Whole Woman's Health v. Lakey

• Citation: 46 F.Supp.3d 673
• Decision Date: 29 August 2014
• Docket Number: Cause No. 1:14–CV–284–LY.
• Parties: WHOLE WOMAN'S HEALTH, Austin Woman's Health Center, Killeen Woman's Health Center, Nova Health Systems d/b/a Reproductive Services, and Sherwood C. Lynn, Jr., M.D., Pamela J. Richter, D.O., and Lendol L. Davis, M.D., each on behalf of themselves and their Patients, Plaintiffs, v. David LAKEY, M.D., Commissioner of the Texas Department of State Health Services, in his official capacity, and Mari Robinson, Executive Director of the Texas Medical Board, in her official capacity, Defendants.
• Court: U.S. District Court — Western District of Texas

46 F.Supp.3d 673

WHOLE WOMAN'S HEALTH, Austin Woman's Health Center, Killeen Woman's Health Center, Nova Health Systems d/b/a Reproductive Services, and Sherwood C. Lynn, Jr., M.D., Pamela J. Richter, D.O., and Lendol L. Davis, M.D., each on behalf of themselves and their Patients, Plaintiffs

v.David LAKEY, M.D., Commissioner of the Texas Department of State Health Services, in his official capacity, and Mari Robinson, Executive Director of the Texas Medical Board, in her official capacity, Defendants.

Cause No. 1:14–CV–284–LY.

United States District Court, W.D. Texas, Austin Division.

Signed Aug. 29, 2014.

Betre M. Gizaw, Marissa P. Harris, Morrison & Foerster LLP, Washington, DC, Colin M. O'Brien, Morrison & Foerster, LLP, Denver, CO, J. Alexander Lawrence, Kiersten A. Fletcher, Morrison & Foerster, LLP, New York, NY, Jan Soifer, Patrick J. O'Connell, O'Connell & Soifer, LLP, John H. Bucy, II, Law Office of John H. Bucy, II, Austin, TX, David P. Brown, Esha Bhandari, Janet Crepps, Stephanie Toti, Natasha Lycia Ora Bannan, New York, NY, for Plaintiffs.

Andrew S. Oldham, Andrew Bowman Stephens, Beth Klusmann, Esteban San Miguel Soto, James Davis Blacklock, Jonathan F. Mitchell, Enrique M. Varela, Office of the Attorney General, Michael P. Murphy, Texas Attorney General, Austin, TX, for Defendants.

FINAL JUDGMENT

LEE YEAKEL, District Judge.

Before the court is the above-styled and numbered cause. On May 12, 2014, upon joint motion of the parties, the court dismissed from this action Defendants Travis County Attorney David Escamilla, El Paso District Attorney Jaime Esparza, Hidalgo County Criminal District Attorney Rene Guerra, Bell County Attorney James E. Nichols, Bexar County Criminal District Attorney Susan Reed, Tarrant County Criminal District Attorney Joe Shannon, Jr., and Dallas County Criminal District Attorney Craig Watkins, each in their official capacities, and their employees, agents, and successors. On August 1, 2014, the court dismissed Plaintiffs Whole Woman's Health, Austin Woman's Health Center, Killeen Woman's Health Center, Nova Health Systems d/b/a Reproductive Services, and Sherwood C. Lynn, Jr., M.D., Pamela J. Richter, D.O., and Lendol L. Davis, M.D., on behalf of themselves and their patients's claims alleging federal equal-protection violations, improper delegation of lawmaking authority, and arbitrary and unreasonable state action against Defendants David Lakey, M.D., Commissioner of the Texas Department of State Health Services, in his official capacity, and Mari Robinson, Executive Director of the Texas Medical Board, in her official capacity (together the “State”). On this date by Memorandum Opinion Incorporating Findings of Fact and Conclusions of Law, the court found and concluded that the ambulatory-surgical-center requirement of the Act of July 12, 2013, 83rd Leg., 2nd C.S., ch. 1, 2013 Tex. Gen. Laws 4795; (“House Bill 2”) (codified at Tex. Health & Safety Code Ann. §§ 171.0031, 245.010(a) (West Supp.2014)) is unconstitutional, that the admitting-privileges and ambulatory-surgical-center requirements of House Bill 2 as applied to Plaintiffs Whole Woman's Health clinic in McAllen, Texas, and Nova Health Systems's clinic in El Paso, Texas, are unconstitutional, that the ambulatory-surgical-center requirement of House Bill 2, as applied to medication abortions, is unconstitutional, and that the provisions considered together create an impermissible obstacle as applied to all women seeking a previability abortion. As nothing remains for the court to resolve, the court renders the following final judgment pursuant to Federal Rule of Civil Procedure 58.

THE COURT DECLARES that the portion of the Texas Health and Safety Code, Section 245.010(a), “On and after September 1, 2014, the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under Section 243.010 for ambulatory surgical centers” is unconstitutional:

1. As to all abortion facilities in the State, with the exception of

(a) abortion facilities currently licensed and meeting the minimum standards adopted under the Texas Health and Safety Code, Section 243.010 for ambulatory surgical centers, and

(b) abortion facilities commencing operation after September 1, 2014, and which were not previously licensed abortion facilities under the Texas Health and Safety Code, Section 245.

2. As applied to the provision of medical abortion, as defined in Texas Health and Safety Code, Section 171.061.

THE COURT FURTHER DECLARES that the portion of Texas Health and Safety Code, Section 171.0031(a)(1) is unconstitutional as applied to Plaintiffs Whole Woman's Health and Sherwood Lynn with respect to the operation of an abortion facility in McAllen, Texas, and Plaintiffs Nova Health Systems and Pamela Richter with respect to the operation of an abortion facility in El Paso, Texas.

THE COURT FURTHER DECLARES that the two portions of Texas Health and Safety Code, Sections 245.010(a) and 171.0031(a)(1), create an impermissible obstacle as applied to all women seeking a previability abortion.

IT IS ORDERED that the State, its agents, employees, and any other persons or entities acting on its behalf are enjoined from enforcing the above-listed portions of sections of the Texas Health and Safety Code to the extent stated herein, including enforcing any criminal and administrative penalties against any person accused of violating any provision of the Texas Health and Safety Code declared unconstitutional by this final judgment.

Any claim for attorney's fees incurred in this action will be determined post judgment and pursuant to Rule CV–7(j), of the Local Rules of the United States District Court for the Western District of Texas.

IT IS FURTHER ORDERED that Plaintiffs recover their costs of court.

IT IS FURTHER ORDERED, except as expressly provided herein, all other relief requested by any party is DENIED.

MEMORANDUM OPINION INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs Whole Woman's Health, Austin Woman's Health Center, Killeen Woman's Health Center, Nova Health Systems d/b/a Reproductive Services, Dr. Sherwood Lynn, Jr., Dr. Pamela Richter, and Dr. Lendol Davis (collectively “Plaintiffs”), all providers of abortion services, bring this action on behalf of themselves and their patients against David Lakey, M.D., Commissioner of the Texas Department of State Health Services and Mari Robinson, Executive Director of the Texas Medical Board, each in their official capacities (together the “State”). Plaintiffs seek declaratory and injunctive relief nullifying two requirements of Texas law recently imposed by the Texas Legislature and the rules that implement such law. Act of July 12, 2013, 83rd Leg., 2nd C.S., ch. 1, 2013 Tex. Gen. Laws 4795; (“House Bill 2” or the “act”) (codified at Tex. Health & Safety Code Ann. §§ 171.0031, 245.010(a) (West Supp.2014)); see also 38 Tex. Reg. 9577–93 (adoption of proposed rules), 25 Tex. Admin. Code §§ 139.40, .53(c), .56(a).

The act's “admitting-privileges requirement” provides, in part, that “[a] physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. § 171.0031(a)(1) ; 25 Tex. Admin. Code §§ 139.53(c), .56(a). The “ambulatory-surgical-center requirement” provides, in relevant part, that by September 1, 2014, “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [Texas Health & Safety Code] Section 243.010 for ambulatory surgical centers.” Tex. Health & Safety Code Ann. § 245.010(a) ; 25 Tex. Admin. Code § 139.40.

The admitting-privileges requirement was the subject of a pre-enforcement facial challenge brought by several abortion providers, including some of the plaintiffs in this case. This court permanently enjoined enforcement of the requirement on October 28, 2013. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891 (W.D.Tex.2013). The United States Court of Appeals for the Fifth Circuit stayed the injunction, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I ), 734 F.3d 406 (5th Cir.2013), and ultimately reversed this court's judgment, concluding that the admitting-privileges requirement is constitutional on its face. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II ), 748 F.3d 583 (5th Cir.2014).

Now, Whole Woman's Health and Lynn challenge the admitting-privileges requirement as applied to an abortion facility operated by Whole Woman's Health in McAllen, Texas (the “McAllen clinic”). Nova Health Systems and Richter challenge the admitting-privileges requirement as applied to an abortion facility operated by Nova Health Systems in El Paso, Texas (the “El Paso clinic”). All Plaintiffs challenge the ambulatory-surgical-center requirement on its face and as applied to the provision of medication abortion; Whole Woman's Health and Lynn challenge the ambulatory-surgical-center requirement as applied to the McAllen Clinic; and Nova Health Systems and Richter challenge the ambulatory-surgical-center requirement as applied to the El Paso Clinic. This court has federal-question jurisdiction. See 28 U.S.C. §§ 1331, 1343(a). Plaintiffs occupy substantially the same position as the plaintiffs in the previous action before this court and thus have standing to assert these claims. Abbott II, 748 F.3d at 589.

Before trial, the court granted in part the State's motion to dismiss and dismissed several of Plaintiffs' claims with prejudice. Whole Woman's Health v. Lakey, No. 1:14–CV–284–LY (W.D.Tex. Aug. 1, 2014) (order on motion to dismiss). Specifically, the court dismissed Plaintiffs' equal-protection, improper-delegation-of-lawmaking-authority, and arbitrary-and-unreasonable-state-action claims. Id. As a result, the...