Women's Medical Center of N.W. Houston v. Archer
| Citation | 159 F.Supp.2d 414 |
| Decision Date | 29 December 1999 |
| Docket Number | No. Civ.A. H-99-36398.,Civ.A. H-99-36398. |
| Parties | WOMEN'S MEDICAL CENTER OF N.W. HOUSTON; Denton Health Services for Women; Austin women's Health Center, P.A.; Robert P. Kaminsky, M.D., and M.D., P.A.; Lamar Robinson, M.D., and M.D., P.A.; Fred W. Hansen M.D., and M.D., P.A.; L.L. Tad Davis, M.D. and Mary E. Smith, M.D., and M.D., P.A. on behalf of themselves and the patients they serve, Plaintiffs, v. William R. ARCHER III, Texas Commissioner of Health; John Cornyn, Texas Attorney General; John B. Holmes, Jr., Harris County District Attorney, Bruce Isaacks, Denton Criminal District Attorney; Ken Oden, Travis County Attorney; and Bill Hill, Dallas Criminal District Attorney, in their official capacities, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Craig Smyser, Jr., Smyser Kaplan & Veselka, Houston, TX, Janet Crepps, Simpsonville, SC, for Plaintiffs.
Dona Glimm Hamilton, Office of Attorney General, Austin, TX, Frank Sanders, Harris County Attorney's Office, Houston, TX, Carmen Rivera-Worley, Denton County DA's Office, Denton, TX, David L. Finney, Denton County DA's Office Criminal Division, Denton, TX, Sherine Thomas, Assistant County Attorney, Austin, TX, Elaine A. Casas, Austin, TX, Peter Llewellyn Harlan, District Attorney's Office, Dallas, TX, for Defendants.
Pending before the Court is the motion for preliminary injunction (Dkt.# 4) filed by the plaintiffs. Women's Medical Center of N.W. Houston; Denton Health Services for Women; Austin Women's Health Center. P.A.; Robert P. Kaminsky, M.D. and M.D., P.A.; Lamar Robinson, M.D. and M.D., P.A.; Fred W. Hansen M.D. and M.D., P.A.; L.L. Tad Davis, M.D.; and Mary E. Smith, M.D. and M.D., P.A. The plaintiff physicians1 brought this action "on behalf of themselves and the patients they serve." The defendants are Texas Commissioner of Health William R. Archer. III, and Texas Attorney General John Cornyn.2
After reviewing the parties' submitted evidence and briefing, considering the testimony and exhibits received at a preliminary injunction hearing on December 13 and 14, 1999, reviewing the entire record, and analyzing the applicable law, the Court finds that the plaintiffs have met their burden of showing that they are entitled to a preliminary injunction with regard to their equal protection claims and their vagueness claims. Therefore, for the reasons set out in this order, the plaintiffs' motion for preliminary injunction (Dkt.# 4) is GRANTED with regard to the claims that the 1999 amendments violate the plaintiffs' equal protection rights; is GRANTED with regard to the three provisions found to be unconstitutionally vague; but is DENIED with regard to the claims that the 1999 amendments violate the plaintiffs' patients' due process rights.
The plaintiffs filed this lawsuit under 42 U.S.C. § 1983 to challenge the constitutionality of the 1999 amendments to Texas' abortion licensing statute and regulations.3 The regulatory scheme requires that all facilities at which any abortions are performed become licensed and comply with detailed administrative, operating and personnel provisions. Prior to the 1999 amendments that are being challenged in this lawsuit, physicians' offices were exempt from the licensing requirement unless the physician's office was "used primarily for the purpose of performing abortions." See TEX. HEALTH & SAFETY CODE § 245.004(2). (Vernon 1992). "Primarily," for purposes of the statute, has been interpreted by the regulations to mean "51 % or more of the patients actually treated within the previous calendar year." 25 TAC § 139.2(21)(B) (1998). The 1999 amendments will significantly narrow the exemption for physicians' offices, by requiring physicians' offices in which 300 or more abortions are performed in any twelve-month period to comply with the licensing scheme. See House Bill 2085, Sixty-Seventh Legislature, 1999 Regular Session, 1999 Tex. Sess. Law Serv. Ch. 1411 (H.B.2085) (Vernon's). The plaintiff physicians currently provide a wide range of gynecological services, including abortions, in their private offices. It is undisputed that all of the plaintiffs were exempt from licensing and regulation under the pre-1999 law because abortion constitutes less than 51 percent of their practices. It is also undisputed that all of the plaintiffs currently perform more than 300 abortions per year, and therefore must become licensed abortion facilities if they wish to continue providing their current levels of abortion services. Previously unlicensed physicians' offices, such as those of the plaintiffs, must become licensed by January 1, 2000. The plaintiffs seek a preliminary injunction against enforcement of the 1999 amendments pending final resolution of their constitutional claims.
The plaintiffs claim that the 1999 amendments will subject them to onerous administrative requirements that will do nothing to advance the health and safety of their patients. For example, they point out that the regulations require an abortion provider's non-medical office staff, including bookkeepers, receptionists, and insurance verification clerks, to be trained in infection control procedures and numerous other subjects that may be of questionable relevance to their jobs. The plaintiffs contend that the detailed administrative operating and personnel provisions depart from generally accepted medical practice and require a level of formal administration far beyond accepted practice for private physicians' offices. Plaintiffs further contend that requiring written policies to be developed and maintained regarding more than 30 different subject matters, mandating that a "quality control committee" meet quarterly, or requiring that organizational charts be drawn up to show lines of authority, might be appropriate for a large clinic setting where many contract physicians work for a clinic owner who may not be a physician. But some of the requirements border on the absurd, plaintiffs assert, when applied to a private physician's office with four staff members. Some of the plaintiff physicians claim that the costs associated with compliance will require them to increase their fees for abortions. Other plaintiffs testified that they will cease performing abortions altogether, either due to being financially unable to absorb the anticipated costs of compliance, or due to their fear of incurring civil or criminal liability through arbitrary enforcement or varying interpretations of the statute and regulations. The plaintiffs allege that enforcement of the 1999 amendments will reduce abortion availability and increase costs, which may make these services inaccessible for some Texas women due to prohibitive expense or increased travel. In addition, the plaintiffs feel that the diversion of the physician and staff's time away from patient care, and toward policy-drafting and regulatory compliance, will cause the quality of care to deteriorate. The plaintiffs claim that the 1999 amendments will place an undue burden on Texas women's right to choose abortion and will violate their patients' constitutional guarantees of privacy in reproductive decision making.
The plaintiffs also allege that the 1999 amendments are irrational because they single out physicians who perform abortions in their offices for stringent and burdensome regulations, while physicians performing similar or more risky non-abortion outpatient procedures in their offices are not subject to similar requirements. In addition, the plaintiffs claim that it is irrational to regulate physicians who perform 300 abortions per year in a given location, while leaving unregulated physicians who perform fewer than 300 abortions. Therefore, the plaintiffs claim, the 1999 amendments violate their right to equal protection. Finally, the plaintiffs contend that certain regulatory provisions (which will be applied to them by the 1999 amendments) are unconstitutionally vague.
The following is a summary of some of the regulatory provisions to which the plaintiffs will be subjected on January 1 2000, barring a preliminary injunction enjoining enforcement:
Licensed abortion facilities are required to provide written notice of the Department of Health's toll-free number to every woman "at the time the woman initially consults the facility." 25 TAC § 139.6. Women calling the number can access information regarding licensed abortion clinics, including status of license, date of last inspection, and any fines or penalties rendered against the facility. 25 TAC § 139.6.4 Additionally, at the time of "initial onsite consultation," each woman must be provided with a written statement informing her that any complaints about the facility shall be sent to the Health Department. 25 TAC § 139.50.
A written plan of quality assurance implementation must be created and maintained in a licensed abortion facility, and must be reviewed and updated or revised "at least annually." 25 TAC § 139.8 A quality assurance committee comprised of a physician "medical consultant," a registered nurse ("RN") or licensed vocational nurse ("LVN") and "at least two other members of the facility's staff" must be formed and must hold meetings "at least quarterly" and must, at a minimum, evaluate all services related to patient care, ensure review of complications, address issues of unprofessional conduct by any staff member, monitor infection control, address medication, address the integrity of surgical instruments, medical equipment, and patient supplies, and address "the appropriateness of diagnosis and treatment." The QA committee must document all remedial action. 25 TAC § 139.8. "Quality" is defined subjectively in the regulations as "the degree to which care meets or exceeds the expectations set by the patient." 25 TAC § 139.2(43).
"An abortion facility shall...
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...down the classification at issue there because it found that the place the legislature had drawn its line was absurd, 159 F.Supp.2d 414, 465 n. 30 (S.D.Tex.1999). However, the State's asserted rationale in this case — that smaller practices would be unduly burdened by the comprehensive legi......
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Tucson Woman's Clinic v. Eden
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