Case: 23-10246 Document: 36-1 Page: 1 Date Filed: 05/08/2023
`
`
`
`No. 23-10246
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`
`STATE OF TEXAS; AMERICAN ASSOCIATION OF PRO-LIFE
`OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL & DENTAL
`ASSOCIATIONS,
`Plaintiffs-Appellees
`v.
`XAVIER BECERRA; UNITED STATES DEPARTMENT OF HEALTH AND
`HUMAN SERVICES; CENTERS FOR MEDICARE AND MEDICAID
`SERVICES; KAREN L. TRITZ; DAVID R. WRIGHT,
`Defendants-Appellants
`
`
`On Appeal from the United States District Court for the Northern District of Texas
`(No. 5:22-CV-185-H)
`
`
`
`
`
`BRIEF OF AMICI CURIAE COUNTY OF SANTA CLARA, CALIFORNIA
`AND 11 ADDITIONAL CITIES AND COUNTIES IN SUPPORT OF
`DEFENDANT-APPELLANTS AND IN SUPPORT OF REVERSAL
`
`
`James R. Williams
`County Counsel, County of Santa Clara
`Kavita Narayan
`Meredith A. Johnson
`Rachel A. Neil*
`70 West Hedding Street, Ninth Floor, East Wing
`San José, CA 95110
`Attorneys for Amici Curiae
`
`(Complete Listing of Amici Curiae on Next Page)
`
`
`
`
`
`
`
`

`

`Case: 23-10246 Document: 36-1 Page: 2 Date Filed: 05/08/2023
`
`Complete Listing of Amici Curiae
`
`
`The County of Santa Clara, California
`Travis County, Texas
`King County, Washington
`The County of Milwaukee, Wisconsin
`The County of Marin, California
`The County of Monterey, California
`The County of Los Angeles, California
`The City of Austin, Texas
`The City of Madison, Wisconsin
`The City of Northampton, Massachusetts
`The City of Philadelphia, Pennsylvania
`The City and County of San Francisco, California
`
`
`
`2
`
`

`

`Case: 23-10246 Document: 36-1 Page: 3 Date Filed: 05/08/2023
`
`CERTIFICATE OF INTERESTED PERSONS
`
`1. Case No. 23-10246, State of Texas v. Xavier Becerra.
`
`2.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1(a), Federal Rule
`
`of Appellate Procedure 29(a)(4)(A), and Fifth Circuit Rule 28.2.1, amici curiae cities
`
`and counties need not furnish a certificate of interested persons because they are
`
`governmental entities.
`
`Respectfully submitted,
`
`
` /s/ Rachel A. Neil__________
`Rachel A. Neil
`
`
`
`3
`
`

`

`Case: 23-10246 Document: 36-1 Page: 4 Date Filed: 05/08/2023
`
`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES ................................................................................. ii
`INTERESTS OF AMICI CURIAE ......................................................................... 1
`ARGUMENT ............................................................................................................ 2
`I. Delaying or Denying Abortion to Patients Experiencing Serious
`Pregnancy Complications Endangers Patients’ Health and Risks Their Lives
` ................................................................................................................................. 4
`A. Preeclampsia and Eclampsia ...................................................................... 5
`B. Preterm Premature Ruptured Membranes ............................................... 8
`C. Ectopic Pregnancy .....................................................................................10
`II. Patients with Chronic Illness May Require Abortion to Protect Their
`Health and/or to Allow Them to Access Treatment for Their Illness ...........12
`A. Cancer .........................................................................................................13
`B. Cardiac Conditions ....................................................................................14
`C. Renal Conditions ........................................................................................15
`III. Denying or Delaying the Treatment of Patients with Pregnancy
`Complications Threatens to Erode Public Trust in Healthcare Providers and
`Thereby Undermine the Public Health and Welfare ......................................16
`Conclusion ...............................................................................................................21
`CERTIFICATE OF COMPLIANCE ..................................................................24
`STATEMENT UNDER FRAP 29(a)(4)(E) ..........................................................25
`
`
`
`
`
`
`
`i
`
`

`

`Case: 23-10246 Document: 36-1 Page: 5 Date Filed: 05/08/2023
`
`TABLE OF AUTHORITIES
`
`
`Cases
`United States v. Idaho, No. 22-cv-00329 (D. Idaho Aug. 25, 2022) .......................12
`Statutes
`Tex. Health & Safety Code § 170A.001 .................................................................... 5
`
`Tex. Health & Safety Code § 170A.002(b) .............................................................11
`
`Tex. Health & Safety Code § 245.002(1)(C) ...........................................................11
`
`Other Authorities
`Am. College of Obstet. & Gyn., Code of Professional Ethics 2 (Dec. 2018) .....5, 10
`
`Am. College of Obstet. & Gyn., Pregnancy and Heart Disease, Prac. Bull. No. 212
`(May 2019) ............................................................................................................15
`
`
`Am. College of Obstet. & Gyn., Tubal Ectopic Pregnancy, Prac. Bull. No. 193
`(March 2018) ........................................................................................................10
`
`
`Carly Parnitzke Smith, First, do no harm: institutional betrayal and trust in health
`care organizations, 10 J. Multidisc. Healthcare 133 (2017) ................................17
`
`
`Catherine Jane Golics et al., The impact of disease on family members: a critical
`aspect of medical care, 106 J. Royal Soc. Med. 399 (2013), https://www.ncbi.
`nlm.nih.gov/pmc/articles/PMC3791092/ ..............................................................20
`
`
`Center for Disease Control and Prevention, Pregnancy-Related Deaths in the
`United States (Nov. 16, 2022), https://www.cdc.gov/hearher/pregnancy-related-
`deaths/index.html ..................................................................................................12
`
`
`
`
`
`ii
`
`

`

`Case: 23-10246 Document: 36-1 Page: 6 Date Filed: 05/08/2023
`
`Cervical Cancer, Mayo Clinic (Dec. 14, 2022), https://www.mayoclinic.org/
`diseases-conditions/cervical-cancer/diagnosis-treatment/drc-20352506 .............13
`
`
`Consumer Financial Protection Bureau, Medical Debt Burden in the United States
`(2022), https://files.consumerfinance.gov/f/documents/cfpb_medical-debt-
`burden-in-the-united-states_report_2022-03.pdf ..................................................20
`
`
`Ectopic Pregnancy, Am. College of Obstet. & Gyn. (July 2022), https://www.acog.
`org/womens-health/faqs/ectopic-pregnancy. ........................................................10
`
`
`Ectopic Pregnancy, Mayo Clinic (March 12, 2022), https://www.mayoclinic.org/
`diseases-conditions/ectopic-pregnancy/symptoms-causes/syc-20372088 .... 10, 11
`
`
`Johanna Birkhäuer et al., Trust in the health care professional and health
`outcomes: A meta-analysis, Pub. Libr. Sci. ONE, Feb. 7, 2017 ...........................19
`
`
`Laura Santhanam, How abortion bans will likely lead to more deadly infections,
`PBS NewsHour (July 27, 2022, 2:13 PM EST), https://www.pbs.org/newshour/
`health/how-abortion-bans-will-likely-lead-to-more-deadly-infections ................18
`
`
`Maria L. Gonzalez Suarez et al., Renal Disorders in Pregnancy: Core Curriculum
`2019, 73 Am. J. Kidney Disease 119 (2019) ........................................................16
`
`
`Nao Oguro et al., The impact that family members’ health care experiences have
`on patients’ trust in physicians, BMC Health Serv. Rsch., Oct. 19, 2021 ...........18
`
`
`Preeclampsia, Mayo Clinic (Apr. 15, 2022), https://www.mayoclinic.org/diseases-
`conditions/preeclampsia/symptoms-causes/syc-20355745 .................................... 6
`
`
`Promoting Cancer Early Diagnosis, World Health Organization, https://www.who.
`int/activities/promoting-cancer-early-diagnosis (last visited May 8, 2023) .........14
`
`
`
`
`
`iii
`
`

`

`Case: 23-10246 Document: 36-1 Page: 7 Date Filed: 05/08/2023
`
`Roman Lewandowski et al., Restoring patient trust in healthcare: medical
`information impact case study in Poland, BMC Health Serv. Rsch., Aug. 24,
`2021 .......................................................................................................................19
`
`
`Sepsis, Mayo Clinic (Jan. 19, 2021), https://www.mayoclinic.org/diseases-
`conditions/sepsis/symptoms-causes/syc-20351214 ................................................ 9
`
`
`Thomas A. LaVeist et al., Mistrust of Health Care Organizations is Associated
`with Underutilization of Health Services, 44 Health Servs. Rsch. 2093 (2009) ..19
`
`
`Timothy P. Hanna et al., Mortality due to cancer treatment delay: systematic
`review and meta-analysis, Brit. Med. J., Nov. 4, 2020 ........................................14
`
`
`What is Sepsis?, Center for disease Control and Prevention (Aug. 9, 2022),
`https://www.cdc.gov/sepsis/what-is-sepsis.html .................................................... 9
`
`
`Whitney Arey et al., A Preview of the Dangerous Future of Abortion Bans—Texas
`Senate Bill 8, New England J. of Med. (Aug. 4, 2022), https://www.nejm.org/
`doi/full/10.1056/NEJMp2207423 .........................................................................17
`
`
`Z.H. Xiao et al., Outcome of premature infants delivered after prolonged
`premature rupture of membranes before 25 weeks of gestation, 90 Eur. J. Obstet.
`Gyn. Reprod. Bio. 67 (May 1, 2000) ...................................................................... 8
`
`
`
`
`
`iv
`
`

`

`Case: 23-10246 Document: 36-1 Page: 8 Date Filed: 05/08/2023
`
`INTERESTS OF AMICI CURIAE1
`
`Amici curiae are counties and cities across the United States that maintain
`
`public health departments, own or operate hospitals or clinics, or otherwise fund
`
`healthcare services for their residents. Amici are geographically diverse
`
`jurisdictions that range in size, specifically, the County of Santa Clara, California;
`
`Travis County, Texas; King County, Washington; County of Milwaukee,
`
`Wisconsin; County of Marin, California; County of Monterey, California; County
`
`of Los Angeles, California; City of Austin, Texas; City of Madison, Wisconsin; City
`
`of Northampton, Massachusetts; City of Philadelphia, Pennsylvania; and City and
`
`County of San Francisco, California.
`
`As local governments, amici are responsible, both in practice and often by
`
`legal mandate, for protecting the health and wellbeing of our communities. Many
`
`local governments provide direct medical services focused on serving indigent and
`
`other underserved populations. In addition, local governments provide emergency
`
`medical transportation and public health services, operate law enforcement agencies
`
`and jail facilities, maintain public infrastructure, assist vulnerable children and the
`
`elderly, promote economic security, and respond
`
`to public emergencies.
`
`
`1 Amici curiae submit this amicus brief with the consent of all parties, pursuant to Federal Rule of
`Appellate Procedure 29(a)(2). No counsel for a party authored this brief in whole or in part, and
`no party or counsel for a party made a monetary contribution intended to fund the preparation or
`submission of this brief. No person other than amici curiae or their counsel made a monetary
`contribution to this brief’s preparation or submission.
`
`
`
`1
`
`

`

`Case: 23-10246 Document: 36-1 Page: 9 Date Filed: 05/08/2023
`
`Accordingly, amici have a strong interest in ensuring public safety and welfare in
`
`the medical sphere and beyond.
`
`Moreover, by virtue of their role in safeguarding public health and/or
`
`providing healthcare services, amici are knowledgeable about the circumstances in
`
`which abortion can be medically necessary, and the potentially severe medical and
`
`public health consequences—both at an individual level and a community-wide
`
`level—of delaying or denying care in such cases. Amici submit this brief to provide
`
`critical context about the significant and dangerous consequences for patients and
`
`for public welfare of stripping away the legal protections that ensure timely access
`
`to that care.
`
`ARGUMENT
`
`As local governments responsible for protecting the health and welfare of our
`
`communities—including, for example, by protecting public health, providing direct
`
`medical services, promoting economic security, and providing emergency response
`
`services—amici respectfully urge the Court to reverse the district court’s judgment.
`
`Stripping away legal protections that ensure patients have timely access to medically
`
`necessary abortions—such as the protections set out in the Emergency Medical
`
`Treatment & Labor Act (“EMTALA”) and described in the U.S. Health and Human
`
`Services Department’s Guidance and Letter (“HHS Guidance”)—will expose
`
`patients experiencing dangerous pregnancy complications to significant, potentially
`
`
`
`2
`
`

`

`Case: 23-10246 Document: 36-1 Page: 10 Date Filed: 05/08/2023
`
`life-threatening health repercussions that will in turn have a harmful ripple effect
`
`throughout the community. Because prompt treatment is often critical to protecting
`
`a patient’s health, the consequences of delaying medically necessary abortions can
`
`be extreme and may mean the difference between life and death for a patient, with
`
`devastating consequences for the patient’s family and community.
`
`Even under the absolute best medical circumstances, pregnancy imposes
`
`significant stress on a patient’s body and on major bodily functions. In cases
`
`involving dangerous health complications, continuing a pregnancy can cause severe,
`
`and even fatal, illness or injury. In such circumstances, doctors must act quickly to
`
`safeguard patients’ health and minimize the risk to patients’ lives. However, without
`
`legal protections that ensure timely care for patients experiencing serious pregnancy
`
`complications, patients in states with restrictive abortion laws may be forced to
`
`suffer greatly as their health deteriorates, sometimes irreparably, while physicians
`
`delay critical, health-preserving care.
`
`In addition to endangering individual patients, eliminating protections that
`
`ensure timely access to care threatens to harm public health more broadly by
`
`undermining patients’ trust that the healthcare system will be responsive to their
`
`needs or the needs of their loved ones. Patient trust is fundamental to healthcare
`
`providers’ ability to treat patients, encourage healthy behaviors, and facilitate
`
`positive health outcomes for the public. Without that trust, patients may become
`
`
`
`3
`
`

`

`Case: 23-10246 Document: 36-1 Page: 11 Date Filed: 05/08/2023
`
`skeptical that they can obtain the care they need and, as a result, delay or altogether
`
`forgo seeking important care. When segments of the population do not or cannot
`
`access adequate health care, the wellbeing of the entire community is undermined.
`
`For the foregoing reasons, amici respectfully urge the Court to reverse the district
`
`court’s judgment.
`
`I.
`
`Delaying or Denying Abortion to Patients Experiencing Serious
`Pregnancy Complications Endangers Patients’ Health and Risks Their
`Lives.
`
`As set forth above, amici are local governments that maintain public health
`
`departments, own or operate hospitals or clinics, or otherwise fund healthcare
`
`services for their residents. As entities that are broadly responsible for ensuring the
`
`safety and wellbeing of our communities—and do so, in part, by providing and
`
`facilitating access to healthcare—amici have a strong interest in ensuring that the
`
`laws governing healthcare institutions promote, rather undermine, both individual
`
`patient health and broader public welfare.
`
`At the individual patient level, amici have an interest in minimizing dangerous
`
`health conditions and complications that sometimes arise during pregnancy and can
`
`render access to abortion necessary to protect pregnant patients’ health and minimize
`
`the risk to their lives. Requiring doctors to delay abortions for patients suffering
`
`from such complications, contrary to their medical judgment, threatens patients’
`
`health and will in some cases cause maternal deaths that could have been avoided.
`
`
`
`4
`
`

`

`Case: 23-10246 Document: 36-1 Page: 12 Date Filed: 05/08/2023
`
`Numerous pregnancy-related conditions, including but not limited to
`
`preeclampsia and eclampsia, preterm premature rupture of membranes, and ectopic
`
`pregnancies, pose serious risks to patient health and, if not treated in a timely or
`
`urgent manner, can prove fatal.2 Enjoining application of the protections set out in
`
`EMTALA and the HHS Guidance risks the health and survival of pregnant patients
`
`with these and other conditions. As set forth more fully in Section III of this brief,
`
`denying timely and necessary care not only deprives each pregnant patient of their
`
`most fundamental rights, it also threatens lasting consequences to the public health
`
`and welfare. As entities charged with protecting the public health, amici have a
`
`strong interest in preventing these harms.
`
`Preeclampsia and Eclampsia
`
`A.
`
`One area where emergency abortion care can be necessary is when a patient
`
`suffers from preeclampsia or eclampsia. Preeclampsia is a complication of
`
`pregnancy characterized by high blood pressure, proteinuria (i.e., elevated levels of
`
`
`2 While the Texas “trigger law” prohibiting abortion provides an exception where the patient “has
`a life-threatening physical condition” related to the pregnancy that places the patient’s life at risk
`or poses a “serious risk of substantial impairment of a major bodily function,” Tex. Health &
`Safety Code § 170A.002(b), in practice this may not be the benevolent life-saving exception it
`appears to be. Rather, all too often, delaying medically necessary abortions until the point at which
`the patient is at serious risk means gambling with the patient’s life and health. This is harmful to
`patients and, by forcing physicians to delay care rather than allowing them to make decisions based
`on their sound medical judgment, it runs contrary to the fundamental principle of medical ethics
`that physicians must prioritize their patients’ health and welfare in all medical assessments. See
`Am. College of Obstet. & Gyn., Code of Professional Ethics 2 (Dec. 2018).
`
`
`
`5
`
`

`

`Case: 23-10246 Document: 36-1 Page: 13 Date Filed: 05/08/2023
`
`protein in urine), and/or other signs of kidney problems.3 In severe cases,
`
`preeclampsia can cause organ damage, placental abruption, severe uterine bleeding,
`
`stroke or other brain injury, and even death.4 Eclampsia—which is one of the
`
`leading causes of maternal mortality worldwide—is an extremely dangerous
`
`complication of severe preeclampsia that is characterized by the onset of seizures or
`
`coma.
`
`These conditions can progress rapidly and unpredictably. Thus, while
`
`preeclampsia can be managed in many cases—thereby allowing a patient to safely
`
`continue the pregnancy—patients suffering from eclampsia or severe preeclampsia
`
`prior to fetal viability may require an abortion to avoid severe, potentially life-
`
`threatening health consequences. Given the rapid and unpredictable nature of the
`
`condition, it is essential that doctors be able to act quickly to safeguard patients’
`
`health and lives—which they may be constrained or chilled from doing should this
`
`Court uphold the district court’s judgment barring application of the protections set
`
`forth in EMTALA and the HHS Guidance.5
`
`
`3 See Am. College of Obstet. & Gyn., Gestational Hypertension and Preeclampsia, Prac. Bull. No.
`222 (Dec. 2018); Preeclampsia, Mayo Clinic (Apr. 15, 2022), https://www.mayoclinic.org/
`diseases-conditions/preeclampsia/symptoms-causes/syc-20355745.
`4 See Am. College of Obstet. & Gyn., Gestational Hypertension and Preeclampsia, Prac. Bull. No.
`222 (Dec. 2018); Preeclampsia, Mayo Clinic (Apr. 15, 2022), https://www.mayoclinic.org/
`diseases-conditions/preeclampsia/symptoms-causes/syc-20355745.
`5 See Am. College of Obstet. & Gyn., Gestational Hypertension and Preeclampsia, Prac. Bull. No.
`222 (Dec. 2018).
`
`
`
`6
`
`

`

`Case: 23-10246 Document: 36-1 Page: 14 Date Filed: 05/08/2023
`
`Indeed, delaying the availability of abortion in cases of preeclampsia or
`
`eclampsia—even by as little as a day or two—can have catastrophic repercussions,
`
`including permanent damage to the pregnant patient’s heart, kidneys, liver, lungs,
`
`and/or brain.6 A delay in receiving care may also result in irrevocable damage to
`
`the patient’s uterus because of severe hemorrhaging, which may require doctors to
`
`perform a hysterectomy that would have been unnecessary had the patient received
`
`timely care—and even if a hysterectomy is not required, the damage caused by
`
`hemorrhage may hinder the patient’s ability to have future successful pregnancies.
`
`Finally, in the worst cases, delays in providing a medically necessary abortion to a
`
`patient suffering from severe preeclampsia and/or eclampsia can cost the patient’s
`
`life.
`
`In sum, when dealing with serious pregnancy complications like preeclampsia
`
`and eclampsia, even small differences in the timing of care can make the difference
`
`between recovery and permanent injury, and between life and death. This throws
`
`into sharp relief the critical role of EMTALA in ensuring that pregnant patients who
`
`are experiencing emergency medical conditions receive timely care, and the
`
`consequences of the district court’s decision to discard those essential protections.
`
`6 See id.
`
`
`
`
`
`7
`
`

`

`Case: 23-10246 Document: 36-1 Page: 15 Date Filed: 05/08/2023
`
`Preterm Premature Ruptured Membranes
`
`B.
`
`Another dangerous pregnancy complication that requires urgent care is
`
`preterm premature rupture of the membranes of the amniotic sac. During a typical
`
`pregnancy, the membranes will rupture at or around full term, at which point the
`
`patient will go into labor. But when the membranes rupture very early in a
`
`pregnancy—i.e., long before fetal viability—this complication poses significant
`
`health risks to the pregnant patient. Once the membranes rupture, the amniotic fluid
`
`that surrounds the embryo or fetus (which is essential to fetal development) typically
`
`drains away. However, if the pregnancy is still in the very early stages, the patient
`
`may not go into labor.
`
`At this point, the patient faces a serious risk of infection because the placenta
`
`and fetus remain inside the uterus, even though the pregnancy is failing. Even if
`
`signs of a fetal heartbeat remain, the chances are very low that a pregnancy involving
`
`extremely early rupture could be carried to the point of successful delivery.7
`
`Meanwhile, allowing the pregnancy to continue despite the ruptured membranes
`
`puts the pregnant patient’s health in grave danger. If doctors do not promptly
`
`terminate the pregnancy, the patient is at risk of developing an infection that could
`
`
`7 See Z.H. Xiao et al., Outcome of premature infants delivered after prolonged premature rupture
`of membranes before 25 weeks of gestation, 90 Eur. J. Obstet. Gyn. Reprod. Bio. 67, 67, 70 (May
`1, 2000) (describing the low chance of survival for infants who are delivered before 22 weeks
`because of premature rupture). By contrast, if the membranes rupture closer to viability, there is
`a greater likelihood that physicians will be able to perform a successful premature delivery.
`
`
`
`8
`
`

`

`Case: 23-10246 Document: 36-1 Page: 16 Date Filed: 05/08/2023
`
`in turn lead to sepsis—a life-threating condition in which the body’s response to
`
`infection causes inflammation and blood clotting that impairs blood flow and can
`
`damage vital organs and even lead to death.8 Moreover, even if the patient survives,
`
`sepsis increases patients’ risk of suffering infections in the future.
`
`Complications arising from delays in care can also cause hemorrhaging or
`
`scarring of the uterus that permanently impairs fertility. In some cases, patients may
`
`be forced to undergo a hysterectomy due to the advanced progression of the
`
`infection, preventing them from being able to get pregnant in the future. These
`
`severe physical harms are compounded with the psychological distress and trauma
`
`that patients—including patients who very much hoped for and wanted the
`
`pregnancy, and who may want future pregnancies—will suffer from being forced,
`
`against their wishes and contrary to their medical providers’ judgment, to carry a
`
`pregnancy that is no longer viable yet continues to cause physical suffering and
`
`threaten their long-term health and reproductive ability.9 Once again, it is critical
`
`that providers be able to provide care, without delay, in such situations.
`
`
`8 See Sepsis, Mayo Clinic (Jan. 19, 2021), https://www.mayoclinic.org/diseases-conditions/sepsis
`/symptoms-causes/syc-20351214; see also What is Sepsis?, Center for disease Control and
`Prevention (Aug. 9, 2022), https://www.cdc.gov/sepsis/what-is-sepsis.html.
`9 Unnecessarily delaying medically necessary abortions, to the detriment of patient health and at
`the risk of their lives, is contrary to medical ethics in general. See Am. College of Obstet. & Gyn.,
`Code of Professional Ethics 2 (Dec. 2018). And delaying care is particularly egregious where the
`fetus’s development is no longer compatible with life—including, for example, in many cases of
`preterm premature rupture. Other conditions that are incompatible with survival of the fetus
`outside of the womb include: ectopic pregnancy (pregnancy implants outside of the uterus);
`
`
`
`
`9
`
`

`

`Case: 23-10246 Document: 36-1 Page: 17 Date Filed: 05/08/2023
`
`C. Ectopic Pregnancy
`
`Another dangerous pregnancy condition that requires the kind of urgent
`
`medical care that EMTALA and the HHS Guidance are designed to ensure is ectopic
`
`pregnancy.10 During a typical pregnancy, the fertilized egg implants in the lining of
`
`the uterus and begins to develop. In an ectopic pregnancy, however, the fertilized
`
`egg implants and begins to grow outside of the normal uterine lining.11 The most
`
`common type of ectopic pregnancy is a tubal pregnancy, in which the fertilized egg
`
`implants in a fallopian tube. Other types of ectopic pregnancies include cervical
`
`(implanted in the cervix); Caesarean scar (implanted in a Caesarean section scar on
`
`the uterus); ovarian (implanted in an ovary); and abdominal (implants outside of the
`
`womb in another part the abdomen). An ectopic pregnancy cannot be carried to term
`
`and is extremely dangerous. If left untreated, ectopic pregnancy can cause severe
`
`and permanent health consequences up to and including death. For example, in a
`
`
`anencephaly (fatal condition where the brain and skull of the fetus do not develop); and congenital
`diaphragmatic hernia (fatal condition that prevents lungs from developing).
`10 See Am. College of Obstet. & Gyn., Tubal Ectopic Pregnancy, Prac. Bull. No. 193 (March
`2018).
`11 Id.; see also Ectopic Pregnancy, Mayo Clinic (March 12, 2022), https://www.mayoclinic.org/
`diseases-conditions/ectopic-pregnancy/symptoms-causes/syc-20372088; Ectopic Pregnancy, Am.
`College of Obstet. & Gyn. (July 2022), https://www.acog.org/womens-health/faqs/ectopic-
`pregnancy.
`
`
`
`10
`
`

`

`Case: 23-10246 Document: 36-1 Page: 18 Date Filed: 05/08/2023
`
`tubal pregnancy, the fallopian tube can rupture, causing heavy internal bleeding and
`
`risking organ damage, reduced fertility, and death.12
`
`While Texas law appears to exclude termination of an ectopic pregnancy from
`
`its ban on abortion,13 ectopic pregnancies are just one of several conditions that may
`
`require timely provision of an abortion to preserve patient health and minimize the
`
`risk to the patient’s life. Furthermore, there is no guarantee that states’ restrictions
`
`on abortion will necessarily include an exception for ectopic pregnancy. For
`
`example, until recently, Idaho had taken the position that terminations of ectopic
`
`pregnancies qualify as abortions subject to Idaho’s stringent abortion ban.14 These
`
`discrepancies in the legal characterization of ectopic pregnancies and their
`
`termination only highlight the importance of laws, like EMTALA, that safeguard
`
`patient health throughout the United States by ensuring timely access to medically
`
`necessary care.
`
`The pregnancy complications discussed above illustrate, but do not fully
`
`capture, the severe and even life-threatening consequences if patients suffering from
`
`serious pregnancy complications are denied medically necessary abortions or are
`
`needlessly forced to wait to receive such care. Research shows that most maternal
`
`
`12 See Ectopic Pregnancy, Mayo Clinic (March 12, 2022), https://www.mayoclinic.org/diseases-
`conditions/ectopic-pregnancy/symptoms-causes/syc-20372088.
`13 See Tex. Health & Safety Code §§ 170A.001, 245.002(1)(C).
`14 Transcript of Oral Argument at 24:19-25:12, United States v. Idaho, No. 22-cv-00329 (D. Idaho
`Aug. 25, 2022), at ECF No. 96.
`
`
`
`11
`
`

`

`Case: 23-10246 Document: 36-1 Page: 19 Date Filed: 05/08/2023
`
`deaths in the United States are preventable.15 Requiring doctors to risk patient health
`
`by delaying or denying health-preserving care, contrary to their medical judgment,
`
`will surely exacerbate this public health problem at the cost of patients’ lives and
`
`health and to the detriment of their communities. As local governments, amici seek
`
`to protect public health and welfare, and therefore urge the Court to reverse the
`
`district court’s decision below.
`
`II.
`
`Patients with Chronic Illness May Require Abortion to Protect Their
`Health and/or to Allow Them to Access Treatment for Their Illness.
`
`In addition to patients with the pregnancy-specific conditions discussed in
`
`Part I, supra, pregnant patients who suffer from chronic illnesses may require timely
`
`access to abortion to protect their health or allow for treatment of an underlying
`
`illness. Exacerbation of existing chronic disease can take a tremendous toll on the
`
`health and economic wellbeing of patients, their families, and their communities,
`
`and in some cases can place the patient’s life in grave danger. As entities responsible
`
`for promoting public health and welfare, amici have a strong interest in preventing
`
`these harms. Chronic diseases that can make continuation of a pregnancy dangerous
`
`to the patient’s life or health include, but are not limited to, cancer, cardiac disease,
`
`and renal disease. This section will discuss each of these examples in turn.
`
`
`15 See Center for Disease Control and Prevention, Pregnancy-Related Deaths in the United States
`(Nov. 16, 2022), https://www.cdc.gov/hearher/pregnancy-related-deaths/index.html.
`
`
`
`12
`
`

`

`Case: 23-10246 Document: 36-1 Page: 20 Date Filed: 05/08/2023
`
`A. Cancer
`
`Patients who are diagnosed with cancer before or during pregnancy may need
`
`a prompt abortion to protect their health. Depending on the type and severity of the
`
`cancer, treatment may be incompatible with continuing the pregnancy. For example,
`
`in the case of cervical cancer, lifesaving treatment sometimes requires removal of
`
`the cervix and uterus, which is inconsistent with continuing the pregnancy.16
`
`Furthermore, treatment for certain types of cancer—including cervical cancer and
`
`breast cancer—can involve radiation therapy. Depending on the location and
`
`severity of the cancer and the stage of fetal development, radiation therapy may also
`
`be incompatible with continuing the pregnancy. In cases where cancer is detected
`
`after the point of fetal viability, physicians may be able to perform an early delivery
`
`to allow the patient to seek cancer treatment; but in other cases, an abortion may be
`
`necessary to allow for timely treatment.
`
`Delaying or denying an abortion to cancer patients under these circumstances
`
`has serious potential health consequences. Because many cancers can progress
`
`rapidly, early treatment is critical to increasing a patient’s chances of going into
`
`remission and reducing the likelihood of recurrence.17 Furthermore, delaying cancer
`
`
`16 Cervical Cancer, Mayo Clinic (Dec. 14, 2022), https://www.mayoclinic.org/diseases-conditions
`/cervical-cancer/diagnosis-treatment/drc-20352506.
`17 See Timothy P. Hanna et al., Mortality due to cancer treatment delay: systematic review and
`meta-analysis, Brit. Med. J., Nov. 4, 2020, at 1, 4-5, 10 (“Even a four week delay of cancer
`
`
`
`
`13
`
`

`

`Case: 23-10246 Document: 36-1 Page: 21