Memphis Ctr. for Reprod. Health v. Slatery

• Citation: 14 F.4th 409
• Decision Date: 10 September 2021
• Docket Number: No. 20-5969,20-5969
• Parties: MEMPHIS CENTER FOR REPRODUCTIVE HEALTH; Planned Parenthood of Tennessee and North Mississippi; Knoxville Center for Reproductive Health; FemHealth USA, Inc., d/b/a carafem; Dr. Kimberly Looney; Dr. Nikki Zite, Plaintiffs-Appellees, v. Herbert H. SLATERY, III ; Lisa Piercey, M.D.; Rene Saunders, M.D., W. Reeves Johnson, Jr., M.D.; Amy P. Weirich; Glenn R. Funk; Charme P. Allen; Tom P. Thompson, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

14 F.4th 409

MEMPHIS CENTER FOR REPRODUCTIVE HEALTH; Planned Parenthood of Tennessee and North Mississippi; Knoxville Center for Reproductive Health; FemHealth USA, Inc., d/b/a carafem; Dr. Kimberly Looney; Dr. Nikki Zite, Plaintiffs-Appellees,

v.Herbert H. SLATERY, III ; Lisa Piercey, M.D.; Rene Saunders, M.D., W. Reeves Johnson, Jr., M.D.; Amy P. Weirich; Glenn R. Funk; Charme P. Allen; Tom P. Thompson, Jr., Defendants-Appellants.

No. 20-5969

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2021

Decided and Filed: September 10, 2021

ARGUED: Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Rabia Muqaddam, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellees. ON BRIEF: Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Rabia Muqaddam, Jessica Sklarsky, Jen Samantha D. Rasay, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Thomas H. Castelli, AMERICAN CIVIL LIBERTIES UNION, Nashville, Tennessee, Susan Lambiase, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, Brigitte Amiri, Andrew Beck, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. David E. Fowler, CONSTITUTIONAL GOVERNMENT DEFENSE FUND, Franklin, Tennessee, Michelle K. Terry, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor, Michigan, Mathew W. Hoffman, ALLIANCE DEFENDING FREEDOM, Ashburn, Virginia, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., S. Chad Meredith, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Priscilla J. Smith, YALE LAW SCHOOL, Brooklyn, New York, Sarah A. Hunger, OFFICE OF THE ILLINOIS ATTORNEY GENERAL, Chicago, Illinois, Janice Mac Avoy, Alexis R. Casamassima, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York, Rachel Thorn, Marc Suskin, Caroline Pignatelli, Kaitland Kennelly, Ashlesha Srivastava, Allison Kutner, COOLEY LLP, New York, New York, Darina Shtrakhman, COOLEY LLP, San Francisco, California, Kelly M. Dermody, Tiseme G. Zegeye, Nigar A. Shaikh, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, San Francisco, California, Carles Anderson, SISTERREACH, Memphis, Tennessee, Zachary W. Martin, Boston, Massachusetts, Geoffrey M. Wyatt, Washington, D.C., Jon Greenbaum, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., Melissa Cassel, O'MELVENY & MYERS LLP, San Francisco, California, Zhao Liu, O'MELVENY & MYERS LLP, Washington, D.C., Stuart M. Sarnoff, Christopher P. Burke, O'MELVENY & MYERS, New York, New York, for Amici Curiae.

Before: DAUGHTREY, MOORE, and THAPAR, Circuit Judges.

DAUGHTREY, J., delivered the opinion of the court in which MOORE, J., joined. THAPAR, J. (pp. 437-62), delivered a separate opinion concurring in judgment in part and dissenting in part.

MARTHA CRAIG DAUGHTREY, Circuit Judge.

In the early hours of June 19, 2020, the last day of the Tennessee General Assembly's session, the state legislature passed one of the strictest abortion regulations in the country, House Bill 2263. There are two provisions of the Act at issue in this appeal. Section 216 criminalizes the performance of pre-viability abortions at cascading intervals of two to three weeks, beginning with the detection of a "fetal heartbeat" and continuing through a gestational age of 24 weeks. The scheme provides that if any earlier restriction is found to be invalid, the others remain in effect. Section 217 criminalizes the performance of an abortion if the physician "knows" the reason for the abortion is "because of" the race, sex, or a Down syndrome

diagnosis of the fetus. Both sections contain an affirmative-defense provision when the abortion was performed because, "in the physician's good faith, reasonable medical judgment," the abortion was necessary to avoid a medical emergency. Plaintiffs—four reproductive-health centers and two physicians, suing on behalf of themselves and their patients—challenged the constitutionality of sections 216 and 217 and requested a preliminary injunction. They argued that both sections 216 and 217 substantively violate the Due Process Clause of the United States Constitution as an undue burden on pre-viability abortions, that section 217 is also void for vagueness, and that the medical-emergency affirmative-defense provisions are insufficient because they are unconstitutionally vague. The district court evaluated the submitted declarations and arguments and determined that the plaintiffs were likely to succeed on the merits of their claims. The court issued a preliminary injunction banning implementation of sections 216 and 217 but declined to address the substantive due process challenge to section 217 because it found that the section was unconstitutional under the void-for-vagueness doctrine. The State¹ now appeals the issuance of the preliminary injunction, including the legal conclusions and factual findings on which it is based, and asks us to address, in the first instance, whether section 217 violates substantive due process principles. Because access to pre-viability abortion is a constitutionally protected right, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs—Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Knoxville Center for Reproductive Health, FemHealth USA, Inc., and Drs. Kimberly Looney and Nikki Zite on behalf of themselves and their patients—challenge two provisions of Tennessee House Bill 2263/Senate Bill 2196 (H.B. 2263) that impose bans or restrictions on certain pre-viability abortions.

Tennessee General Assembly Enacts House Bill 2263

The Tennessee General Assembly enacted H.B. 2263 in the early hours of June 19, 2020, with the intention of restricting pre-viability abortions; Tennessee has long prohibited abortions after viability. Tenn. Code Ann. §§ 39-15-201(b)(1), -211(b), -212(a). The challenged provisions, sections 216 and 217, expose healthcare providers to criminal sanctions for performing abortions at certain gestational stages or for certain reasons.

Under section 216, it constitutes a Class C felony for a physician to perform an abortion on a patient² at specified "gestational ages,"³ all of them pre-viability. A Class C felony is punishable by three to 15 years of imprisonment and a fine of up to $10,000. Tenn. Code Ann. § 40-35-111(b)(3). The Act criminalizes abortion upon the detection of a "fetal heartbeat,"⁴ § 216(c)(1); at six weeks, § 216(c)(3); at eight weeks, § 216(c)(4); and so on, at various intervals, through 24 weeks, § 216(c)(12).

Section 217 makes it a Class C felony to perform, induce, or attempt to perform or induce an abortion if the physician "knows that the woman is seeking the abortion because of" the sex of the fetus, § 217(b); the race of the fetus, § 217(c); or "a prenatal diagnosis, test, or screening indicating Down syndrome

or the potential for Down syndrome," § 217(d).

Both sections 216 and 217 include an "affirmative defense" provision that applies to physicians that perform, induce, or attempt to perform or induce an abortion because of a medical emergency where certain conditions are satisfied. § 216(e)(1)-(2); § 217(e)(1)-(2). The provisions state that "it is an affirmative defense to criminal prosecution for a violation of a provision of this section that, in the physician's reasonable medical judgment, a medical emergency prevented compliance with the provision." § 216(e)(1); § 217(e)(1). It requires that the physician certify in writing that in their "good faith, reasonable medical judgment, ... compliance with the provision was prevented by a medical emergency." § 216(e)(2)(A); § 217(e)(2)(A). "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). The statute specifically excludes a claim or diagnosis related to the woman's mental health. § 216(a)(4).

Both sections 216 and 217 contain a severability clause. Pursuant to those clauses, if any provision of the section is found to be unenforceable, the other enforceable provisions shall remain intact. § 216(h); § 217(i).

Plaintiffs challenge the constitutionality of sections 216 and 217 of H.B. 2263

On the day H.B. 2263 was passed, the plaintiffs filed a complaint in the United States District Court for the Middle District of Tennessee alleging that sections 216 and 217 are unconstitutional because they ban pre-viability abortions in violation of Fourteenth Amendment's substantive-due-process provisions and lack a valid medical-emergency exception, and also because section 217 is unconstitutionally vague and thus violative of the plaintiffs’ procedural due process rights. They sought a temporary restraining order and/or a preliminary injunction.

Plaintiffs’ Declarants

In support of their motion for injunctive relief, the plaintiffs filed declarations from Dr. Kimberly Looney, Dr. Mary Norton, Dr. Nikki Zite, Corinne Rovetti, FNP, APRN-BC, Rebecca Terrell, and Melissa Grant.

Looney is a board-certified obstetrician and gynecologist who serves as the Chief Medical Officer of Planned Parenthood Tennessee and North Mississippi (PPTNM). PPTNM is a not-for-profit organization that operates four health centers in Tennessee—one in Nashville, one in Knoxville, and two in Memphis. Among a wide-range of women's health and reproductive health services, PPTNM provides medication abortions through 11-weeks from the first day of a patient's last menstrual period (LMP), and two...