Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Planned Parenthood of Arkansas and Eastern Oklahoma v. Jegley

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

June 18, 2018

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


          Kristine G. Baker United States District Judge

         Before 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).

         I. Procedural Background

         The 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).

         On 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).

         Defendants 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).

         Plaintiffs 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.[1] The parties submitted the requested briefs on June 13, 2018 (Dkt. Nos. 110, 111).

         Having carefully considered the record and briefings before it, for the following reasons, the Court grants plaintiffs' renewed motion for temporary restraining order (Dkt. No. 84).[2]

         II. The Mandate Rule

         Based 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. 1940)).

         Even 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).

         Neither 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)).

         If the 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).

         Several 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 defendants.

         III. Findings Of Fact

         The 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 this Order.

         1. 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).

         2. 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).

         3. To 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.).

         4. To renovate its current Arkansas health centers, PPAEO would incur considerable expense which Dr. Ho represents PPAEO cannot afford at this time (Id.).

         5. In 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).

         6. PPAEO now provides medication abortions to patients through 70 days last menstrual period (“LMP”) (Id., ¶ 10).

         7. PPAEO now employs two other physicians besides Dr. Ho (Id., ¶ 11).

         8. 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.).

         9. Planned Parenthood Great Plains (“PPGP”) took over operation of the Arkansas health centers from Planned Parenthood of the Heartland in 2016 (Id., ¶ 13).

         10. 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 (Id.).

         11. 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).

         12. Dr. 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).

         13. In early August 2017, PPAEO sent a letter to each of these obstetrician/gynecologists, signed by PPAEO's then-interim CEO, Aaron Samulcek (Id.).

         14. 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).

         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.).

         16. The 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.).

         17. 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).

         18. Dr. Ho and the PPAEO staff reached out to at least 60 physicians in total via telephone (Id.).

         19. In response, certain physicians or group practices turned down PPAEO's offer (Id.).

         20. Other recipients simply stated that they would not work with PPAEO (Id.).

         21. At 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.).

         22. Despite these efforts, PPAEO is still unable to satisfy Section 1504(d)'s contracted physician requirement (Id., ¶ 18).

         23. Dr. 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).

         24. Dr. 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).

         25. Dr. 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.).

         26. 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.).

         27. 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.).

         28. Dr. 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).

         29. Dr. 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, 21-22 (2017)).

         30. Dr. 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.).

         31. 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).

         32. 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).

         33. Ms. 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.).

         34. 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 (Id.).

         35. 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., ¶ 5).

         36. 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).

         37. Since LRFP cannot comply with Section 1504(d)'s contracted physician requirement, LRFP has cancelled medication abortions (Id., ¶ 7).

         38. In 2017, LRFP provided 92 medication abortions and 2, 334 surgical abortions to patients (Id., ¶ 8).

         39. Ms. 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 (Id.).

         40. 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).

         41. Dr. 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).

         42. Dr. 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).

         43. Mr. 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).

         44. Dr. 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).

         45. Dr. 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 abortion.” (Id.).

         46. 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.).

         47. 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., ¶¶ 4-5).

         48. Dr. 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., ¶¶ 12-22, 29-37).

         49. 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).

         IV. Conclusions Of Law

         When 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).

         V. Standard of Review: Modified Dataphase Factors

         The 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.

         A. Likely To Prevail On The Merits

         Federal 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, stated:

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 abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Roe v. Wade, 410 U.S. 113, 116 (1973).

         Unless 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.

         1.The Proper Legal Standard

         Although 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).

         The 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).[3]

         In 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 opinion)).

         The 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.

         To show 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 (plurality opinion).

         The 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 opinion).

         Further, 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.

         Generally, 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 criminal behavior.”).

         PPAEO 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).

         2. Efforts To Comply With Section 1504(d)

         This 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).

         Defendants 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 9-10).

         PPAEO 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).

         Dr. Ho 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).

         There 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 these points.

         Other 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).

         Several 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”).

         Finally, 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 of procedures.”).

         The 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 requirement.

         3. Burdens Imposed By Section 1504(d)

         Section 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 Health.
(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 drug.
(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.

         If the 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).

         a. Women For Whom The Regulation Is Relevant

         To 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).

         b. Examining The “Large ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.