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Supreme Court of the United States ------ ------BRAD D No. 15-1200 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- BRAD D. SCHIMEL, et al., Petitioners, v. PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Respondents. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit --------------------------------- --------------------------------- RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- LAURENCE J. DUPUIS CARRIE Y. FLAXMAN ACLU of WISCONSIN Counsel of Record FOUNDATION, INC. PLANNED PARENTHOOD 207 E. Buffalo Street, #325 FEDERATION OF AMERICA Milwaukee, WI 53202 1110 Vermont Avenue, NW, 414/272-4032, ext. 212 Suite 300 Washington, DC 20005 STEVEN R. SHAPIRO 202/973-4800 JENNIFER DALVEN [email protected] JENNIFER LEE AMERICAN CIVIL LIBERTIES LESTER A. PINES UNION FOUNDATION, INC. CULLEN WESTON PINES 125 Broad Street, 18th Floor & BACH LLP New York, NY 10004 122 West Washington Avenue, 212/549-2633 Suite 900 Madison, WI 53703 Attorneys for Respondent 608/251-0101 Milwaukee Women’s Medical Services d/b/a Attorneys for Respondents Affiliated Medical Services Planned Parenthood of Wisconsin, Inc., Susan Pfleger, MD, and Kathy King, MD ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i COUNTER-STATEMENT OF QUESTIONS PRESENTED (1) Whether the Court should grant certiorari to review the scope of injunctive relief when the question was not properly preserved and the court of appeals’ decision is a straightforward application of the undue burden standard of Planned Parenthood v. Casey, 505 U.S. 833 (1992), to the well-supported factual findings of the district court. (2) Whether the Court should grant certiorari to consider a question regarding “subjective” legislative purpose when that question was not properly pre- served, subjective legislative purpose was not the basis of the court of appeals’ decision, and to the extent that the court of appeals evaluated the legislative purpose of the challenged law under Casey, it only considered objective evidence of purpose consistent with prece- dent. ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT Petitioners accurately list the parties to this pro- ceeding. Planned Parenthood of Wisconsin, Inc. is a non-profit domestic corporation. It is not publicly held and has no parent corporation. Milwaukee Women’s Medical Services d/b/a Affiliated Medical Services is a for-profit domestic corporation. It is not publicly held and has no parent corporation. iii TABLE OF CONTENTS Page COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................................... i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT............................................ ii TABLE OF CONTENTS ...................................... iii TABLE OF AUTHORITIES ................................. v INTRODUCTION ................................................ 1 COUNTER-STATEMENT OF THE CASE .......... 2 A. The Proceedings Below .............................. 2 B. The Act Does Not Protect Women’s Health and Unjustifiably Burdens Wisconsin Women ....................................................... 5 REASONS FOR DENYING THE WRIT .............. 13 I. THE PETITION SHOULD BE DENIED BECAUSE PETITIONERS DID NOT PRE- SERVE THE QUESTION PRESENTED ABOUT FACIAL RELIEF, THERE IS NO CIRCUIT SPLIT, AND THE DECI- SION BELOW IS A STRAIGHTFOR- WARD APPLICATION OF PLANNED PARENTHOOD v. CASEY ......................... 13 iv TABLE OF CONTENTS – Continued Page II. THE QUESTION OF “SUBJECTIVE” LEGISLATIVE PURPOSE WAS NOT PROPERLY PRESERVED, IS NOT THE SUBJECT OF A CIRCUIT SPLIT OR THE BASIS OF THE DECISION BELOW, AND TO THE EXTENT THE COURT OF APPEALS EVALUATED THE ACT’S PURPOSE, IT CONSIDERED ONLY OB- JECTIVE EVIDENCE IN A MANNER CONSISTENT WITH PRECEDENT ......... 20 CONCLUSION ..................................................... 26 v TABLE OF AUTHORITIES Page CASES Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) ................................................................ 13 Armstrong v. Mazurek, 94 F.3d 566 (9th Cir. 1996), cert. granted, judgment rev’d, 520 U.S. 968 (1997) ................................................................ 21 Ayotte v. Planned Parenthood of N. New Eng- land, 546 U.S. 320 (2006) ........................................ 13 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .................................. 23 City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) .......................................... 23 Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 23, 24 Glover v. United States, 531 U.S. 198 (2001) .............. 13 Gonzales v. Carhart, 550 U.S. 124 (2007) ....... 13, 16, 17 Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) ................................................... 14 Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996) ........................................................................ 21 Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999), vacated on other grounds on reh’g en banc, 244 F.3d 405 (5th Cir. 2001) ..................................... 20, 21 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014) .................................................................. 14, 16 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ........................................................ passim vi TABLE OF AUTHORITIES – Continued Page Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165 (4th Cir. 2009) ........................................... 16 Romer v. Evans, 517 U.S. 620 (1996) .......................... 24 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ......... 24 United States v. Lovett, 328 U.S. 303 (1946) .............. 23 United States v. Salerno, 481 U.S. 739 (1987) ............ 15 United States v. Windsor, 133 S. Ct. 2675 (2013) ...... 23 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........... 23 Women’s Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989) ................... 15 Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) ...... 16 STATUTES & REGULATIONS Wis. Stat. § 253.095 ............................................ passim 2015 Wis. Act 16 .......................................................... 24 2015 Wis. Act 17 .......................................................... 24 2015 Wis. Act 18 .......................................................... 24 Wis. Admin. Code § MED 11.04(1)(g) ........................... 6 OTHER AUTHORITIES Brief for Ten Pennsylvania Abortion Care Pro- viders as Amici Curiae in Support of Petition- ers, Whole Woman’s Health v. Hellerstedt, No. 15-274 (U.S. 2016) ................................................... 17 vii TABLE OF AUTHORITIES – Continued Page Brief for the American Civil Liberties Union et al. as Amici Curiae Supporting Petitioners, Whole Woman’s Health v. Hellerstedt, No. 15- 274 (U.S. 2016) .......................................................... 4 Stephen M. Shapiro et al., Supreme Court Prac- tice (10th ed. 2013) .................................................. 13 1 INTRODUCTION After a trial on the merits, the district court issued a ninety-page opinion finding that: (1) far from protect- ing women’s health, Wisconsin’s admitting privileges requirement, Section 1 of 2013 Wisconsin Act 37, Wis. Stat. § 253.095 (the “Act”), would put women’s health at risk, Pet. App. 70a-71a, 129a-30a, 173a-74a; and (2) the Act would cause an eight to ten week delay for abortions throughout the state, id. at 163a, which would push some women to later procedures that en- tail more risk, and would also prevent a substantial number of women from getting an abortion at all, id. at 164a. The district court thus held the Act unconsti- tutional and permanently enjoined its enforcement. The Seventh Circuit affirmed. Like the district court, the court of appeals found that the “medical grounds” for the Act were “nonexistent,” id. at 28a, 32a, and that it would “actually endanger women’s health,” id. at 28a. Moreover, in addition to the lack of “any benefit” to women’s health, id. at 19a, the court of appeals found that if the Act took effect some women would have to forgo first-trimester abortions and instead get second-trimester ones, which present greater risks, and other women would be unable to get an abortion at all, id. at 23a. Faced with these thorough, factually supported, and well-reasoned findings, Petitioners resort to seek- ing review on issues that were neither raised nor ruled on by the court below. On this basis alone, this Court should deny the writ. 2 Moreover, even had the questions been properly preserved, this case does not present issues warrant- ing this Court’s review. As to Question 1 (the scope of relief ), Petitioners are attempting to camouflage their disagreement with the district court’s well-supported factual findings by pointing to cases in which other courts reached different conclusions based on the dif- ferent facts before them. Planned Parenthood of South- eastern Pennsylvania v. Casey, 505 U.S. 833 (1992), however, requires courts to engage in precisely that type of fact-specific analysis, and following its com- mands does not create a circuit split. Petitioners have likewise failed
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