Jackson Women's Health Org. v. Currier

• Decision Date: 29 July 2014
• Docket Number: No. 13–60599.,13–60599.
• Parties: JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients; Willie Parker, M.D., M.P.H., M.Sc., on behalf of himself and his patients, Plaintiffs–Appellees v. Mary CURRIER, M.D., M.P.H., in her official capacity as State Health Officer of the Mississippi Department of Health; Robert Shuler Smith, in his official capacity as District Attorney for Hinds County, Mississippi, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

760 F.3d 448

JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients; Willie Parker, M.D., M.P.H., M.Sc., on behalf of himself and his patients, Plaintiffs–Appellees

v.Mary CURRIER, M.D., M.P.H., in her official capacity as State Health Officer of the Mississippi Department of Health; Robert Shuler Smith, in his official capacity as District Attorney for Hinds County, Mississippi, Defendants–Appellants.

No. 13–60599.

United States Court of Appeals,Fifth Circuit.

July 29, 2014.

Robert Bruce McDuff, Esq., Jackson, MS, Aaron Sean Delaney, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Julie Rikelman, Esq., Lara Rabiee, Center for Reproductive Rights, New York, NY, for Plaintiffs–Appellees.

Paul Eldridge Barnes, Esq., Wilson Douglas Minor, Esq., Assistant Attorney General, Office of the Attorney General, Jackson, MS, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Given that the Supreme Court long ago determined that the Constitution protects a woman's right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights.

Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution and hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state's obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.

In April 2012, the Mississippi Legislature passed House Bill 1390 (“H.B. 1390” or “the Act”). Mississippi Governor Phil Bryant signed the Act, and it was scheduled to take effect on July 1, 2012. As relevant to this appeal, the admitting privileges provision of H.B. 1390 requires that “[a]ll physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” Before the passage of H.B. 1390, Mississippi law required that abortion facilities have only a transfer agreement with a local hospital, a written agreement for backup care with a physician with admitting privileges, and at least one affiliated doctor with admitting privileges. Miss. Admin. Code 30–17–2635:2.5(B), (F).

The Jackson Women's Health Organization (“JWHO”) operates the only licensed abortion clinic in Mississippi (“the Clinic”). Three doctors are affiliated with the Clinic: Dr. Willie Parker, Dr. Doe, and Dr. Roe.¹ Dr. Parker and Dr. Doe provide the majority of the abortion services, while Dr. Roe provides only “extremely limited abortion services.” Neither Dr. Parker nor Dr. Doe have admitting privileges at a local hospital, but Dr. Roe does.

The defendants, Mary Currier and Robert Smith (collectively, “the State”), are Mississippi officials. They appeal the district court's entry of a preliminary injunction enjoining the enforcement of the admitting privileges provision of H.B. 1390. We AFFIRM the district court's judgment entering the preliminary injunction, as herein MODIFIED to limit it, in this “unconstitutional as applied” appeal, to these parties and this case.

I.

Several days before H.B. 1390's effective date, JWHO filed this suit in the federal district court. JWHO sought both a temporary restraining order and a preliminary injunction barring the enforcement of the admitting-privileges provision.² The district court granted the temporary restraining order. The district court also granted, in part, JWHO's motion for preliminary injunction. Specifically, the district court allowed the State to enforce the admitting-privileges provision, thereby requiring JWHO's doctors to seek admitting privileges. But the district court enjoined the State from imposing any civil or criminal penalties on JWHO for the continuing operation of the Clinic while its doctors sought the privileges.

Consistent with the district court's order, Drs. Parker and Doe sought admitting privileges at seven of the Jackson-area hospitals, but no hospital was willing to grant either of the doctors these privileges.³ The hospitals maintained this stance despite the doctors' request that they reconsider. The State subsequently denied JWHO's request for a waiver for Drs. Parker and Doe, found that the Clinic was not in compliance with H.B. 1390, and sent JWHO an official notice of hearing for revocation of JWHO's license to perform abortions.

In the light of this impending hearing, JWHO filed a second motion for a preliminary injunction. JWHO argued that, by closing the only clinic in Mississippi, the law would impose an undue burden on women's right to choose abortions. The State responded that the law would not impose an undue burden because the Act would, at most, increase travel time and costs for women seeking an abortion. These women could travel to abortion clinics in other states that are not prohibitively far away. Taking the Jackson area as an example, the State pointed to abortion clinics in Baton Rouge, New Orleans, and Memphis that are no farther than three hours away. Because this increase in travel would only be an incidental burden on the right to an abortion, the State argued that H.B. 1390 was constitutional.

The district court granted the preliminary injunction. As a factual matter, the district court found that allowing enforcement of the Act would close the Clinic because JWHO could not comply with the Act. Moving to the legal analysis, the district court held that JWHO had demonstrated a substantial likelihood of success on the merits because the Act created an undue burden. Notwithstanding the other clinics that are within a few hours' drive, the district court held that the proper analysis looked to the availability of abortions within the State of Mississippi. Seeing that the only clinic would be closed by enforcing the Act, the district court held that an undue burden would likely result.

Similarly, the district court held that JWHO had established a substantial threat of irreparable harm in the form of the impending closure of the Clinic. Finally, the district court held that the balance of harms cut in favor of JWHO as the preliminary injunction would merely maintain the status quo, and the court held that the injunction would not disserve the public interest because it would prevent constitutional deprivations. Having found the four factors of the preliminary injunction test satisfied, the district court enjoined the State from enforcing the admitting privileges provision.

The State then filed a Rule 52(b) motion to clarify. First, the State asked the district court to clarify whether its legal conclusion was that any regulation that would act to close the Clinic would be “per se unconstitutional.” The district court only addressed this argument insofar that it reiterated that the challenge was to the Act as-applied, and therefore was based on the facts before the court. Second, the State asked the district court to clarify a footnote in the original order which highlighted a lack of clarity in abortion jurisprudence related to the necessity of a challenged regulation. In its Rule 52(b) order, the district court reiterated that it did not undertake any necessity inquiry as it was not something raised by the parties, and that even if it did undertake a necessity inquiry, the Act would not be so medically necessary as to overcome the undue burden it established.

The State now appeals the granting of the preliminary injunction and the district court's motion granting the State's Rule 52(b) motion in part.

II.

We review a district court's grant of a preliminary injunction for an abuse of discretion. Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir.2011). “Although the district court may employ informal procedures and rely on generally inadmissible evidence, the record must nevertheless support the district court's decision.” Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir.1993). In examiningthe record, we review a district court's findings of fact for clear error and its conclusions of law of de novo. Planned Parenthood Ass'n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir.2012).

To support the “extraordinary equitable remedy” of a preliminary injunction, the plaintiff must establish four elements: “(1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest.” Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998).

The State argues principally that the district court erred in holding that JWHO had established a substantial likelihood of success on the merits. In this respect, the State questions one finding of fact and two conclusions of law of the district court's order. We begin by touching on the factual issue before moving to the legal arguments.

III.

The district court found that the effect of the law would be to close the Clinic—the only licensed clinic in Mississippi. The State now contends that the district court erred because this fact is disputed, arguing that implementation of the...