EMW Women's Surgical Ctr. v. Friedlander
| Docket Number | CIVIL ACTION NO. 3:19-CV-00178-DJH |
| Decision Date | 16 March 2022 |
| Citation | 591 F.Supp.3d 205 |
| Parties | EMW WOMEN'S SURGICAL CENTER, P.S.C., et al., Plaintiffs v. Eric FRIEDLANDER, et al., Defendants |
| Court | U.S. District Court — Western District of Kentucky |
Brigitte A. Amiri, Pro Hac Vice, Jennifer E. Dalven, Pro Hac Vice, Rachel Reeves, American Civil Liberties Union Foundation, New York, NY, Leah Godesky, Pro Hac Vice, O'Melveny & Meyers LLP, New York, NY, Heather L. Gatnarek, ACLU of Kentucky, Louisville, KY, Michele Henry, Craig Henry PLC, Louisville, KY, Kendall Kelly Alexis Turner, O'Melveny & Myers LLP, Washington, DC, for Plaintiffs EMW Women's Surgical Center, P.S.C., Ernest Marshall, M.D.
Catherine E. York, Wesley W. Duke, Kentucky Cabinet for Health and Family Services, Frankfort, KY, for Defendant Eric Friedlander.
Over the last few years, state legislatures have passed countless abortion regulations. The constitutionality of these regulations is being challenged in federal courts across the United States. Kentucky is no exception. In March of 2019, Plaintiffs EMW Women's Surgical Center, P.S.C., et al., filed the present action against state officials, seeking to enjoin implementation and enforcement of two Kentucky bills regulating a physician's ability to perform abortions: House Bill 5 and Senate Bill 9.
At issue currently is Plaintiffs’ request that the case be stayed while several similar cases in other courts are fully adjudicated. (DN 68). Defendant Eric Friedlander, Secretary of Kentucky's Cabinet for Health and Family Services ("Defendant Friedlander"), consents to Plaintiffs’ Motion to Stay. (See DN 68-1, at PageID # 731, n. 1). Intervening Defendant Commonwealth of Kentucky ex rel. Attorney General Daniel Cameron ("the Commonwealth") consents only to Plaintiffs’ claims against Senate Bill 9 being stayed until the Supreme Court renders its decision in Dobbs v. Jackson Women's Health. (DN 69). The Commonwealth opposes Plaintiffs’ requested stay as to their claims against House Bill 5 and asks the Court to immediately proceed with the litigation. (Id. ).
Almost two months after Plaintiffs’ Motion to Stay was fully briefed (DN 70), the Commonwealth filed a Notice of Supplemental Authority related to Plaintiffs’ Motion to Stay (DN 71). Plaintiffs responded to this filing (DN 72), and the time for the Commonwealth to reply has expired.
Plaintiffs have relatedly requested that if the Court denies their Motion to Stay, they be given thirty days from such denial to file their response to the Commonwealth's pending Motion to Dissolve Temporary Restraining Order. (DN 74). The Commonwealth opposes this extension. (DN 74).
These matters have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A).1 (DN 62). Based on the following analysis, Plaintiffs’ Motion to Stay (DN 68) is granted in part and denied in part, and Plaintiffs’ Motion for Extension of Time (DN 74) is granted.
This case concerns the constitutionality of two bills the Kentucky Legislature passed in 2019 that regulate abortion. The first, House Bill 5 ("HB 5") or the "Reason Ban," was passed on March 12, 2019. It prohibits physicians and other medical professionals from performing abortive procedures if he or she:
H.R. 5, 2019 Reg. Sess. (Ky. 2019). A physician found in violation of this Bill will have their state license to practice medicine revoked and will be liable in a civil action for compensatory and punitive damages. Id.
The second, Senate Bill 9 ("SB 9"), was passed one day after HB 5 and prohibits physicians or other individuals from performing abortive procedures where a fetal heartbeat has been detected. S. 9, 2019 Reg. Sess., (Ky. 2019). Where a physician violates this law, the woman on whom the abortion was performed may file a civil action for the wrongful death of her unborn child. S. 9, 2019 Reg. Sess., (Ky. 2019). Former Kentucky Governor, Matt Bevin, promptly signed both bills.
On the day HB 5 passed, Plaintiffs, EMW Women's Surgical Center and Ernest Marshall, an owner and medical provider at EMW, filed this action challenging the Bill's constitutionality.2 (DN 1). Plaintiffs allege HB 5 substantively violates due process and is void for vagueness. Plaintiffs amended their complaint one day later, adding a substantive due process challenge to SB 9. (DN 5). Within a week, the Court entered temporary restraining orders for each bill, barring enforcement of HB 5 and SB 9 for a period of fourteen days. (DN 14; DN 21).
In granting the temporary restraining order for HB 5, the Court cited two similar state laws currently under review by federal courts. (DN 21). The first was Indiana's "Non-Discrimination Provision," challenged in Planned Parenthood of Ind. & Ky. v. Comm'r of the Ind. State Dep't of Health , 888 F.3d 300, 307 (7th Cir. 2018). The second was Ohio's "Down Syndrome Ban," challenged in Preterm-Cleveland v. Himes , 294 F. Supp. 3d 746, 755 (S.D. Ohio 2018). The Court noted that both cases rejected the state's argument that a woman does not have "the right to decide whether to have a particular child." (DN 21, at PageID # 256 (quoting Preterm-Cleveland , 294 F. Supp.3d at 755 )). Based on these cases and binding Supreme Court precedent from Roe v. Wade and Planned Parenthood v. Casey , the Court found Plaintiffs’ challenges to HB 5 were likely to succeed. (Id. at PageID # 256-57).
Rather than advancing to preliminary injunction proceedings, the parties agreed to extend the Court's temporary restraining orders "through the date of final ruling in this case." (DN 32). The Court issued a briefing schedule on April 17, 2019, requiring Plaintiffs to file an "initial brief in support of the relief sought by their amended complaint within forty-five days[.]" (DN 35). The Order noted that it might authorize limited discovery on discrete factual issues after the legal issues were briefed. (Id. ). Plaintiffs subsequently moved for summary judgment (DN 36), which Defendant Meier opposed (DN 42).
In January of 2020, the Commonwealth of Kentucky, through Attorney General Daniel Cameron, sought to intervene in the case. (DN 53). Two months later, the Court administratively remanded Plaintiffs’ summary-judgment motion pending the Sixth Circuit's resolution of Preterm-Cleveland v. Himes. As mentioned above, the Court cited to the district court's decision in Preterm-Cleveland when granting Plaintiffs’ temporary restraining order. (DN 59). On November 30, 2020, the Court granted the Commonwealth's Motion to Intervene, directing its answer be filed in the record, and substituting Eric Friedlander, in his official capacity as Secretary of Kentucky's Cabinet for Health and Family Services, for Defendant Meier. (DN 60).
The Sixth Circuit issued its en banc ruling in Preterm-Cleveland on April 13, 2021. The District Judge thereafter referred this case to the undersigned for a status conference. (DN 62). Following the call, Plaintiffs filed the instant motion to stay this case until three cases that "could impact" their challenges to HB 5 and SB 9 are decided.3 (DN 68). These cases are: Dobbs v. Jackson Women's Health Organization , pending before the United States Supreme Court; Little Rock Family Planning Services v. Rutledge , on petition for writ of certiorari by the United States Supreme Court; and Memphis Center for Reproductive Health v. Slatery , pending rehearing en banc at the Sixth Circuit.
After Plaintiffs’ Motion to Stay was fully briefed, the Commonwealth filed a Notice of Supplemental Authority, calling attention to the Sixth Circuit's February 4, 2022 Order in Slatery. (DN 71). On the same day he filed the Notice of Supplemental Authority, the Commonwealth also filed a Motion to Dissolve the Court's Temporary Restraining Order as to HB 5. (DN 72). Exactly one month later, the Commonwealth filed an "Emergency Motion for Ruling and/or Hearing" on its Motion to Dissolve the Court's Temporary Restraining Order as to HB 5. (DN 76).
Though not "currently pending," the Court begins with Preterm-Cleveland v. Himes. As noted above, this Court considered the Southern District of Ohio's decision in Preterm-Cleveland when granting the temporary restraining order as to HB 5. In Preterm-Cleveland , the plaintiffs challenged Ohio's "Down Syndrome Ban," which prohibits any person from performing or inducing performance of an abortion if they have knowledge that the pregnant woman is seeking the abortion in whole or in part because of a belief or diagnosis that the fetus has Down Syndrome. The district court preliminarily enjoined enforcement of Ohio's Down Syndrome Ban. 294 F. Supp. 3d 746, 755 (S.D. Ohio 2018).
Several months after this Court temporarily restrained enforcement of HB 5, a three-judge panel at the Sixth Circuit affirmed the Southern District of Ohio's preliminary injunction. Preterm-Cleveland v. Himes , 940 F.3d 318 (6th Cir. 2019). But on rehearing en banc the Sixth Circuit reversed, finding plaintiffs were not likely to succeed on the merits of their claim and that the state offered legitimate interests in support of the law. Preterm-Cleveland v. McCloud , 994 F.3d 512 (6th Cir. 2021) (en banc).
Moving to the cases Plaintiffs claim could impact their challenges to HB 5, the first is Dobbs v. Jackson Women's Health Organization. At issue in Dobbs is the constitutionality of a 2018 Mississippi law that banned abortion operations after the first fifteen weeks of pregnancy. Applying the Supreme Court's landmark decisions in Roe v....
To continue reading
Request your trial