Comprehensive Health of Planned Parenthood Great Plains v. Hawley

• Decision Date: 10 September 2018
• Docket Number: No. 17-1996,17-1996
• Citation: 903 F.3d 750
• Parties: COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD GREAT PLAINS, on behalf of itself, its patients, physicians and staff; Reproductive Health Services of Planned Parenthood of the St. Louis, on behalf of itself, its patients, physicians, and staff; Ronald Yeomans, on his own behalf and on behalf of his patients, Plaintiffs - Appellees, v. Josh HAWLEY, in his official capacity as Attorney General of the State of Missouri; Dr. Randall Williams, in his official capacity as Director of Department of Health and Senior Services, Defendants - Appellants, Daniel Knight, in his official capacity as Boone County Prosecutor ; Jean Peters Baker, in her official capacity as Jackson County Prosecutor ; Dan Patterson, in his official capacity as Green County Prosecutor; Theresa Kenney, in her official capacity as Jasper County Prosecutor Defendants. Foundation for Moral Law, Amicus on Behalf of Appellant(s). National Abortion Federation, Amicus on Behalf of Appellee(s). Eagle Forum Education and Legal Defense Fund, Amicus on Behalf of Appellant(s).
• Court: U.S. Court of Appeals — Eighth Circuit

903 F.3d 750

COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD GREAT PLAINS, on behalf of itself, its patients, physicians and staff; Reproductive Health Services of Planned Parenthood of the St. Louis, on behalf of itself, its patients, physicians, and staff; Ronald Yeomans, on his own behalf and on behalf of his patients, Plaintiffs - Appellees,

v. Josh HAWLEY, in his official capacity as Attorney General of the State of Missouri; Dr. Randall Williams, in his official capacity as Director of Department of Health and Senior Services, Defendants - Appellants,Daniel Knight, in his official capacity as Boone County Prosecutor ; Jean Peters Baker, in her official capacity as Jackson County Prosecutor ; Dan Patterson, in his official capacity as Green County Prosecutor; Theresa Kenney, in her official capacity as Jasper County Prosecutor Defendants.Foundation for Moral Law, Amicus on Behalf of Appellant(s).National Abortion Federation, Amicus on Behalf of Appellee(s).Eagle Forum Education and Legal Defense Fund, Amicus on Behalf of Appellant(s).

No. 17-1996

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2018

Filed: September 10, 2018

Counsel who presented argument on behalf of the appellants was Dean John Sauer, AAG, of Jefferson City, MO. The following attorney(s) appeared on the appellant brief; Emily Ann Dodge, AAG, of Jefferson City, MO, and Julie Marie Blake, AAG, Jefferson City, MO.

The following parties filed amicus curiae briefs in support of appellants: The Foundation for Moral Law, represented by John Eidsmoe of Montgomery, AL; The Eagle Forum Education & Legal Defense Fund, represented by Lawrence J. Joseph of Washington, DC.

Counsel who presented argument on behalf of the appellees was Melissa Ann Cohen, of New York, NY. The following attorney(s) appeared on the appellee brief; Arthur Benson, II, of Kansas City, MO, Jamie Kathryn Lansford, of Kansas City, MO, and Jennifer Sandman, of New York, NY.

The following attorneys appeared on an amicus brief in support of appellees filed by National Abortion Federation: Lisa M. Brown, Washington, DC, Jesse Ryan Loffler, Andrew Cashmore, Janice Mac Avoy and Jennifer L. Colyer of New York, NY.

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

SHEPHERD, Circuit Judge.

Invoking the Constitution to enjoin the laws of a state requires more than "slight implication and vague conjecture." Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162 (1810) (Marshall, C.J.). At a minimum, it requires adequate information and correct application of the relevant standard. Because we conclude that the preliminary injunction in this case was entered based on less than adequate information and an insufficient regard for the relevant standard, we vacate the preliminary injunction and remand.

I.

The roots of this case can be traced to 2007. That year, the Missouri legislature amended the statutory definition of "ambulatory surgery center" ("ASC") to include most facilities that performed abortions.¹ A number of consequences followed, two of which are at issue here. The first flows from statutory language. By law, all doctors who perform abortions at ASCs must be "privileged to perform surgical procedures in at least one licensed hospital in the community." Id. § 197.215.1(2). The implementing regulations have further refined the "in the community" requirement to mean a licensed hospital that is 15 minutes away. Mo. Code Regs. Ann. tit. 19, § 30-30.060 (1)(C)(4). We refer to this as the "Hospital Relationship Requirement."

The second consequence at issue flows from enacting regulations. The Missouri Department of Health and Senior Services ("DHSS") has delegated authority to enact health and safety regulations for abortion facilities. Mo. Rev. Stat. § 197.225.1. Pursuant to that authority, the DHSS has adopted a number of physical design and layout requirements specifically for facilities that perform surgical abortions. Mo. Code Regs. Ann. tit. 19, § 30-30.070(1) ("This regulation does not apply to abortion facilities that do not perform surgical abortions.").² We refer to these regulations collectively as the "Physical Plant Regulations." These requirements, however, are not fixed in stone. Instead, they are waivable upon written request. Id. § 30-30.070(2) ("Requests for deviations from requirements on physical facilities shall be in writing to the [DHSS]."). We refer to this specific provision as the "Waiver Provision." The record contains one instance in normal course where a minor request was made—and granted—for waiver from a single design requirement.

A.

This is not the first time these laws have been challenged. Prior to the current suit, Appellee Comprehensive Health of Planned Parenthood Great Plains ("Comprehensive Health") brought facial and as-applied challenges to the statutory classification of abortion facilities as ASCs almost immediately after the provision went into effect in 2007.³ Comprehensive Health succeeded in its as-applied challenge only. The district court enjoined the ASC statutory classification (and attendant requirements) for two facilities Comprehensive Health operated: one in Kansas City and one in Columbia.

Comprehensive Health and the State of Missouri settled the lawsuit in 2010 ("2010 Settlement"). The parties agreed to modifications of the requirements of the Physical Plant Regulations for the Columbia facility and a complete waiver of the requirements for the Kansas City facility. And Comprehensive Health agreed to release any claims "whether or not now known or contemplated" that are "based on or arising out of the allegations in Lawsuits relating to licensure of the Columbia and [Kansas City] Centers."

B.

The 2010 Settlement was not the last word, however. After the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, ––– U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665, as revised (June 27, 2016), Comprehensive Health sent a letter to DHSS calling both the Hospital Relationship Requirement and the classification of abortion facilities as ASCs "unconstitutional and unenforceable." It demanded that DHSS stop enforcing the provisions against Comprehensive Health facilities. This suit began shortly thereafter.

Unlike its initial suit, Comprehensive Health is joined here by Reproductive Health Services of Planned Parenthood of the St. Louis Region ("RHS"), and Dr. Ronald Yeomans—a gynecologist who wishes to provide abortions at Comprehensive Health facilities in Missouri. Together, Comprehensive Health and RHS represent every facility that provides or is seeking to provide abortions in Missouri: Comprehensive Health operates facilities in Kansas City and Columbia, and RHS operates a facility in St. Louis and has plans to operate in Springfield and Joplin. The complaint here sought declaratory and injunctive relief to roll back the 2007 amendment which classified (most) abortion facilities as ASCs. It also sought specific relief from the Hospital Relationship Requirement. Both the ASC classification and the Hospital Relationship Requirement were challenged on substantive due process and equal protection grounds.⁴

After evidentiary submissions and a brief hearing, the district court issued a slightly narrower preliminary injunction. It preliminarily enjoined enforcement of the Hospital Relationship Requirement—as well as certain associated criminal penalties for doctors who violate it—and the Physical Plant Regulations solely on substantive due process grounds. In doing so, it found that Hellerstedt"controls [its] ruling." Because of that, it refused to weigh any evidence of benefits of the provisions, likening Missouri’s advocacy on this front to an "attempt[ ] to undermine Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)."

Missouri now seeks to vacate the preliminary injunction.

II.

Our review of a preliminary injunction is layered: fact findings are reviewed for clear error, legal conclusions are reviewed de novo, and the "ultimate decision to grant the injunction" is reviewed for abuse of discretion. McKinney ex rel. NLRB v. S. Bakeries, LLC, 786 F.3d 1119, 1122 (8th Cir. 2015) (internal quotation marks omitted). In order to preliminarily enjoin state laws, a district court "must ... make a threshold finding that a party is likely to prevail on the merits." Planned Parenthood Minn., N. D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). Put another way, "without a likelihood of success, an injunction is not justified." Does v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017).

With this framework in mind, we proceed to review the district court’s injunction with regards to the Physical Plant Regulations and Hospital Relationship Requirement separately.

A.

Missouri first argues that the Physical Plant Regulations were improperly enjoined because the Appellees had not "ripened" their claims. Drawing on administrative law jurisprudence, they argue "[w]here a regulatory regime provides for variances, a constitutional challenge to those restrictions is not ripe until the challenger has sought—and been denied—a variance." So because none of the facilities run by Appellees had utilized the Waiver Provision, the district court’s injunction of the Physical Plant Regulations was improper.

The main case they cite in support of this argument— Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) —explicitly undercuts this point. There, it was noted that "facial challenges to regulation"—the only challenges at issue here—"are generally ripe the moment the challenged regulation or ordinance is passed." Id. at 736 n.10, 117 S.Ct. 1659. Missouri has not demonstrated why that general principle should not apply here.

In fact, it would make little sense to find an exception here. The constitutional question in this case turns on the law’s "effect ... on women seeking abortions." Hellerstedt, 136 S.Ct. at 2306 (alteration in original) (internal quotation marks omitted). It...