Jackson Women's Health Org. v. Currier

• Decision Date: 13 July 2012
• Docket Number: Civil Action No. 3:12cv436–DPJ–FKB.
• Parties: JACKSON WOMEN'S HEALTH ORGANIZATION, et al., Plaintiffs v. Mary CURRIER, M.D., M.P.H., et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

878 F.Supp.2d 714

JACKSON WOMEN'S HEALTH ORGANIZATION, et al., Plaintiffs

v.Mary CURRIER, M.D., M.P.H., et al., Defendants.

Civil Action No. 3:12cv436–DPJ–FKB.

United States District Court,

S.D. Mississippi,

Jackson Division.

July 13, 2012.

Robert B. McDuff, Jackson, MS, Michelle Nicole Pallak Movahed, New York, NY, for Plaintiffs.

P. Roger Googe, Jr., Benjamin G. Bryant, Office of the Attorney General, Jackson, MS, for Defendants.

ORDER

DANIEL P. JORDAN III, District Judge.

This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction [5]. Having conducted oral argument and having fully considered the parties' submissions, the Court finds that the injunctive relief provided in its previously entered TRO should be modified. The key issue at this early stage is whether Plaintiffs have demonstrated irreparable harm justifying preliminary injunctive relief pending final resolution of the case. This Order protects Plaintiffs from the limited irreparable harm they have asserted, but allows Mississippi House Bill 1390 (“the Act”) to take effect, at least for now. The Order requires Plaintiffs to continue to seek admitting privileges—as they said they would—and enjoins Defendants from exposing Plaintiffs to criminal or civil penalties for continued operation—something Defendants have no immediate plans to pursue. The motion will therefore be granted in part.

I. Facts and Procedural History

The Act requires that all physicians associated with abortion clinics have admitting and staff privileges at a local hospital and be board certified in obstetrics and gynecology. At the time the Act was passed, Jackson Women's Health Organization (“JWHO” or “the Clinic”) was the only abortion clinic in the State of Mississippi, and only one of its doctors had such privileges. That remains the case, and the one doctor with privileges has a regular, private OB/GYN practice and does not provide the majority of abortions. The two doctors providing the majority of the Clinic's services do not have admitting or staff privileges, though they have sought such privileges since the passage of the Act.

Plaintiffs previously sought a TRO to block the July 1, 2012, 2012 WL 2510953, effective date of the Act. But before that date arrived, the State took several actions to address Plaintiffs' concerns, to include renewing the Clinic's license and offering assurances that Plaintiffs would not be prosecuted for any violations of the Act at this time. Plaintiffs nevertheless argued that irreparable injury would occur and they were granted a TRO on July 1, 2012. Extensive briefing and oral argument followed. The parties agreed to forego an evidentiary hearing and rely on the affidavits and other record evidence. The Court has personal and subject matter jurisdiction.

II. Analysis

This case is before the Court on a motion for preliminary injunction. To obtain such relief, the moving party must establish four elements:

(1) substantial likelihood of success on the merits; (2) substantial threat that plaintiff will suffer irreparable injury; (3) injury outweighs any harm the injunction might cause the defendant; and (4) injunction is in the public interest.

Women's Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 419 n. 15 (5th Cir.2001). The key issue before the Court at this time is the second element—irreparable injury.

The case presents in a somewhat unusual posture. As an initial point, we do not yet know whether the Clinic will be able to comply with the Act. Presently, it does not, but under section 41–75–16 of the Mississippi Code, it must be given “a reasonable time, under the particular circumstances not to exceed six (6) months from the date [newly-enacted licensing requirements] are duly adopted, within which to comply with such rules and regulations and minimum standards.” According to Defendants, the “duly adopted” date is the date the administrative rules promulgated under the Act took effect, which was July 11, 2012. Thus, it is certainly possible that when the Clinic's deadline to comply finally arrives it will be in full compliance. Or, it may not be. This begs the question whether any alleged harm constitutes irreparable injury at this time.

The “decision regarding irreparable injury to the plaintiff must not be based on the ultimate issue of the constitutionality of the statute.” Manning v. Hunt, 119 F.3d 254, 264 (4th Cir.1997). Even if an act is unconstitutional, it will not be preliminarily enjoined unless the plaintiff proves an irreparable harm. This standard was summarized in United States v. Emerson:

a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. A presently existing actual threat must be shown. However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis.

270 F.3d 203, 262 (5th Cir.2001). In Holland America Insurance Co. v. Succession of Roy, the court noted that “[s]peculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” 777 F.2d 992, 997 (5th Cir.1985). On the other hand, cases like Humana, Inc. v. Jacobson hold that “it is not necessary to demonstrate that harm is inevitable.... The plaintiff need show only a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” 804 F.2d 1390, 1394 (5th Cir.1986). Humana is distinguishable in some respects, but it at least stands for the proposition that an imminent threat of deprivation is sufficient. So the question is whether there now exists enough of a threat to justify injunctive relief pending final resolution.

In this case, the State has acted to remove most of the threats originally challenged in the Complaint. It has, for example, renewed JWHO's license for another year. It has also obtained assurances from various officials that Defendants will not be prosecuted at this time. These actions undeniably removed most of the more tangible threats Plaintiffs originally feared. But they continue to argue irreparable injury in two ways.

First, Plaintiffs contend that merely subjecting them to the administrative process of enforcing the Act will cause irreparable harm. The Court is not persuaded. As noted above, the Clinic will be given “reasonable time” to comply with the new law. Miss. Code Ann. § 41–75–16. During that time, there will be no burden on the Plaintiffs whatsoever because they have already completed—or nearly completed—the application process. Thus, they have nothing to do but sit back and wait. And because Plaintiffs could obtain privileges, it is simply too speculative to say that they will at some point be forced to defend their lack of compliance through the administrative process outlined in Mississippi Code section 41–75–11. If that day comes, then the issue can be revisited as the threat may become imminent. As for now, Plaintiffs conceded at the hearing that they should be required to continue the application process.¹

Plaintiffs' second and primary contention is that they face the uncertainty of criminal or civil prosecution for operating the Clinic out of compliance with state law. Thus, according to them, they must choose between incurring that risk or shutting down. In Concerned Citizens of Vicksburg v. Sills, the court noted that injunctive relief can be appropriate to avoid placing a plaintiff “between the Scylla of intentionally flouting state law and the Charybdis of foregoing what (they believe) to be constitutionally protected activity in order to avoid being enmeshed in (another) criminal proceeding.” 567 F.2d 646, 651 (5th Cir.1978) (citing Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)).

If Plaintiffs were truly faced with criminal prosecution for acts occurring during the administrative process, then they would present a sufficiently imminent irreparable injury because JWHO is the sole abortion clinic—and essentially the only abortion provider—in the state. Without delving too deeply into the analysis at this point, where a state has a “rational basis to act, and it does not impose an undue burden, [it] may use its regulatory power” to control the manner in which abortions are provided. Gonzales v. Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (emphasis added). An undue burden “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. at 146, 127 S.Ct. 1610 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). Cases such as Mazurek v. Armstrong have asked whether the law would require a woman to travel to a different clinic to obtain an abortion. 520 U.S. 968, 974, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). And here that is clearly the case. So if these two doctors stop performing abortions for non-speculative fear of prosecution, it would create an “undue burden” and irreparable harm. See Jackson Women's Health Org. Inc. v. Amy, 330 F.Supp.2d 820, 823 (S.D.Miss.2004) (enjoining regulation that would have effect of closing JWHO).

Defendants essentially agree that the harm would be irreparable if the doctors faced a credible threat of prosecution or closure but argue that the risk here is not immediate enough, observing that various officials have agreed not to prosecute until the administrative process concludes. Plaintiffs obviously disagree, and observe certain undisputed facts. First, if the Act is allowed to take effect, they will not yet meet the new qualifications for licensing. Second, the statutes provide both civil and criminal sanctions for operating out of compliance. Third, the statutes have never been...