American Civil Liberties Union of Kansas & Western Missouri v. Praeger, Case No. 11–2462–WEB–KGG.

• Decision Date: 29 September 2011
• Docket Number: Case No. 11–2462–WEB–KGG.
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KANSAS AND WESTERN MISSOURI, Plaintiff, v. Sandy PRAEGER, Kansas Insurance Commissioner, in her official capacity, Defendant.
• Court: U.S. District Court — District of Kansas

815 F.Supp.2d 1204

AMERICAN CIVIL LIBERTIES UNION OF KANSAS AND WESTERN MISSOURI, Plaintiff,

v.Sandy PRAEGER, Kansas Insurance Commissioner, in her official capacity, Defendant.

Case No. 11–2462–WEB–KGG.

United States District Court, D. Kansas.

Sept. 29, 2011.

Andrew D. Beck, Brigitte Amiri, Jennifer Dalven, American Civil Liberties Union Foundation, New York, NY, Stephen D. Bonney, ACLU of Kansas and Western Missouri, Kansas City, MO, for Plaintiff.

Jeffrey A. Chanay, Office of Attorney General, Topeka, KS, Todd N. Thompson, Robert W. Ramsdell, Sarah E. Warner, Shon D. Qualseth, Stephen R. McAllister, Thompson Ramsdell & Qualseth, P.A., Lawrence, KS, for Defendant.

Memorandum and Order

WESLEY E. BROWN, Senior District Judge.

Plaintiff American Civil Liberties Union of Kansas and Western Missouri (“ACLU”) filed this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to halt enforcement of a Kansas statute which took effect on July 1, 2011. A portion of the statute essentially prohibits insurance companies in Kansas from providing coverage for “elective” ¹ abortion services under comprehensive health insurance policies.² 2011 Ks. H.B. 2075, § 8(a), amending K.S.A. § 40–2124. The law provides that coverage for such services may be obtained through purchase of a separate optional rider, the premium for which must be calculated so as to fully cover the estimated cost of covering elective abortions per enrollee on an actuarial basis. Id. The complaint alleges that this provision and other portions of the statute violate the rights of plaintiff's members under the Due Process and Equal Protection provisions of the Fourteenth Amendment.

Along with the complaint plaintiff filed a motion for preliminary injunction. Doc. 3. The motion seeks to enjoin enforcement of the above-described provision of the statute. Pursuant to 28 U.S.C. § 636(b)(1)(B), the court previously referred the motion to U.S. Magistrate Judge Kenneth G. Gale for a Report and Recommendation. Judge Gale held a hearing on September 16, 2011, and issued a Report and Recommendation on September 19, 2011. The Report found that the affidavits submitted by plaintiff in support of the motion were lacking in foundation and were inadequate to show irreparable injury. The Report recommended that the court deny the motion for preliminary injunction on that basis. Plaintiff has filed a timely objection to the Report and Recommendation.

I. Standard of Review.

On a matter referred to a magistrate under 28 U.S.C. § 636(b)(1)(B), the court makes a de novo determination of all matters objected to. See § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). De novo review requires the district court to consider relevant evidence of record and not merely review the magistrate's recommendation. Griego v. Padilla (In re Griego), 64 F.3d 580, 584 (10th Cir.1995). The district court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. It may also receive further evidence or recommit the matter to the magistrate judge with instructions. § 636(b)(1).

II. Standards for a Preliminary Injunction.

A preliminary injunction is an order, entered before a final determination of the merits, that commands a party to do or refrain from a specified act. The basic purpose of a preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1255 (10th Cir.2003).

“A preliminary injunction is an extraordinary remedy; it is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984). It “constitutes drastic relief to be provided with caution ... [and] should be granted only in cases where the necessity for it is clearly established.” United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888–89 (10th Cir.1989). The right to relief on a preliminary injunction “must be clear and unequivocal.” Greater Yellowstone Coal., 321 F.3d at 1256.

Injunctions that disrupt the status quo are particularly disfavored and “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” Beltronics, USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir.2009) ( quoting Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir.2005)). When a preliminary injunction would alter the status quo, the movant bears a heightened burden and “must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.2004) (en banc), aff'd, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). The status quo refers to the last peaceable uncontested status existing between the parties before the dispute developed. Nova Health Systems v. Edmondson, 460 F.3d 1295, 1298, n. 5 (10th Cir.2006).

Defendant contends the injunction sought by plaintiff would disrupt the status quo, because the statute now being challenged has been in effect since July 1, 2011, and plaintiff seeks to alter the legal landscape by enjoining further enforcement of the law. Doc. 14 at 5. Although this argument has facial appeal, the court concludes that the last uncontested status between the parties before the dispute arose would be that which existed prior to the challenged statute taking effect. Cf. Schrier v. University of Colo., 427 F.3d 1253 (10th Cir.2005) (last peaceable uncontested status between the parties was prior to plaintiff's ouster as chair of his university department). As noted by the concurrence in Centro Espirita, “[w]hen a statute is newly enacted, and its enforcement will restrict rights citizens previously had exercised and enjoyed, it is not uncommon for district courts to enjoin enforcement pending a determination of the merits of the constitutional issue.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir.2004) (en banc) (McConnell, J., concurring), cert. granted sub nom on other grounds, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 544 U.S. 973, 125 S.Ct. 1846, 161 L.Ed.2d 723 (2005). On the other hand, “[w]hen a statute has long been on the books and enforced, ... it is exceedingly unusual for a litigant who challenges its constitutionality to obtain (or even to seek) a preliminary injunction against its continued enforcement.” Id. As suggested by Judge McConnell, this is consistent with the general rule on status quo: “[I]t is sometimes necessary to require a party who has recently disturbed the status quo to reverse its actions. Such an injunction restores, rather than disturbs, the status quo ante, and is thus not an exception to the rule.” Id. This is particularly apt under the current circumstances, because the Kansas law has a “rolling effect” that may impact particular health insurance policies not immediately, but later when the policy is renewed, and in fact plaintiff's allegation is that one of its members will lose abortion coverage under a comprehensive policy as of October 1, 2011. Under the circumstances, the court concludes that the heightened standard for injunctions that alter the status quo does not apply to plaintiff's request for preliminary injunction.

III. Summary of Objections.

Magistrate Judge Gale's Report addressed irreparable harm, which is an essential element for obtaining a preliminary injunction. He examined the sworn declaration of plaintiff's Program Director, Ms. Weatherford, which stated in part that some ACLU members have lost their insurance coverage for abortion and some will lose such coverage in the future, including a member who will lose her current coverage on October 1, 2011, and that for some members “paying for an abortion would impose financial difficulties.” Judge Gale said he was unable to ascertain how the Program Director collected the information presented or how she arrived at the general conclusions set forth, because there was an absence of foundation for her statements. He further said “[a]n explanation of how the Act, which requires the issuance of separate riders for abortion coverage, will likely result in the loss of insurance to Plaintiff's members who may require the procedure—with foundation for those claims—is lacking.” He found the cost of abortion care relative to the financial ability of the woman “is relevant—perhaps critical—to the irreparable harm inquiry,” but the Program Director's general statement that the Act will impose “financial difficulties” on some members was too vague and unsupported for the court to conclude there was irreparable harm. Judge Gale also denied plaintiff's request to supplement or add to the submitted declarations, noting that the motion was filed a month before the hearing and plaintiff had not claimed an inability to provide evidentiary support for its motion in a timely fashion. In sum, he found, “[b]ecause Plaintiff has failed to present evidence sufficient to establish its ‘clear and unequivocal right to relief,’ the motion must fail.” Doc. 17 at 11.

Plaintiff contends the Magistrate's conclusion is inconsistent with the well-established...