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June Medical Services LLC v. Gee

United States District Court, M.D. Louisiana

November 16, 2017




         Pursuant to the Court's Scheduling Order (Doc. 21), Defendants were permitted to file three separate motions to dismiss that addressed distinct sets of issues relating to the Louisiana Legislature's 2016 regulations on abortion. Before the Court are Defendants' First Motion for Partial Dismissal RE: H.B. 606, H.B. 1019, and H.B. 488 (Doc 27); Second Motion for Partial Dismissal RE: S.B. 33, H.B. 815, and H.B. 38 (Doc. 40); and Third Motion for Partial Dismissal RE: H.B. 1081 and Cumulative Impact Claim (Doc. 58). Defendants seek dismissal of Plaintiffs' claims that challenge certain laws enacted by the Louisiana Legislature during the 2016 Regular Legislative Session that place restrictions on abortion providers, patients, doctors, state and local government agencies, as well as private businesses that contract with the state. Plaintiffs in this suit are June Medical Services, LLC ("Clinic Plaintiff'), [1] which brings suit on behalf of its patients, physicians, and staff, and Drs. John Doe 1, John Doe 2, and John Doe 3 ("Doctor Plaintiffs"), who bring suit individually and on behalf of their patients. (Doc. 22 at pp. 1-2). Plaintiffs filed memoranda in opposition to the Motions, (see Docs. 38, 47, 63), and Defendants filed reply memoranda in support of the Motions, (see Docs. 39, 65). The Court conducted hearings on June 16, 2017, and October 2, 2017. (See Docs. 60, 79). For the reasons that follow, Defendants' Motions are GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         During the 2016 Regular Legislative Session, the Louisiana Legislature enacted several laws that address the provision of abortion services within the state: House Bill 606, enacted as Act 304 ("H.B. 606"); House Bill 1019, enacted as Act 563 C'H.B. 1019"); House Bill 488, enacted as Act 98 ("H.B. 488"); Senate Bill 33, enacted as Act 196 ("S.B. 33"); House Bill 815, enacted as Act 593 ("H.B. 815"); House Bill 386, enacted as Act 97 ("H.B. 386"); and House Bill 1081, enacted as Act 264 ("H.B. 1081"). Plaintiffs challenge the legislation both individually and collectively.

         A. H.B. 606

         H.B. 606 prohibits any "institution, board, commission, department, agency, official, or employee of the state, or of any local political subdivision thereof, " from "contract[ing] with, award[ing] any grant to, or otherwise bestow[ing] any funding upon, an entity or organization that performs abortions, or that contracts with an entity or organization that performs abortions, in th[e] state." (Doc. 22-7 at p. 2, 11. 17-20; id. at p. 3, 1. 1). This prohibition applies "to state funds, federal funds, and any other funds that may be used for purposes of contracting for services, providing reimbursements, or grant issuance." (Id. at p. 3, II. 2-3). The statute specifically provides that this prohibition "shall not be construed to restrict funding to an entity that may perform the following types of abortions, exclusively": (1) "[a]n abortion [that] is medically necessary to prevent the death of the mother, " (2) "[a]n abortion in a case when the mother is a victim of rape or incest, " or (3) "[a]n abortion performed when the pregnancy is diagnosed as medically futile." (Id. at p. 3, 11. 4-10) (emphasis added).

         Clinic Plaintiff alleges that H.B. 606 "threatens abortion clinics' contracts with government entities, " as well as "their business relationships with all of their vendors" because H.B. 606 "forces every entity in the State of Louisiana into the Hobson's choice of being eligible [either] to do business with, or receive funds from, the entire state and local public sector ... or ... to contract with abortion clinics." (Doc. 22 at ¶¶ 107-08). Setting aside the effects that Clinic Plaintiff alleges will result from H.B. 606's prohibition of awarding state contracts to entities that contract with abortion providers, Clinic Plaintiff asserts that H.B. 606 facially prohibits it from "contracting for essential services" from government entities. (Id. at ¶ 110). According to Clinic Plaintiff, the effect of H.B. 606 will be that "all [of] Louisiana's abortion clinics will close, " thereby depriving women in Louisiana of "access to legal abortion" in the State. (Id. at ¶ 109). Additionally, Clinic Plaintiff alleges that "H.B. 606 imposes a legal stigma on abortion clinics, isolating them by singling them out to Louisiana businesses as uniquely unqualified entities with whom to contract." (Id. at ¶ 111).

         B. H.B. 1019

         H.B. 1019 makes it unlawful "for any person to intentionally perform or attempt to perform an abortion of an unborn child of twenty or more weeks post-fertilization age" when that person has "knowledge that the pregnant woman is seeking the abortion solely because the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality." (Doc. 22-2 at p. 3, 11. 10-15). Further, the statute requires that all women seeking an abortion first be provided an informational document regarding fetal genetic abnormalities: H.B. 1019 makes it unlawful

for a person to intentionally perform or attempt to perform an abortion of an unborn child of less than twenty weeks post-fertilization age without first providing the pregnant woman with an informational document including resources, programs, and services for pregnant women who have a diagnosis of fetal genetic abnormality and resources, programs, and services for infants and children born with disabilities.

(Id. at p. 3, ll. 16-21). The statute directs the Louisiana Department of Health and Hospitals ("DHH") to develop this informational document. Pursuant to the statute, neither of these provisions shall apply "whenever the abortion is necessary [sic] to save the life of the mother." (Id. at p. 4, 11. 3-4).

         Plaintiffs challenge both the ban and the informational document. (Doc. 22 at ¶¶ 172-74). In reference to the prohibition on abortions performed after the fetus has reached a gestational age of twenty weeks when a physician has reason to believe that the woman is seeking the abortion due to actual or potential genetic abnormalities of the fetus, Plaintiffs allege that H.B. 1019 "criminalizes pre-viability abortion based solely on the reason [that] the woman is seeking the abortion." (Id. at ¶ 63). Regarding the requirement that all women seeking an abortion be given an informational document containing information about fetal genetic abnormalities, Plaintiffs assert that "[f]or the great majority of women seeking abortions, who have not had a diagnosis of fetal genetic abnormality, or whose pregnancy is medically futile, this information is irrelevant to their decision." (Id. at ¶ 71).

         C. H.B. 488

         Pursuant to H.B. 488, in order to lawfully perform an abortion in the State of Louisiana, a physician must be "board-certified in obstetrics and gynecology or family medicine or enrolled in a residency program for obstetrics and gynecology or family medicine." (Doc. 22-6 at p. 2, II. 12-14). If the physician is "enrolled in a residency program for obstetrics and gynecology or family medicine, " then that physician must be "under the direct supervision of a physician who is board-certified in obstetrics and gynecology or family medicine." (Id. at p. 2, 11. 13-16). Direct supervision, for purposes of the statute, means that "the physician must be present in the hospital, on the campus, or in the outpatient facility, and immediately available to furnish assistance and direction throughout the performance of the procedure, " but "[t]he physician need not be present in the room when the procedure is performed in order to maintain direct supervision." (Id. at p. 3, 11. 4-8). Under prior law, a physician could perform an abortion as long as he or she had "enrolled in or ha[d] completed a residency ... in obstetrics and gynecology or family medicine"; board certification in those disciplines was not required. (Id. at p. 2, 11. 12-13).

         Plaintiffs allege that "H.B. 488 limits, without medical justification, the pool of physicians eligible to perform abortion and thus makes it even more difficult for women to obtain abortion[s] in their own communities." (Doc. 22 at ¶ 102). Additionally, Plaintiffs assert that H.B. 488 "also limits, without medical justification, the pool of physicians the Clinic PlaintiffQ may hire to perform abortions." (Id.). According to Plaintiffs, H.B. 488 "reduces women's access to abortions in Louisiana by exacerbating the current shortage of physicians providing abortions in Louisiana, and it threatens the ongoing viability of Clinic PlaintiffQ by limiting [its] ability to replace departing physicians and to hire new ones." (Id.).

         D. S.B. 33

         S.B. 33 prohibits any person from "knowingly and for money[-]including but not limited to fees for storage or handling, any payments for reimbursement, repayments, or compensation, or any other consideration[-][b]uy[ing], sell[ing], receiving], or otherwise transfer[ing] or acquiring] a fetal organ or body part resulting from an induced abortion [or] [t]ransport[ing] with the intent to sell or otherwise transfer a fetal organ or body part resulting from an induced abortion." (Doc. 22-4 at p. 2, 11. 10-16). The provision also makes it unlawful for any person to "[transport a fetal organ or body part resulting from an induced abortion that has been acquired by any person via any [of the previously described] transaction[s]." (Id. at p. 2, 11. 17-18).

         Plaintiffs allege that "S.B. 33 prohibits] women who choose abortion from consenting to the donation of their fetal tissue for scientific research, " (Doc. 22 at ¶ 87), which "stigmatize[s]" them because the provision does not prohibit "women who have experienced a miscarriage" from donating their fetal tissue, (Id. at ¶ 143). Plaintiffs similarly aver that "S.B. 33 . .. stigmatizes and discriminates against physicians who perform abortions by providing among the harshest legal penalties-decades of imprisonment at hard labor-for disposing of an embryo or fetus in a manner that would be legal if produced through miscarriage." (Id. at ¶ 144).

         E. H.B. 815

         H.B. 815 requires "[e]ach physician who performs or induces an abortion [that] does not result in a live birth [to] insure that the remains of the child are disposed of... by interment or cremation." (Doc. 22-3 at p. 2, 11. 15-16, 18). The regulation that implements this provision requires a physician, prior to performing an abortion, "orally and in writing [to] inform the pregnant woman seeking an abortion . . . that the pregnant woman has . . . the option to make arrangements for the disposition and/or disposal of fetal remains by interment or cremation ... or ... the option to have the outpatient abortion facility/physician make the arrangements for the disposition and/or disposal of fetal remains by interment or cremation." La. Admin. Code tit. 48, § 4431(8)(b). Additionally, H.B. 815 makes it unlawful "for any person or entity to buy, sell, donate, accept, distribute, or otherwise transfer or use for any purpose the intact body of a human embryo or fetus whose death was knowingly caused by an induced abortion, or the human organs, tissues, or cells obtained from a human embryo or fetus whose death was knowingly caused by an induced abortion." (Doc. 22-3 at p. 4, 11. 8-12).

         Regarding the requirement that fetal remains be interred or cremated, Plaintiffs assert that H.B. 815 "on its face, bans medication abortion, a commonly used method of abortion in the first trimester, and the only one allowing a woman to pass a pregnancy at home, because an embryo miscarried at home through medication abortion cannot in practice be interred or cremated." (Doc. 22 at ¶ 6). Plaintiffs further allege that H.B. 815's prohibition on the sale, donation, acceptance, distribution, or transfer of fetal remains "irrationally den[ies] women who have had an abortion the ability to donate fetal tissue, and to determine how embryonic or fetal tissue will be disposed of while permitting women who have experienced a miscarriage to do so, " (id. at ¶ 142), thereby "stigmatiz[ing]" those women, (id. at ¶ 143).

         F. H.B. 386

         In essence, H.B. 386 increases-from twenty-four to seventy-two hours-the period of time that must elapse between a patient's receipt of various information and documents and a physician's performance of an abortion procedure on the patient ("waiting period"). (See, e.g., Doc. 22-5 at p. 5, 1. 22). "If the pregnant woman certifies in writing that she currently lives one[-]hundred[-]fifty miles or more from the nearest licensed outpatient abortion facility to her residence, " however, she must adhere to a twenty-four-hour waiting period. (Id. at p. 5, 11. 11-13). Plaintiffs allege that by increasing the waiting period from twenty-four to seventy-two hours, H.B. 386 "[d]elays . . . abortion care, . . . expos[ing] women to greater health risks associated with later abortions and longer pregnancies ... and increase[ing] anxiety, suffering, and expense." (Doc. 22 at ¶ 93).

         G. H.B. 1081

         H.B. 1081 makes it unlawful for "any person to intentionally perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless necessary to prevent serious health risk to the unborn child's mother." (Doc. 22-1 at p. 4, 11. 16-18). The provision graphically defines "dismemberment abortion" as any procedure in which a physician, "with the purpose of causing the death of an unborn child, . .. purposely dismember[s] a living unborn child and extract[s] him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps a portion of the unborn child's body to cut or rip it off or apart." (Id. at p. 3, 11. 16-21).

         Plaintiffs allege that H.B. 1081 prohibits "dilation and evacuation (["]D & E["]) procedures[2] without [fetal] demise, thus denying Louisiana women seeking second trimester abortions a safe and commonly used method, and requiring them to undergo an additional risky and invasive procedure." (Doc. 22 at ¶ 5). The ban that H.B. 1081 places on D & E procedures, according to Plaintiffs, "effectively depriv[es] women of access to abortion in Louisiana after about 15 weeks from their last menstrual period." (Id.).

         H. Cumulative Impact

         The laws passed during the 2016 Regular Legislative Session are just the latest in the Louisiana Legislature's aggressive regulation of abortion. Plaintiffs contend that the State's goal is a "regulatory system aimed at virtually every conceivable point of obstruction in abortion care delivery in Louisiana" with the intention that "access to legal abortion in Louisiana will become increasingly unavailable, until it does not exist in practice, while remaining legal in theory." (Id. at J 113). Therefore, Plaintiffs argue that the Court should consider the impacts of H.B. 606, H.B. 1019, H.B. 488, S.B. 33, H.B. 815, and H.B. 386, not individually, but collectively. (See id. at ¶ 159). According to Plaintiffs, the cumulative impact of the 2016 regulations "is greater than the [constitutional] violations imposed by each challenged restriction taken alone." (Id. at ¶ 158).


         A. Lack of Jurisdiction

         Under Federal Rule of Civil Procedure 12(b)(1), a claim is '"properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate' the claim." In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). In order to "prevent[ ] a court without jurisdiction from prematurely dismissing a case with prejudice, " a court should consider a Rule 12(b)(1) motion for lack of subject-matter jurisdiction before addressing any motions that concern the merits of a case. Id. at 286-87 (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). Article III of the United States Constitution grants federal courts the subject matter jurisdiction "to decide only actual cases or controversies." Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714-15 (5th Cir. 2012) (citing U.S. Const, art. Ill. § 2). "The justiciability doctrines of standing, mootness, political question, and ripeness 'all originate in Article Ill's "case" or "controversy" language."' Id. at 715 (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). "To establish standing, a plaintiff must prove that (1) he has sustained an 'injury in fact' that is both (a) 'concrete and particularized' and (b) 'actual or imminent, not conjectural or hypothetical, ' (2) there is 'a causal connection between the injury and the conduct complained of, ' and (3) a favorable decision is likely to redress the injury." Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 454 (5th Cir. 2017) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). "The injury-in-fact element requires that a plaintiff show that he or she 'has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical."' Roark & Hardee LP v. City of Austin, 522 F.3d 533, 542 (5th Cir. 2008) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)) (internal quotation marks omitted). "An allegation of future injury may suffice if the threatened injury is certainly impending or there is a substantial risk that the harm will occur." Planned Parenthood of Gulf Coast, Inc., 862 F.3d at 454 (quoting Susan B. Anthony List v. Driehaus, U.S., 134 S.Ct. 2334, 2341 (2014)). "[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, " however, "standing is not precluded, but it is ordinarily 'substantially more difficult' to establish, " Lujan, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984) abrogated on other grounds by Lexmark Int'l Inc. v. Static Control Components, Inc. ___ U.S. ___, 134 S.Ct. 1377 (2014)), because "[t]he existence of one or more of the essential elements of standing 'depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict, '" id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (Kennedy, J.)).

         A related, but distinct, issue of justiciability is ripeness. To determine whether a claim is ripe, the court must "balance '(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.'" Planned Parenthood of Gulf Coast, Inc., 862 F.3d at 456 (quoting Texas v. United States, 497 F.3d 491, 498 (5th Cir. 2007)). When only legal questions remain, a case is generally considered ripe for adjudication. Id. "[E]ven where an issue presents purely legal questions, " however, "the plaintiff must show some hardship in order to establish ripeness." Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000). "The Supreme Court has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being Torce[d] ... to modify [one's] behavior in order to avoid future adverse consequences."' Texas, 497 F.3d at 499 (quoting Oh. Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734 (1998)).

         B. Failure to State a Claim

         When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must "accept[ ] all well-pleaded facts as true and view[ ] those facts in the light most favorable to the plaintiff." Mines v. Alldredge,783 F.3d 197, 200-01 (5th Cir. 2015) (quoting True v. Robles,571 F.3d 412, 417 (5th Cir. 2009)). Even so, a complaint must be "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Although the complaint need not set out "detailed ...

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