United States District Court, M.D. Louisiana
JUNE MEDICAL SERVICES, LLC, ET AL.
REBEKAH GEE, ET AL.
RULING AND ORDER
A. JACKSON; CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is the Motion to Dismiss (Doc. 22)
filed by Defendants, Secretary Rebekah Gee and District
Attorney James E. Stewart, Sr., in their official capacities.
Plaintiffs filed an opposition to this motion (Doc. 32), to
which Defendants replied (Doc. 35). The Court held oral
arguments on January 30, 2018. (See Doc. 56). For the
following reasons, the motion is GRANTED IN
PART and DENIED IN PART.
to Plaintiffs, access to abortion has withered in Louisiana
since 2001. Eight abortion clinics have closed, and only
three remain. (Doc. 1 ¶¶ 191, 201-02). Today, there
are approximately 312, 000 reproductive-aged women for each
clinic in the State, one of the lowest ratios in the entire
nation. (Id. at ¶ 203). While access to this
constitutionally protected right has steadily declined, the
number of laws governing abortions and abortion providers
have drastically increased.
passed in 2001, the Outpatient Abortion Facility Licensing
Laws ("OAFLL") govern the personnel, internal
policies, facility, reporting, recordkeeping, and licensing
of clinics that perform abortion services. (Id. at
¶¶ 4, 50). The Louisiana Legislature substantially
revised OAFLL in 2010, and major regulations have been
enacted pursuant to the statute, most notably in 2012, 2013,
2015, 2016 and 2017. (Id. at ¶¶ 53, 61,
71, 74-75, 77, & 87). Today, OAFLL and its accompanying
regulations place over 1, 000 individual requirements on
outpatient abortion clinics. (Id. at ¶ 23).
Importantly, one of these laws allows for the warrantless
inspection of abortion clinics. (Id. at ¶ 103).
OAFLL also empowers the secretary of the Louisiana Department
of Health ("LDH") to suspend immediately a
clinic's license for any violation of OAFLL, its
regulations, or any other federal or State law or regulation.
(Id. at ¶ 101).
addition to OAFLL, which regulates abortion clinics,
Louisiana has passed several statutes that purportedly govern
the safety of doctors that perform abortions and their
patients. (Id. at ¶ 26). Plaintiffs challenge
twelve specific statutory provisions in their complaint: La.
Rev. Stat. § 14:32.9 (criminalizing abortions by
non-licensed physicians); § 14:32.9.1 (criminalizing
dismemberment abortion); § 40:1061.10(A)(1) (setting
qualifications for physicians who perform abortions); §
40:1061.10(D)(1) (requiring that the physician performing the
abortion to also perform the mandatory pre-abortion
ultrasound); § 40:1061.11 (requiring that the physician
who prescribes abortion drugs be in the room when they are
first administered); § 40:1061.16(B) (requiring the
provision of printed materials to women at least seventy-two
hours prior to an abortion); § 40:1061.16(C) (mandating
that the printed materials be provided individually, in a
private room, and that the abortion clinic keep records
concerning women who receive the materials); §
40:1061.17(B) (setting forth informed consent requirements
that allegedly include false or misleading information);
§ 40:1061.17(C)(8) (requiring a "prominent
link" to LDH's abortion alternatives and informed
consent website on abortion clinics' webpages); §
40:1061.17(G) (requiring physicians to report all women who
receive informed consent information to the State); §
40:1061.19 (mandating the retention of certain records); and,
§ 40:1061.21 (reporting requirements for all abortions
in this case are June Medical Services, LLC d/b/a Hope
Medical Group for Women ("Clinic Plaintiff')-on
behalf of its patients, physicians, and staff- and six
doctors who perform abortions ("Doctor
Plaintiffs"). (Id. at ¶¶ 13-17). They
challenge the Louisiana abortion laws-as applied-on three
grounds. First, Plaintiffs claim that the challenged laws and
regulations violate their substantive due process rights by
placing an undue burden on women seeking an abortion. Second,
Plaintiffs claim that the State's power to suspend
immediately a clinic's license for any violation of state
or federal law violates their procedural due process rights.
Third, Plaintiffs allege that the warrantless search
provision violates their Fourth Amendment right to privacy.
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 u. United States, 960 F.2d 19, 21 (5th Cir.
III of the United States Constitution grants federal courts
the subject matter jurisdiction "to decide only actual
cases or controversies." Choice Inc. of Texas v.
Greenstein, 691 F.3d 710, 715 (5th Cir. 2012). "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 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. u. Gee, 862 F.3d 445, 456 (2017)
(quoting Texas v. United States, 497 F.3d 491, 498
(5th Cir. 2007)). When only legal questions remain, a case is
generally 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 type
of hardship necessary to confer standing includes "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 'force[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)).
Failure to State a Claim
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." BellAtl 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 factual allegations, " it must set forth
something "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action." Twombly, 550 U.S. at 555.