Planned Parenthood Great Nw. v. Cameron
| Decision Date | 19 May 2022 |
| Docket Number | Civil Action No. 3:22-cv-198-RGJ |
| Parties | PLANNED PARENTHOOD GREAT NORTHWEST, HAWAII, ALASKA, INDIANA, AND KENTUCKY, INC., on Behalf of Itself, Its Staff, and Its Patients, Plaintiff and EMW Women's Surgical Center, P.S.C., on Behalf of Itself, Its Staff, and Its Patients; Ernest W. Marshall, M.D., on Behalf of Himself and His Patients, Intervenor Plaintiffs 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 |
| Court | U.S. District Court — Western District of Kentucky |
Carrie Y. Flaxman, Julie Alyssa Murray, Planned Parenthood Federation of America - DC, Washington, DC, Gloria Martinez Trattles, Pro Hac Vice, Miranda H. Turner, Pro Hac Vice, Crowell & Moring LLP, Washington, DC, Casey L. Hinkle, Michael P. Abate, William Richard Adams, II, Kaplan Johnson Abate & Bird LLP, Louisville, KY, Jennifer Salzman Romano, Pro Hac Vice, Crowell & Moring LLP, Los Angeles, CA, Marlee Santos, Crowell & Moring LLP, Irvine, CA, for Plaintiff.
Brigitte A. Amiri, Pro Hac Vice, Jennifer E. Dalven, Pro Hac Vice, ACLU Foundation, Rachel Reeves, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Heather L. Gatnarek, ACLU of Kentucky, Louisville, KY, Michele Henry, Craig Henry PLC, Louisville, KY, for Intervenor Plaintiffs.
Carmine G. Iaccarino, Christopher L. Thacker, Lindsey Keiser, Victor B. Maddox, Kentucky Attorney General, Frankfort, KY, for Defendant Daniel Cameron.
Wesley W. Duke, Cabinet for Health and Family Services, Frankfort, KY, for Defendant Eric Friedlander.
Leanne K. Diakov, Kentucky Board of Medical Licensure, Louisville, KY, for Defendant Michael S. Rodman.
Jason B. Moore, Jefferson County Commonwealth Attorney, Louisville, KY, for Defendant Thomas B. Wine.
Rebecca Grady Jennings, District Judge On April 21, 2022, the Court issued a Memorandum Opinion & Temporary Restraining Order restraining Defendants form enforcing Kentucky House Bill 3, the Humanity in Healthcare Act of 2022 [DE 1-1 ("HB 3")].1 [DE 27]. Plaintiff Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, Inc., ("Planned Parenthood") moves for a preliminary injunction [DE 3] to block the enforcement of HB 3. Intervening Plaintiff EMW Women's Surgical Center and Dr. Ernest W. Marshall ("EMW" and together with Planned Parenthood, "Plaintiffs") also moves for a preliminary injunction. [DE 38]. Defendant Attorney General Daniel Cameron ("Attorney General Cameron") responded [DE 39; 41], and Plaintiffs replied [DE 42; 43].2
The Court held a hearing on Plaintiffs’ motions for preliminary injunctions on May 2, 2022. [DE 3; 38; FRCP 65(b)(3) ]. Based on the issues raised and discussions at the hearing, the Court requested the parties to submit proposed findings of fact and conclusions of law. On May 4, for good cause shown and in order to consider the impending briefing, the Court extended and modified the Temporary Restraining Order. [DE 49].3 At the Court's request, the Cabinet for Health and Family Services ("Cabinet") filed a status report stating the Cabinet's position on the forms and programs required under HB 3. [DE 53]. Plaintiffs filed their findings of fact and conclusions of law [DE 54] and three corresponding declarations [DE 55; 56; 57]. Attorney General Cameron responded [DE 63] with separate findings of fact and conclusions of law [DE 63-1] and Plaintiffs replied [DE 64].
For the reasons below, Plaintiffs’ Motions for a Preliminary Injunction [DE 3; 38] are GRANTED IN PART to the extent that Defendants are restrained from enforcing specific provisions of HB 3 as set forth specifically below related to reporting and registration programs not yet created or promulgated by the Cabinet. EMW's Motion for a Preliminary Injunction [DE 38] is also GRANTED IN PART pending the Supreme Court's decision in Dobbs. This Order does not prevent the Cabinet from taking any steps it considers appropriate to comply with the Kentucky Legislature's mandates.
Planned Parenthood filed its Complaint [DE 1], asserting 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[ing] 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]. EMW filed a Complaint that reasserted Counts 1, 2, and 4 of Planned Parenthood's Complaint. [DE 33]. Along with these claims, EMW alleges that HB 3 violates substantive due process "[b]y banning abortion at 15 weeks in pregnancy, a pre-viability point in pregnancy[.]" [Id. at 414]. Plaintiffs argue that a temporary injunction is warranted because it is impossible to comply with multiple provisions of HB 3 and the 15-week ban violates due process. [DE 54].
Planned Parenthood operates the Louisville Health Center of Louisville, Kentucky. [Id. at 806]. 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, Planned Parenthood provides procedural and medication abortion services once a week on Fridays until 13 weeks and 6 days. [Id. ; DE 1 at 7]. EMW provides medication abortions up to 10 weeks, and procedural abortion up to 21 weeks and six days. [DE 54 at 806]. EMW provides its services Tuesday through Saturday, and nearly every day they have one or more patients scheduled for an abortion at or after 15 weeks in pregnancy. [Id. ]. Plaintiffs operate the only two remaining abortion clinics in Kentucky. [Id. ].
On March 29, 2022, the Kentucky Legislature passed HB 3, and Governor Andy Beshear vetoed it on April 8. [Id. at 807]. On April 13, the Kentucky Legislature voted to override Governor Beshear's veto. [Id. ]. HB 3 contains an emergency provision which states that it has immediate effect under the Kentucky Constitution. 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, new informed consent requirements, new registration requirements, and new requirements for disposition of fetal remains. Id. HB 3 also bans abortions after 15 weeks. Id. §§ 27(2), 34. Violating HB 3 could result in a Class D felony, fines of up to $1 million, and revocation of physician and facility licenses. Id. § 28(6).
HB 3 directs the Cabinet to promulgate requisite regulations and create forms and programs for parties to comply with the law within 60 days after the law's effective date. Id. § 13(1). Due to the emergency clause, HB 3 became effective on April 13, 2022. Therefore, the Cabinet's 60-day period to create a means for compliance ends on June 13, 2022. At the Court's request, the Cabinet filed a status report stating that "unfunded requirements [in HB 3] may not be implemented." [DE 53 at 795]. Specifically, the Cabinet notes that it may not be able to implement Sections 1, 4, 8, 9, 12, 13, 15, 16, 17, 18, 19, 21, 22, 26, 27, and 28. [Id. at 795–97].
Plaintiffs assert that until the Cabinet creates the requisite forms and promulgates all necessary rules and regulations, they cannot provide abortion services without violating HB 3 because it is impossible to comply with all HB 3's registration and reporting requirements. [DE 54]. Plaintiffs argue that by performing such services, they risk severe criminal and civil penalties associated with HB 3 which prevent them from providing legal abortion services. [Id. ]. EMW also argues that a 15-week ban on abortions violates its patients’ due process right to a pre-viability abortion. [Id. at 876]. The Court's Temporary Restraining Order ends on May 19, 2022. [DE 49]. Without an injunction preventing HB 3 from being enforced, Plaintiffs claim that they will be unable to provide services to their patients, resulting in irreparable harm. [DE 54 at 877–78].
Attorney General Cameron maintains that Plaintiffs are not required to submit forms created by the Cabinet until the Cabinet creates the forms. [DE 63 at 1150]. He claims that Plaintiffs have requested overly broad injunctive relief and failed to prove a likelihood of success on the merits [Id. at 1169]. Attorney General Cameron argues that EMW's motion for a preliminary injunction as to HB 3's 15-week ban should be denied because EMW has not demonstrated a likelihood of success on the merits. [Id. at 1166]. He also claims that Plaintiffs have forfeited any argument that was not explicitly raised in their original motions for preliminary injunction. [Id. at 1151, 1156].
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