June Med. Servs., LLC v. Caldwell

• Decision Date: 31 August 2014
• Docket Number: CIVIL ACTION NO.: 3:14-cv-00525-JWD-RLB
• Court: U.S. District Court — Middle District of Louisiana
• 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. JAMES DAVID CALDWELL, in his official capacity as Attorney General of Louisiana; JIMMY GUIDRY, in his official capacity as Louisiana State Health Officer & Medical Director of the Louisiana Department of Health and Hospitals; and MARK HENRY DAWSON, in his official capacity as President of the Louisiana State Board of Medical Examiners

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. JAMES DAVID CALDWELL, in his official capacity as Attorney General

of Louisiana; JIMMY GUIDRY, in his official capacity as Louisiana State Health

Officer & Medical Director of the Louisiana Department of Health and Hospitals;

and MARK HENRY DAWSON, in his official capacity as President

of the Louisiana State Board of Medical Examiners

CIVIL ACTION NO.: 3:14-cv-00525-JWD-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 31, 2014

TEMPORARY RESTRAINING ORDER

Before the Court is Plaintiffs' Application for Temporary Restraining Order and Motion for Preliminary Injunction (Doc. 5) seeking to enjoin Defendants from enforcing Section (A)(2)(a) of La. House Bill 388, Regular Session (La. 2014), Act 620 (hereinafter "Act 620" or the "Act"). (Doc. 5-2, p.1.) This Act is codified at La. Rev. Stat. § 40:1299.35.2. Plaintiffs' Application is filed in accordance with Fed. R. Civ. P. ("Rule") 65 and this Court's Local Rules, see M.D. La. LR65. Defendants oppose Plaintiffs' Application. (Docs. 17, 18, 19, 20.)

For reasons explained below, the Court GRANTS Plaintiffs' Application for Temporary Restraining Order as to Defendants Kathy Kleibert and Dr. Mark Henry Dawson to the extent that any enforcement of § A(2)(a) of Act 620, amending La. R.S. 40:1299.35.2, is enjoined until a hearing is held for the purpose of determining whether a preliminary injunction should issue.Plaintiffs will continue to seek admitting privileges. The Act will be allowed to take effect but Plaintiffs will not be subject to the penalties and sanctions allowed in the statute at this time or in the future for practicing without the relevant admitting privileges during the applications process. Plaintiffs will be allowed to operate lawfully while continuing their efforts to obtain privileges.

In accordance with Rule 65, this Temporary Restraining Order shall be effective as of Sunday, August 31, 2014, 11:59 p.m. and shall remain pending until the hearing on Plaintiffs' Motion for Preliminary Injunction. See Fed. R. Civ. P. 65(b)(2)-(3).

Plaintiffs' Motion for Preliminary Injunction is DEFERRED. A status conference to monitor the progress of Plaintiffs' applications and set a hearing date for the preliminary injunction shall be held on a date to be set by the Court not longer than 30 days following the issuance of this Order.

For the reasons set forth below, the Motion to Dismiss filed by Defendant Attorney General James David Caldwell is hereby GRANTED and Louisiana State Health Officer and Medical Director, Dr. Jimmy Guidry, is hereby DISMISSED.

I. Facts, Procedural History and Contentions of the Parties

Plaintiffs are June Medical Services, LLC d/b/a Hope Medical Group for Women (hereinafter "Hope"), Bossier City Medical Suite ("Bossier"), Choice, Inc., of Texas d/b/a Causeway Medical Clinic ("Choice") and Drs. John Doe 1 and 2. Defendants are James David "Buddy" Caldwell, sued in his official capacity of the Attorney General of Louisiana; Dr. Jimmy Guidry, sued in his official capacity as the Louisiana State Health Office and Medical Director; Kathy Kliebert sued in her official capacity as the Secretary of the Louisiana Department of Health and Hospitals ("DHH");¹ and Dr. Mark Dawson, sued in his official capacity as the President of the Louisiana State Board of Medical Examiners ("Board").

On August 22, 2014, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief (Doc. 1) and an Application for Temporary Restraining Order and Motion for Preliminary Injunction (Doc. 5) seeking to enjoin Defendants from enforcing Section (A)(2)(a) of La. House Bill 388, Regular Session (La. 2014), Act 620 (hereinafter "Act 620" or the "Act"). (Doc. 5-2, p.1.) This Act is codified at La. Rev. Stat. § 40:1299.35.2. Section A(2)(a) requires every doctor who performs abortions in Louisiana to have "active admitting privileges" at a hospital within 30 miles of the facility where abortions are performed. (Doc. 5-2, p. 3.) While this Act contains other requirements, this provision is the only one being challenged. (Doc 5-1, p. 8, note 1.) Act 620 was signed into law on June12, 2014. Its effective date is September 1, 2014. (Doc. 5-2, p. 6.)

Plaintiffs Hope, Bossier and Choice are three of five licensed abortion clinics in Louisiana. They are located in Shreveport, Bossier City and Metairie respectively. Drs. Doe 1 and 3 perform abortions at Hope, Dr. Doe 2 performs abortions at Bossier and Choice and Dr. Doe 4 performs abortions at Choice.²

Plaintiffs allege that, following June 12, 2014, the date the Act was signed into law by the Governor, Drs. Doe 1, 2 and 4 applied for admitting privileges at nearby hospitals in an effort to comply with the Act. However, their applications are pending and, because the admission process can take several months, there will have been no action taken on the applications at the time Act 620 becomes effective on September 1, 2014. Dr. Doe 3 has admitting privileges at a hospital within 30 miles of where he performs abortions but claims that, if the applications of Drs. 1, 2 and 4 are denied and he is the only physician performing abortions at any of the three facilities, he will discontinue performing abortions due to fears for his personal safety.

Because it is impossible for Drs. 1, 2 and 4 to comply with the admitting privileges requirement before the Act's effective date, they allege that, without an order enjoining enforcement of the Act, they will be exposed to a $4,000 per violation penalty³ and possible suspension or revocation of their medical licenses by the Board⁴ despite the fact that they are attempting to comply with the Act. Hope, Bossier and Choice argue that, for the same reason, they will be exposed to suspension or loss of their clinic licenses.⁵ This, Plaintiffs argue, constitutes a violation of their constitutional right to due process.

In addition, Plaintiffs allege that they have received some informal indication that the applications for active admitting privileges of some of the doctors may be denied⁶ and, if they are denied, enforcement of the Act against them "will either drastically reduce or completely eliminate the availability of legal abortion in the state..." (Doc 5-1, p. 22); "will result in every doctor currently providing abortions at a clinic in Louisiana to stop providing those services..." (Doc. 5-1, p. 6) and that "no other doctor in Louisiana would be able to provide abortion services as of September 1..." (Doc 5-1, p. 18). Furthermore, Plaintiffs contend that enforcement would result in "the majority if not all" abortion clinics being unable to render services (Doc. 5-1, p. 25) and would "effectively eliminate all access to legal abortion in Louisiana" (Doc. 5-1, p. 26).

Attorney General Caldwell filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12 (B)(1) arguing that he has no connection with the enforcement of the Act. (Doc. 16.) Defendants Dr. Jimmy Guidry and Dr. Mark Dawson make similar arguments in their memoranda. (Docs. 18, 20.)

On the merits, Defendants first argue that a TRO is not warranted because they do not intend to enforce the new law against any physician whose applications for privileges is pending. Specifically, Secretary of DHH Kliebert pledges that she will abide by the instructions of the U.S. 5^th Circuit in Planned Parenthood of Greater Texas v. Abbott, 748 F.3d 583, 600 (5^th Cir. 2014) that an admitting privileges requirement cannot be enforced "against a physician who [has] applied for admitting privileges during the law's grace period but who [has] not yet received a response on that application before the effective date of the law." (Doc. 27, p. 3-4.)

Similarly, Dr. Dawson has filed a Declaration pledging that he will abide by Abbot's instructions not to enforce Act 620 but, in any event, the Board has no enforcement authority regarding this Act. Because Secretary Kliebert and President Dawson are pledging not to enforce the Act against anyone whose application is pending, they argue there is no need nor justification for a TRO since there is no "substantial threat of irreparable harm" from an authority attempting to enforce the Act.

Second, Defendants argue that even if the doctors' applications are denied and Plaintiff doctors are unable to perform abortions, there are two other abortion facilities and other doctors performing abortions in Louisiana. Thus, Plaintiffs have failed to demonstrate that the enforcement of the Act would put an undue burden on or create a substantial obstacle to the Constitutional right of Louisiana women to receive abortions.

On August 28, 2014, a hearing was held on the Plaintiffs' Motion for Temporary Restraining Order. All parties were present and participated. No evidence was offered by Plaintiffs other thanthe submission made with Plaintiffs' Application. (Doc. 5.) No evidence was offered by Defendants prior to the hearing other than the Declaration of Kathy Kliebert. (Doc. 25.) After the hearing, Secretary Kliebert submitted a supplemental Declaration (Doc. 27) and Dr. Dawson submitted a Declaration (Doc. 26).

II. Proper Parties, Article III Standing and 11^th Amendment Immunity

All Defendants other than Secretary Kliebert⁷ have raised the issue of whether they are properly before the Court and whether there is Article III standing and/or Eleventh Amendment immunity. Before a district can issue a TRO, it must first determine that it has Article III jurisdiction to do so. See, e.g., Doe v. Jindal, 2011 WL 3664496, *2 (M.D. La. 2011) (noting in the TRO context that "jurisdiction 'is a threshold issue that must be resolved before any federal court reaches the merits of the case before it'...