STATEMENT OF INTEREST

STATEMENT OF INTEREST Amici are religious leaders and pastoral counsellors from various faiths who are dedicated to protecting a woman s moral authority to terminate a pregnancy in consultation with her faith, values, and conscience. The Statements of Interest provided by individual amici are included in Appendix A to this brief and describe their views on abortion and their shared support for a woman s right to make reproductive choices in accordance with her conscience, free from undue government interference. SUMMARY OF ARGUMENT Many religious traditions recognize and support the moral right of each woman to make her own decisions about her pregnancy in accordance with her faith and conscience. All women including the poor and less fortunate among us should be able to exercise that right without unnecessary constraints or impediments. Before Roe v. Wade, 410 U.S. 113 (1973), and since that decision, religious leaders, including amici, have counseled women who are deciding whether to terminate a pregnancy and have worked to ensure that women who seek abortions can find dignity and accessible, high quality medical care. In the course of that work and particularly relevant to this case they have learned that quality abortion care can be provided outside a hospital-like setting and that freestanding clinics can provide care that is less expensive, more comfortable, and equally safe. Based on their experience, amici believe that any genuine efforts to protect the health and wellbeing of women seeking abortions must aim to increase the accessibility and affordability of safe abortion care. Texas House Bill No. 2 ( H.B. 2 ) imposes two medically unnecessary requirements that unduly burden and,

2 in many cases, would frustrate women s constitutional rights to terminate a pregnancy. In particular, H.B. 2 requires that: (1) physicians must have admitting privileges at a hospital within 30 miles of the location where the abortion is performed; and (2) abortion facilities must qualify as ambulatory surgical centers. These requirements would impose high costs and lengthy delays that make safe abortion less accessible for all women, particularly for needy women who are marginalized and most vulnerable. For these and the reasons set forth below, the amici religious leaders urge the Court to preserve a woman s right to terminate her pregnancy in accordance with her own personal or religious conscience by rejecting Texas s unduly burdensome restrictions on that right. ARGUMENT I. Religious Traditions Recognize Women s Moral Right to Decide Whether to Terminate a Pregnancy Amici belong to faiths that recognize that each woman has the moral authority to make her own decisions about her pregnancy. As religious leaders and pastoral counsellors, amici provide spiritual guidance to women facing this decision and believe that this complex decision is ultimately a moral one. That choice should not be restricted by burdensome regulations or the availability of resources. H.B. 2 interferes with a woman s moral agency by imposing requirements that would increase the cost of, and reduce access to, safe and legal abortions. While various religious groups in this country hold differing views on abortion, there is substantial agreement with amici s view that women have a moral right to make their own decisions on the issue.

3 While there is no single religious view on the circumstances under which abortion would be morally permissible, Protestant denominations generally recognize that women are moral agents who have the capacity and right to determine whether an abortion is justified in their specific circumstance, and that the decision should involve deep reflection of faith under the guidance of spiritual counselors. For example, Unitarian Universalists believe that the right of individual conscience, and respect for human life are inalienable rights due every person; and that the personal right to choose in regard to contraception and abortion is an important aspect of these rights. 1 According to the American Presbyterian Church, [h]umans are empowered by the spirit prayerfully to make significant moral choices, including the choice to continue or end a pregnancy. Human choices should not be made in a moral vacuum, but must be based on Scripture, faith, and Christian ethics. 2 1 Unitarian Universalist Association General Resolution on the Right to Choose (1987). 2 Minutes of the 217th General Assembly of the Presbyterian Church (U.S.A.) at 905 (2006). See also, e.g., United Church of Christ Statement on Reproductive Health and Justice, available at http://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/legacy_url/4 55/reproductive-health-and-justice.pdf?1418423872 ( [A]ccess to safe and legal abortion is consistent with a woman s right to follow the dictates of her faith. ); American Baptist Resolution Concerning Abortion and Ministry in the Local Church (1987) ( Recognizing that each person is ultimately responsible to God, we encourage men and women [facing the decision to have an abortion] to seek spiritual counsel as they prayerfully and conscientiously consider their decision. ).

4 Traditional Jewish teachings view abortion as a permissible means to safeguard a woman s wellbeing. 3 While Orthodox Judaism is split over the morality of non-therapeutic abortions, 4 there is a strong consensus among Reform, Reconstructionist and Conservative rabbis that [w]omen are capable of making moral decisions, often in consultation with their clergy, families and physicians, on whether or not to have an abortion. 5 Other major religions have similar views. For example, many schools of Islamic thought place only minor restrictions on a woman s choice to obtain an abortion within 120 days of conception. 6 According to the Buddhist Churches of America, it is the woman carrying the fetus, and no one else, who must in the end make this most difficult decision.... Buddhists... encourage... a decision that is both thoughtful and compassionate. 7 While a minority of American Hindus believes that abortion should be illegal in most cases, 8 others advise that each case [of abortion] requires unique consideration. The final decision will be 3 See, e.g., DAVID M. FELDMAN, MARITAL RELATIONS, BIRTH CONTROL AND ABORTION IN JEWISH LAW 271-84 (1986). 4 Id. at 289 94. 5 144 Cong. Rec. 20683 (1998) (quoting Letter of 729 Rabbis in Support of President Clinton s Veto of H.R. 1122 (Sep. 10, 1998)). 6 See Mohammed A. Albar, Induced Abortion From An Islamic Perspective: Is It Criminal Or Just Elective, 8 J. FAMILY COMMUNITY Medicine 25, 29 32 (2001). 7 Buddhist Churches of America Social Issues Committee, A Shin Buddhist Stance on Abortion, 6 BUDDHIST PEACE FELLOWSHIP NEWSLETTER 6 (1984). 8 PEW FORUM ON RELIGION & PUBLIC LIFE, U.S. RELIGIOUS LANDSCAPE SURVEY 90 (2008).

5 based on a long series of choices made by the woman on her lifestyle, morals and values. 9 The constitutional protection of a woman s right to access safe and legal abortion services without undue government interference rests on the view, shared by many religious groups, that a woman has ultimate moral agency over the decision to end her pregnancy The Constitution protects the right of individuals to make personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992). While doctrinally grounded in the right to liberty under the Due Process Clause of the Fourteenth Amendment, the Court recognized that religious interests are intimately intertwined with this protection because [t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one s own concept of existence, of meaning, of the universe, and of the mystery of human life. Belief about these matters could not define the attributes of personhood were they formed under compulsion of the State. Id. at 851; see also id. at 852 ( The destiny of the woman must be shaped to a large extent by her own conception of her spiritual imperative and her place in society. ). These considerations formed the starting point of the Court s 9 Hindus In America Speak Out On Abortion Issues. Hinduism Today, Sept. 1985, available at http://www.hinduismtoday.com/modules/smartsection/item.php?itemid=3 38.

6 analysis of the scope of a woman s right to abortion and shaped the Court s conclusion that a State may not unduly burden that right. Id. at 852, 876. When a woman determines, consistent with her faith and conscience, that abortion is an appropriate option in her specific circumstance, she must have ready access to medically safe procedures. 10 As religious leaders and pastoral counsellors, amici are committed to social justice and recognize that each woman must be afforded equal dignity and access to this healthcare. 11 H.B. 2 unduly delays and restricts access to such care. II. Women s Moral Right to Terminate a Pregnancy Should Not be Vitiated By Unnecessary Impediments on Access to Safe and Affordable Abortion Religious leaders, including amici, have a long history of engaging with reproductive health issues and counseling women who face the choice to continue or terminate a pregnancy. This history includes setting up a nationwide referral system that connected women to safe abortion options in 1967. The most challenging impediment to helping women access safe abortion at that time was not legal but rather socioeconomic. Amici responded to this challenge by 10 This belief is shared even among religious groups that generally disapprove of abortion. For instance, the United Methodist Church s belief in the sanctity of unborn human life makes us reluctant to approve abortion, but the Church nonetheless recognize[s] tragic conflicts of life with life that may justify abortion, and in such cases we support the legal option of abortion under proper medical procedures. United Methodist Church, Social Principals: The Nurturing Community, available at http://www.umc.org/what-we-believe/the-nurturing-community. 11 See e.g., United Church of Christ Statement on Reproductive Health and Justice, supra note 2 ( What is legally available to women must be accessible to all women. ).

7 establishing the first abortion clinic in the country as a way to deliver low cost, high-quality abortion services to women in need. This experience and more recent experience counselling women on reproductive issues provide compelling evidence of the need for abortion services that are accessible and affordable. Since before Roe v. Wade, pastoral counsellors have worked to ensure that women find dignity and decent medical care when they choose to end a pregnancy. Almost 50 years ago, in response to alarming rates of abortion-related maternal mortality, New York City pastors and rabbis formed the Clergy Consultation Service on Abortion (CCS) in 1967 to connect women seeking abortions with trained physicians who performed medically sound procedures. Other CCS chapters and partner organizations soon spread across the country and involved thousands of religious leaders who connected nearly a half million women with qualified physicians. 12 But CCS counselors soon recognized that they were serving mostly white, middle-class women because poor and minority women were unable to afford travel expenses and the cost of the high-quality procedures. 13 New Jersey CCS spokesman, Reverend Charles Straut, summarized counselors frustration: One of [the] most poignant disparities between dream and reality was the fact that this wonderful service... was really only helping affluent women.... We couldn't figure out a way to help the women who really needed help. 14 12 See JOSHUA WOLFF, MINISTERS OF A HIGHER LAW 94 106, 166 (1998). 13 ARLENE CARMEN AND HOWARD MOODY, ABORTION COUNSELLING AND SOCIAL CHANGE 62 (1973). 14 Wolff, supra note 12, at 168.

8 As the founders of the New York CCS Chapter later explained, [e]ach Clergy Service would eventually realize that in order to serve all women who were seeking abortions some effort would have to be made to lower the price. 15 (emphasis in original). CCS was not alone in finding that socioeconomic barriers presented a substantial challenge to delivering safe abortion care. Prior to Roe, many wealthy patients had access to legal and medically safe abortions. 16 But the lack of resources prevented low-income, minority women from exercising these options. 17 As a result, many turned to illegal and unsafe procedures that led to high mortality rates in marginalized groups. 18 Even though CCS used its market power as a national referral service to reduce prices whenever possible, highquality abortions continued to be prohibitively expensive to the most vulnerable women. In 1969, CCS began collaborating with medical professionals to establish the nation s first freestanding abortion clinic as a model for delivering low-cost abortion care to a wider population. 19 The 15 Carmen and Moody, supra note 13, at 62. 16 See LESLIE J. REAGAN, WHEN ABORTION WAS A CRIME 143, 205 (1997). 17 Id. at 204 207. 18 Rachel Benson Gold, Lessons from Before Roe: Will Past be Prologue, 6 GUTTERMACHER REPORT ON PUBLIC POLICY 8, 10 (2003) ( In New York City in the early 1960s, one in four childbirth-related deaths among white women was due to abortion; in comparison, abortion accounted for one in two childbirth-related deaths among nonwhite and Puerto Rican women. ). 19 Carmen and Moody, supra note 13, 74 75.

9 Women s Services clinic opened soon after New York legalized abortion in 1970 and was able to offer superior care for a fraction of the price at a hospital. 20 New York hospitals were overwhelmed by the surge in demand for legal abortions, and thousands of women were placed on long waiting lists. 21 Women s Services reduced delay by performing as many abortions each day as all the hospitals in New York City combined. 22 Whereas hospitals and doctor s offices charged $300 to $500 (approximately $1,800 to $3,000 in 2015 dollars), Women s Services offered abortions for $125 ($750 in 2015 dollars) and charged a nominal fee of only $25 ($150 in 2015 dollars) to low-income patients. 23 The clinic further featured a warm environment that sharply contrasted with sterile hospital rooms, and counsellors provided valuable emotional support to patients. Women s Services s low prices forced other providers to cut prices as well, thereby making safe abortions affordable to a much wider population. 24 Pastoral counselors operated Women s Services until 1978 as a model to show that freestanding abortion clinics could provide safe and low-cost care to underserved women. Since that time, freestanding clinics that emulated Women s Services s inviting atmosphere and low-cost operations have spread across the country, 20 Id. at 75-78. 21 Wolff, supra note 12, at 144. 22 Id. 23 Carmen and Moody, supra note 13, at 74 75. 24 Wolff, supra note 12, at 155-56.

10 resulting in greatly increased affordability and accessibility of high-quality abortion care. 25 The Women s Services clinic and other clinics across the country that emulated its success were able to provide safe abortions services for women of all income groups. More important for present purposes, they were able to do so without the needless and burdensome restrictions that H.B. 2 imposes, i.e., without having to qualify as ambulatory surgical centers and without a requirement for treating physicians to have admitting privileges at nearby hospitals. Imposing such requirements would impede access to safe abortions, especially for low-income women, without being necessary for safe patient care. The lesson from this experience is clear. To be effective, efforts to protect the safety, health and wellbeing of women seeking abortions must aim at making abortions more affordable and more accessible, not less so. H.B. 2 runs counter to that objective. The restrictions that H.B. 2 imposes would force some clinics to close and would increase the cost of services at others. Rather than improving women s health, this would have the opposite effect by making safe, legal abortions unavailable and unaffordable for many women. The district court found that H.B. 2 s practical impact on Texas women due to the clinics closure statewide would operate for a significant number of women in Texas just as drastically as a complete ban on abortion. Whole Woman's Health v. Lakey, 46 F. Supp. 3d 673, 682 (W.D. Tex. 2014). A just and moral society should not restrict access to safe, legal abortions 25 Id. at 157-58. Clinics now provide the overwhelming majority of abortion in the United States. See, e.g., Rachel K. Jones and Katheryn Kooista, Abortion incidence and access to services in the United States, 43 PERSPECTIVES ON SEXUAL AND REPRODUCTIVE HEALTH 41, 46 (2011) (estimating that 94% of abortions are performed in a clinical setting).

11 to women of means, while relegating the less fortunate to less safe and illegal alternatives. III. H.B. 2 Injures Women s Health and Dignity by Increasing Costs and Decreasing Access to Safe Abortion Care As the district court found, H.B. 2 undermines its purported goal of promoting women s health. Lackey, 46 F. Supp. 3d at 684 85. The American Medical Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, and other medical professionals agree, in their amicus briefs in this case, that the requirements imposed by H.B. 2 serve no medical purpose and do not promote women s health. 26 At the same time, these requirements place substantial obstacles to abortion access that injure women s health and dignity, and therefore are constitutionally invalid. Prior to the enactment of H.B. 2 in 2013, there were over 40 clinics in Texas serving approximately 60,000 women who sought abortion care each year. Lakey, 46 F. Supp. 3d at 681. That number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement. Id. If the Court upholds the law, the number of clinics in Texas will shrink to ten or fewer, all concentrated in four urban centers: Dallas/Fort Worth, Austin, San Antonio, and Houston. Id. Experience in New York in the early 1970s indicates that reducing the numbers of abortion providers will 26 Brief of American Public Health Association as Amici Curiae Supporting Certiorari, Whole Women s Health v. Cole, 12-18 (Oct 5, 2015); Brief of American College of Obstetricians and Gynecologists, et al., as Amicus Curiae Supporting Certiorari, Whole Women s Health v. Cole, 21 (Oct 5, 2015) ( H.B. 2 does nothing to further the safety of abortions or the competency of those performing them in Texas.... H.B. 2 is an unnecessary regulation that presents risks to women s health by restricting and delaying access to safe abortion. ).

12 create long wait lists that force women to undergo later, and therefore riskier, procedures. 27 Clinic closures have already driven up wait times in Austin and Dallas/Fort Worth to over 20 days in some instances, and further closures will result in similar or longer wait times throughout Texas. 28 These wait times likely understate actual delays resulting from H.B. 2 because they do not take into account the time for rural women to make travel plans to one of Texas urban centers. These delays present a substantial obstacle to a woman s right to abortion services not only by restricting access, but also by exposing thousands of women to greater health risks that accompany later abortions. 29 27 See Planned Parenthood of Wis., Inc. v. Schimel, No. 15-1736, 2015 U.S. App. LEXIS 20369, *at 34 (7th Cir. Nov. 23, 2015) ( For abortions performed in the first trimester the rate of major complications is 0.05-0.06 percent (that is, between five one-hundredths of 1 percent and six one-hundredths of 1 percent). It is 1.3 percent for second-trimester abortions between 22 and 26 times higher. ) (Citing Tracy A. Weitz et al., Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California Legal Waiver, 103 AM. J. PUBLIC HEALTH 454, 457-58 (2013); Kelly Cleland et al., Significant Adverse Events and Outcomes After Medical Abortion, 121 OBSTETRICS & GYNECOLOGY 166, 169 (2013); Anna C. Frick et al., Effect of Prior Cesarean Delivery on Risk of Second- Trimester Surgical Abortion Complications, 115 OBSTETRICS & GYNECOLOGY 760 (2010)). 28 See Daniel Grossman et al., Abortion Wait Times in Texas: The Shrinking Capacity of Facilities and the Potential Impact of Closing Non- ASC Clinics, Texas Policy Evaluation Project 2 4 (2015), available at http://www.utexas.edu/cola/txpep/research-briefs/ wait-times-researchbrief.php. 29 Id. at 5 (estimating that closure-related delays will cause 5,700 women who would have had first trimester abortions to have second trimester abortions).

13 Later abortions are more expensive than simple, early procedures, 30 and women from outside of Texas urban centers must further raise funds and make arrangements for transportation, lodging, child care, and other attendant travel costs to reach an abortion provider. 31 Increased expenses and delays will make abortion inaccessible to many women. 32 While the birth of a cherished child is an occasion for genuine celebration, forcing an unwilling woman to carry to term a pregnancy is not. 33 Being forced to carry an unwanted pregnancy to term not only exposes a woman to greater health risks, 34 but is also an affront to her right to decide whether to 30 [T]he average charge for an abortion at 10 weeks is $543 compared with $1562 for an abortion at 20 weeks. D. Upadhyay et al., Denial of Abortion Because of Provider Gestational Age Limits in the United States, 104 AM. J. PUB. HEALTH 1687, 1687 (Aug. 15, 2013). 31 Under H.B. 2, more than one-and-a-half million Texas women live over 100 miles away from the closest abortion provider. Lackey, 46 F. Supp. At 681. Practical concerns that include lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, [and] the time and expense involved in traveling long distances present substantial obstacles, particularly for financially disadvantaged women. Id. at 682 83. See also Schimel, No. 15-1736 2015 U.S. App. LEXIS 20369, *at 31 32 (highlighting the difficulty for low-income women to travel 90 miles to find an abortion provider). 32 D. Upadhyay et al., supra note 30, at 1692 93 (time spent raising money to pay for an abortion and transportation represents a primary cause of delay in obtaining an abortion, and many women were unable to reach an abortion provider before their pregnancy had exceeded the gestational period after which the provider no longer offered care.). 33 See Jessica D. Gipson, et al., The Effects of Unintended Pregnancy on Infant, Child, and Paternal Health: A Review of the Literature, 39 Stud. Fam. Plan. 18, 24, 28 (2008) (finding that women who carry to term unwanted pregnancies experience greater risk for maternal depression, and children born from unwanted births suffer increased health risks). 34 See Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119(2) Obstetrics & Gynecology 5 (2012).

14 terminate a pregnancy, in accordance with her faith and values. 35 A law that takes the choice away from the woman, by inflating the cost of safe abortion services beyond her means, imposes an undue and unconstitutional burden on that right. See Schimel, No. 15-1736, 2015 U.S. App. LEXIS 20369, at *31 32. Restricting access to legal abortion reduces neither pregnancy rates nor the demand for abortion services. 36 When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies. Gonzales v. Carhart, 550 U.S. 124, 184 n.9 (2007) (Ginsberg J., dissenting) (compiling evidence demonstrating that [r]estrictive legislation is associated with a high incidence of unsafe abortion ) (citations omitted). Indeed, inadequate access to legal abortion services combined with the availability of abortion drugs from Mexico has caused an upward trend of self-induced abortion in Texas. 37 Women who attempted self-induced abortions report inadequate funds and the closure of local clinics as 35 RELIGIOUS INSTITUTE, A TIME TO EMBRACE 28-29 (2015) ( In a just world, all people would have equal access to contraception and abortion services. The denial of these services effectively translates into coercive childbearing and is an insult to human dignity. Current measures that limit access to contraception and abortion services are punitive and do nothing to promote moral decision making. ). 36 See also Gilda Sedgh et al., Induced Abortion: Incidence and Trends Worldwide from 1995 to 2008, 379 THE LANCET 625, 625 26 (2012) (concluding that restrictive abortion laws are not associated with lower abortion rates). 37 See Erica Hellerstein, The Rise of the DIY Abortion in Texas, THE ATLANTIC, June 27, 2014; see also Daniel Grossman et al., Texas Women s Experience Attempting Self-Induced Abortion In the Face of Dwindling Options, Texas Policy Evaluation Project 1 (2015), available at https://utexas.app.box.com/wexselfinductionresearchbrief.

15 primary reasons for their actions. 38 Pastoral counsellors labored to direct women away from medically unsound abortions precisely because they witnessed first-hand the aftermath of such practices. Any law that directs women towards less safe and unlawful abortions must be struck down. The harmful impact of H.B. 2 would fall most heavily on the most vulnerable and marginalized women. Middleclass women could afford to travel to one of Texas urban centers or out of state to avoid long wait times to have a safe, legal abortion. But needy women lack such options. There are already glaring racial and socioeconomic disparities in access to safe abortion care among Texan women. Selfinduced abortion, for instance, is most common among Latina women living near the Mexican border and women who face barriers to reproductive health services. 39 H.B. 2 erects new barriers that exacerbate preexisting disparities. The most vulnerable and needy women should have no less access to abortion services than the more fortunate among us. Any regulation that has the the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus is unconstitutional. Casey, 550 U.S. at 877. By shutting down all but a handful of abortion clinics in Texas, H.B. 2 literally places hundreds of miles and weeks of delay in the paths of Texan women. These obstacles are especially burdensome on low-income women who cannot afford to travel to one of the few remaining clinics. H.B. 2 has the undeniable effect of unduly burdening a woman s right to access safe and legal previability abortion. While Texas has a legitimate interest from the outset of pregnancy in protecting the health of the woman, id. at 846, H.B. 2 fails to serve that interest because 38 Daniel Grossman et al., supra note 37, at 2. 39 Id. at 4.

16 it utterly lacks medical justification. Accordingly, the Court must strike down this law as unconstitutional. CONCLUSION This Court should reverse the Fifth Circuit s decision.