Comprehensive Health of Planned Parenthood of Kan. v. Templeton

• Decision Date: 30 June 2013
• Docket Number: Civil Action No. 13–2302–KHV.
• Citation: 954 F.Supp.2d 1205
• Parties: COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS AND MID–MISSOURI, INC., and Orrin Moore, MD, Plaintiffs, v. Kimberly TEMPLETON, MD, President of the Kansas Board of Healing Arts, Robert Moser, MD, Secretary of the Kansas Department of Health and Environment, Derek Schmidt, Attorney General of the State of Kansas, and Stephen M. Howe, District Attorney for Johnson County, Kansas, in their official capacities, Defendants.
• Court: U.S. District Court — District of Kansas

954 F.Supp.2d 1205

COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS AND MID–MISSOURI, INC., and Orrin Moore, MD, Plaintiffs,

v.Kimberly TEMPLETON, MD, President of the Kansas Board of Healing Arts, Robert Moser, MD, Secretary of the Kansas Department of Health and Environment, Derek Schmidt, Attorney General of the State of Kansas, and Stephen M. Howe, District Attorney for Johnson County, Kansas, in their official capacities, Defendants.

Civil Action No. 13–2302–KHV.

United States District Court, D. Kansas.

June 30, 2013.

Arthur A. Benson, II, Jamie Kathryn Lansford, Arthur Benson & Associates, Kansas City, MO, for Plaintiffs.

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

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On June 20, 2013, plaintiffs Comprehensive Health of Planned Parenthood of Kansas and Mid–Missouri, Inc. (“Planned Parenthood”) and Dr. Orrin Moore filed suit against Kansas state officials, challenging the constitutionality of certain provisions of recently enacted H.B. 2253, 85th Leg., Reg. Sess. (Kan. 2013) (the “Act”). This matter is before the Court on Plaintiffs' Motion For A Preliminary Injunction And Temporary Restraining Order (Doc. # 9) filed June 24, 2013.

On June 26, 2013, the Court held a hearing on plaintiffs' motion. All parties appeared through counsel. Given the abbreviated time between the filing of the motion and the hearing, the Court did not focus on the label but referred generically (and without objection) to the hearing as one for a temporary restraining order. As further explained below, however, the proceedings were in the nature of a preliminary injunction hearing. Having thoroughly reviewed the record and analyzed the applicable law, the Court overrules plaintiffs' motion for preliminary injunction.

I. Factual BackgroundA. The Challenged Statutory Provisions

Current Kan. Stat. Ann. § 65–6709 provides that “[n]o abortion shall be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced,” and sets forth requirements for voluntary and informed consent. On April 19, 2013, the Governor signed H.B. 2253 (the “Act”) into law. See Ex. A to Complaint (Doc. # 1). Section 14 of the Act amends Section 6709 to require, as a condition of informed consent, that

[a]ny ... facility or clinic in which abortions are performed that has a website shall publish an easily identifiable link on the homepage of such website that directly links to the department of health and environment's website that provides informed consent materials under the woman's-right-to-know act. Such link shall read: “The Kansas Department of Health and Environment maintains a website containing objective, nonjudgmental, scientifically accurate information about the development of the unborn child, as well as a video of sonogram images of the unborn child at various stages of development. The Kansas Department of Health and Environment's website can be reached by clicking here.”

Act § 14 (to be codified at Kan. Stat. Ann. § 65–6709( l )) (“the website provision”) (Ex. A at 10).¹ Section 14 of the Act also amends Section 6709 to require, as a condition of informed consent, that a patient be provided a written statement at least 24 hours in advance of the abortion procedure that states:

by no later than 20 weeks from fertilization, the unborn child has the physical structures necessary to experience pain. There is evidence that by 20 weeks from fertilization unborn children seek to evade certain stimuli in a manner that in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are 20 weeks from fertilization or older who undergo prenatal surgery.

Act § 14 (to be codified at Kan. Stat. Ann. § 65–6709(b)(6)) (“the fetal pain provision”) (Ex. A at 8–9).²

Under existing Kansas statutes, a physician who performs an abortion without a woman's valid consent, as required by Kan. Stat. Ann. § 65–6709, commits unprofessional conduct and faces significantlicensing penalties. SeeKan. Stat. Ann. §§ 65–2836(b), (f), (k); 65–2837(b); 65–2864. See alsoKan. Admin. Regs. § 100–6–1. An act of unprofessional conduct also exposes a physician to prosecution for a misdemeanor and monetary penalties for each separate offense. See Kan. Stat. Ann. § 65–2862. A licensed ambulatory surgical center must report to the Kansas Board of Healing Arts when a physician has acted in a manner which may be grounds for disciplinary action. SeeKan. Stat. Ann. §§ 65–2821(a); 65–4921; 65–4923(a)(2). Failure to report a physician's unprofessional conduct carries penalties against the medical facility, including possible licensure suspension, revocation or limitation by KDHE, as well as civil and criminal penalties. SeeKan. Stat. Ann. §§ 65–4927(b), (c); 65–28,121(a), (c); 65–430.

B. Background Facts Regarding Plaintiffs' Services³

Planned Parenthood, a not-for-profit corporation, provides abortion services at its licensed ambulatory surgical center in Overland Park, Kansas. Plaintiff Orrin Moore, M.D. is a Board Certified obstetrician and gynecologist licensed to practice medicine in Kansas. Dr. Moore is the Medical Director of Planned Parenthood and its primary abortion care provider.

Approximately 90 per cent of abortions performed at Planned Parenthood terminate a pregnancy in the first trimester, i.e. through 13 weeks LMP. ⁴ Approximately 99 per cent of the abortions terminate pregnancies that are no later than 20 weeks LMP (no later than 18 weeks from fertilization). Plaintiffs assert that they maintain a close, confidential relationship with their patients, who seek to keep private their pregnancy and health care. In addition to abortion services, Planned Parenthood provides a range of other reproductive health care.

Planned Parenthood maintains a public website ⁵ to convey information about its services, reproductive health information and educational or training opportunities. In 2012, the website received 46,500 visits from 28,900 visitors. Some visitors are patients (both abortion and non-abortion patients). Plaintiffs comply with all current statutory requirements relating to informed consent for abortion, including that an abortion patient, at least 24 hours in advance of the procedure, be informed in writing that state-created materials are available in printed form and on line that “describe the unborn child, list agencies which offer alternatives to abortion with a special section listing adoption services and list providers of free ultrasound services,” Kan. Stat. Ann. § 65–6709(b)(2), and be given the state-created materials, see id. § 65–6709(d). As required by current law, Kan. Stat. Ann. § 65–6710(b), KDHE maintains a website ⁶ that contains the government's viewpoint about what materials and statements a woman should consider prior to having an abortion, including numerous statements about a fetus.C. The Lawsuit

Plaintiffs filed this action under 42 U.S.C. § 1983, challenging provisions of the Act and of existing law under the First and Fourteenth Amendments. First, plaintiffs contend that by compelling Planned Parenthood to unwillingly place on its public website a hyperlink to a government website, and deliver a scripted government message endorsing information on the government's website, the Act ⁷ violates its free speech rights under the First Amendment, as applied through the Fourteenth Amendment. Second, plaintiffs challenge the requirement that Dr. Moore communicate to every abortion patient (a) irrelevant and misleading statements related to whether a fetus at or no later than 20 weeks post-fertilization can feel pain,⁸ and (b) the government's ideological message that a woman's “abortion will terminate the life of a whole, separate, unique, living human being.” ⁹ Plaintiffs claim that the Act and existing law violate Dr. Moore's free speech rights under the First Amendment, as applied through the Fourteenth Amendment. Third, plaintiffs assert that by preventing a woman from having an abortion unless plaintiffs engage in impermissible compelled public speech and make statements to patients seeking abortions that are untruthful, misleading, and/or not relevant to those women, the Act and existing Kan. Stat. Ann. § 65–6709(b) violate the rights of plaintiffs' patients under the Fourteenth Amendment.

Plaintiffs seek injunctive relief which enjoins defendants from (1) enforcing the two challenged provisions in Section 14 of the Act and (2) taking any action for violations of the challenged provisions.¹⁰

Defendants respond that plaintiffs have failed to make the requisite clear showing of any of the traditional requirements for the extraordinary equitable relief of a temporary restraining order.¹¹ They ask the Court to overrule the motion and instead set a litigation schedule to accomplish a speedy final resolution on the merits.

II. Legal Standards

To obtain a preliminary injunction, plaintiffs must show (1) a substantial likelihood that they will prevail on the merits, (2) they will suffer irreparable injury unless the motion is granted; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) the injunction, if issued, would not be adverse to the public interest.¹²O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1177 (10th Cir.2003); Utah v. Babbitt, 137 F.3d 1193, 1200 n. 7 (10th Cir.1998). Whether to grant a preliminary injunction rests within the Court's sound discretion. Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir.2009). And because it is an extraordinary remedy, the right to relief must be clear and unequivocal. Id.

Federal Rule of Civil Procedure 65 addresses procedural issues...