520 U.S. 968 (1997), 96-1104, Mazurek v. Armstrong

Docket Nº:Case No. 96-1104
Citation:520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162, 65 U.S.L.W. 3817, 65 U.S.L.W. 3822
Party Name:MAZUREK, ATTORNEY GENERAL OF MONTANA v. ARMSTRONG et al.
Case Date:June 16, 1997
Court:United States Supreme Court
 
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Page 968

520 U.S. 968 (1997)

117 S.Ct. 1865, 138 L.Ed.2d 162, 65 U.S.L.W. 3817, 65 U.S.L.W. 3822

MAZUREK, ATTORNEY GENERAL OF MONTANA

v.

ARMSTRONG et al.

Case No. 96-1104

United States Supreme Court

June 16, 1997

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Syllabus

Respondents, licensed physicians and a physician assistant practicing in Montana, challenged a state law restricting the performance of abortions to licensed physicians. In denying their motion for preliminary injunction, the Federal District Court found that they had not established any likelihood of prevailing on their claim that the law imposed an undue burden under Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833. The Ninth Circuit vacated the judgment, holding that respondents had met the Circuit's threshold requirement for a preliminary injunction by showing a fair chance of success on the merits. On remand, the District Court entered an injunction pending appeal and postponed hearing the merits of the preliminary injunction motion pending the disposition of petitioner's certiorari petition. As a consequence, the physician-only requirement is unenforceable at the present time against the only nonphysician licensed to perform abortions in Montana.

Held:

The judgment of the Court of Appeals is reversed. Since the physician-only requirement at issue in Casey did not pose a "substantial obstacle to a woman seeking an abortion," it was not an undue burden on the right to abortion. 505 U.S., at 884-885. This precise passage was quoted by the District Court when it concluded that there was insufficient evidence to find a substantial obstacle in Montana. The Ninth Circuit never contested that conclusion, finding instead that the law's purpose made it arguably invalid. However, there is no evidence of a vitiating legislative purpose here. The Court of Appeals' decision is also contradicted by this Court's repeated statements that the performance of abortions may be restricted to physicians. See, e. g., Roe v. Wade, 410 U.S. 113, 165. Since the Ninth Circuit's decision is clearly erroneous under this Court's precedents, and since its judgment has produced immediate consequences for Montana—in the form of an injunction against the law's implementation—and has raised a real threat of such consequences for the six other States in the Circuit that have physician-only requirements, summary reversal is appropriate.

Certiorari granted; 94 F.3d 566, reversed and remanded.

Page 969

Per Curiam.

In 1995, the Montana Legislature enacted a statute restricting the performance of abortions to licensed physicians. 1995 Mont. Laws, ch. 321, § 2 (codified at Mont. Code Ann. § 50-20-109 (1995)). Similar rules exist in 40 other States in the Nation.[1] The Montana law was challenged almost

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immediately by respondents, who are a group of licensed physicians and one physician-assistant practicing in Montana. The District Court denied respondents' motion for a preliminary injunction, finding that they had not established any likelihood of prevailing on their claim that the law imposed an "undue burden" within the meaning of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). 906 F.Supp. 561, 567 (Mont. 1995). The Court of Appeals for the Ninth Circuit vacated the District Court's judgment, holding that respondents had shown a "fair chance of success on the merits" of their claim, and thus had met the threshold requirement for preliminary injunctive relief under Circuit precedent. 94 F.3d 566, 567-568 (1996). The case was remanded to the District Court with instructions to reconsider the "balance of hardships" and determine whether entry of a preliminary injunction was ultimately warranted. Ibid.

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The District Court has not yet reconsidered the merits of the preliminary injunction motion, but it has entered (based on the parties' stipulations) an injunction pending appeal pursuant to Federal Rule of Civil Procedure 62(c), and has postponed its hearing on the preliminary injunction motion until our disposition of petitioner's certiorari petition. Order Granting Injunction Pending Appeal, No. CV 95-083-GF-PGH (Mont., Nov. 5, 1996), App. to Pet. for Cert. 31a-32a. As a consequence, Montana's physician-only requirement is unenforceable at the present time against respondent Susan Cahill, who is the only nonphysician licensed to perform abortions in Montana.

The Court of Appeals' conclusion that respondents had established a "fair chance of success on the merits" of their constitutional challenge is inconsistent with our treatment of the physician-only requirement at issue in Casey. That requirement involved only the provision of information to patients, and not the actual performance of abortions, yet we nonetheless held—overruling our prior holding in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 448 (1983)—that the limitation to physicians was valid. Casey, supra, at 884-885. We found that "[s]ince there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, . . . it is not an undue burden." 505 U.S., at 884-885 (emphasis added). The District Court, quoting this precise passage, held: "There exists insufficient evidence in the record to support the conclusion [that] the requirement that a licensed physician perform an abortion would amount, 'in practical terms, to a substantial obstacle to a woman seeking an abortion. ' Accordingly, it is unlikely that [respondents] will prevail upon their suggestion that the requirement constitutes an 'undue burden' within the meaning of Casey. " 906 F. Supp., at 567 (quoting Casey, supra, at 884 (emphasis added)).

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The Court of Appeals never contested this District Court conclusion that there was "insufficient evidence" in the record that the requirement posed a " 'substantial obstacle to a woman seeking an abortion.' " Instead, it held that the physician-only requirement was arguably invalid because its purpose, according to the Court of Appeals, may have been to create a substantial obstacle to women seeking abortions. 94 F.3d, at 567. But even assuming the correctness of the Court of Appeals' implicit premise—that a legislative purpose to interfere with the constitutionally protected right to abortion without the effect of interfering with that right (here it is uncontested that there was insufficient evidence of a "substantial obstacle" to abortion) could render the Montana law invalid—there is no basis for finding a vitiating legislative purpose here. We do not assume unconstitutional legislative intent even when statutes produce harmful results, see, e. g., Washington v. Davis, 426 U.S. 229, 246 (1976); much less do we assume it when the results are harmless. One searches the Court of Appeals' opinion in vain for any mention of any evidence suggesting an unlawful motive on the part of the Montana Legislature. If the motion at issue here were a defendant's motion for summary judgment, and if the plaintiff's only basis for proceeding with the suit were a claim of improper legislative purpose, one would demand some evidence of that improper purpose in order to avoid a nonsuit. And what is at issue here is not even a defendant's motion for summary judgment, but a plaintiff's motion for preliminary injunctive relief, as to which the requirement for substantial proof is much higher. "It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995) (emphasis added; footnotes omitted).

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Respondents claim in this Court that the Montana law must have had an invalid purpose because "all health evidence contradicts the claim that there is any health basis" for the law. Brief in Opposition 7. Respondents contend that "the only extant study comparing the complication rates for first-trimester abortions performed by [physician-assistants] with those for first-trimester abortions performed by physicians found no significant difference." Ibid. But this line of argument is squarely foreclosed by Casey itself. In the course of upholding the physician-only requirement at issue in that case, we emphasized that "[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. " 505 U.S., at 885 (emphasis added). Respondents fall back on the fact that an antiabortion group drafted the Montana law. But that says nothing significant about the legislature's purpose in passing it.

Today's dissent, for its part, claims that "there is substantial evidence indicating that the sole purpose of the statute was to target a particular licensed professional" (respondent Susan Cahill). Post, at 979-980. It is true that the law "targeted" Cahill in the sense that she was the only nonphysician performing abortions at the time it was passed. But it is difficult to see how that helps rather than harms respondents' case. The dissent does not claim that this was an unconstitutional bill of attainder, nor was that the basis on which the Court of Appeals relied. (Such a contention would be implausible as applied to a provision so commonplace as to exist in 40 other States, see n. 1, supra.) And the basis on which the Court of Appeals did rely (that the purpose of the law may have been to create a "substantial obstacle" to abortion) is...

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