Burns v. Cline

• Court: Oklahoma Supreme Court
• Writing for the Court: WATT, J.
• Citation: Burns v. Cline, 2016 OK 121, 387 P.3d 348 (Okla. 2016)
• Decision Date: 13 December 2016
• Docket Number: Case Number: 114807
• Parties: Larry A. BURNS, D.O., on behalf of himself and his patients, Plaintiff/Appellant, v. Terry L. CLINE, in his official capacity as Oklahoma Commissioner of Health, Carl B. Pettigrew, D.O., in his official capacity as President of the Oklahoma State Board of Osteopathic Examiners, and Greg Mashburn, in his official capacity as District Attorney for Cleveland, Garvin and McClain Counties, Defendants/Appellees.

387 P.3d 348

2016 OK 121

Larry A. BURNS, D.O., on behalf of himself and his patients, Plaintiff/Appellant,

v.Terry L. CLINE, in his official capacity as Oklahoma Commissioner of Health, Carl B. Pettigrew, D.O., in his official capacity as President of the Oklahoma State Board of Osteopathic Examiners, and Greg Mashburn, in his official capacity as District Attorney for Cleveland, Garvin and McClain Counties, Defendants/Appellees.

Case Number: 114807

Supreme Court of Oklahoma.

Decided: December 13, 2016

J. Blake Patton, Oklahoma City, Oklahoma, for Appellant

Martha M. Hardwick, Pauls Valley, Oklahoma, for Appellant

Genevieve Scott, New York, New York, for Appellant

Sarah A. Greenwalt, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellees

M. Daniel Weitman, Office of the Attorney General, Oklahoma City, Oklahoma, for Appellees

WATT, J.:

¶ 1 This Court has been asked to consider the constitutionality of SB 1848, passed by the Legislature and signed into law by the Governor on May 28, 2014. The effective date of the legislation was November 1, 2014. This legislation contains one section with twelve separate and unrelated sub-sections, A to L. Under the guise of the protection of women's health, SB 1848 requires an abortion facility to have a physician on premises who also has hospital admission privileges within thirty miles of the facility, on any day an abortion is performed.¹ We reverse the district court's findings and hold the statute unconstitutional because it creates an undue burden on a woman's access to abortion, violating protected rights under our federal Constitution, Whole Woman's Health v. Hellerstedt , ("Hellerstedt "), 579 U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016) and also under the Oklahoma single subject rule, Okla. Const. art. 5, 57.

STANDARD OF REVIEW

¶ 2 We have authority to address the constitutionality of SB 1848 and acknowledge the heavy burden placed on those who raise constitutional challenges to legislation. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.3d 789. This Court favors a statutory construction that upholds the constitutionality of a statute. Oliver v. Hofmeister , 2016 OK 15, 368 P.3d 1270. However, all legislation is subject to constitutional and statutory limits. It is the duty of this Court to impartially review legislation and determine whether a statute conflicts with the Oklahoma Constitution, Burns v. Cline , 2016 OK 99, 382 P.3d 1048, or the federal Constitution, the highest law of this land. In re Initiative Petition No. 349, State Question 642, 1992 OK 122, 838 P.2d 1.

PROCEDURAL HISTORY

¶ 3 Burns appeals from the trial court's order (1) denying Burns' motion for partial summary judgment and (2) granting defendants' motion for summary judgment thereby denying all of Burns' requested declaratory and injunctive relief. This matter originates from Burns' petitioning the district court to declare SB 1848 void, asserting it violates the Oklahoma Constitution, and to permanently enjoin the State from enforcing the legislation.² Burns' concurrent request for immediate temporary injunctive relief was denied by the trial court. By a separate and prior appeal, Burns sought interlocutory relief from this Court. On November 4, 2014, this Court issued a Memorandum Opinion and "temporarily enjoin[ed] enforcement of [SB 1848] until the constitutionality of [SB 1848] is fully and finally litigated".³ The stay remains in effect.⁴

ANALYSIS

FEDERAL DUE PROCESS AND ABORTION

¶ 4 Burns identified multiple Oklahoma state constitutional challenges to SB 1848 in his district court petition. Before addressing the various state constitutional arguments of Burns and defendants, we must first acknowledge that SB 1848 is fatally flawed legislation under our federal Constitution and the recent pronouncements in Hellerstedt , supra.

¶ 5 Decisions from the United States Supreme Court are binding on this Court and require us to promulgate rules of law consistent with the federal Constitution. United States v. Home Fed. S. & L. Ass'n of Tulsa , 1966 OK 135, 418 P.2d 319, 325, Burns, supra. Where the United States Supreme Court has spoken, this Court is bound by its pronouncements. The Supremacy Clause of the United States Const. art. VI, cl. 2 provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of any State to the Contrary notwithstanding " (Emphasis added).

¶ 6 Furthermore, Okla. Const. Art. 1, 1 mandates that the Legislature and this Court comply with federal constitutional law on issues of federal law, stating:

The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.

¶ 7 It is mandatory that we uphold and comply with the highest law of this land. In re Initiative Petition No. 349, State Question 642, 1992 OK 122, 838 P.2d 1, 7. The limited role of this Court as with all state courts, "is to apply federal constitutional law, not to make it nor to guess what it may become. By virtue of our constitutional oath of office, we have solemnly sworn to uphold the Constitution of the United States." Id. (footnotes omitted).

¶ 8 Every woman in this country has a constitutionally protected right to choose whether to terminate her pregnancy before viability.⁵ This right is protected from undue interference from the State.⁶ Although the State has a legitimate interest in protecting the health of a woman, legislation may be found unconstitutional where the purpose or effect creates an undue burden or obstacle to a woman seeking a lawful abortion.⁷ The United States Supreme Court has been clear that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right."⁸

¶ 9 The Hellerstedt court recently reexamined these principles as applied to a provision in a Texas abortion statute that is substantively identical to SB 1848. A "State has a legitimate interest in seeing to it that abortion ... is performed under circumstances that insure maximum safety for the patient." Roe v. Wade , 410 U.S. at 150, 93 S.Ct. at 725. However, "a statute which while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Casey, 505 U.S. at 877, 112 S.Ct. at 2820, 120 L.Ed.2d at 674.

¶ 10 The Texas law examined in Hellerstedt had two offending provisions: 1) the "admitting privileges requirement", wherein physicians performing abortions were mandated to have active admitting-privileges at a hospital that was no more than 30 miles from the abortion facility, and 2) the "surgical center requirement", wherein abortion facilities had to meet minimum standards set for an ambulatory surgical center. Hellerstedt , supra. Each of these provisions were independently found to be unconstitutional. The provision relevant to the analysis of SB 1848, is the "admitting privileges requirement", which contains the same offending language as found in Hellerstedt.

¶ 11 Following the effective date of the Texas legislation at issue, the number of abortion facilities in that state dropped by half. The Hellerstedt court found that such a reduction created a significant burden on the right of women seeking abortion, affecting a woman's protected right to abortion prior to viability. Texas argued this new law satisfied federal constitutional principles because it advanced a legitimate state interest, to improve the safety of women seeking abortion. This argument fell flat in light of the record evidence consisting of national peer review studies and expert testimony. The Court concluded there was no significant health-related problem that the new law helped to cure.

¶ 12 In reaching this conclusion, the Hellerstedt court noted the evidence relied on included the following:

"A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications-including those complications requiring hospital admission was less than one-quarter of 1%. (citation to record omitted)

Figures in three peer-reviewed studies showing that the highest complication rate found for the much rare second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200). (citation to record omitted)

Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic.⁹

Expert testimony stating that ‘it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization’ and ‘in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.’ (citation to record omitted)

Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of these complications occur in the days after the abortion, not on the spot. (citation to record omitted)

Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as ‘abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.’ (citation to record omitted)

Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home. (citation to record omitted)". Hellerstedt , 579 U.S. ––––, 136 S.Ct. at 2311.

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