United States District Court, E.D. Arkansas, Western Division
PLANNED PARENTHOOD ARKANSAS & EASTERN OKLAHOMA, d/b/a PLANNED PARENTHOOD OF THE HEARTLAND; and STEPHANIE HO, M.D., on behalf of themselves and their patients PLAINTIFFS
LARRY JEGLEY, Prosecuting Attorney for Pulaski County, in his official capacity, his agents and successors; and MATT DURRETT, Prosecuting Attorney for Washington County, in his official capacity, his agents and successors DEFENDANTS
TEMPORARY RESTRAINING ORDER
Kristine G. Baker United States District Judge
the Court is the renewed motion for temporary restraining
order filed by plaintiffs Planned Parenthood of Arkansas
& Eastern Oklahoma, d/b/a Planned Parenthood of the
Heartland (“PPAEO”) and Stephanie Ho, M.D., on
behalf of themselves and their patients (Dkt. No. 84).
Plaintiffs bring this action seeking declaratory and
injunctive relief on behalf of themselves and their patients
under the United States Constitution and 42 U.S.C. §
1983 to challenge Section 1504(d) of the Abortion-Inducing
Drugs Safety Act, 2015 Arkansas Acts 577 (2015)
(“Section 1504(d), ” “the Act, ” or
“the contracted physician requirement”), codified
at Arkansas Code Annotated § 20-16-1501 et seq. This
Court has jurisdiction under 28 U.S.C. §§ 1331 and
1343(a)(3). Defendants Larry Jegley, prosecuting attorney for
Pulaski County, in his official capacity, his agents and
successors, and Matt Durrett, prosecuting attorney for
Washington County, in his official capacity, his agents and
successors, responded in opposition to the motion (Dkt. No.
101). PPAEO and Dr. Ho submitted a rebuttal declaration of
Colleen Heflin, Ph.D., in reply (Dkt. No. 102).
Court will first recount the procedural history of this case.
Plaintiffs filed their complaint on December 28, 2015 (Dkt.
No. 1). On December 30, 2015, the Court held a hearing on
plaintiffs' request for a temporary restraining order.
The Court granted the request for a temporary restraining
order, but the Court stated that the order would expire on
January 14, 2016, unless the Court, for good cause, extended
the order (Dkt. No. 22). The parties requested an extension
of the Order (Dkt. No. 24), which the Court granted, allowing
the temporary restraining order to remain in effect until
5:00 p.m. on March 14, 2016 (Dkt. No. 25). During that time,
the parties pursued some discovery while the temporary
restraining order was in effect (Dkt. Nos. 32, 34, 38, 46,
53). The Court then conducted a hearing on plaintiffs'
motion for preliminary injunction on March 2, 2016. The Court
entered an Order granting plaintiffs' request for a
preliminary injunction on March 14, 2016 (Dkt. No. 60).
March 29, 2016, the Food and Drug Administration
(“FDA”) updated the final printed labeling
(“FPL”) of the Mifeprex medication, which is used
in medication abortions. As a result, plaintiffs'
medication abortion regimen, which plaintiffs represent is
used by a majority of abortion providers across the county
and is significantly safer and more effective than the
regimen previously required, now complies with the FDA
labeling of Mifeprex. Therefore, plaintiffs represent that
their challenge to the FPL mandate in Section 1504(a) of the
Act is now moot (Dkt. No. 65, at 1-2).
filed a notice of appeal to the Eighth Circuit Court of
Appeals on May 12, 2016, as to this Court's Order (Dkt.
No. 70). On June 27, 2016, the United States Supreme Court
issued its opinion in Whole Women's Health v.
Hellerstedt, 136 S.Ct. 2292 (2016)
(“Hellerstedt”), a case involving
similar legal issues to those presented here. On July 28,
2017, with the benefit of Hellerstedt, the Eighth
Circuit issued an opinion vacating this Court's
preliminary injunction order on the grounds that this Court
was required to, and did not, “make a finding that the
. . . contract-physician requirement is an undue burden for a
large fraction of women seeking medication abortions in
Arkansas.” Planned Parenthood of Arkansas &
Eastern Oklahoma v. Jegley, 864 F.3d 953, 959 (8th Cir.
2017). The Eighth Circuit therefore remanded this case back
to this Court to “conduct fact finding concerning the
number of women unduly burdened by the contract-physician
requirement and determine whether that number constitutes a
‘large fraction.'” Jegley, 865 F.3d
at 960. The Eighth Circuit's mandate was entered on May
31, 2018, at which point this Court regained jurisdiction of
the case (Dkt. No. 87).
filed the present renewed motion for temporary restraining
order seeking a temporary restraining order from this Court
preventing defendants from enforcing Section 1504(d). The
Court conducted a hearing on plaintiffs' renewed motion
for temporary restraining order on June 8, 2018. After that
hearing, the Court requested additional briefing from the
parties on several issues, including: (1) whether the mandate
rule requires this Court to re-open the record, and if not,
if the Court should do so; (2) which findings of fact this
Court must make to satisfy the Eighth Circuit's mandate;
and (3) whether any rule or precedent prevents this Court
from considering multiple requests for preliminary relief in
a given case. The parties submitted the requested briefs
on June 13, 2018 (Dkt. Nos. 110, 111).
carefully considered the record and briefings before it, for
the following reasons, the Court grants plaintiffs'
renewed motion for temporary restraining order (Dkt. No.
The Mandate Rule
upon the briefings provided by the parties regarding the
mandate rule and its application to this case, the Court opts
to consider the pending renewed motion for temporary
restraining order and reopen the record. The mandate rule
generally requires a district court to comply strictly with
the mandate rendered by the reviewing court. See United
States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995).
Similarly, under the “mandate rule, ” while a
district court is “bound to follow the mandate, and the
mandate ‘controls all matters within its scope, . . . a
district court on remand is free to pass upon any issue which
was not expressly or impliedly disposed of on
appeal.'” Dethmers Mfg. Co. v. Automatic Equip.
Mfg. Co., 299 F.Supp.2d 903, 914 (N.D. Iowa 2004)
(citations omitted). The mandate rule provides that a
district court is bound by any decree issued by the appellate
court and “is without power to do anything which is
contrary to either the letter or spirit of the mandate
construed in light of the opinion.” Pearson v.
Norris, 94 F.3d 406, 409 (8th Cir. 1996) (quoting
Thornton v. Carter, 109 F.2d 316, 320 (8th Cir.
when the mandate rule applies to an issue, courts have
recognized exceptions that allow a matter to be revisited.
Those exceptions are “(1) the availability of new
evidence, (2) an intervening change of controlling law, or
(3) the need to correct a clear error or prevent manifest
injustice.” Federated Rural Elec. Ins. Corp. v.
Arkansas Elec. Cooperatives, Inc., 896 F.Supp. 912, 914
(E.D. Ark. 1995) (citing Bethea v. Levi Strauss, 916
F.2d 453, 457 (8th Cir.1990); In re Progressive Farmers
Ass'n, 829 F.2d 651, 655 (8th Cir. 1987) (on remand
lower court required to follow appellate court decision
unless new evidence introduced or decision is clearly
erroneous and works manifest injustice)). Further, in regard
to the imposition of an injunction that is in the first
instance subject to the mandate rule, courts have determined
that, under certain circumstances, the mandate rule does not
bar courts from consideration of the status of the
injunction, given the unique nature of injunctive relief and
the equitable considerations that inform it. See
Americans United For Separation of Church & State v.
Prison Fellowship Ministries, 555 F.Supp.2d 988, 991
(S.D. Iowa 2008) (examining whether the mandate rule barred
the lower court from dissolving an injunction, the grant of
which had been ordered or approved of by the appeal).
“There is a fundamental difference . . . between the
granting of retrospective relief and the granting of
prospective relief.” Id. (quoting Amado v.
Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2008)).
“Due to the equitable nature of injunctive relief,
district courts have wide discretion to determine under what
circumstances the grant of injunctive relief is appropriate,
and under what circumstances the modification or dissolution
of that injunction is warranted.” Id.
(internal citations omitted).
party takes the position that this Court is foreclosed by the
mandate from reopening the record on remand. The Court first
raised this procedural issue. Defendants now argue that the
Court should consider “the preliminary injunction
proceedings” in this case “concluded.”
(Dkt. No. 111, at 2). However, as to the question of whether
there is any procedural bar to a party filing multiple
requests for a temporary restraining order or preliminary
injunction in a single case, defendants concede that, even
after issuance of a decision on a preliminary injunction,
plaintiffs may file a second request if they are able to
state “new facts warranting reconsideration of the
prior decision.” (Dkt. No. 111, at 9 (quoting F.W.
Kerr Chemical Co. v. Crandall Assoc., Inc., 815 F.2d
426, 428 (6th Cir. 1987)).
Court opts to consider the pending renewed motion for
temporary restraining order, defendants acknowledge that
“[b]ecause the opinion is silent on this point, whether
to re-open the record on Plaintiff's motion for
preliminary injunction is a decision that rests with this
Court.” (Dkt. No. 111, at 3 (citing Walling v.
Jacksonville Paper Co., 317 U.S. 564, 572 (1943)).
Defendants now urge the Court to exercise its discretion not
to do so (Dkt. No. 111, at 3).
factors persuade this Court to do so, including but not
limited to the following. First, the last time this Court
examined the facts of this dispute was on March 14, 2016
(Dkt. No. 60), over two years ago. Evaluating the propriety
of any injunctive relief, but especially this type of
injunctive relief, depends on the facts and circumstances
that exist at the time the relief is requested.
Hellerstedt, 136 S.Ct. at 2310 (“[T]he Court,
when determining the constitutionality of laws regulating
abortion procedures, has placed considerable weight upon
evidence and argument presented in judicial
proceedings.”); West Ala. Women's Ctr. v.
Miller, 299 F.Supp.3d 1244, 1252 (M.D. Ala. 2017)
(granting preliminary injunction and noting that “[t]he
undue-burden test requires courts to examine ‘the
[challenged] regulation in its real-world
context.'”) (quoting Planned Parenthood Se.
Inc. v. Strange, 9 F.Supp.3d 1272, 1287 (M.D. Ala. 2014)
(“Strange II”)). Arkansas requires the
collection of data regarding abortions performed in the
state. Several more years of data are now available for this
Court's review in resolving this dispute. The Court is
reluctant to foreclose consideration of that data and other
facts that have developed and changed during the two years
since this Court last undertook its review. Second, several
key factual disputes have been reviewed and decided by the
Supreme Court that bear directly on factual disputes first
presented to this Court in 2016. See generally
Hellerstedt, 136 S.Ct. 2291. Third, several legal issues
have been clarified that bear directly on this Court's
legal analysis of the dispute presented. Id. Fourth,
many more district courts have examined these issues and
permitted parties to develop factual and legal arguments
related to similar disputes in other states since this Court
last examined the merits. Both sides of this dispute should
be permitted to present, not foreclosed from presenting,
similar factual and legal arguments to this Court, if they
are inclined to do so. For all of these reasons, the Court
will consider the pending renewed motion for temporary
restraining order and, in doing so, consider the new factual
materials presented for consideration by plaintiffs and
Findings Of Fact
Court adopts by reference its findings of fact in its prior
Order granting plaintiffs' request for a preliminary
injunction (Dkt. No. 60, at 3-18). See Fed. R. Civ.
P. 10(c). The Court also makes the following additional
findings of fact. To the extent the findings of fact in this
Order contradict the findings of fact made in the Court's
prior Order, the findings of fact in this Order control.
Further, the Court will address these and additional factual
matters in the context of its discussion of the legal issues;
the Court makes the findings of fact addressed in that
context as well. The Court has considered and weighed all of
the evidence presented in the record at this stage; the Court
has resolved any disputes consistent with the statements in
PPAEO or predecessor organizations have been providing health
care services in Arkansas for over 30 years and medication
abortions since 2008 (Dkt. No. 84, Supp. Ho Decl., ¶ 4).
PPAEO does not offer surgical abortions at its Arkansas
health centers and cannot do so at this time. To provide
surgical abortions, Dr. Ho represents that PPAEO would have
either to relocate to another medical office and/or undergo
renovations at its current Arkansas health centers, partly in
order to comply with state regulations that apply to surgical
abortion facilities but not medication abortion facilities
(Id., ¶ 7).
relocate its current Arkansas health centers, PPAEO would
have to find a landlord willing to rent office space to
PPAEO, which is not easy due to the hostile climate faced by
abortion providers and those associated with them, according
to Dr. Ho (Id.).
renovate its current Arkansas health centers, PPAEO would
incur considerable expense which Dr. Ho represents PPAEO
cannot afford at this time (Id.).
the calendar year 2017, PPAEO's physicians performed 843
medication abortions in Arkansas, 653 of which were at
PPAEO's health center in Fayetteville, Arkansas
(Id., ¶ 6).
PPAEO now provides medication abortions to patients through
70 days last menstrual period (“LMP”)
(Id., ¶ 10).
PPAEO now employs two other physicians besides Dr. Ho
(Id., ¶ 11).
Currently, rather than staffing the 24-hour hotline with
registered nurses, Dr. Ho and nurse practitioners take turns
answering patient calls (Id., ¶ 12). The nurse
practitioners cannot access patient medical records from
outside the office; they can do so when they are in the
office (Id.). If remote access is needed, the nurse
practitioners contact a physician with remote access
(Id.). Any calls made to the 24-hour hotline are
entered into a patient's medical record on the next
business day (Id.).
Planned Parenthood Great Plains (“PPGP”) took
over operation of the Arkansas health centers from Planned
Parenthood of the Heartland in 2016 (Id., ¶
Physicians and nurse practitioners working at the Arkansas
health centers contact Dr. Orrin Moore, the medical director
of PPGP, who is a board certified obstetrician/gynecologist,
a fellow of the American College of Obstetricians and
Gynecologists (“ACOG”), and licensed to practice
medicine in Kansas, if they have any need to consult with a
physician (Id.). Dr. Moore has been practicing
medicine, including providing abortions, for over 30 years;
he provides both medication and surgical abortions
PPAEO staff and Dr. Ho have taken additional efforts to find
a contracted physician who will allow PPAEO to comply with
Section 1504(d) (Id., ¶ 15).
Ho created a list of every obstetrician/gynecologist in
Arkansas, using the physician directories provided by the
Arkansas Medical Society and Arkansas State Medical Board
(Id., ¶ 16).
early August 2017, PPAEO sent a letter to each of these
obstetrician/gynecologists, signed by PPAEO's
then-interim CEO, Aaron Samulcek (Id.).
This letter explained Section 1504(d)'s requirements, and
it explained that “[i]t is critical [PPAEO] find a way
to comply with the law so that we can continue providing
medication abortion to patients in Arkansas.” (Dkt. No.
84, at 15).
This letter stated that, while “agreeing to be our
contracting physician does not involve providing abortion
services, it is critical in helping preserve access to
abortion in the state of Arkansas.” (Id.).
letter invited the recipients to “contact [Mr.
Samulcek] as soon as possible” to “discuss
compensation and other logistics.” (Id.). The
letter also invited the recipient to forward “any
suggestions of another physician with the requisite
privileges who would be willing to serve as a contracting
physician . . . .” (Id.).
Separately, Dr. Ho and PPAEO staff called many of the
obstetrician/gynecologists who had been identified to explain
Section 1504(d)'s requirement and the impact on abortion
access if PPAEO cannot comply with Section 1504(d) (Dkt. No.
84, Supp. Ho Decl., ¶ 17).
Ho and the PPAEO staff reached out to at least 60 physicians
in total via telephone (Id.).
response, certain physicians or group practices turned down
PPAEO's offer (Id.).
Other recipients simply stated that they would not work with
some group practices, in response to PPAEO's outreach,
“the front desk staff was so hostile . . . that they
would not even let [PPAEO staff] even speak to the physicians
and refused to take messages.” (Id.).
Despite these efforts, PPAEO is still unable to satisfy
Section 1504(d)'s contracted physician requirement
(Id., ¶ 18).
Ho also avers that medication abortion patients at the
Fayetteville health center “will find it immensely
difficult, if not impossible, to travel to Little Rock to
have an abortion.” (Id., ¶ 19).
Ho describes one medication abortion patient who had trouble
getting to PPAEO's Fayetteville health center and had to
rely upon a co-worker for a ride, forcing her to reveal her
decision to terminate her pregnancy to that co-worker
(Id., ¶ 20).
Ho describes another patient who lives close to Fort Smith,
Arkansas, who had trouble getting to PPAEO's health
center due to a lack of transportation (Id.). This
patient had to reschedule her appointment twice, which
delayed her abortion by about two weeks (Id.).
Another Fayetteville medication abortion patient was
altogether prevented from having a medication abortion
because she had car trouble between her first and second
appointment, which forced her past the gestational age at
which medication abortion is offered (Id.).
Finally, Dr. Ho states that another patient, who is homeless,
burst into tears because she needed to make a return visit to
PPAEO's health center to have an abortion, and she had
trouble finding anyone who could give her a ride back to the
health center for her second appointment (Id.).
Ho states that “[a]pproximately 57% of medication
abortions patients at the Fayetteville health center live at
or below 110% of the federal poverty level.”
(Id., ¶ 21).
Ho states that, in 2014, “medication abortions
accounted for 31% of all nonhospital abortions and for 45% of
abortions before nine weeks' gestation.”
(Id., ¶ 22 (citing Rachel K. Jones and Jenna
Jerman, Abortion Incidence and Serv. Availability in the
U.S., 2014, 49 Persp. on Sexual and Reprod. Health 17,
Ho states that, in her experience, some patients have a
strong preference for medication abortion (Id.,
¶ 24). Some patients are afraid of a surgical procedure
(Id.). Other patients feel that medication abortion
is more natural than a surgical abortion (Id.).
Other patients prefer to complete the procedure in the
privacy of their own homes or in the presence of their
support person or loved ones (Id.).
Plaintiffs also present the affidavit of Lori Williams, a
nurse practitioner and the Clinical Director of Little Rock
Family Planning Services (“LRFP”) (Dkt. No. 84,
Williams Decl., ¶ 1).
LRFP has operated an abortion clinic in Little Rock since
1973, and it has been licensed by the State of Arkansas as an
abortion provider since such licensing began in the
mid-1980's (Id., ¶ 3).
Williams has worked at LRFP since 2004 and has been the
Clinical Director since 2007 (Id., ¶ 2). She is
responsible for all aspects of LRFP's day-to-day
operations, including overseeing patient care in coordination
with the physicians and other health care professionals,
maintaining policies and procedures, and ensuring that LRFP
complies with all laws and regulations (Id.).
LRFP provides early medication abortions and surgical
abortions (Id., ¶ 4). LRFP is one of only three
abortion clinics in Arkansas and the only one that offers
surgical abortions (Id.). LRFP is the only one of
Arkansas' abortion clinics that offers abortions past ten
weeks, as dated from the first day of the patient's LMP
LRFP is not able to comply with Section 1504(d)'s
requirement that medication abortion providers have a written
contract with a physician who has active admitting privileges
and gynecological/surgical privileges at an Arkansas hospital
and who has agreed to handle complications (Id.,
LRFP has sent a letter to every obstetrician-gynecologist it
could identify in Arkansas, but LRFP has been unable to
retain a physician with the required privileges
(Id., ¶ 6).
Since LRFP cannot comply with Section 1504(d)'s
contracted physician requirement, LRFP has cancelled
medication abortions (Id., ¶ 7).
2017, LRFP provided 92 medication abortions and 2, 334
surgical abortions to patients (Id., ¶ 8).
Williams avers that LRFP regularly sees patients who prefer a
medication abortion over a surgical one (Id., ¶
9). Some patients, including victims of sexual assault, want
to avoid having surgical instruments in their vagina
(Id.). Other patients prefer to complete the
procedure in the privacy of their home or with another person
there to support them (Id.). Some patients also have
medical conditions, such as vaginismus and large fibroids,
that make medication abortion medically indicated
Finally, plaintiffs present the declaration of Colleen
Heflin, a professor of public administration and
international affairs at Syracuse University's Maxwell
School of Citizenship and Public Affairs (Dkt. No. 84, Heflin
Decl., ¶ 1).
Heflin has studied, written, and opined about social policy,
poverty policy, and child and family policy, and she has
researched issues facing women living in poverty in the
United States (Id., ¶ 5).
Heflin cites research that shows an association between
increased travel distance and decreased abortion rates
(Id., ¶ 11). Specifically, she cites a study by
Scott Cunningham that examined the reduction in the abortion
rate in Texas after the Texas legislature codified a
requirement that abortion providers have admitting privileges
at a hospital (Id., ¶ 12).
Cunningham's study estimates that abortion rates decline
by 15% in counties requiring between 50 and 100 miles of
travel to access services, by 25% in counties requiring
between 100 and 150 miles of travel, and by 40% for those
counties requiring between 150 and 200 miles of travel
(Id., ¶ 13).
Heflin avers that Mr. Cunningham's study examines data
that is both recent in time and data from Texas, a state
bordering Arkansas, and a state that shares many
characteristics with Arkansas (Id., ¶ 14).
Heflin states that “the data shows that a total of 571
women who received abortions at the Fayetteville health
center will, as a result of the [contracted physician]
requirement, have to travel over 150 miles from their home
county to go to Little Rock.” (Id., ¶
15). She also notes that the “data shows that an
additional 28 women will have to travel between 100-150 miles
from their home county to go to Little Rock for an
Accordingly, based upon the analysis in the Cunningham study,
Dr. Heflin estimates that a total of 235 women will be
prevented from having an abortion as a result of the
contracted physician requirement (Id.).
Among the materials defendants submit, all of which this
Court has considered, defendants submit the affidavit of
Tumulesh K.S. Solanky, a professor and chair of the
mathematics department at the University of New Orleans (Dkt.
No. 101-2, Solanky Aff., ¶ 2). Dr. Solanky has written
extensively on the subject of statistics, presented research
at multiple conferences, and previously testified in court
regarding statistical matters (Id., ¶¶
Solanky is critical of both the Cunningham study and Dr.
Heflin's opinions offered here (Id.,
¶¶ 22-28, 44-45). Dr. Solanky also discusses other
studies that examine abortion rates and trends that may
impact the outcome of this case (Id., ¶¶
Defendants also submit the affidavit of Shirley Louie, the
Director of the Center for Public Health Practice with the
Arkansas Department of Health (Dkt. No. 101-1, Louie Aff.,
¶ 2). Attached to her affidavit are two spreadsheets,
the first of which lists the Arkansas occurrences of induced
abortions performed on Arkansas residents in 2017, and the
second of which lists the Arkansas occurrences of induced
abortions performed on residents from states other than
Arkansas (Id., ¶ 3).
Conclusions Of Law
determining whether to grant a motion for a temporary
restraining order, this Court considers: (1) the movant's
likelihood of success on the merits; (2) the threat of
irreparable harm to the movant; (3) the balance between the
harm to the movant and the injury that granting an injunction
would cause other interested parties; and (4) the public
interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th
Cir. 2013) (quoting Dataphase Sys. Inc. v. CL Sys.,
640 F.2d 109, 114 (8th Cir. 1981)). Preliminary injunctive
relief is an extraordinary remedy, and the party seeking such
relief bears the burden of establishing the four
Dataphase factors. Watkins Inc. v. Lewis,
346 F.3d 841, 844 (8th Cir. 2003). The focus is on
“whether the balance of the equities so favors the
movant that justice requires the court to intervene to
preserve the status quo until the merits are
determined.” Id. “Although no single
factor is determinative when balancing the equities, ”
a lack of irreparable harm is sufficient ground for denying a
temporary restraining order. Aswegan v. Henry, 981
F.2d 313, 314 (8th Cir. 1992).
Standard of Review: Modified Dataphase
Court examines the Dataphase factors as applied to
plaintiffs' request for a temporary restraining order.
See Dataphase, 640 F.2d at 109. Under
Dataphase, no one factor is determinative.
Id. at 113. The Eighth Circuit revised the
Dataphase test when applied to challenges to laws
passed through the democratic process. Those laws are
entitled to a “higher degree of deference.”
Planned Parenthood Minn., N.D., S.D. v. Rounds, 530
F.3d 725, 732 (8th Cir. 2008). 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
should the Court consider the remaining factors. Id.
Likely To Prevail On The Merits
constitutional protection of reproductive rights is based on
the liberty interest derived from the due process clause of
the Fourteenth Amendment. Planned Parenthood of Se. Penn.
v. Casey, 505 U.S. 833, 846 (1992) (majority opinion).
The United States Supreme Court, when recognizing this right,
We forthwith acknowledge our awareness of the sensitive and
emotional nature of the abortion controversy, of the vigorous
opposing views, even among physicians, and of the deep and
seemingly absolute convictions that the subject inspires.
One's philosophy, one's experiences, one's
exposure to the raw edges of human existence, one's
religious training, one's attitudes toward life and
family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence
and to color one's thinking and conclusions about
In addition, population growth, pollution, poverty, and
racial overtones tend to complicate and not to simplify the
Roe v. Wade, 410 U.S. 113, 116 (1973).
and until Roe is overruled by the United States
Supreme Court, to determine whether a state statute is
unconstitutional and violates substantive due process rights
in this context, the Court applies the “undue
burden” standard developed in Casey, 505 U.S.
at 876-79 (plurality opinion), and Hellerstedt, 136
S.Ct. at 2309-11.
Proper Legal Standard
PPAEO and Dr. Ho's complaint does not specify whether
this action is brought as a “facial”
constitutional challenge to the Act or as an
“as-applied” challenge, at the prior preliminary
injunction stage, this Court reviewed plaintiffs' claim
as one for facial relief. The Eighth Circuit also implicitly
treated this case as a facial challenge. Jegley, 864
F.3d at 958 (analyzing whether this Court correctly applied
the undue burden test from Casey, which applies to
facial challenges). Since the Eighth Circuit entered its
mandate in this case, neither party has argued that this case
should be treated as anything other than a facial challenge
to Section 1504(d). Accordingly, this Court will review this
request for a temporary restraining order as a facial
challenge to Section 1504(d).
Eighth Circuit 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 (majority opinion); 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 Rounds, 530 F.3d at 733 n.8
(“Rounds cases”). “Casey
teaches that the court need not find that a law imposes an
undue burden on a precise percentage of impacted women in
order [to] find that facial relief is warranted . . .
.” Planned Parenthood Se., Inc. v. Strange,
172 F.Supp.3d 1275, 1288 (M.D. Ala. 2016) (“Strange
V”), judgment entered, 2016 WL 1178658
(M.D. Ala. 2016).
Casey, a plurality of the Supreme Court determined
that, if a government regulation has “the purpose or
effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus, ” the
regulation is an undue burden on a woman's right to have
an abortion and is unconstitutional. 505 U.S. at 877
(plurality opinion). In Gonzales v. Carhart, the
Supreme Court then simplified Casey's
description, settling on the effects test. 550 U.S. 124, 158
(2007). The Supreme Court recently reiterated the undue
burden standard that “a statute which, while furthering
[a] valid state interest, has the effect of placing a
substantial obstacle in the path of a woman's choice
cannot be considered a permissible means of serving its
legitimate ends.” Hellerstedt, 136 S.Ct. at
2309 (quoting Casey, 505 U.S. at 877 (plurality
Supreme Court in Gonzales stated as follows:
“[T]he State, from the inception of the pregnancy,
maintains its own regulatory interest in protecting the life
of the fetus that may become a child, [and this premise]
cannot be set at naught by interpreting Casey's
requirement of a health exception so it becomes tantamount to
allowing a doctor to choose the abortion method he or she
might prefer. Where it has a rational basis to act, and it
does not impose an undue burden, the State may use its
regulatory power to bar certain procedures and substitute
others, all in furtherance of its legitimate interests in
regulating the medical profession in order to promote respect
for life, including life of the unborn.”
Gonzales, 550 U.S. at 158. The Court acknowledges
that the state may, in a valid exercise of its police power,
regulate abortion. The state's police power is, however,
limited where a protected liberty interest is at stake.
Casey, 505 U.S. at 851 (majority opinion).
“The State's interest in regulating abortion
previability is considerably weaker than
postviability.” Stenberg v. Carhart, 530 U.S.
914, 930 (2000) (citing Casey, 505 U.S. at 870
(majority opinion)). Therefore, while the Court acknowledges
that Section 1504(d) may be a valid exercise of the
state's police power, the Court is obligated to examine
whether it unduly burdens the constitutional right of
Arkansas women to a pre-viability abortion.
an undue burden, PPAEO and Dr. Ho must 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 (majority opinion). A court limits its inquiry to
“the group for whom the law is a restriction, not the
group for whom the law is irrelevant.” Id. at
894 (majority opinion). “An undue burden is an
unconstitutional burden.” Id. at 877
undue burden analysis requires this Court to “consider
the burdens a law imposes on abortion access together with
the benefits those laws confer.” Hellerstedt,
136 S.Ct. at 2309. There must be “a constitutionally
acceptable” reason for regulating abortion, and the
abortion regulation must also actually advance that goal in a
permissible way. Id. at 2309-10. The regulation will
not be upheld unless the benefits it advances outweigh the
burdens it imposes. Id. at 2310. “[T]he means
chosen by the State to further the interest in potential life
must be calculated to inform the woman's free choice, not
hinder it.” Casey, 505 U.S. at 877 (plurality
under the applicable undue burden standard, although the
Court must “review ‘legislative fact finding
under a deferential standard, '”
Hellerstedt, 136 S.Ct. at 2310, the court
“retains an independent constitutional duty to review
[a legislature's] factual findings where constitutional
rights are at stake . . . . Uncritical deference to [the
legislature's] factual findings in these cases is
inappropriate.” Gonzales, 550 U.S. at 165,
167; see Hellerstedt, 136 S.Ct. at 2310.
the state has the burden of demonstrating a link between the
legislation it enacts and what it contends are the
state's interests. See Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 430 (1983),
overruled on other grounds by Casey, 505 U.S. 833
(describing the burden as that of the state). As a part of
the Court's inquiry, the Court may take into account the
degree to which the restriction is over-inclusive or
under-inclusive, see, e.g., Hellerstedt, 136 S.Ct.
at 2315 (discussing over- and under-inclusive scope of the
provision), and the existence of alternative, less burdensome
means to achieve the state's goal, including whether the
law more effectively advances the state's interest
compared to prior law; id. (noting that prior state
law was sufficient to serve asserted interest); id.
at 2314 (“The record contains nothing to suggest that
[the challenged provisions] would be more effective than
pre-existing [state] law at deterring wrongdoers . . . from
and Dr. Ho, who challenge Section 1504(d), retain the
ultimate burden of proving the statute's
unconstitutionality. Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (reversing appellate court for enjoining
abortion restriction where plaintiffs had not proven that the
requirement imposed an undue burden); Casey, 505
U.S. at 884 (plurality opinion) (affirming provision where
“there [was] no evidence on this record” that the
restriction would amount to an undue burden).
Efforts To Comply With Section 1504(d)
Court finds on the record before it at this stage of the
proceeding that, despite trying to find a contracted
physician, PPAEO and Dr. Ho cannot comply with the contracted
physician requirement (Dkt. No. 2, de Baca Decl., ¶ 12).
Casey requires a contextualized inquiry into how an
abortion restriction interacts with facts on the ground, not
only on the law's direct effects. 505 U.S. at 887-895
(majority opinion); see Planned Parenthood Arizona, Inc.
v. Humble, 753 F.3d 905, 915 (9th Cir. 2014).
claim that PPAEO has not made a serious effort to locate a
contracted physician (Dkt. No. 101, at 9). Specifically,
defendants argue that PPAEO has only offered “token
compensation” to potential contracted physicians and
that LRFP offers no proof that it offered any compensation to
potential contract physicians (Id.). Defendants
acknowledge that PPAEO sent letters to “every ob-gyn
[PPAEO] could identify, ” but defendants point out that
this letter “criticiz[ed] the Arkansas General Assembly
and denounc[ed] the contract-physician requirement as
‘medically unnecessary.'” (Id., at
and Dr. Ho maintain that, in addition to the efforts
undertaken in 2016 and explained at more length in this
Court's prior preliminary injunction Order (Dkt. No. 60),
they compiled a list of every obstetrician/gynecologist in
Arkansas using the physician directories of the Arkansas
Medical Society and Arkansas State Medical Board and sent a
letter in August 2017 to every one of those
obstetrician/gynecologists (Dkt. No. 84, Supp. Ho. Decl.,
¶ 16). This letter described the contracted physician
requirement and asked the recipients to “consider
contracting with PPGP as required by the Act.” (Dkt.
No. 84, at 15). This letter asked the recipients to
“contact [PPGP] as soon as possible if you are
interested in serving as a contracting physician and we can
discuss compensation and other logistics.”
(Id.). The letter also invited the recipient to
inform PPAEO if the recipient knew of any other physicians
“with the requisite privileges who would be willing to
serve as a contracting physician . . . .”
(Id.). Ms. Williams, the Clinical Director of LRFP,
states that LRFP “sent a letter to every
obstetrician-gynecologist we could identify in the state, but
were unable to retain a physician with privileges.”
(Dkt. No. 84, Williams Decl. ¶ 6).
also called many of the identified
obstetrician/gynecologists-at least 60 physicians were
contacted via telephone by her or PPAEO's staff (Dkt. No.
84, Supp. Ho. Decl., ¶ 17). These physicians would also
have received the letter sent in August 2017. Certain
physicians or group practices informed PPAEO that they do not
support a woman's right to access abortion and would not
help PPAEO (Id.). Others stated that they could not
work with PPAEO, while at others the front staff “was
so hostile once they heard that we were calling from Planned
Parenthood that they would not even let us speak to the
physicians and refused to take messages.”
(Id.). Dr. Ho represents that, despite these
efforts, PPAEO is still unable to satisfy the contracted
physician requirement (Id., ¶ 18).
is evidence in the record that physicians who provide
abortions or associate with physicians who provide abortions
risk being ostracized from their communities and face
harassment and violence toward themselves, their families,
and their private practices (Dkt. No. 30, Stulberg Decl.,
¶¶ 13-17). Even if a physician is willing to take
on these risks, there is evidence in the record that many
private practice groups, hospitals, HMOs, and health networks
will not permit physicians working for them to associate with
abortion providers (Dkt. No. 30, Stulberg Decl., ¶¶
9-12). There is specific evidence that Arkansas's urban
medical facility, the University of Arkansas for Medical
Sciences (“UAMS”) system, did not want to risk
association with PPAEO or risk permitting its physicians to
work with PPAEO (Dkt. No. 29, Ho. Decl., ¶ 6).
Defendants have presented no information to the contrary on
district courts have found that abortion providers face
threats of physical violence and professional stigmatization.
See June Med. Servs. LLC v. Kliebert, 250 F.Supp.3d
27, 51-53 (M.D. La. 2017) (“Kliebert
II”) (abortion doctors received threats as a
result of affiliation with abortion clinics); Planned
Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908,
917 (7th Cir. 2015) (Posner, J.) (noting the
“vilification, threats, and sometimes violence directed
against abortion clinics and their personnel in states . . .
in which there is intense opposition to abortion.”),
cert. denied, 136 S.Ct. 2545; W. Ala.
Women's Ctr. v. Williamson, 120 F.Supp.3d 1296, 1303
(M.D. Ala. 2015) (discussing possible violence, harassment,
and stigma abortion providers face); Strange III, 33
F.Supp.3d at 1349-53 (describing the anti-abortion harassment
and stigma that prevents physicians from associating with
abortion providers, including protestors who “threaten
economic destruction for any doctor who enable[s] the
provision of abortion”). These dangers are magnified by
Section 1504(d)'s requirement that the contracted
physician make public his or her name and phone number. Ark.
Code Ann. § 20-16-1504(d)(3).
other courts have found that abortion providers and their
personnel face significant threats to their safety and
livelihoods and that hospitals are hesitant, if not hostile,
to the prospect of granting admitting privileges to doctors
who provide abortions. See Schimel, 806 F.3d at 917
(noting it is difficult for abortion providers to recruit
physicians “because of the vilification, threats, and
sometimes violence directed against abortion clinics and
their personnel in states such as Wisconsin, in which there
is intense opposition to abortion”); Strange
III, 33 F.Supp.3d at 1348- 49 (noting it is difficult
for abortion providers to recruit physicians “due to
the severe professional consequences of [association with
abortion] and the lingering threat of violence against
abortion doctors, particularly in Alabama”).
other courts have found that hospitals deny admitting
privileges to abortion doctors for other various reasons.
See Planned Parenthood of Wisconsin, Inc. v. Van
Hollen, 738 F.3d 786, 792 (7th Cir. 2013)
(“Van Hollen III”) (“The criteria
for granting admitting privileges are multiple, various, and
unweighted.”), cert. denied, 134 S.Ct. 2841
(2014). Other courts have analyzed the multiple factors that
are considered when determining if a doctor should be granted
admitting privileges, including how often the physician uses
the hospital, the quantity of services provided to the
patient at the hospital, the revenue generated by a
particular admitting physician, and the physician's
admission to a particular practice or academic faculty.
Id. In Hellerstedt, the Supreme Court noted
that it would be difficult for doctors performing abortions
at the El Paso, Texas, clinic to gain admitting privileges
because “[d]uring the past 10 years, over 17, 000
abortion procedures were performed at the El Paso clinic [and
n]ot a single one of those patients had to be transferred to
a hospital for emergency treatment, much less admitted to the
hospital.” 136 S.Ct. at 2312 (alterations in original).
Or, in other words, abortion doctors are unable to gain
admitting privileges because “abortions are so
safe” that such doctors are “unlikely to have any
patients to admit.” Id.; Van Hollen
III, 738 F.3d at 793 (“[T]he number of patient
admissions by doctors who perform abortions is likely to be
negligible because there appear to be so few complications
from abortions and only a fraction of those require
hospitalization . . . .”); Williamson, 120
F.Supp.3d at 1303 (admitting privileges denied “because
complications from abortions are so rare” that abortion
doctor “would never be able to do the required amount
record evidence at this stage of the litigation in this case
is consistent with the findings in the cases discussed above:
doctors face threats to their livelihoods and physical safety
if they attempt to provide abortions or act as contracted
physicians to abortion providers. The Court is skeptical that
the compensation offered by plaintiffs would be enough to
overcome these obstacles. These obstacles very likely keep
even those doctors in Arkansas who may not have a moral or
ethical opposition to abortion from providing abortions or
serving as contracted physicians. See Strange III,
33 F.Supp.3d at 1355 (“[T]he inability to obtain local
abortion doctors is not a matter of money, but rather a
reflection of the difficulty of pursuing that occupation in
the State.”). Furthermore, due to both widespread
animus toward abortion among hospital staff and the
peculiarities of the requirements necessary for admitting
privileges, the Court finds that, based on the record
evidence at least at this stage of the litigation, it is
highly unlikely that the abortion clinics in Arkansas will be
able satisfy Section 1504(d)'s contracted physician
Burdens Imposed By Section 1504(d)
1504(d) of the Act, which is the statute plaintiffs continue
to challenge, requires:
(1) The physician who gives, sells, dispenses, administers,
or otherwise provides or prescribes the abortion-inducing
drug shall have a signed contract with a physician who agrees
to handle complications and be able to produce that signed
contract on demand by the patient or by the Department of
(2) The physician who contracts to handle emergencies shall
have active admitting privileges and gynecological/surgical
privileges at a hospital designated to handle any emergencies
associated with the use or ingestion of the abortion-inducing
(3) Every pregnant woman to whom a physician gives, sells,
dispenses, administers, or otherwise provides or prescribes
any abortion-inducing drug shall receive the name and phone
number of the contracted physician and the hospital at which
that physician maintains admitting privileges and which can
handle any emergencies.
Ark. Code Ann. § 20-16-1504(d). Arkansas law also
requires all women seeking abortions- medication or
surgical-to receive certain state-mandated information
in-person at least 48-hours prior to the abortion.
See Ark. Code Ann. § 20-16-1703. There are no
exceptions to this requirement.
contracted physician requirement of the Act goes into effect,
plaintiffs represent that only one health center in the
state-located in Little Rock-will provide abortions (Dkt. No.
84, Williams Decl., ¶ 4). They also represent that these
abortions will only be surgical. There is record evidence
that, if Section 1504(d) takes effect, all three Arkansas
health centers will no longer offer medication abortion (Dkt.
No. 84, Supp. Ho. Decl., ¶ 3; Williams Decl., ¶ 7).
Women For Whom The Regulation Is Relevant
evaluate the burdens imposed by the contracted physician
requirement, the Court must first define the group of women
whose burdens must be analyzed. See Hellerstedt, 136
S.Ct. at 2320 (“[T]he relevant denominator is
‘those [women] for whom [the provision] is an actual
rather than an irrelevant restriction.'”) (quoting
Casey, 505 U.S. at 895 (majority opinion)). When
this Court first analyzed this question, it was unclear if
the “denominator” in the “large
fraction” analysis was “all women of
child-bearing age in Arkansas” or “all women
seeking a medication abortion in Arkansas.” In the
interim, the Supreme Court decided Hellerstedt and
reaffirmed that a law creates an undue burden when it places
a “substantial obstacle to a woman's choice”
in “a large fraction of the cases in which” it
“is relevant.” 136 S.Ct. at 2313 (quoting
Casey, 505 U.S. at 895 (majority opinion)).
Furthermore, the Eighth Circuit held that “because the
contract-physician requirement only applies to
medication-abortion providers, the ‘relevant
denominator' here is women seeking medication abortions
in Arkansas.” Jegley, 864 F.3d at 958 (citing
Hellerstedt, 136 S.Ct. at 2320).
Examining The “Large ...