Smith v. Hochul

• Decision Date: 26 October 2021
• Docket Number: 5:21-CV-0035 (LEK/ATB)
• Citation: 568 F.Supp.3d 190
• Parties: Jane SMITH, et al., Plaintiffs, v. Kathy HOCHUL, as Governor of the State of New York, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

568 F.Supp.3d 190

Jane SMITH, et al., Plaintiffs,

v.Kathy HOCHUL, as Governor of the State of New York, et al., Defendants.

5:21-CV-0035 (LEK/ATB)

United States District Court, N.D. New York.

Signed October 26, 2021

Christen Civiletto, East Amherst, NY, Teresa S. Collett, Saint Paul, MN, for Plaintiffs.

Christopher Liberati-Conant, New York State Attorney General, Albany, NY, for Defendants.

MEMORANDUM-DECISION AND ORDER

Lawrence E. Kahn, United States District Judge

I. INTRODUCTION

Plaintiffs Jane Smith, Jill Park, Mary Doe, Ann Jones, and Dr. Amy Moe commenced the present action, challenging certain amendments and provisions of the New York Reproductive Health Act ("RHA"). Dkt. No. 1 ("Complaint"). Simultaneously, Plaintiffs Doe and Jones each filed motions to be appointed as next friend under Rule 17(c)(2) of the Federal Rules of Civil Procedure. Dkt. Nos. 2 ("Doe Motion"), 8 ("Jones Motion"). Presently before the Court is Defendants’ motion to dismiss the Complaint. Dkt. Nos. 35 ("Motion to Dismiss"); 35-1 ("Defendants’ Memorandum"); 44 ("Response"); 47 ("Reply"). The Court has already denied the Doe Motion and Jones Motion. See Dkt. No. 51.

As the Supreme Court has observed, "[m]en and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy," Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 2806, 120 L. Ed. 2d 674 (1992). Here, where the challenged law relates to termination of a pregnancy through violence against a pregnant person, few would disagree about the wrongfulness of such violence. However, profound disagreements still exist with regard to the most appropriate disincentives and punishments for such conduct. The democratically elected state government of New York has spoken on this issue and, absent a conflicting provision of federal law or of the United States Constitution, this Court may not intervene.

For the following reasons, Defendants’ motion to dismiss the Complaint is granted.

II. BACKGROUND

A. Factual History

The following factual allegations are assumed to be true. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015).

1. The Parties

Plaintiff Jane Smith is an adult who resides in the Greater New York City area, and was in the early stages of pregnancy with her third child when she experienced intimate partner violence in late 2019. Compl. ¶¶ 28, 71–72. On June 2, 2020, Plaintiff Smith gave birth to a male child. Id. ¶ 73. Plaintiff seeks to assert her own claims against Defendants, as well as those on behalf of two classes of women: (1) women who are subjected to a greater risk of violence as a result of the RHA's repeal and amendment of the N.Y. Penal Law § 125.00, 125.40 and 125.45 ("Violence Against Women Class"); and (2) women who have experienced the murder or attempted murder of their viable unborn child and now have no legal recourse or redress for that crime as a result of the passage of the RHA's repeal and amendment of the N.Y. Penal Law § 125.00, 125.40 and 125.45 ("Women Lacking Recourse Class"). Id. ¶ 28.

Plaintiff Jill Park is an adult who resides in the Western New York area, and in late 2019 and early 2020, she was pregnant with her first child when she experienced intimate partner violence and threats from her partner's family. Id. ¶ 29. On April 29, 2020, Plaintiff Park prematurely gave birth to a female child. Id. ¶ 91. She too is seeking to assert her claims against Defendants, as well as those on behalf of the Violence Against Women Class and Women Lacking Recourse Class. Id. ¶ 29.

Plaintiff Mary Doe previously sought to be appointed as a legal representative, guardian ad litem, or next friend, pursuant to Federal Rules of Civil Procedure Rule 17(c)(2), for the limited purposes of representing in this action viable unborn children who are (1) subject to being aborted due to Public Health Law § 2599 -BB.1; or (2) who are wanted, but killed at the hands of a harm-causing individual and have no right to redress for their murder (collectively, the "Viable Unborn Children Class") as a result of the modification of Penal Law § 125 by the RHA. Id. ¶ 30.

Plaintiff Ann Jones previously sought to be appointed as a legal representative, guardian ad litem, or next friend, pursuant to Federal Rules of Civil Procedure Rule 17(c)(2), for the limited purposes of representing in this action children who survive abortion ("Abortion Survivors Class"). Id. ¶ 31.

Plaintiff Dr. Amy Moe is a physician licensed since 1989 to practice medicine in the State of New York. Id. ¶ 32. Plaintiff Dr. Moe is asserting her own claims, and also seeks to represent similarly situated physicians in this action (the "Physician Class") who are unable to fulfill their legal and professional obligation to inform and counsel pregnant patients regarding what medical circumstances allow post-viability abortions, and what healthcare professionals are authorized to provide such abortions. Id.

Originally, then-Governor Andrew Cuomo was listed as a defendant. Id. ¶ 33. However, Defendant Governor Kathy Hochul, the current Governor of the State of New York, was automatically substituted as a party pursuant to Fed. R. Civ. P. 25.

Defendant Letitia James is the Attorney General of the State of New York. Id. ¶ 34. Defendant Howard A. Zucker is the Commissioner of Health for New York State. Id. ¶ 35. Defendant Deirdre Astin is Deputy Director, Division of Hospitals and Diagnostic and Treatment Centers, New York State Department of Health. Id. ¶ 36. Defendant Deputy Commissioner Sarah Benson directs the Office of Professional Discipline at the New York State Department of Education. Id. ¶ 37. Defendant Arthur S. Hengerer is the Chair of the New York State Department of Health Office of Professional Medical Conduct. Id. ¶ 38. Defendant Donna Frescatore serves as the New York Medicaid Director. Id. ¶ 39. Finally, Defendant Sheila J. Poole is the Commissioner of the New York State Office of Children and Family Services. Id. ¶ 40.

2. New York Reproductive Health Act

In January 2019, the Governor of New York State signed the RHA into law. Id. ¶ 47. Among many other things, the RHA added Article 25-A of the Public Health Law and decriminalized abortion. Id. ¶¶ 48–66.

Article 25-A specifically states the following:

N.Y. Public Health Law § 2599–AA Policy and purpose.

The legislature finds that comprehensive reproductive health care is a fundamental component of every individual's health, privacy and equality. Therefore, it is the policy of the state that:

1. Every individual has the fundamental right to choose or refuse contraception or sterilization.

2. Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion, pursuant to this article.

3. The state shall not discriminate against, deny, or interfere with the exercise of the rights set forth in this section in the regulation or provision of benefits, facilities, services or information.

N.Y. Public Health Law § 2599–BB. Abortion

1. A health care practitioner licensed, certified, or authorized under title eight of the education law, acting within his or her lawful scope of practice, may perform an abortion when, according to the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient's life or health.

2. This article shall be construed and applied consistent with and subject to applicable laws and applicable and authorized regulations governing health care procedures.

Id. ¶ 48 (citations omitted).

Furthermore, the RHA eliminated abortion as a crime and removed from the homicide statutes the qualifying act of causing the death of "an unborn child with which a female has been pregnant for more than twenty-four weeks." Id. ¶¶ 50–51 (citing N.Y. Penal Law §§ 125.00, 125.05 ).

III. LEGAL STANDARD

A. Rule 12(b)(1) Motion to Dismiss

When a defendant "moves for dismissal under Rule 12(b)(1), as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1155–56 (2d Cir. 1993) (internal quotation marks and citation omitted). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "To survive a defendant's Rule 12(b)(1) motion to dismiss for lack of standing, plaintiffs must allege facts that affirmatively and plausibly suggest that [they have] standing to sue." Kiryas Joel Alliance v. Village of Kiryas Joel, 495 F. App'x 183, 188 (2d Cir. 2012) (alteration in original) (internal quotation marks omitted). In considering a motion to dismiss under Rule 12(b)(1), a court must accept as true all material factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiffs. Buday v. N.Y. Yankees P'Ship, 486 F. App'x 894, 896 (2d Cir. 2012). Plaintiffs, as the parties asserting subject matter jurisdiction, bear the burden of establishing their standing as the proper parties to bring this action. See Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading, Inc., 697 F.3d 59, 65 (2d Cir. 2012).

B. Article III Standing

Standing is an "essential aspect" of the limits of federal judicial power under Article III of the Constitution, which authorizes federal courts to decide only actual "Cases" or "Controversies." Hollingsworth v. Perry, 570 U.S. 693, 704, 133 S.Ct. 2652, 186...