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Hopkins v. Jegley

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

July 28, 2017

FREDERICK W. HOPKINS, M.D., M.P.H PLAINTIFF
v.
LARRY JEGLEY, Prosecuting Attorney for Pulaski County, STEVEN L. CATHEY, M.D., Chair of the Arkansas State Medical Board; ROBERT BREVING, JR., M.D.; BOB E. COGBURN, M.D.; WILLIAM F. DUDDING, M.D.; OMAR T. ATIQ, M.D.; VERYL D. HODGES, D.O.; MARIE HOLDER; LARRY D. LOVELL; WILLIAM L. RUTLEDGE, M.D.; JOHN H. SCRIBNER, M.D.; SYLVIA D. SIMON, M.D.; DAVID L. STAGGS, M.D.; JOHN B. WEISS, M.D., officers and members of the Arkansas State Medical Board, and their successors in office, in their official capacity, DEFENDANTS

          PRELIMINARY INJUNCTION ORDER

          Kristine G. Baker United States District Judge.

         Plaintiff, Frederick W. Hopkins, M.D., M.P.H., files this suit pursuant to 42 U.S.C. § 1983 against defendants Larry Jegley, Prosecuting Attorney for Pulaski County; Steven L. Cathey, M.D., Chair of the Arkansas State Medical Board; and Robert Breving, Jr., M.D.; Bob Cogburn, J.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder, Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; and John B. Weiss, M.D., as officers and members of the Arkansas State Medical Board in their official capacities. Dr. Hopkins mounts a constitutional challenge to four acts of the 91st Arkansas General Assembly of 2017, Act 45 (H.B. 1032) (“D&E Mandate”), Act 722 (H.B. 1434) (“Medical Records Mandate”), Act 1018 (H.B. 2024) (“Local Disclosure Mandate”), and Act 603 (H.B. 1566) (“Tissue Disposal Mandate”), to be codified at Arkansas Code Annotated §§ 20-16-1801 to 1807, 20-16-1801 to 1810, 20-16-108(a)(1), and 20-17-801 to 802, respectively.[1]By its terms, H.B. 1434 takes effect January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, are set to take effect on or about July 30, 2017.

         Before the Court is Dr. Hopkins's motion for preliminary injunction or in the alternative temporary restraining order (Dkt. No. 2). Dr. Hopkins seeks preliminary injunctive relief based on the following claims in his complaint: Count 1 based on the D&E Mandate, Counts III and IV based on the Medical Records Mandate, Counts VI and VIII based on the Local Disclosure Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that “[t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients' constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.” (Dkt. No. 1, at 3, ¶ 9). He seeks declaratory and injunctive relief “[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm. . . .” (Dkt. No. 1, at 3, ¶ 9). Defendants responded in opposition to the motion (Dkt. No. 23). Dr. Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of supplemental authority (Dkt. Nos. 31, 34).

         The Court conducted a hearing on the motion on July 13, 2017. The parties agreed among themselves not to present additional evidence at the hearing but instead to present only argument, and the Court agreed to hear only argument. For the following reasons, the Court grants Dr. Hopkins's motion for preliminary injunction.

         I. Findings of Fact

         1. Dr. Hopkins is a board-certified obstetrician-gynecologist with 25 years of experience in women's health. He is licensed to practice medicine in Arkansas, as well as other states including California and New Mexico. For over five years, Dr. Hopkins has been both Co-Director of the Family Planning Training Program at Santa Clara Valley Medical Center in Santa Clara, California, and Associate Clinical Professor in obstetrics and gynecology at Stanford University School of Medicine in Palo Alto, California (Dkt. No. 5, ¶ 1).

         2. Earlier in 2017, Dr. Hopkins began providing care at Little Rock Family Planning Services in Little Rock, Arkansas (Dkt. No. 5, ¶ 1).

         3. At Little Rock Family Planning Services, Dr. Hopkins provides care that includes medication abortion in the early part of the first trimester and surgical abortion through 21 weeks and six days as measured from the woman's last menstrual period (“LMP”), which is referred to as “21.6 weeks LMP” (Dkt. No. 5, ¶ 2; Dkt. No. 6, ¶ 2).

         4. Dr. Hopkins provides abortion and miscarriage services for patients from young teenagers to women in their later reproductive years (Dkt. No. 5, ¶ 2).

         5. Dr. Hopkins has performed work in Kenya, Tanzania, and Zimbabwe. As a result of that work, he has seen firsthand the results of denying women access to safe abortion care (Dkt. No. 5, ¶ 3).

         6. There are only two entities providing abortion care in Arkansas: Little Rock Family Planning Services, which provides abortions through 21.6 weeks LMP, and Planned Parenthood Great Plains, which provides only medication abortion through 10 weeks LMP in Little Rock and Fayetteville, Arkansas (Dkt. No. 5, ¶ 6; Dkt. No. 6, ¶ 2).

         7. If hospitals in Arkansas are providing any abortion care, it is in only rare circumstances (Dkt. No. 5, ¶ 6).

         8. Under current Arkansas law, a woman must first receive state-mandated counseling, in person at the clinic before having an abortion. See Ark. Code Ann. § 20-16-1703(b)(1), (2). A woman must then wait 48 hours after that state-mandated counseling before she returns to the clinic for her procedure (Dkt. No. 5, ¶ 7; Dkt. No. 6, ¶ 7).

         9. Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care up to 18.0 weeks LMP, the law requires at least two trips to the clinic (Dkt. No. 6, ¶ 7).

         10. According to Dr. Hopkins, the state-mandated counseling and 48-hour waiting period can result in a delay longer than 48 hours for many patients (Dkt. No. 5, ¶ 7).

         11. Women must consider whether they have someone to accompany them to the clinic. The support person's availability may impact when a woman is able to return, after the mandatory delay, to receive medical care (Dkt. No. 6, ¶ 7).

         12. Little Rock Family Planning Services provides care to women from throughout Arkansas and from other states (Dkt. No. 5, at 37; Dkt. No. 6, ¶ 5).

         13. Many patients of Little Rock Family Planning Services are low-income. Approximately 30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5).

         14. Many patients of Little Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No. 6, ¶ 5).

         15. The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little Rock Family Planning Services. Women must arrange for time off work on multiple days, which can be very difficult given that many are in low-wage jobs and feel that they cannot explain to an employer the reason they need to take time off. For women who already have children, these women must arrange and often pay for childcare. These women also must arrange and pay for transportation. In some cases, these women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

         16. Patients of Little Rock Family Planning Services seek abortions for a variety of personal, medical, financial, and family reasons, including that the woman has one child but believes she cannot parent another; that the woman believes she is too young to be ready to carry a pregnancy or to become a parent; that the woman is pursuing educational or work opportunities; that the woman has a health condition that makes carrying a pregnancy dangerous; that the woman has received a diagnosis of fetal abnormality; that the woman is in an abusive relationship; and that the woman is pregnant as a result of rape or sexual assault (Dkt. No. 6, ¶ 6).

         17. Many patients of Little Rock Family Planning Services are desperate not to disclose the reasons for travel and appointments to seek abortion care (Dkt. No. 6, ¶ 8).

         18. Approximately 30% of all women have an abortion at some point in their lives (Dkt. No. 4, ¶ 7).

         19. Abortion in the first and second trimester, utilizing current methods, is safer than carrying a pregnancy to term, as to both morbidity and mortality (Dkt. No. 4, ¶ 8; Dkt. No. 32-1, ¶ 5).

         20. The first trimester of pregnancy goes to approximately 14 weeks LMP (Dkt. No. 5, ¶ 8).

         21. Nationwide, approximately 90% of abortions occur during the first trimester of pregnancy (Dkt. No. 5, ¶ 8).

         22. In Arkansas, approximately 83% of abortions occur during the first trimester of pregnancy (Id.).

         23. During the first trimester, there are two methods of abortion (Dkt. No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).

         24. As for the first method used during the first trimester, a clinician may use medications to induce an early miscarriage. This method is called early medication abortion. It is generally available only through part of the first trimester of pregnancy, and it is not available in the last weeks of the first trimester of pregnancy. In the most common method of early medication abortion, a woman takes two drugs: first mifepristone and then, the next day, misoprostol. Within 24 to 48 hours of taking the second drug, the woman likely will pass the products of conception, not in a medical facility but in a location that is most comfortable for her, usually her home (Dkt. No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).

         25. Dr. Hopkins does not know the exact timing of the most common method of early medication abortion because he is not with his patient when she passes the products of conception (Dkt. No. 5, ¶ 9).

         26. As for the second method used during the second trimester, a clinician may use suction to empty the uterus, which is available through the entire first trimester. This method is called suction or aspiration abortion. The clinician first gently opens the cervix and then inserts a suction cannula into the uterus, and suctions out the embryo (until approximately 10 weeks) or fetus (thereafter) - as well as the placenta, amniotic fluid, and sac, and the other contents of the uterus (Dkt. No. 4, ¶ 13; Dkt. No. 5, ¶ 10).

         27. In the second trimester of pregnancy, suction alone generally is not sufficient to complete an abortion, nor is it something physicians can rely on to cause fetal demise to avoid liability under the D&E Mandate in the second trimester (Dkt. No. 32-1, ¶ 5).

         28. In the second trimester of pregnancy, beginning at approximately 14.0 weeks LMP, there are two principal methods of abortion (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 11).

         29. As for the first method used beginning at approximately 14.0 weeks LMP, in induction abortion, the clinician uses medications to induce labor. This procedure can happen only in a hospital or hospital-like facility, not in a second-trimester outpatient clinic. This procedure can take over 24 hours, and for some patients, this procedure may span multiple days. This procedure entails labor, which can involve pain requiring significant medication or anesthesia, and which may be psychologically challenging for some women. This procedure accounts for a tiny fraction of second-trimester abortions in the nation (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12).

         30. Because induction involves an in-patient stay, requiring up to three days of hospitalization, as opposed to an out-patient procedure, there is an enormous cost difference between induction and the out-patient standard dilation and evacuation (“standard D&E”) procedure[2] (Dkt. No. 4, ¶ 14).

         31. In some women, an induction abortion fails, and the woman needs intervention in the form of D&E for her safety. This is infrequent, but this does occur (Dkt. No. 4, ¶ 15; Dkt. No. 5, ¶ 12).

         32. In approximately 5% to 10% of induction abortions, the woman must undergo an additional surgical procedure to remove a retained placenta. Induction abortion also can cause uterine rupture, which is rare but can be life threatening and can be of particular concern for women who have had multiple previous cesarean deliveries (Dkt. No. 4, ¶ 15; Dkt. No. 25-4, ¶ 8).

         33. Of women who have abortions performed during the second trimester of pregnancy, 95% of those women in this country choose standard D&E (Dkt. No. 4, ¶ 16).

         34. In 2015, the latest year for which statistics are available, there were no induction abortions reported in Arkansas (Dkt. No. 5, ¶ 12).

         35. As for the second method used beginning at approximately 14 weeks LMP, because suction instruments alone are generally no longer sufficient to empty the uterus, doctors can use a method with instrumentation called standard D&E. This involves two steps: dilating the cervix, and then evacuating the uterus with instruments such as forceps. There are several ways to dilate the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13).

         36. Typically, during the early weeks of the second trimester of pregnancy, a doctor performing standard D&E uses a combination of medications that open the cervix and manual dilators; then, the same day, the doctor uses forceps to remove the fetus and other contents of the uterus. Because the fetus is larger than the opening of the cervix, the fetal tissue generally comes apart as the physician removes it through the cervix. The reason that the cervical opening is smaller than the fetal parts is that, in general, the doctor dilates only enough to allow the safe passage of instruments and fetal tissue through the cervix (Dkt. No. 4, ¶ 17-18; Dkt. No. 5, ¶ 14).

         37. In Arkansas and elsewhere, standard D&E typically is a one-day procedure from 14.0 to 17.6 weeks LMP (Dkt. No. 5, ¶ 15; Dkt. No. 6, ¶ 17).

         38. Of 638 D&Es reported in Arkansas in 2015, 407 or 64% took place during these earliest weeks of the second trimester (Dkt. No. 6, ¶ 17).

         39. Dr. Hopkins is aware of no physicians, other than those with whom he practices at Little Rock Family Planning Services, who provide second trimester abortion care in the state of Arkansas (Dkt. No. 32-2, ¶ 2).

         40. Later in the second trimester, larger instruments require wider cervical dilation. Although some physicians continue to provide standard D&E as a one-day procedure, starting at 18.0 to 20.0 weeks LMP, it is typical for doctors to add overnight osmotic dilation to the standard D&E protocol. Osmotic dilators are thin sticks of material that swell when they absorb moisture; when placed in a woman's cervix, they absorb moisture from the woman's body, expand slowly, and slowly dilate the cervix. Once dilation is sufficient, typically the next day, the doctor proceeds as in earlier standard D&Es, removing the fetus, generally in pieces because it is larger than the cervical opening (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 16).

         41. For patients of Little Rock Family Planning Services who have overnight osmotic dilation with the standard D&E protocol, those patients are required to spend that overnight within 30 minutes of the Clinic so that the doctor is available in the rare instance in which a patient has any problem (Dkt. No. 6, ¶ 18).

         42. Through the second trimester, standard D&E is a safe way to provide abortion in an outpatient setting, such as a family planning clinic (Dkt. No. 5, ¶ 17).

         43. Standard D&E accounts for almost all second-trimester abortions in the United States (Dkt. No. 4, ¶ 16; Dkt. No. 5, ¶ 17).

         44. Standard D&E accounts for 100% of second trimester abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶ 17).

         45. Each year, Little Rock Family Planning Services provides approximately 3, 000 abortions, of which approximately 600 or 20% occur during the second trimester (Dkt. No. 6, ¶ 16).

         46. Standard D&E procedure has a long-established safety record in this county, with major complications occurring in less than 1% of standard D&E procedures (Dkt. No. 4, ¶ 19).

         47. Richard A. Wyatt, M.D., an expert for defendants, states that “[b]y the 14th week of pregnancy a living baby has a beating heart and moving limbs, and breathing motions have begun.” (Dkt. No. 25-4, ¶ 4). At this time, and on the record before it, this Court does not equate Dr. Wyatt's use of “living baby” with viability, as the term viability has been used by courts in the abortion context. See Edwards v. Beck, 8 F.Supp.3d 1091 (E.D. Ark. 2014), aff'd 786 F.3d 1113 (8th Cir. 2015) (examining the term viability in both medical and legal contexts).

         48. Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care at 18.0 to 21.6 weeks LMP, the law requires at least three trips to the clinic (Dkt. No. 6, ¶ 7).

         49. Starting at 18.0 to 22.0 weeks, some physicians, including Dr. Hopkins, undertake an additional procedure to try to cause fetal demise before the evacuation phase of a D&E for most patients, meaning those for whom it is not contraindicated (Dkt. No. 5, ¶ 18).

         50. Of the physicians who undertake an additional procedure after 18.0 to 22.0 weeks LMP, the vast majority of physicians inject the drug digoxin into the fetus if possible or, if not, then into the amniotic fluid. Injecting digoxin into the amniotic fluid is technically easier, but it is less effective (Dkt. No. 4, ¶ 21; Dkt. No. 5, ¶ 18).

         51. The injections may be through the woman's abdomen or vaginal wall. These injections generally use an 18- to 22-gauge spinal needle, passed under ultrasound guidance, through the patient's abdomen, vaginal wall, or vagina and cervix, and then either into the amniotic fluid or the fetus (Dkt. No. 4, ¶ 21, 25; Dkt. No. 5, ¶ 18).

         52. There are some women for whom an injection of digoxin may be difficult or impossible. For example, woman may be very obese; may have anatomical variations of the uterine and vaginal anatomy, such as fibroids or a long cervix; and may have fetal positioning that creates issues. Physicians cited by all parties agree upon this (Dkt. No. 4, ¶ 27; Dkt No. 5, ¶ 25a; Dkt. No. 25-4, ¶ 6; Dkt. No. 32-3, Biggio Cross, at 139; Dkt. No. 25-4, ¶ 6).

         53. These injections also can be dangerous for women with cardiac conditions such as arrhythmias (Dkt. No. 4, ¶ 27).

         54. Even for women who tolerate injections, digoxin will not cause fetal demise in 5% to 10% of all cases in which it is used; physicians cited by all parties agree upon this (Dkt. No. 4, ¶ 28; Dkt. No. 5, ¶ 25b; Dkt. No. 32-3, Biggio Cross, at 142).

         55. Doctors are not able to know in advance for which women digoxin injection will fail (Dkt. No. 5, ¶ 25c).

         56. The failure rate is higher for intramniotic injections of digoxin. Intramniotic injection would require a skill level similar to that required for amniocentesis. Intramniotic injections are associated with higher complication rates than intrafetal injection (Dkt. No. 4, ¶ 25; Dkt. No. 32-1, ¶ 7).

         57. Intrafetal injections of digoxin are more difficult to perform and may be impossible to perform due to fetal position, uterine anatomy and other factors, especially the size of the fetus. The smaller the fetus, the more difficult intrafetal injection will be. Intrafetal digoxin injections require additional skill (Dkt. No. 4, ¶ 28; Dkt. No. 32-1, ¶ 7).

         58. Digoxin works very slowly. Doctors allow 24 hours after the injection for it to work. Even then, it does not always cause fetal demise (Dkt. No. 5, ¶ 18).

         59. The transabdominal injection can be painful and emotionally difficult for the patient. The injection poses risks, including infection, which can threaten the patient's health and future fertility, and accidental absorption of the drug into the patient's circulation, which can result in toxicity and changes to the patient's EKG (Dkt. No. 4, ¶ 25).

         60. Like all medical procedures, the digoxin injection creates risks for the patient. Doctors who use digoxin believe that practical concerns justify using it. The main benefit of using digoxin in procedures after 18.0 to 22.0 weeks LMP is to establish compliance with the federal “partial-birth abortion ban” or similar state laws (Dkt. No. 4, ¶ 23; Dkt. No. 5, ¶ 19).

         61. The federal “partial-birth abortion ban” has an intent requirement (Dkt. No. 4, ¶ 23).

         62. The American Congress of Obstetricians and Gynecologists (“ACOG”) concluded: “No evidence currently supports the use of induced fetal demise to increase the safety of second-trimester medical or surgical abortion.” This statement is consistent with the medical literature (Dkt. No. 4, ¶ 22; Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics & Gynecology 1394, 1396, 1406 (2013)).

         63. There is no record evidence of any physician attempting digoxin injections earlier than 18 weeks LMP. Physicians relied upon by both sides agree upon this (Dkt. No. 4, ¶ 26; Dkt. No. 32-3, Biggio Cross, at 143).

         64. There are virtually no reported studies, and no studies of record, on using digoxin in the first weeks of the second trimester, when most second trimester abortions are performed. Without studies, doctors do not know the risks, complication rates, or effectiveness of such a procedure. Without this information, doctors cannot counsel patients on the effectiveness or safety of such a procedure (Dkt. No. 4, ¶ 26; Dkt. No. 32-1, ¶ 6, 9-10; Dkt. No. 32-3, Biggio Cross, at 143-44).

         65. There are no reported studies of record on using a second injection of digoxin, or multiple, sequential injections of digoxin, after the first dose fails to bring about fetal demise. Physicians relied upon by both sides agree on this (Dkt. No. 4, ¶ 29; Dkt. No. 23-15, ¶ 6; Dkt. No. 32-3, Biggio Cross, at 142).

         66. Using a second injection of digoxin would, at a minimum, delay the abortion procedure, require the patient to make another trip to the clinic, and increase the risk of uterine infection, extramural delivery, or digoxin toxicity (Dkt. No. 4, ¶ 29).

         67. In Arkansas, the standard D&E protocol changes in two ways starting at 18.0 weeks LMP for almost all patients (Dkt. No. 5, ¶ 20).

         68. First, in Arkansas, a woman at 18.0 weeks LMP receives overnight dilation. This means that the abortion procedure takes two days, rather than one (Dkt. No. 5, ¶ 20).

         69. Second, in Arkansas, at the time a woman at 18.0 weeks LMP has placed in her cervix the osmotic dilators, which is the day before the intended evacuation, the woman also receives an injection of digoxin through the vaginal wall. That injection of digoxin is into the fetus or, if not, into the amniotic fluid. With either method of injection, the digoxin may not work effectively (Dkt. No. 5, ¶ 20).

         70. The next day, in women 18.0 weeks or later LMP, if the digoxin has not caused fetal demise, Dr. Hopkins currently will take steps with his forceps, such as compressing fetal parts, to ensure fetal demise and to establish compliance with existing laws. These women would already be dilated and, therefore, at risk without care (Dkt. No. 5, ¶¶ 21, 25b).

         71. Another substance, potassium chloride (KCl), will cause fetal demise if injected directly into the fetal heart, which is extremely small (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22).

         72. Injecting potassium chloride has limitations based on gestational age and anatomy (Dkt. No. 25-4, ¶ 6).

         73. The procedure of injecting potassium chloride is very rare, as it carries much more severe risks for the woman, including death if the doctor places the solution in the wrong place, and it requires extensive training generally available only to sub-specialists in high-risk obstetrics, known as maternal-fetal medicine (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. No. 23-15, ¶ 11; Dkt. No. 32-2, ¶ 3; Dkt. No. 32-3).[3]

         74. Injecting potassium chloride is usually done in a hospital, not a clinical, setting. The procedure requires an advanced ultrasound machine that is typically available only in a hospital setting and too expensive for most clinics to afford (Dkt. No. 4, ¶ 31; Dkt. No. 32-2, ¶ 3; Dkt. No. 32-3, Biggio Direct, at 111, Biggio Cross, at 140-41).

         75. There are some women for whom injecting potassium chloride is not medically appropriate (Dkt. No. 4, ¶ 31).

         76. Neither Dr. Hopkins nor to his knowledge any of the physicians with whom he practices at Little rock Family Planning Services have the specialized training in the sub-specialty of high-risk obstetrics necessary to safely inject potassium chloride (Dkt. No. 5, ¶ 22).

         77. Umbilical cord transection involves the physician rupturing the membranes, inserting a suction tube or other instrument such as forceps into the uterus, and grasping the cord, if possible, to divide it with gentle traction, which will cause demise over the course of up to 5 to 10 minutes (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 8).

         78. The success and ease of this procedure depends on placement of the umbilical cord. If the umbilical cord is blocked by the fetus, it would be very difficult and very risky to attempt to reach it (Dkt. No. 4, ¶ 33).

         79. Umbilical cord transection is not widely practiced or researched (Dkt. No. 4, ¶ 32).

         80. There has been only one scientific study on the use of cord transection to cause fetal demise; physicians relied upon by both sides agree on this (Dkt. No. 32-1, ¶ 11; Dkt. No. 32-3, Biggio Cross, at 146).

         81. The one scientific study on the use of cord transection has limitations and does not support any conclusion about the safety of the procedure (Dkt. No. 32-1, ¶¶ 12-13).

         82. Attempting umbilical cord transection before 16.0 weeks LMP is completely unstudied, and like injections, these procedures are more difficult to perform the earlier in pregnancy a woman seeks care. Successfully identifying and transecting the cord at early gestations would take additional time and likely multiple passes with forceps (Dkt. No. 32-1, ¶¶ 14-15).

         83. There are some women for whom umbilical cord transection is not medically appropriate; physicians relied upon by both parties agree on this (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 12).

         84. Mark D. Nichols, M.D., an expert upon whom Dr. Hopkins relies, does not perform umbilical cord transection (Dkt. No. 4, ¶¶ 32-35; Dkt. No. 32-1, ¶¶ 11-15).

         85. No physician to which either party cites would require cord transection in their respective practices (Dkt. No. 4, ¶ 34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-3, Biggio Cross, at 144).

         86. Joseph R. Biggio, Jr., M.D., an expert upon whom defendants rely, admits that he would not require umbilical cord transection before every abortion because there is no medical benefit to doing so (Dkt. No. 32-2, at 144).

         87. The longer a D&E takes and the more instrument passes into the woman's uterus occur, the higher the risks of uterine perforation and other complications; physicians relied upon by both sides agree on this (Dkt. No. 4, ¶¶ 32-34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-1, ¶¶ 13, 15; Dkt. No. 23-15, ¶ 8; Dkt. No. 32-3, Biggio Cross, at 144-45; Dkt. No. 25-4, ¶ 6).

         88. Delay can push a woman past the point in pregnancy at which she can receive a medication abortion, requiring a woman who prefers that method to have a procedure with instrumentation that she would otherwise not have. Delay can push a woman from a first-trimester to a second-trimester procedure, or from a one-day to a two-day procedure in the second trimester. Delay can also push a woman past the point at which she can obtain an abortion at Little Rock Family Planning Services and in Arkansas (Dkt. No. 6, ¶ 13).

         89. The risks associated with legal abortion utilizing current methods increase as pregnancy progresses, particularly if that delay pushes a woman from the first trimester to the second trimester. Studies demonstrate increased risks of complications, such as bleeding and uterine perforation, associated with abortions performed later in pregnancy (Dkt. No. 4, ¶ 10; see also Dkt. No. 25-4, ¶ 7).

         90. Delay also means that a woman may pay more for the abortion procedure itself because the procedure becomes more complex as pregnancy advances (Dkt. No. 6, ¶ 14).

         91. Doctors at Little Rock Family Planning Services request medical records for only a “tiny fraction” of patients or approximately 25 patients per year (Dkt. No. 6, ¶ 24).

         92. The patients for whom doctors at Little Rock Family Planning Services request medical records include patients who have received a diagnosis of fetal anomaly, decided to end the pregnancy, and received a referral to Little Rock Family Planning Services and patients for whom the doctor believes the records could be useful because of a woman's medical condition (Dkt. No. 6, ¶ 24).

         93. For Little Rock Family Planning Services to obtain a patient's medical records, the patient must first sign a form authorizing Little Rock Family Planning Services to obtain the medical records. That authorization is then sent along with a request to the health care provider. Little Rock Family Planning Services staff then follow-up with a phone call to the health care provider, if necessary (Dkt. No. 6, ¶ 25).

         94. Because Little Rock Family Planning Services typically requests records related to some aspect of the care the patient will receive, and therefore involve a specific request, not a request for the patient's full medical history, there is no fee charged for the records (Dkt. No. 6, ¶ 25).

         95. Even with these specific requests for records, it takes time to obtain a patient's medical records from another health care provider and may take a few hours or up to several weeks (Dkt. No. 6, ¶ 26).

         96. When making a request for a patient's complete medical record, a fee usually is charged for obtaining the records (Dkt. No. 6, ¶ 33).

         97. Little Rock Family Planning Services is a well-known abortion provider. Any request for medical records made by Little Rock Family Planning Services, in and of itself, discloses that the patient likely is seeking an abortion. As a result, Little Rock Family Planning Services does not request records without a woman's prior written consent, and some women specifically request that Little Rock Family Planning Services not seek records from another health care provider because the women do not want that provider to know of the pregnancy and abortion decision (Dkt. No. 6, ¶ 27).

         98. Some women have informed Little Rock Family Planning Services that the women fear hostility or harassment from the other health care providers for deciding to seek an abortion (Dkt. No. 6, ¶ 28).

         99. A few years ago, Little Rock Family Planning Services requested a woman's medical records from another health care provider and that provider's wife then reached out to the woman in an effort to dissuade her from having an abortion (Dkt. No. 6, ¶ 28).

         100. Little Rock Family Planning Services provides medical care to approximately 3, 000 women each year, the majority of whom have had one or more prior pregnancies, during which the women received medical care from one or more providers or received care for a current pregnancy (Dkt. No. 6, ¶ 32).

         101. Under Arkansas law, a woman under the age of 18 must obtain the consent of one parent prior to obtaining an abortion or, alternatively, can seek a judicial bypass (Dkt. No. 6, ¶ 36). See Ark. Code Ann. § 20-16-804.

         102. In 2016, Little Rock Family Planning Services provided abortions to five minors under the age of 14, all five of whom had parental consent, and 69 minors under the age of 17, all of whom except one had parental consent with the one exception having received a judicial bypass (Dkt. No. 6, ¶ 36).

         103. The numbers from 2016 are typical for Little Rock Family Planning Services in that the majority of women under the age of 17 have obtained a parent's consent to seek medical care at Little Rock Family Planning Services (Dkt. No. 6, ¶ 36).

         104. A few minor patients of Little Rock Family Planning Services are married, and those patients' husbands may or may not be involved in the patients' decisions to have an abortion (Dkt. No. 6, ¶ 37).

         105. Under the Child Maltreatment Act, Little Rock Family Planning Services reports suspected abuse to the Arkansas State Police's Child Abuse Hotline (Dkt. No. 6, ¶ 38). See Ark. Code Ann. § 12-18-402 (providing that mandated reporters “shall immediately notify the Child Abuse Hotline” if they have reasonable cause to suspect child abuse, and listing reproductive healthcare facility employees and volunteers as mandatory reporters).

         106. Under Arkansas law, for women who are 13 years old or younger, Little Rock Family Planning Services must preserve tissue and have local law enforcement in the jurisdiction in which the minor resides pick it up. Ark. Code Ann. § 12-18-108(a). Little Rock Family Planning Services sends a form to local law enforcement with information identifying the patient to alert local law enforcement to come pick up the tissue (Dkt. No. 6, ¶ 40); Ark. Code Ann. § 12-18-108(b)(5).

         107. Compliance with this law requires, on occasion, Little Rock Family Planning Services to speak by telephone with local law enforcement and local law enforcement's obligation to comply with the law (Dkt. No. 6, ¶ 41).

         108. Local law enforcement do not reliably comply with existing law by picking up the preserved tissue for patients who are 13 or younger ((Dkt. No. 6, ¶ 41).

         109. Local law enforcement can be very small, with as few as two officers, and operate in small communities (Dkt. No. 6, ¶ 45).

         110. On occasion, when a Little Rock Family Planning Services representative has spoken to local law enforcement about the existing law, personnel lecture the Little Rock Family Planning Services and “preach[] anti-abortion rhetoric, including telling [the representative] that the Clinic is taking a life.” (Dkt. No. 6, ¶ 43).

         111. Little Rock Family Planning Services, as a part of its routine counseling, discusses with the woman the age of her sexual partner (Dkt. No. 6, ¶ 38).

         112. In general, when a crime has already been reported, law enforcement are involved before the minor visits Little Rock Family Planning Services, and law enforcement call Little Rock Family Planning Services before the minor patient arrives. When an investigation is involved, Little Rock Family Planning Services preserves tissue for law enforcement (Dkt. No. 6, ¶ 39).

         113. For patients who are 13 or younger and reside out of state, Little Rock Family Planning Services makes the same efforts to contact the local police department where the minor resides (Dkt. No. 6, ¶ 42).

         114. Unlike the State Child Abuse Hotline, which is associated with a unit whose staff have specialized training in child maltreatment and handling these complicated issues, local law enforcement does not have the same kind of specialized unit or training (Dkt. No. 6, ¶ 43).

         115. Under an Arkansas law enacted in 2015, Little Rock Family Planning Services obtains each patient's consent in writing to having the embryonic or fetal tissue from her abortion disposed of within 48 hours (Dkt. No. 6, ¶ 50); See Ark. Code Ann. § 20-17-801(b).

         116. Currently, Little Rock Family Planning Services contracts with a vendor that transports tissue generated at the Clinic out of Arkansas to be disposed of by incineration (Dkt. No. 6, ¶ 49).

         117. Currently, a few patients of Little Rock Family Planning Services each year wish to have their tissue cremated and make those arrangements themselves (Dkt. No. 6, ¶ 49).

         118. Currently, Little Rock Family Planning Services sends the pregnancy tissue of a few patients to pathology. This may be done when a physician suspects a molar pregnancy or an abnormal growth of fetal tissue that can become a tumor or when the patient received a diagnosed fetal anomaly (Dkt. No. 6, ¶ 53).

         119. In a medication abortion, the patient passes the pregnancy tissue at home over a period of hours or days, but she collects and disposes of it as she would during menstruation (Dkt. No. 6, ¶ 52).

         120. The record includes affidavits from individual women who describe mental distress resulting from their individual choices to have abortions and an affidavit from one abortion counselor who claims to have witnessed these reactions in other women with whom she has interacted in a post-abortion support group setting (Dkt. No. 25-12; Dkt. No. 25-14; Dkt. No. 25-15; Dkt. No. 25-16).

         121. The American Psychiatric Association rejected the notion that abortion causes mental distress (Dkt. No. 32-1, ¶ 16).

         122. Individual patients may experience a full range of emotional and psychological responses to having an abortion, but well-designed and rigorous research concludes that there is no evidence that abortion causes mental health problems (Dkt. No. 32-1, ¶¶ 16-18).

         123. In Arkansas, 3, 771 abortions were performed in 2015 (Dkt. No. 5, Ex. B). Of those, 581 were medication abortion and 3, 190 were not. Of the 3, 771 total abortions in 2015 in Arkansas, 528 were obtained by married women, and 3, 234 were obtained by not married women (Id.). Nine individuals reported “unknown” when asked marital status (Id.). Of the 3, 771 total abortions in 2015 in Arkansas, 141 were obtained by individuals below the age of 18 (Id.).

         II. Threshold Matters

         Defendants filed a motion to dismiss, which first became ripe on July 25, 2017 (Dkt. Nos. 21, 33). In that motion, defendants raise several threshold matters upon which this Court must rule before turning to the merits of this case. The Court must satisfy itself that the parties and these disputes are properly before the Court.

         A. Article III Standing

         Defendants first contend that Dr. Hopkins purportedly lacks standing to assert challenges to these Acts and that, therefore, the Court should dismiss this action. “Article III, § 2, of the Constitution restricts the federal ‘judicial [p]ower' to the resolution of ‘Cases' and ‘Controversies.'” Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). Dr.

         Hopkins has the burden of establishing that he has standing. Id. To demonstrate “Article III” standing, a plaintiff must demonstrate:

(1) [A]n injury in fact (i.e., a “concrete and particularized” invasion of a “legally protected interest”); (2) causation (i.e., a “‘fairly . . . trace[able]'” connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is “‘likely'” and not “merely ‘speculative'” that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).

Id. at 273-74 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         In addition to the three “irreducible constitutional minimum” requirements of Article III standing, Lujan, 504 U.S. at 560, courts weigh other “prudential” considerations in determining whether plaintiffs have standing. United States v. Windsor, 133 S.Ct. 2675, 2685 (2013) (explaining the distinction between “the jurisdictional requirements of Article III and the prudential limits on its exercise”).

         Dr. Hopkins is identified in the complaint as “an experienced, highly credentialed and board-certified obstetrician-gynecologist, and an abortion provider at Little Rock Family Planning Services, the only provider of outpatient, second-trimester abortion care in Arkansas.” (Dkt. No. 1, at 4, ¶ 13). Dr. Hopkins claims that the statutes he challenges “threaten [him] with criminal penalties and deny and burden [his] patients' constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.” (Dkt. No. 1, at 3, ¶ 9). He seeks declaratory and injunctive relief “[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm. . . .” (Dkt. No. 1, at 3, ¶ 9).

         In their filings, defendants make several arguments challenging standing in this case. As an initial matter, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 (1973), that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe and the current case, the doctors are subject to penalties for violation of the laws. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 (1992) (plurality opinion); Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 911 (7th Cir. 2015); Planned Parenthood of Greater Tex. Surg. Health Serv. v. Abbott II, 748 F.3d 583, 598 (5th Cir. 2014) (“Abbott II”); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 794 (7th Cir. 2013); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976). Here, Dr. Hopkins faces criminal penalties under the D&E Mandate, the Medical Records Mandate, and the Tissue Disposal Mandate. Further, he faces licensing penalties under the Medical Records Mandate and the Local Disclosure Mandate, along with licensing penalties for alleged unprofessional conduct that includes criminal conviction under statutes such as the D&E Mandate, the Medical Records Mandate, and the Tissue Disposal Mandate. Defendants assert that Dr. Hopkins alleges that the Mandates violate his personal due process rights. Defendants maintain that Dr. Hopkins lacks standing to assert these claims because Dr. Hopkins cannot establish an “injury in fact, ” meaning “a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Defendants concede that courts have held, in some circumstances, that a party need not expose himself to arrest or prosecution in order to challenge a criminal statute but that, even there, there must be “a credible threat of prosecution” before a plaintiff has standing to challenge the provision. Babbitt, 442 U.S. at 298.

         This Court has rejected nearly identical arguments that the injury was “speculative and conjectural” because the challenged abortion law had not yet been enforced against the plaintiff physician, including by licensure action. See Edwards v. Beck, 8 F.Supp.3d 1091 (8th Cir. 2014), aff'd 786 F.3d 1113 (8th Cir. 2015). The law is well-settled that a plaintiff need not “first expose himself to actual. . . prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). Courts have concurred even in the abortion context. See, e.g., Danforth, 428 U.S. at 62; Doe v. Bolton, 410 U.S. at 188. Here, Dr. Hopkins's declaration demonstrates the impact and threat of these Mandates (Dkt. No. 5, ¶¶ 23-62).

         The Court disagrees with defendants' argument that Clapper v. Amnesty International, 133 S.Ct. 1138 (2013), overruled this precedent. In Clapper, the Court determined plaintiffs, who were not directly targeted by the challenged law, relied upon a “highly attenuated chain of possibilities” and harm too speculative to satisfy the Article III injury requirement. Id. at 1144-48. The facts presented here are distinguishable, and Clapper does not control. The Court concludes that, based on controlling precedent and the claims alleged, Dr. Hopkins faces concrete, imminent injuries from enforcement of the challenged Mandates.

         Defendants also contend that Dr. Hopkins cannot assert the third-party rights of his hypothetical future patients. They maintain that Dr. Hopkins cannot demonstrate a “close relation” with abortion patients because he is challenging laws that were enacted to protect the health and safety of those patients. Defendants claim that this presents a conflict of interest between providers and patients, and third-party standing is forbidden if the interests of the litigant and the third-party rights-holder are even “potentially in conflict.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004); see also Kowalski v. Tesmer, 543 U.S. 125, 135 (2004) (Thomas, J., concurring) (noting that third-party standing is disallowed when the litigants “may have very different interests from the individuals whose rights they are raising”); Canfield Aviation, Inc. v. Nat'l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988) (“[C]ourts must be sure. . . that the litigant and the person whose rights he asserts have interests which are aligned.”).

         The United States Supreme Court in a plurality opinion in Singleton v. Wulff, 428 U.S. 106 (1976), concluded that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.” Id. at 118. Other courts also have rejected this argument. See Abbott II, 748 F.3d at 589 n.9. See also Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (adjudicating physicians' and clinics' 42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients).

         Defendants' claim regarding a purported conflict of interest could be made with respect to any abortion regulation that purports to advance a valid state interest, but courts have repeatedly allowed abortion providers to challenge such laws, determining that the providers' and women's interests are aligned and not adverse. See, e.g., Bellotti v. Baird, 443 U.S. 622, 627 n.5 (1979) (holding that a physician plaintiff had standing to raise his minor patients' claims to determine whether a parental consent law should be upheld to protect the alleged vulnerability of minors); Charles v. Carey, 627 F.2d 772, 779 n.10 (7th Cir. 1980) (rejecting the state's claim of conflict of interest in a challenge to a counseling law designed to “protect women from abusive medical practices”). This has not defeated a providers' standing to challenge contraception restrictions. See Carey v. Population Servs. Int'l, 431 U.S. 678, 683-84, 690 (1977) (granting third-party standing where the government defended a contraception restriction based on its interest in protecting health); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 450 (1972) (allowing a plaintiff to raise the rights of others seeking contraception where the government defended a restriction as “regulating the distribution of potentially harmful articles”).

         B. Considerations Under 42 U.S.C. § 1983

         Defendants also contend that, even if Dr. Hopkins could avoid these alleged limits on third-party litigation, he still cannot assert third-party rights under 42 U.S.C. § 1983 because, defendants claim, § 1983 extends only to litigants who assert their own rights. Based on this, defendants contend the third-party claims may proceed only under the implied right of action established by the Supremacy Clause, and the claims cannot serve as a basis for attorneys' fees. See Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 734, 739-40 (5th Cir. 2007); Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 333 (5th Cir. 2005).

         There is no language in the statute that supports this argument. See 42 U.S.C. § 1983 (providing in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .“). This Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point and rejects defendants' argument regarding standing under § 1983. See Van Hollen, 738 F.3d at 794 95. The Supreme Court has repeatedly allowed abortion providers to raise the rights of their patients in cases brought under § 1983, and this Court will do the same. See e.g., Whole Woman's Health, 136 S.Ct. 2292; Gonzales, 550 U.S. 124; Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 324-25 (2006) (noting that plaintiffs raised patients' claims in suit under 42 U.S.C. § 1983); Bellotti, 428 U.S. at 136 (same).

         C. The Mandates' Private Rights of Action

         Defendants also contend that Dr. Hopkins lacks standing to challenge the Mandates' private rights of action “because any injury to [Dr.] Hopkins is not ‘fairly traceable' to the defendants.” (Dkt. No. 22, at 13). Defendants maintain that they possess no authority to enforce the complained-of provisions and, therefore, cannot be sued by Dr. Hopkins in a pre-enforcement challenge to the constitutionality of the particular statutory provisions, citing among other cases Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015) (Dkt. No. 22, at 13). Defendants further argue that “none of the Acts empower any of the defendants to bring a private right of action for damages against an abortion provider, nor do the defendants have authority to otherwise enforce those provisions. Instead, just like the act at issue in Hutchinson, the challenged provisions of the Acts here provide for enforcement through private actions for damages. Defendants are therefore not the proper parties to sue when claiming that such provisions are unconstitutional.” (Dkt. No. 23, at 22-23).

         Dr. Hopkins asserts that, “while it is true that two of the challenged laws-H.B. 1032's D&E Ban and H.B. 1434's Medical Records Mandate-create such private rights of action, each of the four laws provides for criminal prosecution and/or civil licensing enforcement by defendants . . . . There is thus no relevance to defendants' claim that they are ‘immune from suit challenging the constitutionality of an act when it provided for enforcement only th[r]ough private actions for damages, ' and that in such a suit, ‘a federal court lacks jurisdiction to declare it unconstitutional or to provide any other relief.'” (Dkt. No. 32, at 12). See, e.g., Casey, 505 U.S. at 887-88 (noting, as to spousal notification law the Court struck down, that “[a] physician who performs an abortion” for a married woman without spousal notice “will have his or her license revoked, and is liable to the husband for damages”). The private rights of action present in the D&E Mandate and the Local Disclosure Mandate do not deprive this Court of jurisdiction to address the constitutionality of the laws.

         D. Sovereign Immunity Under The Eleventh Amendment

         Dr. Hopkins seeks declaratory and injunctive relief. Defendants move to dismiss all of his claims under the Eleventh Amendment (Dkt. No. 22, at 18). “The Eleventh Amendment confirms the sovereign status of the States by shielding them from suits by individuals absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). However, “[t]o ensure the enforcement of federal law . . . the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Id. (emphasis added) (citing Ex parte Young, 209 U.S. 123 (1908)). “A state official is amenable to suit to enjoin the enforcement of an unconstitutional state statute only if the officer has ‘some connection with the enforcement of the act.'” Digital Recognition Network, 803 F.3d at 960 (citing Ex Parte Young, 209 U.S. at 157).

         To determine whether an action against state officials in their official capacities avoids an Eleventh Amendment bar to suit, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O'Connor, J., concurring). In this case, Dr. Hopkins seek declaratory relief declaring the Mandates as unconstitutional “[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm. . . .” (Dkt. No. 1, at 3, ¶ 9). In his complaint, Dr. Hopkins also seeks preliminary and permanent injunctive relief that would enjoin the enforcement of these Mandates. Dr. Hopkins's prayer for relief “clearly satisfies [the Court's] ‘straightforward inquiry.'” Verizon Maryland, Inc., 535 U.S. at 645.

         Furthermore, defendants, who are sued in their official capacities, are amenable to suit in this action. Dr. Hopkins alleges, and defendants do not dispute, that:

14. Defendant Larry Jegley is the Prosecuting Attorney for Pulaski County, located at 224 South Spring Street, Little Rock, Arkansas. Prosecuting attorneys “shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned.” Ark. Code Ann. § 16-21-103. Defendant Jegley is responsible for criminal enforcement of H.B. 1032, H.B. 1566, and H.B. 1343. He and his agents and successors are sued in their official capacities.
15. Defendant Steven L. Cathey, M.D., is the Chair of the Arkansas State Medical Board. Defendants Robert Breving, Jr., M.D.; Bob Cogburn, J.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder, Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; and John B. Weiss, M.D., are members of the Arkansas State Medical Board. The State Medical Board is responsible for licensing medical professionals under Arkansas law. Ark. Code Ann. § 17-95-410. The Board and its members are responsible for imposing licensing penalties under H.B. 1434 and H.B. 2024 and imposing licensing penalties for unprofessional conduct, which includes criminal conviction under statutes such as H.B. 1032, H.B. 1566, and H.B. 1434. Ark. Code Ann. §§ 75-95-409(a)(2)(A), (D). Defendants and their successors in office are sued in their official capacity.

(Dkt. No. 1, at 4-5, ¶¶ 14, 15). Therefore, defendants can be sued for prospective injunctive and declaratory relief in this action, as they have “‘some connection with the enforcement of the act.'” Digital Recognition Network, Inc., 803 F.3d at 960 (citing Ex Parte Young, 209 U.S. at 157).

         III. Facial Versus As-Applied Challenges

         Dr. Hopkins brings both facial and as-applied challenges to certain of these Mandates. In regard to facial challenges in general, the majority of courts have adopted a definition of facial challenges as those seeking to have a statute declared unconstitutional in all possible applications. See, e.g., Sabri v. United States, 541 U.S. 600, 609 (2004); United States v. Salerno, 481 U.S. 739, 745 (1987); Steffel, 415 U.S. at 474. As-applied challenges are construed as an argument that the statute is unconstitutional as applied to precise plaintiffs. “Each holding carries an important difference in terms of outcome: If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” See Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998).

         The Supreme Court has made clear that as-applied challenges are preferred. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 448-451 (2008) (discussing the preference for as-applied challenges as opposed to facial challenges). In Salerno, the Supreme Court stated that a “facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully” and will only succeed if a litigant can “establish that no set of circumstances exists under which the Act would be valid.” 481 U.S. at 745.

         The standard that controls a facial challenge to an abortion statute is somewhat different than that applicable to facial challenges in general. The Eighth Circuit Court of Appeals has recognized that facial challenges to abortion statutes can succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.” Casey, 505 U.S. at 895. See also Planned Parenthood Minn., N.D., S.D. v. Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on reh'g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and in part on reh'g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012); see also Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 733 n.8 (8th Cir. 2008) (“Rounds cases”). In Whole Woman's Health, the Supreme Court clarified that “cases in which the provision at issue is relevant” is a narrower category than “all women, ” “pregnant women, ” or even “women seeking abortions identified by the State.” 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 895-95). To sustain a facial challenge and grant a preliminary injunction, this Court must find that the challenged Mandate is an undue burden for a large fraction of women “for whom the provision is an actual rather than an irrelevant restriction.” See Id. (discussing this as the “relevant denominator”).

         The Eighth Circuit Court of Appeals recognizes that “the ‘large fraction' standard is in some ways ‘more conceptual than mathematical, '” but this Court is required by controlling precedent to conduct this fact finding “to determine whether that number constitutes a ‘large fraction.'” Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, No. 16-2234, *11 (8th Cir. July 28, 2017) (citing Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361, 374 (6th Cir. 2006)).

         To the extent defendants argue that a different legal standard should apply to facial challenges to abortion statutes, the Court rejects the argument. The Eighth Circuit's decisions control this Court's decisions, and the Eighth Circuit has applied this same standard to a facial challenge to an abortion statute since the decision in Gonzales, 550 U.S. at 168. See Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, No. 16-2234, *11 (8th Cir. July 28, 2017).

         “Traditionally, a plaintiff's burden in an as-applied challenge is different from that in a facial challenge. In an as-applied challenge, ‘the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.'” Voinovich, 130 F.3d at 193-94 (quoting Ada v. Guam Soc'y of Obstetricians and Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting), denying cert. to 962 F.2d 1366 (9th Cir. 1992)). “Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiff's particular situation.” Voinovich, 130 F.3d at 193-94.

         IV. Requests For Preliminary Injunctions

         The Court turns to examine the factors set forth in Dataphase Systems, Inc. v. C L Systems, Inc., as applied to Dr. Hopkins's requests for preliminary injunctive relief. 640 F.2d 109 (8th Cir. 1981). In deciding a preliminary injunction motion, the Court considers four factors: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the balance of the equities; and (4) the public interest. Grasso Enterprises, LLC v. Express Scripts, Inc., 809 F.3d 1033, 1035 n.2 (8th Cir. 2016) (citing Dataphase, 640 F.2d at 114). Under Dataphase, no one factor is determinative. Id. at 113.

         The Eighth Circuit modifies the Dataphase test when applied to challenges to laws passed through the democratic process. Those laws are entitled to a “higher degree of deference.” Rounds, 530 F.3d at 732. In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success. Instead, the appropriate standard, and threshold showing that must be made by the movant, is “likely to prevail on the merits.” Id. Only if the movant has demonstrated that it is likely to prevail on the merits ...


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