Memphis Ctr. for Reprod. Health v. Slatery

• Decision Date: 24 July 2020
• Docket Number: NO. 3:20-cv-00501,3:20-cv-00501
• Parties: MEMPHIS CENTER FOR REPRODUCTIVE HEALTH, et al., Plaintiffs, v. HERBERT H. SLATERY, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

MEMPHIS CENTER FOR REPRODUCTIVE HEALTH, et al., Plaintiffs, v. HERBERT H. SLATERY, et al., Defendants.

NO. 3:20-cv-00501

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

July 24, 2020

JUDGE CAMPBELL

MAGISTRATE JUDGE FRENSLEY

MEMORANDUM

Pending before the Court are Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. No. 6), Defendants' Response (Doc. No. 27), and Plaintiffs' Reply (Doc. No. 34). The Court issued a Temporary Restraining Order on July 13, 2020 (Doc. No. 33), which expires on July 27, 2020, at noon. The parties filed a Joint Notification Regarding Preliminary Injunction Hearing (Doc. No. 39) on July 17, 2020, stating they have jointly agreed to submit the Motion to the Court based on the filings alone, without a hearing. Plaintiffs' request for a preliminary injunction is, therefore, ripe for decision.

I. Introduction

The judiciary ... has ... no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment ... The Federalist No. 78

Tennessee lawmakers recently passed laws that expose healthcare providers to criminal sanctions for performing abortions under certain circumstances. Plaintiffs ask the Court to prevent the State from enforcing those new laws on the basis that they are unconstitutional. The State argues that the laws are constitutional and should be allowed to be enforced.

The Supreme Court found in Roe v. Wade, 410 U.S. 113 (1973), that a woman's decision to have an abortion was constitutionally protected under the right to privacy found - not expressly, but implicitly among various provisions - in the U.S. Constitution. That central holding was affirmed by a plurality in Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992). In the almost thirty years since Casey, the Court - often by close votes or in plurality opinions - has not deviated from its framework that centers around the questions of fetal viability and when state regulation constitutes an "undue burden" on a woman's right to an abortion. See generally, Casey.¹

To be sure, the Roe and Casey opinions did not disclaim any state interest in regulating abortions. Indeed, Casey affirmed that "there is a substantial state interest in potential life throughout the pregnancy" and found constitutional several state regulations at issue in that case. Casey, 505 U.S. at 876. And states continue to pass laws concerning abortion and argue policy concerning that procedure, as is their right, which then become subject to judicial scrutiny. As Justice Scalia noted in his Casey partial concurrence, Roe created a "mandate for abortion on demand [that] destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." Casey, 505 U.S. at 995.

Casey established an "undue burden" framework for courts to use when balancing a woman's right to a pre-viability abortion and the state's interests: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877(emphasis added). This Court is duty bound to apply the holding of Casey to the facts of this case.²

This Court leaves debate about Roe, Casey and their progeny to the learned jurists on the Supreme Court, legal scholars, legislators and the public — a debate that remains lively and important. The Tennessee General Assembly passed, and Governor Lee ultimately signed, a law that criminalizes the provision of abortions in Tennessee once a fetal heartbeat³ is detected or when an abortion is sought for specified reasons. Applying binding Supreme Court precedent and the factors required for the extraordinary remedy of an injunction under Federal Rule of Civil Procedure 65, the Court concludes that an injunction should issue.

II. The Challenged Statute and Plaintiffs' Claims

Plaintiffs request the Court issue a preliminary injunction prohibiting the enforcement of two provisions relating to pre-viability abortions recently enacted by the Tennessee General Assembly in House Bill 2263/Senate Bill 2196 ("HB 2263"). The two provisions in HB 2263 challenged by Plaintiffs are to be codified at Tennessee Code Annotated Sections 39-15-216 and 39-15-217.⁴

Section 216(c)(1) provides that a person who performs or induces an abortion "upon a pregnant woman whose unborn child has a fetal heartbeat" commits a Class C felony.⁵ Section 216(c)(2) criminalizes abortions when the "unborn child is six weeks gestational age⁶ or older" unless there is no "fetal heartbeat." Sections (c)(3) through (12) criminalize the provision of an abortion at various intervals from eight weeks through 24 weeks gestational age. Section 216(b) criminalizes abortions performed without first determining the gestational age of the unborn child. Section 216(e) provides an affirmative defense to criminal prosecution where "in the physician's reasonable medical judgment, a medical emergency prevented compliance with the provision," and certain other conditions are satisfied. "Medical emergency" is defined as "a condition that, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create." Tenn. Code Ann. §§ 39-15-216(a)(4); 39-15-211(a)(3).⁷ A physician who is criminally charged under this section must report the charge to the board of medical examiners. Tenn. Code Ann. § 39-15-216(g). Section 216(h) contemplates the severability of any provision found to be unenforceable, leaving any enforceable provisions intact. Plaintiffs refer to theprovisions of Section 216 as the "Cascading Bans," and Defendants refer to them as the "Gestational-Age Provisions."

Sections 217(b) and (c) provide that a person who performs or induces an abortion upon a pregnant woman "if the person knows that the woman is seeking the abortion because of the sex of the unborn child" or the "race of the unborn child" commits a Class C felony. Section 217(d) criminalizes the provision of an abortion "if the person knows that the woman is seeking the abortion because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child." Section 217(e) provides an affirmative defense to criminal prosecution where "in the physician's reasonable medical judgment, a medical emergency prevented compliance with the provision," and certain other conditions are satisfied. "Medical emergency" is defined the same as in Section 216(a)(4). Tenn. Code Ann. § 39-15-217(a)(3). A physician who is criminally charged under this section must report the charge to the board of medical examiners. Tenn. Code Ann. § 39-15-217(h). Section 216(i) contemplates the severability of any provision found to be unenforceable, leaving any enforceable provisions intact. Plaintiffs refer to the provisions of Section 217 as the "Reason Bans," and Defendants refer to them as the "Non-Discrimination Provisions."

Because Tennessee law currently prohibits abortion after viability, Tenn. Code Ann. § 39-15-211(b)(1), the prohibitions in Sections 216 and 217 apply to pre-viability abortions. "Viability," for purposes of HB 2263 and under current Tennessee law, is defined as "that stage of fetal development when the unborn child is capable of sustained survival outside of the womb, with or without medical assistance." Tenn. Code Ann. §§ 39-15-216(a)(6); 39-15-211(a)(7). Tennessee law currently creates a rebuttal presumption of viability at 24 weeks gestational age. Tenn. Code Ann. § 39-15-211(b)(5). Tennessee law also currently prohibits abortion, except in amedical emergency, after the beginning of the twentieth week of gestational age, unless the physician determines the unborn child is not viable, as measured by gestational age, weight, biparietal diameter, "and other factors that the physician in the physician's good faith medical judgment would consider in determining whether an unborn child is viable." Tenn. Code Ann. § 39-15-212(a).

Plaintiffs are Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Knoxville Center for Reproductive Health, and carafem, all health care centers providing reproductive health services, including abortions; as well as Dr. Kimberly Looney and Dr. Nikki Zite, physicians who perform abortions. (Doc. No. 1). Defendants are Attorney General Herbert H. Slatery III; Dr. Lisa Piercey, Commissioner of the Tennessee Department of Health; Dr. Rene Saunders, Chair of the Board for Licensing Health Care Facilities; Dr. W. Reeves Johnson, Jr., President of the Tennessee Board of Medical Examiners; District Attorney General for Knox County Amy Weirich; District Attorney General for Nashville Glenn R. Funk; District Attorney General for Knox County Charme P. Allen; and District Attorney for Wilson County Tom P. Thompson, Jr. (Id.)

Plaintiffs allege Sections 216 and 217 are unconstitutional bans on pre-viability abortions in violation of Fourteenth Amendment substantive due process. (Id.) Plaintiffs also allege Section 217 is unconstitutionally void for vagueness. (Id.) In addition, Plaintiffs allege Sections 216 and 217 are unconstitutional because they lack a valid medical-emergency exception. Plaintiffs argue the medical-emergency affirmative defense provisions are invalid because they are unconstitutionally void for vagueness.

To support their ...