Planned Parenthood Se., Inc. v. Bentley

Citation951 F.Supp.2d 1280
Decision Date28 June 2013
Docket NumberCivil Action No. 2:13cv405–MHT.
PartiesPLANNED PARENTHOOD SOUTHEAST, INC., on behalf of its patients, physicians, and staff, et al., Plaintiffs, v. Robert BENTLEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. Middle District of Alabama

OPINION TEXT STARTS HERE

Validity Called into Doubt

Ala. Code 1975 §§ 26-23E-4, 26-23E-12.

Alexa Kolbi–Molinas, Andrew David Beck, Jennifer Dalven, American Civil Liberties Foundation, New York, NY, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, Roger Kraus Evans, Planned Parenthood Federation of America, New York, NY, M. Wayne Sabel, Sr., Sabel & Sabel, P.C., Montgomery, AL, Randall C. Marshall, ACLU Foundation of Alabama, Montgomery, AL, for Plaintiffs.

Andrew L. Brasher, John Cowles Neiman, Jr., Laura Elizabeth Howell, William G. Parker, Jr., Office of the Attorney General, Montgomery, AL, Carrie Ellis McCollum, David Bryson Byrne, Jr., Office of the Governor, Montgomery, AL, for Defendants Robert Bentley, Luther Strange, Ellen Brooks, Brandon K. Falls, and Ashley Rich.

Patricia Elaine Ivie, Phillip Brian Hale, Alabama Department of Public Health, Montgomery, AL, for Defendant Donald E. Williamson.

James Robert Seale, Hill Hill Carter Franco Cole & Black, Montgomery, AL, for Defendant George C. Smith, Jr.

Wayne Paulk Turner, Wayne P. Turner, Attorney at Law, Montgomery, AL, for Defendant James E. West.Barbara Jean Wells, Chad Wesley Bryan, Capell & Howard, P.C., Montgomery, AL, for Defendant Martha Lavender.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

This lawsuit challenges recent Alabama legislation that would require all physicians who perform abortions at the State's licensed abortion clinics to obtain staff privileges at a local hospital. Plaintiffs Planned Parenthood Southeast Inc., Reproductive Health Services, and June Ayers, RN, on behalf of themselves, their patients, physicians, and staff, allege that, if enacted, this legislation would violate their rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The plaintiffs have named as defendants the following state officials: Robert Bentley, in his official capacity as Governor of Alabama; Luther Strange, in his official capacity as Attorney General of Alabama; Ellen Brooks, in her official capacity as District Attorney of Montgomery County, Alabama; Brandon K. Falls, in his official capacity as District Attorney of Jefferson County, Alabama; Ashley Rich, in her official capacity as District Attorney of Mobile County, Alabama; Donald E. Williamson, MD, in his official capacity as State Health Officer of Alabama; George C. Smith, Jr., MD, in his official capacity as Chairman of the Alabama Board of Medical Examiners; James E. West, MD, in his official capacity as Chairman of the Medical Licensure Commission of Alabama; and Martha Lavender, DSN, RN, in her official capacity as President of the Alabama Board of Nursing.

This matter is now before the court on the plaintiffs' motion for a temporary restraining order. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3, 4) (civil rights). For reasons that follow, and based on the limited record now before the court, the motion for a temporary restraining order will be granted.

I. LEGAL STANDARD

To demonstrate that a temporary restraining order is warranted, the plaintiffs must show: (1) a substantial likelihood of success on the merits of their suit; (2) that they will suffer irreparable harm absent injunctive relief; (3) that the harm to the plaintiffs absent an injunction would outweigh the harm to the defendants from an injunction; and (4) that an injunction is in the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995); Centr. Ala. Fair Hous. Ctr. v. Magee, No. 2:11cv982–MHT, 2011 WL 5878363, at *1 (M.D.Ala. Nov. 23, 2011) (Thompson, J.) (citing Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir.2011)).

II. DISCUSSION

The law at issue is § 4(c) of HB 57, the “Women's Health and Safety Act.” This provision requires that every physician who performs abortions “shall have staff privileges at an acute care hospital within the same standard metropolitan statistical area as the facility [where the physician performs abortions] is located that permit him or her to perform dilation and curettage, laparotomy procedures, hysterectomy, and any other procedures reasonably necessary to treat abortion-related complications.” HB 57, § 4(c), available at (Doc. No. 4–1) Ex. A. If an administrator of an abortion or reproductive health center were to allow his or her facility to be operated in a manner that violates the staff-privileges requirement, the administrator would be guilty of a Class C Felony, which in Alabama carries a punishment range of one to ten years imprisonment. HB 57, § 12(c); 1975 Ala.Code § 13A–5–6. The abortion or reproductive health center could also have its license revoked, HB 57, § 14(b), as could any individual physician who performs an abortion without having met the staff-privileges requirement. Id. at § 14(a). This law is set to take effect July 1, 2013.

The plaintiffs in this case operate three of the five licensed abortion facilities in this State. June Ayers, the owner and Administrator of Reproductive Health Services (RHS) in Montgomery, and Staci Fox, the President and Chief Executive Officer of Planned Parenthood Southeast (PPSE), the sole licensed abortion provider in Mobile and Birmingham, explain that their physicians will be unable to obtain admitting privileges at any local hospital due to a slew of prerequisites for obtaining such privileges which have little if anything to do with the caliber of the physicians themselves, and everything to do with the hospitals' own needs.1 For example, Jackson Hospital in Montgomery requires that physicians with staff privileges guarantee a minimum of 48 admissions, inpatient evaluations, consultations, or procedures in the hospital every year; because abortion patients so rarely require hospitalization, RHS's physicians cannot meet this requirement. Ayers Decl. (Doc. No. 4–4) Ex. C ¶ 23. An additional impediment to satisfying the staff-privileges requirement is that many of the plaintiffs' physicians do not live in the communities they serve. This is a problem because HB 57 requires an abortion physician to have admitting privileges at a hospital in the vicinity of the clinic where the physician performs abortions, and the hospitals, in turn, require doctors seeking staff privileges to live a reasonable distance from the hospital from which they seek admitting privileges. See, e.g., Baptist Health Bylaws (Doc. No. 43–13) Ex. 25 at 9 (requiring that physicians with staff privileges “maintain a practice and residence within a reasonable distance to the Baptist Health hospital at which he or she practices”); Ayers Decl. (Doc. No. 4–4) Ex. C ¶ 23 (relating Jackson Hospital's requirement that physicians with staff privileges be located close enough to the hospital to provide both continuous care to patients and emergency room coverage). The defendants argue that the plaintiffs should persuade their doctors to move their residences to comply with this requirement or hire new doctors. But the plaintiffs have submitted substantial evidence that the severe harassment and even death threats targeted at abortion providers makes it nearly impossible for them to find doctors willing to live near their clinics.2

The record therefore currently reflects that, as they cannot comply with the staff-privileges requirement imposed by HB 57, unless it is enjoined, the plaintiffs will be unable to provide abortion services once the law takes effect.

A. Justiciability

It appears from the record thus far that the plaintiffs have standing to bring this lawsuit on behalf of themselves, their staff, and their patients. In order to bring a claim on behalf of a third party, as the plaintiffs do for their claim that HB 57 threatens the substantive-due-process rights of their patients, the plaintiffs must satisfy three requirements: (1) they must in fact be injured; (2) they must have a close relationship with the third party; and (3) there must be some obstacle or hindrance to the third party's ability to bring the claim on its own behalf. Singleton v. Wulff, 428 U.S. 106, 112–16, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion).

The plaintiffs face imminent criminal prosecution if they continue to perform abortions after July 1. This is a “real and immediate” threat, neither “imagin[ed] nor “speculative.” Summit Med. Assocs., P.C. v. James, 984 F.Supp. 1404, 1426 (M.D.Ala.1998) (Thompson, J.) (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)) aff'd in part, rev'd in part on other grounds and remanded sub nom. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326 (11th Cir.1999). The threat is particularly credible since the State has confirmed that the criminal provisions will be in effect as of July 1. The plaintiffs have thus, so far, shown an injury sufficient to create an Article III case or controversy. See Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (finding physicians challenging an abortion statute had standing to do so “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution.... They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”); Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir.1987) (same).

As for the second and third requirements, federal courts routinely recognize an abortion provider's standing to assert the claims of its patients. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (adjudicating challenge to...

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