MKB Mgmt. Corp. v. Stenehjem

• Decision Date: 22 July 2015
• Docket Number: No. 14–2128.,14–2128.
• Citation: 795 F.3d 768
• Parties: MKB MANAGEMENT CORP., doing business as Red River Women's Clinic ; Kathryn L. Eggleston, M.D., Plaintiffs–Appellees v. Wayne STENEHJEM, in his official capacity as Attorney General for the State of North Dakota; Larry Johnson, M.D.; Robert Tanous, D.O.; Kate Larson, P.A. C.; Norman Byers, M.D.; Cory Miller, M.D.; Kayleen Wardner; Gaylord J. Kavlie, M.D.; Kent Martin, M.D.; Kent Hoerauf; Burt L. Riskedahl; Jonathan Haug, M.D.; Genevieve Goven, M.D.; Robert J. Olson, M.D., in their official capacities as members of the North Dakota Board of Medical Examiners, Defendants–Appellants Birch Burdick, in his official capacity as State Attorney for Cass County, Defendant. Foundation for Moral Law ; Lutherans for Life; Women Injured by Abortion; An Abortion Survivor–Dawn Milberger and Sandra Cano; The Former “Mary Doe” of “Doe v. Bolton”, Amici on Behalf of Appellant(s). American Psychological Association; American Public Health Association; American College of Obstetricians and Gynecologists; Physicians for Reproductive Health ; Program for the Study of Reproductive Justice–Information Society Project at the Yale Law School, Amici on Behalf of Appellee(s).
• Court: U.S. Court of Appeals — Eighth Circuit

795 F.3d 768

MKB MANAGEMENT CORP., doing business as Red River Women's Clinic ;

Kathryn L. Eggleston, M.D., Plaintiffs–Appelleesv.Wayne STENEHJEM, in his official capacity as Attorney General for the State of North Dakota;

Larry Johnson, M.D.;

Robert Tanous, D.O.;

Kate Larson, P.A. C.;

Norman Byers, M.D.;

Cory Miller, M.D.;

Kayleen Wardner;

Gaylord J. Kavlie, M.D.;

Kent Martin, M.D.;

Kent Hoerauf;

Burt L. Riskedahl;

Jonathan Haug, M.D.;

Genevieve Goven, M.D.;

Robert J. Olson, M.D., in their official capacities as members of the North Dakota Board of Medical Examiners, Defendants–Appellants

Birch Burdick, in his official capacity as State Attorney for Cass County, Defendant.

Foundation for Moral Law ;

Lutherans for Life;

Women Injured by Abortion;

An Abortion Survivor–Dawn Milberger and Sandra Cano;

The Former “Mary Doe” of “Doe

v. Bolton”, Amici on Behalf of Appellant(s).

American Psychological Association;

American Public Health Association;

American College of Obstetricians and Gynecologists;

Physicians for Reproductive Health ;

Program for the Study of Reproductive Justice–Information Society Project at the Yale Law School, Amici on Behalf of Appellee(s).

No. 14–2128.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 13, 2015.

Filed: July 22, 2015.

Daniel L. Gaustad, argued (Ronald F. Fischer, Joseph E. Quinn, on the brief), Grand Forks, ND, for Defendants–Appellants.

Foundation for Moral Law and Lutherans for Life, amicus curiae, John A. Eidsmoe, on the brief, Montgomery, AL, for appellants.

Women Injured by Abortion, an Abortion Survivor—Dawn Milberger, and Sandra Cano, The Former “Mary Doe” of Doe v. Bolton, amicus curiae, Allan E. Parker, Jr., San Antonio, TX, Kathleen Cassidy Goodman, Helotes, TX, on the brief, for appellants.

Janet Crepps, argued, New York, NY, Rebecca S. Thiem, Thomas A. Dickson, Bismarck, ND, David Patrick Brown, New York, NY, on the brief, for appellees.

American Psychological Association, amicus curiae, Nathalie F.P. Gilfoyle, Kimberly A. Parker, Washington, D.C., Anna E. Lumelsky, Boston, MA, on the brief, for appellees.

American Public Health Association, amicus curiae, Shannon Rose Selden, Courtney M. Dankworth, Miranda H. Turner, on the brief, New York, NY, for appellees.

American College of Obstetricians and Gynecologists and Physicians for Reproductive Health, amicus curiae, Claude G. Szyfer, Jerry H. Goldfeder, Jennifer J. Arbuse, on the brief, New York, NY, for appellees.

Program for the Study of Reproductive Justice—Information Society Project at the Yale Law School, amicus curiae, Priscilla J. Smith, on the brief, Brooklyn, NY, for appellees.

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

Opinion

SHEPHERD, Circuit Judge.

This case presents the question whether, given the current state of medical science, a state generally may prohibit physicians from aborting unborn children who possess detectable heartbeats. The district court¹ held that it may not. Because United States Supreme Court precedent does not permit us to reach a contrary result, we affirm.

I.

North Dakota has, for a number of years, prohibited abortion “[a]fter the point in pregnancy when the unborn child may reasonably be expected to have reached viability,” except when necessary to preserve the life or health of the mother. N.D. Cent.Code § 14–02.1–04(3). North Dakota defines “viable” as “the ability of an unborn child to live outside the mother's womb, albeit with artificial aid.” Id. § 1402.1–02(19).

In 2013, North Dakota passed House Bill 1456, codified at N.D. Cent.Code § 14–02.1, which extends the general prohibition on abortion to the point in pregnancy when the unborn child possesses a detectable heartbeat. H.B. 1456 contains two operative provisions. The first requires a physician performing an abortion to “determin[e], in accordance with standard medical practice, if the unborn child the pregnant woman is carrying has a detectable heartbeat.” H.B. 1456 § 1.1, 63d Leg. Assemb., Reg. Sess. (N.D. 2013). This requirement does not apply “when a medical emergency exists that prevents compliance.” Id.; see also N.D. Cent.Code § 14–02.1–02(12) (defining “medical emergency”). A physician who violates the heartbeat testing requirement is subject to disciplinary action before the state board of medical examiners. See H.B. 1456 § 1.2.

The second operative provision prohibits a physician from performing an abortion on a pregnant woman if the unborn child has a “heartbeat [that] has been detected according to the requirements of section 1.” Id. § 2.1. There are exceptions for the life or health of the pregnant woman and for the life of another unborn child. Id. § 2.2(a). A physician who violates this provision commits a felony. Id. § 2.4. The pregnant woman, however, is not subject to liability. Id.

Plaintiff MKB Management Corporation, doing business as the Red River Women's Clinic, is the sole abortion provider in North Dakota. Plaintiff Dr. Kathryn Eggleston is a board-certified family medicine physician, licensed to practice in North Dakota, who serves as the Clinic's medical director and provides abortions to the Clinic's patients. The defendants are the State's Attorney for the county in which the Clinic is located, the North Dakota Attorney General, and the members of the North Dakota Board of Medical Examiners, all in their official capacities (collectively, the “State”).

Before H.B. 1456 took effect, the plaintiffs brought suit in the district court, challenging the law's constitutionality and seeking injunctive relief. The district court granted a preliminary injunction enjoining the implementation of H.B. 1456.

The plaintiffs then moved for summary judgment, arguing H.B. 1456 violates the Due Process Clause of the United States Constitution. The plaintiffs submitted declarations from Dr. Eggleston and Dr. Christie Iverson, a board-certified obstetrician and gynecologist licensed in North Dakota, both stating that fetal cardiac activity is detectable by about 6 weeks and that a fetus is not viable until about 24 weeks.² In response, the State submitted the declaration of Dr. Jerry Obritsch, a board-certified obstetrician and gynecologist licensed in North Dakota, that an unborn child's heartbeat is detectable by about 6 to 8 weeks and that an unborn child is viable from conception because in vitro fertilization

(“IVF”)³ “allow[s] an embryonic unborn child to live outside the human uterus (womb) for 2—6 days after conception.” Obritsch Dec. at 8.

The district court found that “[a] woman's constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court for more than forty years since Roe v. Wade.” MKB Mgmt. Corp. v. Burdick, 16 F.Supp.3d 1059, 1070 (D.N.D.2014). It reasoned that “the affidavit of Dr. Obritsch does not create a genuine issue [as to when viability occurs] primarily because Dr. Obritsch uses a different definition of viability than the one used by either the United States Supreme Court or the medical community generally.” Id. at 1073. Concluding that “H.B. 1456 clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion,” the district court granted summary judgment to the plaintiffs, permanently enjoining H.B. 1456. Id. at 1074–75. The State now appeals.

II.

We review the district court's grant of summary judgment de novo and its permanent injunction for an abuse of discretion. Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir.2009).

The State argues that the Supreme Court has called into question the continuing validity of its abortion jurisprudence, see Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (merely assuming, rather than reaffirming, the principles established in prior cases), and that changes in the facts underlying Roe and Casey require us to overturn those cases.

The evolution in the Supreme Court's jurisprudence reflects its increasing recognition of states' profound interest in protecting unborn children. In 1973, the Court announced it would regulate abortion according to the trimester framework. Roe v. Wade, 410 U.S. 113, 164–65, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Although Roe acknowledged there were “important state interests in regulation,” it prohibited states from issuing regulations designed to promote their interest in “protecting potential life” during the first two trimesters of pregnancy. Id. at 154, 164, 93 S.Ct. 705.

By 1992, however, a plurality of the Court had rejected the trimester framework because it failed to “fulfill Roe's own promise that the State has an interest in protecting fetal life or potential life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Casey recognized “there is a substantial state interest in potential life throughout pregnancy.” Id. (plurality opinion). To give this interest due consideration, Casey replaced Roe's trimester framework with the undue burden analysis, under which a state may promote its interest in potential life by regulating abortion before viability so long as the regulation's “purpose or effect is [not] to place a substantial obstacle in the path of a woman seeking an abortion.” Id. at 878, 112 S.Ct. 2791 (plurality opinion).

Most recently, a majority of the Court, when presented with an opportunity to reaffirm Casey, chose instead merely to “assume” Casey's principles for the purposes of its opinion. See Gonzales, 550 U.S. at 145–46, 127 S.Ct. 1610 (“assum[ing] the following principles [from Casey ] for the purposes of this opinion,” but recognizing those principles “did not find support from all those who join the instant opinion”); see also id. at 186–87, 127 S.Ct. 1610 (Ginsburg, J., dissenting) (observing that “[t]he Court's hostility to the right Roe and Casey secured” is evident in the fact that the Court “merely assume[d] for the moment, rather than retained or...