Planned Parenthood Great Nw. v. Cameron

Decision Date21 April 2022
Docket NumberCivil Action No. 3:22-cv-198-RGJ
Citation599 F.Supp.3d 497
Parties PLANNED PARENTHOOD GREAT NORTHWEST, HAWAII, ALASKA, INDIANA, AND KENTUCKY, INC., on Behalf of Itself, Its Staff, and Its Patients, Plaintiff v. Daniel CAMERON, in His Official Capacity as Attorney General of the Commonwealth of Kentucky; Eric Friedlander, in His Official Capacity as Secretary of Kentucky's Cabinet for Health and Family Services; Michael S. Rodman, in His Official Capacity as Executive Director of the Kentucky Board of Medical Licensure; and Thomas B. Wine, in His Official Capacity as Commonwealth's Attorney for the 30th Judicial Circuit of Kentucky, Defendants
CourtU.S. District Court — Western District of Kentucky

Carrie Y. Flaxman, Planned Parenthood Federation of America, Miranda H. Turner, Shipman & Goodwin, LLP, Washington, DC, Casey L. Hinkle, Michael P. Abate, Kaplan Johnson Abate & Bird LLP, Louisville, KY, Gloria Martinez Trattles, Jennifer S. Romano, Julie Murray, Marlee Santos, for Plaintiff.

Christopher L. Thacker, Kentucky Attorney General, Frankfort, KY, for Defendant Daniel Cameron.

MEMORANDUM OPINION & TEMPORARY RESTRAINING ORDER

Rebecca Grady Jennings, District Judge

Plaintiff Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, Inc. ("Plaintiff") moves for a temporary restraining order or, in the alternative, a preliminary injunction [DE 3 (the "Motion")] blocking the enforcement of Kentucky House Bill 3, the Humanity in Healthcare Act of 2022 [DE 1-1 ("HB 3")]. Defendant Attorney General Daniel Cameron ("Attorney General Cameron")1 responded [DE 21], and Plaintiff replied [DE 22]. This matter is ripe.

For the reasons below, Plaintiff's Motion for a Temporary Restraining Order [DE 3] is GRANTED to the extent that Defendants are restrained from enforcing HB 3 related to reporting and registration based on forms and programs not yet created or promulgated by the Cabinet for Health and Family Services ("Cabinet"). The Court does not consider at this stage the constitutionality of the substance of the requirements in HB 3, but merely the enforceability of the provisions based on the impossibility of compliance. The Court restrains enforcement of the entirety of HB 3 at this time, as it lacks information to specifically determine which individual provisions and subsections are capable of compliance. The Court will consider additional proof on this issue at the preliminary injunction hearing which will be scheduled prior to the expiration of this restraining order. This Order does not prevent the Cabinet from promulgating requisite regulations or creating any of the programs and forms required under HB 3. It also does not affect the enforcement of previously enacted legislation which HB 3 amended. KRS § 311.732.

I. BACKGROUND

Plaintiff filed its Complaint, asserting four claims, and now seeks emergency relief. [DE 1; DE 3]. Plaintiff claims that HB 3 violates: (1) procedural due process under the Fourteenth Amendment on its behalf, "[b]y taking effect immediately, without providing Plaintiff and other abortion providers time to comply, and by subjecting Plaintiff to HB 3's penalties when the Cabinet has not yet created the forms that Plaintiff is required to use, or promulgate the required regulations," (2) substantive due process under the Fourteenth Amendment on its behalf, "[b]y requiring plaintiff to comply ... despite compliance being impossible - ... prevent[s] Plaintiff from providing abortions and operating its business ...," (3) substantive due process on its patients’ behalf under the Fourteenth Amendment in violation of patient's rights to liberty and privacy by taking "effect immediately, and making compliance impossible by requiring Plaintiff to use agency forms and processes not yet available," and (4) substantive due process on its patients’ behalf under the Fourteenth Amendment in violation of Plaintiff's patients’ rights to informational privacy. [DE 1 at 21-23].

Plaintiff argues that emergency relief from HB 3 is warranted to protect itself and its patients from immediate and irreparable harm. [DE 3 at 109]. Plaintiff operates the Louisville Health Center of Louisville, Kentucky. [Id. at 112]. It provides various medical services to its patients, including birth control, HIV services, pregnancy testing, STD testing, treatment, and vaccines. [Id. ]. Along with these services, Plaintiff provides procedural and medication abortion services once a week on Fridays.2 [Id. ]. Plaintiff is one of two remaining abortion clinics in Kentucky and only provides abortions until 13 weeks and 6 days. [Id.; DE 1 at 7].

On March 29, 2022, the Kentucky Legislature passed HB 3, and Governor Andy Beshear vetoed it on April 8. [DE 3 at 113]. On April 13, the Kentucky Legislature voted to override Governor Beshear's veto. [DE 1 at 3]. HB 3 contains an emergency provision which states that it has immediate effect under the Kentucky Constitution. 2022 HB 3, § 39. HB 3 revises Kentucky's existing abortion regulations and creates new requirements, including a new regulatory regime for abortion-inducing medication, new reporting and registration requirements, and new requirements for disposition of fetal remains. [DE 3 at 109–110]. Violating HB 3 could result in a Class D felony, fines of up to $1 million, and revocation of physician and facility licenses. [Id. at 113].

HB 3 directs the Cabinet to promulgate requisite regulations and create forms. [Id. at 110]. Specifically, section 13(1) of HB 3 requires the Cabinet to create new forms to comply with Sections 1, 4, 8, 9, 25, 26, 27, and 29. 2022 HB 3, § 13. Section 1 requires a new form for providers to document emergency medical abortion services provided to minors without consent. Id. § 1. Section 4 requires a new form for providers to report abortions performed in Kentucky. Id. § 4. Section 8 requires a new form for providers to use when obtaining informed consent before providing medication abortions. Id. § 8. Section 9 requires a new form for providers to report medication abortions and any complications or resulting treatment. Id. § 9. Section 25 requires a new form for providers to report any complications resulting from abortions. Id. § 25. Section 26 requires a new form for providers to report any complications or adverse events related to abortions. Id. § 26. Section 27 requires a new form for providers to report the result of inquiries of patients as to gestational age and any medical exams or tests performed. Id. § 27. Section 29 requires a new form to report each prescription dispensed by a pharmacy for abortion medications. Id. § 29. HB 3 also requires physicians to sign an annual form prior to providing medication abortions, id. § 16, and the Cabinet must design forms to collect additional information related to the disposition of fetal remains under § 22(3). In sum, HB 3 requires the Cabinet to create or amend at least ten forms. Attorney General Cameron concedes that these forms have not been created or distributed. [DE 21 at 194].

HB 3 also creates a "Abortion Inducing Drug Certification Program" governing access to medication abortions. Id. § 15. Under HB 3, medication abortions can now only be provided by "qualified physicians" who are registered as non-surgical abortion providers. Id. Abortion facilities, manufacturers, and distributors must be certified under HB 3. Id. § 16. HB 3 does not specify how physicians are to register and the Court is unaware of any registration process. Nor has the Cabinet promulgated rules or regulations for complying with the Kentucky Abortion-Inducing Drug Certification Program. Attorney General Cameron agrees that the Cabinet has not yet created the certification programs. [DE 21 at 200–01].

II. DISCUSSION

In light of the emergency clause, Plaintiff's Motion asserts that until the Cabinet creates the requisite forms and promulgates all necessary rules and regulations, it cannot provide abortion services without violating HB 3 because it is impossible to comply with all HB 3's registration and reporting requirements. [DE 3 at 118]. Plaintiff asserts that by performing such services, it risks severe criminal and civil penalties associated with HB 3 which prevent it from providing legal abortion services. [Id. ]. Plaintiff has patients who have services scheduled as early as April 22, 2022. [Id. at 119]. Without a restraining order preventing HB 3 from being enforced, Plaintiff claims that it will be unable to provide services to its patients at their scheduled appointments and thus, irreparable harm will result. [Id. ].

Attorney General Cameron asserts that "Planned Parenthood is wrong that HB 3 requires it to submit forms and comply with regulations before they exist," [DE 21 at 194] and urges the Court to adopt a "better interpretation, and the one that accounts for HB 3 as a whole, [ ] that Planned Parenthood will not be required to use and/or submit such forms until the Cabinet has created and distributed them." [Id. at 199].

A. The Emergency Clause

The Kentucky Constitution provides that "No act ... shall become a law until ninety days after the adjournment of the session at which it was passed, except in cases of emergency [.]" Ky. Const. § 55 (emphasis added). "When a law takes effect 90 days after the Legislature adjourns, this gives time for the law to be published and for the officials of the state, as well as the people, to conform to them." McIntyre v. Commonwealth , 221 Ky. 16, 297 S.W. 931, 933 (1927). A law "containing an emergency clause becomes effective upon the Governor's approval." Beshear v. Acree , 615 S.W.3d 780, 806 (Ky. 2020). If the Governor of Kentucky vetoes a law with an emergency clause, then the law becomes effective when the legislature overrides the veto. Commissioners of Sinking Fund v. George , 104 Ky. 260, 47 S.W. 779, 782 (1989) overruled in part on other grounds by Pratt v. Breckinridge , 112 Ky. 1, 65 S.W. 136 (1901) ("[W]hen [the governor] disapproves [of a...

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