United States District Court, E.D. Arkansas, Western Division
ORDER
Kristine G. Baker, United States District Judge.
Before
the Court is defendants' expedited motion to reconsider
ex parte consolidation order (Dkt. No. 22). Plaintiffs filed
a response in opposition (Dkt. No. 28). By way of background,
plaintiffs filed their complaint and motion for expedited
consolidation or, in the alternative, to give notice of a
related case on June 26, 2019 (Dkt. Nos. 1, 3). In that
motion, plaintiffs argue that this action should be
consolidated with, or is related to Planned Parenthood of
Arkansas & Eastern Oklahoma v. Jegley, et al., No.
4:15-cv-00784-KGB (Dkt. No. 3). On June 27, 2019, United
States District Court Judge Billy Roy Wilson granted
plaintiffs' motion for expedited consolidation or, in the
alternative, to give notice of a related case (Dkt. No. 14).
Defendants
now ask this Court to reconsider Judge Wilson's Order,
arguing that Judge Wilson abused his discretion by granting
plaintiffs' motion because: (1) this matter and
Jegley do not share any common questions of law or
fact under Federal Rule of Civil Procedure 42(a) and (2) this
case and Jegley should not be treated as
“related cases” under General Order No. 39(b)(5)
(Dkt. No. 23). For the reasons set forth below, the Court
declines to reconsider Judge Wilson's Order and denies
defendants' expedited motion to reconsider ex
parte consolidation order (Dkt. No. 22).
I.
Related Case
The
Court declines to reconsider Judge Wilson's Order to the
extent his Order designated this matter as a “related
case” to Jegley. Under General Order No.
39(b)(5), when “a party believes a new civil case
should be directly assigned to a particular judge because the
new case is closely related to a prior closed case and the
assignment thereof to a different judge would result in a
significant waste of judicial time, ” “the judge
assigned the new case may, in his or her sole discretion,
decide either to keep the new case or to notify the clerk to
assign the case by random draw.” This decision
“is final and not subject to review.” Gen. Order
No. 39(b)(5). Defendants argue that a related-case
designation is inappropriate here “because
Jegley is not yet a prior closed case” and
because “a related case designation would not increase
efficiencies . . . .” (Dkt. No. 23, at 10 (internal
quotations omitted)). In their response, plaintiffs submit
that the instant case and Jegley involve many of the
same parties and issues and that both cases will realize
efficiencies in discovery and litigation, if the two matters
are deemed related (Dkt. No. 28, at 8-9). Specifically,
plaintiffs assert that this litigation is uniquely
appropriate for related-case designation before this Court
due to the substantial similarities between the contracted
physician requirement at issue in Jegley and
Arkansas Act 700 of 2019 (the “OBGYN
requirement”) challenged here (Id., at 9).
The
Court concludes that this matter is closely related to
Jegley under General Order No. 39(b)(5). As an
initial matter, plaintiffs represent in their response in
opposition to defendants' motion that they requested a
related-case designation as an alternative to their
consolidation request to address the possibility that the
Jegley motion to dismiss would be granted before
this Court considered plaintiffs' consolidation request
(Dkt. No. 28, at 8). While defendants are technically correct
that Jegley has not yet been closed, an unopposed
motion to dismiss without prejudice is pending in that
matter. See Jegley, Dkt. No. 187. That motion
represents that defendants-who are also parties to this
case-do not oppose the motion to dismiss, and the defendants
in Jegley have not yet withdrawn their support for
that motion. Accordingly, the Court finds that
Jegley qualifies as a “prior closed
case” as that phrase is defined in General Order No.
39.
Additionally,
the Court finds that this matter and Jegley are
closely related and that the assignment of this matter to
this Court will result in significant savings of judicial
resources. Jegley involved a Fourteenth Amendment
challenge to two provisions of Section 1504(d) of the
Abortion-Inducing Drugs Act, 2015 Arkansas Acts 577 (2015):
(1) the “contracted physician requirement, ”
which required medication abortion providers to have a signed
contract with a physician with 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; and (2) the
“FPL mandate, ” which required medication
abortion providers to satisfy the protocols set forth on the
final printed label for an abortion-inducing drug. The FPL
mandate issue was eventually rendered moot, but, on several
different occasions, the Court applied the “undue
burden” test from Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
and Whole Women's Health v. Hellerstedt, 136
S.Ct. 2292 (2016), to determine whether the contracted
physician requirement was constitutional.
While
applying the undue burden test, the Court analyzed the
voluminous record evidence to determine the purported
benefits of the contracted physician requirement and the
burdens imposed by the same on Arkansas women. Specifically,
the Court analyzed the dangerousness of first and second
trimester abortions; the preexisting
“continuity-of-care” requirements for private
abortion providers in Arkansas; the actual benefits to the
health of Arkansas women created by the contracted physician
requirement; alternative sources of continuity-of-care
available to Arkansas women; the personal and professional
risk to doctors who associate with abortion providers; the
effect of the contracted physician requirement upon abortion
clinics in Arkansas; and the burdens imposed upon Arkansas
women by the contracted physician requirement, including a
detailed description of driving distances for different
populations of women living in Arkansas. See Jegley,
Dkt. No. 144. The Court then weighed these benefits and
burdens to determine whether the contracted physician
requirement created an “undue burden.”
In the
present matter, plaintiffs challenge three recently enacted
statutes: (1) Arkansas Act 493 of 2019 (the “18-Week
Ban”); (2) Arkansas Act 619 of 2019 (the
“Disability Ban”); and (3) Arkansas Act 700 of
2019, which codifies the OBGYN requirement. Were it not for
the inclusion of the OBGYN requirement in this lawsuit, the
Court might agree with defendants that there are no common
issues of law or fact between this matter and
Jegley. The OBGYN requirement, however, prohibits
anyone from providing abortions in Arkansas unless they are
“a physician licensed to practice medicine in the state
of Arkansas” who is “board-certified or
board-eligible in obstetrics and gynecology.” 2019 Ark.
Acts 700 § 1. A violation of this provision “may
result in the revocation, suspension, or nonrenewal of the
professional license of an abortion facility or
physician.” Id. The OBGYN requirement,
therefore, is subject to the undue burden test as set forth
in Casey and Hellerstedt. Accordingly, the
evidence and issues raised in this case will substantially
overlap with those considered by this Court in
Jegley.
For
example, the Court predicts that this case will require a
district court to assess the dangerousness of first and
second trimester abortions, the preexisting standards of care
governing abortion providers in Arkansas, the personal and
professional risk to doctors who associate with abortion
providers, the financial burden imposed by the OBGYN
requirement upon abortion providers, and the burdens imposed
upon Arkansas women by the OBGYN requirement. In particular,
the undue burden test will require any district court to
determine whether a “large fraction” of Arkansas
women are burdened by the OBGYN requirement, and this
assessment will require a detailed examination of the
population of women in Arkansas, the ability of clinics to
comply with the OBGYN requirement, and the predicted number
of women who will be deterred from an abortion by the OBGYN
requirement. The Court has already conducted this exercise
once in Jegley; it is well-placed to do so again in
this matter. Indeed, as described by plaintiffs, Dr.
Stephanie Ho and Ms. Lori Williams-both of whom testified in
Jegley-are key witnesses in this case. Notably,
defendants' motion fails to explain how the legal and
factual issues raised by the OBGYN requirement are distinct
and unrelated to those raised by the contracted physician
requirement in Jegley. Accordingly, the Court finds
that this case and Jegley are closely related and
that Judge Wilson's transfer of this matter is likely to
result in significant savings of judicial resources.
II.
Consolidation Under Rule 42
The
Court also concludes that consolidation is warranted here,
and therefore declines to reconsider Judge Wilson's Order
reassigning this case. Under Rule 42(a), a district court may
consolidate actions “[i]f actions before the court
involve a common question of law or fact . . . .”
Fed.R.Civ.P. 42(a). Further, “[d]istrict courts enjoy
substantial discretion in deciding whether and to what extent
to consolidate cases.” Hall v. Hall, 138 S.Ct.
1118, 1131 (2018) (citing 9A Wright & Miller, Fed.
Prac. & Proc. Civ. § 2383 (3d ed.)). Per
General Order No. 39, in the event a motion to consolidate is
granted, the consolidated cases are assigned to the judge
with the lower case number.
Plaintiffs
argued to Judge Wilson that consolidation is warranted
because this matter and Jegley share a common set of
factual and legal issues, there are overlapping discovery
issues and witnesses, and consolidation would avoid the risk
of inefficient or inconsistent rulings (Dkt. No. 23, at 1).
Plaintiffs reiterate these arguments in their response in
opposition to defendants' present motion (Dkt. No. 28, at
4-7). Plaintiffs submit that, in both cases, the Court must
determine whether abortion regulations unduly burden the
constitutionally guaranteed right to access abortion care by
making factual findings as to whether any purported medical
or health benefits of a challenged Act are outweighed by the
significant burdens they impose on access to abortion
(Id., at 5). Plaintiffs assert that the application
of the United States Supreme Court's balancing test in
Hellerstedt to analyze the constitutionality of the
contracted physician requirement challenged in
Jegley and the OBGYN requirement challenged here is
uniquely similar (Id.). According to plaintiffs,
both cases require the reviewing judge to make factual
findings regarding, among other things, the training and
skill necessary to provide abortion care, the ability of
abortion providers to recruit and retain OBGYNs in Arkansas,
and the impact on women's access to care in Arkansas if
the challenged restrictions were to take effect
(Id.). Plaintiffs further argue that defendants'
attempts to argue otherwise in their motion is undermined by
their motion for expedited discovery which contains various
discovery requests that are substantially similar to certain
requests served in Jegley (Dkt. No. 28, at 5).
Plaintiffs also note that defendants' discovery-related
motion includes requests relating only to the OBGYN
requirement (Id., at 7).
In
their present motion, defendants retort that
“Jegley does not overlap with this case beyond
the fact that they each present meritless, reflexive
challenges to Arkansas laws having something to do with
abortion.” (Dkt. No. 23, at 6). The Court disagrees. As
discussed above, the questions of law and fact raised by the
OBGYN requirement overlap with the issues of law and fact
decided by this Court in Jegley. The Eighth Circuit
Court of Appeals decision in Enterprise Bank v.
Saettele, 21 F.3d 233 (8th Cir. 1994), which is cited by
defendants, is clearly distinguishable. There, the Eighth
Circuit reversed the consolidation of two actions brought by
separate creditors against the same debtors. Id. at
236. In that case, “the only common factual threat
running through the lawsuits was the fact that the
[defendants] were defendants in both cases.”
Id. Here, plaintiffs have demonstrated that at least
some of the factual evidence in this case will be similar, if
not identical, to the factual evidence presented to the Court
in Jegley. Additionally, many of the parties in this
action are also parties in Jegley. Consolidation has
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