Armstrong v. Mazurek
| Citation | 906 F. Supp. 561 |
| Decision Date | 29 September 1995 |
| Docket Number | No. CV-95-083-GF.,CV-95-083-GF. |
| Parties | James H. ARMSTRONG, M.D.; Mark Miles, M.D.; Susan Wicklund, M.D.; Susan Cahill P.A.; Mary Stranahan, D.O.; Beth E. Thompson, M.D.; and Edwin L. Stickney, M.D., on behalf of themselves and their patients throughout Montana, the surrounding states and Canada and on behalf of a class of performing and referring physicians, Plaintiffs, v. Joseph MAZUREK, in his official capacity as Attorney General of the State of Montana, Defendant. |
| Court | U.S. District Court — District of Montana |
Bruce Measure, Kalispell, MT.
Turner Graybill, Great Falls, MT.
Janet Benshoof, New York City.
Simon Heller, New York City.
Clay Smith, Helena, MT.
Elizabeth Baker, Helena, MT.
Timothy Whalen, Billings, MT.
The plaintiffs1 instituted this action for declaratory and injunctive relief under 42 U.S.C. § 1983, challenging the constitutional validity of Chapter 321 of the 1995 Montana Session Laws, otherwise identified as House Bill No. 442 and entitled: "An Act Clarifying That Only a Physician May Perform an Abortion; and Amending Sections 37-20-103 and 50-20-109, M.C.A."
The plaintiffs challenge the following three aspects of Chapter 321 (): (1) an abortion may be performed only by a "licensed physician"; (2) an abortion may not be performed after the first trimester of pregnancy, except in a licensed hospital; and (3) the "solicitation, advertising, or other form of communication that has the purpose of inviting, inducing, or attracting any person" to utilize the services of a physician or facility that performs abortion is banned in the State of Montana.
At the outset, it is important to note the latter two proscriptions have previously been declared as unconstitutional. The requirement that an abortion performed after the first trimester must be done in a licensed hospital was an issue resolved by this court in the case of Doe v. Esch, No. CV-93-60-GF (judgment entered November 26, 1993). The judgment in Esch, which enjoined enforcement of the hospitalization requirement of M.C.A. § 50-20-109(1)(b) was entered pursuant to stipulation of the parties. The State of Montana acknowledges in the present action that the State of Montana remains bound by the Esch judgment; a fact which would preclude the enforcement of the hospitalization requirement. The advertising/solicitation prohibition, embodied in section 50-20-109(4), is likewise precluded by the judgment entered in Doe v. Deschamps, 461 F.Supp. 682 (D.Mont.1976). The State of Montana again acknowledges, as it must, that it remains bound by the judgment in Deschamps from enforcing the prohibition against advertising/solicitation.
While the State of Montana acknowledges the unenforceability of the hospitalization requirement and the prohibition against advertising, it suggests there exists no "justiciable controversy" regarding these provisions since the State of Montana is precluded by the referenced judgments from enforcing the same. This argument is hardly compelling in view of the clear unconstitutionality of the two provisions and a judgment declaring the provisions unconstitutional and enjoining their enforcement would be entirely appropriate.
The real focus of this case is upon the constitutionality of the "physicians only" provision of Chapter 321.2 The provision is set forth in two separate sections of Chapter 321 as follows:
It is important to note that the Montana Legislature enacted the "physicians only" provision in response to the judgment entered in Esch. In Esch, the court was not ultimately called upon to determine whether a statutory provision precluding the performance of abortions by anyone other than a licensed physician passed constitutional muster. In response to the complaint in Esch, the State of Montana acknowledged that the term "licensed physician", as used in Mont. Code Ann. § 50-20-109(1)(a) (1993), included physician assistants who worked under the direct supervision of a physician pursuant to a "utilization plan" approved by the Montana Board of Medical Examiners. The State of Montana emphasizes this construction of the term "licensed physician" was compelled by the then existing statutory law, more particularly Mont.Code Ann. § 37-20-403 (1993) (), Mont. Code Ann. § 37-20-303 () together with the Board of Medical Examiners' administrative construction of its authority to approve a utilization plan which allowed a physician's assistant (more specifically plaintiff Susan Cahill P.A.) to perform a first trimester abortion by "suction curettage". The statutory amendments embodied in Chapter 321, the State of Montana emphasizes, were specifically designed to clarify that only a physician may perform an abortion in the State of Montana.
The plaintiffs predicate their challenge to the constitutionality of the "physicians only" provision of Chapter 321 upon the following four alternate bases:
(1) the purpose of the provision is to impose a substantial obstacle in the path of a woman seeking a previability abortion;
(2) the provision has the effect of imposing a substantial obstacle in the path of a woman seeking a previability abortion;
(3) the provision violates the bill of attainder clause of Article I, section 10 of the federal Constitution because it constitutes a form of legislative punishment directed specifically against plaintiff Cahill (the only physician assistant performing abortions in the State of Montana); and
(4) the provision impermissibly discriminates on the basis of sex by excluding from the permissible scope of practice with physician assistants, a type of medical care sought only by women.
Chapter 321 is to become effective on October 1, 1995. The plaintiffs have moved the court for preliminary injunctive relief, pursuant to Fed.R.Civ.P. 62, to preclude the State of Montana from enforcing the provision of Chapter 321 which bans the performance of first-trimester abortions by a physician assistant.3 The State of Montana moves the court, pursuant to Fed.R.Civ.P. 65, to enter summary judgment in that entity's favor declaring, in effect, the validity of the "physicians only" provision of Chapter 321.
The plaintiffs' request for preliminary injunctive relief was heard before the court on September 29, 1995. Having considered the arguments advanced by the parties in support of their respective positions, the court deems it appropriate to DENY the plaintiffs' request that the court preliminarily enjoin the State of Montana from enforcing the "physicians only" provision of Chapter 321.
The traditional equitable criteria for granting preliminary injunctive relief are "(1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff." Los Angeles Memorial Coliseum Comm. v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). Alternatively, the moving party must demonstrate "either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tip sharply in its favor." Id., at 1201. "These are not separate tests but the outer reaches of a single continuum." Ibid., accord, People of Village of Gambell v. Hodel, 774 F.2d 1414, 1419 (9th Cir.1985). In the two tests, "the required showing of harm varies inversely with the required showing of meritoriousness." San Diego Committee Against Registration and the Draft v. The Governing Board of Grossmont Union High School, 790 F.2d 1471, 1473 (9th Cir.1986). Analysis of these criteria under the circumstances of the present case, compel the court to deny the plaintiffs' motion for preliminary injunctive relief.
The court recognizes that the plaintiffs' challenge to the "physicians only" provision raises a serious question, but is not convinced that under the balance of hardships is such that the court must strike the balance in favor of the plaintiffs' request. While the court's refusal to grant the preliminary injunctive relief requested will operate to preclude plaintiff Cahill from performing abortions, the hardship resulting from the disruption of the status quo, a hardship borne only by Cahill, is not accompanied by a sufficient showing of merit in the plaintiffs' position that would warrant provisional relief.
In Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Supreme Court, reiterating a woman's right to choose to terminate her pregnancy prior to viability is protected by the Due Process Clause of the fourteenth amendment, acknowledged that in order to "protect the central right recognized by Roe v. Wade while at the same time accommodating the States' profound interest in potential life, the Court would employ the `undue burden'...
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Armstrong v. State
...injunction against enforcement of the ban on Dr. Armstrong's utilization of P.A. Cahill to perform abortions. Armstrong v. Mazurek (D.Mont.1995), 906 F.Supp. 561. ¶ 27 On appeal, the Ninth Circuit vacated the District Court's denial of a preliminary injunction against enforcement of the sta......
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Gillian E. Metzger, Abortion, Equality, and Administrative Regulation
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