Meadows v. Heineman
| Decision Date | 14 July 2010 |
| Docket Number | No. 4:10CV3122.,4:10CV3122. |
| Parties | PLANNED PARENTHOOD OF the HEARTLAND and Dr. Jill L. Meadows, Plaintiffs, v. Dave HEINEMAN, Governor of Nebraska, in his official capacity; Jon Bruning, Attorney General of Nebraska; in his official capacity; Kerry Winterer, Chief Executive Officer, and Dr. Joann Schaefer, Director of the Division of Public Health, Nebraska Department of Health and Services, in their official capacities; and Crystal Higgins, President, Nebraska Board of Nursing, and Brenda Bergman-Evans, President, Nebraska Board of Advanced Practice Registered Nurses, in their official capacities, Defendants. |
| Court | U.S. District Court — District of Nebraska |
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28-326, 28-327, 28-327.03, 28-327.04, 28-340, 38-2021
Andrea D. Snowden, Baylor, Evnen Law Firm, Lincoln, NE, Jennifer Sandman, Mimi Y.C. Liu, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.
This matter is before the Court on the Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Filing No. 2). 1 The Motion is supported by a brief and indexes of evidence (Filing Nos. 4, 3, and 31). Defendants entered a Notice of Appearance (Filing No. 21), and the Court conferred with counsel for the parties on June 29, 2010, for purposes of establishing a briefing schedule. In accordance with the agreed-upon schedule, Defendants submitted their Brief (Filing No. 39) and Index of Evidence (Filing No. 40), and Plaintiffs submitted a Reply Brief (Filing No. 49). Defendants objected (Filing No. 37) to Plaintiffs' Index of Evidence, and Plaintiffs responded to the objections (Filing No. 50). Although the Defendants' evidentiary objections will be denied for purposes of the Court's analysis of the pending Motion, the Court has considered the objections when determining what weight to give to the Plaintiffs' evidence. Oral argument was heard on July 13, 2010. For the reasons discussed below, the Motion will be granted in part and denied in part.
Plaintiff Planned Parenthood of the Heartland (“Planned Parenthood”) is a not-for-profit corporation doing business in Nebraska. (Amended Compl., Filing No. 51, ¶ 7.) It operates a health center in Lincoln, Nebraska, licensed by the Nebraska Department of Health and Human Services (“DHHS”). The center “provides a broad range of reproductive health services, including, but not limited to, physical exams; pregnancy testing and planning services; contraception and contraceptive education; HIV testing; testing and treatment for sexually transmitted infections; screening for breast, cervical, colon, prostate and testicular cancer; and abortion.” ( Id.) Planned Parenthood intends to open a similar center in Omaha this year, and it provides similar services in Iowa and advertises those services in Nebraska. ( Id.) Planned Parenthood employs registered nurses and nurse practitioners, licensed by DHHS, to assist the physician with abortion procedures. ( Id.) Planned Parenthood brought this action “on its own behalf and on behalf of its current and future physicians, nurses, employees, staff, servants, officers and agents who participate in abortions, and on behalf of its current and future patients seeking abortion services.” ( Id.)
Plaintiff Dr. Jill Meadows is a practicing obstetrician and gynecologist, and Planned Parenthood's Medical Director. ( Id. ¶ 8). She is licensed to practice medicine in Nebraska, and, in addition to her duties of ensuring that all Planned Parenthood's medical services comply with applicable legal and professional obligations, she provides medical services, including some abortion services, in Nebraska. ( Id.) She brought the action on her own behalf and on behalf of her current and future patients seeking abortion services. ( Id.)
Defendant Dave Heineman is the Governor of Nebraska. Defendant Jon Bruning is the Attorney General of Nebraska. Both have broad powers to enforce and defend Nebraska statutes. Defendant Kerry Winterer is the Chief Executive Officer of DHHS. Defendant Dr. Joann Schaefer is the Director of the Division of Public Health, one of six divisions within DHHS, and its Chief Medical Officer. Dr. Schaefer has the power and duty to take disciplinary action against health care facilities, registered nurses, and nurse practitioners. Defendants Crystal Higgins and Brenda Bergman-Evans are the Presidents of the Nebraska Board of Nursing and Board of Advanced Practice Registered Nurses, respectively, which provide recommendations related to the issuance or denial of nursing credentials, and discipline of nurses. All Defendants have been sued in their official capacities only. ( Id. ¶¶ 9-11.)
On April 13, 2010, Governor Heineman approved a Legislative Bill passed by the Nebraska Legislature, “LB 594,” that will become effective July 15, 2010. ( Id. ¶¶ 1, 2, 9, and Exhibit 1, Filing No. 1-1.) The bill contains eighteen sections. It amends nine existing Nebraska statutes related to abortion; creates seven new statutes related to abortion; provides for severability of the bill's sections, and parts of its sections, in the event that any section or part of a section is declared invalid or unconstitutional; and repeals the nine original statutes that the bill amended.
Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, challenging LB 594 on seven constitutional bases. First, they contend that the bill is an effective ban on abortion in violation of their present and future patients' Fourteenth Amendment rights of liberty and privacy. Second, they allege that the bill is impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment. Third, they allege that the bill compels the disclosure of untruthful, misleading, irrelevant and unreasonable information to patients, in violation of the First Amendment rights of medical professionals, and resulting in an undue burden on the exercise of patients' Fourteenth Amendment rights. Fourth, they allege that the bill violates the Commerce Clause and Due Process Clause by purporting to subject out-of-state providers to the bill's mandates. Fifth, they allege that the bill violates medical providers' and patients' rights of Equal Protection under the Fourteenth Amendment, because the bill treats informed consent for abortion differently than informed consent for any other medical service or procedure. Sixth, they allege that the bill violates patients' rights of liberty and privacy under the Fourteenth Amendment by requiring them to disclose personal information not medically relevant to the abortion procedure as a condition to obtaining an abortion. Seventh, they allege that the bill violates minors' rights of liberty and privacy under the Fourteenth Amendment by requiring them to disclose, including to a parent, personal information not medically relevant to the abortion procedure.
Plaintiffs moved for a Temporary Restraining Order and Preliminary Injunction to prevent the bill from taking effect on July 15, 2010, and they also seek a judgment declaring that the bill is unconstitutional and that the Defendants are permanently enjoined from enforcing it. At the time of oral argument, Plaintiffs acknowledged that they are not asking the Court to enjoin the effective date of the bill or the bill itself, but to enjoin the Defendants from enforcing its terms.
LB 594 amends nine statutes, and creates seven new statutes, all within the Nebraska Criminal Code, and all related to abortion. Five of the bill's sections that amend existing statutes do not contain substantive amendments, but simply conform or harmonize statutory language to allow appropriate cross-reference to other statutes. Accordingly, sections 1, 13, 14, 15, and 16 of the bill will not be discussed. Section 17 provides for severability of the bill's sections, and parts of its sections, in the event that any section or part of a section is declared invalid or unconstitutional. Section 18 repeals original statutes amended by the bill. It is Sections 2 through 12 that contain language that will be addressed by the Court for purposes of the pending Motion for Temporary Restraining Order.
Section 2 of the bill would amend Neb.Rev.Stat. § 28-325, a statute that expresses the Nebraska Legislature's opinion, intent, and motivation, and includes other precatory language, but does not impose any specific legal duties, obligations, or penalties. This statute declares the Legislature's view that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), was a “legislative intrusion of the United States Supreme Court” that “removed the protection afforded the unborn” and that members of the Legislature “expressly deplore the destruction of the unborn human lives which has and will occur in Nebraska as a consequence of [ Roe ],” and intend “to provide protection for the life of the unborn child whenever possible.” LB 594 would add to this section, inter alia, an expression of the Legislature's opinion that “the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women,” and “[t]hat clarifying the minimum standard of care for preabortion screening and counseling in statute is a practical means of protecting the well-being of women[.]” Nothing in the amendments to § 28-325 imposes any duty, obligation, or penalty, or directly restricts access to products or services related to abortion.
Section 3 of the bill would amend Neb.Rev.Stat. § 28-326, a statute that contains definitions related to the topic of abortion. LB 594 would add three new definitions.
(2) Complications associated with abortion means any adverse physical, psychological, or emotional reaction that is reported in a peer-reviewed journal to...
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