Planned Parenthood of the Great Nw. & the Hawaiian Islands v. Wasden

Decision Date15 October 2019
Docket NumberCase No. 1:18-CV-00555-BLW
Citation410 F.Supp.3d 1108
Parties PLANNED PARENTHOOD OF the GREAT NORTHWEST AND the HAWAIIAN ISLANDS, a Washington corporation; Mary Stark, on behalf of herself and her patients, Plaintiffs, v. Lawrence G. WASDEN, in his official capacity as Attorney General of Idaho; Jan M. Bennetts, in her official capacity as Ada County Prosecuting Attorney; Grant P. Loebs, in his official capacity as Twin Falls County Prosecuting Attorney; The Individual Members of the State Board of Medicine, in their official capacity; The Individual Members of the State Board of Nursing, in their official capacity, Defendants.
CourtU.S. District Court — District of Idaho

Hannah Brass Greer, Planned Parenthood of the Great Northwest and Hawaii, Jill D. Bowman, Pro Hac Vice, S Julia Collier, Pro Hac Vice, Vanessa Soriano Power, Pro Hac Vice, Stoel Rives LLP, Kim Clark, Pro Hac Vice, Legal Voice, Seattle, WA, Nicole C Hancock, Stoel Rives LLP, Boise, ID, Alice Clapman, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.

Cynthia Lin Yee-Wallace, Megan Ann Larrondo, Office of the Attorney General, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

B. Lynn Winmill, U.S. District Court Judge

INTRODUCTION

Pending before the Court is Defendants' motion to certify the Court's Order of July 24, 2019 for interlocutory appeal to the United States Court of Appeals for the Ninth Circuit. (Dkt. 57.) After carefully considering the parties' written memoranda and relevant case law, for the reasons that follow, the Court will deny the motion.

BACKGROUND

Plaintiffs Planned Parenthood of the Great Northwest and Hawaiian Islands and Mary Stark, a nurse practitioner licensed to practice advanced nursing in Idaho, Washington, and Oregon, on behalf of herself and her patients, brought a civil rights lawsuit under 42 U.S.C. § 1983 claiming an Idaho statute that makes it unlawful for any person other than a physician to perform an abortion violates the Constitution of the United States of America. Plaintiffs allege Idaho's "Physician-Only Law" violates their patients' rights to liberty and privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment. They also argue the law violates equal protection rights of patients and Advanced Practice Clinicians (APCs), like Ms. Stark, under the Fourteenth Amendment's Equal Protection Clause.

Defendants moved to dismiss the Complaint, asserting Plaintiffs' substantive due process claims are foreclosed by binding Supreme Court precedent, and that Plaintiffs failed to state a claim for relief or meet the pleading requirements of Federal Rule of Civil Procedure 8. (Dkt. 33.) After careful consideration of the motion to dismiss, the Court denied it in full. (Memorandum Decision and Order, Dkt. 54.)

In denying the motion, the Court rejected the same argument Defendants make here—that the Supreme Court's 1997 holding in Mazurek v. Armstrong controls the disposition of Plaintiffs' due process-based undue burden claims—and therefore, Plaintiff's claims are precluded as a matter of law. (See Order, Dkt. 54 at 8-11. In distinguishing this case from Mazurek , the Court relied on Whole Woman's Health v. Hellerstedt (WWH ), wherein the Supreme Court has most recently stated the analytical framework for undue burden claims:

We begin with the standard, as described in Casey . We recognize that the "State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." But, we added, "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right."

MDO, Dkt. 54 at 8 quoting WWH at 2309 (quoting Roe v. Wade , 410 U.S. 113, 150, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 877-78, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ).

The Court found "WWH cemented the Casey standard as a contextual, fact-based inquiry where a trial court must assess the impact of the alleged regulatory burden as specifically applied." Id. Provided this, the Court concluded that the "fact-intensive balancing inquiry required by WWH guides this Court's approach" to Plaintiff's undue burden claims. Id.

Defendants' present motion argues the Court should certify the question regarding whether the WWH standard applies to Plaintiff's undue burden claims, or whether, as they advance, the Supreme Court intended to draw a bright line prohibiting undue burden claims based on state-made physician-only laws, i.e. whether Mazurek forecloses Plaintiffs' undue burden claims. The Defendants define the " Mazurek question" as follows:

Whether Mazurek v. Armstrong , 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), and the U.S. Supreme Court precedent relied on in Mazurek , established a bright line rule precluding Plaintiffs' substantive due process claim because in order "to ensure the safety of the abortion procedure, ... States may mandate that only physicians perform abortions[.]"

(Dkt. 57-1 at 2.)

The Court will analyze the merits of Defendants' argument below.

STANDARD OF LAW

United States district courts have discretion to allow interlocutory appeals. Swint v. Chambers County Com'n , 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). A district court may certify any interlocutory order for appeal to the circuit court if: (1) the order "involves a controlling question of law;" (2) "as to which there is substantial ground for difference of opinion;" and (3) "that an immediate appeal of the order may materially advance the ultimate termination of the litigation." 28 U.S.C.§ 1292(b). All three criteria must be met to certify an issue. City of San Diego v. Monsanto Co. , 310 F. Supp. 3d 1057, 1065 (S.D. Cal. 2018) (citing Couch v. Telescope Inc. , 611 F.3d 629, 633 (9th Cir. 2010) ). Because Section 1292(b) is a departure from the general rule that only final judgments are appealable, it should be used only in exceptional situations where allowing an interlocutory appeal would avoid protracted and expensive litigation. Id. ; In re Cement Antitrust Litigation , 673 F.2d 1020, 1026 (9th Cir. 1981).

ANALYSIS

Defendants argue, and Plaintiffs concede, that the Mazurek question involves a controlling question of law. As such, the Court must determine whether Defendants have met their burden to show exceptional circumstances exist sufficient to warrant interlocutory certification of the Order pursuant to each of Section 1292(b)'s other two factors.

1. Whether there is substantial ground for difference of opinion.

Courts must examine the extent to which a controlling law is unclear to determine if a substantial ground for difference of opinion exists under Section 1292(b). Couch , 611 F.3d at 633. Traditionally, a substantial ground for difference of opinion exists "where the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." Id. (internal quotations omitted).

Yet, a substantial difference of opinion is not present simply because a court is the first to rule on the particular question or just because one party argues that one precedent is controlling. Id. Furthermore, disagreement with the Court's ruling does not create a "substantial ground for difference," as would allow interlocutory appeal—the moving party "must make some greater showing." Association of Irritated Residents v. Fred Schakel Dairy , 634 F.Supp.2d 1081 (E.D. Cal. 2008). Additionally, the fact "[t]hat settled law might be applied differently does not establish a substantial ground for difference of opinion." Couch, at 633.

Here, Defendants argue that, although "there is little debate that WWH affirmed the undue burden test in Casey and defined how evidence should be evaluated in cases involving an undue burden analysis ... there is substantial debate about what role Mazurek plays with regard to Idaho's physician-only laws in light of WWH. " (Dkt. 57-1.) Defendants do not cite to any case that has been decided since WWH to show there is significant debate regarding whether WWH clarified that a court must perform Casey 's undue burden analysis to every challenged restriction on a woman's right to an abortion—including performing the analysis on state-made physician-only laws.

Instead, Defendants cite to "[a] host of lower federal and state court decisions" decided before WWH to support the position that there is substantial disagreement regarding whether Mazurek created a bright-line rule foreclosing any substantive due process challenge to a state-made physician-only law.1 Notably, three of the cases cited by Defendants predate Mazurek , and only one case cited was issued by a court situated within the Ninth Circuit's geographical limits—the Arizona state court of appeals.2

With this in mind, the Court turns to the precedent relevant to the analysis in this case. The Ninth Circuit Court of Appeals has not ruled on the question of whether the Supreme Court's decision in Mazurek created a bright-line rule foreclosing substantive due process undue burden challenges to state-made physician-only laws. Put another way, the Ninth Circuit has not spoken directly as to whether the Supreme Court's decision in WWH clarified that Casey 's undue burden analysis must be performed on every law restricting access to abortion—including physician-only laws.

Notably, in a decision recently issued on September 30, 2019, the United States District Court for the District of Virginia discussed Mazurek in the context of...

To continue reading

Request your trial
4 cases
  • Whole Woman's Health Alliance v. Hill
    • United States
    • U.S. District Court — Southern District of Indiana
    • October 9, 2020
    ...v. Wasden , 406 F. Supp. 3d 922, 928 (D. Idaho), motion to certify appeal denied sub nom. Planned Parenthood of Great Nw. & Hawaiian Islands v. Wasden , 410 F. Supp. 3d 1108 (D. Idaho 2019).We agree with Plaintiffs’ argument that Mazurek does not automatically foreclose further judicial rev......
  • Whole Woman's Health Alliance v. Rokita
    • United States
    • U.S. District Court — Southern District of Indiana
    • August 10, 2021
    ...v. Wasden , 406 F. Supp. 3d 922, 928 (D. Idaho), motion to certify appeal denied sub nom. Planned Parenthood of Great Nw. & Hawaiian Islands v. Wasden , 410 F. Supp. 3d 1108 (D. Idaho 2019).We agreed at summary judgment, and we agree today, with Plaintiffs’ argument that Mazurek does not au......
  • Whole Woman's Health All-Options, Inc. v. Rokita
    • United States
    • U.S. District Court — Southern District of Indiana
    • August 10, 2021
    ... ... "implicit in the meaning of liberty." Planned ... Parenthood of Se. Pennsylvania v. Casey ... Great Northwest, [ 24 ] testified that such techniques ... Parenthood of the Great Nw. & the Hawaiian Islands v ... Wasden , 406 F.Supp.3d 922, ... ...
  • Holley v. Gilead Scis., Inc., Case No. 18-cv-06972-JST
    • United States
    • U.S. District Court — Northern District of California
    • October 16, 2019

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT