June Med. Servs. LLC v. Kliebert

• Decision Date: 26 January 2016
• Docket Number: CIVIL ACTION NO. 14–CV–00525–JWD–RLB
• Citation: 158 F.Supp.3d 473
• Parties: June Medical Services LLC d/b/a Hope Medical Group for Women, on behalf of its patients, physicians, and staff; Bossier City Medical Suite, on behalf of its patients, physicians, and staff; Choice, Inc., of Texas, d/b/a Causeway Medical Clinic, on behalf of its patients, physicians, and staff, John Doe 1, M.D., and John Doe 2, M.D. v. Kathy Kliebert, in her official capacity as Secretary of the Louisiana Department of Health and Hospitals and Mark Henry Dawson, M.D., in his official capacity as President of the Louisiana State Board of Medical Examiners
• Court: U.S. District Court — Middle District of Louisiana

158 F.Supp.3d 473

June Medical Services LLC d/b/a Hope Medical Group for Women, on behalf of its patients, physicians, and staff; Bossier City Medical Suite, on behalf of its patients, physicians, and staff; Choice, Inc., of Texas, d/b/a Causeway Medical Clinic, on behalf of its patients, physicians, and staff, John Doe 1, M.D., and John Doe 2, M.D.

v.Kathy Kliebert, in her official capacity as Secretary of the Louisiana Department of Health and Hospitals and Mark Henry Dawson, M.D., in his official capacity as President of the Louisiana State Board of Medical Examiners

CIVIL ACTION NO. 14–CV–00525–JWD–RLB

United States District Court, M.D. Louisiana.

Signed January 26, 2016

William E. Rittenberg, Rittenberg & Samuel, LLC, Thomas M. McEachin, Ellie T. Schilling, Schonekas, Evans, McGoey & McEachin, LLC, New Orleans, LA, Dimitra Doufekias, Morrison & Foerster LLP, Washington, DC, David Brown, Ilene Jaroslaw, Janet Crepps, Zoe Levine, New York, NY, for June Medical Services LLC d/b/a HOPE Medical Group for Women, on behalf of its patients, physicians, and staff; Bossier City Medical Suite, on behalf of its patients, physicians, and staff; Choice, Inc., of Texas, d/b/a Causeway Medical Clinic, on behalf of its patients, physicians, and staff, John Doe 1, M.D., and John Doe 2, M.D.

Angelique Duhon Freel, Jessica Marie Podewils Thornhill, Louisiana Dept. of Justice, Emily Andrews, Department of Justice, State of Louisiana, Baton Rouge, LA, S. Kyle Duncan, Duncan PLLC, Washington, DC, Don S. McKinney, Philip O. Bergeron, Ralph H. Wall, Adams & Reese, New Orleans, LA, J. Michael Johnson, Kitchens Law Firm, Bossier City, LA, Natalie Decker, Alliance Defending Freedom, Greenwood Village, CO, Steven H. Aden, Alliance Defending Freedom, Washington, DC, Charlotte Y. Bergeron, Baton Rouge, LA, for Kathy Kliebert, in her

official capacity as Secretary of the Louisiana Department of Health and Hospitals and Mark Henry Dawson, M.D., in his official capacity as President of the Louisiana State Board of Medical Examiners.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

TABLE OF CONTENTS

OVERVIEW

I. Introduction

FINDINGS OF FACT

II. Background and Procedural History

III. Contentions of the Parties

IV. The Factual Issues

V. Abortion in Louisiana

A. Generally

B. The Clinics

(1) Hope

(2) Bossier

(3) Causeway

(4) Women's Health

(5) Delta

C. The Doctors

(1) Doe 1

(2) Doe 2

(3) Doe 3

(4) Doe 4

(5) Doe 5

(6) Doe 6

D. Admitting Privileges

E. The Climate

VI. Act 620

A. Text of Act 620 and Related Provisions

B. Louisiana's Policy and Past Legislation Regarding Abortion

C. Drafting of Act 620

D. Official Legislative History of Act 620

VII. The Purpose and Medical Reasonableness of Act 620

VIII. Efforts of Doctors to Comply With Act 620 and the Results of Those Efforts

A. Doe 1

B. Doe 2

C. Doe 3

D. Doe 4

E. Doe 5

F. Doe 6

G. Post-Trial Updates

IX. Effects of Act 620

A. The Effect of Act 620 on Doe 1–6

B. The Effect of Act 620 on the Clinics and Women of LouisianaCONCLUSIONS OF LAW

X. Summary of Legal Arguments

XI. Test for Determining the Constitutionality of Act 620

A. Rational Basis

B. Undue Burden Test—Generally

C. Undue Burden—Purpose Prong

D. Undue Burden—Effect Prong

XII. Analysis: Application of Tests

A. Rational Basis

B. Undue Burden—Purpose of Act 620

C. Undue Burden—Effect of Act 620

XIII. Conclusion

A. Motion to Reconsider Rulings on Summary Judgment and Motion in Limine

B. Preliminary Injunction

(1) Preliminary Injunction Standard

(2) Application of the Preliminary Injunction Standard

C. Judgment

OVERVIEW

I. Introduction

Before the Court is Plaintiffs' Application for Temporary Restraining Order and Motion for Preliminary Injunction (“Application”), filed by five persons: June Medical Services LLC, d/b/a Hope Medical Group for Women (“Hope” or “Hope Clinic); Bossier City Medical Suite (“Bossier” or “Bossier Clinic”); Choice Inc., of Texas, d/b/a Causeway Medical Clinic (“Choice” or “Causeway”) (collectively, “Plaintiff Clinics”); including two natural persons, Doctor Doe 1 (“Doe 1”)¹ and Doctor Doe 2 (“Doe 2”) (collectively, “Plaintiff Doctors”) (collectively, “Plaintiffs”). (Doc. 5.) The Application sought to bar enforcement of Section A(2)(a) of Act Number 620 (“Act” or “Act 620”),² amending Louisiana Revised Statutes § 40:1299.35.2

.³ Although Plaintiffs sought a temporary restraining order and a preliminary injunction in this single document, this Court issued the requested temporary order on August 31, 2014, and deferred ruling on their conjoined motion for a preliminary injunction (“TRO”), (Doc. 31 at 1–2), a distinction subsequently clarified by this Court's later order, (Docs. 57, 84). This Ruling and Order (“Ruling”) now addresses this latter request (“Motion for Preliminary Injunction”). Also before the Court is Defendant's Motion to Reconsider Rulings on Summary Judgment and Motion in Limine (“Motion for Reconsideration”), (Doc. 144), filed by Ms. Kathy Kliebert (“Defendant,” “Kliebert,” “Secretary,” or “Secretary Kliebert”), who is being sued by Plaintiffs in her official capacity as then Secretary of Department of Health and Hospitals of the State of Louisiana (“DHH”).⁴

The hearing on the Motion for Preliminary Injunction was held from June 22, 2015, through June 29, 2015. (Docs. 163–64, 166, 169, 174.) At the hearing, the Court received evidence in the form of live witness testimony, exhibits, stipulations, and designated deposition testimony agreed by Plaintiffs and Defendant (collectively, “Parties”) to be received in lieu of certain witness' live testimony. Plaintiffs presented live testimony from the following witnesses:

— Doe 1;

— Doe 2;

— Doe 3;

— Ms. Kathaleen Pittman (“Pittman”), June's administrator; and

— Kliebert; and

— Three experts, specifically:

— Doctor Christopher M. Estes (“Estes”), Chief Medical Officer of Planned Parenthood of South Florida and the Treasure Coast, (PX 92);

— Doctor Sheila Katz (“Katz”), an assistant professor at the University of Houston, (JX 91); and

— Doctor Eva Karen Pressman (“Pressman”), the Henry A. Thiede Professor and Chair of The Department of Obstetrics and Gynecology at The University of Rochester, (PX 94).

Defendant presented live testimony at trial from the following witnesses:

— Ms. Cecile Castello (“Castello”), Director of Health Standards Section (“HSS”) for DHH; and

— Three other experts, specifically:

— Doctor Robert Marier (“Marier”), Chairman of the Department of Hospital Medicine at Ochsner Medical Center in New Orleans, (DX 146);

— Doctor Tumulesh Kumar Singh Solanky (“Solanky”), a professor and the chair of the Mathematics Department at the University of New Orleans, (DX 148); and

— Doctor Damon Thomas Cudihy (“Cudihy”), an obstetrician-gynaecologist (“OB/GYN,” “Ob/Gyn,” “OBG,” or “O&G”) currently licensed to practice medicine in Louisiana and Texas, (DX 147).

A record of the exhibits admitted into evidence was filed. (Doc. 165.) A record of the deposition testimony designated by the Parties and offered into evidence was also docketed. (Doc. 168.⁵ ) In addition, the Parties submitted proposed findings of fact and conclusions of law, (Docs. 196, 200), and responses to each other's proposed findings and conclusions, (Docs. 201, 202).

In making the following findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed.⁶ Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified.⁷

After having considered the evidence, briefing, and record as a whole, for the reasons which follow, Defendant's Motion for Reconsideration, (Doc. 144), is DENIED. The active admitting privileges requirement of Section A(2)(a) of Act 620 is found to be a violation of the substantive due process right of Louisiana women to obtain an abortion, a right guaranteed by the Fourteenth Amendment of the United States Constitution as established in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)

(“Roe ”), and pursuant to the test first set forth in Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“Casey ”), and subsequently refined by the Fifth Circuit, see infra Part XI. Act 620 is therefore declared unconstitutional, its enforcement constitutionally barred. As such, the Motion for Preliminary Injunction is GRANTED IN PART, and any enforcement of § 40:1299.35.2 is enjoined as to Does 1 and 2, Hope, Bossier, and Causeway.

Furthermore, because applications for “active admitting privileges”⁸ by several doctors technically remain “pending,” the Court orders Plaintiffs to provide to the Court and Defendant with a written notification of any changes in the status of these applications on a monthly basis, beginning on March 1, 2016. Should the status of any application change, the Parties are free to request any other relief that they may deem appropriate. Finally, so as to discuss any outstanding issues and schedule this case's course, the Court will hold a telephonic status conference with counsel for all Parties on January 29, 2016, at 11:30 a.m.

FINDINGS OF FACT

II. Background and Procedural History

1. Plaintiffs are:

— Hope, a licensed abortion clinic located in Shreveport, Louisiana, suing on behalf of its physicians, staff and patients;

— Bossier, a licensed abortion clinic located in Bossier City, Louisiana, suing on behalf of its physicians, staff, and patients;

— Choice, a licensed abortion clinic suing on behalf of its physicians, staff, and patients;

— Doe 1, a physician licensed to practice medicine in the State of Louisiana and board-certified in Family Medicine and Addiction Medicine, suing on his own behalf and that of his patients; and

— Doe 2, a physician

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