Little Rock Family Planning Servs. v. Rutledge
| Decision Date | 14 April 2020 |
| Docket Number | Case No. 4:19-cv-00449-KGB |
| Citation | 454 F.Supp.3d 821 |
| 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, Brooke-Augusta Ware, Mann & Kemp, PLLC, Little Rock, AR, Kelly M. Scavone, Pro Hac Vice, Leah Godesky, Pro Hac Vice, Christopher P. Burke, Pro Hac Vice, O'Melveny & Myers LLP, Meagan M. Burrows, Pro Hac Vice, Susan Talcott Camp, Pro Hac Vice, Ruth E. Harlow, Pro Hac Vice, American Civil Liberties Union, Maithreyi Ratakonda, Pro Hac Vice, Planned Parenthood Federation of America, New York, NY, Kendall Turner, Pro Hac Vice, Ashley Robertson, Pro Hac Vice, Maya Zagayer, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Taylor Simeone, Pro Hac Vice, O'Melveny & Myers LLP, Los Angeles, CA, for Plaintiffs.
Nicholas Jacob Bronni, Dylan L. Jacobs, Jennifer L. Merritt, Julia C. Benafield, Michael Cantrell, Vincent Moore Wagner, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.
TEMPORARY RESTRAINING ORDER
Before the Court are a motion for expedited leave to file a supplemental complaint and a motion for an ex parte 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 (collectively, the "Supplemental Complaint Plaintiffs") (Dkt. Nos. 132, 134). In the instant motions, the Supplemental Complaint Plaintiffs challenge as unconstitutional the State of Arkansas' enforcement of Arkansas Governor Asa Hutchinson's April 4, 2020, Executive Order 20-13, which amended both Executive Order 20-03, issued March 11, 2020, and Executive Order 20-10, issued March 26, 2020, and application of the April 3, 2020, Arkansas Department of Health's ("ADH") Directive on Elective Surgeries (the "ADH Directive") through an April 10, 2020, cease-and-desist order sent by ADH to LRFP to bar all surgical abortions, "except where immediately necessary to protect the life or health of the patient" (the "ADH Cease-and-Desist Order") (collectively, the "Challenged Provisions"). For the reasons set forth herein, the Court provisionally grants the Supplemental Complaint Plaintiffs' motion for expedited leave to file a supplemental complaint and motion for an ex parte temporary restraining order. The Court has under advisement the Supplemental Complaint Plaintiffs' motion for a preliminary injunction. The Court will reconsider these matters upon the submission of defendants' written arguments.
Plaintiffs commenced this action on June 26, 2019. Along with the complaint for injunctive and declaratory relief, a motion for a temporary restraining order and/or preliminary injunction was filed by separate plaintiffs LRFP and Dr. Tvedten (Dkt. Nos. 1, 2).1 Plaintiffs filed 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; (2) Arkansas Act 619 of 2019, 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." The Court entered a temporary restraining order on July 23, 2019 (Dkt. No. 83). The Court subsequently entered a preliminary injunction order on August 6, 2019 (Dkt. No. 119). Defendants appealed (Dkt. No. 120), and their appeal remains pending before the Eighth Circuit Court of Appeals.
On April 13, 2020, the Supplemental Complaint Plaintiffs filed a motion for expedited leave to file a supplemental complaint and a motion for an ex parte temporary restraining order and/or preliminary injunction (Dkt. Nos. 132, 134). Defendants have not yet responded to either motion. However, plaintiffs notified counsel for defendants on April 12, 2020, of their intent to seek an ex parte temporary restraining order barring enforcement of the Challenged Provisions against LRFP to bar all surgical abortions, "except where immediately necessary to protect the life or health of the patient" (Dkt. No. 134-18, ¶ 4).
To briefly summarize the factual background, on April 3, 2020, the ADH issued the ADH Directive that states that elective surgery "[p]rocedures... that can be safely postponed shall be rescheduled to an appropriate future date," subject to certain enumerated exceptions (Dkt. No. 134-7, at 2). The next day, by Executive Order 20-13, Governor Hutchinson declared that a violation of a directive from the Secretary of Health "is a misdemeanor offense, and upon conviction therefore is punishable by a fine of not less than one hundred ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both." (Dkt. No. 132-1, at 29–32). On April 10, 2020, the ADH sent LRFP the ADH Cease-and-Desist Order stating that the April 3, 2020, ADH Directive "mandates the postponement of all procedures that are not immediately medically necessary," and thus, according to ADH, the "prohibition applies to surgical abortions that are not immediately necessary to protect the life or health of the patient." (Dkt. No. 134-2, at 31). The ADH Cease-and-Desist Order requires LRFP to "immediately cease and desist the performance of surgical abortions, except where immediately necessary to protect the life or health of the patient." (Id. ). The ADH Cease-and-Desist Order also states that "[a]ny further violations of the April 3 [ADH] Directive will result in immediate suspension of [LRFP's] license." (Id. ). Based on record evidence, the Challenged Provisions do not contain an expiration date, and neither the ADH nor Governor Hutchinson have determined how long the Challenged Provisions will remain in effect (Dkt. No. 132-1, ¶ 35).
Based on record evidence, only the following types of abortion care are available in Arkansas currently: medication abortions, which are available only up to 10 weeks as measured from the first day of a woman's last menstrual period ("LMP"), aspiration surgical procedures, which are performed until approximately 13 weeks LMP, and dilation and evacuation ("D&E") surgical procedures, which are performed until 21.6 weeks LMP, the legal time limit for an abortion in Arkansas. After 10 weeks LMP, the only type of abortion care available in Arkansas is surgical abortion.
Rule 15(d) of the Federal Rules of Civil Procedure authorizes supplementation of a complaint based on later events. While an amended pleading under Rule 15(a) "is designed to include matters occurring before the filing of the bill but either overlooked or not known at the time," a supplemental pleading under Rule 15(d) "is designed to cover matters subsequently occurring but pertaining to the original cause." United States v. Vorachek , 563 F.2d 884, 886 (8th Cir. 1977). "The purpose of Rule 15(d) is to promote, as complete an adjudication as possible, of an existing dispute between the parties, which may have evolved since the action was initiated." Schneeweis v. Nw. Tech. Coll. , No. CIV.97-1742 (JRT/RLE), 1998 WL 420564, at *13 (D. Minn. June 1, 1998).
A copy of the Supplemental Complaint Plaintiffs' proposed first supplemental complaint for injunctive and declaratory relief is attached as Exhibit 1 to the Supplemental Complaint Plaintiffs' motion for expedited leave to file a supplemental complaint. The Supplemental Complaint Plaintiffs maintain that 2 of the 4 plaintiffs in their proposed supplemental complaint are the same, as are all 18 named defendants. They allege that the Challenged Provisions, among other things, violate Arkansas women's right to access abortion care under the Substantive Due Process and Equal Protection Clauses of the Fourteenth Amendment. Further, the Supplemental Complaint Plaintiffs plead facts relating to: (i) abortion procedures typically provided in Arkansas and their safety compared to other medical procedures; (ii) the importance of abortion as an element of women's health care; (iii) the significant obstacles that women face in accessing abortion care in Arkansas, including travel distance and a lack of financial resources; and (iv) risks to women's health and well-being that arise when access to abortion care is delayed, or denied altogether (Dkt. No. 133, at 5).
These issues are factually and legally similar to those raised in the operative complaint (Dkt. No. 1, ¶¶ 37–108) and have previously been addressed by the Court (Dkt. Nos. 83, 119). The Supplemental Complaint Plaintiffs represent that that the Court's analysis of the supplemental complaint's claims will involve facts, issues, and witnesses common to the underlying litigation, as well. Further, because plaintiffs' appeal remains pending in the Eighth Circuit, neither the discovery period nor other pre-trial district-court proceedings have commenced in this case.
Having carefully reviewed the motion and associated briefing, as well as the entire record in this case, the Court...
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