Planned Parenthood Ariz., Inc. v. Humble
| Decision Date | 31 March 2014 |
| Docket Number | No. CV 14–1910 TUC DCB.,CV 14–1910 TUC DCB. |
| Citation | 13 F.Supp.3d 1017 |
| Parties | PLANNED PARENTHOOD ARIZONA, INC. ; William Richardson, M.D.; and William H.R. Richardson M.D., P.C., doing business in Tucson Women's Center, Plaintiffs, v. Will HUMBLE, Director of the Arizona Department of Health Services, in his official capacity, Defendant. |
| Court | U.S. District Court — District of Arizona |
Alice Clapman, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, Lawrence Jay Rosenfeld, Squire Sanders (US) LLP, Phoenix, AZ, David Brown, Julie Rikelman, New York, NY, for Plaintiffs.
G. Michael Tryon, Gregory David Honig, Kevin D. Ray, Office of the Attorney General, Phoenix, AZ, Patricia Cracchiolo Lamagna, Tempe, AZ, for Defendant.
On March 4, 2014, Plaintiffs filed this Complaint and filed a Motion for Temporary Restraining Order on March 7, 2014. Plaintiffs are Arizona health care providers, who provide surgical and medication abortions. They challenge HR 2036, A.R.S. 36–449.03 : Abortion clinics; rules; civil penalties, subsection (E)(6),1 which mandates: “That any medication, drug or other substance used to induce an abortion is administered in compliance with the protocol that is authorized by the United States Food and Drug Administration (FDA) and that is outlined in the final printing labeling instructions[, the FDL,] for that medication, drug or substance.” The Director adopted such a regulation on January 27, 2014. The law and regulations become effective on April 1, 2014, unless the Court issues a preliminary injunction. The Court denies the Motion for a Preliminary Injunction.
Standard for Preliminary Relief:
According to the Supreme Court, the proper standard for granting or denying a preliminary injunction is as follows:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126–27 (9th Cir.2009) ().
Prior to Winter, the Ninth Circuit recognized an alternative sliding-scale standard requiring a plaintiff to demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. Taylor v. Westly, 488 F.3d 1197, 1200–1201 (9th Cir.2007). Post-Winter, the “sliding scale” approach to preliminary injunctions remains only to the extent “ ‘the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.’ ” Pimentel v. Dreyfus, 670 F.3d 1096, 1105–1106 (9th Cir.2012) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) ). Plaintiffs “must establish that irreparable harm is likely, not just possible,” regardless of the strength of Plaintiffs' showing on the other three elements. Alliance for the Wild Rockies, 632 F.3d at 1131 (applying Winter ). The sliding scale supports a preliminary injunction when there are “serious questions going to the merits”2 and the hardship balance tips sharply toward the plaintiff, assuming the other two elements of the Winter test are also met. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir.2014) (citing Alliance, 632 F.3d at 1131–32 ).
HR 2036: RU–486 medication abortion:
The statute and corresponding regulation involves a medication abortion protocol using a combination of two prescription drugs: mifepristone (RU–486 or Mifeprex ) and misoprostol (Cytotec ). The first drug kills the embryo/fetus and the second causes the uterus to contract and expel the embryo/fetus, completing the abortion.
The protocol mandated by HR 2036 is from 2000, when the FDA approved marketing mifepristone as an abortion-inducing drug and is based on clinical trials from the 1990s. The FDA found RU–486 to be safe and effective through 49 days (7 weeks) lmp (last menstrual period): the patient takes three 200 mg tablets (600 mg) of mifepristone orally at the health center, returns two days later to take two 200 mcg tablets (400 mcg) of misoprostal orally, and then has a follow-up visit. A.R.S. 36–449.03(G)(1), Regulation R9–10–1508(G), (J)(3).
The differences between the FDL, HR 2036, protocol and the current protocol is the availability of medication abortions in the 8th and 9th week of pregnancy, a higher (600 mg versus 200 mg) first dose of mifepristone, the requirement that the second dose of misoprostal be administered at the clinic instead of being taken at home, and the oral administration of two 200 mcg tablets (400 mcg) of misoprostal, as compared to the current buccal, sublingual, administration of one 800 mcg tablet.
On its face, the law reflects a legitimate purpose to: 1) “protect women from the dangerous and potentially deadly off-label use of abortion-inducing drugs, such as, for example, mifepristone,” and 2) “to ensure that physicians abide by the protocol tested and approved by the United States Food and Drug Administration for such abortion-inducing drugs, as outlined in the drug labels.” (Response (Doc. 22) at 8 (citing HB 2036, Sec. 9 ¶¶ 25–26)). In other words, the primary, if not the sole, purpose of the statute is maternal health. The government has “a legitimate interest in advancing the state of medical knowledge concerning maternal health and prenatal life[.]” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 976, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
The government's interest before viability “ ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’ ” Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791 (plurality opinion)). “It also may not impose upon this right an undue burden, which exists if a regulation's ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ ” Id. (citing Casey, 505 U.S. at 878, 112 S.Ct. 2791 ).
“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus ... And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.” Casey, 505 U.S. at 877, 112 S.Ct. 2791. The law must be unduly burdensome, i.e., unconstitutional, in a large fraction of relevant cases. Gonzales, 550 U.S. at 167–168, 127 S.Ct. 1610 (citing Casey, 505 U.S. at 895, 112 S.Ct. 2791 ).
In Gonzales, the Supreme Court considered the Partial Birth Abortion Ban passed by Congress in 2003, which proscribes performing an “intact” D & C (dilation and curtilage) procedure, but allows D & C procedures where the fetus is removed from the uterus in parts. Admittedly, the regulation did not protect fetal life because it allowed the alternative D & C method of abortion. The sole purpose of the regulation was to send a message of the government's profound respect for the life of the unborn by precluding a method likened to infanticide. Gonzales, 550 U.S. at 157–158, 127 S.Ct. 1610.3 The Supreme Court in Gonzales assumed Casey and its progeny to be controlling and found the regulation would be unconstitutional if it “subject[ed] [women] to significant health risks.” Id. at 161, 127 S.Ct. 1610 (). And, while the medical evidence suggested that removing the fetus intact is a safer procedure with less potential for tearing and puncturing of the uterus, infection, and other complications, medical evidence showed a “non-intact” D & C procedure never imposes any significant health risks.
The law did not include a health exception. The Court reasoned the premise in Casey, that from the inception of the pregnancy, the government has a regulatory interest in protecting the life of the fetus that may become a child, “cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer.” “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession, ...” id. at 158, 127 S.Ct. 1610, which in Gonzales it did to promote respect for life, including life of the unborn.
The Sixth Circuit in Planned Parenthood Southwest Ohio v. DeWine, 696 F.3d 490 (6th Cir.2012) considered a substantially similar statute to the one presented to this Court. Following Gonzales, the Sixth Circuit concluded that the right to choose abortion does not encompass the right to choose a particular abortion method. Id. at 514–515. Under Supreme Court precedent the sole question is whether the regulation unduly burdens a woman's right to choose to have an abortion. Id. at 516. The court in DeWine found that surgical abortions remained a viable alternative to medication abortions and, therefore, the statute passed constitutional muster. Id. Evidence of women's preferences regarding methods was not enough to...
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