Amicus Briefs Call on U.S. Supreme Court to Allow Texas to Protect  Health and Safety of Women

In a showing of nationwide support for protecting the health and safety of women, more than 30 amicus briefs were filed with the U.S. Supreme Court in support of Texas’ House Bill 2 (HB 2), which ensures patient safety and raises the standard of care for women. Oral arguments in the case (Whole Woman’s Health v. Hellerstedt) are scheduled for March 2 and will be delivered by Texas Solicitor General Scott Keller.

“We are grateful for the overwhelming support received from across the country in support of common-sense measures to protect women,” Texas Attorney General Ken Paxton said. “Medical experts, legal scholars, lawmakers and women physically injured by the abortion industry are among those who filed briefs in support of women’s safety.”

Statistics show 2 to 3 Texas women per week have major complications and 10 women per week seek help at an ER after an abortion. Texas believes abortion facilities have no special privilege to operate outside the parameters of the medical profession and it is the right and responsibility of the state to ensure the safety of patients.

Of note among the multitude of supporting briefs is a bipartisan group of 121 current and former Texas Lawmakers, represented by former Texas Supreme Court Justice Craig T. Enoch. The brief overviews the extensive medical evidence presented to the Texas Legislature by doctors and other health professionals testifying to the medical benefits of improved standards during the many hours of debate and testimony.  

Additionally, a broad U.S. congressional coalition of 174 members also filed a brief in support of the Texas law. The bipartisan group of 34 senators and 140 house members emphasized that the courts give legislatures wide latitude to enact medical regulations – including abortion regulations, as the U.S. Supreme Court recently reaffirmed in 2007 in Gonzales v. Carhart, when the Court upheld the federal ban on partial-birth abortion.

Other amicus briefs were filed by the attorneys general of 24 states, many of which have laws like HB 2. Many of the other briefs note the horrors of abortionists like convicted murderer Kermit Gosnell and others, and also tell the stories of women across the country that were physically harmed and would have benefitted from higher health and safety standards for abortion facilities.

In 2013, the Texas Legislature passed HB 2 to provide abortion patients with a higher standard of health care. The common-sense law requires the minimum standards for abortion facilities be equivalent to the minimum standards for general surgery centers (“ambulatory surgical centers” or ASCs), as the Gosnell Grand Jury recommended. And the law requires abortion doctors to have local hospital admitting privileges to ensure continuity of care, as recommended previously by the National Abortion Federation.

Key Excerpts from Briefs Filed by States, Texas Legislators and U.S. Lawmakers:

“It may seem irrelevant to opponents whether these facilities have a door wide enough for an EMS or their doctor has admitting privileges, but I can assure you those issues would be very relevant to that woman whose life could be in danger. They are relevant to ensuring that those horrific practices that we’ve heard about, of doctors like Gosnell, are never allowed to happen again and they sure aren’t gonna happen in Texas.” – Sen. Jane Nelson, Texas Legislators’ brief, pg. 13-14.

“[T]here is no similar surgical procedure of the same complexity and the same possible risk that does not require hospital privileges” – Physician testimony, Texas Legislators’ brief, pg. 31.

“Physicians further testified that…they had witnessed the consequences of patient abandonment by doctors who perform abortions without admitting privileges…described patients who did not know what abortion procedures had been performed, and the difficulty in treating a patient without that history. One doctor stated ‘Several times a year I am seeing patients that had complications of abortion. And it seems that they have been unable to get ahold of their abortion provider, they were told to go to the emergency room…And it seems that once the abortion is performed that many patients are just turned out on their own…I’ve experienced having to take care of complications such as hemorrhage and infection.’” – Texas Legislators’ brief, pg. 32.

“Federal Medicare law, for example, has long required a participating ‘ambulatory surgery center’ to either have a written transfer agreement with a local hospital or ‘[e]nsure that all physicians performing surgery in the [center] have admitting privileges’ at the hospital. 42 C.F.R. § 416.41(b). This requirement was adopted to ‘ensure that patients have immediate access to needed emergency or medical treatment in a hospital.’ 47 Fed. Reg. 34082, 34086 (Aug. 5, 1982)” – States’ brief, pg. 12.

“The entire premise of Petitioners’ undue burden theory is that Texas’s clinic regulations will prevent women from obtaining abortions. Yet, despite decades of those regulations, neither Petitioners nor their supporting amici provide any evidence of such a stark result. The most that they prove is that, in the wake of new state regulations, some abortion clinics close rather than adjust. They recite no evidence that such closures have prevented any women from obtaining a timely abortion.” – States’ brief, pg. 39.

“Throughout the extensive public debate about HB2, Texas legislators stated unequivocally that the bill’s aim was to safeguard the health of Texas women who choose abortion.” – Texas Legislators’ brief, pg. 13.

“The many medical experts who testified during the hearings on HB2 and related bills made it clear that abortion is a medical procedure subject to serious risks and complications. They explained how the standards applicable to ambulatory surgical centers (ASCs) are important to the health of women undergoing both medical and surgical abortions and why requiring doctors who perform abortions to have admitting privileges at nearby hospitals also protects patients.” – Texas Legislators’ brief, pg. 18.

“And yet another physician concluded, ‘[i]f we did raise the standards of our clinics to the ambulatory surgical care center standards then we can avoid problems like what happened in the Gosnell clinic where a patient died, as you heard testimony, because the hallways do not meet the guidelines that would have been required under the ambulatory surgical care cente[r]’ standards.” – Texas Legislators’ brief, pg. 27.

“To demonstrate just how essential ASC-level facilities are to the health and safety of abortion patients, one doctor emphasized that many physicians will only perform [abortions] in an ASC or hospital setting…because I know that the risk, which is known…can occur in any patient.” – Physician testimony, Texas Legislators’ brief, pg. 28.

“While legislative judgments on a wide variety of topics are due substantial deference, there are few areas in which legislatures have a greater advantage over courts than the regulation of the practice of medicine. Regulation of the medical profession necessarily involves balancing competing risks, often in the presence of scientific uncertainty and differences of opinion about what is best for patients. Courts are especially ill-equipped to decide such matters.” – U.S. Congressional brief, pg. 11-12.

“Texas’ hospital admitting privileges requirement adds meaningful additional supervision of abortion providers—supervision otherwise lacking or ineffective in the Gosnell case—that could have stopped Dr. Gosnell years earlier.” – U.S. Congressional brief, pg. 15.

“The regulations that the Texas Legislature ultimately adopted are thus an entirely reasonable and justified means of protecting patients not only from the problem of unsafe abortion clinics run by unprofessional, incompetent, or unethical doctors, but also from the type of complications that inevitably arise at all abortion clinics.” – U.S. Congressional brief, pg. 17.

To view many of the amicus briefs filed in support of Texas, please visit: www.texasattorneygeneral.gov/hb2.

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