MKB Mgmt. Corp. v. Burdick

• Decision Date: 22 July 2013
• Docket Number: Case No. 1:13–cv–071.
• Citation: 954 F.Supp.2d 900
• Parties: MKB MANAGEMENT CORP., d/b/a Red River Women's Clinic; Kathryn L. Eggleston, M.D., Plaintiffs, v. Birch BURDICK, in his official capacity as State Attorney for Cass County, et al., Defendants.
• Court: U.S. District Court — District of North Dakota

954 F.Supp.2d 900

MKB MANAGEMENT CORP., d/b/a Red River Women's Clinic; Kathryn L. Eggleston, M.D., Plaintiffs,

v.Birch BURDICK, in his official capacity as State Attorney for Cass County, et al., Defendants.

Case No. 1:13–cv–071.

United States District Court,

D. North Dakota,

Southwestern Division.

July 22, 2013.

Validity Called into Doubt

N.D.C.C. §§ 14–02.1–05.1, 14–02.1–05.2.

Rebecca S. Thiem, Zuger Kirmis & Smith, Thomas A. Dickson, Dickson Law Office, Bismarck, ND, David Brown, Janet Crepps, New York, NY, for Plaintiffs.

Birch P. Burdick, Cass County State's Atty., Fargo, ND, Scott K. Porsborg, Smith Bakke Porsborg & Schweigert, Douglas Alan Bahr, Attorney General's Office, Bismarck, ND, Daniel L. Gaustad, Joseph E. Quinn, Ronald F. Fischer, Pearson Christensen & Clapp, PLLP, Grand Forks, ND, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

DANIEL L. HOVLAND, District Judge.

Before the Court is “Plaintiffs' Motion for Preliminary Injunction” filed on June 25, 2013, seeking an order enjoining the enforcement of North Dakota House Bill 1456. See Docket No. 3. The Plaintiffs further request the bond requirement be waived in this matter. See Docket Nos. 3 and 6. Defendant Birch Burdick filed a response on July 19, 2013. See Docket No. 22. The remaining Defendants also filed a response on July 19, 2013. See Docket No. 23. The Court allowed the Plaintiffs until July 24, 2013, to file a reply brief. However, given the very short timeline before the law goes into effect, the Court elects to issue an order before the reply deadline so as not to wait until the eve of enforcement.¹ The parties have agreed there is no need for a hearing on the motion and the matter may be decided on the briefs. The threshold question is whether the United States Constitution permits the North Dakota legislature to prohibit abortion beginning at six weeks gestation and before the fetus is viable. The United States Supreme Court has clearly spoken and held that it does not. For the reasons set forth below, the motion for a preliminary injunction is GRANTED.

I. BACKGROUND

The Plaintiff, MKB Management Corp., doing business as Red River Women's Clinic (“the Clinic”), is the only clinic providing abortions in North Dakota. The Plaintiff, Kathryn Eggleston, is a board-certified family medicine physician licensed in North Dakota. Dr. Eggleston is the Clinic's medical director and has been providing reproductive health care for women, including abortions, colposcopy services, and family planning services, for over a decade. The Defendants include various North Dakota officials, including: Birch Burdick, the State's Attorney for Cass County; Wayne Stenehjem, the Attorney General for the State of North Dakota; and the thirteen members of the North Dakota Board of Medical Examiners. All Defendants are sued in their official capacity.

The Plaintiffs challenge the constitutionality of House Bill 1456 (“H.B. 1456”), to be codified at North Dakota Century Code Chapter 14–02.1, which provides as follows:

Determination of detectable heartbeat in unborn child before abortion-Exception. Except when a medical emergency exists that prevents compliance with this subsection, an individual may not perform an abortion on a pregnant woman before determining, in accordance with standard medical practice, if the unborn child the pregnant woman is carrying has a detectable heartbeat. Any individual who performs an abortion on a pregnant woman based on the exception in this subsection shall note in the pregnant woman's medical records that a medical emergency necessitating the abortion existed.

* * *

Abortion after detectable heartbeat in unborn child prohibited—Exception—Penalty. Notwithstanding any other provision of law, an individual may not knowingly perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn child the pregnant woman is carrying and whose heartbeat has been detected according to the requirements of [the above section] of this Act.

H.B. 1456, 63d Leg. Assemb., Reg. Sess. (N.D.2013). H.B. 1456, passed during the 2013 legislative session, makes it a criminal offense to perform an abortion if a “heartbeat” has been detected, thereby banning abortions beginning at approximately six weeks of pregnancy, with limited exceptions. The amendments contained in H.B. 1456 are scheduled to take effect on August 1, 2013.

Currently, North Dakota law prohibits abortions “[a]fter the point in pregnancy when the unborn child may reasonably be expected to have reached viability,” unless “in the medical judgment of the physician the abortion is necessary to preserve the life of the woman or if in the physician's medical judgment the continuation of her pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health.” N.D.C.C. § 14–02.1–04(3). Viability is defined as “the ability of an unborn child to live outside the mother's womb, albeit with artificial aid.” N.D.C.C. § 14–02.1–02(14) (to be recodified by H.B. 1305 as N.D.C.C. § 14–02.1–02(16)). However, H.B. 1456 would disrupt the current North Dakota abortion laws and prohibit abortions after a heartbeat is detected, which can occur as early as six weeks after a women's last menstrual period.

The Plaintiffs seek preliminary injunctive relief to restrain the Defendants from enforcing North Dakota H.B. 1456, which would essentially ban abortions in the State of North Dakota. The Plaintiffs contend the North Dakota statute is an unconstitutional abridgment of the right to abortion protected under the Fourteenth Amendment of the United States Constitution. H.B. 1456 also puts restraints on physicians in performing abortions by providing criminal punishment. A physician who knowingly violates the ban by performing an abortion when a heartbeat has been detected may face Class C felony charges, punishable by up to five years in prison. H.B. 1456 § 2(4) (referencing N.D.C.C. § 12.1–32–01(4)). Failure to determine whether a heartbeat is detectible is punishable through a disciplinary action against a physician by the North Dakota Board of Medical Examiners, which can include suspension or revocation of the physician's license. H.B. 1456 §§ 1(2), 3 (creating a new subsection to N.D.C.C. § 43–17–31); N.D.C.C. § 43–17–31 (referencing N.D.C.C. § 43–17–30.1).²

II. LEGAL DISCUSSION

In determining whether a preliminary injunction should be granted, Rule 65(b) of the Federal Rules of Civil Procedure directs the court to assess whether immediate and irreparable injury, loss, or damage will result to the applicant. The court is required to consider the factors set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir.1981). Whether a preliminary injunction or temporary restraining order should be granted involves consideration of “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id.

It is well-established that the burden of establishing the necessity of a temporary restraining order or a preliminary injunction is on the movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989). “ ‘No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.’ ” Baker Elec. Coop., Inc., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987)).

A. PROBABILITY OF SUCCESS ON THE MERITS

Normally, a party seeking a preliminary injunction need only show a “fair chance,” meaning less than fifty percent, of succeeding on the merits. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 730 (8th Cir.2008). The Eighth Circuit Court of Appeals recently revised the probability of success on the merits factor of the Dataphase analysis when applied to challenges of duly enacted statutes. Id. The Eighth Circuit concluded that the “fair chance” standard should not be applied to motions to preliminarily enjoin the enforcement of a state statute. Id. Instead, “where a preliminary injunction of a duly enacted state statute is sought, ... a more rigorous threshold showing that the movant is likely to prevail on the merits” is required. Id. (emphasis added).

The Plaintiffs contend H.B. 1456 is unconstitutional on its face because it bans abortions prior to viability. Given the controlling United States Supreme Court precedent, the Plaintiffs argue there is an exceedingly high likelihood of success on the merits of their claim that H.B. 1456 violates the substantive due process rights of their patients. If H.B. 1456 is allowed to take effect, nearly 90% of the abortions currently performed at the Red River Women's Clinic, the sole clinic providing abortions in North Dakota, will be prohibited. Further, the Clinic would likely have to close its doors if the bill takes effect. See Docket No. 3–5. Like many other healthcare facilities, the Clinic depends on patient revenues to function, and the bill would cause the Clinic to lose significant patient revenue. The Plaintiffs further argue that women will lose a critical component of their constitutional right to determine the number, timing, and spacing of their children, at great harm to themselves and their families.

The Defendants argue H.B. 1456 does not ban all abortions prior to viability because abortions can be performed up until the point at which a fetal heartbeat is detected and, therefore, is constitutional. Consistent with Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), the Defendants point the Court to states...