No. 16-1140
_____________________________
IN THE

Supreme Court of the United States
______________________________

NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES,
D/B/A NIFLA, ET AL.,

Petitioners,

v.
XAVIER BECERRA, ATTORNEY GENERAL, ET AL.,

Respondents.

________________________________
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

Amici Curiae Brief of
the American Academy of Pediatrics, California,
the American College of Obstetricians and Gynecologists,
the American Medical Women’s Association,
the American Nurses Association\California,
the American Society for Reproductive Medicine,
the Association of Reproductive Health Professionals,
the California Medical Association,
the National Abortion Federation,
the National Perinatal Association, and
the Society for Adolescent Health and Medicine
in Support of Respondents
SIMONA G. STRAUSS

Counsel of Record

P. CASEY MATHEWS
SIMPSON THACHER &
BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
(650) 251-5000
sstrauss@stblaw.com

VERONICA R. JORDAN-DAVIS
SIMPSON THACHER &
BARTLETT LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000

Attorneys for Amici Curiae

LEGAL PRINTERS

LLC,

Washington DC ! 202-747-2400 ! legalprinters.com

 TABLE OF CONTENTS
Page
Table of Authorities ................................................... iii
Consent to File as Amici Curiae................................. 1
Interest of Amici Curiae ............................................. 1
Summary of Argument ............................................... 6
Argument .................................................................... 7
I. Women Should Be Informed About
State-Funded Prenatal Care, Family
Planning And Abortion Services ........................... 7
A. Delayed or Inadequate Prenatal Care Poses
Risks to Maternal and Fetal Health ............... 8
1. Delayed or Inadequate Prenatal Care
Increases Health Risks for Pregnant
Women......................................................... 9
2. Delayed or Inadequate Prenatal Care
Increases Health Risks for Developing
Fetuses and Infants .................................. 12
B. Delay in Obtaining an Abortion Poses
Health Risks to Pregnant Women ................. 15
1. The Extra Time During Which a
Woman Who Has Decided to Have
an Abortion Remains Pregnant Poses
Health Risks ............................................. 16
2. Health Risks Associated with Abortion
Increase as Pregnancy Progresses ........... 19
C. Delay Makes It More Likely That Some
Women Will Be Denied an Abortion ............. 23
i

 TABLE OF CONTENTS
(continued)
II.

Women Must Be Informed Whether
Or Not Health Care They Receive Is
Provided By Or Under The Supervision Of
A Licensed Medical Provider ............................ 26

Conclusion ................................................................. 33

ii

 TABLE OF AUTHORITIES
Page(s)
CASES

Cruzan ex rel. Cruzan v. Dir., Mo.
Dep't of Health,

497 U.S. 261 (1990) ............................................... 28

Doe v. Bolton,

410 U.S. 179 (1973) ............................................... 28

Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ......................................... 23, 25
STATUTES
Cal. Bus. & Prof. Code
§ 2052 .................................................................... 26
§ 2053.5 ................................................................. 26
Cal. Health and Safety Code
§ 123470 et seq. ................................................... 6, 8
LEGISLATIVE MATERIALS
Assemb. B. No. 775,
2015-2016 Reg. Sess. (Cal. 2015) ....................... 6, 8
OTHER SOURCES
J. Abramowicz et al., ISUOG Statement on

the Non-Medical Use of Ultrasound, 2009,
33 Ultrasound in Obstetrics &
Gynecology 617 (2009) .................................... 30, 31

iii

 TABLE OF AUTHORITIES
(continued)
Kristina Adachi et al., Chlamydia and Gonorrhea

in HIV-Infected Pregnant Women and Infant HIV
Transmission, 42 Sexually Transmitted
Diseases 554 (2015) .......................................... 13, 14

Rebecca Allen & Alisa B. Goldberg, Cervical

Dilation Before First-Trimester Surgical
Abortion (˂14 Weeks' Gestation),

93 Contraception 277 (2016) ................................ 21

A Healthy Pregnancy for Women with Diabetes,
Am. Coll. of Obstetricians & Gynecologists,
https://www.acog.org/Patients/FAQs/A-HealthyPregnancy-for-Women-with-Diabetes .................. 17
Am. Coll. of Obstetricians & Gynecologists,
Code of Professional Ethics (2011) ................. 26, 28
Am. Coll. of Obstetricians & Gynecologists,

Committee Opinion No. 390: Ethical
Decision Making in Obstetrics and Gynecology,
110 Obstetrics & Gynecology 1479 (2007) ........... 28

Am. Coll. of Obstetricians & Gynecologists,

Committee Opinion No. 578: Elective
Surgery and Patient Choice, 122 Obstetrics &
Gynecology 1134 (2013) ........................................ 27

Am. Coll. of Obstetricians & Gynecologists,

Committee Opinion No. 613: Increasing
Access to Abortion, 124 Obstetrics & Gynecology
1060 (2014) ....................................................... 15, 24

iv

 TABLE OF AUTHORITIES
(continued)
Am. Coll. of Obstetricians & Gynecologists,

Committee Opinion No. 630: Screening for
Perinatal Depression, 125 Obstetrics &
Gynecology 1268 (2015) ........................................ 11

Am. Coll. of Obstetricians & Gynecologists,

Committee Opinion No. 638: First-Trimester
Assessment for Early-Onset Preeclampsia, 126
Obstetrics & Gynecology e25 (2015) .................... 10

Am. Coll. of Obstetricians & Gynecologists, Practice

Bulletin No. 82: Management of Herpes in
Pregnancy, 109 Obstetrics & Gynecology 1489

(2007) ..................................................................... 14
Am. Coll. of Obstetricians & Gynecologists, Practice
Bulletin No. 86: Viral Hepatitis in Pregnancy, 110
Obstetrics & Gynecology 941 (2007) .................... 14
Am. Coll. of Obstetricians & Gynecologists, Practice

Bulletin No. 123: Thromboembolism in Pregnancy,
123 Obstetrics & Gynecology 718 (2011) ............... 9

Am. Coll. of Obstetricians & Gynecologists, Practice
Bulletin No. 135: Second-Trimester Abortion,
121 Obstetrics & Gynecology 1394 (2013) ........... 15
Am. Coll. of Obstetricians & Gynecologists, Practice

Bulletin No. 143: Medical Management of FirstTrimester Abortion, 123 Obstetrics &

Gynecology 676 (2014) .......................................... 20

v

 TABLE OF AUTHORITIES
(continued)
Am. Coll. of Obstetricians & Gynecologists, Practice
Bulletin No. 175: Ultrasound in Pregnancy, 128
Obstetrics & Gynecology e245 (2016) ................... 29
Am. Coll. of Obstetricians & Gynecologists, Practice
Bulletin No. 190: Gestational Diabetes Mellitus,
131 Obstetrics & Gynecology e49 (2018) ....... 10, 18
Am. Coll. of Obstetricians & Gynecologists, Practice
Bulletin No. 193: Tubal Ectopic Pregnancy,
131 Obstetrics & Gynecology e91 (2018).............. 11
Press Release, Am. Inst. of Ultrasound in Med., The
AIUM Reaffirms its Opposition to Entertainment
Ultrasound (Apr. 2, 2004) ..................................... 31
Am. Med. Ass’n, AMA Code of
Medical Ethics (2001) ........................................... 26
Am. Nurses Ass’n, Code of Ethics for Nurses with
Interpretive Statements (2015) ...................... 26, 27

Avoid Fetal "Keepsake" Images, U.S. Food &
Drug Admin., https://www.fda.gov/ForConsumers/
ConsumerUpdates/ucm095508.htm ..................... 31
Stanley B. Barnett et al., International

Recommendations and Guidelines for the Safe
Use of Diagnostic Ultrasound in Medicine,
26 Ultrasound in Med. & Biol. 358 (2000) ........... 31

Lawrence Corey & Anna Wald, Maternal and
Neonatal Herpes Simplex Virus Infections, 361
New Eng. J. of Med. 1376 (2009) ......................... 14
vi

 TABLE OF AUTHORITIES
(continued)
Mitchell D. Creinin, Medically Induced Abortion in a
Woman with a Large Myomatous Uterus, 175 Am.
J. Obstetrics & Gynecology 1379 (1996) .............. 20

Deep Vein Thrombosis, Mayo Clinic,
http://www.mayoclinic.org/diseasesconditions/deep-vein-thrombosis/basics/
definition/con-20031922 ......................................... 9
Christine Dehlendorf et al., Disparities in

Abortion Rates: A Public Health Approach,
103 Am. J. Pub. Health 1772 (2013) .................... 21

Justin Diedrich & Jody Steinauer, Complications
of Surgical Abortion, 52 Clinical Obstetrics &
Gynecology 205 (2009) .......................................... 21
Eleanor A. Drey et al., Risk Factors Associated with
Presenting for Abortion in the Second Trimester,
107 Obstetrics & Gynecology 128 (2006) ............. 15
Valerie French et al., Influence of Clinician Referral
on Nebraska Women’s Decision-to-Abortion Time,
93 Contraception 236 (2016) ................................ 23
Susan Hatters Friedman et al., Characteristics of

Women Who Do Not Seek Prenatal Care and
Implications for Prevention, 38 J. of

Obstetric, Gynecologic & Neonatal
Nursing 174 (2009) ............................................... 17

vii

 TABLE OF AUTHORITIES
(continued)
Mary Gatter et al., Efficacy and Safety of Medical

Abortion Using Mifepristone and Buccal
Misoprostol Through 63 Days, 91 Contraception
269 (2015) .............................................................. 21

David A. Grimes, The Choice of Second Trimester

Abortion Method: Evolution, Evidence and Ethics,
16 Reprod. Health Matters 183 (2008) ................ 20

Informed Consent: Code of Medical Ethics Opinion
2.1.1, Am. Med. Ass’n, https://www.amaassn.org/delivering-care/informed-consent .......... 27
Tara C. Jatlaoui et al., Abortion Surveillance –
United States, 2013, Morbidity & Mortality
Wkly. Rep.: Surveillance Summaries,
Nov. 25, 2016.............................................. 19-20, 23
Nathalie Kapp et al., Efficacy of Medical Abortion

Prior to 6 Gestational Weeks: A Systematic
Review, 97 Contraception 90 (2017) .................... 19

Deborah Karasek et al., Abortion Patients’

Experience and Perceptions of Waiting Periods:
Survey Evidence Before Arizona’s Two Visit 24Hour Mandatory Waiting Period Law,
26 Women’s Health Issues 63 (2016) ............. 15, 21

John L. Kitzmiller et al., Managing Preexisting
Diabetes for Pregnancy, 31 Diabetes Care 1060
(2008) ..................................................................... 17

viii

 TABLE OF AUTHORITIES
(continued)
Rebecca F. Liberman et al., Delayed Diagnosis of

Critical Congenital Heart Defects: Trends and
Associated Factors, 134 Pediatrics e373 (2014) .. 13

Marian F. MacDorman et al., Recent Increases in

the U.S. Maternal Mortality Rate: Disentangling
Trends from Measurement Issues,
128 Obstetrics & Gynecology 1 (2016) ................. 22

Marshall H. Medoff, Race, Restrictive State Abortion
Laws and Abortion Demand,
41 Rev. Black Pol. Econ. 225 (2014) ............... 16, 24

Mifeprex (Mifepristone) Information, U.S. Food &
Drug Admin.,
http://www.fda.gov/Drugs/DrugSafety/
PostmarketDrugSafetyInformationforPatientsandProviders/ucm111323.htm.................................... 19
Florence M. Momplaisir et al., Time of HIV

Diagnosis and Engagement in Prenatal Care
Impact Virologic Outcomes of Pregnant Women
with HIV, 10 PLoS ONE e0132262 (2015) ..... 13, 14

Molar Pregnancy, Mayo Clinic,
https://www.mayoclinic.org/diseasesconditions/molar-pregnancy/symptoms-causes/syc20375175 ............................................................... 11
Nat’l Collaborating Ctr. for Women’s & Children’s
Health, Hypertension in Pregnancy: The

Management of Hypertensive Disorders
During Pregnancy (2011) ..................................... 17
ix

 TABLE OF AUTHORITIES
(continued)

Non-Diagnostic Use of Ultrasound for Entertainment
Purposes in the Obstetrical Setting, Soc’y of
Diagnostic Med. Sonography (June 8, 2011),
https://sdmspositionstatements.wordpress.com/201
1/06/08/6/ ............................................................... 31
Sarah Partridge et al., Inadequate Prenatal Care

Utilization and Risks of Infant Mortality and Poor
Birth Outcome: A Retrospective Analysis of
28,729,765 U.S. Deliveries Over 8 Years, 29 Am. J.

of Perinatology 787 (2012) .................................... 12

Patient Rights: Code of Medical Ethics Opinion 1.1.3,
Am. Med. Ass’n, https://www.amaassn.org/delivering-care/patient-rights................ 27

Preeclampsia and High Blood Pressure During
Pregnancy, Am. Coll. of Obstetricians &
Gynecologists, https://www.acog.org/Patients/
FAQs/Preeclampsia-and-High-Blood-PressureDuring-Pregnancy................................................. 18
Elizabeth G. Raymond & David A. Grimes, The

Comparative Safety of Legal Induced Abortion and
Childbirth in the United States, 119 Obstetrics &

Gynecology 215 (2012) .................................... 19, 21

x

 TABLE OF AUTHORITIES
(continued)

Restricted Access to Abortion Violates Human
Rights, Precludes Reproductive Justice, and
Demands Public Health Intervention, Am. Pub.
Health Ass’n, http://www.apha.org/policies-andadvocacy/public-health-policy-statements/policydatabase/2016/01/04/11/24/restricted-access-toabortion-violates-human-rights ........................... 23
Sam Rowlands, Review: Misinformation on
Abortion, 16 Eur. J. Contraception &
Reprod. Health Care 233 (2011)........................... 19

Ultrasound Imaging, U.S. Food & Drug Admin.,
https://www.fda.gov/RadiationEmittingProducts/RadiationEmittingProductsand
Procedures/MedicalImaging/ucm115357.htm ..... 29
Ushma D. Upadhyay et al., Denial of

Abortion Because of Provider Gestational
Age Limits in the United States,
104 Pub. Health 1687 (2014) .............. 16, 21, 23, 24

Ushma D. Upadhyay et al., Incidence of

Emergency Department Visits and Complications
After Abortion, 125 Obstetrics & Gynecology 175
(2015) ..................................................................... 21

Withholding Information from Patients: Code of
Medical Ethics Opinion 2.1.3, Am. Med. Ass’n,
https://www.ama-assn.org/deliveringcare/withholding-information-patients ................ 27

xi

 TABLE OF AUTHORITIES
(continued)
World Health Org., WHO Recommendations on

Antenatal Care for a Positive Pregnancy
Experience (2016) ................................. 8, 10, 11, 12

Suzanne Zane et al., Abortion-Related Mortality in
the United States: 1998–2010, 126 Obstetrics &
Gynecology 258 (2015) .......................................... 22

xii

 CONSENT TO FILE AS AMICI CURIAE
This brief is filed with the consent of the
parties pursuant to Rule 37(3)(a) of the Rules of the
Supreme Court of the United States.
INTEREST OF AMICI CURIAE1
The American Academy of Pediatrics,
California, the American College of Obstetricians
and Gynecologists, the American Medical Women’s
Association, the American Nurses
Association\California, the American Society for
Reproductive Medicine, the Association of
Reproductive Health Professionals, the California
Medical Association, the National Abortion
Federation, the National Perinatal Association, and
the Society for Adolescent Health and Medicine
(collectively “Amici”) respectfully submit this brief
Amici Curiae in support of Respondents.

Amici are organizations dedicated to health
care, research, and health policy. These
organizations are committed to improving women’s
health and preserving women’s access to
comprehensive health care. Amici respectfully
submit this brief to share their collective learning
Pursuant to Rule 37.6 of the Rules of the Supreme Court of
the United States, counsel for Amici Curiae represent that no
counsel for a party authored this brief in whole or in part, and
no such counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person or entity other than Amici Curiae and their counsel
made such a monetary contribution.
1

1

 about the likely negative impact that reversal of the
decision below would have on women’s health. Amici
are as follows:


The American Academy of Pediatrics,
California (“AAP-CA”) is a legally incorporated
nonprofit member association, comprised of
the four AAP California chapters statewide
representing approximately 5,000 boardcertified primary care and subspecialty
pediatricians. The mission of the AAP-CA is
to promote the health and well-being of all
children and youth living in California. This
includes support for access to medically
accurate information regarding reproductive
health care services for young women.



The American College of Obstetricians and
Gynecologists (“ACOG”) is a non-profit,
voluntary membership organization. With
more than 58,000 members, ACOG is the
premier professional membership organization
of obstetricians and gynecologists and others
dedicated to the improvement of women’s
health. ACOG promotes the advancement of
women’s health care through continuing
medical education, practice, research, and
advocacy.



The American Medical Women’s Association
(“AMWA”) is an organization of women
physicians, medical students and others
dedicated to serving as the unique voice for
women’s health and the advancement of
women in medicine. AMWA does this by
providing and developing leadership,
2

 advocacy, education, expertise, and mentoring.
AMWA is an active participant in setting
health care policy to promote women’s health
issues.


The American Nurses Association\California
(“ANA\C”) represents all registered nurses in
the state of California, without regard to
specialty or practice setting. The American
Nurses Association (“ANA”) and its state
chapters advance the nursing profession by
fostering high standards of nursing practice,
promoting the rights of nurses in the
workplace, projecting a positive and realistic
view of nursing, and by lobbying the
legislature and regulatory agencies on health
care issues affecting nurses and the public.
ANA\C is aligned with ANA policy in
advocating for access to safe, timely, and
quality care for all populations. ANA is a
leader in promoting policies on reproductive
and human rights, social justice, and ethical
standards.



The American Society for Reproductive
Medicine (“ASRM”) is a non-profit
multidisciplinary organization dedicated to the
advancement of the science and practice of
reproductive medicine. ASRM accomplishes
this mission through the pursuit of excellence
in education and research and through
advocacy on behalf of patients, physicians, and
affiliated health care providers.

3

 

The Association of Reproductive Health
Professionals (“ARHP”) brings together health
care professionals across disciplines and
specialties for evidence-based training and
network building. ARHP delivers on its
educational mission by translating good
science into practice through producing
accredited, peer-reviewed programs.



The California Medical Association (“CMA”) is
a non-profit, incorporated professional
association for physicians with approximately
43,000 members throughout the state of
California. For more than 150 years, CMA has
promoted the science and art of medicine, the
care and well-being of patients, the protection
of public health, and the betterment of the
medical profession. CMA’s physician members
practice medicine in all specialties and
settings, including providing reproductive
health services.



The National Abortion Federation (“NAF”) is
the professional association of abortion
providers. NAF’s mission is to ensure safe,
legal, and accessible abortion care, which
promotes health and justice for women. NAF’s
members include private and non-profit
clinics, Planned Parenthood affiliates,
women’s health centers, physicians’ offices,
and hospitals. NAF is the leading
organization offering accredited continuing
medical education to health care professionals
in all aspects of abortion care, and NAF

4

 member providers adhere to NAF’s evidencebased Clinical Policy Guidelines, which set the
standards for quality abortion care.


The National Perinatal Association (“NPA”) is
an interdisciplinary organization of
professionals, parents, and advocates that is
the leading voice in perinatal care in the
United States. NPA educates, advocates, and
integrates all voices with equality and respect
to support pregnant women, infants, and their
families and the professionals who care for
them. NPA works to create positive change in
perinatal care by partnering with health care,
government, and nonprofit organizations.



The Society for Adolescent Health and
Medicine is a multidisciplinary organization
committed to improving the physical and
psychosocial health and well-being of all
adolescents and young adults through
advocacy, clinical care, health promotion,
health service delivery, professional
development and research.

5

 SUMMARY OF ARGUMENT
The Ninth Circuit Court of Appeals below
upheld California’s Reproductive FACT (Freedom,
Accountability, Comprehensive Care, and
Transparency) Act, Cal. Health and Safety Code
123470 et seq.; Assemb. B. No. 775,2015-2016 Reg.
Sess. (Cal. 2015) (the “FACT Act”). The FACT Act
(1) requires licensed medical facilities that provide
pregnancy-related services to notify women of the
availability of free or low-cost access to
comprehensive family planning services, prenatal
care, and abortion to eligible women, and (2) requires
facilities that offer pregnancy-related services but
are not licensed and do not have a licensed medical
provider (i.e., a licensed health professional
regulated under California statutes) on staff to
inform women of these facts. An affirmance of the
decision of the court below sustaining the
constitutionality of the FACT Act would have a
markedly positive effect on women’s and children’s
health and well-being by preventing unnecessary
delay in women’s ability to access prenatal care,
contraceptive services, and abortion services and
ensuring that women are well-informed about the
nature of the services offered and the credentials of
the individuals and facilities offering those services.
Women’s pregnancy-related health care
services are highly time-sensitive, and unnecessary
delay can pose significant risks to maternal and fetal
health. Accordingly, requiring licensed medical
facilities to inform women of the availability of free
or low-cost care reduces certain avoidable risks
associated with delayed care and thereby promotes
6

 health. This is particularly true if the facility does
not itself offer the comprehensive family planning
services, prenatal care, or abortion that is being
sought, in which case a woman must seek care
elsewhere.
In addition, requiring unlicensed medical
facilities to inform women that there are no licensed
medical providers on staff serves two important
public health goals: (1) it allows women to make
more fully informed decisions about the pregnancyrelated services that they receive; and (2) it prevents
unlicensed facilities from misleading women into
believing that the services being offered are
medically necessary or beneficial.
As leading medical societies, Amici are
profoundly interested in policies that allow women to
obtain desired medical services as quickly and safely
as possible. An affirmance of the decision below will
help advance those policies and thus further the
health of women and developing fetuses.
ARGUMENT
I.

Women Should Be Informed About StateFunded Prenatal Care, Family Planning And
Abortion Services

At issue in this case are efforts by the State of
California to ensure that patients receive accurate
information about the availability and accessibility of
comprehensive reproductive health services in the
State. To facilitate this goal, the FACT Act requires
licensed medical facilities that provide reproductive
7

 health services to inform patients of the availability
of low-cost or free family planning services, prenatal
care, and abortion. Cal. Health & Safety Code
§ 123472(a)(1). In doing so, the FACT Act ensures
that women “quickly obtain the information and
services they need to make and implement timely
reproductive decisions.” Assemb. B. No. 775, § 1(d),
2015-2016 Reg. Sess. (Cal. 2015). As discussed
below, delay in reproductive-related decisions can
result in serious negative health outcomes for
women, developing fetuses and infants.
A.

Delayed or Inadequate Prenatal Care
Poses Risks to Maternal and Fetal
Health

Prenatal (or “antenatal”) care for pregnant
women is a crucial aspect of women’s health care and
is critical for ensuring the health of pregnant women
and developing fetuses throughout pregnancy.
Prenatal care allows a health care provider to (1)
identify and assess health risks to the pregnant
woman and developing fetus, (2) prevent and manage
pregnancy-related health conditions, pregnancyrelated diseases, and concurrent diseases of the
pregnant woman and developing fetus that could
impact the health of either, and (3) provide education
for the pregnant woman so that she may better care
for her own health and the health of the fetus. World
Health Org., WHO Recommendations on Antenatal
Care for a Positive Pregnancy Experience 1 (2016).
These three goals of prenatal care are necessary to
reduce risks associated with pregnancy and to

8

 improve health outcomes for pregnant women and
developing fetuses throughout pregnancy and
childbirth.

1.

Delayed or Inadequate Prenatal
Care Increases Health Risks for
Pregnant Women

Delays in obtaining accurate medical
counseling and prenatal care poses risks for
pregnant women. For some women, the state of
pregnancy itself poses significant health risks. These
risks may be even more acute for women with certain
preexisting conditions. Proper prenatal care allows
physicians and other qualified health professionals to
assess and mitigate these risks. Pregnant women
are at risk of deep venous thromboses (DVTs, or
blood clots) because pregnancy results in increased
vein pressure and a hypercoagulable state. This is a
serious condition that can lead to pulmonary
embolism or even death. Deep Vein Thrombosis,
Mayo Clinic, http://www.mayoclinic.org/diseasesconditions/deep-vein-thrombosis/basics/definition
/con-20031922; see also Am. Coll. of Obstetricians &
Gynecologists, Practice Bulletin No. 123:
Thromboembolism in Pregnancy, 123 Obstetrics &
Gynecology 718, 718 (2011) [hereinafter ACOG
Practice Bulletin No. 123]. Early detection allows
women with preexisting clotting disorders to manage
their pregnancies with the use of blood-thinning
medication. ACOG Practice Bulletin No. 123, supra,
at 720-21.

9

 Other conditions may not be related to a
woman’s preexisting condition but may manifest
during pregnancy. Such pregnancy-related risks to
women include gestational diabetes, which affects
approximately 6% of pregnant women and requires
careful blood glucose monitoring, and hypertension
disorders, which affect approximately 5-10% of
pregnant women. See Am. Coll. of Obstetricians &
Gynecologists, Practice Bulletin No. 190: Gestational
Diabetes Mellitus, 131 Obstetrics & Gynecology e49,
e49 (2018) [hereinafter ACOG Practice Bulletin No.
190] (“7% of pregnancies were complicated by any
type of diabetes and . . . approximately 86% of these
cases represented women with [gestational
diabetes].”); Am. Coll. of Obstetricians &
Gynecologists, Committee Opinion No. 638: FirstTrimester Assessment for Early-Onset Preeclampsia,
126 Obstetrics & Gynecology e25, e25 at 1 (2015)
(“Hypertensive disorders with adverse sequelae
(including preterm birth, maternal morbidity and
mortality, and long-term risk of maternal
cardiovascular disease) complicate 5-10% of
pregnancies.”). Hypertension-related disorders such
as preeclampsia are particularly dangerous—they
account for “approximately a quarter of maternal
deaths and near misses.” World Health Org., supra,
at 40. Timely and quality prenatal care is therefore
necessary to diagnose and treat these conditions
when they occur.
Additionally, some pregnancies develop
abnormally and pose serious maternal health risks
that need to be treated as soon as possible. For
example, ectopic pregnancy, in which the pregnancy
develops outside the uterus, can result in rupture of
10

 the fallopian tubes and life-threatening bleeding if it
is allowed to continue. Ectopic pregnancy occurs in
approximately 2% of all pregnancies, and mortality
from ectopic pregnancy is usually due to the failure
to seek or receive timely medical care. See Am. Coll.
of Obstetricians & Gynecologists, Practice Bulletin
No. 193: Tubal Ectopic Pregnancy, 131 Obstetrics &
Gynecology e91, e91 (2018). Separately, molar
pregnancies, in which an abnormal pregnancy
develops into a tumor, can lead to a potentially
deadly cancer if not detected and treated. See Molar
Pregnancy, Mayo Clinic, https://www.mayoclinic.org
/diseases-conditions/molar-pregnancy/symptomscauses/syc-20375175.
In addition to the management of medical
conditions during pregnancy like those described
above, prenatal care provides opportunities for
health care professionals to screen for other related
issues, such as maternal substance use, domestic
violence, perinatal depression, and HIV and other
sexually transmitted infections (“STIs”). See World
Health Org., supra, at xi-xiv; Am. Coll. of
Obstetricians & Gynecologists, Committee Opinion
No. 630: Screening for Perinatal Depression, 125
Obstetrics & Gynecology 1268, 1268 (2015).
Ensuring that women are informed of the availability
of prenatal care by qualified and licensed medical
providers encourages use of those services so that
these conditions can be diagnosed and, if necessary,
treated in a timely manner, reducing avoidable
health risks posed by delay.

11

 2.

Delayed or Inadequate Prenatal
Care Increases Health Risks for
Developing Fetuses and Infants

Delayed or inadequate prenatal care is
associated with negative health outcomes in
developing fetuses, including premature birth,
stillbirth, early neonatal death (death of a newborn
within 7 days of birth), late neonatal death (death of
a newborn between 7 and 27 days after birth), and
infant death (any death within 356 days of birth)
relative to the developing fetuses and children of
women who receive adequate prenatal care. Sarah
Partridge et al., Inadequate Prenatal Care

Utilization and Risks of Infant Mortality and Poor
Birth Outcome: A Retrospective Analysis of
28,729,765 U.S. Deliveries Over 8 Years, 29 Am. J. of
Perinatology 787, 787 (2012). Timely prenatal care
can ensure that women take necessary preventative
measures for the sake of fetal health. These
measures include, but are not limited to, (1) daily
iron and folic acid supplements; (2) screening for
asymptomatic bacteriuria (bacteria present in urine
without any other symptoms), tobacco use, and HIV
and other STIs; and (3) other preventative measures
such as tetanus, pertussis, and influenza vaccination,
all of which may reduce the risk of negative fetal
health outcomes, including death. World Health
Org., supra, at xi-xiv.
Delay in accessing and receiving prenatal care
may also delay critical screenings that are needed to
detect fetal health issues and initiate treatment
earlier in pregnancy. For example, prenatal care
often includes screening for fetal congenital heart
12

 impairments. Rebecca F. Liberman et al., Delayed

Diagnosis of Critical Congenital Heart Defects:
Trends and Associated Factors, 134 Pediatrics e373,
e375 (2014). Delayed diagnosis of fetal congenital
heart impairments is “associated with serious
complications, including seizure, cardiac arrest, and
death” of a developing fetus or newborn. Id. at e374.
Without timely access to prenatal care, women whose
fetuses develop congenital heart impairments face
delayed diagnosis, fewer potential options for
treatment, and delayed treatment of the
impairments, resulting in increased risk of serious
fetal and infant health outcomes.
Delay in prenatal care can also result in
increased risks of STI-related complications, such as
mother-to-infant transmission of STIs like HIV or
poor health outcomes for developing fetuses,
including fetal loss or premature birth. Florence M.
Momplaisir et al., Time of HIV Diagnosis and

Engagement in Prenatal Care Impact Virologic
Outcomes of Pregnant Women with HIV, 10 PLoS
ONE e0132262 (2015), available at http://journals

.plos.org/plosone/article?id=10.1371/journal.pone.013
2262; Kristina Adachi et al., Chlamydia and

Gonorrhea in HIV-Infected Pregnant Women and
Infant HIV Transmission, 42 Sexually Transmitted

Diseases 554, 555 (2015). Timely detection and
treatment of STIs is important not only for maternal
health, but also for fetal and infant health. For
example, without medical intervention, there is a
substantial likelihood that an HIV-positive pregnant
woman will transmit HIV to her fetus either during
pregnancy or during childbirth—a likelihood that is
dramatically reduced when the pregnant woman
13

 receives treatment for her HIV infection at an early
stage in her pregnancy. Momplaisir et al., supra,
at 2.
Pregnant women with other untreated STIs
such as chlamydia and gonorrhea also face potential
pregnancy complications including “fetal loss,
premature rupture of membranes, and preterm labor
and delivery.” Adachi et al., supra, at 555. These
infections, if untreated, can cause conjunctivitis (eye
infections), blindness, permanent brain damage,
chronic hepatitis B, and pneumonia in infants. Id.
Moreover, when chlamydia infections are present but
untreated in HIV-positive pregnant women, they
lead to an increased risk of mother-to-infant
transmission of HIV. Id. at 563.2

Prenatal care also may include screening for the hepatitis B
virus (“HBV”) and the herpes simplex virus (“HSV”). If a
pregnant woman tests positive for HBV, her baby should
receive hepatitis B immune globulin and the HBV vaccine in
the first twelve hours after birth. Am. Coll. of Obstetricians &
Gynecologists, Practice Bulletin No. 86: Viral Hepatitis in
Pregnancy, 110 Obstetrics & Gynecology 941, 949 (2007); Am.
Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 82:
Management of Herpes in Pregnancy, 109 Obstetrics &
Gynecology 1489, 1494 (2007). If prenatal screening shows that
a pregnant woman tests positive for HSV, a cesarean birth may
be recommended to prevent neonatal HSV infections, which, if
untreated, have only a 40 percent survival rate. Lawrence
Corey & Anna Wald, Maternal and Neonatal Herpes Simplex
Virus Infections, 361 New Eng. J. of Med. 1376, 1376 (2009).
Detection of maternal HBV and HSV, and thus prevention or
treatment of neonatal HBV and HSV, is less likely, however, for
women who do not receive prenatal care.
2

14

 B.

Delay in Obtaining an Abortion Poses
Health Risks to Pregnant Women

Delay in obtaining an abortion creates health
risks for pregnant women seeking abortions. The
risks come in two distinct forms: (1) inherent risks of
remaining pregnant under certain circumstances,
and (2) increased risks posed by an abortion
performed later than necessary.
There are myriad barriers that delay women
from accessing abortion. See Am. Coll. of
Obstetricians & Gynecologists, Committee Opinion
No. 613: Increasing Access to Abortion, 124
Obstetrics & Gynecology 1060, 1061-64 (2014)
[hereinafter ACOG Committee Opinion No. 613]
(describing barriers to abortion access including, but
not limited to, legal restrictions on abortion
providers, funding restrictions, a lack of abortion
providers, and stigma and violence). Some of these
barriers are logistic, such as receiving inappropriate
or delayed referrals, and the need to raise money to
cover procedure and travel costs. See Am. Coll. of
Obstetricians & Gynecologists, Practice Bulletin No.
135: Second-Trimester Abortion, 121 Obstetrics &
Gynecology 1394, 1394 (2013); Eleanor A. Drey et al.,

Risk Factors Associated with Presenting for Abortion
in the Second Trimester 107 Obstetrics & Gynecology
1 (2006); ACOG Committee Opinion No. 613, supra,
at 1062 (“[F]unding restrictions impede access to safe
abortion care and, in some cases, function as a de
facto abortion ban.”); Deborah Karasek et al.,

Abortion Patients’ Experience and Perceptions of
Waiting Periods: Survey Evidence Before Arizona’s
Two Visit 24-Hour Mandatory Waiting Period Law,
15

 26 Women’s Health Issues 63 (2016) (finding that
39% of women studied had to delay abortion due to
cost).3 The FACT Act requirement that licensed
facilities inform women of the availability of free or
reduced-cost abortion services addresses a major
cause of delayed access to abortion.

1.

The Extra Time During Which a
Woman Who Has Decided to
Have an Abortion Remains
Pregnant Poses Health Risks

Pregnancy itself poses health risks for women,
including women who have pregnancy complications
or concomitant health conditions. See supra Section
I(A)(1). Thus, a woman who has decided to obtain an
abortion but remains pregnant because of delay,
whether as a result of cost, misinformation, or
otherwise, is exposed to preventable health risks
associated with her continued pregnancy. In some
cases, remaining pregnant may seriously jeopardize
a woman’s health.

In one study, 36.5% of women in their first trimester of
pregnancy cited the cost of an abortion as a reason for delay.
Ushma D. Upadhyay et al., Denial of Abortion Because of
Provider Gestational Age Limits in the United States, 104 Pub.
Health 1687, 1687 (2014) [hereinafter Upadhyay et al., Denial];
see also Marshall H. Medoff, Race, Restrictive State Abortion
Laws and Abortion Demand, 41 Rev. Black Pol. Econ. 225, 238
(2014) (“A [state] Medicaid funding restriction reduces the
abortion rate of white women by 2.0%, black women by 4.1%
and Hispanic women by 10.6%.”).
3

16

 Women who have decided to have an abortion
are unlikely to seek prenatal care. See Susan
Hatters Friedman et al., Characteristics of Women

Who Do Not Seek Prenatal Care and Implications for
Prevention, 38 J. of Obstetric, Gynecologic &
Neonatal Nursing 174, 179 (2009) (finding that
“failed plans to procure abortions” is one reason
women do not obtain prenatal care). Among those
women, those who have preexisting conditions that
increase the health risks posed by pregnancy are
thus less likely to obtain the care that they require,
especially if they are not aware of the preexisting
condition. For example, pregnant women with
preexisting clotting disorders who are unaware of
this disorder may develop DVTs, see supra Section
I(A)(1), but may not receive care that would alert
them of the risk—or identify and treat the DVTs—if
they are seeking abortions.4 The additional time
that these women are pregnant is thus time during
which they can suffer significant health problems
that could have been avoided had they received
access to appropriate medical services, including
timely abortion care.
Similarly, women with chronic hypertension or preexisting
diabetes may experience an exacerbation of their condition at
any stage of pregnancy that increases the need for treatment.
See generally Nat’l Collaborating Ctr. for Women’s & Children’s
Health, Hypertension in Pregnancy: The Management of
Hypertensive Disorders During Pregnancy 61–75 (2011),
available at https://www.ncbi.nlm.nih.gov/books/NBK62651/;
John L. Kitzmiller et al., Managing Preexisting Diabetes for
Pregnancy, 31 Diabetes Care 1060, 1061 (2008); A Healthy
Pregnancy for Women with Diabetes, Am. Coll. of Obstetricians
& Gynecologists, https://www.acog.org/Patients/FAQs/AHealthy-Pregnancy-for-Women-with-Diabetes.
4

17

 The probability of a pregnancy-related
complication that threatens maternal health—and
the number of possible complications—increases as
the pregnancy progresses. Gestational diabetes, for
example, is generally not a concern before 24 weeks
of pregnancy. See ACOG Practice Bulletin No. 190,
supra, at e50. Similarly, pregnant women who
develop preeclampsia typically develop the condition
after 20 weeks, with only rare occurrences of
preeclampsia before then. See Preeclampsia and
High Blood Pressure During Pregnancy, Am. Coll. of
Obstetricians & Gynecologists, https://www.acog.org
/Patients/FAQs/Preeclampsia-and-High-BloodPressure-During-Pregnancy.
Other life-threatening pregnancy-related
conditions that pregnant women can develop include
ectopic and molar pregnancies, which must be
treated immediately. See supra Section I(A)(1).
Licensed medical professionals providing abortion
services have the qualifications and training to
diagnose ectopic and molar pregnancies and treat or
appropriately refer a patient for treatment of these
conditions. Women with ectopic and molar
pregnancies who experience a delay in obtaining
abortion services, however, remain at increased, and
indeed life-threatening, risk longer than necessary.
The risks of pregnancy are serious, and women who
do not want to be pregnant should not be subjected to
those risks.

18

 2.

Health Risks Associated with
Abortion Increase as Pregnancy
Progresses

Legal abortion is among the safest procedures
in medicine, and it is significantly safer than
childbirth. Sam Rowlands, Review: Misinformation
on Abortion, 16 Eur. J. Contraception & Reprod.
Health Care 233, 234 (2011); Elizabeth G. Raymond
& David A. Grimes, The Comparative Safety of Legal

Induced Abortion and Childbirth in the United
States, 119 Obstetrics & Gynecology 215, 216 (2012).

Indeed, legal abortions by all methods are thirty
times less likely to cause death than childbirth,
Rowlands, supra, at 234, and surgical abortion in the
United States is seventy times less likely to cause
death than childbirth. Id. at 235 tbl.1.
Medical abortion (i.e. abortion performed
using medication only) is a common method of
abortion early in pregnancy. It is approved by the
FDA for use through ten weeks gestation. Mifeprex
(Mifepristone) Information, U.S. Food & Drug
Admin., http://www.fda.gov/Drugs/DrugSafety
/PostmarketDrugSafetyInformationforPatientsandPr
oviders/ucm111323.htm. Medical abortion is the
preferred method for some women for a number of
reasons, and an increasing percentage of women
have chosen medical abortion in recent years.
Nathalie Kapp et al., Efficacy of Medical Abortion
Prior to 6 Gestational Weeks: A Systematic Review,
97 Contraception 90, 90 (2017) (“Medical abortion at
less than 9 weeks of gestation accounted for 31% of
all clinic-based abortions in 2014 in the US, as
compared with 24% in 2011.”); Tara C. Jatlaoui et
19

 al., Abortion Surveillance – United States, 2013,
Morbidity & Mortality Wkly. Rep.: Surveillance
Summaries, Nov. 25, 2016, at 1, 8 (“[F]rom 2004 to
2013, use of early medical abortion increased 110%
(from 10.6% of abortions to 22.3%).”).
The FDA-approved regimen for medical
abortion becomes somewhat less effective later in
pregnancy, however, and medical abortion thus is
generally not performed in the United States after
ten weeks of gestation. See Am. Coll. of
Obstetricians & Gynecologists, Practice Bulletin No.

143: Medical Management of First-Trimester
Abortion, 123 Obstetrics & Gynecology 676, 677

(2014) (“Complete abortion rates are higher with
earlier gestations; approximately 96-98% in
gestations of up to 42 days, 91-95% in gestations
from 43 days to 49 days, and less than 85% in
gestations beyond 49 days.”); David A. Grimes, The

Choice of Second Trimester Abortion Method:
Evolution, Evidence and Ethics, 16 Reprod. Health

Matters 183, 184–85 (2008). As a result, some
women who are delayed in obtaining an abortion
because of tactics used to discourage abortions in
some facilities covered by the FACT Act will be
deprived of the option of having a medical abortion.
See Grimes, supra, at 184. Among the most harmed
are women for whom medical abortion may have
been the most appropriate method, such as women
who have uterine fibroids that make access to the
fetus more difficult or infeasible. See, e.g., Mitchell
D. Creinin, Medically Induced Abortion in a Woman
with a Large Myomatous Uterus, 175 Am. J.
Obstetrics & Gynecology 1379, 1379 (1996).

20

 Further, although the complication rate of
both medical and surgical abortion is very low, it
increases as gestational age increases. Justin
Diedrich & Jody Steinauer, Complications of Surgical
Abortion, 52 Clinical Obstetrics & Gynecology 205,
205, 206 (2009); Karasek et al., supra, at 65; Rebecca
Allen & Alisa B. Goldberg, Cervical Dilation Before
First-Trimester Surgical Abortion (˂14 Weeks'
Gestation), 93 Contraception 277, 281 (2016);
Christine Dehlendorf et al., Disparities in Abortion
Rates: A Public Health Approach, 103 Am. J. Pub.
Health 1772, 1776 (2013); Upadhyay et al., Denial,
supra note 2, at 1687. Further, while the risks
remain small, additional delay in obtaining an
abortion later in pregnancy increases the risk of
complications, including death, more than delay
early in pregnancy. Diedrich & Steinauer, supra, at
205; Mary Gatter et al., Efficacy and Safety of

Medical Abortion Using Mifepristone and Buccal
Misoprostol Through 63 Days, 91 Contraception 269,
271-72 (2015). For example, the risk of major
complications for surgical abortions in the first
trimester is only 0.16%. Ushma D. Upadhyay et al.,

Incidence of Emergency Department Visits and
Complications After Abortion, 125 Obstetrics &

Gynecology 175, 178 (2015). That risk more than
doubles for abortions performed in the second
trimester (albeit still very low at 0.41%). Id.; see also
Allen & Goldberg, supra, at 277.
In addition to the risk of complication, the risk
of death from legal abortion is extremely low and
significantly lower than from childbirth. See
Raymond & Grimes, supra, at 215-16 (“The risk of
death associated with childbirth is approximately 14
21

 times higher than that with abortion. . . . The
mortality rate related to legal induced abortion . . .
was 0.6 deaths per 100,000 abortions.”).
Nonetheless, this risk increases as gestational age
increases. Suzanne Zane et al., Abortion-Related
Mortality in the United States: 1998–2010, 126
Obstetrics & Gynecology 258, 263 (2015). Indeed,
“[g]estational age at the time of the abortion remains
the strongest risk factor for abortion-related
mortality.” Id. Significantly, the risk of mortality—
as with complications—increases disproportionately
with time. The mortality rate for abortions (i.e., the
number of abortion-related deaths per every 100,000
legal induced abortions) is 0.3 before 8 weeks, 0.5 at
9–13 weeks, 2.5 at 14–17 weeks, and 6.7 at or after
18 weeks. Id. at 262. (It must be noted, however,
that even later in the second trimester, abortion
remains much safer than carrying a pregnancy to
term. See Marian F. MacDorman et al., Recent

Increases in the U.S. Maternal Mortality Rate:
Disentangling Trends from Measurement Issues, 128
Obstetrics & Gynecology 1, 1 (2016) (finding
maternal mortality rate of 23.8 deaths per 100,000
live births in the 2014).)
From a public health standpoint, any risks
that can be avoided by unnecessary delays should be
avoided. In the context of legal abortion, although it
is overall an extremely safe procedure, health risks
increase when a woman’s access to proper medical
care is delayed. Thus, while it is essential to view
the increasing risks of abortion associated with
advancing gestational age relative to the

22

 significantly greater risks of continuing a pregnancy,
it is equally essential to minimize any unnecessary
delay in a legal abortion.
C.

Delay Makes It More Likely That Some
Women Will Be Denied an Abortion

Timely access to medical care is critical to
optimize health and to reduce health care costs.
Delay in obtaining an abortion not only increases a
woman’s health risks but also makes the service
sought either harder to obtain or, at some point,
impossible to obtain.5 As a matter of public health
policy and legal policy, women should have access to
available medical services without unnecessary
obstacles. See Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 874 (1992) (indicating that
legislation cannot unduly burden a woman’s access to
abortion services); Restricted Access to Abortion

Violates Human Rights, Precludes Reproductive
Justice, and Demands Public Health Intervention,

Am. Pub. Health Ass’n, http://www.apha.org/policiesand-advocacy/public-health-policy-statements/policydatabase/2016/01/04/11/24/restricted-access-toabortion-violates-human-rights.

Although the majority of abortions in the United States take
place during the first trimester of pregnancy, approximately
8.4% of abortions occur after 13 weeks of gestation. Jatlaoui et
al., supra, at 1. Most women who had second trimester
abortions, however, would have preferred to have had the
procedure earlier. Upadhyay et al., Denial, supra note 2, at
1687; Valerie French et al., Influence of Clinician Referral on
Nebraska Women’s Decision-to-Abortion Time, 93
Contraception 236, 240 (2016).
5

23

 First, abortions become more expensive as
pregnancy advances, potentially limiting some
women’s ability to obtain an abortion. Upadhyay et
al., Denial, supra note 2, at 1687 (showing that the
cost of abortion at 20 weeks is roughly triple the cost
of abortion at 10 weeks); see also Medoff, supra note
2, at 238.
Second, there are fewer trained abortion
providers who perform abortions as pregnancy
continues. “According to a national survey of
abortion providers, 23% offer abortions after 20
weeks’ gestation, and 11% do so at 24 weeks.”
Upadhyay et al., Denial, supra note 2, at 1687.
Moreover, there is an overall dearth of abortion
providers in the United States. See ACOG
Committee Opinion No. 613, supra, at 1063 (“The
number of facilities providing abortion in the United
States decreased 38% from 1982 to 2000, and
continues to decrease. More than one third of U.S.
women live in the 89% of counties that lack an
abortion care facility . . . .”). Thus, additional delay
will force many women to travel long distances to
obtain an abortion. In effect, this means that some
women who are delayed from accessing abortion care
earlier in their pregnancies will be precluded from
obtaining an abortion at all.6

This outcome is most likely for women without access to
transportation, those who must arrange for childcare, and those
who must take time away from their jobs. See Upadhyay,
Denial, supra note 2, at 1687.
6

24

 Indeed, abortion does not remain an option for
women for the entire duration of pregnancy, as states
have greater leeway to restrict abortion after
viability. See Casey, 505 U.S. at 846. Thus, for some
women, delay in obtaining abortion will result in the
loss of that option altogether even if it is in the best
interests of the woman’s health.
Women should be able to obtain medical
services as appropriate for their circumstances.
Medical options should not be limited by avoidable
delay.
*

*

*

Notifying patients that comprehensive health
care services are available to them significantly
increases the likelihood that they will seek and
receive those services and thereby reduces the risks
associated with delayed or inadequate health care.
The converse is also true: depriving patients of
information regarding services that are critical to
their health prevents or delays their access to those
services. And even those patients who are aware
that services exist but incorrectly believe that they
cannot afford those services are unlikely to seek or
obtain them. Accordingly, providing notice to women
as early as possible that free or low-cost prenatal
care, family planning and abortion services are
available to them reduces the significant healthrelated harms detailed above. The FACT Act
facilitates women’s awareness of, and thus access to,
this care.

25

 II.

Women Must Be Informed Whether Or Not
Health Care They Receive Is Provided By Or
Under The Supervision Of A Licensed Medical
Provider

A core principle of the practice of medicine is
the duty of a licensed medical provider to
competently provide medical treatment. Am. Med.
Ass’n, AMA Code of Medical Ethics 1 (2001),
available at https://www.ama-assn.org/sites/default
/files/media-browser/principles-of-medical-ethics.pdf
(“A physician shall be dedicated to providing
competent medical care . . . .”); Am. Nurses Ass’n,

Code of Ethics for Nurses with Interpretive
Statements §5.5, at 19 (2015), available at

http://nursingworld.org/DocumentVault/Ethics1/Code-of-Ethics-for-Nurses.html (“Nurses must
maintain competence and strive for excellence in
their nursing practice, whatever the role or setting.”).
Unlicensed persons providing medical care without
adequate competency run the risk of harming
patients and violating the law through their
unlicensed practice of medicine. See Am. Coll. of
Obstetricians & Gynecologists, Code of Professional
Ethics 3 (2011) [hereinafter ACOG Code of
Professional Ethics], available at https://www.acog
.org/-/media/Departments/National-OfficerNominations-Process/ACOGcode.pdf?dmc
=1&ts=20180224T2126120836 (“The obstetriciangynecologist should recognize the boundaries of his
or her particular competencies and expertise and
must provide only those services and use only those
techniques for which he or she is qualified by
education, training, and experience.”); Cal. Bus. &
Prof. Code §§ 2052, 2053.5.
26

 Patients can neither fully consent nor make
fully informed decisions about their health care if
they are not meaningfully informed about the care
they are receiving or the qualifications and expertise
of the individual who will be providing the care.

Informed Consent: Code of Medical Ethics Opinion
2.1.1, Am. Med. Ass’n, https://www.ama-assn.org

/delivering-care/informed-consent (“Patients have the
right to receive information and ask questions about
recommended treatments so that they can make
well-considered decisions about care.”); Withholding

Information from Patients: Code of Medical Ethics
Opinion 2.1.3, Am. Med. Ass’n, https://www.ama-

assn.org/delivering-care/withholding-informationpatients (“Truthful and open communication between
physician and patient is essential for trust in the
relationship and for respect for autonomy.”); Am.
Nurses Ass’n, supra, §2.1, at 5 (“Honest discussions
about available resources, treatment options, and
capacity for self-care are essential.”).
In addition, the health care professional and
the patient share responsibility for the patient’s
health, and the well-being of the patient depends
upon their collaborative efforts. Patient Rights: Code
of Medical Ethics Opinion 1.1.3, Am. Med. Ass’n,
https://www.ama-assn.org/delivering-care/patientrights; see also Am. Coll. of Obstetricians &
Gynecologists, Committee Opinion No. 578: Elective
Surgery and Patient Choice, 122 Obstetrics &
Gynecology 1134, 1135 (2013) (“The goal should be
decisions reached in partnership between patient
and physician.”); Am. Nurses Ass’n, supra, § 1.2, at 1
(“Nurses establish relationships of trust and provide
nursing services according to need . . . .”). Within the
27

 patient–provider relationship, the provider’s respect
for the patient’s autonomy is fundamental. ACOG
Code of Professional Ethics, supra, at 1; Am. Coll. of
Obstetricians & Gynecologists, Committee Opinion

No. 390: Ethical Decision Making in Obstetrics and
Gynecology, 110 Obstetrics & Gynecology 1479, 1481
(2007); cf. Doe v. Bolton, 410 U.S. 179, 197 (1973)
(recognizing a “woman's right to receive medical care
in accordance with her licensed physician’s best
judgment”); Cruzan ex rel. Cruzan v. Dir., Missouri
Dep't of Health, 497 U.S. 261, 289 (1990) (O’Connor,
J., concurring) (recognizing a “patient's liberty,
dignity, and freedom to determine the course of her
own treatment”). Deciding on the best form of
pregnancy-related health care for any given patient
should take place within this established patientprovider relationship. This is particularly true given
the highly personal nature of the reproductive health
and family planning services at issue.
Patients must be aware when what may

appear to be medical care provided by a licensed
medical professional and at a licensed facility is in
fact being provided by an unlicensed provider or
clinic that does not receive important quality
oversight from the relevant licensing board within
the California Department of Consumer Affairs or
the California Department of Public Health. That
awareness will allow them to make a better-informed
decision whether to seek care elsewhere and whether
to have a procedure done at all.
One such example relates to the provision of
ultrasounds, procedures that use high-frequency
sound waves to scan a woman’s abdomen and pelvic
28

 cavity to create a picture of the fetus. Ultrasounds
are commonly used by health care professionals
during a woman’s pregnancy. Ultrasound Imaging,
U.S. Food & Drug Admin., https://www.fda.gov
/Radiation-EmittingProducts/RadiationEmitting
ProductsandProcedures/MedicalImaging/ucm115357
.htm. Thus, a woman may reasonably assume that if
she is offered an ultrasound, the ultrasound is
medically necessary. She also may reasonably
assume, unless informed otherwise, that the
ultrasound is being performed by or at the direction
of a competent and licensed medical provider. She
further may assume that she will be informed of the
need for follow-up evidence-based medical care if the
ultrasound reveals any abnormalities or issues. All
of these assumptions may be incorrect, however.7
Licensed medical providers are the only ones
in a position to provide pregnant women with the
information they need to decide whether and when
an ultrasound should be performed. They also are
best able to interpret the ultrasound’s results in a
competent manner. ACOG Practice Bulletin No. 175,
supra note 7, at e245-46 (“[U]ltrasonography should

Some ultrasounds are provided by facilities offering
“keepsake” ultrasounds, which provide women with images of
the developing fetus for non-medical reasons. Other
ultrasounds are provided by facilities that seek to convince
women not to have an abortion. The use of ultrasonography
without a medical indication is inappropriate and contrary to
responsible medical practice. See Am. Coll. of Obstetricians &
Gynecologists, Practice Bulletin No. 175: Ultrasound in
Pregnancy, 128 Obstetrics & Gynecology e245, e245-46 (2016)
[hereinafter ACOG Practice Bulletin 175].
7

29

 be performed only when there is a valid medical
indication and, in all cases, the lowest possible
ultrasound exposure settings that obtain adequate
image quality and gain the necessary diagnostic
information should be used, following the as-low-asreasonably-achievable (ALARA) principle.”).
When non-medically necessary ultrasounds
are administered, “patients may not receive the
necessary support, information, and follow-up” for
any abnormalities. Id. at e247. Moreover,
“nonmedical ultrasonography may falsely reassure
pregnant women who may incorrectly believe that
the ultrasound imaging is diagnostic.” Id. Indeed,
non-medical ultrasounds may be incorrectly viewed
as a substitute for needed medical care. As the
International Society of Ultrasound in Obstetrics and
Gynecology (“ISUOG”) has recognized, even if
“sessions are described as ‘non-medical,’…
‘customers’ often assume they have undergone a
medical scan and may therefore forfeit a regular,
scheduled medical scan.” J. Abramowicz et al.,

ISUOG Statement on the Non-Medical Use of
Ultrasound, 2009, 33 Ultrasound in Obstetrics &

Gynecology 617, 617 (2009). Further, if an
unlicensed medical provider performs an ultrasound
and provides inaccurate results (whether
intentionally or due to lack of training), health
concerns such as fetal abnormalities and ectopic
pregnancies can be overlooked and left untreated.
Due to these concerns, “[t]he position of the
[American Institute of Ultrasound in Medicine] is
that only qualified individuals should perform
sonograms, and that they must be able to recognize

30

 important conditions, such as birth defects, and,
conversely, artifacts that may mimic fetal pathology.”
Id. at 619.8
The risks associated with women incorrectly
believing that a service is both medically indicated
and being performed in a competent manner,
including recommendations for follow-up medical
care if necessary, are reduced when the women are

Indeed, a number of prominent regulatory and health
organizations have advised women not to get non-medical
ultrasounds. See, e.g., Avoid Fetal "Keepsake" Images, U.S.
Food & Drug Admin., https://www.fda.gov/ForConsumers
/ConsumerUpdates/ucm095508.htm (“[T]he FDA strongly
discourages [ultrasound] use for creating fetal keepsake images
and videos.”); Stanley B. Barnett et al., International
8

Recommendations and Guidelines for the Safe Use of
Diagnostic Ultrasound in Medicine, 26 Ultrasound in Med. &

Biol. 358, 364 (2000); Press Release, Am. Inst. of Ultrasound in
Med., The AIUM Reaffirms its Opposition to Entertainment
Ultrasound (Apr. 2, 2004), available at http://www.aium.org
/press/viewRelease.aspx?id=66 (“The use of either twodimensional (2-D) or three-dimensional (3-D) ultrasound to only
view the fetus, obtain a picture of the fetus or determine the
fetal gender without a medical indication is inappropriate and
contrary to responsible medical practice.”); Abramowicz et al.,
supra, at 617 (“ISUOG disapproves of the use of ultrasound for
the sole purpose of providing souvenir images of the fetus.”);

Non-Diagnostic Use of Ultrasound for Entertainment Purposes
in the Obstetrical Setting, Soc’y of Diagnostic Med. Sonography
(June 8, 2011), https://sdmspositionstatements.wordpress
.com/2011/06/08/6/ (“The use of two-dimensional (2D), threedimensional (3D) or four-dimensional (4D) ultrasound to only
view the fetus, obtain a picture of the fetus or determine the
fetal gender without a medical indication is inappropriate and,
in the view of the Society of Diagnostic Medical Sonography
(SDMS), contrary to responsible medical practice.”).

31

 informed that the facility does not have a licensed
medical provider on staff. The FACT Act, which
requires an unlicensed facility administering
pregnancy-related services to provide notice that the
facility is unlicensed and that it has no licensed
medical provider on staff, will enable pregnant
women to make informed decisions about their
health and the health of the developing fetus.

32

 CONCLUSION

Amici respectfully request that the Court
affirm the decision below.
Dated: February 27, 2018
Respectfully submitted,

/s/ Simona G. Strauss
Simona G. Strauss
P. Casey Mathews
SIMPSON THACHER & BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
(650) 251-5000
Veronica R. Jordan-Davis
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000

Attorneys for Amici Curiae

33