Adams & Boyle, P.C. v. Slatery

• Decision Date: 14 October 2020
• Docket Number: Civil Action No. 3:15-cv-00705
• Citation: 494 F.Supp.3d 488
• Court: U.S. District Court — Middle District of Tennessee
• Parties: ADAMS & BOYLE, P.C., et al., Plaintiffs, v. Herbert H. SLATERY, III, et al., Defendants.

494 F.Supp.3d 488

ADAMS & BOYLE, P.C.,¹ et al., Plaintiffs,

v.Herbert H. SLATERY, III, et al., Defendants.

Civil Action No. 3:15-cv-00705

United States District Court, M.D. Tennessee, Nashville Division.

Signed October 14, 2020

Autumn Katz, Hailey Flynn, Michelle Moriarty, Rabia Muqaddam, Center for Reproductive Rights, Catherine Hoge, Irene Weintraub, Jason M. Moff, Michael J. Dell, Timur Tusiray, Kramer Levin Naftalis & Frankel LLP, New York, NY, David W. Garrison, Scott P. Tift, Barrett Johnston Martin & Garrison, LLC, Thomas H. Castelli, ACLU, Nashville, TN, Marc Hearron, Center for Reproductive Rights, Washington, DC, Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, Genevieve Scott, for Plaintiff Memphis Center for Reproductive Health.

David W. Garrison, Scott P. Tift, Barrett Johnston Martin & Garrison, LLC, Thomas H. Castelli, ACLU, Nashville, TN, Julia Kaye, American Civil Liberties Union Foundation, New York, NY, Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, for Plaintiff Knoxville Center for Reproductive Health.

Catherine Hoge, Irene Weintraub, Jason M. Moff, Michael J. Dell, Timur Tusiray, Kramer Levin Naftalis & Frankel LLP, Maithreyi Ratakonda, Planned Parenthood Federation of America, Melissa A. Cohen, Children's Rights, Inc., New York, NY, David W. Garrison, Scott P. Tift, Barrett Johnston Martin & Garrison, LLC, Thomas H. Castelli, ACLU, Nashville, TN, Marc Hearron, Center for Reproductive Rights, Richard Muniz, Planned Parenthood Federation of America, Washington, DC, Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, for Plaintiff Planned Parenthood of Tennessee and North Mississippi.

Richard Muniz, Planned Parenthood Federation of America, Washington, DC, Thomas H. Castelli, ACLU, Nashville, TN, for Plaintiff Kimberly Looney.

Autumn Katz, Michelle Moriarty, Rabia Muqaddam, Center for Reproductive Rights, Jason M. Moff, Michael J. Dell, Kramer Levin Naftalis & Frankel LLP, New York, NY, David W. Garrison, Scott P. Tift, Barrett Johnston Martin & Garrison, LLC, Thomas H. Castelli, ACLU, Nashville, TN, Marc Hearron, Center for Reproductive Rights, Washington, DC, Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, Genevieve Scott, for Plaintiff Bristol Regional Women's Center, P.C.

Alexander Stuart Rieger, Amber L. Seymour, Kathryn A. Baker, Lindsay H. Sisco, Matthew Daniel Cloutier, Steven Ashley Hart, Sue A. Sheldon, Tennessee Attorney General's Office, Nashville, TN, for Defendants Herbert H. Slatery, III, Glenn R. Funk, Amy Weirich, Barry P. Staubus, Charme P. Allen, Lisa Piercey.

Alexander Stuart Rieger, Amber L. Seymour, Lindsay H. Sisco, Matthew Daniel Cloutier, Steven Ashley Hart, Sue A. Sheldon, Tennessee Attorney General's Office, Nashville, TN, for Defendant W. Reeves Johnson, Jr.

Alexander Stuart Rieger, Matthew Daniel Cloutier, Tennessee Attorney General's Office, Nashville, TN, for Defendants William Lee, Dr. Rene Saunders Board for Licensing Health Care Facilities. 710 James Robertson Parkway Nashville, TN 37243.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiffs in this matter are Tennessee abortion providers who challenge a Tennessee statute, Tenn. Code Ann. § 39-15-202(a) - (h), which requires women seeking an abortion to receive certain information beforehand in person from the attending physician performing the abortion, or a referring physician, and to then wait at least 48 hours after receiving the information – subject to a strict medical emergency exception – before undergoing the procedure. Plaintiffs, suing on their own behalf and on behalf of their patients, argue that § 39-15-202(a) - (h) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. They seek to enjoin its enforcement.

Having reviewed the evidence presented at trial, including the testimony of various expert witnesses, the exhibits, and the stipulations, and having considered all of the issues involved, the Court concludes that the mandatory waiting period required by § 39-15-202(a) - (h) is unconstitutional and shall enjoin its enforcement.

I. Background

On June 25, 2015, plaintiffs Adams & Boyle, P.C. ("Adams & Boyle"), Wesley F. Adams Jr., M.D. ("Adams"), and Memphis Center for Reproductive Health ("Choices Memphis") filed a complaint on behalf of themselves and their patients in which they challenged three statutory requirements concerning abortions in Tennessee: (1) that doctors’ offices that perform more than fifty surgical abortions annually become licensed as ambulatory surgical treatment centers ("ASTC"), 2015 Tenn. Pub. Acts Chapter 419 (later codified at Tenn. Code Ann. § 68-11-201 ); (2) that doctors who perform abortions have hospital admitting privileges in the county where the abortion is performed or an adjacent county, 2012 Tenn. Pub. Acts Chapter 1008 (originally codified at Tenn. Code Ann. § 39-15-202(h), later codified at Tenn. Code Ann. § 39-15-202(j) ); and (3) that abortion patients attend an in-person meeting with a doctor to receive certain information at least 48 hours before obtaining the abortion, 2015 Tenn. Pub. Acts Chapter 473 § 1(a)-(h) (later codified at Tenn. Code Ann. § 39-15-202(a) - (h) ). Compl. ¶¶ 2, 7 [docket entry 1]. Plaintiffs alleged that these restrictions violated the Fourteenth Amendment's Due Process and Equal Protection Clauses, and they sought declaratory and injunctive relief permanently enjoining their enforcement.

On June 26, 2015, the Court issued a temporary restraining order ("TRO") enjoining "Defendants ... from enforcing ... [the ASTC requirement], as applied to Plaintiffs Adams & Boyle and Adams," pending a July 9, 2015, hearing. TRO at 2-3 [docket entry 13]. On July 15, 2015, the Court renewed the TRO until August 10, 2015 [docket entry 23]. On August 10, plaintiffs filed an amended complaint that challenged the same three restrictions and added defendants. On August 14, 2015, the Court issued a preliminary injunction enjoining defendants from enforcing the ASTC requirement pending resolution of the litigation.

On December 17, 2015, the Court stayed "all proceedings in this matter" pending the Supreme Court's decision in Whole Woman's Health v. Cole , 790 F.3d 563 (5th Cir. 2015) (per curiam), modified , 790 F.3d 598 (5th Cir. 2015) (mem.), cert. granted , 577 U.S. 982, 136 S.Ct. 499, 193 L.Ed.2d 364 (2015). Stay Order at 1-2 [docket entry 45]. On April 14, 2017, the Court lifted the stay and entered a partial judgment on consent. In light of the Supreme Court's ruling in Whole Woman's Health and the agreement of the parties, the Court "enter[ed] a final judgment as to Plaintiffs’ claims for statewide injunctive relief concerning enforcement of" the ASTC and admitting-privileges requirements. Partial J. on Consent at 3 [docket entry 60]. The Court indicated that "nothing in this [judgment] shall affect adjudication of Plaintiffs’ claims concerning what Plaintiffs reference as the ‘Delay Requirement’ and Defendants reference as the ‘Notice and Waiting Period Requirement’ ...." Id.

On August 22, 2017, plaintiffs filed a second amended complaint challenging the validity of § 39-15-202(a) - (h) on both due process and equal protection grounds. Plaintiffs, suing on their own behalf and on behalf of their patients, are Adams & Boyle,² Choices Memphis, and Planned Parenthood of Tennessee and North Mississippi ("PPTNM").³ Defendants are the Tennessee Attorney General and various other state and county officials.⁴

The parties have filed deposition designations [docket entries 197, 203, 204, 217], motions in limine [docket entries 143, 145, 147, 149, 151, 153, 155, 157, 158, 162, 164, 166, 168, 172, 195, 208], and pretrial briefs [docket entries 179, 180]. Following a four-day bench trial, the parties submitted proposed findings of fact and conclusions of law [docket entries 226, 227].

II. Tenn. Code Ann. § 39-15-202(a) - (h)

A. Text of § 39-15-202(a) - (h)

Section 39-15-202(a) - (h), which went into effect on July 1, 2015, states:

(a) Except in a medical emergency that prevents compliance with this subsection (a), no abortion shall be performed or induced upon a pregnant woman unless the woman has provided her informed written consent, given freely and without coercion. Such consent shall be treated as confidential.

(b) In order to ensure that a consent for an abortion is truly informed consent, except in a medical emergency that prevents compliance with this subsection (b) or any of the requirements of subdivisions (b)(1)-(5), no abortion shall be performed or induced upon a pregnant woman unless she has first been informed orally and in person by the attending physician who is to perform the abortion, or by the referring physician, of the following facts and has signed a consent form acknowledging that she has been informed as follows:

(1) That according to the best judgment of her attending physician or referring physician she is pregnant;

(2) The probable gestational age of the unborn child at the time the abortion is to be performed, based upon the information provided by her as to the time of her last menstrual period or after a history, physical examination, and appropriate laboratory tests;

(3) That if twenty-four (24) or more weeks have elapsed from the first day of her last menstrual period or twenty-two (22) or more weeks have elapsed from the time of conception, her unborn child may be viable, that is, capable of sustained survival outside of the womb, with or without medical assistance, and that if a viable child is prematurely born alive in the course of an abortion, the physician performing the abortion has a legal obligation to take steps to preserve the life and health of the child;

(4) That numerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child, if she chooses not to have the abortion, whether she wishes to keep her child or place the child for

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