throbber
No. 15-274
`In the Supreme Court of the United States
`_____________
`
`
`
`WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS
`
`v.
`JOHN HELLERSTEDT, M.D., COMMISSIONER OF THE
`TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL.
`_____________
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_____________
`
`BRIEF OF AMICI CURIAE TEXAS VALUES
`AND 3801 LANCASTER FILM PROJECT
`IN SUPPORT OF THE RESPONDENTS
`_____________
`
`CLETA MITCHELL
` Counsel of Record
`3000 K Street, N.W.
`Suite 600
`Washington, D.C. 20007
`(202) 295-4081
`cmitchell@foley.com
`
`
`JONATHAN M. SAENZ
`Texas Values
`900 Congress Ave., Suite 220
`Austin, Texas 78701
`(512) 478-2220
`jsaenz@txvalues.org
`
`DAVID S. LILL
`Lill Firm, P.C.
`4407 Bee Caves Road
`Suite 111, Building 1
`Austin, TX 78746
`(512) 330-0252
`david@lillfirm.com
`
`
`

`
`
`
`
`
`QUESTIONS PRESENTED
`1. Is the evidence in the record of this case sufficient
`to prove, by a preponderance of the evidence, that House
`Bill 2 will unduly burden a “large fraction” of the State’s
`abortion patients?
`2. Does the doctrine of res judicata preclude the peti-
`tioners’ facial challenges to House Bill 2’s provisions?
`
`
`(i)
`
`
`
`

`
`
`
`TABLE OF CONTENTS
`Questions presented .............................................................. i
`Table of contents .................................................................. ii
`Table of authorities ............................................................. iv
`Interest of amici.................................................................... 1
`Summary of argument ......................................................... 2
`Argument .............................................................................. 3
`I. The Gosnell grand-jury report provides
`ample justification for HB2’s requirements ......... 3
`A. The Gosnell grand-jury report shows
`that the abortion industry has attracted
`practitioners who are a menace to their
`patients ................................................................ 4
`B. The Gosnell grand-jury report shows
`that hospitals and doctors fail to report
`complications from abortions, even when
`required by law ................................................... 8
`C. The Gosnell grand-jury report called out
`the National Abortion Federation for
`failing
`to report Gosnell
`to state
`authorities ......................................................... 10
`D. The Gosnell grand-jury report shows
`how regulatory capture leads to lax
`oversight of abortion clinics ............................ 11
`E. The
`Gosnell
`grand-jury
`report
`specifically recommended that States
`
`(ii)
`
`

`
`
`require that all abortions be performed
`in ambulatory surgical centers ....................... 14
`F. The petitioners’ arguments, if accepted
`by
`this Court, would
`invalidate
`Pennsylvania’s
`ambulatory-surgical-
`center law .......................................................... 15
`II. The arguments in the petitioners’ amici
`briefs are meritless ................................................ 16
`A. The National Abortion Federation
`amicus ................................................................ 19
`B. The ACLU amicus ........................................... 20
`C. The ACOG amicus ............................................ 22
`D. The Planned Parenthood amicus ................... 22
`E. The New York amicus ..................................... 24
`F. The Constitutional Law Scholars amicus ...... 26
`G. The Solicitor General’s amicus ....................... 27
`Conclusion ........................................................................... 31
`
`
`
`(iii)
`
`
`
`
`
`
`
`
`
`

`
`
`TABLE OF AUTHORITIES
`
`Cases
`Gonzales v. Carhart, 550 U.S. 124 (2007) .................. 26, 28
`Leavitt v. Jane L., 518 U.S. 137 (1996) ...................... 18, 30
`Mazurek v. Armstrong, 520 U.S. 968 (1997) . 21, 24, 25, 29
`New Haven Inclusion Cases,
`399 U.S. 392 (1970) ......................................................... 23
`Obergefell v. Hodges, 135 S. Ct. 2071 (2015) ................... 27
`Planned Parenthood of Greater Tex. Surgical
`Health Servs. v. Abbott,
`748 F.3d 583 (5th Cir. 2014) .................................... 17, 20
`Planned Parenthood of Se. Pa. v. Casey,
`505 U.S. 833 (1992) ................................................... 22, 29
`Simopoulos v. Virginia, 462 U.S. 506 (1983) .................. 17
`Statutes
`35 Pa. Cons. Stat. § 448.806(h) .......................................... 15
`Regulations
`28 Pa. Code. § 555.33 .......................................................... 15
`28 Pa. Code. § 567.21–24 .................................................... 15
`28 Pa. Code. § 567.3 ............................................................ 15
`25 Tex. Admin. Code § 139.9(b) ........................................ 17
`Rules
`Fed. R. Evid. 201 ................................................................ 16
`
`(iv)
`
`

`
`
`
`Treatises
`S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D.
`Himmelfarb, Supreme Court Practice
`(10th ed. 2013) ................................................................. 18
`Other Authorities
`Lynette Holloway, Abortion Doctor Guilty of
`Murder, N.Y. Times, Aug. 9, 1995 .................................. 7
`Denise Lavoie, Doctor Gets 6 Months in Abortion
`Patient Death, Associated Press, Sept. 14, 2010 .......... 7
`Steven Lee Myers, Doctor Describes Death of a
`Girl Who Suffered Botched Abortion, N.Y.
`Times, December 5, 1991 ................................................ 7
`National Abortion Federation, “Having An
`Abortion? Your Guide To Good Care” (2000) ............. 20
`Mancur Olson, The Logic of Collective Action
`(1965) ................................................................................ 13
`Richard Perez-Pena, Prison Term for Doctor
`Convicted in Abortions, N.Y. Times, June 15,
`1993 .................................................................................... 7
`George Stigler, Theory of Economic Regulation,
`2 Bell J. Econ. 3 (1971) .................................................. 13
`Geoffrey R. Stone, Our Faith-Based Justices,
`HuffPost Politics (April 20, 2007) ................................. 27
`
`
`
`(v)
`
`

`
`
`In the Supreme Court of the United States
`_____________
`
`
`
`No. 15-274
`WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS
`
`v.
`JOHN HELLERSTEDT, M.D., COMMISSIONER OF THE
`TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL.
`_____________
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_____________
`
`BRIEF OF AMICI CURIAE TEXAS VALUES
`AND 3801 LANCASTER FILM PROJECT
`IN SUPPORT OF THE RESPONDENTS
`_____________
`
`INTEREST OF AMICI1
`Texas Values is one of the largest statewide organiza-
`tions involved in ensuring that every human life is val-
`ued. Texas Values routinely provides educational infor-
`mation and resources to protect the health and safety of
`women and unborn children.
`
`1 All parties consented to the filing of this brief. No counsel for a
`party authored any part of this brief. And no one other than the
`amici curiae, their members, or their counsel financed the prepara-
`tion or submission or this brief.
`
`(1)
`
`
`

`
`2
`The 3801 Lancaster Film Project is a group of
`filmmakers that produced the award-winning documen-
`tary, 3801 Lancaster: American Tragedy. 3801 Lancas-
`ter is about late-term abortion provider Kermit Gosnell,
`who was convicted of first-degree murder, manslaughter,
`and other charges related to his violence toward women
`and their offspring both inside and outside the womb.
`The filmmakers behind 3801 Lancaster continue to
`screen their film in Texas and other states, to educate
`the public about the need for common-sense health-and-
`safety regulations for abortion clinics.
`The purpose of this amicus brief is two-fold. First,
`the amicus will explain how the requirements of House
`Bill 2 are needed to prevent substandard practitioners
`from opening shop in Texas. The Gosnell episode showed
`that state agencies can become prone to “regulatory cap-
`ture” that leads to lax or non-existent enforcement of
`abortion-safety regulations. HB2’s admitting-privileges
`and ASC requirements address this problem by holding
`abortion providers accountable to hospital committees
`and ensuring that every abortion provider in Texas of-
`fers the highest standard of care.
`Second, this amicus will refute arguments advanced
`by the petitioners’ amici.
`SUMMARY OF ARGUMENT
`The Kermit Gosnell grand-jury report specifically
`recommended that States require all abortions to be per-
`formed
`in ambulatory surgical centers. App. 20a
`(“[A]bortion clinics . . . should be explicitly regulated as
`ambulatory surgical facilities, so that they are inspected
`annually and held to the same standards as all other out-
`
`
`
`

`
`3
`patient procedure centers.”) The grand jury also found
`that “[t]he abhorrent conditions and practices inside
`Gosnell’s clinic are directly attributable to the Pennsyl-
`vania Health Department’s refusal to treat abortion clin-
`ics as ambulatory surgical facilities.” App. 101a. These
`and other findings in the grand-jury report provide am-
`ple justification for HB2’s provisions.
`ARGUMENT
`I. THE GOSNELL GRAND-JURY REPORT
`PROVIDES AMPLE JUSTIFICATION FOR
`HB2’S REQUIREMENTS
`The petitioners’ opening brief says nary a word about
`Kermit Gosnell. Instead, the petitioners declare that
`“[a]bortion is one of the safest and most common proce-
`dures in contemporary medicine,” expecting everyone to
`forget about Gosnell’s atrocities and the lax regulations
`that enabled them. Pet. Br. 3. But the Gosnell grand-jury
`report powerfully explains the need for HB2’s require-
`ments. App. 101a (“The abhorrent conditions and prac-
`tices inside Gosnell’s clinic are directly attributable to
`the Pennsylvania Health Department’s refusal to treat
`abortion clinics as ambulatory surgical facilities.”); Resp.
`Br. 1–2 (citing the Gosnell grand-jury report). No mem-
`ber of this Court should vote to invalidate HB2 without
`first reading the grand-jury report that prompted Texas
`to enact this law.
`
`
`
`

`
`4
`A. The Gosnell Grand-Jury Report Shows That
`The Abortion
`Industry Has Attracted
`Practitioners Who Are A Menace To Their
`Patients
`When state authorities allow abortion providers to
`self-regulate, atrocities can ensue. The Gosnell grand-
`jury report describes the horrifying consequences that
`arise from insufficient regulatory oversight of abortion
`providers. The newspaper reports of Gosnell’s trial never
`captured the full extent of his mayhem and carnage. But
`the grand-jury report describes Gosnell’s practices in
`detail — and it fixes the blame squarely on the State’s lax
`oversight of abortion providers and its failure to regulate
`abortion clinics as ambulatory surgical centers. App.
`101a.
`Consider first the conditions of the clinic in which
`Gosnell performed abortions:
`The clinic reeked of animal urine, courtesy of
`the cats that were allowed to roam (and defe-
`cate) freely. Furniture and blankets were
`stained with blood. Instruments were not
`properly sterilized. Disposable medical sup-
`plies were not disposed of; they were reused,
`over and over again. Medical equipment — such
`as the defibrillator, the EKG, the pulse oxime-
`ter, the blood pressure cuff — was generally
`broken; even when it worked, it wasn’t used.
`The emergency exit was padlocked shut. And
`scattered throughout, in cabinets, in the base-
`ment, in a freezer, in jars and bags and plastic
`jugs, were fetal remains.
`
`
`
`

`
`5
`App. 4a. Gosnell would sever the feet of the fetuses that
`he aborted and stored them in jars. App. 42a–43a. Bags
`of medical waste were piled in the clinic’s basement. App.
`23a, 33a. And fetal remains were strewn throughout the
`clinic — in bags, milk jugs, orange-juice cartons, and cat-
`food containers. App. 23a. Some were stored in the re-
`frigerator; others were frozen. Id.
`Gosnell’s clinic was staffed with unlicensed and un-
`qualified workers. App. 27a (“Gosnell deliberately hired
`unqualified staff because he could pay them low wages,
`often in cash.”). He allowed these unqualified and unsu-
`pervised staff workers to administer potent and danger-
`ous drugs to his patients. App. 35a. Gosnell also violated
`a Pennsylvania law requiring abortion clinics to have at
`least one doctor certified by the American Board of Ob-
`stetrics and Gynecology either on staff or as a consult-
`ant. App. 28a.
`Gosnell would perform late-term abortions by induc-
`ing full labor, a painful and dangerous procedure. App.
`6a–7a, 26a–27a. Gosnell liked to terminate pregnancies
`this way “because it made his job easier.” App. 27a.
`When this process produced a live baby — as it often
`did — Gosnell would complete the “abortion” by cutting
`the baby’s spinal cord with a pair of scissors:
`Gosnell had a simple solution for the unwanted
`babies he delivered: he killed them. He didn’t
`call it that. He called it “ensuring fetal demise.”
`The way he ensured fetal demise was by stick-
`ing scissors into the back of the baby’s neck
`and cutting the spinal cord. He called that
`“snipping.”
`
`
`
`

`
`6
`Over the years, there were hundreds of “snip-
`pings.” Sometimes, if Gosnell was unavailable,
`the “snipping” was done by one of his fake doc-
`tors, or even by one of the administrative staff.
`App. 7a. One of the babies killed by “snipping” was Baby
`Boy B, whose body was found frozen in a one-gallon
`spring-water bottle. Id.; see also App. 67a (picture of Ba-
`by Boy B). It was common for Gosnell to make jokes af-
`ter killing babies in this manner. App. 28a, 51a.
`Then there is Gosnell’s treatment of the women who
`came to him seeking abortions. He left one of his patients
`“lying in place for hours” after he had torn her cervix
`and colon. App. 8a. When her relatives came to the clinic
`to pick her up, Gosnell refused to allow them in. Id. Gos-
`nell’s actions caused this patient to lose nearly six inches
`of her intestines. App. 8a–9a. Gosnell sent another pa-
`tient home even though he had left fetal parts inside her,
`causing a serious infection. App. 9a. Another patient suf-
`fered a punctured uterus at the hands of Gosnell, yet
`Gosnell kept her in the clinic for hours afterward, lead-
`ing to severe blood loss and a hysterectomy. Id. Eventu-
`ally Gosnell’s ineptitude and depraved indifference led to
`the death of a patient. Pet. App. 10a–11a (describing the
`death of Karnamaya Mongar at Gosnell’s hands).
` Gosnell is the worst of the substandard abortion
`practitioners who have killed or wounded their patients
`and unborn children — but he is far from the only one.
`Dr. David Benajmin was convicted of second-degree
`murder after he botched an abortion and allowed the pa-
`tient to bleed to death while he performed an abortion on
`a second woman. See Lynette Holloway, Abortion Doctor
`
`
`
`

`
`7
`Guilty of Murder, N.Y. Times, Aug. 9, 1995, available at
`http://nyti.ms/1P3Y9Ub (last visited Feb. 3, 2016). Ben-
`jamin was allowed to perform abortions in New York
`even though his license had been previously suspended
`based on 38 counts of negligence and incompetence, and
`even though the authorities had revoked his license for
`“gross incompetence and negligence” in five other cases.
`Id. Nevertheless, New York allowed Benjamin to contin-
`ue practicing medicine as he appealed the revocation. Id.
`Dr. Abu Hayat cut off the arm of a fetus that he was
`trying to abort, who was later born alive and healthy
`(apart from her missing right arm). See Richard Perez-
`Pena, Prison Term for Doctor Convicted in Abortions,
`N.Y.
`Times,
`June
`15,
`1993,
`available
`at
`http://nyti.ms/1QYCoaF (last visited Feb. 3, 2016). Hayat
`had been previously accused of botching eight abortions
`at his clinic, but was never held accountable until one of
`his patients died after an infection. See Steven Lee My-
`ers, Doctor Describes Death of a Girl Who Suffered
`Botched Abortion, N.Y. Times, December 5, 1991, avail-
`able at http://nyti.ms/1QYD67O (last visited on Dec. 5,
`1991); see also Denise Lavoie, Doctor Gets 6 Months in
`Abortion Patient Death, Associated Press, Sept. 14, 2010
`(reporting Dr. Rapin Osathanondh’s guilty plea to invol-
`untary manslaughter of a patient who died after her
`abortion).
`The petitioners claim that office-based abortion “has
`an excellent safety record” without mentioning any of
`these atrocities. Pet. Br. 17. Yet the deaths and injuries
`that occurred in these offices were entirely preventable.
`Gosnell, Benjamin, Hayat, and Osathanondh had no
`
`
`
`

`
`8
`business practicing medicine in any capacity. But the
`state authorities allowed these shady characters to per-
`form abortions and took action only after a patient died.
`HB2’s requirements are designed to prevent subpar
`practitioners from offering services in the first place.
`Hospital committees will not grant admitting privileges
`to disreputable physicians, and the ASC requirements
`ensure that clinics are staffed and equipped to deal with
`the emergency complications that have claimed the lives
`of abortion patients. It is unacceptable for a State to
`simply wait until a patient suffers harm and then prose-
`cute the derelict abortion provider after the fact. And it
`is absurd to argue that the Constitution requires a State
`to take this wait-and-see approach — rather than take
`preemptive action to thwart substandard practitioners in
`a field that has seen its fill of them.
`B. The Gosnell Grand-Jury Report Shows That
`Hospitals And Doctors Fail To Report
`Complications From Abortions, Even When
`Required By Law
`The plaintiffs acknowledge that major complications
`can arise during or after an abortion, but they claim that
`this is rare. Pet. Br. 16 (“Studies consistently report the
`rate of major complications during or after an abortion
`as less than one-half of one percent”); see also id. at 3
`(“Abortion is one of the safest and most common proce-
`dures in contemporary medicine.”). The State claims that
`these numbers are inaccurately low because complica-
`tions from abortions often go unreported. Resp. Br. 35.
`The Gosnell grand-jury report shows that the State is
`correct. Not only did Gosnell fail to report the many
`
`
`
`

`
`9
`complications that arose from his reckless abortion prac-
`tice, but so did the other medical professionals who
`treated Gosnell’s victims after they left his clinic.
`Patients injured by Gosnell often sought treatment
`from the Hospital of the University of Pennsylvania
`(HUP) or its subsidiary, Penn Presbyterian Medical
`Center. App. 16a. One of those victims died at HUP after
`a botched Gosnell abortion. HUP reported this episode
`to the authorities, as required by law. Id. But many other
`Gosnell victims came to these hospitals for emergency
`treatment and hospitalization related to Gosnell’s abor-
`tions — and neither HUP nor Penn Presbyterian report-
`ed any of these episodes to state authorities. Id. (“[O]th-
`er than the one initial report, Penn could find not a single
`case in which it complied with its legal duty to alert au-
`thorities to the danger. Not even when a second woman
`turned up virtually dead.”).
`The plaintiffs want this Court to equate the reported
`rates of complications from abortion with the actual
`rates of complication. But as the State rightly notes,
`many States do not require reporting of abortion compli-
`cations, and Whole Woman’s Health has itself underre-
`ported complications to state authorities. Resp. Br. 35.
`Yet even in States that do require hospitals and medical
`professionals to report complications from abortions —
`such as Pennsylvania — the requirement goes unheeded.
`The Gosnell grand-jury report confirms what is already
`evident in the record of this case: Complications from
`abortions often go unreported.
`
`
`
`

`
`10
`C. The Gosnell Grand-Jury Report Called Out
`The National Abortion Federation For Failing
`To Report Gosnell To State Authorities
`The National Abortion Federation (NAF) claims that
`its mission is “to ensure safe, legal, and accessible abor-
`tion care, which promotes health and justice for women.”
`NAF Br. 1. Kermit Gosnell applied for membership in
`NAF shortly after the death of Karnamaya Mongar.
`App. 16a. In response to this application, NAF inspected
`Gosnell’s clinic and found that Gosnell and his staff failed
`to keep proper records, failed to explain risks to their
`patients, failed to monitor their patients, failed to have
`the proper equipment on hand, and failed to use anesthe-
`sia properly. Id.; see also id. (“It was the worst abortion
`clinic [the NAF evaluator] had ever inspected.”). Alt-
`hough NAF rejected Gosnell’s application, it never told
`anyone in authority about the dangerous conditions at
`Gosnell’s clinic. Id.
`NAF’s amicus brief says nothing about Gosnell or its
`failure to report Gosnell to state regulators. Nor does it
`acknowledge the grand jury’s recommendation that
`States require abortions to be performed in ambulatory
`surgical centers — a recommendation that the grand jury
`made in part because it found that organizations like
`NAF cannot be trusted to report miscreant abortion
`providers to the authorities. App. 16a–17a.
`
`
`
`

`
`11
`D. The Gosnell Grand-Jury Report Shows How
`Regulatory Capture Leads To Lax Oversight
`Of Abortion Clinics
`The Pennsylvania Department of Health inspected
`Gosnell’s clinic sporadically between 1978 and 1993 —
`and then never inspected the clinic again until 2010. App.
`29a, 69a–74a. But the physical layout of the clinic pre-
`sented obvious safety hazards even apart from Gosnell’s
`filthy and unsanitary practices. The three-story building
`had no elevator, and the narrow hallways and multiple
`twisting stairways made it impossible to transport pa-
`tients from the operating rooms to the outside by wheel-
`chair or stretcher. App. 29a. This contributed to the
`death of Karnamaya Mongar, because EMTs were una-
`ble to transport her from the clinic after she lost con-
`sciousness. Pet. App. 23a, 29a, 46a–47a, 70a–71a. The
`building never should have been approved as a medical
`facility — even before Gosnell moved in. App. 28a (“It is
`unbelievable to us that the Pennsylvania Department of
`Health approved this building as an abortion facility.”);
`App. 70a (noting that Pennsylvania Department of
`Health found in its 1979 that there was adequate access
`for a stretcher, “something that proved not to be the
`case when EMTs needed to transport Karnamaya Mon-
`gar from the facility in November 2009”).
`The Department of Health continued to issue certifi-
`cates of approval for Gosnell’s clinic even after its inspec-
`tors noticed numerous and repeated violations of state
`law. An inspection from 1989 discovered that Gosnell
`failed to comply with a state law requiring abortion clin-
`ics to have at least one board-certified OB/GYN on staff
`
`
`
`

`
`12
`or as a consultant. App. 71a. The inspectors also noticed
`that Gosnell violated state law by failing to provide nurs-
`es to oversee the recovery of patients and had no trans-
`fer agreement with a hospital for emergency care. Id.
`But the Department approved Gosnell’s clinic for anoth-
`er 12 months, based on his promises to fix those prob-
`lems. Id.
`In 1992, the Department inspected the clinic again.
`App. 72a. Still there were no nurses to monitor patient
`recovery; indeed, the clinic employed no nurses at all. Id.
`Still there was no board-certified OB/GYN on staff or as
`a consultant. Id. But the inspectors concluded that there
`were “no deficiencies” — and the Department approved
`Gosnell’s clinic to continue performing abortions. Id. The
`inspectors also concluded that there was adequate access
`for stretchers and wheelchairs, a conclusion that the
`grand jury found incredible given the narrow hallways
`and the absence of elevators. Id.
`After 1993, the Pennsylvania Department of Health
`decided to stop inspecting abortion clinics. App. 12a. The
`Gosnell grand jury reported that this change in policy
`was done “for political reasons”:
`With the change of administration from Gover-
`nor Casey to Governor Ridge, officials conclud-
`ed that inspections would be “putting a barrier
`up to women” seeking abortions. Better to
`leave clinics to do as they pleased, even though,
`as Gosnell proved, that meant both women and
`babies would pay.
`App. 12a. The only time that the Department would in-
`spect abortion clinics would be in response to complaints,
`
`
`
`

`
`13
`id., but the Department failed to act even though it re-
`ceived many complaints about Gosnell’s clinic. App. 12a,
`76a. One the those complaints came from Dr. Donald
`Schwarz, who noticed that the patients that he referred
`to Gosnell’s clinic were contracting trichomoniasis, a
`sexually transmitted parasite, as a result of Gosnell’s un-
`sanitary practices. App. 76a. Dr. Schwarz stopped refer-
`ring patients to Gosnell and hand-delivered a complaint
`to the office of the Pennsylvania Secretary of Health.
`The State did nothing in response. Id. Indeed, the De-
`partment failed to investigate Gosnell or inspect his clin-
`ic even after Karnamaya Mongar’s death. Pet. App. 81a–
`85a.
`The Department of Health’s indifference and nonfea-
`sance in response to Gosnell is a prime example of regu-
`latory capture — a phenomenon that occurs when regula-
`tors respond to incentives that lead to lax oversight and
`enforcement. See, e.g., Mancur Olson, The Logic of Col-
`lective Action (1965); George Stigler, Theory of Econom-
`ic Regulation, 2 Bell J. Econ. 3 (1971). One of the key
`findings of the Gosnell grand-jury report is that state
`regulators cannot be trusted to enforce patient-safety
`laws currently on the books, as they are often content to
`allow hazards at abortion clinics to go ignored and un-
`addressed until after a patient dies. As the grand jury
`explained:
`The travesty, from this Grand Jury’s perspec-
`tive, is that DOH could and should have closed
`down Gosnell’s clinic years before. Many, if not
`all, of the violations cited in the March 12, 2010,
`document had been present for nearly two
`
`
`
`

`
`14
`decades. The violations had been apparent
`when DOH site-reviewers . . . inspected the fa-
`cility in 1989, 1992, and 1993. Yet it was not un-
`til law enforcement discovered the horrendous
`conditions inside 3801 Lancaster Avenue that
`DOH took action to close the clinic.
`Pet. App. 90a. All the more need for States to take
`preemptive actions that heighten oversight and account-
`ability. If regulatory capture makes state officials reluc-
`tant to inspect clinics or close clinics in response to safe-
`ty hazards, then States need to enact clear and easy-to-
`apply rules that will ensure that abortion patients re-
`ceive the highest standards of care.
`E. The Gosnell Grand-Jury Report Specifically
`Recommended That States Require That All
`Abortions Be Performed
`In Ambulatory
`Surgical Centers
`The Gosnell episode illustrates the consequences of
`unregulated and under-regulated abortion. The grand
`jury urged States to prevent a repeat of this sordid epi-
`sode by regulating abortion clinics as ambulatory surgi-
`cal centers:
`[A]bortion clinics . . . should be explicitly regu-
`lated as ambulatory surgical facilities, so that
`they are inspected annually and held to the
`same standards as all other outpatient proce-
`dure centers.
`App. 20a. More significantly, the grand jury found that
`“[t]he abhorrent conditions and practices inside Gosnell’s
`
`
`
`

`
`15
`clinic are directly attributable to the Pennsylvania
`Health Department’s refusal to treat abortion clinics as
`ambulatory surgical facilities.” App. 101a (emphasis add-
`ed). The report noted the many ways in which Pennsyl-
`vania’s ASC rules would benefit abortion patients, by re-
`quiring measures for infection control, 28 Pa. Code.
`§ 567.3, the use of sterile linens, id. at § 567.21–24, and
`anesthesia protocols, id. at § 555.33. App. 105a.
`Pennsylvania followed the recommendation of the
`grand jury and quickly enacted legislation to require
`abortion clinics to meet the same standards that are ap-
`plied to ambulatory surgical facilities. See 35 Pa. Cons.
`Stat. § 448.806(h), added by 2011 Pa. Legis. Serv. Act
`2011-122, § 2.
`F. The Petitioners’ Arguments, If Accepted By
`This Court, Would Invalidate Pennsylvania’s
`Ambulatory-Surgical-Center Law
`No one dared challenge Pennsylvania’s ambulatory-
`surgical-requirement in the wake of Gosnell, and the law
`has been in effect since 2011. But the petitioners’ argu-
`ments, if accepted by this Court, would invalidate Penn-
`sylvania’s ASC law as well as Texas’s. According to the
`petitioners, no State may ever require abortions to be
`performed in ambulatory surgical centers, because such
`a requirement is “not reasonably designed to promote
`women’s health.” Pet. Br. 36; see also id. at 17 (“The ASC
`requirement provides no health benefit to abortion pa-
`tients.”). This would preclude any State from enacting
`an ambulatory-surgical-center requirement — even after
`Gosnell-like atrocities occur within the State’s own bor-
`ders.
`
`
`
`

`
`16
`* * *
`We have included excerpts from the Gosnell grand-
`jury report in the appendix to this brief. The entire
`grand-jury report is available at http://1.usa.gov/1yKslii
`(last visited Feb. 3, 2016). We respectfully ask the Court
`to consider the facts and findings in the report — which
`are a proper subject of judicial notice under Federal
`Rule of Evidence 201. See University Faculty for Life
`Br. 29.
`II. THE ARGUMENTS IN THE PETITIONERS’
`AMICI BRIEFS ARE MERITLESS
`There were over 40 amicus briefs filed in support of
`the petitioners in this case. We begin with a few general
`observations about these briefs.
`First, not a single amicus attempts to address the
`State’s res judicata defense — even though the court of
`appeals held that res judicata supplied an independent
`and sufficient ground for its judgment. Briefs that argue
`for “reversal” of a court of appeals’ judgment, but that
`address only one of the two independent grounds on
`which that judgment relies, do not provide an argument
`for “reversal.” Not even the Solicitor General addresses
`the alternative ground on which the court of appeals re-
`lied, even as he tells this Court that the court of appeals’
`judgment “should be reversed.” U.S. Br. 34.
`The amici’s silence on res judiciata is especially jar-
`ring given that the State’s res judicata defense is insur-
`mountable — especially on the petitioners’ facial chal-
`lenge to the admitting-privileges requirement, which was
`litigated and lost in the previous HB2 lawsuit. See
`Planned Parenthood of Greater Tex. Surgical Health
`
`
`
`

`
`17
`Servs. v. Abbott, 748 F.3d 583, 595 (5th Cir. 2014). Not
`only is this challenge barred by claim preclusion, it is al-
`so barred by issue preclusion (collateral estoppel) — and
`it is waived because the petitioners never brought a faci-
`al challenge to the admitting-privileges law in the district
`court. The petitioners do not present a serious argument
`to the contrary, Pet. Br. 57–58,2 and their amici present
`no argument at all.
`Second, none of the amici address the severability
`requirements in HB2 or its implementing regulations,
`even though the court of appeals held that these severa-
`bility requirements precluded total, facial invalidation of
`the State’s ASC rules. Pet. App. 25a, 30a, 68a. HB2’s
`severability clause requires the Court to sever and pre-
`serve every valid application of HB2, Pet. App. 200a, and
`the ASC requirements are clearly constitutional as ap-
`plied to second-trimester abortions. See Simopoulos v.
`Virginia, 462 U.S. 506 (1983); Resp. Br. 45, 50–52. HB2’s
`implementing rules further provide that “every provi-
`sion, section, subsection, sentence, clause, phrase, or
`word in this chapter and each application of the provi-
`sions of this chapter remain severable.” 25 Tex. Admin.
`Code § 139.9(b). And the petitioners failed to provide ev-
`
`
`2 The petitioners think that any factual change in the State’s abor-
`tion market allows abortion providers to reinstitute previously re-
`jected facial challenges to abortion regulations — a test that would
`effectively make res judicata inapplicable in abortion cases. Pet. Br.
`57 (“If, as here, a claim rests on facts that developed after the entry
`of judgment in a prior case, the claim is not barred by the prior
`judgment and a court may award any remedy that is appropriate.”).
`
`
`
`

`
`18
`that any provision
`the operational-
`in
`idence
`requirements section of the State’s ASC rules would
`cause any abortion clinic to clo

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