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Wendy-Davis-Dechert.Pdf No. 15-274 IN THE Supreme Court of the United States WHOLE WOMAN’S HEALTH, ET AL., Petitioners, v. KIRK COLE, M.D., COMMISSIONER OF THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF OF THE HONORABLE WENDY DAVIS, TERESA FEDOR, LUCY FLORES, AND JUDY NICASTRO AS AMICI CURIAE IN SUPPORT OF PETITIONERS Rani Habash Linda C. Goldstein DECHERT LLP Counsel of Record 1900 K Street, N.W. DECHERT LLP Washington, DC 20006 1095 Avenue of the Americas New York, NY 10036 (202) 261-3300 (212) 698-3500 [email protected] Counsel for Amici Curiae i Table of Contents PAGE INTERESTS OF THE AMICI CURIAE............ 1 SUMMARY OF ARGUMENT ............................ 3 ARGUMENT ....................................................... 5 I. TEXAS’S LEGISLATION RESTRICTING ABORTIONS SUPPOSEDLY SEEKS TO RESOLVE AN ILLUSORY “WOMEN’S HEALTH” PROBLEM WITHOUT ANY EMPIRICAL OR FACTUAL BASIS. .......... 5 A. Texas Legislators Ignored The State’s Own Data Showing That Abortion Clinics and Procedures Were Already Safe....... 5 B. Contemporaneous Statements Made By the President of the Texas Senate Confirm That H.B. 2’s Purpose Was to “Essentially Ban Abortion Statewide.”..................................... 10 ii II. AMICI’S NARRATIVES ILLUSTRATE THE DIVERSITY OF WOMEN THAT HAVE ABORTIONS, THEIR REASONS FOR DOING SO, AND THE IMPORTANCE OF PREVENTING UNNECESSARY BARRIERS TO WOMEN’S ABILITY TO EXERCISE THEIR CONSTITUTIONAL RIGHTS...... 12 A. The Honorable Wendy Davis........ 13 B. The Honorable Teresa Fedor........ 16 C. The Honorable Lucy Flores .......... 20 D. The Honorable Judy Nicastro....... 22 CONCLUSION.................................................. 25 iii Table of Authorities CASES PAGE Planned Parenthood v. Casey, 505 U.S. 833 (1992).................................................. 25 Roe v. Wade, 410 U.S. 113 (1973)........................................... 18, 25 TEXAS LEGISLATIVE MATERIALS D. Dewhurst, Twitter (Jun. 19, 2013, 10:41 AM ET), https://twitter.com/DavidHDew- hurst/status/347363442497302528 ..............11, 12 D. Dewhurst, Twitter (Jun. 19, 2013, 1:06 PM ET), https://twitter.com/DavidHDewhurst/ status/347400087191814145 ............................. 12 S. Smith, Special Procedures, Texas Monthly (Jun. 19, 2015), available at http://www.texasmonthly.com/politics/speci al-procedures...................................................... 10 Stmt. of Sen. J. Zaffirini Regarding Senate Bill 5, Texas Senate Journal, 84th Cong. Sess. 1 at 69 (Jun. 18, 2013), http://www.journals.- senate.state.tx.us/sjrnl/831/pdf/83S106-18-- F.PDF ................................................................. 10 Transcript of Texas Senate Session on Senate Bill 5 (Jun. 25, 2013), transcribed by A. Mardoll, https://docs.google.com/ document/d/1c0xuAFFc_6klQ1nrnQ72 Qd9Y-o_uG8rSykO4wDgNqFQ/edit.................... 6 iv PAGE OTHER AUTHORITIES A. Norris, M.D. PhD et. al., Abortion Stigma: A Reconceptualization of Constituents, Causes, and Consequences, Women’s Health Issues (Feb. 12, 2011), available at https://www.guttmacher.org/pubs/- journals/Abortion-Stigma.pdf................................ 12 J. Nicastro, My Abortion, at 23 Weeks, The New York Times (Jun. 20, 2013), http://www.nytimes.com/2013/06/21/opi- nion/my-abortion-at-23-weeks.html..................... 24 Letter from K. Janek, M.D., Texas Health and Human Services, to U.S. House of Rep. Comm. On Energy and Commerce Members, at 3 (Jun. 28, 2013), available at http://rhrealitycheck.wpengine.netdna- cdn.com/wp-content/uploads/state-abortion- docs/Departments-of-Health/Texas/ Texas_Department_of_Health_1.pdf.................8, 9 Rep. Fedor’s Speech on H.B. No. 69 (Mar. 25, 2015) (video produced by The Ohio Chan- nel), available at http://www.toledoblade.- com/Politics/2015/03/26/Fedor-reveals-rape- abortion-in-distant-past.html................................ 19 S. K. Henshaw, Unintended Pregnancy in the United States, 30 Family Planning Perspectives (1998) .................................................. 12 v PAGE Texas DSHS, Vital Statistics Annual Report, 2013, Table 33 Selected Characteristics of Induced Terminations of Pregnancy by Texas Residents, http://www.dshs.state. tx.us/chs/vstat/vs13/t33.aspx........................... 7, 8 W. Davis, FORGETTING TO BE AFRAID: A MEMOIR (2014) ...................................................... 16 1 INTERESTS OF THE AMICI CURIAE1 Amici are distinguished current or former women legislators who have publicly disclosed their own de- cisions to terminate pregnancies. Their courage in sharing their personal narratives has broadened the public’s understanding of why reproductive freedom is so vital to the women of this nation. The Honorable Wendy Davis is a former Texas State Senator. In 2013, she famously stood for near- ly thirteen hours to filibuster Senate Bill 5, an earli- er, virtually identical version of the statute at issue here. Senator Davis later published a memoir ex- plaining that her stand was inspired in part by her own experience in terminating two pregnancies for health reasons. The Honorable Teresa Fedor is currently a mem- ber of the Ohio House of Representatives and a for- mer member of the Ohio Senate. Previously, she served her country for six years in the U.S. Air Force and Ohio Air National Guard, and became pregnant after being raped during her military service. Dur- ing a legislative debate over an Ohio abortion bill that sought to ban abortions as early as six weeks into a pregnancy—with no exceptions for victims of incest or rape—Representative Fedor spontaneously described her own decision to end the pregnancy re- 1 No counsel for any party has authored this brief in whole or in part, and no party or counsel for a party has made a monetary contribution to the preparation or submission of this brief. See Sup. Ct. R. 37.6. Petitioners and respondents both have con- sented to the filing of this brief. 2 sulting from the crime that had been committed against her. The Honorable Lucy Flores is a former member of the Nevada State Assembly and a current candidate for the U.S. House of Representatives. During a leg- islative debate on a bill to reform the sex education curriculum in Nevada schools, Assemblywoman Flores volunteered the story of her own choice, when she had been an unwed teenager, to terminate an unplanned pregnancy. The Honorable Judy Nicastro is a former Seattle City Councilwoman. In 2013, Councilwoman Nica- stro published the heart-wrenching account of her decision to abort one of a pair of twin fetuses at twenty-three weeks because of a life-threatening condition. Amici are exemplars of the millions of women of all faiths, educations, income levels, and ethnic backgrounds who, for wide-ranging reasons, have ex- ercised their rights to reproductive freedom. They also bring to this matter valuable first-hand expe- rience with abortion legislation and pretextual ef- forts by state legislators to prevent women from ac- cessing abortions by invoking unsupported concerns about women’s health. Amici’s own life experiences offer strong support for the Petitioners’ position. They were able to ob- tain abortions without the burdens of delay, travel, and expense that H.B. 2 would impose on Texas women. Unless it is reversed, the Fifth Circuit opi- nion would further embolden legislators to concoct sham justifications for restricting the constitutional 3 rights of women, notwithstanding the lack of any le- gitimate empirical or factual basis for doing so. SUMMARY OF ARGUMENT I. One of the amici, Senator Wendy Davis, threw down the gauntlet during the legislative debates that led to the passage of House Bill 2 (“H.B. 2”) by de- manding that her Senate colleagues prove that abor- tion clinics and procedures in Texas failed to safe- guard women’s health. The challenge was not ans- wered. As the District Court correctly found, data maintained by Texas’s Department of State Health Services (“DSHS”) demonstrates that abortion clinics in Texas did an excellent job of protecting the health of Texas women: (i) there were no maternal deaths related to legal abortions between 2009 and 2013; (ii) fewer than one out of every thousand women who underwent a legal abortion in Texas in 2013 reported any medical complications; and (iii) for at least the past five years, DSHS had not revoked or suspended the license of a single abortion facility for non- compliance with its strict health and safety regula- tions. See infra, I.A. Yet the legislators who sup- ported the abortion-related provisions of H.B. 2, sup- posedly seeking to improve “women’s health,” did not bother to look at these crucial, readily available data from their own State’s expert agency. Instead, they had other goals. As the Texas Lieutenant Governor and President of the Senate, David Dewhurst, admit- ted, the real purpose of the legislation was to “essen- tially ban abortion statewide” by forcing the closure of the vast majority of clinics throughout the State. See infra, I.B. The overwhelming data, together with these explicit statements, confirm that professed 4 concerns for “women’s health” were nothing more than window-dressing for the passage of H.B. 2. II. Notwithstanding the millions of women who have terminated a pregnancy in this country, social stigma and fears of backlash discourage all but a se- lect few from recounting their stories in a public fo- rum. As a result, false stereotypes persist in society and in state legislatures regarding women who exer-
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