FemHealth USA, Inc. v. City of Mount Juliet
| Decision Date | 01 May 2020 |
| Docket Number | No. 3:19-cv-01141,3:19-cv-01141 |
| Parties | FEMHEALTH USA, INC., Plaintiff, v. CITY OF MOUNT JULIET, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Devon W. Edwards, Elizabeth P. Gray, Heather M. Schneider, Sruti Swaminathan, Tara L. Thieme, Vanessa Richardson, Willkie Farr & Gallagher LLP, New York, NY, Thomas H. Castelli, Andrew Beck, American Civil Liberties Union Foundation, Nashville, TN, for Plaintiff.
Cassandra M. Crane, Kristin Ellis Berexa, Mark Ennis McGrady, Farrar & Bates, LLP, Nashville, TN, for Defendants.
Pending before the Court is Plaintiff FemHealth USA, Inc. d/b/a carafem ("Carafem")’s Amended Motion for Preliminary Injunction (the "Motion"), filed on February 13, 2020. (Doc. No. 37). Via the Motion, Plaintiff requests that the Court preliminarily enjoin Defendants, the City of Mt. Juliet ("Mt. Juliet" or the "City") and the named City officials sued in their official capacity, from enforcing Ordinances 2019-16 (the "Ordinance") and 2020-8 (the "Amendment"), which prevent Plaintiff from performing surgical abortions in its current location. Defendants responded in opposition to the Motion, (Doc. No. 43), and Carafem replied. (Doc. No. 50). The parties mutually agreed that the Motion may be decided on the briefing without an evidentiary hearing. (Doc. No. 40). The Court likewise agrees, having considered the Motion, its accompanying memorandum of law and the attachments thereto (Doc. Nos. 37 & 38), Defendants’ response, and Defendants’ declarations filed simultaneously with their response. For the reasons discussed below, Carafem's Amended Motion for Preliminary Injunction will be granted.
Carafem is a nonprofit organization that offers women's reproductive health services, including information and low-cost options for people seeking abortion care, methods of birth control, and testing for sexually-transmitted infections. Carafem operates a network of health centers, including the clinic in Mt. Juliet, Tennessee at issue here.2 The Mt. Juliet Carafem is located in the Providence Medical Pavilion, a commercial property which leases medical office space to several health care providers and specialists. The Providence Medical Pavilion houses several other medical clinics in addition to Carafem, including inter alia multiple obstetrics and gynecology offices, an ambulatory surgery center, and a neurosurgery suite.
When Carafem opened its doors in Mt. Juliet on March 1, 2019, it became the only abortion clinic within the city limits of Mt. Juliet, Tennessee.3 At that time, Carafem provided medication abortions4 to women up to 10 weeks from their last menstrual period. While Carafem offered only medication abortions after the Mt. Juliet clinic opened, it announced in a February 28, 2019 press release that it planned to expand its services to include a second form of abortion, aspiration abortion, shortly thereafter.
In the first trimester of pregnancy, there are two alternative abortion methods: medication abortion and aspiration abortion. For a medication abortion, the patient ingests two pills and passes the pregnancy at home over the course of several hours or days. Not all patients are candidates for medication abortion. Medication abortion is available to women only up to 11 weeks from their last menstrual period. Medication abortion is also unsuitable for patients who have medical contraindications.
The alternative method, aspiration abortion—a type of surgical abortion—is the most common method of first-trimester abortion, involving the use of suction to empty the contents of the uterus. Aspiration abortion can be provided up to approximately 15 weeks following the last menstrual period.
Immediately after Carafem opened, numerous Mt. Juliet officials publicly expressed their opposition to Carafem's presence in Mt. Juliet, publishing the following statements:
Two days after Carafem opened, the Mt. Juliet Board of Commissioners (the "Board") held a special meeting at which it introduced Ordinance 2019-16 (the "Ordinance"). The meeting lasted five minutes and involved only the first reading of the Ordinance. The Ordinance went before the Mt. Juliet Planning Commission on March 21, 2019, and the planning commission recommended approval. The City Commission approved the Ordinance on second reading on March 25, 2019 and on third reading on April 8, 2019.
The Ordinance modified the City's zoning restrictions by amending Part B of the Unified Development Code of the City of Mt. Juliet. Specifically, the Ordinance limited the location of Surgical Abortion Clinics—defined as "any entity, place or building in which surgical activity is primarily conducted or aimed toward terminating pregnancy, otherwise known as abortion as defined at Tenn. Code Ann. § 39-15-201"—to industrial zones I-G and I-S. (Doc. No. 38-8). The Ordinance also stated that no Surgical Abortion Clinic could "be located within 1,000 feet (measured property line to property line) of any church, public or private school ground, college campus, public park or recreation facility, public library, childcare facilities, or a lot zoned residentially or devoted primarily to residential use [hereinafter, "specified locations"]." (Id. ).
But the Ordinance's ostensible authorization for Surgical Abortion Clinics to locate at least somewhere within Mt. Juliet was entirely illusory. There is no land in Mt. Juliet zoned I-S, and the only two areas in Mt. Juliet currently zoned I-G are within either 1000 feet from a lot zoned for residential use or a church. Therefore, pursuant to the Ordinance, there was no land in Mt. Juliet where a Surgical Abortion Clinic could be located.
Carafem filed its original complaint in this action on December 18, 2019. (Doc. No. 1). Defendants contend that they did not realize that the Ordinance prevented Carafem from performing surgical abortions at any location in Mt. Juliet until after they reviewed the allegations in the Complaint. In any event, whether or not this was in fact a new revelation as Defendants claim, in January 2020 the Board introduced and passed Ordinance 2020-8 (the "Amendment"), amending the Ordinance. The Amendment revises the Ordinance in three relevant respects: (1) it reduces the distance restriction in the Ordinance; (2) it modifies how distances are measured, so that some parcels in the areas zoned I-G would now comply with the 1000 foot distance barrier between the clinic and the specified locations; and (3) it adds a rational for enacting the regulation regarding Surgical Abortion Clinics. (Doc. No. 38-10). The pertinent language was modified as follows (with the bolded and underlined language being added to the remaining original text, which is set forth in regular typeface):
No establishment shall be located within1000200 feet(measured property line to property line)of any church, public or private school, collegecampus, public park or public recreation facility, public library, child care facility, or a single family residential home. Distance will be measured along the shortest drivable route from the center of the main entrance (i.e. front door) of one location to the center of the main entrance (i.e. front door) of the other location. After permitting of the establishment, any protected use that comes within the protected area of the establishment will not affect the establishment's ability to continue operations.
(Id. ). Additionally, the Amendment added that the purpose of the new zoning regulations is to "promot[e] the health, safety and welfare of not only those seeking to utilize the services of a surgical abortion clinic but also to preserve the City's economic growth and shift protests to a less densely populated area." (Doc. No. 38-10).
Currently, Carafem is located in a commercial interchange ("C-I") zoning district. Under Mt. Juliet's zoning code, C-I districts permit "Professional Services, Medical,"—which includes...
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...777 (M.D. Tenn. 2020). In that case, an ordinance prevented a nonprofit entity from performing surgical abortions at its current location. Id. at 797. Applying the undue framework, the Court expressed that there was no evidence showing the relationship between the purported benefit to the s......
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