No. 19-417

In the Supreme Court of the United States__________________

EMW WOMEN’S SURGICAL CENTER, P.S.C., ON BEHALFOF ITSELF, ITS STAFF, AND ITS PATIENTS; ERNEST

MARSHALL, M.D., ON BEHALF OF HIMSELF AND HISPATIENTS; ASHLEE BERGIN, M.D., ON BEHALF OF

HERSELF AND HER PATIENTS; TANYA FRANKLIN, M.D.,ON BEHALF OF HERSELF AND HER PATIENTS,

Petitioners,v.

ADAM MEIER, IN HIS OFFICIAL CAPACITY AS SECRETARYOF THE KENTUCKY CABINET FOR HEALTH AND FAMILY

SERVICES,Respondents.

__________________

On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Sixth Circuit

__________________

BRIEF IN OPPOSITION__________________

M. STEPHEN PITT

S. CHAD MEREDITH

Counsel of RecordMATTHEW F. KUHN

OFFICE OF THE GOVERNOR

700 Capital AvenueSuite 101Frankfort, Kentucky 40601(502) 564-2611chad.meredith@ky.gov

CATHERINE YORK

CABINET FOR HEALTH &

FAMILY SERVICES

OFFICE OF LEGAL SERVICES

275 East Main Street, 5W-BFrankfort, Kentucky 40621(502) 564-7905

Counsel for Respondent October 28, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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QUESTION PRESENTED

Whether the Free Speech Clause of the FirstAmendment prohibits the Commonwealth of Kentuckyfrom regulating the practice of medicine by requiring amedical professional, prior to performing a medicalprocedure, to provide the patient with information thatis truthful, non-misleading, and relevant to theprocedure.

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

A. The Challenged Statute . . . . . . . . . . . . . . . 1

B. The Policy Behind HB 2. . . . . . . . . . . . . . . 3

C. Decisions Below . . . . . . . . . . . . . . . . . . . . . 6

REASONS TO DENY CERTIORARI . . . . . . . . . . . 12

I. THERE IS NO CIRCUIT CONFLICT OVERTHE QUESTION PRESENTED. . . . . . . . . . 12

II. THERE IS NO RECURRING QUESTIONTHAT THIS COURT NEEDS TO RESOLVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. THE DECISION BELOW IS CORRECT . . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES

CASES

Eubanks v. Schmidt, 126 F. Supp. 2d 451 (W.D. Ky. 2000) . . . . . . . . . . 1

Gonzales v. Carhart, 550 U.S. 124 (2007). . . . . . . . . . . . . . . . . . . 4, 5, 10

National Institute of Family & Life Advocates v.Becerra, 138 S. Ct. 2361 (2018). . . . . . . . . . . . . . . . . passim

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013). . . . . . . . . . . . . . . 13

Planned Parenthood of Minnesota, North Dakota,South Dakota v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc). . . . . . 9, 12

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . passim

Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014). . . . . . . . . . . . passim

Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012). . . . . . 5, 9, 12, 20, 25

CONSTITUTION AND STATUTES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

Ky. Rev. Stat. § 311.725(1)(a) . . . . . . . . . . . . . . . . . . 1

Ky. Rev. Stat. § 311.725(1)(b) . . . . . . . . . . . . . . . . . . 1

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Ky. Rev. Stat. § 311.727. . . . . . . . . . . . . . . . . . . . . . . 2

Ky. Rev. Stat. § 311.727(2) . . . . . . . . . . . . . . . . . . . . 2

Ky. Rev. Stat. § 311.727(3) . . . . . . . . . . . . . . . . . . . . 3

Ky. Rev. Stat. § 311.727(5) . . . . . . . . . . . . . . . . . . . . 2

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OPINIONS BELOW

The opinion of the United States Court of Appealsfor the Sixth Circuit is reported at 920 F.3d 421. Theopinion of the United States District Court for theWestern District of Kentucky is reported at 283F. Supp. 3d 629.

STATEMENT OF THE CASE

A. The Challenged Statute

In 2017, the Kentucky General Assemblydetermined that it would be prudent public policy toaugment Kentucky’s existing informed-consentrequirements for abortion providers. The then-existingrequirements were enacted in 1998, and they simplyrequired abortion providers to inform patients of: (1) the nature and purpose of the abortion; (2) themedical risks and alternatives to abortion; (3) theprobable gestational age of the child; (4) the materialrisks of carrying the pregnancy to term; (5) theavailability of printed materials about the foregoing, aswell as information about obtaining public and privateassistance; and (6) the fact that the father of the childis liable for child support even if he has offered to payfor an abortion. Ky. Rev. Stat. § 311.725(1)(a)-(b).1 By2017, however, the General Assembly determined that

1 The constitutionality of those requirements was challenged onFirst Amendment grounds by at least one of the plaintiffs in thepresent lawsuit. The United States District Court for the WesternDistrict of Kentucky found the requirements to be constitutional,and the plaintiffs did not appeal that decision. See Eubanks v.Schmidt, 126 F. Supp. 2d 451 (W.D. Ky. 2000).

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women deserve to be even better informed beforedeciding whether to have an abortion.

To that end—and in light of two decades ofcontinuous improvement in ultrasound technology—Kentucky legislators introduced House Bill 2 (“HB 2”)in order to require that women seeking abortions alsobe provided with an ultrasound image of their fetus,and a medically-accurate description of that image, aspart of the informed-consent process. The bill passedboth houses of the General Assembly withoverwhelming bipartisan support in the very first weekof the 2017 legislative session, receiving “yea” votesfrom more than 80 percent of legislators. The Governorsigned HB 2 two days later, and it became effectiveimmediately.

HB 2’s requirements, which are codified as Ky. Rev.Stat. § 311.727, are simple and straightforward. Theydo nothing more than require that women who areconsidering an abortion be provided with informationthat is truthful, non-misleading, and relevant to theirdecision of whether to have an abortion. Specifically,it requires a physician or qualified technician to do thefollowing before performing an abortion: (1) display anultrasound image of the child; (2) provide the womanwith a medical description of the ultrasound, includingthe dimensions of the child and the presence of anyexternal members or internal organs; and(3) auscultate the fetal heartbeat so that it can beheard if audible. Id. § 311.727(2).

These requirements are not applicable in the case ofa medical emergency or necessity. Id. § 311.727(5). And, in recognition of the fact that not all patients will

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have the same need or desire for information, the lawstrikes a balance by providing that the volume of thefetal heartbeat can be reduced or turned off at therequest of the woman, and by also providing that“nothing in this section shall be construed to preventthe pregnant woman from averting her eyes from theultrasound images.” Id. § 311.727(3).

The Petitioners’ Statement of the Case claims thatHB 2 requires a physician to read patients a particular“script,” [Pet. at 2], but that is completely false. HB 2does not require anyone to follow a set script; rather,the physician or qualified technician who is making therequired disclosures can use his or her own words tomeet HB 2’s requirements.

B. The Policy Behind HB 2

The rationale behind HB 2 is the common sensenotion that nothing can better inform a patient of thenature and consequences of an abortion than actuallyseeing an image of the fetus who will be aborted andreceiving a medically-accurate description of thatimage. And there is abundant evidence in the recorddemonstrating the real-world significance of providingwomen with this information.

The Commonwealth of Kentucky presented thedistrict court with affidavits from four women who hadundergone abortions. [See Dkt. Nos. 32-3, 32-4, 32-5,32-6]. These affidavits are powerful statements of thedespair and grief that a woman suffers when sherealizes that her decision to obtain an abortion was notfully informed. [See id.]. Generally, the affiants statethat they did not understand the true nature of their

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fetus before having an abortion, and they believed theirfetus to be an inanimate mass of tissue rather than aliving being that was assuming the human form. [SeeDkt. No. 32-4 at PageID # 409-10]. The affiants furtherstate that being shown an ultrasound image of theirfetus and receiving a description of that image wouldhave been helpful to them in determining whether tohave an abortion and would have helped them avoidthe mental anguish that they later suffered uponrealizing that they had made ill-informed decisions toabort their children. [See Dkt. Nos. 32-3, 32-4, 32-5,32-6, PageID # 406-08, 409-11, 412-14, 415-17].

These brave statements, which are essentiallyignored by the Petitioners, echo the considerations thatthis Court articulated in Gonzales v. Carhart, 550 U.S.124 (2007), when it explained the especially stronginterest that governments have in ensuring thatwomen have all available information related to theirpregnancy before making a decision about abortion. Inparticular, this Court stated:

. . . Whether to have an abortion requires adifficult and painful moral decision. While wefind no reliable data to measure thephenomenon, it seems unexceptional to concludesome women come to regret their choice to abortthe infant life they once created and sustained. Severe depression and loss of esteem can follow.

In a decision so fraught with emotionalconsequence some doctors may prefer not todisclose precise details of the means that will beused, confining themselves to the requiredstatement of risks the procedure entails. From

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one standpoint this ought not to be surprising. Any number of patients facing imminentsurgical procedures would prefer not to hear alldetails, lest the usual anxiety preceding invasivemedical procedures become the more intense. This is likely the case with the abortionprocedures here in issue.

It is, however, precisely this lack ofinformation concerning the way in which thefetus will be killed that is of legitimate concernto the State. The State has an interest inensuring so grave a choice is well informed. It isself-evident that a mother who comes to regrether choice to abort must struggle with grief moreanguished and sorrow more profound when shelearns, only after the event, what she once didnot know: that she allowed a doctor to piercethe skull and vacuum the fast-developing brainof her unborn child, a child assuming the humanform.

Id. at 159-60 (citations omitted).

HB 2 addresses these concerns by ensuring thatwomen have more information about not only theabortion procedure itself, but also their fetus so thatthey will not experience “grief more anguished andsorrow more profound” if they later realize that theymade an uninformed decision. As the Fifth Circuitheld in Texas Medical Providers Performing AbortionServices v. Lakey, “[d]enying [a woman] up to datemedical information is more of an abuse to her abilityto decide than providing the information.” 667 F.3d570, 579 (5th Cir. 2012).

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Of course, the Petitioners contend that they do notactually deny women the information required by HB2. They say that they offer women that information.2 Tellingly, however, there is no indication that they doanything to dispel the mistaken beliefs of womenwho—like the affiants—are under the impression thattheir fetuses are simply masses of inanimate tissuerather than living beings that are assuming the humanform. Thus, while the Petitioners claim to offer theinformation to women, there is no evidence that thePetitioners do anything to make sure that all womenare fully informed about the nature of their fetus or thenature and consequences of the abortion procedure. Given this reality, the Kentucky General Assemblydetermined that the best way of ensuring that a womanis fully informed about the nature and consequences ofan abortion prior to opting for one is to require that shebe shown an ultrasound image of her fetus and beprovided a description of the fetus in her doctor’s ownwords. This is the considered judgment of theoverwhelming majority of Kentucky’s legislators—those elected by Kentucky’s citizens to make policydecisions for the Commonwealth.

C. Decisions Below

The Petitioners filed suit in the United StatesDistrict Court for the Western District of Kentucky,

2 The Petitioners ignore the fact that HB 2 applies not just tothemselves, but to anyone who will ever provide an abortion inKentucky. The fact that the Petitioners claim to offer to displayultrasound images to their patients does not guarantee that otherabortion providers will do so, nor does it guarantee that thePetitioners will continue doing so in the future.

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claiming that HB 2 violates their First Amendmentrights by compelling them to engage in speech to whichthey object. They sought preliminary and permanentinjunctive relief.

1. The district court held an evidentiary hearing onthe Petitioners’ motion for a preliminary injunction,and the parties thereafter agreed for that hearing to betreated as the trial on the merits. Several monthslater, the district court declared HB 2 to beunconstitutional and entered a permanent injunctionagainst its continued enforcement.3 See EMW Women’sSurgical Ctr. v. Beshear, 283 F. Supp. 3d 629 (W.D. Ky.2017). The district court reached that result byrejecting the analytical framework applied to similarlaws by the Fifth and Eighth Circuits and adoptinginstead the intermediate-scrutiny analysis that theFourth Circuit applied in Stuart v. Camnitz, 774 F.3d238 (4th Cir. 2014). See EMW Women’s Surgical Ctr.,283 F. Supp. 3d at 642. It adopted the Fourth Circuit’sanalysis because it agreed with that court’s conclusionthat ultrasound-disclosure requirements carryconstitutionally-suspect ideological implications. Seeid. at 641-42.

2. The United States Court of Appeals for the SixthCircuit denied a motion to stay the injunction pendingappeal, but it ultimately reversed the district court’sjudgment based on this Court’s decision in NationalInstitute of Family & Life Advocates v. Becerra, 138

3 The district court had not previously granted preliminaryinjunctive relief, meaning that HB 2 was in effect for monthsbefore being enjoined.

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S. Ct. 2361 (2018) (“NIFLA”). See EMW Women’sSurgical Ctr. v. Beshear, 920 F.3d 421 (6th Cir. 2018). With respect to its earlier denial of a stay, the SixthCircuit explained that “neither our court nor thedistrict court had the benefit of the Supreme Court’srecent decision in [NIFLA].” See id. at 424.

In reversing the district court’s judgment, the SixthCircuit acknowledged that there had been a conflictamong circuits prior to NIFLA, but it held that NIFLA“clarified that no heightened scrutiny should apply toinformed-consent statutes like the abortion-informed-consent statute at issue in Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833(1992).” EMW Women’s Surgical Ctr., 920 F.3d at 424(citing NIFLA, 138 S. Ct. at 2373).

The Sixth Circuit went on to explain that “inNIFLA, a majority of the Supreme Court adopted theFirst Amendment analysis applied in Casey.” Id. at428 (citing NIFLA, 138 S. Ct. at 2373-74). And, underthat analysis, a compelled informed-consent disclosureis a constitutional regulation of the practice of medicineso long as it is truthful, non-misleading, and relevantto the patient’s decision whether to undergo theparticular procedure in question. Id. at 428-29 (citingNIFLA, 138 S. Ct. at 2373; Casey, 505 U.S. at 882). Thus, the Sixth Circuit concluded that “[b]ecause H.B.2, like the statute in Casey, requires the disclosure oftruthful, non-misleading, and relevant informationabout an abortion, we hold that it does not violate adoctor’s right to free speech under the FirstAmendment.” Id. at 424 (citing NIFLA, 138 S. Ct. at2373; Casey, 505 U.S. at 882-84).

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After concluding that HB 2 meets “the lower level ofscrutiny mandated by Casey and NIFLA,” id. at 432,the Sixth Circuit observed that its decision was “in linewith two other circuits that have faced FirstAmendment challenges to similar abortion-informed-consent statutes,” id. Specifically, the court observedthat the Fifth Circuit in Texas Medical ProvidersPerforming Abortion Services v. Lakey, 667 F.3d 570(5th Cir. 2012), and the Eighth Circuit in PlannedParenthood of Minnesota, North Dakota, South Dakotav. Rounds, 530 F.3d 724, 726 (8th Cir. 2008) (en banc),both held that informed-consent requirements areconstitutional when they merely mandate thedisclosure of truthful, non-misleading, and relevantinformation. See id.

The Sixth Circuit also discussed the FourthCircuit’s outlier decision in Stuart, concluding thatStuart’s reliance on the purported ideologicalimplications of ultrasound-disclosure requirements isan illegitimate basis for invalidating them in light ofNIFLA. The Sixth Circuit rejected Stuart’s reasoning“because it gave insufficient regard to the FirstAmendment analysis in Casey that the Court clarifiedand adopted as the majority view in NIFLA.” Id. at435. More specifically, the Sixth Circuit found Stuartto be inconsistent with NIFLA and held that “there isno Supreme Court authority for looking to whether thespeech has ideological implications and applying a‘sliding scale’ that may result in intermediatescrutiny.” Id. at 436.

The Sixth Circuit then rejected the Petitioners’remaining arguments—i.e., that HB 2 improperly

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interferes with the doctor-patient relationship, andthat the law should be evaluated under heightenedscrutiny because it has a negative emotional effect onpatients. As to the former, the Sixth Circuit held that“H.B. 2 does not interfere with the doctor-patientrelationship any more than other informed-consentlaws.” Id. And the court rejected out of hand thePetitioners’ argument that the constitutionality ofinformed-consent laws should be determined on thebasis of the preferred customs of professional groupslike the National Abortion Federation and theAmerican College of Obstetricians and Gynecologists. See id. at 437. Citing Gonzales, the Sixth Circuitobserved that “[t]he law need not give abortion doctorsunfettered choice in the course of their medicalpractice, nor should it elevate their status above otherphysicians in the medical community.” Id. (quotingGonzales, 550 U.S. at 163). And the court furtherobserved that “[t]he principle that informed-consentrequirements may be created by law, as opposed tomerely medical profession custom, applies to allmedical procedures, including abortion.” Id. Thus, thecourt held that the views of medical groups areirrelevant in determining whether an informed-consentstatute violates the First Amendment. See id. at 439.

As to the Petitioners’ argument about the negativeemotional effects of HB 2, the Sixth Circuit held thatsuch considerations simply are not relevant to the FirstAmendment analysis. The court noted that “discomfortmay be a byproduct of informed consent itself,” id. at442 (citing Gonzales, 550 U.S. at 159), and observedthat Casey rejected the notion that discomfort to the

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patient can render an informed-consent requirementinvalid, see id.

3. Judge Donald dissented. Significantly, sheacknowledged that “the controlling First Amendmentcases in this context are Casey and NIFLA.” Id. at 449(Donald, J., dissenting). However, she believed thatthe majority applied those cases incorrectly. In herview, the dividing line between a valid informed-consent statute and an invalid compelled-speechstatute is not whether the law requires the disclosureof information that is truthful, non-misleading, andrelevant to the decision to undergo a medicalprocedure, but instead whether the requirements of thelaw are “currently embodied in the customary standardof medical care.” Id. at 450 (quoting Majority Opn. atn.24). Thus, under Judge Donald’s view, thepreferences of professional groups can supplant astate’s sovereignty. Accordingly, she concluded thatHB 2 is unconstitutional because she found itsrequirements to be inconsistent with the views ofcertain medical groups. See id. at 455-56, 460-61.

4. The Petitioners moved for rehearing en banc,which the Sixth Circuit denied on June 28, 2019. Thereafter, they sought, and received, a stay of themandate pending this Court’s resolution of a petitionfor a writ of certiorari.

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REASONS TO DENY CERTIORARI

A writ of certiorari is inappropriate here. The SixthCircuit’s decision simply applied recent controllingprecedent from this Court—precedent that clarified thelaw and, in doing so, eliminated a conflict among thecircuits. Because there is presently no conflict amongcircuits, and because this Court spoke to the issue athand just two terms ago, there is no need for the Courtto use this case as a vehicle for addressing the issue yetagain. Moreover, the Sixth Circuit’s decision is correct.

I. THERE IS NO CIRCUIT CONFLICT OVERTHE QUESTION PRESENTED.

The Petitioners’ sole basis for arguing that there isa conflict among the circuits is the fact that the SixthCircuit’s decision and the Lakey and Rounds decisionsfrom the Fifth and Eighth Circuits respectively areinconsistent with the Fourth Circuit’s 2014 decision inStuart. Their argument ignores one overriding point: this Court’s 2018 decision in NIFLA.

There was undoubtedly a conflict among the circuitsprior to NIFLA, with the Fifth and Eighth Circuitsapplying rational-basis review in First Amendmentchallenges to medical-disclosure requirements like theone at issue here, and the Fourth Circuit adhering to asliding-scale analysis that applies intermediatescrutiny to such laws. But NIFLA clarified the law andreset the playing field on this issue, meaning that thereis no longer a circuit conflict.

After NIFLA, it is clear that the Fourth Circuit’sdecision in Stuart is no longer good law. Stuart heldthat regulations impacting the speech of professionals

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must be evaluated on a continuum according to asliding-scale analysis. See Stuart, 774 F.3d at 248(citing Pickup v. Brown, 740 F.3d 1208, 1227, 1229 (9thCir. 2013)). Under that analysis, a regulationrequiring professionals to provide certain informationin the course of their profession is a regulation of bothspeech and conduct, and therefore falls within themiddle of the continuum so as to be subject tointermediate scrutiny. See id. But NIFLA directlyrejected that kind of sliding-scale analysis, holding thatthere is no special doctrine governing the speech ofprofessionals. See NIFLA, 138 S. Ct. at 2372. In fact,NIFLA repudiated the Ninth Circuit’s decision inPickup, see id. at 2371-72, which was the foundation onwhich the Fourth Circuit erected its sliding-scale,intermediate-scrutiny analysis in Stuart, see Stuart,774 F.3d at 248 (citing Pickup, 740 F.3d at 1227, 1229).

In rejecting the sliding-scale analysis applied by theFourth Circuit, NIFLA clarified that content-basedregulations of professionals’ speech are subject to strictscrutiny except in two instances: (1) the regulation ofprofessionals’ commercial speech; and (2) theregulation of professional conduct that incidentallyburdens speech. See NIFLA, 138 S. Ct. at 2372-73. The second exception is most relevant here. And, withrespect to that exception, there are only two optionswhen reviewing a statute that regulates professionals: (1) it is a regulation of speech; or (2) it is a regulationof conduct. There is no room under NIFLA’s holdingfor the Fourth Circuit’s sliding-scale analysis thatapplies intermediate-scrutiny to some laws on theground that they regulate both speech and conduct. Instead, NIFLA clarified that a law either regulates

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professional conduct with only incidental burdens onspeech—and therefore is not subject to any kind ofheightened scrutiny—or else it is a content-basedregulation of speech that is subject to strict scrutiny. This is now the law—and it is precisely the law thatthe Sixth Circuit applied below. More importantly,NIFLA is a controlling precedent of this Court, andtherefore eliminates any previously existing circuitconflict on this point. This should be the end of thediscussion because there plainly cannot still be a circuitconflict when there is controlling authority from thisCourt that was issued after the circuit conflict arose.

The only way that one can identify an existingcircuit conflict is by ignoring the fact that this Courtissued controlling authority in NIFLA. But not eventhe dissenting opinion below attempted to do that. Infact, the dissenting opinion acknowledged that NIFLAis a controlling authority. See EMW Women’s SurgicalCtr., 920 F.3d at 449 (Donald, J., dissenting). Thedissenting opinion contended that the majority hadmisapplied NIFLA, but it did not assert that themajority had come down on the wrong side of a circuitconflict. Why not? Because the dissenting judgeobviously recognized that there was no longer a circuitconflict in the wake of NIFLA.

Even the Petitioners themselves seem to recognizethis point. Indeed, in the section of the Petitiondevoted to discussing the purported circuit conflict,their primary argument is not that the dispute in thiscase turns on the resolution of the supposed conflict,but that “[t]he dispute here turns on the properinterpretation of a plurality’s First Amendment

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decision in Planned Parenthood of SoutheasternPennsylvania v. Casey, 505 U.S. 833 (1992), recentlyreaffirmed and adopted by the Court in NationalInstitute of Family & Life Advocates v. Becerra, 138S. Ct. 2361 (2018).” [Pet. at 12]. And the ensuingdiscussion is focused on the Petitioners’ belief that theSixth Circuit simply got the wrong answer in itsapplication of NIFLA. Thus, if it accomplishesanything, the Petitioners’ argument just demonstratesthat there is now controlling precedent from this Courtrather than a circuit conflict.

Nevertheless, the Petitioners attempt to shoe-horna circuit conflict into this case by pointing to NIFLA’scitation of Casey. NIFLA identified the informed-consent law at issue in Casey as a prime example of alaw that regulates professional conduct rather thanspeech. See NIFLA, 138 S. Ct. at 2372-73. Accordingto the Petitioners, this means that the key todetermining whether a statute is a permissibleregulation of professional conduct rather than anunconstitutional regulation of speech is to determinewhether the statute is similar in nature to the statutein Casey. And, according to the Petitioners, there is acircuit conflict on this issue because the Fifth and SixthCircuits have found that ultrasound-disclosure statutesare of the same nature as the Casey statute—andtherefore constitutional—while the Fourth Circuit hasreached the opposite conclusion with respect to avirtually identical statute. Once again, however, thePetitioners’ argument ignores the impact of NIFLA.

The Fourth Circuit distinguished North Carolina’sultrasound-disclosure law from the law upheld in Casey

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because it found that the disclosures required by NorthCarolina’s law had “ideological implications.” Stuart,774 F.3d at 246. But NIFLA belies that distinction,which was illogical to begin with.

NIFLA addressed a California statute that requiredpro-life crisis pregnancy centers to disseminateinformation about obtaining free or low-cost abortions. See NIFLA, 138 S. Ct. at 2368-69. If the ultrasounddisclosure requirement in Stuart carried “ideologicalimplications,” then the statute at issue in NIFLAcertainly did as well. And, yet, this Court did not relyon any purported “ideological implications” of theCalifornia statute in distinguishing it from the law thatwas upheld in Casey. Instead, this Court distinguishedthe California statute solely on the basis that it was nottied to a medical procedure. See id. at 2373. In otherwords, the statute in NIFLA was distinguishable fromthe statute in Casey because the former “applie[d] to allinteractions between a covered facility and its clients,regardless of whether a medical procedure is eversought, offered, or performed.” Id. By choosingthis—as opposed to any supposed ideologicalimplications of the law—as the point of distinction fromCasey, NIFLA plainly adopted a very different analysisfrom the one the Fourth Circuit applied in Stuart. NIFLA therefore overrode the pre-existing circuitconflict and set forth the analysis to be used goingforward—which is precisely the analysis that the SixthCircuit applied here. This state of affairs is anythingbut a circuit conflict.

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II. THERE IS NO RECURRING QUESTIONTHAT THIS COURT NEEDS TO RESOLVE

The Commonwealth of Kentucky agrees that thequestion presented is an important one. In fact, itsimportance is precisely why this Court spoke directlyto the question just two years ago in NIFLA. Contraryto the Petitioners’ argument, however, there are norecurring issues that necessitate this Court’sconsideration of the same question for a second time inthree terms.

Other than the present case, the Petitioners havenot identified any post-NIFLA Court of Appeals’decisions addressing the question at hand. And, infact, there are none. Moreover, if such cases arise,there is no reason to believe that the Courts of Appealscannot handle them appropriately by applying NIFLA,just as the Sixth Circuit did.

The Petitioners point out that the Sixth Circuit’sdecision might encourage other states to pass lawssimilar to HB 2, but that can always be said of anydecision upholding the constitutionality of a statute. This is not a legitimate basis for granting a writ ofcertiorari.

The Petitioners also complain that the SixthCircuit’s opinion will pave the way for graphicinformed-consent requirements, like forcing physiciansto show cardiac patients a recording of a chest sawbeing used in coronary bypass surgery, or requiringphysicians to show pregnant women a video ofabdominal surgery in order to discourage cesarean-

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section delivery.4 But these are policy questions, notquestions of constitutional law. Under NIFLA, it isunquestionably true that states can require physiciansto provide patients with information that is truthful,non-misleading, and relevant to the decision to undergoa particular medical procedure. Whether a stateshould require patients to receive all truthful, non-misleading, and relevant images, videos, and writingsabout a particular procedure—including graphicdisclosures like those mentioned by the Petitioners—isa policy question that should be left to the politicalprocesses of the state legislatures, not the federalcourts.

The essence of the Petitioners’ argument is thatthey are displeased that several states have passedlaws like HB 2, and they fear more states might passsimilar laws in the wake of the Sixth Circuit’sapplication of NIFLA. In their view, this presents arecurring question that needs to be resolved. But itdoes not. There is no recurring confusion that thisCourt needs to clear up, and there is no indication thatthe circuits need further guidance from this Court inorder to apply NIFLA in a coherent manner. Instead,the Petitioners are simply asking this Court to

4 It is not clear that requiring a pregnant patient to watch a videoof abdominal surgery in general—rather than specifically acesarean section—would fall within the category of disclosures thatare truthful, non-misleading, and relevant to the medicalprocedure at issue. There is no way to know from the record inthis case whether cesarean section procedures are so similar to allother abdominal surgeries that a video of some randomly selectedabdominal surgery would be relevant to a patient’s decision to havea cesarean section.

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reconsider part of NIFLA in the hope that they canobtain an outcome that they find more pleasing. Butthis is not why writs of certiorari exist. A desire to re-litigate an issue in the hope of getting a different resultdoes not demonstrate the existence of the kind ofimportant and recurring question that warrants thisCourt’s attention.

III. THE DECISION BELOW IS CORRECT

The decision below is not only correct, but isaffirmatively compelled by NIFLA. The Petitionerscontend that the Sixth Circuit’s interpretation ofNIFLA turns that decision on its head. Nothing couldbe further from the truth. The Sixth Circuit correctlyinterpreted and applied NIFLA. It is the Petitionerswho seek to turn that opinion upside down.

As explained above, NIFLA acknowledged thegeneral rule that content-based regulations of speechare presumptively unconstitutional. NIFLA, 138 S. Ct.at 2371. However, it also reiterated two longstandingexceptions to this rule. First, the Court noted thatcontent-based regulations are not presumptivelyunconstitutional when they “require professionals todisclose factual, noncontroversial information in their‘commercial speech.’” Id. at 2372. Second, the Courtheld that “States may regulate professional conduct,even though that conduct incidentally involves speech.” Id. The Court identified informed-consent laws as aprototypical example of the type of regulations that fallunder this second exception, see id. at 2373, and theSixth Circuit correctly relied on this exception inupholding HB 2, see EMW, 920 F.3d at 424, 428-29,446.

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More specifically, NIFLA pointed to the informed-consent statute at issue in Casey as the prime exampleof a valid informed-consent statute. See NIFLA, 138S. Ct. at 2372-73. Thus, NIFLA held that a disclosurerequirement is a valid informed-consent law if itpossesses the same material attributes as the statutein Casey. And what attributes are those? There arethree. In Casey, the plurality opinion noted that theinformed-consent statute at issue was constitutionallydistinguishable from other disclosure requirementsbecause it merely required the disclosure ofinformation that was (1) truthful, (2) non-misleading,and (3) relevant to the proposed abortion procedure. See Casey, 505 U.S. at 882. And, after thuscharacterizing the disclosure requirements, Caseysummarily rejected the plaintiff physicians’ FirstAmendment claims. See id. at 884.

The Sixth Circuit correctly applied this analysis indetermining that HB 2 falls within NIFLA’s exceptionfor informed-consent statutes. The disclosuresrequired by HB 2 “are the epitome of truthful, non-misleading information.” Lakey, 667 F.3d at 577-78. And they are clearly relevant to a woman’s decision tohave an abortion. Moreover, they are identical innature to the disclosures required in Casey. As theFifth Circuit held in Lakey, disclosure requirementslike those in HB 2 are “not different in kind, althoughmore graphic and scientifically up-to-date, than thedisclosures discussed in Casey—probable gestationalage of the fetus and printed material showing a baby’sgeneral prenatal development stages.” Id. at 578. Given these circumstances, it is abundantly clear that

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the Sixth Circuit correctly held that HB 2 falls withinNIFLA’s informed-consent exception.

The Petitioners do not contest the constitutionalityof informed-consent laws generally. Instead, theyargue that HB 2 is not an informed-consent law. Inadvancing this argument, they do not offer much in theway of a cogent test for determining when a disclosurerequirement qualifies as an informed-consentrequirement and when it does not. They complainrepeatedly that HB 2 is not consistent with“traditional” informed consent—whatever that is. ButNIFLA did not limit the informed-consent exception toonly those laws that fall within some “traditional”conception of informed consent. In fact, NIFLA saidnothing at all about “traditional” informed consent. And for good reason: If the exception were limited to“traditional” informed consent, the statute in Caseywould not have been found constitutional. After all,even the Fourth Circuit’s Stuart decision acknowledgedthat the statute in Casey differed from “traditional”informed consent. See Stuart, 774 F.3d at 253(observing that the statute in Casey was a“modification” of traditional informed consent). Theline of constitutionality is not—and never hasbeen—drawn according to anyone’s conception ofwhatever constitutes “traditional” informed consent.

It appears that what the Petitioners are reallyarguing is that a disclosure requirement cannot beconsidered a valid informed-consent requirementunless it is consistent with the informed-consentpreferences of special interest groups like the NationalAbortion Federation and the American College of

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Obstetricians and Gynecologists. In other words, whenthe Petitioners talk about “traditional” informedconsent, what they mean is that the preferences ofmedical associations are the only legitimate factors indetermining informed-consent requirements. Thus, thePetitioners believe that states cannot adopt informed-consent requirements that conflict with the views ofsuch groups. The Petitioners would have this Courthold that the views of such groups should supplant thepolicy preferences of state legislatures. But that isobviously wrong.

At its heart, the Petitioners’ argument is a policyargument, not a legal argument. That is, thePetitioners believe that an informed-consentrequirement should not be enacted over the objectionsof their favored medical organizations. However, theypresent no legal authority for the proposition thatstates cannot—as a matter of constitutional law—enactsuch laws over the objections of medical associationsand special interest groups. And no such authorityexists. It simply is not the case that professionalorganizations have the authority to determine theconstitutionality of state laws. As this Court held inGonzales, “[t]he law need not give abortion doctorsunfettered choice in the course of their medicalpractice, nor should it elevate their status above otherphysicians in the medical community.” Gonzales, 550U.S. at 163.

State sovereignty is no small matter. Indeed, it isone of the foundations of our federal system ofgovernment. The Petitioners’ position, if adopted,would allow the preferences of special-interest groups

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to supplant the sovereignty of the states. This isunthinkable. The Constitution does not prohibit statesfrom regulating the practice of professions in a waythat is displeasing to professional associations. Morespecifically, NIFLA makes clear that state legislatureshave the authority to regulate informed-consentrequirements. If medical groups dislike the manner inwhich their profession is being regulated, the answer isto lobby the state legislature to change the law, notlobby a federal court to constitutionalize the groups’preferences.

Of course, this is not to say that a state can insulatea disclosure requirement from First Amendmentscrutiny simply by labeling it as an informed-consentrequirement. For example, a state cannot—under theguise of informed consent—require physicians to telltheir patients that one particular political partysupports lower tax rates. Indeed, there must be a linedrawn between legitimate informed-consent statutesand illegitimate compelled speech. Tellingly, thePetitioners do not offer any principled manner ofdetermining where to draw that line other than tosuggest that it should be drawn wherever theirpreferred special-interest groups would like. Fortunately, this Court’s decision in NIFLA identifiedprecisely where to draw the line—i.e., valid informed-consent statutes are those that require the disclosureof information that is truthful, non-misleading, andrelevant to the proposed medical procedure.

The Petitioners also contend that HB 2’srequirements cannot be considered part of informedconsent because patients can choose to reject the

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information by looking away and not listening. Butthat argument proves too much. It is always true thatpatients can look away and ignore informed-consentdisclosures.

And, in a similar vein, it is irrelevant that thePetitioners claim to have patients who have rejectedthe information they have been given pursuant to HB2. The Petitioners’ evidence on this point is merelyanecdotal, and it is rebutted by other evidence in therecord showing that there are women who have hadabortions who wish they had received such informationprior to undergoing the procedure. [See Dkt. Nos. 32-3,32-4, 32-5, 32-6]. Moreover, the fact that someindividuals might not want the information is notconstitutionally significant. It is no doubt true thatsome individuals simply want their doctors to makedecisions for them and will reject all informationprovided by their doctors, even the so-called“traditional” informed consent that the Petitionersfavor. Thus, if disclosure requirements can be foundunconstitutional based on some patients’ rejection ofthe information, then it is doubtful that any informed-consent laws can be constitutional.

The Petitioners further contend that HB 2 isdifferent from the statute in Casey—and thereforecannot be considered an informed-consentstatute—because the Casey statute merely requiredphysicians to offer to provide certain information to thepatient while HB 2 actually requires physicians toprovide certain information. This is wrong for tworeasons. First, it is an incorrect characterization of thestatute in Casey. That statute required a number of

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physician disclosures, some of which merely called forthe physician to offer to provide information, andothers that actually required the physician to providethe information. See Casey, 505 U.S. at 881. Thus, therequirements in HB 2 are not altogether different fromthe requirements in Casey. See Lakey, 667 F.3d at 578(holding that the requirements in an informed-consentstatute almost identical to HB 2 were “not different inkind” than the disclosures in Casey).

Second, the Petitioners’ point is irrelevant. Even ifthe statute in Casey had simply required physicians tooffer information to patients, as opposed toaffirmatively providing information, that would makeno difference in the constitutional analysis. Thedistinction between offering to provide information andactually providing information is a distinction that onlymatters to the receiver of the information. From thestandpoint of the physician who is required to make thedisclosure, there is no constitutional distinctionbetween being required to provide the information andbeing required to offer to provide the information. Ineither instance, the physician is being compelled to saysomething that he or she might desire not to say, andotherwise might not say. Thus, it makes no sense tosuggest—as the Petitioners do—that one is somehowmore intrusive on First Amendment interests than theother.

Finally, the Petitioners contend that HB 2 somehowamounts to a viewpoint-based speech regulation. Thisis a puzzling argument. The disclosures required byHB 2 are purely factual. Because they are factual, theydo not express a viewpoint. Factual information can be

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used to support a particular viewpoint, but factualinformation itself does not convey a viewpoint. To sayotherwise is to distort the meaning of the word“viewpoint” beyond recognition. Moreover, nothing inHB 2 requires medical providers to express anyparticular viewpoint, nor does it prohibit them fromexpressing the viewpoint of their choosing alongsidethe required factual disclosures. In other words,medical providers are not limited to simply providingthe disclosures required by HB 2; they can accompanythose disclosures with whatever viewpoints orcommentary they desire. And, finally, they are allowedto put the necessary disclosures in their own terms. There is no state-provided “script” as the Petitionersclaim.

To equate the factual disclosures required by HB 2with a viewpoint-based speech regulation is not onlydemonstrably incorrect, but is also a frighteningproposition. If courts can equate truthful, factualstatements with a “viewpoint,” then dizzyingconsequences will follow. More specifically, if courtscan erase the dividing line between facts andviewpoints, then they will be able to pick and choosewhich facts are “viewpoints” and which viewpoints are“facts.” That sounds more like George Orwell’s 1984than it does American constitutional law. Surely noone wants to live in a world where that is possible.

One last point bears mentioning about the factualnature of the HB 2 disclosures. In NIFLA, thedissenting justices found the factual nature ofmandatory disclosures to be constitutionallysignificant. In fact, the dissent stated that “a doctor’s

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First Amendment interest in not providing factualinformation to patients is the same: minimal, becausehis professional speech is protected precisely becauseof its informational value to patients. There is noreason to subject such laws to heightened scrutiny.”NIFLA, 138 S. Ct. at 2387 (Breyer, J., dissenting). Thus, the four dissenting justices in NIFLA wouldunquestionably have found HB 2 constitutional on theground that it requires the disclosure of factualinformation. The NIFLA majority would have agreedto the extent that the information is non-misleadingand relevant to a medical procedure—which the HB 2disclosures are. Thus, under the views of all ninejustices in NIFLA, HB 2 is constitutional.

The bottom line here is that NIFLA sets thestandard for evaluating medical-disclosurerequirements, and it does so by referring to Casey. NIFLA therefore compels the conclusion that disclosurerequirements are constitutional when they share thesame material attributes as the disclosure statute atissue in Casey—i.e., when they require the disclosureof truthful, non-misleading, and relevant information. The Sixth Circuit correctly adhered to this rule, and itsadherence to this Court’s precedent clearly is not areason to grant a writ of certiorari.

CONCLUSION

For the foregoing reasons, the petition for a writ ofcertiorari should be denied.

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Respectfully submitted,

M. STEPHEN PITTS. CHAD MEREDITH Counsel of RecordMATTHEW F. KUHNOFFICE OF THE GOVERNOR700 Capital AvenueSuite 101Frankfort, Kentucky 40601(502) 564-2611chad.meredith@ky.gov

CATHERINE YORKCABINET FOR HEALTH & FAMILY SERVICESOFFICE OF LEGAL SERVICES275 East Main Street, 5W-BFrankfort, Kentucky 40621(502) 564-7905

Counsel for Respondent

October 28, 2019