Planned Parenthood of Arkansas & E. Okla. v. Cline

Decision Date24 December 2012
Docket NumberCase No. CIV–12–1245–F.
Citation910 F.Supp.2d 1300
PartiesPLANNED PARENTHOOD OF ARKANSAS AND EASTERN OKLAHOMA, d/b/a Planned Parenthood of the Heartland–Oklahoma, Plaintiff, v. Terry L. CLINE, in his official capacity as Oklahoma Commissioner of Health, Defendant.
CourtU.S. District Court — Western District of Oklahoma


Anne E. Zachritz, Leif E. Swedlow, Andrews Davis PC, Oklahoma City, OK, Carrie Y. Flaxman, Planned Parenthood Federation of America Inc., Washington, DC, Meg D. Holzer, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, for Plaintiff.

Charles S. Rogers, Dixie L. Coffey, Kindanne C. Jones, Attorney General's Office, Oklahoma City, OK, for Defendant.


STEPHEN P. FRIOT, District Judge.

Plaintiff's Motion for Preliminary Injunction (doc. no. 10) came on for evidentiary hearing on December 20, 2012. The motion has been thoroughly briefed, and the parties have had the opportunity to complete the discovery necessary for thorough presentations at the hearing. For the reasons set forth in this order, the court has concluded that the motion should be denied.

I. Background Facts and The Parties' Contentions.

Plaintiff is Planned Parenthood of Arkansas and Eastern Oklahoma d/b/a Planned Parenthood of the Heartland—Oklahoma, “PPAEO.” Closely related to PPAEO is Planned Parenthood of the Heartland, “Heartland.” PPAEO asks the court to preliminarily enjoin, under Rule 65, Fed.R.Civ.P., defendant's decision not to renew (also referred to in this order, for brevity, as the termination) PPAEO's contract with the Oklahoma State Department of Health which grants funds to PPAEO for the purpose of providing WIC services to the community.

Defendant is Dr. Terry L. Cline, Oklahoma's Commissioner of Health. As Commissioner, Dr. Cline is head of the Oklahoma State Department of Health (OSDH). He is also Oklahoma's Secretary of Health and Human Services.

WIC is the Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”), a federal grant program established by the Child Nutrition Act of 1966. The purpose of WIC is to provide supplemental foods and nutrition education to pregnant, postpartum, and breast-feeding women, infants, and young children up to age five from families with inadequate income who are at special risk with respect to their physical and mental health by reason of inadequate nutrition or health care, or both.

The Food and Nutrition Service of the United States Department of Agriculture, the “USDA,” administers WIC and provides funds to the Oklahoma State Department of Health. OSDH, in turn, contracts with local agencies, including both public health departments and non-profit agencies, to provide WIC services to the community. PPAEO is one of the latter—a non-profit agency with which OSDH contracts for the purpose of providing WIC services to the community.

The State of Oklahoma has participated in the WIC program for more than twenty-five years.

PPAEO, which has participated in WIC for eighteen years, provides WIC services to women, infants, and children at three of its Tulsa-area health centers: Midtown, Westside, and Broken Arrow.

In September 2012, PPAEO provided WIC services for nearly 3,000 women, infants, and children. PPAEO's grant for federal fiscal year (FFY) 2012, beginning October 1, 2011, was $454,000.

The three PPAEO health centers in the Tulsa area provide a range of services in addition to WIC-related services to patients and participants. At Midtown and Broken Arrow, PPAEO offers prenatal care through the thirtieth week of pregnancy. At Midtown, PPAEO offers a family practice, including general adult family practice as well as pediatric care. All three centers also offer family planning services.

The WIC contract in question, between OSDH and PPAEO, provides that the contract will begin on October 1, 2010 and end on September 30, 2011, with a renewal option for four additional one-year periods. Per the contract, renewal of the contract is contingent upon the needs of OSDH, the contractor's performance and funding availability. The contract does not specify when the decision to renew or not renew must be made.

Although PPAEO does not provide abortions in Oklahoma, it does provide abortion referrals to pregnant patients and advocates for access to abortion. Additionally, PPAEO is affiliated with other Planned Parenthood entities that provide abortions or advocate for access to abortion. PPAEO contends that the decision of the OSDH not to renew the WIC contract was driven, or at least substantially motivated by, political considerations arising from PPAEO's abortion-related activities. PPAEO accordingly contends that the decision not to renew the contract violated PPAEO's rights under the First Amendment and the Fourteenth Amendment.

Defendant contends that the decision to not renew PPAEO's WIC contract had nothing to do with PPAEO's advocacy for abortions, referrals to abortion providers, or affiliation with abortion providers. Defendant further contends that the officials involved in the decision not to renew PPAEO's contract knew that PPAEO and others would question the motivation behind the decision, and that publicity and litigation were probable.

If the WIC contract is allowed to terminate, PPAEO contends that it will need to lay off up to seven staff members and will likely close its Westside health center. Once PPAEO takes these actions, PPAEO contends that it will be very expensive, if not impossible, to resume normal operations.

Additionally, PPAEO contends that if the contract is allowed to terminate, PPAEO will not be able to provide critical WIC services to the nearly three thousand women, infants and young children who rely on them. PPAEO contends that these women and their families will face the challenge of trying to obtain their WIC benefits from another Tulsa provider, which will be difficult, if not impossible, for them in light of transportation challenges, decreased hours of operations, and other considerations.

II. Standards for Preliminary Injunctions.

It is well settled that a preliminary injunction is an extraordinary remedy, and that it should not be issued unless the movant's right to relief is clear and unequivocal. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003). Id. at 1188, quotations and citations omitted.

The four requirements which must be satisfied before a court will enter a preliminary injunction under Rule 65, Fed.R.Civ.P., are reviewed in Planned Parenthood of Kansas and Mid–Missouri v. Brownback, 799 F.Supp.2d 1218, 1225 (D.Kan., 2011), a case which involved a challenge to state legislation impacting Title X funding to Planned Parenthood. The court stated as follows: 1

A preliminary injunction is an extraordinary equitable remedy which seeks to “preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). A party seeking injunctive relief must show [1] a substantial likelihood that it will prevail on the merits, [2] that absent the injunction it was suffer an irreparable injury, [3] the threatened injury outweighs the cost to its opponent, and [4] the injunction is not against the public interest. See Westar Energy v. Lake, 552 F.3d 1215, 1224 (10th Cir.2009); Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir.2001).

Planned Parenthood of Kansas at 1225.

It is the movant's burden to establish that each of the four factors tips in his favor. Heideman at 1188–89.

The Tenth Circuit has identified three types of particularly disfavored preliminary injunctions, concluding that a movant must make a heightened showing to demonstrate entitlement to preliminary relief with respect to such injunctions. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir.2004). The categories of disfavored injunctions are: (1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits.” Id.2

With respect to the first type, defendant concedes that the requested “injunctive relief would technically be preserving the status quo.” Doc. no. 36, p. 16. The status quo is the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing. Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir.2001). The injunction sought by PPAEO, if granted, would keep the parties in the position they occupied when this dispute arose. Accordingly, it would not alter the status quo.

Defendant argues the injunction is disfavored because it is a mandatory injunction, the second category of disfavored injunctions. With regard to mandatory injunctions, O Centro explains as follows. “Without regard to whether a mandatory preliminary injunction alters the status quo, ... it is still appropriate to disfavor such injunctions because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” O Centro, 389 F.3d 973 at 979.

Defendant contends that granting the injunction would require the court to superintend various decisions and communications between the parties, such as matters involving future budget adjustments, contract modifications, or the parties' handling of any future performance problems under the WIC contract. Doc. no. 36, p. 16. Plaintiff disagrees, arguing that the injunction it seeks is a narrow one which would not involve the court in superintending the relationship between the parties. Plaintiff argues that the injunction would go no...

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