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In the United States Court of Appeals for the Fifth Circuit

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In the United States Court of Appeals for the Fifth Circuit Case: 19-30353 Document: 00514971298 Page: 1 Date Filed: 05/24/2019 No. 19-30353 In the United States Court of Appeals for the Fifth Circuit In re: Rebekah Gee, in her official capacity as Secretary of the Louisiana Department of Health; James E. Stew- art, Sr., in his official capacity as District Attorney for Caddo Parish, Petitioners, June Medical Services, L.L.C., on behalf of its patients, physicians, and staff, doing business as Hope Medical Group for Women; John Doe 1, Doctor, on behalf of them- selves and their patients; John Doe 3, Doctor, on behalf of themselves and their patients, Plaintiffs, v. Rebekah Gee, in her official capacity as Secretary of the Louisiana Department of Health; James E. Stewart, Sr., in his official capacity as District Attorney for Caddo Parish, Defendants. On Petition for Writ of Mandamus to the United States District Court for the Middle District of Louisiana (Baton Rouge) No. 3:17-cv-00404-BAJ-RLB BRIEF FOR THE STATES OF TEXAS AND MISSISSIPPI AS AMICI CURIAE IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS Ken Paxton Kyle D. Hawkins Attorney General of Texas Solicitor General [email protected] Jeffrey C. Mateer First Assistant Attorney General Heather Gebelin Hacker Beth Klusmann Office of the Attorney General Assistant Solicitors General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Counsel for Amici Curiae Fax: (512) 474-2697 Case: 19-30353 Document: 00514971298 Page: 2 Date Filed: 05/24/2019 Certificate of Interested Persons No. 19-30353 In re: Rebekah Gee, in her official capacity as Secretary of the Louisiana Department of Health; James E. Stew- art, Sr., in his official capacity as District Attorney for Caddo Parish, Petitioners, June Medical Services, L.L.C., on behalf of its patients, physicians, and staff, doing business as Hope Medical Group for Women; John Doe 1, Doctor, on behalf of them- selves and their patients; John Doe 3, Doctor, on behalf of themselves and their patients, Plaintiffs, v. Rebekah Gee, in her official capacity as Secretary of the Louisiana Department of Health; James E. Stewart, Sr., in his official capacity as District Attorney for Caddo Parish, Defendants. The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the out- come of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. Amici Curiae: Counsel for Amici Curiae: State of Texas Ken Paxton State of Mississippi Jeffrey C. Mateer Kyle D. Hawkins Heather Gebelin Hacker Beth Klusmann Office of the Texas Attorney General Jim Hood Office of the Mississippi Attorney General i Case: 19-30353 Document: 00514971298 Page: 3 Date Filed: 05/24/2019 Defendants-Petitioners: Counsel for Defendants-Petitioners: Rebekah Gee, in her official capacity Jeff Landry as Secretary of the Louisiana Elizabeth B. Murrill Department of Health J. Scott St. John James E. Stewart, in his official Office of the Louisiana Attorney capacity as District Attorney General for Caddo Parish, LA S. Kyle Duncan Stephen S. Schwartz James A. Heilpern Schaerr Jaffe LLP Plaintiffs-Respondents: Counsel for Plaintiffs-Respondents: June Medical Services LLC d/b/a Charles M. (Larry) Samuel, III Hope Medical Group for Women Rittenberg, Samuel & Phillips, LLC Dr. John Does 1, 3, and 7 David Brown Jenny Ma Caroline Sacerdote Zoe Levine Alexandra Thompson Center for Reproductive Rights Shannon Rose Selden Amanda M. Bartlett Anna Moody Zachary H. Saltzman Holly S. Wintermute Debevoise & Plimpton LLP /s/ Kyle D. Hawkins KYLE D. HAWKINS Counsel of Record for Amici Curiae ii Case: 19-30353 Document: 00514971298 Page: 4 Date Filed: 05/24/2019 Table of Contents Page Certificate of Interested Persons ..............................................................................i Table of Authorities ............................................................................................... iv Statement of Interest of Amici Curiae ..................................................................... 1 Argument................................................................................................................ 3 I. Louisiana Has A Clear And Indisputable Right To Mandamus. ................. 4 A. Plaintiffs’ claims are foreclosed by precedent. ..................................... 4 B. There is no abortion exception to justiciability and pleading standards. ............................................................................................ 8 II. Louisiana Has No Other Means For Relief, And Mandamus Is Appropriate Under The Circumstances. .................................................. 11 Conclusion ............................................................................................................ 14 Certificate of Service............................................................................................. 15 Certificate of Compliance ..................................................................................... 15 iii Case: 19-30353 Document: 00514971298 Page: 5 Date Filed: 05/24/2019 Table of Authorities Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................... 8, 9 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983) .......................................................................................... 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................ 8, 9, 10, 12 Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 (11th Cir. 1997) ............................................................................ 13 In re U.S., 397 F.3d 274 (5th Cir. 2005) (per curiam) .......................................................... 7 In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) .......................................................................... 3, 5 Jackson Women’s Health Org. v. Dobbs, No. 3:18-cv-00171-CWR-FKB (S.D. Miss. filed Mar. 19, 2018) ......................... 1 Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290 (11th Cir. 1998) .......................................................................... 13 June Med. Servs. LLC v. Gee, 905 F.3d 787 (5th Cir. 2018) ........................................................................... 4, 5 McClure v. Ashcroft, 335 F.3d 404 (5th Cir. 2003) .............................................................................. 3 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality op.) ................................................................... 11 Rodgers v. Lincoln Towing Serv., Inc., 596 F. Supp. 13 (N.D. Ill. 1984), aff’d, 771 F.2d 194 (7th Cir. 1985) ................. 12 iv Case: 19-30353 Document: 00514971298 Page: 6 Date Filed: 05/24/2019 Roe v. Wade, 410 U.S. 113 (1973) ............................................................................................. 7 S. Leasing Partners, Ltd. v. McMullan, 801 F.2d 783 (5th Cir. 1986) (per curiam) ........................................................ 12 Schlagenhauf v. Holder, 379 U.S. 104 (1964) ............................................................................................ 7 United States v. Williams, 400 F.3d 277 (5th Cir. 2005) (per curiam) ......................................................... 7 Whole Woman’s Health Alliance v. Paxton, No. 1:18-cv-00500-LY (W.D. Tex. filed June 14, 2018)................................ 1, 12 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ................................................................................ 5, 6, 7 Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411 (5th Cir. 2001) ............................................................................... 7 Statutes and Regulations 25 Tex. Admin. Code § 139.49 .............................................................................. 12 v Case: 19-30353 Document: 00514971298 Page: 7 Date Filed: 05/24/2019 Statement of Interest of Amici Curiae Amici are the States of Texas and Mississippi (the States).1 The States have recently been sued by abortion providers pressing meritless theories similar to those advanced against Louisiana in this case. The States therefore urge the Court to hold that Louisiana is entitled to a writ of mandamus directing that plaintiffs’ claims be dismissed. Mississippi has been sued by plaintiffs represented by the same counsel in this case making similar claims with respect to Mississippi abortion laws and regulations. See filed Mar. 19, 2018). Plaintiffs have challenged Mississippi’s entire regulatory scheme for licensing abortion clinics. Plaintiffs have also challenged the State’s 24- hour waiting period law, informed consent law, restriction on non-physicians per- forming abortions, and the State’s prohibition on the use of telemedicine in abor- tions. See Ex. A at ¶¶ 10, 43 (Mississippi Amended Complaint). Some of these laws have been in effect for years. The Mississippi plaintiffs claim that these laws are un- constitutional both individually and, when taken together, as a “cumulative[]” un- due burden. Id. at ¶¶ 128-32. Texas faces a similarly broad challenge to almost every state law and regulation covering abortion. Whole Woman’s Health Alliance v. Paxton, No. 1:18-cv-00500-LY (W.D. Tex. filed June 14, 2018). The Texas plaintiffs have challenged over
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