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Planned Parenthood Arkansas & Eastern Oklahoma v. Selig

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

January 25, 2016

PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; JANE DOE #1; JANE DOE #2; and JANE DOE #3, PLAINTIFFS
v.
JOHN M. SELIG, DIRECTOR, ARKANSAS DEPARTMENT OF HUMAN SERVICES, in his official capacity, DEFENDANT

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[Copyrighted Material Omitted]

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          For Planned Parenthood Arkansas & Eastern Oklahoma, doing business as Planned Parenthood of the Heartland, Jane Does, 1-3, on their behalf and all others similarly situated, Plaintiffs: Bettina E. Brownstein, LEAD ATTORNEY, Betinna E. Brownstein Law Firm, Little Rock, AR; Jennifer Sandman, LEAD ATTORNEY, PRO HAC VICE, Planned Parenthood Federation of America, New York, NY.

         For John Selig, Director, Arkansas Department of Human Services, in his Official Capacity, Defendant: David Wayne Sterling, LEAD ATTORNEY, Arkansas Department of Human Services, Office of Chief Counsel, Little Rock, AR; C. Joseph Cordi, Jr., Lee Rudofsky, Arkansas Attorney General's Office, Little Rock, AR.

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         ORDER

         Kristine G. Baker, United States District Judge.

         Before the Court is the motion for class certification filed by plaintiffs Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of the Heartland (" PPH" ) and Jane Doe #1, Jane Doe #2, and Jane Doe #3 (" Jane Does" ) (Dkt. No. 50). Defendant John M. Selig, sued in his official capacity only as the Director of the Arkansas Department of Human Services (" ADHS" ), has responded in opposition to the motion for class certification (Dkt. No. 71), and PPH and the Jane Does have filed a reply (Dkt. No. 72). The Court conducted a hearing in this matter on January 14, 2016, at which counsel for all parties were present. ADHS filed a post-hearing supplemental response to plaintiffs' motion for class certification (Dkt. No. 82). For the reasons that follow, plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23 is granted.

         I. Background

         PPH operates health centers in Little Rock, Arkansas, and Fayetteville, Arkansas, and has done so for over 30 years. These centers provide family planning services to men and women, including contraception and contraceptive counseling, screening for breast and cervical cancer, pregnancy testing and counseling, and early medication abortion. PPH states that, at its Arkansas health centers, PPH offers only early medication abortions, services that Arkansas Medicaid does not cover in virtually all circumstances (Dkt. No. 12, ¶ 17). PPH and the Jane Does represent that Medicaid payment for abortion is not at issue in this case (Dkt. No. 12, ¶ 17). PPH also operates a pharmacy that serves Arkansas residents which allows patients to have their birth control prescriptions automatically refilled. During the 2015 fiscal year, PPH represents that it provided approximately 1,000 health care visits and filled more than 1,100 prescriptions, for over 500 women, men, and teens insured through Medicaid in Little Rock and Fayetteville, Arkansas. In 2014, almost 40% of PPH's Little Rock, Arkansas, patients, and 15% of its Fayetteville, Arkansas, patients were insured through Medicaid, according to PPH. Plaintiffs Jane Does are patients of PPH who receive their care through the Medicaid program.

         PPH and the Jane Does allege that ADHS, through its director Mr. Selig, notified PPH on August 14, 2015, that ADHS was terminating its Medicaid provider agreements, effective 30 days from the date of the letter (Dkt. No. 16-1, at 19). PPH and the Jane Does further allege that this initial notification letter provided no reason for the termination of the agreements; they assert that this initial termination appears to stem from PPH's association with Planned Parenthood and abortion (Dkt. No. 12, ¶ 35). To support their contention that ADHS wrongfully suspended Medicaid payments to PPH, PPH

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and the Jane Does cite Arkansas Governor Asa Hutchinson's press release from August 14, 2014, the day the termination letter was sent to PPH. In this release, Governor Hutchinson states that he directed ADHS to terminate the agreements because " [i]t is apparent that after the recent revelations on the actions of Planned Parenthood, that this organization does not represent the values of the people of our state and Arkansas is better served by terminating any and all existing contracts with them." (Dkt. No. 12, ¶ 35).

         PPH and the Jane Does further assert that Governor Hutchinson's reference to " recent revelations" regarding Planned Parenthood refers to recent videos released about Planned Parenthood, claiming that some Planned Parenthood affiliates allow patients to donate fetal tissue to medical research following abortions (Dkt. No. 12, ¶ 35).

         ADHS followed this August 14, 2015, letter with a second termination letter dated September 1, 2015, that ADHS characterizes as a " for cause" letter. PPH and the Jane Does allege that this second letter states solely that it " is based in part upon the troubling circumstances and activities that have recently come to light regarding the national Planned Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned Parenthood entities, all of which are affiliated with [PPH]," and that " there is evidence that [PPH] and/or its affiliates are acting in an unethical manner and engaging in what appears to be wrongful conduct." (Dkt. Nos. 12, ¶ 37; 16-1, at 21 26). The letter also states that PPH is " welcome to submit information or offer comments on the nationally recognized videos that have raised questions on the conduct of Planned Parenthood." (Dkt. Nos. 12, ¶ 37; 16-1, at 21 26).

         PPH and the Jane Does filed a motion for temporary restraining order and preliminary injunction on September 11, 2015 (Dkt. No. 3). This motion alleges that, starting on September 21, 2015, absent an injunction, patients insured through the Medicaid program who choose to get family planning and other health care services at PPH will lose access to services, will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no adequate alternative providers (Dkt. No. 12, ¶ ¶ 8, 34). As for PPH, PPH and the Jane Does contend that, " [i]f PPH is forced to stop providing care through the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPH's patients, leaving those patients without access to crucial medical services." (Dkt. No. 12, ¶ 43). Further, they allege that " [w]ithout Medicaid reimbursements, PPH may be unable to continue to provide services in the same manner and may be forced to lay off staff members and/or reduce hours at one or both health centers." (Dkt. No. 12, ¶ 49). They also allege that, " if PPH's termination from the Medicaid program is allowed to take effect for some period of time and it then is later allowed to become a Medicaid provider again, some patients will remain confused about whether PPH is a Medicaid provider in good standing, and therefore will not return as patients." (Dkt. No. 12, ¶ 49). PPH and the Jane Does claim that the suspension of Medicaid payments violates certain provisions of the Medicaid statutory and regulatory scheme set out in 42 U.S.C. § 1396 and violates their rights under the First and Fourteenth Amendments to the United States Constitution. They have sued ADHS's director, Mr. Selig, in his official capacity only seeking declaratory and injunctive relief (Dkt. No. 12, at 15).

         This Court granted PPH and the Jane Does' motion for temporary restraining order (Dkt. No. 21). The Court temporarily restrained ADHS " for a period of 14 days from the date of entry of this Order from suspending Medicaid payments to PPH for services rendered to Medicaid beneficiaries, including but not limited to the Jane Does." (Dkt. No. 21, at 19). At that stage of the proceedings, the Court conducted a status conference with counsel concerning a briefing schedule and potential hearing. For the reasons set forth in its Order, the Court permitted ADHS to obtain evidentiary material from the Jane Does (Dkt. No. 25). The Court did not regulate the number, scope, or timing of the written questions ADHS submitted to the Jane Does. The Court instructed counsel

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fro both sides to meet and confer on these matters, and although the Court did later enter an Order clarifying its earlier Order on the permitted discovery, the Court was not asked to resolve or clarify any other issues in regard to the questions submitted to the Jane Does (Dkt. No. 32). Also at this stage of the proceeding, the Court raised with counsel again and directed counsel to brief standing issues.

         The Court then entered a preliminary injunction more limited in scope -- limiting the relief granted to just the Jane Does (Dkt. Nos. 44, 45). The Court then granted PPH and the Jane Does leave to file a second amended complaint (Dkt. No. 63). In their second amended complaint, PPH and the Jane Does add class action allegations (Dkt. No. 64, ¶ ¶ 50 55).

         On October 6, 2015, ADHS filed a motion for leave to notice four depositions (Dkt. No. 56). The Court conducted a status hearing on the motion. ADHS requested leave to depose Jane Doe #1, Jane Doe #2, and Jane Doe #3 and to conduct a Federal Rule of Civil Procedure 30(b)(6) deposition of a PPH representative before responding to the pending motion for class certification. ADHS claims that it seeks these depositions to test, at least, the typicality and adequacy requirements for class certification (Dkt. No. 55, at 4). For the reasons set forth in its Order, the Court denied the motion for leave to notice four depositions (Dkt. No. 66).

         PPH and the Jane Does are now asking this Court to certify a class, and ADHS at the hearing conducted in this matter orally renewed its request to conduct precertification discovery.

         II. Discussion

         PPH and the Jane Does seek class-action certification under Rule 23 of the Federal Rules of Civil Procedure for " the Jane Doe plaintiffs and all other persons similarly situated, namely: patients who seek to obtain, or desire to obtain, health care services in ...


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