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EMW Women's Surgical Center V. Meier

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EMW Women's Surgical Center V. Meier No. _______ IN THE Supreme Court of the United States EMW WOMEN’dS SURGICAL CENTER, P.S.C., ON BEHALF OF ITSELF, ITS STAFF, AND ITS PATIENTS; ERNEST MARSHALL, M.D., ON BEHALF OF HIMSELF AND HIS PATIENTS; ASHLEE BERGIN, M.D., ON BEHALF OF HERSELF AND HER PATIENTS; TANYA FRANKLIN, M.D., ON BEHALF OF HERSELF AND HER PATIENTS, —v.— Petitioners, ADAM MEIER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Jeffrey L. Fisher Alexa Kolbi-Molinas O’MELVENY & MYERS LLP Counsel of Record 2765 Sand Hill Road Andrew D. Beck Menlo Park, CA 94025 Meagan Burrows Heather Gatnarek Jennifer Dalven AMERICAN CIVIL LIBERTIES ACLU OF KENTUCKY UNION FOUNDATION FOUNDATION, INC. 325 W. Main Street, Suite 2210 125 Broad Street Louisville, KY 40202 New York, NY 10004 (212) 549-2500 Amy D. Cubbage [email protected] ACLU OF KENTUCKY David D. Cole FOUNDATION, INC. 734 W. Main Street, Suite 200 AMERICAN CIVIL LIBERTIES Louisville, KY 40202 UNION FOUNDATION 915 15th Street, NW Washington, DC 20005 (Counsel continued on inside cover) Anton Metlitsky Leah Godesky Jennifer B. Sokoler Kendall Turner O’MELVENY & MYERS LLP 7 Times Square New York, NY 10036 QUESTION PRESENTED The Kentucky Ultrasound Informed Consent Act (House Bill 2) requires a physician, while performing a pre-abortion ultrasound, to (i) describe the ultrasound in a manner prescribed by the state; (ii) display the ultrasound image so that the patient may see it; and (iii) auscultate (make audible) the fetal heart tones. The physician must display and describe the image even when the patient objects, even when complying with the statute would harm the patient, and even when the patient seeks to avoid the state-mandated speech by covering her eyes and ears. The Sixth Circuit upheld the law against a First Amendment challenge on the ground that it is an ordinary informed-consent provision. The Fifth Circuit previously upheld a similar Texas law for the same reason. The Fourth Circuit, in contrast, invalidated a materially identical North Carolina law as an unconstitutional compelled speech mandate, reasoning that a law requiring physicians to engage in speech over a patient’s objection and in contravention of the physician’s medical judgment— even when the patient is intentionally avoiding the speech and images—is “antithetical to the very communication that lies at the heart of the informed consent process.” Stuart v. Camnitz, 774 F.3d 238, 253 (4th Cir. 2014). The question presented is whether such compulsory display-and-describe ultrasound laws abridge physicians’ freedom of speech in violation of the First Amendment. i STATEMENT OF RELATED PROCEEDINGS There are no other court proceedings directly related to this case. ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT Petitioners are EMW Women’s Surgical Center, P.S.C., Ernest Marshall, MD, Ashlee Bergin, MD, and Tanya Franklin, MD, all of whom were plaintiff-appellees below. EMW Women’s Surgical Center, P.S.C. has no parent corporation, and no publicly held company owns more than 10% of its stock. Respondent is Adam Meier, in his official capacity as Secretary of Kentucky’s Cabinet for Health and Family Services, a defendant-appellant below. The Attorney General of Kentucky was also named as a defendant below, but was dismissed as a party by the court of appeals. This petition does not challenge that portion of the decision below. iii TABLE OF CONTENTS QUESTION PRESENTED ......................................... i STATEMENT OF RELATED PROCEEDINGS ...... ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ....................................... iii TABLE OF AUTHORITIES ..................................... vi PETITION FOR A WRIT OF CERTIORARI ............ 1 OPINIONS BELOW .................................................. 1 JURISDICTION ......................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................................ 1 STATEMENT OF THE CASE ................................... 2 REASONS FOR GRANTING THE PETITION ...... 12 I. THERE IS A CIRCUIT CONFLICT OVER THE QUESTION PRESENTED. ...... 12 II. THE QUESTION PRESENTED IS IMPORTANT AND RECURRING, AND THIS PETITION PROVIDES AN IDEAL VEHICLE THROUGH WHICH TO RESOLVE IT. .......................................... 20 III. THE DECISION BELOW IS INCORRECT. ................................................ 22 CONCLUSION ......................................................... 32 APPENDIX Opinion, U.S. Court of Appeals for the Sixth Circuit, April 4, 2019 ............................. 1a-85a iv Memorandum Opinion and Order, U.S District Court for the Western District of Kentucky, Sept. 27, 2017 ..................................... 86a-123a Judgment, U.S Court of Appeals for the Sixth Cir- cuit, April 4, 2019 ............................. 124a-125a Order, U.S Court of Appeals for the Sixth Circuit, June 28, 2019 ................................... 126a-127a Judgment and Permanent Injunction, U.S. District Court for the Western District of Kentucky, Sept. 27, 2017 ................. 128a-129a Relevant Statute .................................... 130a-134a v TABLE OF AUTHORITIES CASES Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) ........................... 23 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) ....................... 23 Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) .................. passim Nova Health Sys. v. Pruitt, 292 P.3d 28 (Okla. 2012) (per curiam) ............... 21 Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc) ........................................................ 10, 18 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .................................... passim Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988) .......................... 23, 24, 25, 29 Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ...................................... 29, 31 Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014) ...................... passim Stuart v. Loomis, 992 F. Supp. 2d 585 (M.D.N.C. 2014) ................ 30 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012) ............ 10, 17, 18, 21 Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002) ............................................ 31 vi Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ...................................... 29, 30 United States v. Alvarez, 567 U.S. 709 (2012) ........ 26 Wooley v. Maynard, 430 U.S. 705 (1977) ................ 13 CONSTITUTION & STATUTES U.S. Const. amend. I ........................................ passim 18 Pa. Cons. Stat. § 3205(a)(1) ................................ 13 Ky. Rev. Stat. § 311.724 ............................................ 4 Ky. Rev. Stat. § 311.725(1) ........................................ 4 Ky. Rev. Stat. § 311.725(1)(b) .................................... 4 Ky. Rev. Stat. § 311.725(2) ........................................ 4 Ky. Rev. Stat. § 311.727(2)(d) .................................... 7 Ky. Rev. Stat. § 311.727(2)(e) .................................... 6 Ky. Rev. Stat. § 311.727(3) .................................. 7, 26 Ky. Rev. Stat. § 311.727(5) .................................... 7, 8 Ky. Rev. Stat. § 311.727(2)(b) .................................... 6 Ky. Rev. Stat. § 311.727(2)(c) .................................... 6 La. Rev. Stat. Ann. § 1061.10 .................................. 21 Okla. Stat. Tit. 63, § 1-738.3d ................................. 21 Okla. Stat. Tit. 63, § 1-738.3e .................................. 21 S.D. Codified Laws § 34-23A-10.1 ........................... 18 Wis. Stat. § 253.10 ................................................... 21 vii PETITION FOR A WRIT OF CERTIORARI Petitioners respectfully request a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit. OPINIONS BELOW The decision of the court of appeals is reported at 920 F.3d 421, and is reprinted in the Appendix to the Petition (“App.”) at 1a-85a. The district court’s opinion granting petitioners summary judgment is reported at 283 F. Supp. 3d 629, and reprinted at App. 86a-123a. JURISDICTION The court of appeals issued its decision on April 4, 2019. App. 1a. The court of appeals denied a petition for rehearing on June 28, 2019. App. 126a- 127a. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech ….” The text of Kentucky’s Ultrasound Informed Consent Act—also known as House Bill 2 (“H.B. 2” or “the Act”)—is reproduced at App. 130a-134a. 1 STATEMENT OF THE CASE Petitioners perform an ultrasound on all patients before providing abortion care, and, consistent with established medical practice, offer every patient the option of seeing the ultrasound image and discussing it with her provider. The Act challenged here transforms this standard medical practice into a pure speech mandate: under the Act, the physician must display and provide a graphic description of the ultrasound image (including, e.g., identifying all visible internal organs) during the ultrasound procedure. The physician must convey these specific
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