Planned Parenthood Gulf Coast, Inc. v. Phillips
| Decision Date | 20 January 2022 |
| Docket Number | No. 18-30699,18-30699 |
| Citation | 24 F.4th 442 |
| Parties | PLANNED PARENTHOOD GULF COAST, INCORPORATED; Planned Parenthood Center for Choice ; Jane Doe #1; Jane Doe #2; Jane Doe #3, Plaintiffs—Appellees, v. Courtney N. PHILLIPS, in her official capacity as Secretary of the Louisiana Department of Health, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Amy K. Van Zant, Orrick, Herrington & Sutcliffe, L.L.P., Menlo Park, CA, Dylan M. Bensinger, Orrick, Herrington & Sutcliffe, L.L.P., Los Angeles, CA, Carrie Yvette Flaxman, Planned Parenthood Federation of America, David Rhinesmith, Rachel Gabriella Shalev, Orrick, Herrington & Sutcliffe, L.L.P., Washington, DC, Kourosh Jahansouz, Orrick, Herrington & Sutcliffe, L.L.P., San Francisco, CA, Jennifer Keighley, Orrick, Herrington & Sutcliffe, L.L.P., New York, NY, Christopher J. Richart, Orrick, Herrington & Sutcliffe, L.L.P., Houston, TX, for Plaintiffs-Appellees.
Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendant-Appellant.
Before Higginbotham, Elrod, and Ho, Circuit Judges.
ON PETITION FOR REHEARING EN BANC
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is GRANTED. We WITHDRAW the court's prior opinion in this case and substitute the following.
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Two Planned Parenthood entities and three Jane Does brought this lawsuit under 42 U.S.C. § 1983 alleging that the Louisiana Department of Health is unlawfully declining to act on Planned Parenthood Center for Choice's application for a license to provide abortion services in Louisiana. The Department moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) on several bases, including sovereign immunity.1 The district court denied the motion without prejudice, and the Department filed this interlocutory appeal. The plaintiffs moved to dismiss this interlocutory appeal, arguing that we lack appellate jurisdiction. Because the Department asserted sovereign immunity in the district court, we DENY the motion to dismiss the appeal. Furthermore, at least one of the plaintiffs' claims for injunctive relief is a valid invocation of federal jurisdiction under Ex parte Young. The case is REMANDED for further proceedings consistent with this opinion.
Plaintiff Planned Parenthood Gulf Coast provides non-abortion healthcare services at its clinics in Texas and Louisiana. Gulf Coast also participates in Texas's and Louisiana's Medicaid programs. The three Jane Doe plaintiffs are Gulf Coast patients.
Plaintiff Planned Parenthood Center for Choice, a Texas Corporation, has a facilities and services agreement with Gulf Coast to provide abortion services at Gulf Coast clinics and provides abortions services at Gulf Coast's clinics in Texas. Currently, however, Planned Parenthood is not licensed to provide abortions anywhere in Louisiana. In September 2016, Planned Parenthood applied for a license to operate an abortion clinic at a Gulf Coast clinic in New Orleans, Louisiana. About six weeks later, the Department notified Planned Parenthood that its application was incomplete and missing information, which triggered a 90-day deadline for Planned Parenthood to respond.2 Planned Parenthood did not respond until five months later, in April 2017, allegedly with the Department's permission to postpone the response deadline. The Department continued its review of the application, including inspecting Gulf Coast's New Orleans clinic in May 2017.
Meanwhile, in December 2016, a Select Investigative Panel of the United States House of Representatives began investigating Planned Parenthood's handling of fetal remains. The investigation was spurred in part by videos recorded at Gulf Coast's headquarters in Texas that "depict[ed] two individuals posing as representatives from a fetal tissue procurement company discussing the possibility of a research partnership with PP Gulf Coast." Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman , 981 F.3d 347, 351 (5th Cir. 2020) (en banc ).3 Among other findings, the Select Committee's Final Report related evidence that Gulf Coast had illegally received or sought financial compensation in exchange for transferring fetal body parts to academic institutions in Texas.4 In December 2016, the Select Committee referred several of those violations to the Texas Attorney General for investigation and released a 450-page report documenting its findings.
The Department decided to withhold action on Planned Parenthood's application to let the Texas investigation run its course. In June 2017, the Department sent Planned Parenthood a letter communicating its decision to defer resolution of the application. The letter explained that, under Louisiana law, "the Department may deny a license if an investigation or survey determines that the applicant is in violation of any federal or state law or regulation."5
Referencing the Select Committee's "criminal and regulatory referral to the Texas Attorney General related to the operations of Planned Parenthood Gulf Coast," the letter explained that the Department needed to "conduct[ ] an investigation to determine if Planned Parenthood Center for Choice, either in its own name or through the actions of Planned Parenthood Gulf Coast, is in violation of any federal or state law or regulation." The letter concluded by saying that the Department "is neither approving nor denying [Planned Parenthood's] application," but that "[a]fter the conclusion of this investigation, [the Department] will be in a position to make a determination on [Planned Parenthood's] license application."
Then, in January 2018, Louisiana received a confidential complaint regarding activity by Gulf Coast in Louisiana. The Louisiana Attorney General is currently investigating that complaint for potential action by the state. Because Planned Parenthood has a facilities and services agreement with Gulf Coast to use Gulf Coast's space, services, and staff, the Department views the investigation as necessarily implicating Planned Parenthood.
In February 2018, the plaintiffs sued the Department, asserting two sets of claims.6 The first set—the licensing claims—challenge the Department's handling of their application for a license to provide abortion services in Louisiana. The plaintiffs allege that the Department's letter and decision to await more information constituted a "constructive denial" of Planned Parenthood's application and that the Department's licensing process is a "sham" intended to prevent Planned Parenthood from performing abortions. The plaintiffs assert that this alleged denial violates their rights to substantive due process, procedural due process, and equal protection. They do not challenge the underlying statutes or regulations that govern abortion-clinic licensing; they challenge only the Department's handling of this particular application.
On their licensing claims, the plaintiffs seek a declaratory judgment that the "denial" of their license violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and "is therefore void and of no effect." They also seek three injunctions on their licensing claims: (1) an injunction preventing the Department from "withholding approval" of its application; (2) an injunction ordering the Department to "promptly rule" on the application "in accordance with all applicable constitutional requirements"; and (3) an injunction ordering the Department to grant the application and issue an abortion-clinic license to Planned Parenthood.
The plaintiffs' second set of claims—their funding claims—challenges Louisiana's House Bill 606 ("HB 606"), which prohibits giving taxpayer funds, including Medicaid funds, to abortion providers and their affiliates.7 The plaintiffs assert that, in the event that Planned Parenthood is eventually granted a license, HB 606 would require Louisiana to cease providing Gulf Coast with Medicaid funding. The plaintiffs claim that HB 606 violates their due process, equal protection, and First Amendment rights, as well as a provision of the federal Medicaid Act.8 They seek both declaratory and injunctive relief on the funding claims.
The Department moved to dismiss the complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Department asserted sovereign immunity from the licensing claims because, in the Department's view, those claims call on the district court to "supervise an ongoing State-law licensing process—the very kind of situation" that deprives a federal court of jurisdiction under Pennhurst. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ().
Likewise, the Department argued that granting the plaintiffs' requested relief on their licensing claims would violate Pennhurst because they "demand a change in the Department's interpretation of State law." It also urged that the licensing claims involve the kinds of state-law entanglements that require the district court to abstain and dismiss under Burford. Burford v. Sun Oil Co. , 319 U.S. 315, 318, 332, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (). Finally, the Department urged dismissal because the plaintiffs' funding claims are contingent on the barred licensing claims, are not ripe, and are therefore not justiciable.
The plaintiffs responded, arguing that the claims are ripe because the...
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...of law’ protects individual liberty. Ante at 235-38. But so does federalism. See, e.g., Planned Parenthood Gulf Coast, Inc. v. Phillips , 24 F.4th 442, 450 (5th Cir. 2022) ("Federalism recognizes our dual sovereignties—the states and the federal government—and ‘secures to citizens the liber......