United States District Court, E.D. Arkansas, Western Division
FREDERICK W. HOPKINS, M.D., M.P.H PLAINTIFF
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.
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.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
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.
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
Findings of Fact
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).
Earlier in 2017, Dr. Hopkins began providing care at Little
Rock Family Planning Services in Little Rock, Arkansas (Dkt.
No. 5, ¶ 1).
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).
Hopkins provides abortion and miscarriage services for
patients from young teenagers to women in their later
reproductive years (Dkt. No. 5, ¶ 2).
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,
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,
hospitals in Arkansas are providing any abortion care, it is
in only rare circumstances (Dkt. No. 5, ¶ 6).
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,
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).
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).
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).
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).
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).
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).
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).
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).
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).
Approximately 30% of all women have an abortion at some point
in their lives (Dkt. No. 4, ¶ 7).
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).
first trimester of pregnancy goes to approximately 14 weeks
LMP (Dkt. No. 5, ¶ 8).
Nationwide, approximately 90% of abortions occur during the
first trimester of pregnancy (Dkt. No. 5, ¶ 8).
Arkansas, approximately 83% of abortions occur during the
first trimester of pregnancy (Id.).
During the first trimester, there are two methods of abortion
(Dkt. No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).
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).
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).
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).
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).
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).
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).
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 (Dkt. No. 4, ¶ 14).
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).
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).
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).
2015, the latest year for which statistics are available,
there were no induction abortions reported in Arkansas (Dkt.
No. 5, ¶ 12).
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).
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).
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).
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).
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).
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).
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).
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).
Standard D&E accounts for almost all second-trimester
abortions in the United States (Dkt. No. 4, ¶ 16; Dkt.
No. 5, ¶ 17).
Standard D&E accounts for 100% of second trimester
abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶
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, ¶
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,
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).
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).
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).
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).
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).
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).
These injections also can be dangerous for women with cardiac
conditions such as arrhythmias (Dkt. No. 4, ¶ 27).
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).
Doctors are not able to know in advance for which women
digoxin injection will fail (Dkt. No. 5, ¶ 25c).
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,
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).
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).
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,
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).
federal “partial-birth abortion ban” has an
intent requirement (Dkt. No. 4, ¶ 23).
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)).
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).
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).
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).
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).
Arkansas, the standard D&E protocol changes in two ways
starting at 18.0 weeks LMP for almost all patients (Dkt. No.
5, ¶ 20).
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).
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).
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).
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, ¶
Injecting potassium chloride has limitations based on
gestational age and anatomy (Dkt. No. 25-4, ¶ 6).
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).
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).
There are some women for whom injecting potassium chloride is
not medically appropriate (Dkt. No. 4, ¶ 31).
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).
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).
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).
Umbilical cord transection is not widely practiced or
researched (Dkt. No. 4, ¶ 32).
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).
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).
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).
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,
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).
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
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).
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).
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).
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).
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).
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,
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).
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,
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,
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).
When making a request for a patient's complete medical
record, a fee usually is charged for obtaining the records
(Dkt. No. 6, ¶ 33).
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).
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).
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).
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, ¶
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. §
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).
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,
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).
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).
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. §
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).
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).
Local law enforcement can be very small, with as few as two
officers, and operate in small communities (Dkt. No. 6,
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
The American Psychiatric Association rejected the notion that
abortion causes mental distress (Dkt. No. 32-1, ¶ 16).
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).
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
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.
Article III Standing
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
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
Id. at 273-74 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
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
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).
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.
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).
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.
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
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
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”).
Considerations Under 42 U.S.C. § 1983
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).
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).
The Mandates' Private Rights of Action
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).
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.
Sovereign Immunity Under The Eleventh Amendment
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
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.
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
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
Facial Versus As-Applied Challenges
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).
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
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”).
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)).
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).
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
Requests For Preliminary Injunctions
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.
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