MKB Mgmt. Corp. v. Burdick
| Decision Date | 16 April 2014 |
| Docket Number | Case No. 1:13–CV–071. |
| Citation | 16 F.Supp.3d 1059 |
| Court | U.S. District Court — District of North Dakota |
| Parties | MKB MANAGEMENT CORP., d/b/a Red River Women's Clinic ; and Kathryn L. Eggleston, M.D., Plaintiffs, v. Birch BURDICK, in his official capacity as State's Attorney for Cass County, et al., Defendants. |
Rebecca S. Thiem, Zuger Kirmis & Smith, Thomas A. Dickson, Dickson Law Office, Bismarck, ND, David Brown, Janet Crepps, New York, NY, for Plaintiffs.
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 SUMMARY JUDGMENT
Before the Court is the “Plaintiffs' Motion for Summary Judgment” filed on October 15, 2013. See Docket No. 40. The Defendants filed a response on January 17, 2014. See Docket No. 69. The Plaintiffs filed a reply brief on February 24, 2014. See Docket No. 96. A hearing on the motion was held on April 4, 2014, in Bismarck, North Dakota. The threshold question is whether the Legislative Assembly of North Dakota can prohibit abortions beginning at six weeks gestation and before the fetus is viable. The United States Supreme Court has clearly spoken and held it is not constitutionally permissible to do so. For the reasons set forth below, the Plaintiffs' motion for summary judgment is GRANTED.
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 Cass County State's Attorney; 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”), codified at North Dakota Century Code Chapter 14–02.1, which provides as follows:
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 were scheduled to take effect on August 1, 2013. However, on July 22, 2013, 954 F.Supp.2d 900 (D.N.D.2013), this Court issued a preliminary injunction enjoining the implementation of the law. See Docket No. 25.
At the present time, 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) (). H.B. 1456 would prohibit abortions after a heartbeat is detected, which all agree can occur as early as six weeks after a woman's last menstrual period.
The Plaintiffs initially requested preliminary injunctive relief to restrain the Defendants from enforcing H.B. 1456, which would essentially ban all 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 (); N.D.C.C. § 43–17–31 (referencing N.D.C.C. § 43–17–30.1 ).
Since the issuance of a preliminary injunction on July 22, 2013, the parties have engaged in limited discovery and conducted depositions of several key witnesses.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates no genuine issues of material fact exist and, therefore, the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir.2007) ; see Fed.R.Civ.P. 56(a). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.
The Court must inquire whether the evidence presents sufficient disagreement to require the submission of the case to a jury or if it is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir.2005), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.2011). The non-moving party may not rely merely on allegations or denials in its own pleading; rather, its response must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1). The court must consider the substantive standard of proof when ruling on a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
The Plaintiffs contend H.B. 1456 is unconstitutional on its face because it bans abortions prior to viability. Given controlling United States Supreme Court precedent, the Plaintiffs contend that H.B. 1456 violates the substantive due process rights of their patients. If H.B. 1456 is allowed to take effect, nearly 100% of the abortions currently performed at the Red River Women's Clinic, the sole clinic providing abortions in North Dakota, will be prohibited. The Defendants have recently taken the position that viability of a fetus occurs at the moment of conception, which would result in a prohibition of all abortions in North Dakota.
Despite the newly-adopted position that viability occurs at the point of conception, 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. The Defendants opine H.B. 1456 limits pre-viability abortions after detection of the fetal heartbeat pursuant to the State's interest “in protecting the life of the fetus that may become a child....” Gonzales v. Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007).
The Defendants also argue a woman's right to abortion before viability is not absolute and must be weighed against the state's interest in protecting the fetus and the mother. According to the Defendants', the fact that H.B. 1456 serves a valid purpose—to further the state's interest in protecting the life of the unborn, protecting the physical and mental health of women who may seek to procure an abortion, preserving the integrity of the medical profession, preventing the coarsening of society's moral sense and promoting respect for human life—“not designed to strike at the right itself, [but which] has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id. at 157–58, 127 S.Ct. 1610 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ). While the Defendants are correct that a state's interests must also be examined in the abortion debate, the state's interest cannot unduly burden a woman's right to...
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