Planned Parenthood Ark. & E. Okla. v. Jegley

• Decision Date: 28 July 2017
• Docket Number: No. 16-2234,16-2234
• Citation: 864 F.3d 953
• Parties: PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, on behalf of itself and its patients, doing business as Planned Parenthood Great Plains ; Stephanie Ho, MD, on behalf of herself and her patients, Plaintiffs–Appellees v. Larry JEGLEY, Prosecuting Attorney for Pulaski County, in his official capacity, his agents and successors; Matt Durrett, Prosecuting Attorney for Washington County, in his official capacity, his agents and successors, Defendants–Appellants American Public Health Association; American College of Obstetricians and Gynecologists, Amici on Behalf of Appellee(s)
• Court: U.S. Court of Appeals — Eighth Circuit

864 F.3d 953

PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, on behalf of itself and its patients, doing business as Planned Parenthood Great Plains ; Stephanie Ho, MD, on behalf of herself and her patients, Plaintiffs–Appellees

v. Larry JEGLEY, Prosecuting Attorney for Pulaski County, in his official capacity, his agents and successors; Matt Durrett, Prosecuting Attorney for Washington County, in his official capacity, his agents and successors, Defendants–AppellantsAmerican Public Health Association; American College of Obstetricians and Gynecologists, Amici on Behalf of Appellee(s)

No. 16-2234

United States Court of Appeals, Eighth Circuit.

Submitted: March 7, 2017

Filed: July 28, 2017

Rehearing and Rehearing En Banc Denied September 27, 2017

Counsel who presented argument on behalf of the appellants was Nicholas Jacob Bronni, Deputy Solicitor General, of Little Rock, AR. In addition to Mr. Bronni, the following attorney(s) appeared on the appellants' brief; Mindy D. Pipkin, Senior Assistant Attorney General, of Little Rock, AR.

Counsel who presented argument on behalf of the appellees was Maithreyi Ratakonda, of New York, NY. In addition to Maithreyi Ratakonda, the following attorney(s) appeared on the appellees' brief; Bettina E. Brownstein, of Little Rock, AR., Carrie Y. Flaxman, of Washington, DC., Helene T. Krasnoff, of Washington, DC., and Melissa Ann Cohen, of New York, NY.

The following attorney(s) appeared on the amici brief of American Public Health Association and American College of Obstetricians and Gynecologists in support of appellees; Shannon R. Selden, of New York, NY., Johanna N. Skrzypczyk, of New York, NY., Joshua E. Roberts, of New York, NY., and John T. Chisholm, of Washington, D.C.

Before RILEY, Chief Judge,¹ GRUENDER, Circuit Judge, and GRITZNER, District Judge.²

GRUENDER, Circuit Judge.

Prosecuting Attorneys for Pulaski County and Washington County, Arkansas ("the State") appeal the district court's grant of a preliminary injunction preventing the enforcement of an Arkansas statute requiring medication-abortion providers to contract with a physician who has hospital admitting privileges. Because the district court failed to make factual findings estimating the number of women burdened by the statute, we vacate the preliminary injunction and remand for further proceedings.

I. BACKGROUND

In 2015, Arkansas enacted the Abortion-Inducing Drugs Safety Act ("the Act"). Ark. Code Ann. §§ 20-16-1501 –1510. The Arkansas Legislature made findings that abortion-inducing drugs present significant medical risks, including "abdominal pain, cramping, vomiting, headache, fatigue, uterine hemorrhage, viral infections, and pelvic inflammatory disease." Id. § 1502(14). It further determined that medication abortions are "associated with an increased risk of complications relative to surgical abortion[s]" and found that, based on a 2011 United States Food and Drug Administration report, complications included eight deaths attributed to severe bacterial infection, 612 hospitalizations, 339 blood transfusions, and 256 infections. Id. §§ 1502(15)-(17).

To address these health concerns, the Act created new requirements for physicians providing medication abortions. Section 1504(d) sets forth the "contract-physician requirement," which is the subject of the current appeal.³ The provision requires that:

(1) The physician who gives, sells, dispenses, administers, or otherwise provides or prescribes the abortion-inducing drug shall have a signed contract with a physician who agrees to handle complications and be able to produce that signed contract on demand by the patient or by the Department of Health.

(2) The physician who contracts to handle emergencies shall have active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug.

(3) Every pregnant woman to whom a physician gives, sells, dispenses, administers, or otherwise provides or prescribes any abortion-inducing drug shall receive the name and phone number of the contracted physician and the hospital at which that physician maintains admitting privileges and which can handle any emergencies.

Id. § 1504(d). The Act imposes civil and criminal penalties for violations of the contract-physician requirement. See id. §§ 1506-1507.

Planned Parenthood of Arkansas & Eastern Oklahoma ("PPAEO") provides medication abortions in Arkansas at its two facilities, one in Fayetteville and the other in Little Rock. The only other Arkansas abortion provider, Little Rock Family Planning Services ("LRFP"), administers both medication and surgical abortions at its Little Rock facility. PPAEO and one of its physicians, Stephanie Ho, M.D., (collectively "Planned Parenthood") filed suit seeking to enjoin enforcement of the Act days before it was set to take effect, claiming that the contract-physician requirement unduly burdens their patients' right to an abortion.

Both parties submitted affidavits concerning the medical benefits of the contract-physician requirement and the burdens on abortion access purportedly caused by the requirement. The district court found that Planned Parenthood's protocols provided continuity of care because patients with concerns could call Planned Parenthood's twenty-four-hour hotline to speak with nurses, Planned Parenthood referred patients experiencing complications to clinics or health centers for surgical completion, and Planned Parenthood physicians could consult with emergency-room physicians in the case of serious complications. The district court thus concluded that the contract-physician requirement provided few, if any, tangible medical benefits over Planned Parenthood's continuity-of-care protocols such that "the [S]tate's overall interest in the regulation of medication abortions through the [contract-physician] requirement is low and not compelling." Planned Parenthood Ark. & E. Okla. v. Jegley , No. 4:15-cv-00784-KGB, 2016 WL 6211310, at *20 (E.D. Ark. Mar. 14, 2016).

The district court then turned to the requirement's alleged burdens on abortion access. The court first concluded that Planned Parenthood could not find a physician to contract with and that, as a result, the Planned Parenthood facilities in Little Rock and Fayetteville would stop offering abortion services.⁴ It also found that medication abortion would no longer exist in Arkansas and that LRFP would be the sole abortion provider in Arkansas and would only administer surgical abortions. The district court and the parties generally treated LRFP's surgical-abortion services as a viable alternative to medication abortions, and as a result, the court determined the contract-physician requirement would not burden most Arkansas women seeking medication abortions because they already would have traveled to Little Rock prior to the enactment of the contract-physician requirement.⁵ The district court, however, found that the closure of PPAEO's Fayetteville facility would force "women in the Fayetteville area" to make two, 380-mile round trips to obtain an abortion at LRFP.⁶ Id. at *4. As a result of the increased travel distances, the district court determined that "some women" in the Fayetteville area would postpone the procedures, leading to an increased risk of complications, while others would forgo abortions entirely. Id. at *8. The court further noted that the record did not allow a finding as to whether LRFP would be able to "absorb such an increase in the number of procedures or whether [LRFP] will be able to cover fully the needs of women who might have sought care at [Planned Parenthood]." Id. at *30.

Balancing the benefits of the contract-physician requirement against its burdens, the district court concluded that the requirement was a "solution in search of a problem." Id. at *18. It thus held that Planned Parenthood was likely to succeed on the merits, that it and its patients faced irreparable harm, that the equities weighed in its favor, and that the public interest weighed in its favor. As a result, the district court granted Planned Parenthood a preliminary injunction, preventing Arkansas from enforcing the contract-physician requirement. The State timely appealed.

II. DISCUSSION

This court has jurisdiction under 28 U.S.C. § 1292(a)(1) to review an interlocutory order granting a preliminary injunction. We review such an order for an abuse of discretion. Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 733 (8th Cir. 2008) (en banc). A district court abuses its discretion when it fails to consider a relevant factor that should have been given significant weight, when it considers and gives significant weight to an irrelevant or improper factor, or when it considers only proper factors—and no improper ones—but in weighing those factors commits a clear error of judgment. Novus Franchising, Inc. v. Dawson , 725 F.3d 885, 893 (8th Cir. 2013).

Generally, in issuing a preliminary injunction, the district court considers: (1) the threat of irreparable harm to the moving party, (2) the balance between this harm and the injury that granting the injunction will inflict on the non-moving party, (3) the probability that the moving party will succeed on the merits, and (4) the public interest. See Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Cir. 1981) (en banc). Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, however, the moving party must make a more rigorous showing that it is "likely to prevail on the merits." Rounds , 530 F.3d at 732-33. This is necessary "to ensure that preliminary injunctions that thwart a state's presumptively reasonable democratic processes are pronounced only after an appropriately deferential analysis." Id. at 733. Thus, we must analyze whether Planned Parenthood demonstrated that it is likely to prevail on the merits of its undue burden claim. See id. at...