No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Case: 13-60599 Document: 00512459118 00512455344 Page: 1 Date Filed: 12/03/2013 No. 13-60599 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MARY CURRIER, M.D., M.P.H., in her official capacity as State Health Officer of the Mississippi Department of Health, et al., Appellants, v. JACKSON WOMEN S HEALTH ORGANIZATION et al., Appellees. On Appeal from the United States District Court for the Southern District of Mississippi, No. 3:12-cv-00436-DPJ-FKB BRIEF OF GOVERNOR PHIL BRYANT AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS AND REVERSAL Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 jack.wilson@governor.ms.gov Counsel for Governor Bryant

Case: 13-60599 Document: 00512459118 00512455344 Page: 2 Date Filed: 12/03/2013 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii TABLE OF AUTHORITIES... ii IDENTITY AND INTEREST OF THE AMICUS CURIAE... 1 BACKGROUND... 2 I. The Admitting-Privileges Requirement Simply Holds Abortion Facilities To The Same Standard As Other Outpatient Surgical Facilities... 2 II. Upon Signing House Bill 1390 Into Law, Governor Bryant Reiterated His General Opposition To Abortion While Also Citing The Health Benefits Of This Law... 6 ARGUMENT... 8 Summary of Argument... 8 I. Plaintiffs Have Challenged The Admitting-Privileges Requirement On Its Face, Not As Applied.... 9 II. III. This Court s Recent Opinion In Abbott Makes Clear That The Admitting- Privileges Requirement Furthers A Legitimate State Interest And Does Not Impose An Undue Burden.... 16 Gonzales v. Carhart Reaffirms That The Constitution Does Not Entitle Plaintiffs To Special Exemptions From Generally Applicable Regulations Of The Medical Profession.... 20 CONCLUSION... 22 i

Case: 13-60599 Document: 00512459118 00512455344 Page: 3 Date Filed: 12/03/2013 TABLE OF AUTHORITIES Cases Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996)... 15 Carter v. Luminant Power Servs. Co., 714 F.3d 268 (5th Cir. 2013)... 14 Castilleja v. So. Pac. Co., 445 F.2d 183 (5th Cir. 1971)... 19 Citizens United v. F.E.C., 558 U.S. 310 (2010)... 15 Deen v. Darosa, 414 F.3d 731 (7th Cir. 2005)... 14 Equitable Life Assurance Soc y of U.S. v. MacGill, 551 F.2d 978 (5th Cir. 1977)... 14 F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307 (1993)... 17 Gonzales v. Carhart, 550 U.S. 124 (2007)...passim Greenville Women s Clinic v. Comm r, S.C. Dep t of Health & Envtl. Control, 317 F.3d 357 (4th Cir. 2002), cert. denied, 538 U.S. 1008 (2003)... 5, 17 Harris v. McRae, 448 U.S. 297 (1980)... 10 Hood ex rel. State Tobacco Litig., 958 So. 2d 790 (Miss. 2007)... 1 Kansas v. Hendricks, 521 U.S. 346 (1997)... 20 Mazurek v. Armstrong, 520 U.S. 968 (1997)... 8, 21 ii

Case: 13-60599 Document: 00512459118 00512455344 Page: 4 Date Filed: 12/03/2013 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991)... 15 Nat l Advertising Co. v. City of Rolling Meadows, 789 F.2d 571 (7th Cir. 1986)... 14 Orloff v. Willoughby, 345 U.S. 83 (1953)... 14 Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984)... 14, 15 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, --- F.3d ----, 2013 WL 5857853 (5th Cir. Oct. 31, 2013), application to vacate stay denied --- S. Ct. ----, 2013 WL 6080269 (Nov. 19, 2013)...passim Planned Parenthood of Ind., Inc. v. Comm r of Ind. State Dep t of Health, 699 F.3d 962 (7th Cir. 2012)... 11 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)...passim Roe v. Wade, 410 U.S. 113 (1973)... 6, 21 Sanford s Estate v. CIR, 308 U.S. 39 (1939)... 14 Singleton v. Wulff, 428 U.S. 106 (1976)... 10 State v. McPhail, 180 So. 387 (Miss. 1938)... 1 TI Fed. Credit Union v. DelBonis, 72 F.3d 921 (1st Cir. 1995)... 14 U.S. Nat l Bank of Ore. v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)... 14 iii

Case: 13-60599 Document: 00512459118 00512455344 Page: 5 Date Filed: 12/03/2013 United States v. Guest, 383 U.S. 745 (1966)... 19 Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013)... 13 Whalen v. Roe, 429 U.S. 589 (1977)... 10 Women s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989)... 2, 8, 17, 21 Constitutional Provisions, Statutes, Rules, and Regulations Fed. R. App. P. 29... 1 Miss. Admin. Code 15-16-1:42.9.7... 3 Miss. Code Ann. 41-75-1... 2, 3, 4, 16 Miss. Code Ann. 41-75-3... 2, 7 MISS. CONST. art. 5, 123... 1 MISS. CONST. art. 14, 268... 1 Miss. Gen. Laws 2005, Ch. 478 (S.B. No. 2883)... 3 Miss. Gen. Laws 2012, Ch. 331 (H.B. No. 1390)... 1, 4 Tex. Health & Safety Code 171.0031... 16 Other Materials Alabama Department of Public Health, Health Care Facilities Directory, at http://www.adph.org/healthcarefacilities/... 19 Mississippi State Department of Health, Mississippi Statistically Automated Health Resource System, at http://mstahrs.msdh.ms.gov/forms/pregtable.html, and http://mstahrs.msdh.ms.gov/help/preghelp.html... 18 iv

Case: 13-60599 Document: 00512459118 00512455344 Page: 6 Date Filed: 12/03/2013 Mississippi State Department of Health, 2012 Vital Statistics, at p.177 tbl.25, available at http://msdh.ms.gov/phs/2012/bulletin/vr2012.pdf... 18 Louisiana Department of Health & Hospitals, at http://dhh.louisiana.gov/index.cfm/directory/category/276... 19 Planned Parenthood, Find a Health Center, at http://www.plannedparenthood.org/... 19 Press Release, Governor Phil Bryant Signs House Bill 1390, Apr. 16, 2012, available at http://www.governorbryant.com/governor-phil-bryant-signs -house-bill-1390/... 7 v

Case: 13-60599 Document: 00512459118 00512455344 Page: 7 Date Filed: 12/03/2013 IDENTITY AND INTEREST OF THE AMICUS CURIAE 1 As chief executive of the State of Mississippi, Governor Bryant has a substantial and legitimate interest in defending the constitutionality of Mississippi s laws and seeing that they are faithfully executed. The Governor s paramount obligation to faithfully support the Constitution of the United States and the Constitution of the State of Mississippi, MISS. CONST. art. 14, 268, would have required him to veto the bill at issue in this appeal 2 if he believed that it violated either Constitution. Having reviewed the legislation and determined that it was both constitutional and an appropriate regulation of the medical profession, Governor Bryant signed it into law and now has a constitutional duty to see that it is faithfully executed. MISS. CONST. art. 5, 123. 3 Governor Bryant submits that this brief is desirable and relevant to this appeal, see Fed. R. App. P. 29(b)(2), because it highlights what he considered the most significant proof that the law is constitutional, namely, that it merely holds abortion clinics to the same legitimate health and safety standard as other types of 1 All parties have consented to the filing of this brief. No party s counsel authored this brief in whole or in part. No party or party s counsel or any other person contributed money intended to fund the preparation or submission of the brief. See Fed. R. App. P. 29(a) & (c)(5). 2 3 Miss. Gen. Laws 2012, Ch. 331 (H.B. No. 1390). See Hood ex rel. State Tobacco Litig., 958 So. 2d 790, 804 (Miss. 2007) ( [T]he Governor is under a solemn duty to act to assure faithful execution of our laws. ); State v. McPhail, 180 So. 387, 389 (Miss. 1938) ( The constitutional and statutory provisions requiring the Governor to see that the laws are executed have no obscure or technical meaning; neither were they intended as a mere verbal adornment of his office. They mean what is in the ordinary import of the language used, to wit, that the laws shall be carried into effect, that they shall be enforced. ). 1

Case: 13-60599 Document: 00512459118 00512455344 Page: 8 Date Filed: 12/03/2013 outpatient surgical facilities. As the U.S. Supreme Court has held, the Constitution does not elevate [abortion doctors ] status above other physicians in the medical community. Gonzales v. Carhart, 550 U.S. 124, 163 (2007). Therefore, legitimate state regulation of surgical procedures is not rendered unconstitutional because it is specifically applied to abortion. Women s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989). The Constitution simply does not entitle abortion doctors to special exemptions from legitimate state medical regulations. Governor Bryant s interest in this appeal is in protecting the State s authority to enforce such regulations. BACKGROUND I. The Admitting-Privileges Requirement Simply Holds Abortion Facilities To The Same Standard As Other Outpatient Surgical Facilities Chapter 75 of Title 41 of the Mississippi Code establishes health and safety standards for both ambulatory surgical facilities and abortion facilities, such as the plaintiff clinic. Miss. Code Ann. 41-75-3. An ambulatory surgical facility is an outpatient surgical facility. 4 That is, it is a facility at which, much like an abortion facility, the patient arrives for a surgery and expect[s] to be discharged on the same day. Id., 41-75-1(d). An abortion facility is, as its name 4 Id., 41-75-1(a) ( Ambulatory surgical facility means [an] institution that is primarily established for the purpose of providing elective surgical treatment of outpatients whose recovery, under normal and routine circumstances, will not require inpatient care. ). 2

Case: 13-60599 Document: 00512459118 00512455344 Page: 9 Date Filed: 12/03/2013 indicates, a facility operating substantially for the purpose of performing abortions. Id., 41-75-1(f). Recognizing that an abortion facility is simply an outpatient surgical facility with a very unique purpose, Mississippi law has provided since 2005 that Level I abortion facilities[ 5 ] shall be required to meet minimum standards for abortion facilities and minimum standards for ambulatory surgical facilities as established by the [Mississippi State Department of Health]. Id., 41-75-1, as amended by Miss. Gen. Laws 2005, Ch. 478, 1 (S.B. No. 2883). Despite the Legislature s expression of intent that abortion facilities should comply with the requirements applicable to ambulatory surgical facilities, the plaintiff clinic was not held to that standard in full for the next seven years. During that time, all physicians associated with ambulatory surgical facilities were required to have admitting privileges at a local hospital. See Miss. Admin. Code 15-16-1:42.9.7. However, the same regulation required only one physician member performing abortion procedures in the facility [to] have admitting privileges in at least one local hospital. Id. (emphasis added). House Bill 1390, enacted during the State s 2012 legislative session, amended Miss. Code Ann. 41-75-1(f) to close this regulatory loophole that had exempted abortion facilities from a standard generally applicable to the broader 5 The plaintiff clinic is a Level 1 facility. Only Level 1 facilities may perform abortions after the first trimester. Miss. Code Ann. 41-75-1(e). 3

Case: 13-60599 Document: 00512459118 00512455344 Page: 10 Date Filed: 12/03/2013 class of outpatient surgical facilities. Miss. Gen. Laws 2012, Ch. 331 (H.B. No. 1390). 6 The bill simply requires as was already required of all other outpatient facilities that [a]ll physicians associated with the abortion facility must have admitting privileges at a local hospital. As discussed infra, the Constitution permits a State to apply such general regulations of surgical procedures to abortion facilities. Abortion facilities are not constitutionally entitled to special exemptions from such laws. Moreover, as explained in detail by Dr. John Thorp 7 and Dr. James Anderson, 8 the admitting-privileges requirement serves valid and legitimate medical purposes in the abortion context, just as it always has with respect to outpatient surgeries generally. Termination of a pregnancy is not a benign medical procedure. In some cases, serious complications, even life-threatening ones, arise and necessitate optimal and evidence-based treatment. 9 When the 6 The bill also amended 41-75-1(f) to provide that [a]ll physicians associated with an abortion facility must be board certified or eligible in obstetrics and gynecology, and a staff member trained in CPR shall always be present at the abortion facility when it is open. Plaintiffs have challenged the board-certification requirement, but it is not at issue in this appeal. 7 Dr. Thorp is a Distinguished Professor of Obstetrics and Gynecology (OB/GYN) at the University of North Carolina (UNC-Chapel Hill) School of Medicine and a Professor in the Department of Maternal and Child Health at the UNC-Chapel Hill School of Public Health. He teaches both medical students and residents in OB/GYN and has administrative oversight over abortion services at the UNC-Chapel Hill academic health center. See Doc. 20-1, 3. 8 Dr. Anderson has been a clinical professor in the Department of Family Practice at the Medical College of Virginia (Virginia Commonwealth University) since 1995. Doc. 20-2, 2. He has been a practicing emergency room physician for over twenty-two years. Id., 1. 9 Doc. 20-1, 21; accord Doc. 20-2, 12 15 (describing serious and life-threatening potential complications from abortions). 4

Case: 13-60599 Document: 00512459118 00512455344 Page: 11 Date Filed: 12/03/2013 doctor who performs an abortion has admitting and treating privileges at a local hospital, he or she is more likely to effectively manage patient complications by providing continuity of care and decrease the likelihood of medical errors. 10 Among other potential issues, medication errors resulting from either incomplete medication history taken at admission or from inadequate communication between community and hospital caregivers are one of the leading causes of patient harm in hospitals, often result[ing] in subsequent[] adverse drug events and potentially life-threatening situations for patients. 11 In addition, the admittingprivileges requirement ensures that a specialist will be available to treat complications, something that many emergency rooms cannot provide. 12 The State certainly has a legitimate interest in taking steps to mitigate risks such as these. Indeed, as the Fourth Circuit put it, requirements of having admitting privileges at local hospitals are obviously beneficial to patients. Greenville Women s Clinic v. Comm r, S.C. Dep t of Health & Envtl. Control, 317 F.3d 357, 363 (4th Cir. 2002) (emphasis added), cert. denied, 538 U.S. 1008 (2003). 10 Doc. 20-1, 23; accord Doc. 20-2, 10 11 (explaining that an admitting-privileges requirement maintains continuity of care that ensures better care and minimizes time delays for treatment of critical conditions and that discontinuity of care can have life-threatening implications ). 11 12 Doc. 20-1, 23. Id., 24 ( Nationally, 73% of emergency departments report inadequate on-call coverage by specialist physicians, including obstetricians/gynecologists who are particularly difficult to secure. ). 5

Case: 13-60599 Document: 00512459118 00512455344 Page: 12 Date Filed: 12/03/2013 II. Upon Signing House Bill 1390 Into Law, Governor Bryant Reiterated His General Opposition To Abortion While Also Citing The Health Benefits Of This Law Given that plaintiffs have at times sought to make the public statements of Governor Bryant an issue in this lawsuit, it is necessary to place those statements in proper context. Governor Bryant has long made clear that he is pro-life and opposed to abortion. He believes that Roe v. Wade was wrongly decided and should be overruled because nothing in the Constitution grants a right to end the life of an unborn child. That idea is not just wrong but a perversion of the concept of liberty upon which this Nation was founded. Governor Bryant has said all this for years. Accordingly, it should be no surprise to anyone that he has vowed to continue to work to make Mississippi abortion-free. Pls. Compl., Doc. 1, 19; Pls. Am. Compl., Doc. No. 30, 24 (quoting Phil West, Mississippi Senate Passes Abortion Regulation Bill, THE COMMERCIAL APPEAL, Apr. 4, 2012). Contrary to plaintiffs suggestions, however, that comment lacks legal significance. To begin with, Governor Bryant also made clear that he supports the law at issue in this case for public health reasons. Indeed, in the very article selectively quoted in the Complaint and Amended Complaint, Governor Bryant is first quoted as stating that [t]his legislation is an important step to strengthening abortion regulations and protecting the health and safety of women. Exh. E to 6

Case: 13-60599 Document: 00512459118 00512455344 Page: 13 Date Filed: 12/03/2013 Pls. Am. Compl., Doc. 30-5 (emphasis added). The Governor s statement upon signing the bill similarly reiterated his general opposition to abortion while at the same time citing the public health reasons for this law: I believe that all human life is precious, and as governor, I will work to ensure that the lives of the born and unborn are protected in Mississippi. This bill requires all physicians associated with an abortion clinic in Mississippi to be board-certified or eligible in obstetrics and gynecology. To further protect patient safety in the event of a complication during the procedure, this bill also requires the physician to have staff and admitting privileges at a local hospital. 13 Governor Bryant s statements regarding House Bill 1390 are consistent with the overall legislative purpose of Chapter 75 of Title 41 of the Mississippi Code: to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of ambulatory surgical facilities and abortion facilities which will ensure safe, sanitary, and reasonably adequate care of individuals in such facilities. Miss. Code Ann. 41-75-3. Moreover, the Governor s statements have no effect on the burden, if any, that an admitting-privileges requirement imposes on the right to define one s own concept of existence, of meaning, of the universe, and of the mystery of human life. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Given 13 Press Release, Governor Phil Bryant Signs House Bill 1390, Apr. 16, 2012, available at http://www.governorbryant.com/governor-phil-bryant-signs-house-bill-1390/. 7

Case: 13-60599 Document: 00512459118 00512455344 Page: 14 Date Filed: 12/03/2013 the plainly rational and legitimate medical reasons for the law, Governor Bryant s general opposition to abortion cannot render the law unconstitutional. 14 That plaintiffs feel compelled to rely on such comments as evidence only speaks to the fundamental weakness of their claim. ARGUMENT Summary of Argument The admitting-privileges requirement furthers a legitimate state interest in continuity of patient care. This valid regulation of the medical profession previously served and continues to serve that purpose in all other outpatient surgical facilities. House Bill 1390 merely extends the requirement to abortion facilities. Such equal treatment of abortion doctors is constitutionally permissible. The Constitution does not elevate their status above other physicians in the medical community, Gonzales v. Carhart, 550 U.S. 124, 163 (2007), or entitle to them special exemptions from legitimate state regulation of surgical procedures, Women s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989). The district court s determination that the requirement nonetheless violates or likely violates the Constitution seems to rest on the flawed premise that any 14 Cf. Mazurek v. Armstrong, 520 U.S. 968, 973 (1997) ( [T]hat an anti-abortion group drafted the law says nothing significant about the legislature s purpose in passing it. ); see also id. at 972 (questioning the correctness of the premise that a law s purpose can render it invalid even if it does not impose an undue burden in practice). 8

Case: 13-60599 Document: 00512459118 00512455344 Page: 15 Date Filed: 12/03/2013 licensing standard that the plaintiff clinic cannot meet must be unconstitutional unless, perhaps, the State can show that the requirement is, in some undefined sense and to some undefined degree, necessary. Doc. 131 at 4. The district court s opinion also mischaracterized the plaintiffs challenge to the requirement as as applied rather than facial, which led it to apply the wrong legal standards and ultimately to the wrong result. Under the correct standards including this Court s recent opinion permitting enforcement of Texas s substantively identical admitting-privileges requirement 15 and the Supreme Court s decision in Gonzales v. Carhart the order granting a preliminary injunction must be reversed. I. Plaintiffs Have Challenged The Admitting-Privileges Requirement On Its Face, Not As Applied. The district court erroneously characterized plaintiffs challenge to the admitting privileges requirement as an as-applied challenge rather than a facial one. Abortion doctors and clinics such as plaintiffs lack any freestanding constitutional right to perform abortions and, as such, may assert only their patients rights. Therefore, a true as-applied challenge to an abortion regulation must identify discrete and well-defined instances in which patients rights would be unconstitutionally burdened by the law. Gonzales, 550 U.S. at 167. Plaintiffs 15 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, --- F.3d ----, 2013 WL 5857853 (5th Cir. Oct. 31, 2013), application to vacate stay denied --- S. Ct. ----, 2013 WL 6080269 (Nov. 19, 2013). 9

Case: 13-60599 Document: 00512459118 00512455344 Page: 16 Date Filed: 12/03/2013 did not do so in this case but instead sought to block any and all applications of the law a classic facial challenge. [T]he general rule is that a litigant may only assert his own constitutional rights. McGowan v. Maryland, 366 U.S. 420, 429 (1961) (quotation marks omitted). Abortion doctors and facilities such as plaintiffs do not have a constitutional right to carry out abortions. In this context, however, the Supreme Court has made an exception to the general rule that one may not assert the constitutional rights of others, holding that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision. Singleton v. Wulff, 428 U.S. 106, 118 (1976) (plurality opinion) (emphasis added). An important corollary of this special rule of third-party standing is that while abortion doctors and facilities may have standing to challenge abortion regulations, their constitutional claims are necessarily and strictly derivative of the rights of their patients. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) ( Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman s position. ); Harris v. McRae, 448 U.S. 297, 318 n.21 (1980) ( the constitutional entitlement of a physician [to perform a government-funded abortion] is no broader than that of his patient to obtain one); Whalen v. Roe, 429 U.S. 589, 604 (1977) 10

Case: 13-60599 Document: 00512459118 00512455344 Page: 17 Date Filed: 12/03/2013 ( the doctors claim is derivative from, and therefore no stronger than, the patients own constitutional right of privacy); Planned Parenthood of Ind., Inc. v. Comm r of Ind. State Dep t of Health, 699 F.3d 962, 987 (7th Cir. 2012) ( Under existing precedent any protection for Planned Parenthood as an abortion provider is derivative of the woman s position. (quoting Casey)), cert. denied, 133 S. Ct. 2738 (2013). Therefore, an abortion facility s claim is no broader or stronger than that of its patients. In addition, the facility must show that the law imposes an unconstitutional burden on its patients rights not just that the law is somehow a burden or inconvenience to the clinic or its doctors. The purely derivative nature of abortion clinics and doctors claims is also of critical importance to the question whether a challenge to law regulating abortion is facial or as-applied. Because abortion providers have no constitutional right to carry out abortions and may sue only to vindicate whatever rights their patients possess, a true as-applied challenge is not simply one that tests the law as applied to whatever clinics or doctors happen to be the named plaintiffs in the lawsuit. Rather, the Supreme Court has held that an as-applied challenge to a law regulating abortions must identify discrete and well-defined instances in which patients rights would be unconstitutionally burdened. Gonzales, 550 U.S. at 167. No such as-applied challenge has been made in this case. Plaintiffs evidence has consisted only of broad, unsupported, and self-serving generalizations 11

Case: 13-60599 Document: 00512459118 00512455344 Page: 18 Date Filed: 12/03/2013 that the clinic s closure would impose a hardship on some undefined group. See Doc. 5-2, 20; Doc. 23-2, 14 19. Plaintiffs contradicted even this vague claim by averring that many of the Clinic s patients travel from more than 3-4 hours away to seek abortion services, including from Louisiana, Alabama and Tennessee. Doc. 5-1, 8. Logically, of course, it is no more burdensome to travel an equal or lesser distance to any of the several clinics doing business in Louisiana, Alabama, or Tennessee. See infra pages 18 19. In any event, plaintiffs failed to identify any discrete and well-defined instances in which patients rights would be violated. Gonzales, 550 U.S. at 167. The nature of the relief plaintiffs seek is consistent with the evidence they presented. From the outset, they have demanded broad declaratory and injunctive relief invalidating and enjoining the enforcement of the admitting-privileges requirement in any and all of its applications. Doc. 46 at 15; accord Doc. 30 at 17. Ultimately, the district court did just that, enjoin[ing] any and all forms of enforcement of the Admitting Privileges Requirement. Doc. 81 at 13. The district court viewed the plaintiffs challenge as an as-applied one because it affects only this clinic. Id. at 5. In fact, the court subsequently emphasized that plaintiffs claim is that this Act is unconstitutional as-applied to this clinic. Doc. 131 at 2 (emphasis by the court). 12

Case: 13-60599 Document: 00512459118 00512455344 Page: 19 Date Filed: 12/03/2013 The district court s characterization of plaintiffs challenge to the admittingprivileges requirement as an as-applied challenge was mistaken. A true as-applied challenge would have required proof of and sought relief in certain discrete and well-defined instances in which the law would impose an unconstitutional burden on women seeking abortions, Gonzales, 550 U.S. at 167, as they are the only parties whose constitutional rights are at issue in this appeal. This is not the type of challenge that plaintiffs advanced. Instead of alleging discrete and well-defined instances in which the requirement would burden the constitutional rights of patients, the plaintiffs successfully moved for an order blocking any and all of its applications. That is a prototypical facial challenge. See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013) ( With the exception of First Amendment cases, a facial challenge will succeed only if the plaintiff establishes that the act is invalid under all of its applications. ). The district court s failure to treat it as such was error. To bolster its decision to treat plaintiffs claim as an as-applied challenge, the district court added that the State correctly informed the Court during oral argument that this is an as-applied challenge. Doc. 81 at 5 (citing 7/11/2012 Tr. at 48). However, the cited exchange is ambiguous, as there was no express concession that plaintiffs had stated a proper as-applied challenge. Moreover, that hearing was held well before plaintiffs filed their second motion for a preliminary 13

Case: 13-60599 Document: 00512459118 00512455344 Page: 20 Date Filed: 12/03/2013 injunction (Doc. 46), which specifically articulated the claim at issue in this appeal. In any event, the district court s debatable conclusion as to what the State had stipulated is premised on a more fundamentally mistaken assumption that a party can stipulate to a question of law and thereby require a court to apply the wrong legal standard. In fact, it is well-settled that courts are not bound to accept, as controlling, stipulations as to questions of law. 16 The same is true of any supposed concession on a question of law. 17 Thus, regardless of any alleged stipulation or concession, [w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to 16 Sanford s Estate v. CIR, 308 U.S. 39, 51 (1939) (emphasis added); accord, e.g., U.S. Nat l Bank of Ore. v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) ( [T]he Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law. [T]he court s decision to consider the issue was certainly no abuse of its discretion. ); Carter v. Luminant Power Servs. Co., 714 F.3d 268, 270 n.3 (5th Cir. 2013) ( [I]t is well settled that a court is not bound to accept as controlling stipulations as to questions of law. (quoting Equitable Life Assurance Soc y of U.S. v. MacGill, 551 F.2d 978, 983 (5th Cir. 1977)); TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) ( Issues of law are the province of the court, not of parties to a lawsuit. ); Nat l Advertising Co. v. City of Rolling Meadows, 789 F.2d 571, 574 (7th Cir. 1986) ( A party may not compel a court to decide a constitutional argument, especially one of some difficulty, by stipulation. ). 17 See, e.g., Orloff v. Willoughby, 345 U.S. 83, 87 (1953) ( This Court, of course, is not bound to accept the Government s concession that the courts below erred on a question of law. ); Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005) ( [C]oncessions do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues. ); Overton v. City of Austin, 748 F.2d 941, 957 n.19 (5th Cir. 1984) ( [A] court is not bound to accept stipulations of law by parties to litigation. And where stipulations may affect a number of cases beyond the one at bar, a court has a duty to make its own resolution of such issues. [T]rial by concession form[s] a slender and dubious basis for sweeping measures judicially decreed, where a state s... legislative process is to be superseded by the order of a single judge. (citations, quotation marks, and alterations omitted)). 14

Case: 13-60599 Document: 00512459118 00512455344 Page: 21 Date Filed: 12/03/2013 identify and apply the proper construction of governing law. 18 This is especially true when, as in this case, a court is asked to strike down a state law and override a state s legislative process. Overton, 748 F.2d at 957 n.19. In cases of such singular importance, the Court has a duty to make its own, independent determinations of issues of law. Id. (emphasis added). 19 Here, that means that plaintiffs substantive due process claim must be analyzed for what it is: a facial challenge to the admitting-privileges requirement. For two related reasons, discussed below, the district court s mislabeling of plaintiffs challenge was significant. First, the district court failed to apply the standards applicable to facial challenges, see Gonzales, 550 U.S. at 167 68, under which the admitting-privileges requirement must be upheld. Second, when the issue is reframed as it must be in terms of the law s actual effect on individuals, it becomes clear that the burden imposed is minimal, and the requirement must be upheld under any standard of review. 18 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (emphasis added); cf. Citizens United v. F.E.C., 558 U.S. 310, 330 (2010) ( even if a party could somehow waive a facial challenge while preserving an as-applied challenge, that would not prevent the Court from addressing the facial validity of [the law] ). 19 See also Bridges v. City of Bossier, 92 F.3d 329, 335 n.8 (5th Cir. 1996) ( court may consider different arguments raised by amicus curiae on issues raised by appellant ). 15

Case: 13-60599 Document: 00512459118 00512455344 Page: 22 Date Filed: 12/03/2013 II. This Court s Recent Opinion In Abbott Makes Clear That The Admitting-Privileges Requirement Furthers A Legitimate State Interest And Does Not Impose An Undue Burden. This Court recently ruled that Texas s admitting-privileges requirement may be enforced after concluding that the state had made a strong showing that it [was] likely to succeed on the merits, i.e., that the law is rational and is not an undue burden. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, --- F.3d ----, 2013 WL 5857853, at *2, *3, & *6 (5th Cir. Oct. 31, 2013). The Supreme Court has now allowed that decision to stand. See --- S. Ct. ----, 2013 WL 6080269 (Nov. 19, 2013) (denying application to vacate stay). Texas s admitting-privileges requirement is substantively identical to Mississippi s. Compare Tex. Health & Safety Code 171.0031, with Miss. Code Ann. 41-75- 1(f). Moreover, in defense of its law, Texas relied on the same highly qualified experts as Mississippi. Compare Abbott, 2013 WL 5857853, at *3 (discussing declarations of Dr. John Thorp and Dr. James Anderson), with Docs. 20-1 & 20-2 (declarations of Dr. John Thorp and Dr. James Anderson). The result should also be the same: an admitting-privileges requirement is legitimate regulation of health and of the medical profession, it does not constitute an undue burden, and it must be upheld. See generally Abbott, 2013 WL 5857853, at *2 *6. In Abbott, this Court had little difficulty concluding that an admittingprivileges requirement is a rational regulation of health and the medical profession. 16

Case: 13-60599 Document: 00512459118 00512455344 Page: 23 Date Filed: 12/03/2013 Id. at *3. The Court noted record evidence that such a requirement fosters a woman s ability to seek consultation and treatment for complications directly from her physician, not from an emergency room provider, i.e., a total stranger. Id. at *2. The Court also cited record evidence that such a requirement would assist in preventing patient abandonment by the physician who performed the abortion and then left the patient to her own devices to obtain care if complications developed. Id. As discussed above, virtually identical evidence was presented in this case. As this Court held, such evidence provides more than a conceivable state of facts that could provide a rational basis for requiring abortion physicians to have hospital admission privileges. Id. (quoting F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307, 313 (1993)). In fact, such evidence is more than sufficient to sustain the law because a legislative choice is not subject to courtroom factfinding and may be based on rational speculation, even if unsupported by evidence or empirical data. Id. (quoting Beach Commc ns, 508 U.S. at 315). 20 The Abbott Court also held that the plaintiffs had failed to establish that an admitting-privileges requirement would constitute an undue burden even assuming that many clinics would be unable to comply and close as a result. See 20 See also Greenville Women s Clinic v. Comm r, S.C. Dep t of Health & Envtl. Control, 317 F.3d 357, 363 (4th Cir. 2002) (concluding that an admitting-privileges requirement is obviously beneficial to patients ), cert. denied, 538 U.S. 1008 (2003); Women s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989) (concluding that an admittingprivileges requirement further important state health objectives ). 17

Case: 13-60599 Document: 00512459118 00512455344 Page: 24 Date Filed: 12/03/2013 id. at *4 *6. Specifically, the Court recognized that the law might ultimately result in the closure of all abortion clinics in twenty-four counties comprising the Rio Grande Valley, so that residents of the Valley would be required to travel approximately 150 miles to Corpus Christi for an abortion. See id. at *5 *6. 21 The Court categorically concluded: An increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights. Id. at *6 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 87 (1992), which held that a waiting period that might require two trips over long distances did not constitute an undue burden). This commonsense observation that a marginal increase in travel does not constitute an undue burden effectively resolves the instant case. A majority of abortions obtained by Mississippi residents are already performed outside the State. 22 Abortion providers do business in New Orleans and Baton Rouge, Louisiana; Tuscaloosa, Mobile, Huntsville, and Birmingham, Alabama; and 21 Although the Court referred to the distance from the Rio Grande Valley to Corpus Christi as less than 150 miles, it would appear that major cities in that region such as Brownsville and Rio Grande City may actually be 160 miles or more from Corpus Christi. 22 In 2012, for example, 5,309 Mississippi residents obtained abortions (see Mississippi State Department of Health, Mississippi Statistically Automated Health Resource System, at http://mstahrs.msdh.ms.gov/forms/pregtable.html, and http://mstahrs.msdh.ms.gov/help/preghelp.html), but only 2,176 abortions were actually performed in Mississippi (see Mississippi State Department of Health, 2012 Vital Statistics, at p.177, tbl.25, available at http://msdh.ms.gov/phs/2012/bulletin/vr2012.pdf). 18

Case: 13-60599 Document: 00512459118 00512455344 Page: 25 Date Filed: 12/03/2013 Memphis, Tennessee. 23 The entire state of Mississippi is within a 175-mile radius of one of these cities. And given that the driving distance from Jackson to Baton Rouge is less than 175 miles, 24 no one should experience [a]n increase in travel distance of more than 175 miles to obtain an abortion, even if the doctors associated with the plaintiff clinic are unable to obtain admitting privileges. Under Abbott, that is not an undue burden in any relevant circumstance. It certainly does not meet plaintiffs far heavier burden of establishing that the admittingprivileges requirement would impose an undue burden in a large fraction of cases. Abbott, 2013 WL 5857853, at *5 (quoting Casey, 505 U.S. at 895). 25 The only real difference between this case and Abbott is that the other nearby clinics in this case are in neighboring states whereas in Abbott they were located in another part of a much larger state. That distinction lacks constitutional significance. [T]he right to travel freely from State to State is constitutionally protected, United States v. Guest, 383 U.S. 745, 759 n.17 (1966), and crossing a state line is no burden in and of itself. Plaintiffs themselves report seeing patients who travel 3-4 hours from surrounding states, even though each of those states has 23 See, e.g., Louisiana Department of Health & Hospitals, at http://dhh.louisiana.gov/index.cfm/directory/category/276; Alabama Department of Public Health, Health Care Facilities Directory, at http://www.adph.org/healthcarefacilities/; and Planned Parenthood, Find a Health Center, at http://www.plannedparenthood.org/. 24 The Court may of course take judicial notice of distances between various major cities. See, e.g., Castilleja v. So. Pac. Co., 445 F.2d 183, 185 (5th Cir. 1971). 25 Plaintiffs burden is at least this high; whether it is higher is an open question. See Gonzales, 550 U.S. at 167; Abbott, 2013 WL 5857853, at *5. 19

Case: 13-60599 Document: 00512459118 00512455344 Page: 26 Date Filed: 12/03/2013 its own abortion facilities. Doc. 5-1, 8. Therefore, the sound reasoning of this Court s opinion in Abbott compels reversal of the district court s order. III. Gonzales v. Carhart Reaffirms That The Constitution Does Not Entitle Plaintiffs To Special Exemptions From Generally Applicable Regulations Of The Medical Profession. This Court s opinion in Abbott follows logically from the Supreme Court s opinion in Gonzales v. Carhart, which reaffirmed two additional, important points that bear emphasis in this case. First, Gonzales reaffirmed that documented medical disagreement concerning the wisdom of a law does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. 550 U.S. at 162 64. Thus, the fact that some part of the medical community views an abortion regulation as unnecessary does not render it unconstitutional. Id. at 166. That would be too exacting a standard to impose on the legislative power to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. Id. 26 In this case, this means that the record evidence supporting the admittingprivileges requirement, combined with the common-sense judgment that continuity of care is a good thing, more than suffice to sustain the Legislature s rational judgment. That plaintiffs and their expert disagree is irrelevant. 26 See also, e.g., Kansas v. Hendricks, 521 U.S. 346, 375 (1997) (Breyer, J., dissenting) ( The Constitution permits a State to follow one reasonable professional view, while rejecting another. ). 20

Case: 13-60599 Document: 00512459118 00512455344 Page: 27 Date Filed: 12/03/2013 Second, Gonzales reaffirmed that [t]he law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. 550 U.S. at 163 (emphasis added). 27 Yet that is exactly what plaintiffs in this case seek: they argue that the Constitution itself exempts them from a requirement generally applicable to every physician in the State associated with other types of outpatient surgical facilities. As Gonzales makes clear, the Constitution does not elevate their status or entitle them to such preferential treatment. The State is free to hold plaintiffs to the same licensure requirements as comparable outpatient facilities. 28 27 Similarly, in Women s Health Center of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989), the Eighth Circuit upheld Missouri s admitting-privileges requirement, which applied equally to abortion doctors and doctors performing other outpatient surgeries. The court reasoned that [t]he State, in exercising its police powers to protect the well-being of its citizens, has undoubted authority to regulate the conditions under which surgical procedures are performed. Such legitimate state regulation of surgical procedures is not rendered unconstitutional because it is specifically applied to abortion. Id. at 1381. 28 Plaintiffs contention that they are constitutionally entitled to special exemptions from such generally applicable laws, perhaps because they are the sole abortion clinic currently operating in Mississippi, has far-reaching implications that should not be overlooked. For example, if the plaintiff clinic cannot afford to pay its property taxes, must the city and county forgive the taxes so that the clinic can remain in business? If it cannot afford repairs necessary to comply with the basic city building codes, is a waiver of those regulations also constitutionally required? Or if the clinic is one day unable to recruit licensed physicians, must the State allow even non-physicians to carry out abortions? But see Mazurek v. Armstrong, 520 U.S. 968, 974 75 (1997) (making clear that a state is free to provide that only a physician currently licensed by the State may perform abortions (quoting Roe v. Wade, 410 U.S. 113, 165 (1973)); Abbott, 2013 WL 5857853, at *3 (an admitting-privileges requirement is but one step removed from the longstanding recognition by the Supreme Court that a State may constitutionally require that only a physician may perform an abortion ). The clear answer to all these questions is no. The Supreme Court has held that a state may enforce such generally applicable laws including requirements, like the one at issue here, that apply to other physicians in the medical community, Gonzales, 550 U.S. at 163 without running afoul of the Constitution. 21

Case: 13-60599 Document: 00512459118 00512455344 Page: 28 Date Filed: 12/03/2013 CONCLUSION The order of the district court granting a preliminary injunction should be reversed. House Bill 1390 should be permitted to go into effect immediately. 29 November 27, 2013 s/jack Wilson Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 jack.wilson@governor.ms.gov Counsel for Governor Bryant 29 As this Court noted in Abbott, [w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws. 2013 WL 5857853, at *9. 22

Case: 13-60599 Document: 00512459118 00512455344 Page: 29 Date Filed: 12/03/2013 CERTIFICATE OF SERVICE I hereby certify that on November 27, 2013, the foregoing brief was filed with the Court through the CM/ECF system, which will send notice to registered CM/ECF users in this matter, including counsel for all parties. s/jack Wilson Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 jack.wilson@governor.ms.gov

Case: 13-60599 Document: 00512459118 00512455344 Page: 30 Date Filed: 12/03/2013 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,886 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 5th Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in 14-point Times New Roman font for the main text and 12-point Times New Roman font for footnotes. November 27, 2013 s/jack Wilson Jack Wilson Office of the Governor P.O. Box 139 Jackson, MS 39205 (601) 576-2902 jack.wilson@governor.ms.gov

Case: 13-60599 Document: 00512456255 Page: 1 Date Filed: LYLE W. CAYCE CLERK United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130 December 02, 2013 Mr. Jack Louis Wilson Office of the Governor for the State of Mississippi 550 High Street Sillers Building 19th Floor Jackson, MS 39201-0000 No. 13-60599 Currier, et al Jackson Women's Health Orgn, et al v. Mary USDC No. 3:12-CV-436 The following pertains to your brief electronically filed on. You must submit the seven paper copies of your brief required by 5 TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Sincerely, LYLE W. CAYCE, Clerk cc: Mr. Paul Eldridge Barnes Mr. Aaron Sean Delaney Mr. Robert Bruce McDuff Mr. Wilson Douglas Minor Ms. Michelle Nicole Movahed Mr. Lara Rabiee Mrs. Mailee Rebecca Smith By: Dawn D. Victoriano, Deputy Clerk 504-310-7717