Armstrong v. Mazurek

Decision Date27 August 1996
Docket NumberNo. 95-35962,95-35962
Citation94 F.3d 566
Parties96 Cal. Daily Op. Serv. 6339 John H. ARMSTRONG, M.D.; Mark Miles, M.D.; Susan Wicklund, M.D.; Susan Cahill, P.A.; Mark Stranahan; Mary Thompson, M.D.; Edwin 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-Appellants, v. Joseph MAZUREK, Attorney General of the State of Montana, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Janet Benshoof and Simon Heller, The Center for Reproductive Law and Policy, New York City; Bruce Measure, Law Offices of Ambrose Measure, Kalispell, Montana; Turner Graybill, Graybill, Ostrem, Warner and Crotty, Great Falls, Montana, for plaintiffs-appellants.

Clay R. Smith and Elizabeth Baker, Assistant Attorney General, Helena, Montana, for defendant-appellee.

Appeal from the United States District Court for the District of Montana, Paul G. Hatfield, Chief District Judge, Presiding. D.C. No. CV-95-83-PGH.

Before: PREGERSON, CANBY, and HAWKINS, Circuit Judges.

PER CURIAM:

James H. Armstrong, M.D., Susan Cahill and others appeal the district court's denial of their motion for a preliminary injunction against enforcement of Chapter 321 of the 1995 Montana Session Laws, passed as House Bill No. 442 (HB 442), a bill restricting the performance of abortions to licensed physicians. Appellants are licensed physicians or, in the case of Cahill, a physician's assistant, who are engaged in providing health care including abortions. Cahill is the only physician's assistant in Montana who performs abortions, which she has done in the past under the supervision of a medical doctor and as approved by the Montana State Board of Medical Examiners.

Appellants ultimately seek a permanent injunction against enforcement of Chapter 321, on the ground that the purpose and effect of the statute is to present a "substantial obstacle" to a woman's obtaining an abortion, within the meaning of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877, 112 S.Ct. 2791, 2820-21, 120 L.Ed.2d 674 (1992). They also seek to invalidate the statute as a bill of attainder directed at Cahill.

The matter presently before us, however, is the district court's denial of a preliminary injunction against enforcement of Chapter 321 to permit Cahill to continue to perform abortions until the district court is able to rule on the question of permanent relief. Preliminary injunctive relief is appropriate if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172 (9th Cir.1987). At the very minimum, the moving party must show a fair chance of success on the merits. Stanley v. University of Southern California, 13 F.3d 1313, 1319 (9th Cir.1994). We review the district court's order to determine whether the court applied the proper legal standard and whether it abused its discretion in applying that standard. See Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir.1982).

The district court quite correctly understood that the application of Casey 's "undue burden" standard is crucial to the determination of appellants' ultimate claims: "A finding of undue burden is a shorthand for the conclusion that a State regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus." Casey, 505 U.S. at 877, 112 S.Ct. at 2820-21. The district court also acknowledged Casey 's admonition that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id. at 878, 112 S.Ct. at 2821.

The district court, however, considered itself unable to impugn the health purpose of the statute because it could not assume that "none of the individual legislators approving the passage of Chapter 321 was motivated by a desire to foster the health of a woman seeking an abortion." It also found insufficient evidence that the statute posed a practical obstacle to the obtaining of an abortion. Consequently, the district court considered it "unlikely" that the appellants could prevail on their "undue burden" argument. It also concluded that, because there appeared to be a legitimate purpose for the statute, the bill of attainder claim was unlikely to succeed.

While we express no opinion on the appropriateness of permanent relief, we conclude that the district court's view of its ability to consider the purpose or effect of the legislation was unduly confined for the purpose of assessing whether appellants have a fair chance of ultimate success. One proper inquiry, for example, is whether "the requirements serve no purpose other than to make abortions more difficult." Casey, 505 U.S. at 901, 112 S.Ct. at 2832-33. While ...

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19 cases
  • Armstrong v. State
    • United States
    • Montana Supreme Court
    • October 26, 1999
    ... ... ARMSTRONG, M.D.; Susan Cahill, P.A.; Barbara Polstein, D.O.; Mindy Opper, P.A.; and Blue Mountain Clinic, on behalf of themselves and their patients throughout Montana, the surrounding states and Canada, Plaintiffs and Respondents, ... The STATE of Montana and Joseph P. Mazurek, in his official capacity as Attorney General for the State of Montana and his agents and successors, Defendants and Appellants ... No. 98-066 ... Supreme Court of Montana ... Heard October 15, 1998 ... Submitted July 1, 1999 ... Decided October 26, 1999 ...          989 ... ...
  • Karlin v. Foust
    • United States
    • U.S. District Court — Western District of Wisconsin
    • June 19, 1997
    ...view of the purpose element of the Casey undue burden test in assessing whether to grant the preliminary injunction. Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir.1996). In Armstrong, the Supreme Court did not say that an impermissible purpose argument could never be made in challenging a......
  • Coalition for Economic Equity v. Wilson, AFL-CIO
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 8, 1997
    ... ... possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor." Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir.1996) (citation omitted). We review an order granting a preliminary injunction for an abuse of discretion ... ...
  • Thomas v. Anchorage Equal Rights Com'n
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 14, 1999
    ... ... Page 706 ... States v. Armstrong, 517 U.S. 456, 468, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); accord United States v. Bourgeois, 964 F.2d 935, 938-39 (9th Cir.1992). Courts engage ... Mazurek, 94 F.3d 566, 567 (9th Cir.1996))). Consequently, although not perfectly precise, the colorable-claim test is not standardless. Rather, despite ... ...
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1 books & journal articles
  • Gillian E. Metzger, Abortion, Equality, and Administrative Regulation
    • United States
    • Emory University School of Law Emory Law Journal No. 56-4, 2007
    • Invalid date
    ...1995), although they were not discussed in the Ninth Circuit or Supreme Court per curiam decisions in that case. See Armstrong v. Mazurek, 94 F.3d 566 (9th Cir. 1996) (per curiam); Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam); see also Wicklund, 979 F. Supp. at 1289. In addition, ......

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