Jackson Women's Health Org. v. Currier

• Citation: 940 F.Supp.2d 416
• Decision Date: 15 April 2013
• Docket Number: Civil Action No. 3:12cv436–DPJ–FKB.
• Parties: JACKSON WOMEN'S HEALTH ORGANIZATION, et al., Plaintiffs v. Mary CURRIER, M.D., M.P.H., et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

940 F.Supp.2d 416

JACKSON WOMEN'S HEALTH ORGANIZATION, et al., Plaintiffs

v.Mary CURRIER, M.D., M.P.H., et al., Defendants.

Civil Action No. 3:12cv436–DPJ–FKB.

United States District Court,

S.D. Mississippi,

Jackson Division.

April 15, 2013.

Robert B. McDuff, Jacob W. Howard, McDuff & Byrd, Jackson, MS, Aaron S. Delaney, Paula Nicole Viola, Paul, Weiss, Rifkind, Whaton & Garrison, LLP, Lara Rabiee, Michelle Nicole Pallak Movahed, New York, NY, for Plaintiffs.

Paul E. Barnes, Beatryce McCrosky Tolsdorf, Mississippi Attorney General's Office, Claire Barker, City of Jackson, Jackson, MS, for Defendants.

ORDER

DANIEL P. JORDAN III, District Judge.

This matter is before the Court on Plaintiffs' Second Motion for Preliminary Injunction [46]. After the Court's July 13, 2012, 878 F.Supp.2d 714 (S.D.Miss.2012), Order granting in part Plaintiffs' original Motion for Preliminary Injunction, Plaintiffs unsuccessfully exhausted all available avenues to comply with Mississippi House Bill 1390 (“the Act”). As such, the State has indicated that it will revoke the Jackson Women's Health Organization's license following a hearing set for April 18, 2013. Plaintiffs now ask the Court to preliminarily enjoin the State from going forward with license-revocation proceedings. After considerable deliberation, the Court concludes that Plaintiffs are entitled to preliminary injunctive relief. The State will be enjoined from enforcing the admitting privileges portion of the Act.

I. Facts and Procedural History

The Act requires that all physicians associated with abortion clinics have admitting and staff privileges at a local hospital and be board certified in obstetrics and gynecology. At all relevant times, Jackson Women's Health Organization (“JWHO” or “the Clinic”) has been the only abortion clinic in the State of Mississippi, and only one of its doctors holds admitting privileges.That doctor has a separate, private OB/GYN practice and provides only minimal care at the Clinic. The two doctors providing the vast majority of the Clinic's abortions lacked admitting or staff privileges when the Act passed.

On June 27, 2012, Plaintiffs filed this lawsuit challenging the constitutionality of the Act against the head of the Mississippi Department of Health and the Hinds County District Attorney (collectively, for ease of reference, “the State”). That same day, Plaintiffs moved for a temporary restraining order to block the July 1, 2012 effective date of the Act. The Court entered a TRO on July 1, 2012, 2012 WL 2510953, ordered additional briefing, and set a hearing on Plaintiffs' first Motion for Preliminary Injunction for July 11, 2012. Following the hearing, the Court entered an order granting in part and denying in part the motion for preliminary injunction. The Court allowed the Act to take effect, required Plaintiffs to continue to seek admitting privileges, and enjoined Defendants from exposing Plaintiffs to civil or criminal penalties for continued operation while privileges were being sought.

On November 28, 2012, Plaintiffs filed their Second Motion for Preliminary Injunction, reporting that the two doctors who provide the majority of the care at the Clinic had applied for privileges at every local hospital. Two hospital refused to provide applications, and all others rejected the doctors' applications because they perform elective abortions. Pls.' Mot. [46] Ex. A at App. 6–11. As a result, the State sent the Clinic an official notice of hearing for revocation of the Clinic's license to operate an abortion facility. It later stated that no waivers would be granted, so the result of the hearing is a foregone conclusion. The State will close the Clinic.

Plaintiffs now request “that the Court enjoin all forms of enforcement of the Admitting Privileges Requirement” of the Act and “respectfully request that the Court resolve this matter before the [State] holds an administrative hearing on revocation of the Clinic's license.” Pls.' Mem. [47] at 2. Following an extended briefing period, the issues raised are now ripe for consideration.

II. Analysis

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain this relief, Plaintiffs must demonstrate four familiar requirements:

(1) [a] substantial likelihood of success on the merits; (2) [a] substantial threat that plaintiff[s] will suffer irreparable injury; (3) [that the] injury outweighs any harm the injunction might cause the defendant[s]; and (4) [that the] injunction is in the public interest.

Women's Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n. 15 (5th Cir.2001) (citing Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998)). The Court finds that JWHO has met its burden.

A. Substantial Likelihood of Success on the Merits

1. The Applicable Standards

The Court must construe statutes in a way that “avoid[s] constitutional doubts.” Stenberg v. Carhart, 530 U.S. 914, 941, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (citation omitted). In the abortion-regulation context, the United States Supreme Court has developed the following legal framework:

Before [fetal] viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” It also may not impose upon this right an undue burden, which exists if a regulation's “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 879, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).

Until recently, the State has agreed with JWHO that the Court must apply this undue-burden analysis. But now that the hospitals have denied admitting privileges, the State reverses course, contending that the “undue burden analysis is inapplicable.” Defs.' Mem. [54] at 12 (capitalization altered). Relying on Gonzales v. Carhart, the State asserts that “a mere rational basis review pertains when a court considers a legitimate health and safety regulation of abortion.” Id. at 13. This argument finds little support in Gonzales or other post-Casey opinions from the Supreme Court.

Casey reaffirmed the state's “legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” 505 U.S. at 846, 112 S.Ct. 2791. Yet contrary to the State's current position, the Supreme Court did not stop there, noting that “a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.” 505 U.S. at 877, 112 S.Ct. 2791 (emphasis added).

Though Casey was a plurality opinion, the United States Supreme Court has consistently applied the undue-burden test, even when finding that a disputed law was adopted with a rational purpose based on the state's legitimate interests. For example, in Gonzales, the case upon which the State relies, the Court observed:

Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.

550 U.S. at 158, 127 S.Ct. 1610 (emphasis added); see also Stenberg, 530 U.S. at 921, 120 S.Ct. 2597 (summarizing Casey's undue-burden standard as establishing that “ ‘a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability’ is unconstitutional” (quoting Casey, 505 U.S. at 877, 112 S.Ct. 2791)); see also Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 603 (6th Cir.2006) (rejecting rational-basis test in admitting-privileges context). In line with this precedent, the undue-burden test applies.

Having identified the controlling test, the Court next considers whether to apply it in an as-applied or facial context. The two are dramatically different. In a facial attack, a plaintiff ordinarily must demonstrate “that no set of circumstances exists under which [the Act] would be valid.” United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). It therefore comes as little surprise that regulations requiring admitting privileges have passed facial attacks in cases like Greenville Women's Clinic v. Bryant (Greenville I), 222 F.3d 157, 165 (4th Cir.2000). Indeed, this Act might survive a facial attack. But “[i]t is axiomatic that a statute may be invalid as applied to one state of facts and yet valid as applied to another.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (citation and quotations omitted).

Drawing this distinction is necessary because many of the State's arguments are built on cases addressing facial challenges. See, e.g., Defs.' Resp. [54] at 17 (noting cases holding that similar regulations “easily withstand a facial constitutional challenge”); see also id. at 29 (citing standards under facial challenge). Nevertheless, the State correctly informed the Court during oral argument that this is an as-applied challenge because the law affects only this clinic and will force its closure. See Hr'g Tr. at 48. ¹

2. As–Applied Constitutionality of the Act

The as-applied analysis in this case has proved shifty because the facts have evolved. When the matter was first presented in JWHO's Motion for Preliminary Injunction, JWHO had not yet applied for admitting privileges so its ability to comply was unknown. For...