proof of—and sought relief in—certain “discrete

and well-defined instances” in which the law would impose an unconstitutional

burden on women seeking abortions, Gonzales, 550 U.S. at 167, as they are the

only parties whose constitutional rights are at issue in this appeal.

This is not the type of challenge that plaintiffs advanced. Instead of alleging

“discrete and well-defined instances” in which the requirement would burden the

constitutional rights of patients, the plaintiffs successfully moved for an order

blocking “any and all” of its applications. That is a prototypical “facial” challenge.

See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013) (“With

the exception of First Amendment cases, a facial challenge will succeed only if the

plaintiff establishes that the act is invalid under all of its applications.”). The

district court’s failure to treat it as such was error.

To bolster its decision to treat plaintiffs’ claim as an as-applied challenge,

the district court added that “the State correctly informed the Court during oral

argument that this is an as-applied challenge.” Doc. 81 at 5 (citing 7/11/2012 Tr.

at 48). However, the cited exchange is ambiguous, as there was no express

concession that plaintiffs had stated a proper as-applied challenge. Moreover, that

hearing was held well before plaintiffs filed their second motion for a preliminary


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injunction (Doc. 46), which specifically articulated the claim at issue in this appeal.

In any event, the district court’s debatable conclusion as to what the State had

stipulated is premised on a more fundamentally mistaken assumption that a party

can stipulate to a question of law and thereby require a court to apply the wrong

legal standard. In fact, it is well-settled that courts “are not bound to accept, as

controlling, stipulations as to questions of law.”16 The same is true of any

supposed “concession … on a question of law.”17

Thus, regardless of any alleged stipulation or concession, “[w]hen an issue

or claim is properly before the court, the court is not limited to the particular legal

theories advanced by the parties, but rather retains the independent power to

16 Sanford’s Estate v. CIR, 308 U.S. 39, 51 (1939) (emphasis added); accord, e.g., U.S. Nat’l Bank of Ore. v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (“[T]he Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law…. [T]he court’s decision to consider the issue was certainly no abuse of its discretion.”); Carter v. Luminant Power Servs. Co., 714 F.3d 268, 270 n.3 (5th Cir. 2013) (“[I]t is well settled that a court is not bound to accept as controlling stipulations as to questions of law.” (quoting Equitable Life Assurance Soc’y of U.S. v. MacGill, 551 F.2d 978, 983 (5th Cir. 1977)); TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) (“Issues of law are the province of the court, not of parties to a lawsuit….”); Nat’l Advertising Co. v. City of Rolling Meadows, 789 F.2d 571, 574 (7th Cir. 1986) (“A party may not compel a court to decide a constitutional argument, especially one of some difficulty, by stipulation….”). 17 See, e.g., Orloff v. Willoughby, 345 U.S. 83, 87 (1953) (“This Court, of course, is not bound to accept the Government’s concession that the courts below erred on a question of law.”); Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005) (“[C]oncessions … do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues.”); Overton v. City of Austin, 748 F.2d 941, 957 n.19 (5th Cir. 1984) (“[A] court is not bound to accept stipulations of law by parties to litigation. And where stipulations may affect a number of cases beyond the one at bar, a court has a duty to make its own resolution of such issues…. [T]rial by concession … form[s] a slender and dubious basis for … sweeping measures judicially decreed, … where a state’s ... legislative process is to be superseded … by the order of a single judge….” (citations, quotation marks, and alterations omitted)).


15

identify and apply the proper construction of governing law.”18 This is especially

true when, as in this case, a court is asked to strike down a state law and override

“a state’s … legislative process.” Overton, 748 F.2d at 957 n.19. In cases of such

singular importance, the Court “has a duty” to make its own, independent

determinations of issues of law. Id. (emphasis added).19 Here, that means that

plaintiffs’ substantive due process claim must be analyzed for what it is: a facial

challenge to the admitting-privileges requirement.

For two related reasons, discussed below, the district court’s mislabeling of

plaintiffs’ challenge was significant. First, the district court failed to apply the

standards applicable to facial challenges, see Gonzales, 550 U.S. at 167–68, under

which the admitting-privileges requirement must be upheld. Second, when the

issue is reframed—as it must be—in terms of the law’s actual effect on individuals,

it becomes clear that the burden imposed is minimal, and the requirement must be

upheld under any standard of review.

18 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (emphasis added); cf. Citizens United v. F.E.C., 558 U.S. 310, 330 (2010) (“even if a party could somehow waive a facial challenge while preserving an as-applied challenge, that would not prevent the Court from … addressing the facial validity of [the law]”). 19 See also Bridges v. City of Bossier, 92 F.3d 329, 335 n.8 (5th Cir. 1996) (“court may consider different arguments raised by amicus curiae on issues raised by appellant”).


16

II. This Court’s Recent Opinion In Abbott Makes Clear That The Admitting-Privileges Requirement Furthers A Legitimate State Interest And Does Not Impose An Undue Burden.

This Court recently ruled that Texas’s admitting-privileges requirement may

be enforced after concluding that the state had “made a strong showing that it

[was] likely to succeed on the merits,” i.e., that the law is rational and is not an

undue burden. Planned Parenthood of Greater Tex. Surgical Health Servs. v.

Abbott, --- F.3d ----, 2013 WL 5857853, at *2, *3, & *6 (5th Cir. Oct. 31, 2013).

The Supreme Court has now allowed that decision to stand. See --- S. Ct. ----,

2013 WL 6080269 (Nov. 19, 2013) (denying application to vacate stay). Texas’s

admitting-privileges requirement is substantively identical to Mississippi’s.

Compare Tex. Health & Safety Code § 171.0031, with Miss. Code Ann. § 41-75-

1(f). Moreover, in defense of its law, Texas relied on the same highly qualified

experts as Mississippi. Compare Abbott, 2013 WL 5857853, at *3 (discussing

declarations of Dr. John Thorp and Dr. James Anderson), with Docs. 20-1 & 20-2

(declarations of Dr. John Thorp and Dr. James Anderson). The result should also

be the same: an admitting-privileges requirement is legitimate regulation of health

and of the medical profession, it does not constitute an “undue burden,” and it must

be upheld. See generally Abbott, 2013 WL 5857853, at *2–*6.

In Abbott, this Court had “little difficulty” concluding that an admitting-

privileges requirement is a rational regulation of health and the medical profession.






17

Id. at *3. The Court noted record “evidence that such a requirement fosters a

woman’s ability to seek consultation and treatment for complications directly from

her physician, not from an emergency room provider,” i.e., a total stranger. Id. at

*2. The Court also cited record “evidence that such a requirement would assist in

preventing patient abandonment by the physician who performed the abortion and

then left the patient to her own devices to obtain care if complications developed.”

Id. As discussed above, virtually identical evidence was presented in this case. As

this Court held, such evidence provides “more than a ‘conceivable state of facts

that could provide a rational basis’ for requiring abortion physicians to have

hospital admission privileges.” Id. (quoting F.C.C. v. Beach Commc’ns, Inc., 508

U.S. 307, 313 (1993)). In fact, such evidence is more than sufficient to sustain the

law because “a legislative choice is not subject to courtroom factfinding and may

be based on rational speculation,” even if “unsupported by evidence or empirical

data.” Id. (quoting Beach Commc’ns, 508 U.S. at 315).20

The Abbott Court also held that the plaintiffs had failed to establish that an

admitting-privileges requirement would constitute an undue burden—even

assuming that many clinics would be unable to comply and close as a result. See

20 See also Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control, 317 F.3d 357, 363 (4th Cir. 2002) (concluding that an admitting-privileges requirement is “obviously beneficial to patients”), cert. denied, 538 U.S. 1008 (2003); Women’s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989) (concluding that an admitting-privileges requirement “further important state health objectives”).


18

id. at *4–*6. Specifically, the Court recognized that the law might ultimately

result in the closure of all abortion clinics in twenty-four counties comprising the

Rio Grande Valley, so that residents of the Valley would be required to travel

approximately 150 miles to Corpus Christi for an abortion. See id. at *5–*6.21 The

Court categorically concluded: “An increase in travel distance of less than 150

miles for some women is not an undue burden on abortion rights.” Id. at *6 (citing

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885–87 (1992), which held

that a waiting period that might require two trips over long distances did not

constitute an undue burden).

This commonsense observation—that a marginal increase in travel does not

constitute an “undue burden”—effectively resolves the instant case. A majority of

abortions obtained by Mississippi residents are already performed outside the

State.22 Abortion providers do business in New Orleans and Baton Rouge,

Louisiana; Tuscaloosa, Mobile, Huntsville, and Birmingham, Alabama; and

21 Although the Court referred to “the distance from the Rio Grande Valley to Corpus Christi” as “less than 150 miles,” it would appear that major cities in that region such as Brownsville and Rio Grande City may actually be 160 miles or more from Corpus Christi. 22 In 2012, for example, 5,309 Mississippi residents obtained abortions (see Mississippi State Department of Health, Mississippi Statistically Automated Health Resource System, at http://mstahrs.msdh.ms.gov/forms/pregtable.html, and http://mstahrs.msdh.ms.gov/help/preghelp.html), but only 2,176 abortions were actually performed in Mississippi (see Mississippi State Department of Health, 2012 Vital Statistics, at p.177, tbl.25, available at http://msdh.ms.gov/phs/2012/Bulletin/vr2012.pdf).


19

Memphis, Tennessee.23 The entire state of Mississippi is within a 175-mile radius

of one of these cities. And given that the driving distance from Jackson to Baton

Rouge is less than 175 miles,24 no one should experience “[a]n increase in travel

distance” of more than 175 miles to obtain an abortion, even if the doctors

associated with the plaintiff clinic are unable to obtain admitting privileges. Under

Abbott, that is not an “undue burden” in any relevant circumstance. It certainly

does not meet plaintiffs’ far heavier burden of establishing that the admitting-

privileges requirement would impose “an undue burden ‘in a large fraction of

cases.’” Abbott, 2013 WL 5857853, at *5 (quoting Casey, 505 U.S. at 895).25

The only real difference between this case and Abbott is that the other

nearby clinics in this case are in neighboring states whereas in Abbott they were

located in another part of a much larger state. That distinction lacks constitutional

significance. “[T]he right to travel freely from State to State” is constitutionally

protected, United States v. Guest, 383 U.S. 745, 759 n.17 (1966), and crossing a

state line is no burden in and of itself. Plaintiffs themselves report seeing patients

who travel 3-4 hours from surrounding states, even though each of those states has

23 See, e.g., Louisiana Department of Health & Hospitals, at http://dhh.louisiana.gov/index.cfm/directory/category/276; Alabama Department of Public Health, Health Care Facilities Directory, at http://www.adph.org/healthcarefacilities/; and Planned Parenthood, “Find a Health Center,” at http://www.plannedparenthood.org/. 24 The Court may of course take judicial notice of distances between various major cities. See, e.g., Castilleja v. So. Pac. Co., 445 F.2d 183, 185 (5th Cir. 1971). 25 Plaintiffs’ burden is at least this high; whether it is higher is an open question. See Gonzales, 550 U.S. at 167; Abbott, 2013 WL 5857853, at *5.




20

its own abortion facilities. Doc. 5-1, ¶ 8. Therefore, the sound reasoning of this

Court’s opinion in Abbott compels reversal of the district court’s order.

III. Gonzales v. Carhart Reaffirms That The Constitution Does Not Entitle Plaintiffs To Special Exemptions From Generally Applicable Regulations Of The Medical Profession.

This Court’s opinion in Abbott follows logically from the Supreme Court’s

opinion in Gonzales v. Carhart, which reaffirmed two additional, important points

that bear emphasis in this case. First, Gonzales reaffirmed that “documented

medical disagreement” concerning the wisdom of a law “does not foreclose the

exercise of legislative power in the abortion context any more than it does in other

contexts.” 550 U.S. at 162–64. Thus, the fact that “some part of the medical

community” views an abortion regulation as unnecessary does not render it

unconstitutional. Id. at 166. That would be “too exacting a standard to impose on

the legislative power … to regulate the medical profession. Considerations of

marginal safety, including the balance of risks, are within the legislative

competence when the regulation is rational and in pursuit of legitimate ends.” Id.26

In this case, this means that the record evidence supporting the admitting-

privileges requirement, combined with the common-sense judgment that continuity

of care is a good thing, more than suffice to sustain the Legislature’s rational

judgment. That plaintiffs and their expert disagree is irrelevant. 26 See also, e.g., Kansas v. Hendricks, 521 U.S. 346, 375 (1997) (Breyer, J., dissenting) (“The Constitution permits a State to follow one reasonable professional view, while rejecting another.”).


21

Second, Gonzales reaffirmed that “[t]he law need not give abortion doctors

unfettered choice in the course of their medical practice, nor should it elevate their

status above other physicians in the medical community.” 550 U.S. at 163

(emphasis added).27 Yet that is exactly what plaintiffs in this case seek: they argue

that the Constitution itself exempts them from a requirement generally applicable

to every physician in the State associated with other types of outpatient surgical

facilities. As Gonzales makes clear, the Constitution does not “elevate their status”

or entitle them to such preferential treatment. The State is free to hold plaintiffs to

the same licensure requirements as comparable outpatient facilities.28

27 Similarly, in Women’s Health Center of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989), the Eighth Circuit upheld Missouri’s admitting-privileges requirement, which applied equally to abortion doctors and doctors performing other outpatient surgeries. The court reasoned that “[t]he State …, in exercising its police powers to protect the well-being of its citizens, has undoubted authority to regulate the conditions under which surgical procedures are performed. Such legitimate state regulation of surgical procedures is not rendered unconstitutional because it is specifically applied to abortion.” Id. at 1381. 28 Plaintiffs’ contention that they are constitutionally entitled to special exemptions from such generally applicable laws, perhaps because they are the sole abortion clinic currently operating in Mississippi, has far-reaching implications that should not be overlooked. For example, if the plaintiff clinic cannot afford to pay its property taxes, must the city and county forgive the taxes so that the clinic can remain in business? If it cannot afford repairs necessary to comply with the basic city building codes, is a waiver of those regulations also constitutionally required? Or if the clinic is one day unable to recruit licensed physicians, must the State allow even non-physicians to carry out abortions? But see Mazurek v. Armstrong, 520 U.S. 968, 974–75 (1997) (making clear that a state is free to provide that “only a physician currently licensed by the State” may perform abortions (quoting Roe v. Wade, 410 U.S. 113, 165 (1973)); Abbott, 2013 WL 5857853, at *3 (an admitting-privileges requirement “is but one step removed from …the longstanding recognition by the Supreme Court that a State may constitutionally require that only a physician may perform an abortion”). The clear answer to all these questions is no. The Supreme Court has held that a state may enforce such generally applicable laws—including requirements, like the one at issue here, that apply to “other physicians in the medical community,” Gonzales, 550 U.S. at 163—without running afoul of the Constitution.




22

CONCLUSION

The order of the district court granting a preliminary injunction should be

reversed. House Bill 1390 should be permitted to go into effect immediately.29

November 27, 2013 s/Jack Wilson

Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 [email protected] Counsel for Governor Bryant

29 As this Court noted in Abbott, “[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.” 2013 WL 5857853, at *9.




CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2013, the foregoing brief was filed with the Court through the CM/ECF system, which will send notice to registered CM/ECF users in this matter, including counsel for all parties. s/Jack Wilson

Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 [email protected]


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,886 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 5th Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in 14-point Times New Roman font for the main text and 12-point Times New Roman font for footnotes. November 27, 2013 s/Jack Wilson

Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 [email protected]


United States Court of Appeals FIFTH CIRCUIT

OFFICE OF THE CLERK LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

December 02, 2013

Mr. Jack Louis Wilson Office of the Governor for the State of Mississippi 550 High Street Sillers Building 19th Floor Jackson, MS 39201-0000 No. 13-60599 Jackson Women's Health Orgn, et al v. Mary Currier, et al USDC No. 3:12-CV-436 The following pertains to your brief electronically filed on 11/27/2013. You must submit the seven paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Sincerely, LYLE W. CAYCE, Clerk

By:_________________________ Dawn D. Victoriano, Deputy Clerk 504-310-7717 cc: Mr. Paul Eldridge Barnes Mr. Aaron Sean Delaney Mr. Robert Bruce McDuff Mr. Wilson Douglas Minor Ms. Michelle Nicole Movahed Mr. Lara Rabiee Mrs. Mailee Rebecca Smith

Case: 13-60599 Document: 00512456255 Page: 1 Date Filed: 11/27/2013

in the united states court of appeals for...

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