Little Rock Family Planning Servs. v. Rutledge
| Decision Date | 23 July 2019 |
| Docket Number | Case No. 4:19-cv-00449-KGB |
| Citation | 398 F.Supp.3d 330 |
| Parties | LITTLE ROCK FAMILY PLANNING SERVICES, et al., Plaintiffs v. Leslie RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al., Defendants |
| Court | U.S. District Court — Eastern District of Arkansas |
Bettina E. Brownstein, Betinna E. Brownstein Law Firm, Rebecca R. Jackson, Attorney at Law, Little Rock, AR, Kelly Scavone, Leah Godesky, O'Melveny & Myers LLP, Meagan Burrows, Susan Talcott Camp, Pro Hac Vice; American Civil Liberties Union, Maithreyi Ratakonda, Pro Hac Vice; Planned Parenthood Federation of America, New York, NY, Kendall Turner, Attorney at Law, Washington, DC, Taylor Simeone, Attorney at Law, Los Angeles, CA, for Plaintiffs.
TEMPORARY RESTRAINING ORDER
Before the Court is a motion for a temporary restraining order and/or preliminary injunction filed by separate plaintiffs Little Rock Family Planning Services ("LRFP") and Thomas Tvedten, M.D., on behalf of himself and his patients.1 Plaintiffs bring this action seeking declaratory and injunctive relief on behalf of themselves and their patients under the United States Constitution and 42 U.S.C. § 1983 to challenge three Acts passed by the Arkansas General Assembly: (1) Arkansas Act 493 of 2019, which bans abortion "where the pregnancy is determined to be greater than 18 weeks," as measured from the first day of a woman's last menstrual period ("LMP") in nearly all cases ("Act 493"); Arkansas Act 619, which prohibits a physician from intentionally performing or attempting to perform an abortion "with the knowledge" that a pregnant woman is seeking an abortion "solely on the basis" of: a test "indicating" Down syndrome
; a prenatal diagnosis of Down syndrome ; or "[a]ny other reason to believe" the "unborn child" has Down syndrome ("Act 619"); and (3) Arkansas Act 700 of 2019, which provides that "[a] person shall not perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Arkansas and is board-certified or board-eligible in obstetrics and gynecology." ("Act 700" or the "OBGYN requirement"). This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).
For the reasons set forth below, the Court grants plaintiffs' motion for a temporary restraining order and has under advisement the request for preliminary injunction (Dkt. No. 2). The Court also denies the pending motions to strike filed by both parties (Dkt. Nos. 75, 76).
Plaintiffs filed their complaint and motion for a temporary restraining order and/or preliminary injunction on June 26, 2019 (Dkt. Nos. 1, 2). The challenged Acts take effect on July 24, 2019. On July 1, 2019, defendants filed a motion to extend time for defendants to respond to the complaint and motion for a temporary restraining order and/or preliminary injunction (Dkt. No. 19). The Court set July 17, 2019, as the deadline for defendants to file their written response and July 19, 2019, as plaintiffs' deadline to file a written reply (Dkt. No. 31). The Court also set the hearing on plaintiffs' motion for temporary restraining order and/or preliminary injunction for July 22, 2019 (Id. ). The Court set the deadline for filing exhibits and witnesses lists in advance of the hearing for July 18, 2019, and the deadline for the filing of rebuttal exhibits and witnesses in advance of the hearing for July 19, 2019 (Id. ).
In response to a motion for expedited prehearing discovery filed by defendants, the Court instructed the parties to meet and confer regarding any outstanding discovery requests and to file a joint status report on July 12, 2019 (Dkt. No. 34). On July 10, 2019, plaintiffs filed a supplemental declaration, and in response defendants sought to strike the supplemental declaration or to extend the time to respond to the motion for temporary restraining order and/or preliminary injunction (Dkt. Nos. 37, 38). Plaintiffs opposed the motion to strike the supplement declaration and the request to extend the time to respond to the motion (Dkt. No. 39). The Court denied the motion to strike or request for additional time to respond to the motion, observing in part that any alleged prejudice would be limited and mitigated if the Court "treats plaintiffs' motion as one for temporary restraining order, then such an order—whether granted or denied—would expire 14 days from the date it is entered, and the Court may permit all parties to address further the merits of this expedited matter prior to a hearing on plaintiffs' request for a preliminary injunction." (Dkt. No. 41, at 2).
The parties timely filed their joint status report on July 12, 2019, and reported that they required the Court to resolve three remaining discovery disputes (Dkt. No. 40). In that same status report, the parties represented that certain information would be turned over contingent upon the entry of a protective order that was still being negotiated by the parties. The Court then entered an order denying without prejudice defendants' motion for expedited prehearing discovery, resolving only the three remaining discovery disputes the parties had been unable to resolve at this stage of the proceeding (Dkt. No. 42).
On July 18, 2019, defendants filed a renewed motion for expedited prehearing discovery (Dkt. No. 56). In that motion, defendants argued that, because plaintiffs insisted upon an "unreasonably broad definition of ‘confidential information,’ " the parties could not agree on the terms of a protective order, and therefore defendants had not received agreed-upon discovery (Id. , at 1). In response, plaintiffs pointed out that they sent a proposed protective order to defendants on July 10, 2019, but defendants did not respond until July 15, 2019, with a counterproposal (Dkt. No. 60, at 4). Plaintiffs responded on July 16, 2019, rejecting the counterproposal (Id. ). Defendants did not file a renewed motion until July 18, 2019, after filing a written response to the motion for temporary restraining order and/or preliminary injunction. On July 19, 2019, the Court denied defendants' renewed motion for expedited prehearing discovery and entered a protective order (Dkt. Nos. 69, 70).
On Saturday, July 20, 2019, a day after the deadline for disclosing rebuttal exhibits and witnesses had elapsed, defendants filed a new declaration that totaled 272 pages, with attachments; plaintiffs also filed a supplemental rebuttal witness list (Dkt. Nos. 73, 74). Then, on Sunday, July 21, 2019, plaintiffs filed a motion to strike certain declarations introduced by defendants, including the declaration filed on Saturday, July 20, 2019 (Dkt. No. 75). Also on Sunday, July 21, 2019, defendants filed a motion to strike certain declarations introduced by plaintiffs and to strike plaintiffs' reply brief (Dkt. No. 76).
On July 22, 2019, the Court held a hearing on plaintiffs' motion for temporary restraining order and/or preliminary injunction at which the Court received testimony from certain witnesses and additional documents were discussed and introduced. At the conclusion of the hearing, plaintiffs objected to defendants' request to introduce as a hearing exhibit in this matter the entire record from Planned Parenthood Arkansas and Eastern Oklahoma v. Jegley , Case No. 4:15-cv-00784-KGB, on the basis that defendants failed to refer to, or move to introduce, any specific portions of that record in response to plaintiffs' motion for temporary restraining order and/or preliminary injunction here. Plaintiffs generally are correct. Defendants have not pointed to any specific evidence in the Jegley record that they wish for the Court to consider. The Court is not obligated to hunt through the record to find evidence that supports defendants' positions. U.S. v. Stuckey , 255 F.3d 528, 531 (8th Cir. 2001) (citing U.S. v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ). Defendants are directed to cite the Court to specific portions of the Jegley record, if they intend for the Court to consider those portions of the record in ruling on the current motion.
In ruling on plaintiffs' motion for temporary restraining order and/or preliminary injunction, the Court has considered the record before it as of the conclusion of the July 22, 2019, hearing. Given the voluminous number of last-minute filings, including filings the Court received on July 23, 2019, regarding these issues, the Court concludes that defendants, despite being represented at the hearing through their counsel, have not had a sufficient opportunity to challenge the basis for plaintiffs' requested relief. Therefore, the Court only considers the motion for temporary restraining order at this time. McLeodUSA Telecomms. Servs. v. Qwest Corp. , 361 F. Supp. 2d 912, 918 n.1 (N.D. Iowa 2005).
Further, given the limited nature of a temporary restraining order, the Court declines to strike the declarations filed by any party prior to the July 22, 2019, hearing and instead will give them the weight to which they are entitled at this stage of the proceedings. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation , 507 F.2d 1281, 1286-87 (8th Cir. 1974). For this reason, the Court denies the pending motions to strike (Dkt. Nos. 75, 76).
The Court makes the following findings of fact. To the extent the findings of fact in this Order contradict the findings of fact made in the Court's prior Orders, the findings of fact in this Order control. Further, the Court will address these and additional factual matters in the context of its discussion of the legal issues; in that context, the Court also makes findings of fact. 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...
To continue reading
Request your trial
-
FemHealth USA, Inc. v. City of Mount Juliet
...regulatory benefits of the type necessarily considered under the undue-burden standard. Little Rock Family Planning Services v. Rutledge , 398 F. Supp. 3d 330, 379 (E.D. Ark. 2019) ; Isaacson v. Horne , 716 F.3d 1213, 1225 (9th Cir. 2013) (finding undue burden analysis inapplicable where th......