Little Rock Family Planning Servs. v. Jegley
| Citation | 549 F.Supp.3d 922 |
| Decision Date | 20 July 2021 |
| Docket Number | Case No. 4:21-cv-00453-KGB |
| Parties | LITTLE ROCK FAMILY PLANNING SERVICES, et al., Plaintiffs v. Larry JEGLEY, in his official capacity as Prosecuting Attorney of Pulaski County, et al., Defendants |
| Court | U.S. District Court — Eastern District of Arkansas |
Breean Walas, Walas Law Firm, PLLC, Bozeman, MT, Brigitte Amiri, Pro Hac Vice, Meagan M. Burrows, Pro Hac Vice, Rebecca Chan, Pro Hac Vice, American Civil Liberties Union, Leah Godesky, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, Brooke-Augusta Ware, Mann & Kemp, PLLC, Little Rock, AR, Kendall Turner, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, for Plaintiff Little Rock Family Planning Services.
Breean Walas, Walas Law Firm, PLLC, Bozeman, MT, Brooke-Augusta Ware, Mann & Kemp, PLLC, Little Rock, AR, Kendall Turner, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Leah Godesky, Pro Hac Vice, O'Melveny & Myers LLP, Maithreyi Ratakonda, Pro Hac Vice, Susan Lambiase, Pro Hac Vice, Planned Parenthood Federation of America, Meagan M. Burrows, American Civil Liberties Union, New York, NY, for Plaintiffs Planned Parenthood of Arkansas & Eastern Oklahoma, Janet Cathey.
Maryna O. Jackson, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.
Kristine G. Baker, United States District Judge Before the Court is a motion for temporary restraining order and/or preliminary injunction filed by plaintiffs Little Rock Family Planning Services ("LRFP"), Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood Great Plains ("PPAEO"), and Janet Cathey, M.D., on behalf of themselves, their staff, and their patients (Dkt. No. 12). Plaintiffs bring this action seeking declaratory and injunctive relief on behalf of themselves and their patients under the United States Constitution to challenge an Act passed by the Arkansas General Assembly. Act 309 of 2021 ("Act" or "Act 309") provides, in pertinent part, that "[a] person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency." Act 309 § 5-61-404(a). 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 preliminary injunction (Dkt. No. 12).
On May 26, 2021, plaintiffs filed their verified complaint for declaratory and injunctive relief alleging that Act 309 unconstitutionally bans nearly all abortions in Arkansas (Dkt. No. 1). Plaintiffs attached to their complaint the declarations of Lori Williams, clinical director of LRFP; Brandon Hill, president & chief executive officer of PPAEO; and Dr. Cathey affirming that the statements contained in the complaint are true and correct to the best of the declarant's knowledge and belief (Id. , at 19–21). Defendants are public officials of the State of Arkansas charged with enforcing criminal laws and medical licensing penalties, including the Prosecuting Attorney for Pulaski County, members of the Arkansas State Medical Board, the Secretary of the Arkansas Department of Health, and members of the Arkansas State Board of Health (Id. , ¶¶ 17–19). Plaintiffs sue defendants in their official capacities (Id. , ¶ 19). Defendants filed their answer to plaintiffs' complaint on June 16, 2021 (Dkt. No. 14). The parties agree that the Act will become effective on July 28, 2021 (Dkt. No. 1, ¶ 9; Dkt. No. 14, ¶ 9).
On June 14, 2021, plaintiffs filed the instant motion seeking to enjoin enforcement of the Act prior to July 28, 2021 (Dkt. No. 12, at 1). On June 21, 2021, the Court set a briefing schedule and noticed a hearing for July 8, 2021, if the parties requested a hearing or if the Court determined that a hearing on the motion would benefit the Court (Dkt. No. 16). The parties informed the Court via electronic mail that they would not request a hearing. The Court concluded that a hearing would not benefit the Court and removed the hearing on the motion from the calendar for July 8, 2021 (Dkt. No. 23, at 1). On June 28, 2021, defendants filed a response in opposition to plaintiffs' motion, and on July 6, 2021, plaintiffs filed a reply in further support of their motion (Dkt. Nos. 22, 24).
The Court makes the following findings of fact. In making the following findings of fact, the Court considers the entire record before it, including plaintiffs' verified complaint and sworn declarations attached thereto (Dkt. No. 1), the text of Act 309, and the parties' briefing before the Court. All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered findings of fact shall be so classified. The Court has considered and weighed all the evidence presented at this stage of the proceedings; the Court has resolved any disputes consistent with the statements in this Order.
1. LRFP is a professional limited liability corporation that is licensed to do business in Arkansas (Dkt. No. 1, ¶ 14). LRFP provides abortion services and reproductive healthcare services in Little Rock, Arkansas (Id. ). Plaintiff PPAEO is an Oklahoma not-for-profit corporation licensed to do business in Arkansas (Id. , ¶ 15). PPAEO operates a health center in Little Rock, Arkansas, and provides abortion services and reproductive healthcare services (Id. ). Dr. Cathey is a board-certified obstetrician-gynecologist ("OBGYN"), licensed to practice medicine in Arkansas and Oklahoma (Id. , ¶ 16). She provides full-time medical services, including abortion, at PPAEO's health center in Little Rock and provides occasional support to LRFP (Id. ).
2. LRFP and PPAEO operate the only outpatient clinics currently providing abortions in the state of Arkansas (Id. , ¶ 27).
3. Defendant Larry Jegley is the prosecuting attorney for Pulaski County, Arkansas (Id. , ¶ 17). Prosecuting attorneys "shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned." Ark. Code Ann. § 16-21-103. Mr. Jegley is therefore responsible for criminal enforcement of the Act in Pulaski County (Dkt. No. 1, ¶ 17). Plaintiffs' health centers are located in Pulaski County, Arkansas (Id. ).
4. Defendant Sylvia D. Simon, M.D., is Chairman of the Arkansas State Medical Board (Id. , ¶ 18). Defendants Robert Breving Jr., M.D.; Veryl D. Hodges, D.O.; John H. Scribner, M.D.; Elizabeth Anderson; Rhys L. Branman, M.D.; Edward Gardner, M.D.; Rodney Griffin, M.D.; Betty Guhman; Brian T. Hyatt, M.D.; Timothy C. Paden, M.D.; Don R. Phillips, M.D.; William L. Rutledge, M.D.; and David L. Staggs, M.D., are members of the Arkansas State Medical Board (Id. ). The State Medical Board is responsible for licensing medical professionals under Arkansas law. See Ark. Code Ann. §§ 17-95-403, 409, 410. The State Medical Board and its members are responsible for imposing licensing penalties for unprofessional conduct, which includes, among other things, the "[c]onviction of a felony" and "[p]rocuring or aiding or abetting in procuring a wrongful and criminal abortion." See Ark. Code Ann. § 17-95-409(a)(2)(A), (D).
5. Defendant Jose R. Romero, M.D., is the Secretary of the Arkansas Department of Health (Dkt. No. 1, ¶ 19). Defendants Phillip Gilmore, Ph.D., M.S., M.H.A.; J. Loy Bailey; Perry Amerine, O.D.; Marsha Boss, P.D.; Lane Crider, P.E.; Brad Emey, D.M.D., P.L.C.; Melissa Faulkenberry, D.C.; Anthony N. Hui, M.D.; Balan Nair, M.D.; Greg Bledsoe, M.D.; Stephanie Barnes Beerman; Glen Bryant, M.D.; Dwayne Daniels, M.D.; Darren Flamik, M.D.; David Kiessling, D.P.M.; Carl Riddell, M.D.; Clay Waliski; Terry Yamauchi, M.D.; Donald Ragland; Susan Weinstein, D.V.M.; and James Zini, D.O., are members of the Arkansas State Board of Health (Id. ). The Department of Health's members are charged with enforcing licensing penalties, including license denial, suspension, or revocation, for violation of any provision of law or rule, including the Act. See Ark. Code Ann. § 20-9-302(b)(3)(A).
6. Act 309 states that "[i]t is the intent of this subchapter to ensure that abortion in Arkansas is abolished and to protect the lives of unborn children." Act 309 § 5-61-402(b) (emphasis in original). The Act further states that "[t]he General Assembly finds that ... [t]he State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight-year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey." Id. § 5-61-402(a)(12).
7. The Act provides that "[a] person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency." Act 309 § 5-61-404(a).
8. The Act defines "medical emergency" to mean "a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." Act 309 § 5-61-403(3).
9. The Act excludes from the definition of "abortion" acts performed that may result in the termination of a pregnancy where the purpose is to "to save the life or preserve the health of the unborn child," "remove a dead unborn child caused by spontaneous abortion
," or "remove an ectopic pregnancy." Act 309 § 5-61-403(1)(B). The Act defines "unborn child" as "an individual organism of the species Homo sapiens from fertilization until live birth." Id. § 5-61-403(4).
10. Performance or attempted performance of an abortion in violation of the Act constitutes an unclassified felony, which is punishable by up to ten years in prison or a fine of up to $100,000. Act 309 § 5-61-404(b).
11. Any physician who performs or attempts to...
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