Planned Parenthood of Tenn. & N. Miss. v. Slatery
| Decision Date | 26 February 2021 |
| Docket Number | No. 3:20-cv-00740,3:20-cv-00740 |
| Citation | 523 F.Supp.3d 985 |
| Parties | PLANNED PARENTHOOD OF TENNESSEE AND NORTH MISSISSIPPI, et al., Plaintiffs, v. Herbert H. SLATERY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Christine Clarke, Hana Bajramovic, Jennifer Sandman, Planned Parenthood Federation of America, New York, NY, Stella Yarbrough, American Civil Liberties Union of Tennessee, Thomas H. Castelli, ACLU, Nashville, TN, for Plaintiffs Planned Parenthood of Tennessee and North Mississippi, Audrey Lance.
Marc Hearron, Center for Reproductive Rights, Washington, DC, Michelle Moriarty, Shayna Medley-Warsoff, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Stella Yarbrough, American Civil Liberties Union of Tennessee, Thomas H. Castelli, ACLU, Nashville, TN, for Plaintiff Memphis Center for Reproductive Health.
Andrew Beck, Rebecca Chan, American Civil Liberties Union Foundation, New York, NY, Stella Yarbrough, American Civil Liberties Union of Tennessee, Thomas H. Castelli, ACLU, Nashville, TN, for Plaintiff Knoxville Center for Reproductive Health.
Andrew Beck, American Civil Liberties Union Foundation, New York, NY, Stella Yarbrough, American Civil Liberties Union of Tennessee, Thomas H. Castelli, ACLU, Nashville, TN, for Plaintiff FemHealth USA, Inc.
Alexander Stuart Rieger, Charlotte M. Davis, Edwin A. Groves, Jr., Steven Ashley Hart, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
Pending before the Court are Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. No. 4),1 Defendants’ Response (Doc. No. 16),2 Plaintiffs’ Reply (Doc. No. 31)3 , and the parties’ post-hearing briefs. (Doc. Nos. 82, 84). The Court issued a Temporary Restraining Order on September 29, 2020 (Doc. No. 33), which expires when the Court issues a ruling on the request for preliminary injunction (Doc. No. 38). The Court held a hearing on the request for preliminary injunction over several dates – December 1, 2, 8, and 14, 2020, and January 25, 2021. The request is now ripe for decision.
This case requires the Court to consider whether the State may, consistent with the Constitution, require abortion providers to tell their patients about a treatment Defendants’ experts believe may "reverse the intended effects of a chemical abortion utilizing mifepristone." In considering the question, the Court has the language of the statute the elected legislators of the Tennessee General Assembly passed, which language the Court must accept as written and to which the plaintiffs object. It is also important for the Court to point out what is not at issue. This case is not about whether patients should have access to the treatment, which the Court will refer to as "progesterone therapy." Nor is this case about whether physicians should be permitted to provide progesterone therapy to patients. Indeed, physicians are currently offering progesterone therapy to patients, and information about progesterone therapy is available through the internet and other sources. Instead, this case relates only to the statutory requirement that abortion providers, under threat of criminal sanction, inform patients about progesterone therapy in language to which these providers object, and that is, for the reasons described below, untruthful and/or misleading. Because the Constitution does not permit such a requirement, the Motion for Preliminary Injunction (Doc. No. 4) is GRANTED.
Plaintiffs request the Court issue a preliminary injunction enjoining enforcement of Tennessee Code Annotated Section 39-15-218 ("Section 218"). Section 218 prohibits a physician from performing a chemical abortion4 involving the use of mifepristone and misoprostol unless, at least 48 hours in advance, the physician has informed the patient of the following: "(1) It may be possible to reverse the intended effects of a chemical abortion utilizing mifepristone if the woman changes her mind, but that time is of the essence; and (2) Information on and assistance with reversing the effects of a chemical abortion utilizing mifepristone is available on the department of health website." Tenn. Code Ann. § 39-15-218(e). This requirement is subject to a "medical emergency" exception. Id.
After the mifepristone is dispensed, Section 218 also requires the physician or an agent of the physician to provide the patient with written medical discharge instructions that include the following statement:
Recent developing research has indicated that mifepristone alone is not always effective in ending a pregnancy. It may be possible to avoid, cease, or even reverse the intended effects of a chemical abortion utilizing mifepristone if the second pill has not been taken. Please consult with a healthcare professional immediately.
Tenn. Code Ann. § 39-15-218(f).
In addition to these statements, Section 218 requires a private office, ambulatory surgical treatment center, or other facility or clinic, that has performed more than 50 elective abortions during the previous calendar year to "conspicuously post a sign" that repeats the message required to be included in the discharge instructions. Tenn. Code Ann. § 39-15-218(b). This sign "must be printed with lettering that is legible and at least three quarters of an inch (0.75?) boldfaced type." Tenn. Code Ann. § 39-15-218(c). Private offices and ambulatory surgical treatment centers must post the sign "in each patient waiting room and patient consultation room used by patients on whom abortions are performed." Tenn. Code Ann. § 39-15-218(d). Hospitals and other facilities are required to post the sign "in each patient admission area used by patients on whom abortions are performed." Id.
Section 218 also requires the Tennessee Department of Health to make available on its website, and in print materials, information "designed to inform the woman of the possibility of reversing the effects of a chemical abortion utilizing mifepristone if the woman changes her mind," as well as "information on and assistance with the resources that may be available to help reverse the effects of a chemical abortion." Tenn. Code Ann. § 39-15-218(h)(i). The Department was not required to provide this information, however, until "ninety (90) days after the effective date," or until January 1, 2021. All other requirements in Section 218 were to take effect on October 1, 2020. 2020 Tenn. Pub. Acts Ch. 764, § 4.
While these proceedings were pending, the Department added the following language to its website:
As for sanctions, Section 218 provides: "Any person who knowingly or recklessly performs or induces or attempts to perform or induce an abortion in violation of [the statute] commits a Class E felony." Tenn. Code Ann. § 39-15-218(j). Private offices, ambulatory surgical treatment centers, or other facilities or clinics that negligently fail to post the required sign are subject to a civil penalty of $10,000 for each day an abortion is performed there. Tenn. Code Ann. § 39-15-218(k). The statute creates a cause of action for the patient, the father, or a parent of a minor patient, to recover actual and punitive damages against a non-compliant physician. Tenn. Code Ann. § 39-15-218(l).
Plaintiffs Planned Parenthood of Tennessee and North Mississippi ("PPTNM"), Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, and carafem operate medical facilities that offer abortions to patients. (Doc. No. 1 ¶¶ 8-13). Plaintiff Audrey Lance, M.D., N.S., is an obstetrician/gynecologist ("OB-GYN"), who has provided medication abortions at PPTNM. (Id. ) Plaintiffs have named as defendants: Herbert H. Slatery, III, the Tennessee Attorney General; Lisa Piercey, M.D., the Commissioner of the Tennessee Department of Health; Rene Saunders, M.D., the Chair of the Board for Licensing Health Care Facilities; W. Reeves Johnson, Jr., M.D., the President of the Tennessee Board of Medical Examiners; and Amy Weirich, Glenn R. Funk, Charme P. Allen, and Tom Thompson, the District Attorneys General for the jurisdictions where Plaintiffs offer services. (Id. ¶¶ 14-21).
Plaintiffs argue Section 218 compels physicians and abortion providers, under threat of criminal prosecution and other sanctions, to provide their patients with inaccurate, misleading, and irrelevant information that a chemical abortion (what Plaintiffs and the witnesses call "medication abortion") can be ...
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