June Med. Servs., L.L.C. v. Gee, 16–30116.

• Decision Date: 24 February 2016
• Docket Number: No. 16–30116.,16–30116.
• Citation: 814 F.3d 319
• Parties: JUNE MEDICAL SERVICES, L.L.C., on behalf of its patients, physicians, and staff, doing business as Hope Medical Group for Women; Bossier City Medical Suite, on behalf of its patients, physicians, and staff; Choice Incorporated of Texas, on behalf of its patients, physicians, and staff, doing business as Causeway Medical Clinic; John Doe 1; John Doe 2, Plaintiffs–Appellees, v. Doctor Rebekah GEE, In her official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

814 F.3d 319

JUNE MEDICAL SERVICES, L.L.C., on behalf of its patients, physicians, and staff, doing business as Hope Medical Group for Women; Bossier City Medical Suite, on behalf of its patients, physicians, and staff; Choice Incorporated of Texas, on behalf of its patients, physicians, and staff, doing business as Causeway Medical Clinic; John Doe 1; John Doe 2, Plaintiffs–Appellees,

v.Doctor Rebekah GEE, In her official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant–Appellant.

No. 16–30116.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 2016.

David Patrick Brown, Ilene Jaroslaw, Center for Reproductive Rights New York, NY, Dimitra Doufekias, Esq., Marc Andrew Hearron, Morrison & Foerster, L.L.P., Washington, DC, William E. Rittenberg, Esq., Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiffs–Appellees.

Stuart Kyle Duncan, Schaerr Duncan, L.L.P., Washington, DC, for Defendant–Appellant.

Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.

JENNIFER WALKER ELROD

, Circuit Judge:

June Medical Services, L.L.C., and other plaintiffs sought an injunction against the enforcement of Louisiana's statutory requirement that each physician who performs outpatient abortions must have admitting privileges at a nearby hospital. After a bench trial, the district court held that the admitting-privileges requirement was facially unconstitutional and enjoined enforcement of the law against Plaintiffs. The district court denied Louisiana's requests for a temporary stay and a stay pending appeal, and Louisiana immediately filed in this court an emergency motion to stay the district court's preliminary injunction pending the resolution of Louisiana's appeal. We GRANT the motion for a stay pending appeal.

I.

On June 12, 2014, the Governor of Louisiana signed into law Act 620, which in relevant part amended Louisiana's abortion laws to require that physicians performing abortions must "[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services." The Unsafe Abortion Protection Act of 2014 La. Sess. Law Serv. Act 620 (H.B. 388).¹

The Act was scheduled to go into effect on September 1, 2014. Plaintiffs² filed this lawsuit on August 22, 2014, arguing that the Act violated their and their patients' procedural and substantive due process rights and seeking injunctive relief.³ The district court issued a temporary restraining order which permitted the Act to go into effect but exempted Plaintiffs from being subject to the Act's penalties and sanctions for practicing without the relevant admitting privileges while they continued to seek those admitting privileges.

Ten months later, the district court conducted a six-day bench trial. Seven months thereafter, the district court issued findings of fact and conclusions of law, followed by entry of judgment two weeks later in favor of Plaintiffs.⁴ The district court first found that the Act passed rational basis review because it was rationally related to a legitimate state interest.

The district court then applied the two-part undue burden test announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, which asks whether a regulation has the purpose or effect of placing an undue burden on a woman's access to abortion. 505 U.S. 833, 877, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)

. As to the first prong, the district court found that Plaintiffs had not established that the Act has an improper purpose under existing precedent. On the second prong, however, the district court concluded that the Act "will have the effect of placing an undue burden on (i.e. placing a substantial obstacle in the path of) a large fraction of Louisiana women of reproductive age seeking an abortion." June Med. Servs., LLC v. Kliebert, No. 14–cv–525, ––– F.Supp.3d ––––, ––––, 2016 WL 320942, at *48 (M.D.La. Jan. 26, 2016). On the basis of these findings, the district court declared the Act to be unconstitutional and entered a judgment enjoining enforcement of the Act as to Plaintiffs.

The day judgment was entered, Louisiana appealed the injunction and moved the district court to stay its judgment pending appeal and to temporarily stay the judgment. The district court denied the temporary stay that afternoon and denied the motion to stay pending appeal six days later. Louisiana immediately filed in this court an emergency motion to stay the injunction pending appeal. That motion is now before this panel.

II.

We note as a preliminary matter that the physician plaintiffs have standing to assert the rights of their prospective patients. The Supreme Court has held that physicians who perform abortions satisfy the test for third-party standing even when they are not threatened with immediate prosecution under state abortion regulations. Singleton v. Wulff, 428 U.S. 106, 117–18, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)

; Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). At least one of the physicians here—Doe 1—has third-party standing because he has not obtained admitting privileges and may be subject to criminal prosecution for violating the Act;⁵ because "doctors who perform abortions share a sufficiently close relationship with their patients"; and because "a pregnant woman seeking to assert her right to abortion faces obvious hindrances in timely ... bringing a lawsuit to fruition." See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II ), 748 F.3d 583, 589 (5th Cir.2014)

(citing Kowalski v. Tesmer, 543 U.S. 125, 129–30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) ). Because Doe 1 has standing to challenge the Act, we need not determine whether Doe 2 or the clinics suffer an "actual or imminent, not ‘conjectural’ or ‘hypothetical’ " injury and have standing as well. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted).⁶

We consider four factors in deciding whether to grant a stay pending appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I ), 734 F.3d 406, 410 (5th Cir.2013)

(quoting Nken v. Holder, 556 U.S. 418, 425–26, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ), application to vacate stay denied, ––– U.S. ––––, 134 S.Ct. 506, 187 L.Ed.2d 465 (2013). "A stay ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’ " Id. (quoting Nken, 556 U.S. at 427, 129 S.Ct. 1749 ).

III.

We begin by considering whether Louisiana has made a strong showing that it is likely to succeed on the merits. We conclude that it has.

A.

We have twice considered facial challenges to a nearly identical admitting-privileges requirement recently enacted in Texas.⁷ We first considered whether a stay of the district court's injunction against the requirement was appropriate. Because we concluded that Texas was likely to succeed on the merits by showing the plaintiffs had not proven the requirement placed an undue burden on women seeking an abortion, we stayed the injunction. Abbott I, 734 F.3d at 416

. When we considered the same lawsuit on its merits, we reversed the district court and permitted the law to go into effect because the plaintiffs had not demonstrated that the law placed an undue burden on a large fraction of women. Abbott II, 748 F.3d at 590.⁸

The Supreme Court's jurisprudence on abortion regulation is complicated. When the Court first recognized the right to access to abortion, it concluded that the "right of privacy, whether it is founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action [or] in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)

. In Casey, the Court affirmed "the essential holding of Roe v. Wade " while rejecting Roe's trimester framework and replacing it with a test based on viability of the fetus. Casey, 505 U.S. at 874, 876, 112 S.Ct. 2791. After the point in a pregnancy where the fetus is likely viable if born, the state may regulate the provision of abortions to protect its interest "in protecting fetal life or potential life." Id. Before viability, the state may regulate abortion provided that the "state regulation [does not] impose[ ] an undue burden on a woman's ability" to decide whether to carry her child to term. Id. at 874, 112 S.Ct. 2791. "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877, 112 S.Ct. 2791. In Gonzales v. Carhart, the Court added that the state must have a rational basis for its regulation. 550 U.S. 124, 158, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (allowing regulations "where [the state] has a rational basis to act, and it does not impose an undue burden").

In our recent cases considering abortion regulations, we acknowledged that states have important interests in protecting the integrity and ethics of the medical profession and in protecting the health of women seeking abortions. Abbott I, 734 F.3d at 413

. We reiterated the Supreme Court's command that "the fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id. at 413 (quoting Casey, 505...