Hopkins v. Jegley

• Decision Date: 28 July 2017
• Docket Number: Case No. 4:17–cv–00404–KGB
• Citation: 267 F.Supp.3d 1024
• Parties: Frederick W. HOPKINS, M.D., M.P.H., Plaintiff v. Larry JEGLEY, Prosecuting Attorney for Pulaski County, Steven L. Cathey, M.D., Chair of the Arkansas State Medical Board; Robert Breving, Jr., M.D.; Bob E. Cogburn, M.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder; Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; John B. Weiss, M.D., officers and members of the Arkansas State Medical Board, and their successors in office, in their official capacity, Defendants
• Court: U.S. District Court — Eastern District of Arkansas

267 F.Supp.3d 1024

Frederick W. HOPKINS, M.D., M.P.H., Plaintiff

v.Larry JEGLEY, Prosecuting Attorney for Pulaski County, Steven L. Cathey, M.D., Chair of the Arkansas State Medical Board; Robert Breving, Jr., M.D.; Bob E. Cogburn, M.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder; Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; John B. Weiss, M.D., officers and members of the Arkansas State Medical Board, and their successors in office, in their official capacity, Defendants

Case No. 4:17–cv–00404–KGB

United States District Court, E.D. Arkansas, Western Division.

Filed July 28, 2017

Bettina E. Brownstein, Betinna E. Brownstein Law Firm, Little Rock, AR, Hillary A. Schneller, Center for Reproductive Rights, Pro Hac Vice, Elizabeth K. Watson, Ruth E. Harlow, Pro Hac Vice, Susan Talcott Camp, American Civil Liberties Union, New York, NY, for Plaintiff.

Jennifer L. Merritt, Nicholas Jacob Bronni, Michael Cantrell, Arkansas Attorney General's Office, Monty Vaughan Baugh, Monty V. Baugh, PLC, Little Rock, AR, for Defendants.

PRELIMINARY INJUNCTION ORDER

Kristine G. Baker, United States District Judge

Plaintiff, Frederick W. Hopkins, M.D., M.P.H., files this suit pursuant to 42 U.S.C. § 1983 against defendants Larry Jegley, Prosecuting Attorney for Pulaski County; Steven L. Cathey, M.D., Chair of the Arkansas State Medical Board; and Robert Breving, Jr., M.D.; Bob Cogburn, J.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder, Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; and John B. Weiss, M.D., as officers and members of the Arkansas State Medical Board in their official capacities. Dr. Hopkins mounts a constitutional challenge to four acts of the 91^st Arkansas General Assembly of 2017, Act 45 (H.B. 1032) ("D & E Mandate"), Act 733 (H.B. 1434) ("Medical Records Mandate"), Act 1018 (H.B. 2024) ("Local Disclosure Mandate"), and Act 603 (H.B. 1566) ("Tissue Disposal Mandate"), to be codified at Arkansas Code Annotated §§ 20–16–1801 to 1807, 20–16–1801 to 1810, 12–18–108(a)(1), and 20–17–801 to 802, respectively.¹ By its terms, H.B. 1434 takes effect January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, are set to take effect on or about July 30, 2017.

Before the Court is Dr. Hopkins's motion for preliminary injunction or in the alternative temporary restraining order (Dkt. No. 2). Dr. Hopkins seeks preliminary injunctive relief based on the following claims in his complaint: Count 1 based on the D & E Mandate, Counts III and IV based on the Medical Records Mandate, Counts VI and VIII based on the Local Disclosure Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that "[t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients' constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information." (Dkt. No. 1, at 3, ¶ 9). He seeks declaratory and injunctive relief "[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm...." (Dkt. No. 1, at 3, ¶ 9). Defendants responded in opposition to the motion (Dkt. No. 23). Dr. Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of supplemental authority (Dkt. Nos. 31, 34).

The Court conducted a hearing on the motion on July 13, 2017. The parties agreed among themselves not to present additional evidence at the hearing but instead to present only argument, and the Court agreed to hear only argument. For the following reasons, the Court grants Dr. Hopkins's motion for preliminary injunction.

I. Findings of Fact

1. Dr. Hopkins is a board-certified obstetrician-gynecologist with 25 years of experience in women's health. He is licensed to practice medicine in Arkansas, as well as other states including California and New Mexico. For over five years, Dr. Hopkins has been both Co-Director of the Family Planning Training Program at Santa Clara Valley Medical Center in Santa Clara, California, and Associate Clinical Professor in obstetrics and gynecology at Stanford University School of Medicine in Palo Alto, California (Dkt. No. 5, ¶ 1).

2. Earlier in 2017, Dr. Hopkins began providing care at Little Rock Family Planning Services in Little Rock, Arkansas (Dkt. No. 5, ¶ 1).

3. At Little Rock Family Planning Services, Dr. Hopkins provides care that includes medication abortion in the early part of the first trimester and surgical abortion through 21 weeks and six days as measured from the woman's last menstrual period ("LMP"), which is referred to as "21.6 weeks LMP" (Dkt. No. 5, ¶ 2; Dkt. No. 6, ¶ 2).

4. Dr. Hopkins provides abortion and miscarriage services for patients from young teenagers to women in their later reproductive years (Dkt. No. 5, ¶ 2).

5. Dr. Hopkins has performed work in Kenya, Tanzania, and Zimbabwe. As a result of that work, he has seen firsthand the results of denying women access to safe abortion care (Dkt. No. 5, ¶ 3).

6. There are only two entities providing abortion care in Arkansas: Little Rock Family Planning Services, which provides abortions through 21.6 weeks LMP, and Planned Parenthood Great Plains, which provides only medication abortion through 10 weeks LMP in Little Rock and Fayetteville, Arkansas (Dkt. No. 5, ¶ 6; Dkt. No. 6, ¶ 2).

7. If hospitals in Arkansas are providing any abortion care, it is in only rare circumstances (Dkt. No. 5, ¶ 6).

8. Under current Arkansas law, a woman must first receive state-mandated counseling, in person at the clinic before having an abortion. See Ark. Code Ann. § 20–16–1703(b)(1), (2). A woman must then wait 48 hours after that state-mandated counseling before she returns to the clinic for her procedure (Dkt. No. 5, ¶ 7; Dkt. No. 6, ¶ 7).

9. Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care up to 18.0 weeks LMP, the law requires at least two trips to the clinic (Dkt. No. 6, ¶ 7).

10. According to Dr. Hopkins, the state-mandated counseling and 48–hour waiting period can result in a delay longer than 48 hours for many patients (Dkt. No. 5, ¶ 7).

11. Women must consider whether they have someone to accompany them to the clinic. The support person's availability may impact when a woman is able to return, after the mandatory delay, to receive medical care (Dkt. No. 6, ¶ 7).

12. Little Rock Family Planning Services provides care to women from throughout Arkansas and from other states (Dkt. No. 5, at 37; Dkt. No. 6, ¶ 5).

13. Many patients of Little Rock Family Planning Services are low-income. Approximately 30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5).

14. Many patients of Little Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No. 6, ¶ 5).

15. The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little Rock Family Planning Services. Women must arrange for time off work on multiple days, which can be very difficult given that many are in low-wage jobs and feel that they cannot explain to an employer the reason they need to take time off. For women who already have children, these women must arrange and often pay for childcare. These women also must arrange and pay for transportation. In some cases, these women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

16. Patients of Little Rock Family Planning Services seek abortions for a variety of personal, medical, financial, and family reasons, including that the woman has one child but believes she cannot parent another; that the woman believes she is too young to be ready to carry a pregnancy or to become a parent; that the woman is pursuing educational or work opportunities; that the woman has a health condition that makes carrying a pregnancy dangerous; that the woman has received a diagnosis of fetal abnormality; that the woman is in an abusive relationship; and that the woman is pregnant as a result of rape or sexual assault (Dkt. No. 6, ¶ 6).

17. Many patients of Little Rock Family Planning Services are desperate not to disclose the reasons for travel and appointments to seek abortion care (Dkt. No. 6, ¶ 8).

18. Approximately 30% of all women have an abortion at some point in their lives (Dkt. No. 4, ¶ 7).

19. Abortion in the first and second trimester, utilizing current methods, is safer than carrying a pregnancy to term, as to both morbidity and mortality (Dkt. No. 4, ¶ 8; Dkt. No. 32–1, ¶ 5).

20. The first trimester of pregnancy goes to approximately 14 weeks LMP (Dkt. No. 5, ¶ 8).

21. Nationwide, approximately 90% of abortions occur during the first trimester of pregnancy (Dkt. No. 5, ¶ 8).

22. In Arkansas, approximately 83% of abortions occur during the first trimester of pregnancy (Id. ).

23. During the first trimester, there are two methods of abortion (Dkt. No. 4, ¶ 11–12; Dkt. No. 5, ¶ 9).

24. As for the first method used during the first trimester, a clinician may use medications to induce an early miscarriage. This method is called early medication abortion. It is generally available only through part of the first trimester of pregnancy, and it is not available in the last weeks of the first trimester of pregnancy. In the most common method of early medication abortion, a woman takes two drugs: first mifepristone

and then, the next day, misoprostol. Within 24 to 48 hours of taking the second drug, the woman likely will pass the products of conception, not in a medical facility but in a location that is most comfortable for her, usually her...