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Edwards v. Beck

United States District Court, E.D. Arkansas, Western Division

March 14, 2014

LOUIS JERRY EDWARDS, M.D., on behalf of himself and his patients, ET AL., Plaintiffs
v.
JOSEPH M. BECK, M.D., President of the Arkansas State Medical Board, and his successors in office, in their official capacities, ET AL., Defendants

Page 1092

For Louis Jerry Edwards, M.D., on behalf of himself and his patients, Tom Tvedten, M.D., on behalf of himself and his patients, Plaintiffs: Bettina E. Brownstein, LEAD ATTORNEY, Betinna E. Brownstein Law Firm, Little Rock, AR; Holly Elizabeth Dickson, LEAD ATTORNEY, Arkansas Civil Liberties Union Foundation, Inc., Little Rock, AR; Stephanie Toti, LEAD ATTORNEY, PRO HAC VICE, Center for Reproductive Law & Policy, New York, NY; Susan Talcott Camp, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union, New York, NY.

For Joseph M Beck, M.D., President of the Arkansas State Medical Board, and his successors in office, in their official capacity, Omar Atiq, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Harold B Betton, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Steven L Cathey, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Jim Citty, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Bob Cogburn, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, William F Dudding, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Roger Harmon, P.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, John E Hearnsberger, II, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Verly D Hodges, D.O., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Scott Pace, Pharm.D., J.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, John H Scribner, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Sylvia D Simon, M.D., officer and member of the Arkansas State Medical Board, and her successors in office, in their official capacity, John B Weiss, M.D., officer and member of the Arkansas State Medical Board, and his successors in office, in their official capacity, Defendants: Colin R. Jorgensen, LEAD ATTORNEY, Arkansas Attorney General's Office, Little Rock, AR.

OPINION

Page 1093

MEMORANDUM OPINION AND ORDER

Susan Webber Wright, UNITED STATES DISTRICT JUDGE.

Plaintiffs Louis Jerry Edwards and Tom Tvedten, physicians who provide abortion services at Little Rock Family Planning Services, Inc., bring this action under 42 U.S.C. § 1983 against members of the Arkansas State Medical Board (the " Board" ), sued in their official capacities. Plaintiffs challenge the constitutionality of Arkansas Act 301 of the 2013 Regular Session of the 89th General Assembly of Arkansas, titled the Arkansas Human Heartbeat Protection Act, now codified at Ark. Code Ann. § § 20-16-1301 through 1307. Before the Court are the State's motion for partial summary judgment (ECF Nos. 40, 41, 42); Plaintiffs' response in opposition and cross-motion for summary judgment (ECF Nos. 48, 49); the State's response in opposition to Plaintiffs' cross-motion (ECF No. 52); the State's reply in support of the State's motion (ECF No. 51); and Plaintiffs' reply in support of their cross-motion (ECF No. 55). Also before the Court is an amicus brief filed by Concepts of Truth, Inc. (ECF No. 53), supporting the State's motion for partial summary judgment. After careful consideration, and for reasons that follow, the State's motion for partial summary judgment is granted, and Plaintiffs' cross-motion for summary judgment is granted in part and denied in part.

I.

Summary judgment is appropriate when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). As a prerequisite to summary judgment, a moving party must demonstrate " an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must " do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Page 1094

The non-moving party may not rest on mere allegations or denials of his pleading but must come forward with 'specific facts showing a genuine issue for trial. Id. at 587. " [A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

II.

Unless a pregnancy is the result of rape or incest or an abortion is necessary because of a medical emergency,[1] Act 301 imposes regulations on the performance of abortions in Arkansas, and it contains three operative provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks' gestation.

The heartbeat testing requirement provides that a physician authorized under Arkansas law to perform abortions,[2] " shall not perform an abortion on a pregnant woman before the [physician] tests the pregnant woman to determine whether the fetus . . . possesses a detectible heartbeat." Ark. Code Ann. § 20-16-1303(a). The Act further provides that the physician " shall perform an abdominal ultrasound test necessary to detect a heartbeat of an unborn human individual according to standard medical practice, including the use of medical devices as determined by standard medical practice." Ark. Code Ann. § 20-16-1303(b)(1). Act 301 requires that the aforementioned abdominal ultrasound test " shall be approved by the Arkansas State Medical Board[,]" Ark. Code Ann. § 20-16-1303(b)(2), and the Board is charged with adopting rules " based on standard medical practice for testing for the fetal heartbeat of an unborn individual." Ark. Code Ann. § 20-16-1303(c)(1)(A)(i).

The disclosure requirement provides that if a fetal heartbeat is detected in the course of the mandatory heartbeat test, the physician must inform the pregnant woman, in writing, of the following: (1) the fetus she is carrying possesses a heartbeat; (2) the statistical probability of bringing the fetus to term based on the fetus's gestational age; and (3) that an abortion is prohibited, under Ark. Code Ann. § 20-16-1304, if a heartbeat is detected and the gestational period is twelve weeks or more. See Ark. Code Ann. § 20-16-1303(d). The Act further requires that the pregnant woman shall sign a form acknowledging that she has received the foregoing information. See Ark. Code Ann. § 20-16-1303(e).

Page 1095

Finally, Act 301 bans an abortion where a fetal heartbeat is detected and the fetus has reached twelve weeks or greater gestational age. See Ark. Code Ann. § 20-16-1304(a). Unless a pregnancy is the result of rape or incest or an abortion is performed in response to a medical emergency, a physician who performs an abortion " with the specific intent of causing or abetting the termination of the life of an unborn individual whose heartbeat has been detected . . . and is twelve (12) weeks or greater gestation" is subject to license revocation, and the Board is charged with determining violations of the twelve-week abortion ban. See Ark. Code Ann. § 20-16-1304(b).

III.

Plaintiffs are physicians who provide pre-viability abortions in Arkansas at and after twelve weeks' gestation, and they filed this lawsuit charging that Act 301 is facially unconstitutional because it bans abortions prior to fetal viability. Along with the complaint, Plaintiffs filed a motion seeking a preliminary injunction enjoining the Act's enforcement pending a final decision on the merits. Following a hearing held May 17, 2013, the Court determined that Plaintiffs had demonstrated each requisite for preliminary injunctive relief, including that they were likely to prevail with the claim that the twelve-week abortion ban violates the Constitution. The Court enjoined the State from enforcing Act 301, in its entirety, pending the resolution of this lawsuit. However, the Court notified the parties that in deciding the scope of a permanent injunction, it would consider whether to sever the impermissible twelve-week abortion ban from the heartbeat testing and disclosure measures and leave those portions of the statute intact.

On May 31, 2013, the State filed a motion for partial summary judgment, asserting that the heartbeat testing and disclosure provisions are constitutionally valid and severable from the twelve-week abortion ban. Plaintiffs responded with a cross-motion for summary judgment, seeking ...


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