Tucson Woman's Clinic v. Eden, No. 02-17375

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: TASHIMA, THOMAS, and SILVERMAN, Circuit
• Citation: 371 F.3d 1173
• Parties: TUCSON WOMAN'S CLINIC, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellants, v. Catherine EDEN, in her capacity as the Director of Arizona Department of Health Services; Richard M. Romley, in his capacity as Maricopa County Attorney; Terry Goddard, Defendants-Appellees. Tucson Woman's Clinic, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellees, v. Catherine Eden, in her capacity as the Director of Arizona Department of Health Services; Terry Goddard, Defendants-Appellants, and Richard M. Romley, in his capacity as Maricopa County Attorney, Defendant. Tucson Woman's Clinic, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellees, v. Catherine Eden, in her capacity as the Director of Arizona Department of Health Services; Terry Goddard, Defendants, and Richard M. Romley, in his capacity as Maricopa County Attorney, Defendant-Appellant.
• Docket Number: 02-17381,No. 02-17375,02-17382.
• Decision Date: 18 June 2004

371 F.3d 1173

TUCSON WOMAN'S CLINIC, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellants,
v.
Catherine EDEN, in her capacity as the Director of Arizona Department of Health Services; Richard M. Romley, in his capacity as Maricopa County Attorney; Terry Goddard, Defendants-Appellees.
Tucson Woman's Clinic, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellees,
v.
Catherine Eden, in her capacity as the Director of Arizona Department of Health Services; Terry Goddard, Defendants-Appellants, and
Richard M. Romley, in his capacity as Maricopa County Attorney, Defendant.
Tucson Woman's Clinic, on behalf of themselves and their patients seeking abortions; Damon Raphael, M.D.; Robert H. Tamis, M.D.; Old Pueblo Family Planning; William Richardson, M.D.; Simat Corp. dba Abortion Services of Phoenix, Plaintiffs-Appellees,
v.
Catherine Eden, in her capacity as the Director of Arizona Department of Health Services; Terry Goddard, Defendants, and
Richard M. Romley, in his capacity as Maricopa County Attorney, Defendant-Appellant.

Nos. 02-17375, 02-17381, 02-17382.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2003.

Filed June 18, 2004.

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Bonnie Scott Jones, Center for Reproductive Rights, New York, NY, for the plaintiffs-appellants and cross-appellees

Kevin D. Ray and Lynne C. Adams, Office of the Arizona Attorney General, Phoenix, AZ, for defendants-appellees and cross-appellants Catherine Eden and Terry Goddard.

Denise M. Burke, Special Deputy Maricopa County Attorneys, San Antonio, TX; Nicholas T. Nikas, Deputy Maricopa County Attorney, Phoenix, AZ, for defendant-appellee and cross-appellant Richard M. Romley.

Before TASHIMA, THOMAS, and SILVERMAN, Circuit Judges.

THOMAS, Circuit Judge:

Plaintiffs in this case are physicians who provide abortions in their private medical practices in Arizona. They challenge the constitutionality of a statutory and regulatory scheme which requires the licensing and regulation of any medical facility in which five or more first trimester abortions in any month or any second or third trimester abortions are performed. The district court granted summary judgment in part to plaintiffs, and in part to defendants. We affirm in part, reverse in part, and remand for further proceedings on plaintiffs' claim that the scheme poses an undue burden on the right to abortion.

I. Factual and Procedural Background¹

Prior to the promulgation of the statutory and regulatory scheme at issue in this

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case, the Arizona Department of Health Services (DHS) was explicitly denied authority to regulate any private physician office or clinic of a licensed health care provider unless patients were kept overnight or administered general anesthesia. The state alleges that the statutory scheme, passed in 1999, was implemented in response to the highly publicized death of Lou Anne Herron, a patient who bled to death while recovering in an abortion clinic following an extremely substandard abortion provided by Dr. John Biskind, but plaintiffs contest this characterization of the State's motivation. The statute singles out abortion providers who provide five or more first trimester abortions, or any second or third trimester abortions, in a month, and it subjects all such providers to the licensing requirements imposed on health care institutions. It also directs DHS to promulgate regulations regarding facilities that perform abortions. The regulations that DHS has issued set mandatory standards in many areas of practice: administration, personnel, staffing requirements, the abortion procedure itself, patient transfer and discharge, medications, medical records, equipment, and physical facilities. The regulations also require the providers to submit to warrantless, unbounded inspections of their offices and provide DHS inspectors access to unredacted medical records. Amendments to the scheme passed in 2000 additionally require physicians who perform abortions after the first trimester to submit ultrasound prints to a DHS contractor for review. Violations of the scheme result in criminal and civil penalties, but enforcement of the entire set of statutes and regulations has been enjoined during district court proceedings and the outcome of all appeals pursuant to stipulation

Plaintiffs claim the regulation of their practices is unconstitutional in the following eight ways: (1) It poses an undue burden on the right to abortion; (2) It violates the equal protection rights of physicians and their patients by distinguishing between those who provide abortions and those who provide other comparably risky medical services; (3) It violates the equal protection rights of physicians by distinguishing between those who provide fewer than five first trimester abortions a month and those who provide five or more, or any second or third trimester abortions; (4) It violates the equal protection rights of women by distinguishing between medical services sought by women and comparably risky procedures sought by men; (5) It violates physicians' Fourth Amendment rights by permitting warrantless searches of their offices; (6) It violates patients' informational privacy rights by requiring DHS access to unredacted records, disclosure of ultrasound prints with patient identifying information to a private contractor, allowing unannounced searches by DHS when patients may be in the facility, and by requiring physicians to release sensitive patient information including patient name to a licensing board when there is an "incident" with the patient; (7) One of its provisions is unconstitutionally vague; and (8) It violates the due process rights of physicians and their patients by requiring a physician with hospital admitting privileges to be on premises until all patients are discharged, and thereby unlawfully delegating to hospitals the licensing of abortion providers. Plaintiffs also claim the unconstitutional portions of the scheme are not severable.

The parties filed cross-motions for summary judgment, but plaintiffs never moved

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for summary judgment on their undue burden claim, which they believe requires a trial. Plaintiffs were granted summary judgment on most of the Fourth Amendment, informational privacy, and vagueness challenges described above. Defendants were granted summary judgment on the undue burden and equal protection claims, and the district court found the unconstitutional portions of the scheme were severable from the constitutional ones. Plaintiffs and defendants cross-appeal from all grants of summary judgment to the opposing parties, and with the exception of the undue burden claim, they each argue that summary judgment should have been granted in their favor. With respect to the undue burden claim, plaintiffs do not argue that summary judgment was warranted in their favor, but instead argue that a bench trial was warranted. Plaintiffs further appeal the finding of severability

We reverse and remand on plaintiffs' undue burden claim. Plaintiffs have submitted sufficient evidence to create an issue of material fact as to whether the scheme creates an undue burden on the right to seek an abortion in violation of the United States Constitution.

We affirm the district court's grant of summary judgment to defendants on all equal protection claims. The scheme does not violate the equal protection clause in a judicially cognizable manner by distinguishing between doctors who perform less rather than more abortions, by distinguishing between abortion providers and other physicians, or by distinguishing between abortion, sought only by women, and comparably risky medical procedures sought by men.

We also affirm the district court's grants of partial summary judgment to plaintiffs on their Fourth Amendment, informational privacy, and vagueness claims. The scheme's authorization of boundless, warrantless searches of physicians' offices violates the Fourth Amendment. The scheme's requirement that clinics submit, upon request made by DHS in its absolute discretion, unredacted patient files containing name, address, and other patient identifying information violates patients' informational privacy rights. The scheme's requirement that doctors send ultrasound prints to a private contractor also violates patients' informational privacy rights. The scheme's requirement that patient identifying information be released to a professional licensing board after an "incident" does not violate patients' informational privacy rights. None of the unconstitutional release requirements is mitigated by sufficient safeguards against unnecessary access or wider release of the information. Last, the regulation requiring physicians to "ensure that a patient is ... treated with consideration, respect, and full recognition of the patient's dignity and individuality," Ariz. Admin. Code R9-10-1507(1), is unconstitutionally vague. Because we remand on the undue burden claim, we do not reach the issue of severability at this time.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction under 28 U.S.C. § 1331 (2000) because this case arises under the Fourteenth Amendment to the Constitution, and state officials can be sued for constitutional violations under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291.

Appeals from the grant or denial of summary judgment are reviewed de novo, Biodiversity Legal Found. v....