IN THE SUPREME COURT OF THE UNITED STATES. No Petitioners,

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1 IN THE SUPREME COURT OF THE UNITED STATES No HAMILTON BURGER, in his official capacity as Attorney General of the State of Greene, and, MAGGIE HOULIHAN, in her official capacity as the Executive Director of Greene Medical Board, and Ben Pearce, in his official capacity as Secretary of the Greene Department of Health and Human Services, Petitioners, v. DELIBERATE PARENTING OF GREENE, MARK WELBY, M.D., and DOUGLAS ROSS, M.D., each on behalf of themselves and their patients, Respondents, ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONERS Team 27 Counsel for Petitioners State of Greene March 5,

2 QUESTION PRESENTED 1) Whether a speech and display provision requiring doctors to perform an ultrasound and describe in medical, factual terms the images displayed by the ultrasound prior to an abortion in the interest of informed consent and thoroughly assessed decision-making on the part of a patient violates the First Amendment protection of free speech. 2) Whether a hospital admitting privilege requirement mandating that abortion providers have certified access to a hospital within thirty miles of the abortion clinic and can perform Ob/Gyn services violates the Fourteenth Amendment due process rights of the providers patients. i

3 TABLE OF CONTENTS Question Presented.. i Table of Contents... ii Tables of Authorities..iv Statement of the Case....vii Summary of the Argument. ix Argument.1 I. THE SPEECH AND DISPLAY PROVISION OF THE STATE OF GREENE S WOMEN S HEALTH ADVANCEMENT AND RIGHT TO KNOW ACT DOES NOT VIOLATE THE PLAINTIFF S RIGHT TO FREEDOM OF SPEECH AS IT IS A REASONABLE STATE REGULATION OF THE MEDICAL PROFESSION....1 A. The speech and display provision should be subjected to rational basis scrutiny as it is a reasonable regulation of the medical profession and is not overtly ideological....1 B. Under rational basis scrutiny, the speech and display provision should be upheld, but even if the Court uses the heightened intermediate scrutiny standard from the lower court s decision, the provision should still be upheld as advancing compelling interests in a way proportional to the burden on speech...4 C. If the Court were to uphold strict scrutiny, it should find that the speech and display provision is serving compelling interests and is narrowly tailored to minimize any burden on free speech..6 D. Policy concerns regarding a limitation on access to abortions are unfounded..8 II. THE HOSPITAL ADMITTING PRIVILEGES REQUIREMENT OF THE WOMEN S HEALTH ADVANCEMENT AND RIGHT TO KNOW ACT DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION..10 A. The Fourteenth Circuit ignored over seventy-five years of precedent recognizing a broad reading of the rational speculation standard for permissible acts by state legislatures 11 ii

4 B. Even if the Fourteenth Circuit was correct to apply a narrow interpretation of the rational speculation standard, the hospital admitting privileges requirement satisfies rational basis review..15 i. Respondents fail to overcome their strong burden of persuasion as a facial challenge to the Act.16 ii. The Act has a rational basis for requiring abortion providers to obtain hospital admitting privileges 17 C. The Act does not place an undue burden on women seeking abortions because the Act passes the purpose and effects prongs of Casey s undue burden Test..21 i. Plaintiffs failed to overcome the no set of circumstances standard and failed to demonstrate that there was any pretext in the State s purpose for enacting the legislation 22 ii. The effects of the hospital admitting privilege requirement do not rise to the level of an undue burden 24 (a) The hospital admitting privilege does not subject women to significant health risks...25 (b) The hospital admitting privilege merely imposes permissible burdens on women s access to abortion.26 Conclusion.30 iii

5 TABLE OF AUTHORITIES Cases Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006)... 25,26 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)....1 Carmichael v. So. Coal & Coke Co., 301 U.S. 495 (1937) City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)...17 City of New Orleans v. Dukes, 427 U.S. 297 (1976) Dent v. West Virginia, 129 U.S. 114 (1889)....1 F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307 (1993)...11,13,14 Gonzales v. Carhart, 550 U.S. 124 (2007).....passim Greenwood v. U.S., 350 U.S. 366 (1956)..21 Harris v. McRae, 448 U.S. 297 (1980)...passim Heller v. Doe by Doe, 509 U.S. 312 (1993) Jacobson v. Massachusetts, 197 U.S. 11 (1905) 17 Jones v. U.S., 463 U.S. 354 (1983) K.P. v. LeBlanc, 729 F.3d 427 (5th Cir. 2013)..28 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973).. 16 Lowe v. SEC, 472 U.S. 181 (1985)..1 Lyng v. Automobile Workers, 485 U.S. 360 (1988)...14 Maher v. Roe, 432 U.S. 464 (1977)...12 Mazurek v. Armstrong, 520 U.S. 968 (1997)...15,16,22 Nat l Paint & Coatings Ass n v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995).. 21 Planned Parenthood v. Casey, 505 U.S. 833 (1992)..passim iv

6 Planned Parenthood v. Danforth, 428 U.S. 52 (1976).18,25 Planned Parenthood Minn. v. Rounds, 530 F.3d 724 (8th Cir. 2008)...6,8 Planned Parenthood of Del. v. Brady, 250 F. Supp. 2d 405 (D. Del. 2003).24 Planned Parenthood of Greater Texas Surgical Health Services v. Abbott ( Abbott I ), 734 F.3d 406 (5th Cir. 2013) ,17,28 Planned Parenthood of Greater Texas Surgical Health Services v. Abbott ( Abbott II ), 748 F.3d 583 (5th Cir. 2014)..18,21,28 Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000)...24 Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013) 14,21 Roe v. Wade, 410 U.S. 113 (1973)..9,11 Sorrell v. IMS Health Inc., 131 S.Ct (2011)...1,5 Stenberg v. Carhart, 530 U.S. 914 (2000).24 Summit Med. Ctr. of Ala., Inc. v. Riley, 318 F. Supp. 2d 1109 (M.D. Ala. 2003).23 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).1 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980)...13 U.S. v. Carolene Products Co., 304 U.S. 144 (1938) U.S. v. Raines, 362 U.S. 17 (1960) U.S. v. Salerno, 481 U.S. 739 (1987)...22,23,24 Vance v. Bradley, 440 U.S. 93 (1979)...13 Washington v. Davis, 426 U.S. 229 (1976) Whalen v. Roe, 429 U.S. 589 (1977)..25 Williamson v. Lee Optical, 348 U.S. 483 (1955)..13,14 Women s Health Center of West Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989)..18 v

7 Secondary Authorities 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2948 (2d ed.1995).16 Abortion Clinic Guide, [[perma.cc/vw2b-t5kq]...25 A.J. Stone, III, Consti-tortion: Tort Law As an End-Run Around Abortion Rights After Planned Parenthood v. Casey, 8 AM. U.J. GENDER SOC. POL Y & L. 471 (2000) 14 Catherine Maggio Schmucker, Note, Everything is Bigger in Texas Especially the Abortion Debate: Why Texas House Bill 2 Can Survive a Constitutional Challenge and How It Should Change the Abortion Analysis, 19 TEX. REV. L. & POL. 101 (Fall 2014).19,27 John L. Horan, Note, A Jurisprudence of Doubt: Planned Parenthood v. Casey, 26 CREIGHTON L. REV. 479 (1993). 20 Joint Comm'n Ctr. for Transforming Healthcare, Facts about the Hand-Off Communications Project 1-2, (2013), available at Sheet.pdf [perma.cc/y8p3-y7y4]. 18 Kathryn Kolbert & Andrea Miller, Legal Strategies for Abortion Rights in the Twenty-First Century, in ABORTION WARS: A HALF CENTURY OF STRUGGLE (Rick Solinger ed., 1998) 12 Linda J. Wharton et al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 YALE J.L. & FEMINISM 317 (2006) 23 Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939 (2007). 8 S.D. Task Force to Study Abortion, Report of the S.D. Task Force to Study Abortion (2005).. 9 Statutes: G.S.A (1)(A)...vii G.S.A (1)(B)...vii G.S.A (b) vii vi

8 STATEMENT OF THE CASE STATEMENT OF THE FACTS In 2012, the Green General Assembly passed the Women s Health Advancement and Right to Know Act. (R. at 3.) The Act regulated the steps that must precede an abortion by adding a speech and display provision requiring health care providers to perform an ultrasound at least four and no more than seventy-two hours before an abortion while displaying the provisions and describing what is seen on them. Id. at 3 4. The Act allows a woman to avert her eyes and refuse to listen, and has an exception for medical emergency. Id. at 4. In addition, the Act contains a requirement that providers must gain the right to admit patients at a hospital thirty miles away or less from where the abortion is performed. Id. at 5; G.S.A (1)(A). The Act further requires that the physician be professionally trained to provide obstetrical or gynecological ( Ob/Gyn ) health care services. G.S.A (1)(B). Finally, the Act criminalizes a physician s failure to comply with the Act as a Class A misdemeanor punishable by a fine only, not to exceed $4,000. G.S.A (b). Several Greene physicians and health care providers filed suit on behalf of themselves and their patients against the speech and display provision and the admitting privileges requirement on First and Fourteenth Amendment grounds. Id. at 3. PROCEDURAL HISTORY Both parties moved for summary judgment and the District Court for the Northern District of Greene held that both the speech and display provision and the admitting privileges requirement violate the First and Fourteenth Amendment respectfully. Id. at 6. The District Court entered a permanent injunction. Id. Both parties appealed to the United States Court of Appeals for the Fourteenth Circuit. Id. The Court of Appeals affirmed the decision with Judge vii

9 Monroe dissenting. Id. at 16. The Supreme Court granted a writ of certiorari on both issues. Id. at 25. viii

10 SUMMARY OF THE ARGUMENT The speech and display provision should be upheld as it constitutes reasonable state regulation of the medical profession. The provision advances significant state interests in informed consent before abortions are undertaken, protecting fetal health from under-informed abortions and preventing psychological harm resulting from an abortion without all the relevant information. The provisions are not ideological in nature as they are the epitome of factual, nonmisleading and relevant information. The doctor performs an ultrasound and simply describes physically what is seen on the ultrasound. No opinions on abortion are offered, the doctor is free to offer his own words and opinions and the facts are simply describing what the woman is having removed from her. The law is designed to have women reassess their decision to have an abortion, but all information is meant to encourage reassessment with the new facts in mind. The provisions fall under cases like Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality opinion) (upholding informed consent as far as information on fetal development prior to abortion is concerned) and Gonzales v. Carhart, 550 U.S. 124 (2007) (recognizing significant interests in protecting fetal life). For these reasons, only rational basis scrutiny should be applied to non-ideological, medical, factual, and relevant informed consent provisions, such as this one. If, however, the Court adopts heightened rational scrutiny, as the appellate court did, seeing this as compelled commercial speech, then the Court should find that the speech and display provision is serving the compelling interests outline above and the burden of free speech is proportional to those interests. The burden on free speech is minimal as doctors are only required to give facts without any limitations as to what else they surrounding those facts. Women are also permitted to not listen to the doctors and not watch the ultrasound. The burden on speech here is simply giving women information through a medium different from the one in ix

11 Casey, 505 U.S. 833 (1992) (plurality opinion) (pamphlets), but is still mere factual recitation. Furthermore, if the Court decides to apply strict scrutiny, these provisions are still narrowly tailored in being limited to the facts, not restricting speech, and having exceptions for emergencies. Policy concerns also favor upholding these provisions as reports on psychological effects of under-informed abortions have found significant psychological issues afflicting women that regret their abortions and the provisions does not limit access for informed women. Furthermore, the hospital admitting privileges requirement of the Act does not violate Respondents patients due process under the Fourteenth Amendment. To satisfy the standard with regard to restrictions on abortions, a state must show that, first, the Act in question does not pose an undue burden on women seeking to obtain abortions, and second, is rationally related to a legitimate state purpose. The Act is rationally related to the State s legitimate state interests of protecting the health of its medical patients. A legislature s decision may be based on rational speculation unsupported by evidence or empirical data. Accordingly, the Fourteenth Circuit majority failed to apply rational basis review with broad deference to the State s legislative choice. Courts rarely overturn such classifications, provided there is a rational relationship between the disparity of treatment and some legitimate governmental interest, because courts must seek to preserve the proper balance between the expertise of the political process and judicial review. Even if the Fourteenth Circuit did not err in the deference afforded to the State s legislative choice, the Act still rationally relates to its legitimate plenary police powers. The Court has recognized that State legislatures have legitimate interests during a pregnancy in both ensuring the health of the mother and protecting potential human life. Accordingly, a court will not invalidate a state law regulating medicine unless it is clearly an arbitrary regulation. The x

12 State points to myriad state interests in protecting the health of the mother, all which overcome this arbitrary standard. Further, because the Supreme Court has recognized that medical uncertainty does not foreclose the exercise of legislative power in the abortion context (particularly with respect to facial challenges), The Fourteenth Circuit majority s opinion holding that the State s improved treatment explanation is unconvincing wholly ignores the Court s precedent that a court must not invalidate a state legislature s decisions to regulate the medical simply because of medical uncertainty. In addition, because this is a facial challenge, a preliminary injunction should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Here, the record fails to reflect any clear showing by Respondents that fulfills the burden of persuasion. The Act also does not place an undue burden on women seeking an abortion in the State of Greene. For one, Respondents failed to overcome the no set of circumstances standard and failed to demonstrate that there was any pretext in the State s purpose for enacting the legislation. The Casey plurality reiterated that the presence of at least one permissible purpose cancels out any other impermissible purposes, and here, the State has various permissible purposes for its regulation. The appellate court s majority opinion fails to demonstrate that the Act could never be constitutional. Furthermore, the hospital admitting privilege does not subject women to significant health risks nor impose burdens on women that rise to the level of an undue burden. Although government is prohibited from placing obstacles in the path of a woman s right to choose, it need not remove such obstacles that it itself did not create. Thus, the fact that some abortion providers may not meet the requirements imposed by hospitals, as stated earlier, is a product of doctors own lack of competence and not the fault of the State. The burdens that do xi

13 emanate from the Act, such as a maximum drive of one hundred and fifty miles to an abortion clinic, have been deemed constitutionally permissible by the Court in Casey. xii

14 ARGUMENT I. THE SPEECH AND DISPLAY PROVISION OF THE STATE OF GREENE S WOMEN S HEALTH ADVANCEMENT AND RIGHT TO KNOW ACT DOES NOT VIOLATE THE PLAINTIFF S RIGHT TO FREEDOM OF SPEECH AS IT IS A REASONABLE STATE REGULATION OF THE MEDICAL PROFESSION A. The speech and display provision should be subjected to rational basis scrutiny as it is a reasonable regulation of the medical profession and is not overtly ideological It has long been established that States have the right to regulate professions such as medicine. See Dent v. West Virginia, 129 U.S. 114, 122 (1889). One of the most common state regulations of the medical profession is requiring that patients have sufficient information to give meaningful consent to a course of treatment or procedure. See Canterbury v. Spence, 464 F.2d 772, 781 (D.C. Cir. 1972). Indeed, [t]he power of governments to regulate professions is not lost whenever the practice of a profession entails speech. Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in judgment). The case of Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality opinion), decided by a plurality of the Court, found information regarding fetal life to be relevant to informed consent in the context of abortion. However, the lower court relied on Sorrell v. IMS Health Inc., 131 S.Ct (2011) in finding that the speech and display provisions at issue in today s case require heightened, intermediate scrutiny. (R. at 7.) However, this reliance on Sorrell v. IMS Health Inc requires classifying the provision here as being content-based, and indeed the lower court went so far as to call it ideological. (R. at 8.) This is an unfair characterization of the provision, as it is only compelling physicians to give information that allows for a more informed decision on the part of the patient. The provision does not require doctors to offer a perspective on the morality of abortion or the value of fetal life, but to merely describe what is being seen on the ultrasound. This is the epitome of truthful, non-misleading information. Tex. Med. Providers Performing Abortion Servs. v. 1

15 Lakey, 667 F.3d 570, (5th Cir. 2012). The appellate court, in addressing this issue, reasoned that despite being purely factual, the speech and display provision at issue is still ideological as it explicitly promotes a pro-life message by demanding provision of facts that all fall on one side of the abortion debate. (R. at 9.) Indeed, the lower court, in holding the ideological bases of the compelled speech, looked to the fact that the State readily admits that the purpose of this act is to convince women seeking abortion to reassess their decisions. (R. at 8.) However, all informed consent regulations aim to convince patients to reassess their planned course of action. Furthermore, in the case of Casey, the plurality applied nothing resembling strict scrutiny in a case where the State s interest in protecting fetal life was explicitly recognized as a goal of the law. The plurality merely looked at the fact that the compelled speech was nonmisleading, factual, and relevant to an informed decision, thus the physicians right to speak was subject to reasonable regulation. Casey, 505 U.S. 833, 882 (1992) (plurality opinion). It is in the very nature of offering information that you anticipate individuals using that information to reassess their decisions. Naturally, when it comes to procedures such as heart or back surgery, a doctor will have to lay out the risks and benefits of operating compared with those of picking a more conservative alternative, which is where the contention comes in that this law is ideologically driven in that it speaks only to one side of the issue. This, however, mischaracterizes the law in that the law does not compel doctors to speak on the potential psychological damage that can come from regretting an abortion later on in life or even what happens to the fetus during an abortion; it merely requires showing the fetus and describing it. This is an incredibly neutral method to familiarize a woman with the intricacies of the complex decision that she is setting out to make. Furthermore, the implication that the law, in order to be ideologically neutral, has to require physicians to speak to the other side of the 2

16 abortion debate is misguided. Firstly, as said above, the law is not necessarily speaking to a side of the abortion debate, but just giving the woman a complete picture of what she is choosing to terminate with an abortion. Secondly, it is unclear what facts the law must compel a doctor to state in order for it to not be seen as coercive here. It is true that the law could go into all the details of the abortion debate, laying out fetal age, potential for fetal pain, religious arguments and so on and also go on to detail the expenses of raising a child, discuss a lack of sleep when the baby is young and maybe even go as far as to discuss the troublesome teenage years, but that would take a law about simple informed consent and turn it into the kind of ideological hotbed that the Respondents are trying to characterize it as. A plastic surgeon when informing a patient on the risks of a purely elective procedure (which, again, from a medical perspective, abortion is insofar as this law reaches it) is required to tell patients about the risks inherent in surgery, but is not required to give detailed information on the potential social benefits of a nose job. In the same way, this law gives information necessary for informed consent, namely describing what is being aborted in the procedure, the age of the fetus and what organs it has developed, but does not give extraneous information that could be seen as ideological. Indeed, the law on its face is purely factual, and the States admission that they want women seeking abortions to reassess their decisions does not necessarily make the information ideological and content-based, given that reassessment is the natural consequence of new information, and this information is factual and necessary to informed consent. Furthermore, if a woman is comfortable with aborting a fetus and rejecting its potential personhood, then this law in requiring the recitation of facts would lose any potential ideological force that is being argued exists. Thus, while it is true that technically the law compels speech and regulates a profession, it only compels speech to the 3

17 extent necessary for informed consent and it is not a content-based compulsion and should be subjected to rational basis review. B. Under rational basis scrutiny, the speech and display provision should be upheld, but even if the Court uses the heightened intermediate scrutiny standard from the lower court s decision, the provision should still be upheld as advancing compelling interests in a way proportional to the burden on speech Under rational basis review, it is clear that the State has interests that form a rational basis for the speech and display provisions of the law in question. The Casey plurality recognized that ensur[ing] that a woman apprehend the full consequences of her decision was a legitimate interest. Casey, 505 U.S. 833, 882 (1992) (plurality opinion). The plurality went on to state that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. Id. at 883. In this decision, the plurality included in its determination that there were State interests of informed consent being advanced by pamphlets on consequences of abortion, as well as likely gestational age, both the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed and the legitimate goal of protecting the life of the unborn through legislation aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion. Id. at 882. These two interests are not only legitimate, but they are compelling given that the Court s decision in Gonzales v. Carhart, 550 U.S. 124 (2007) stated that [t]he government may use its voice and regulatory authority to show its profound respect for life within the woman, Id. at 128. The Court also recognized that it is a very reasonable conclusion that a woman may suffer psychological consequences if an abortion is made without all relevant information. Id. 4

18 However, if the Court elects to follow intermediate heightened scrutiny as the lower court did, it must come to the same conclusion as it would under rational basis review. This is because the provisions at issue are serving compelling interests and any burden on free speech is entirely proportional to the interests being served. See Sorrell v. IMS Health Inc., 131 S.Ct That the legitimate interests described above are also compelling is hard to dispute for the reasons stated above. The idea that any burden on free speech is disproportionate to those interests should be rejected. The provision only requires doctors to offer non-misleading, factual and relevant information. Furthermore, it does not prevent doctors from making any speech that they want to add to the information being proffered. It also allows patients to avert their eyes and close their ears if they so wish. The burden is clearly minimal in that it requires a few facts to be laid out and nothing more, while allowing complete freedom in wording and supplementary opinions and information. Indeed, the burdens here are not particularly distinct from those that were upheld by the Court s plurality in Casey. The provisions in Casey required disclosure of probably gestational age of the fetus and printed material showing a baby s general prenatal development stages. Casey, 505 U.S. 833 (plurality opinion). The provisions in question here are simply more technologically up-to-date. As opposed to a pamphlet, simply showing the fetus and describing it is not substantially different in kind, but just a different medium. The idea that there is some significant difference between written and spoken words appears arbitrary and using technology to show the specific fetus rather than a pamphlet giving a general idea of how the fetus would look is just making information more accurate, not more burdensome on free speech rights. Indeed the 8th Circuit took this principle even further than we are asking the Court to take it with the provisions in question. The 8th Circuit went as far as upholding the requirement 5

19 to disclose to a woman that her abortion would terminate the life of a whole, separate, unique, living human being with whom the woman has an existing relationship[.] Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 726 (8th Cir. 2008). In doing so, the 8th Circuit relied on Casey and Gonzales as well as the fact that the disclosure requirements offered relevant, non-misleading, factual information supporting informed consent. Id. The Court should not go as far as that decision, given that the language there carries strong ideological weight, but it is a great example to illustrate how entirely devoid of ideological weight the provisions in question before the Court truly are. They make no judgments about the personhood of the fetus, nor do they stress any existing relationship, but they simply describe the fetus. The burden on free speech here is so very minimal that the Court would have to find that interests in informed consent, protection of fetal life, and potential psychological consequences of a regrettable, uninformed abortion on a woman are not at all compelling state interests. Simply put, these interests have all been recognized as significant and compelling, and the burden on free speech is incredibly minimal, especially in the context of the regulation of the medical profession. C. If the Court were to uphold strict scrutiny, it should find that the speech and display provision is serving compelling interests and is narrowly tailored to minimize any burden on free speech If the Court rejects rational basis review, it should find that not only is the burden on free speech not disproportionate to the compelling interests being served by the speech and display provision, but that the provision is narrowly tailored to minimize any burden on free speech. Ultimately, the interests of protecting fetal life from an uninformed abortion and making sure a woman is ready for any unintended psychological consequences that could result from an uninformed abortion require a woman to know exactly what she is choosing to abort. If she is 6

20 not aware of what is being aborted, it raises the odds of regret and psychological consequences later on. Indeed, the plaintiffs in today s case themselves raised concerns that women could be at serious risk of psychological harm from the information (R. at 3.) that the doctor is required to disclose. This simply emphasizes the serious risk of future psychological harm. The plaintiffs are concerned that a woman that has not yet had an abortion may suffer psychological harm just from knowing the detail of the fetus that she is considering aborting. Information about fetuses is everywhere, especially with the proliferation of the internet, so unless we can guarantee a woman will never run into analogous information for the rest of her life, we have to contemplate the significantly greater risk those same women the plaintiffs raised concerns about would be if they received similar information after the abortion. The narrow tailoring is also clear in the purely factual nature of the required disclosures. It is requiring a description of what the woman is choosing to abort and nothing more. The ultrasound is standard procedure and even a standard requirement (not being challenged) for women receiving abortions. All this provision does is ask a doctor to describe what the ultrasound shows, while still allowing full freedom to offer any supplemental information and opinions. The idea that this could be more narrowly tailored by instead offering a pamphlet misses the mark, since that would be relaying the same information through a different medium and not one which necessarily is more or less burdensome. The doctor would still be adopting the information on the pamphlet, and indeed, printing it in the hospital may even give the tacit backing of the entire hospital, and not just the doctor speaking the words. Simply put, making the words spoken rather than written does not show a lack of narrow tailoring. Regardless of which test the Court adopts, the provision in question is serving substantial, compelling governmental interests in protection of fetal life and preventing psychological harm 7

21 resulting from a lack of informed consent by women seeking abortion, and is serving those interests with an extremely narrowly tailored regulation of the medical profession. The Court should therefore uphold the speech and display provision and overturn the decision of the lower court. D. Policy concerns regarding a limitation on access to abortions are unfounded Finally, plaintiffs may argue that even through the first amendment argument favors upholding the speech and display provision at issue that the issue here is one of policy concerns. Indeed, there is a concern that the goal of such regulations is to slowly limit access to abortions, until it can finally be made illegal or practically impossible to legally obtain one. See Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 940 (2007) (stating that anti-abortion advocates have pushed for more stringent informed consent statutes viewing them as temporary tactics to reach the goal of ending abortion in America). However, taking Post as an example for someone that feels these concerns about the potential for informed consent leading to restrictions to abortions, he is dealing with the statute discussed earlier related to the 8th District s decision in Rounds where the doctor is required to tell a woman that she is terminating a unique, living being with whom she has an established relationship and his main concerns deal with the idea of having medical professionals be compelled to say things the community may not regard as medically true or to prevent them from stating things they feel to be medically true. Id. at 944. The informed consent statute at issue before the Court in no way resembles that one. The one the one the Court is dealing with does not compel any dubious medical information to be related to the patient, nor does it prevent the doctor from stating what they understand to be sound medical fact. Indeed, the statute is very narrowly tailored to simply explain to the woman 8

22 exactly what, medically speaking, is being removed from her body. The statute is limited to dimensions and a medical description of the fetus. While we certainly acknowledge that there are those individuals that disagree with legal abortion access in America and would seek to eventually change the law that was established in Roe v. Wade, 410 U.S. 113 (1973), that should not prevent us from being able to objectively judge each individual statute on its merits. Ultimately, as long as the law remains that there is a constitutional right to an abortion, that will not change without an amendment or without the Court explicitly overruling that hearing and anytime states truly attempt to abridge the right, there will be legal avenues for challenging those attempts. This case, however, is not such a case. This case is one where the state s goal is not a conspiracy to lead us down the road to criminalizing abortions, but is simply to make sure that women seeking abortions are fully informed and as best prepared as possible for any potential psychological issues that may result before they make what most people would agree is a very significant decision, medically, emotionally, and psychologically. The idea of the statute before the Court is simply one to make women more informed so they are sure that an abortion is the correct course of action for them before they make the irreversible decision. The psychological concerns here are not simply speculative either. Though the Court found in Gonzales that clearly it was not at all an exceptionable conclusion that a woman not fully informed and consenting to an abortion may later regret it and suffer psychological trauma (Gonzales. At 128), there are also studies behind this common sense conclusion. The South Dakota Task Force to Study Abortion found in its report that 10 20% of women that elected to get abortions over the last several decades suffered adverse, prolonged, post-abortion effects, totaling 130,000 to 260,000 new serious mental health issues in the United States each year. 9

23 S.D. Task Force to Study Abortion, Report of the S.D. Task Force to Study Abortion, 42 (2005). The study that the Report looked at that gave them these findings had controlled for pre-existing psychological problems, used a control group of unintended pregnancies carried to term, and used a large sample size nationally and concluded that abortions do cause a much higher chance of mental trauma, depression, anxiety, parenting difficulties, and that even data from cultures where abortion is normative, confirmed that the psychological harm from abortions results from the abortions themselves and not cultural norms. Id. at 43. None of this is to say that women should not have the right to an abortion, but it is simply to illustrate that the psychological concerns are very real and as such information designed to simply ensure that a very significant decision is made in as fully informed a fashion as possible should not be suspect just because other statutes may interfere with the right to an abortion. Ultimately, the speech and display provision strikes exactly the right balance here. It pushes for a more informed decision without requiring doctors to say anything that is not objective, relevant, medical fact. It does not significantly limit access to abortions and does not force any dubious medical claims for doctors to make. It simply balances concerns in an appropriate manner and gives more information to women before they make a decision that is ultimately theirs and that nothing in the speech and display provision can be seen as taking away from them. II. THE HOSPITAL ADMITTING PRIVILEGES REQUIREMENT OF THE WOMEN S HEALTH ADVANCEMENT AND RIGHT TO KNOW ACT DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION Under existing law as dictated by the Supreme Court regarding substantive due process concerns in the abortion context, before viability, the State may not impose an undue burden, defined as any regulation that has the purpose or effect of creating a substantial obstacle to a 10

24 woman's choice. Casey, 505 U.S. at 878 (plurality opinion). To satisfy the standard with regard to restrictions on abortions, a state must show that, first, the Act in question does not pose an undue burden on women seeking to obtain abortions, and second, is rationally related to a legitimate state purpose. Id. In Gonzales, the Court added that abortion restrictions must also pass rational basis review. 550 U.S. at 158 (holding that the State may ban certain abortion procedures and substitute others provided that it has a rational basis to act, and it does not impose an undue burden (emphasis added)). This precedent is rooted in the Court s nowfamous opinion in Roe v. Wade, in which the Court held that the Fourteenth Amendment's concept of personal liberty encompasses a woman's right to end a pregnancy by abortion. 410 U.S. at 153. The State appeals the ruling by the Fourteenth Circuit that the State s hospital admitting privileges requirement violated Respondents substantive due process. The opinion incorrectly applied rational basis review by neglecting the rational speculation standard. Further, the Fourteenth Circuit majority erred in finding that the hospital admitting privileges requirement constitutes an undue burden when it requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the abortion is performed. For these reasons as explained below, the Court should overrule the Fourteenth Circuit s ruling. A. The Fourteenth Circuit ignored over seventy-five years of precedent recognizing a broad reading of the rational speculation standard for permissible acts by state legislatures A state or municipal legislative choice is not subject, under judicial review, to courtroom fact-finding, and may be based on rational speculation unsupported by evidence or empirical data. See F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307, 315 (1993). This rational speculation standard is not simply a term of art. In determining whether a state legislature has 11

25 imposed an undue burden on a woman s right to choose, the Court has consistently followed Justice Holmes axiom that the appropriate forum for their resolution in a democracy is the legislature. We should not forget that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Maher v. Roe, 432 U.S. 464, (1977) (quoting Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.)). For this reason, the Court has repeatedly used this and similar language because it provides the best safeguard for the states legislatures to act within their broad plenary police powers. See Harris v. McRae, 448 U.S. 297, 325 (1980) (noting that the Constitution does not require legislatures to fine-tune its statutes and can instead speculate on the proper means to encourage childbirth except in the most urgent circumstances ). The Court has stood firm on its Fourteenth Amendment articulation that, unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The statute at issue here implicates no fundamental right. The Court all but decided this in Casey. 505 U.S. at 876 (plurality opinion) ( The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. ); see also Kathryn Kolbert & Andrea Miller, Legal Strategies for Abortion Rights in the Twenty-First Century, in ABORTION WARS: A HALF CENTURY OF STRUGGLE 98 (Rick Solinger ed., 1998) (demonstrating the Supreme Court's stark shift from the strict scrutiny standard supported by Roe to the undue burden standard of Casey, eliminating its qualification as a fundamental right ). 12

26 Consequently, 1 the proper standard of review in this case is rational basis review. Beach, 508 U.S. at 313 ( [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ). While rational basis review examines the reasonableness between the means-ends relationship, once there is a showing of plausible reasons for a legislature s action, the Court s inquiry ends. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). Courts rarely overturn such classifications, provided there is a rational relationship between the disparity of treatment and some legitimate governmental interest. See Heller v. Doe by Doe, 509 U.S. 312, (1993). It is this principal axiom preserving the proper balance between the expertise of the political process and judicial review that has propelled the Court to consistently give its own rational speculation a broad reading. See, e.g., Vance v. Bradley, 440 U.S. 93, 109 (1979) ( Whether we, or the District Court, think Congress was unwise in not choosing a means more precisely related to its primary purpose is irrelevant. ); Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 510 (1937) ( Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function. ). The Court s reference in its often-cited Williamson v. Lee Optical opinion to Chief Justice Waite embodies the core of the rational speculation standard under rational basis review: For protection against abuses by legislatures the people must resort to the polls, not to the courts. 348 U.S. 483, 488 (quoting Munn v. State of Illinois, 94 U.S. 113, 134 (1876)); see 1 In addition, no suspect class is implicated in this case. See U.S. v. Carolene Products Co., 304 U.S. 144, 152 (1938). While such an analysis has yet to be explicated in detail by the Court, the issue of whether or not women should be considered as a suspect class for purposes of Due Process analysis is not at issue in this case. 13

27 also Harris, 448 U.S. at 326 (noting that it is not the justices role to balance competing ideas on social policy). Finally, deferring to state legislatures avoids judicial countermajoritarianism, the circumstance in which, once a law is deemed unconstitutional as a product of judicial review, only a constitutional amendment, or the wisdom of a majority of justices overcoming the strong pull of stare decisis, can rehabilitate the will of the democratic majority of a constituency. (R. at 21.) In addition, the Court reads these statutes with a presumption of validity. See Lyng v. Automobile Workers, 485 U.S. 360, 370 (1988). As such, the Court has found that rational speculation does not have an evidentiary requirement, instead eliminating the need for any evidence to prove the rational connection. See Beach, 508 U.S. at 315 (emphasizing that a legislative may be based on rational speculation unsupported by evidence or empirical data ) (emphasis added)); see also Lee Optical, 348 U.S. at 483; but see Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 786 (7th Cir. 2013). District and circuit courts across the country have similarly read this requirement broadly, upholding decisions by state legislatures that, for example, mandate waiting periods for patients or require patients to receive certain biased material. See A.J. Stone, III, Consti-tortion: Tort Law As an End-Run Around Abortion Rights After Planned Parenthood v. Casey, 8 AM. U.J. GENDER SOC. POL Y & L. 471, 477 (2000). Accordingly, the circuit court overstepped the degree of scrutiny it applied to the State s evidence that eighty percent of significant negative outcomes at emergency rooms relate to difficulties with physician communication and patient handoff. (R. at 14.) Though the lower court noted that the State provided no direct evidence of correlation between admitting privileges and improved communication with patient handoff or that a communication problem 14

28 actually exists between abortion providers and emergency-room physicians, such a charge is irrelevant, given that the Court s broad reading of the rational speculation standard does not require any evidence, direct or otherwise. Id. The circuit court erroneously applied too strict of a rational basis review. The State speculated with reasonable evidence that when abortion providers have privileges at a local hospital, they are more likely to effectively manage patient complications by providing continuity of care and decreasing the likelihood of medical errors. Id. This is all that is needed to satisfy the rational speculation standard. B. Even if the Fourteenth Circuit was correct to apply a narrow interpretation of the rational speculation standard, the hospital admitting privileges requirement satisfies rational basis review The circuit court concluded that the hospital -admitting-privileges requirement has no rational basis. (R. at 14.) The Court s opinion focuses mostly on emergency room treatment of women requiring hospitalization after an abortion. Id. ( Admitting privileges make no difference in the quality of care received by an abortion patient in an emergency room, and abortion patients are treated the same as all other patients who present to an emergency room. ). Such a narrow focus neglects to recognize the long-standing proposition in the Court s handling of abortion cases that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professions, and in the case of abortions, the function may be restricted to physicians. Mazurek v. Armstrong, 520 U.S. 968, 973 (1997). This latitude is rooted in the Court s finding that a State has legitimate interests during a pregnancy in both ensuring the health of the mother and protecting potential human life. Harris, 448 U.S. at 313; see also Planned Parenthood of Greater Texas Surgical Health Services v. Abbott ( Abbott I ), 734 F.3d 406, 411 (5th Cir. 2013) (noting that the State has a 15

29 legitimate concern for maintaining high standards of professional conduct in the practice of medicine). i. Respondents fail to overcome their strong burden of persuasion as a facial challenge to the Act Before addressing the merits of the State s rational basis claim, a threshold matter must be noted. It is well established that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2948, pp (2d ed.1995) (emphasis added) (citations omitted). The Court imposes a heavy burden upon plaintiffs making facial challenges in abortion cases. Gonzales, 550 U.S. at 167 (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). In addition, those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973); see also Casey, 505 U.S. at 884 (plurality opinion) (upholding a provision where there is no evidence on this record that the provision at issue would constitute an undue burden ). Moreover, the Court does not presume unconstitutional legislative intent simply because a statute produces some harmful results, much less do we assume it when the results are harmless, and thus a plaintiff may not merely point to possible harmful effects in order to make a showing of unconstitutionality. Mazurek, 520 U.S. at 972; see also Washington v. Davis, 426 U.S. 229, 246 (1976). Here, the Record reflects no demonstration by Respondents that they have overcome the burden of persuasion. The State provides numerous reasons why the Act has a rational connection to ensuring the health of the mother and alternatively to protecting potential human life. (R. at 14.) The Record fails to reflect any clear showing by Respondents that fulfills the 16

30 burden of persuasion. The circuit court opinion demonstrates simply that the majority was unconvinc[ed] by the State s explanations for the connections between the statute and its governmental interest. (R. at 14.) Thus, Respondents have failed to overcome their burden. ii. The Act has a rational basis for requiring abortion providers to obtain hospital admitting privileges The admitting privileges requirement satisfies rational basis review. The State has a legitimate interest in protecting the health of the mother. See Gonzales, 550 U.S. at 157 (treating protection of the health of the mother as a legitimate interest of the state); Abbott I, 734 F.3d 406, (noting that states are constitutionally permitted to protect the health of the mother in the abortion context through the state s police powers of regulating medicine in hospitals). In enacting abortion regulations, states are not limited to considering only interests related to the health of the mother and the fetus, but instead retain the independent interest and right of regulating the medical profession. Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). Accordingly, a court will not invalidate a state law regulating medicine unless it is clearly an arbitrary regulation. Id. at Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. Gonzales, 550 U.S. at 158. The State points to myriad state interests in protecting the health of the mother, all which overcome this arbitrary standard as mentioned above. For one, the State points to improved treatment and maintenance of general standards of care that will result from the hospital admitting privileges regulation, buttressing their overall effort to maintain safety for women. (R. at 14.); see City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, (1983) ( [A] [s]tate may properly assert important interests in safeguarding health [and] in 17