June Medical Services LLC et al v. Caldwell et al
Filing
138
RULING AND ORDER granting in part and denying in part 87 Motion for Partial Summary Judgment. The Court finds as a matter of law that Act 620 is rationally related to a legitimate State interest; and therefore, Defendant's Motion for Partial Summary Judgment to eliminate Plaintiffs' claim of Act 620's medical unreasonableness as it pertains to Act 620's rational basis review is GRANTED. Defendant's Motion for Partial Summary Judgment is in all other respects DENIED. Signed by Judge John W. deGravelles on 5/12/2015. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUNE MEDICAL SERVICES, LLC, et al.
CIVIL ACTION
VERSUS
NO. 14-525-JWD-RLB
KATHY KLIEBERT, et al.
RULING AND ORDER
Before the Court is a Motion for Partial Summary Judgment filed by defendants Kathy
Kliebert and Mark Dawson. (Doc. 87). Plaintiffs oppose the motion. (Doc. 104). Defendants
have filed a Reply Brief. (Doc. 107). The Court has reviewed the briefs (Docs. 87, 104 and 107)
and heard and reviewed the oral argument of March 19, 2015. (Doc. 137). For the reasons which
follow, the motion is GRANTED in part and DENIED in part.
I.
BACKGROUND & PROCEDURAL HISTORY
Plaintiffs are June Medical Services, LLC d/b/a Hope Medical Group for Women
(hereinafter “Hope”), Bossier City Medical Suite (“Bossier”), Choice, Inc., of Texas d/b/a
Causeway Medical Clinic (“Choice”) and Drs. John Doe 1 and 2.1 Defendant is Kathy Kliebert
(“Kliebert”) sued in her official capacity as the Secretary of the Louisiana Department of Health
and Hospitals (“DHH”).2
1
A Protective Order (Doc. 24) was issued protecting the identity of all doctors performing abortions in Louisiana,
including those who are plaintiffs herein (Drs. Doe 1 and 2) and those who are not (Drs. Doe 3, 4, 5 and 6).
2
Secretary Kliebert was added as a defendant in an Amended Complaint. (Doc. 14). Since the filing of this motion,
Dr. Mark Dawson was dismissed based on a stipulation and Joint Motion and Order to Dismiss. (Docs. 110 and
111). In the original Complaint, Plaintiffs sued James David Caldwell in his official capacity as Louisiana Attorney
General and Dr. Jimmy Guidry his official capacity as Louisiana State Health Officer and Medical Director of DHH.
The Court dismissed both Caldwell and Guidry. (Doc. 31).
1
On August 22, 2014, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief
(Doc. 1) and an Application for Temporary Restraining Order and Motion for Preliminary
Injunction (Doc. 5) seeking to enjoin Defendants from enforcing Section (A)(2)(a) of La. House
Bill 388, Regular Session (La. 2014), Act 620 (hereinafter “Act 620" or the “Act”). (Doc. 5-2, p.
1). This Act is codified at La. Rev. Stat. § 40:1299.35.2. Section A(2)(a) requires every doctor
who performs abortions in Louisiana to have “active admitting privileges” at a hospital within 30
miles of the facility where abortions are performed. (Doc. 5-2, p. 3). While the Act contains
other requirements, this provision is the only one being challenged. (Doc 5-1, p. 8, n.1). Act 620
was signed into law on June 12, 2014. Its effective date was September 1, 2014. (Doc. 5-2, p. 6).
Plaintiffs Hope, Bossier and Choice are three of five licensed abortion clinics in
Louisiana. They are located in Shreveport, Bossier City and Metairie respectively. Drs. Doe 1
and 2 are two of six physicians performing abortions in Louisiana. Dr. Doe 1 performs abortions
at Hope. Dr. Doe 2 performs abortions at Bossier and Choice.
The Court issued a Temporary Restraining Order on August 31, 2014, enjoining Act 620
“until a hearing is held for the purpose of determining whether a preliminary injunction should
issue. Plaintiffs will continue to seek admitting privileges. The Act will be allowed to take effect
but Plaintiffs will not be subject to the penalties and sanctions allowed in the statute at this time
or in the future for practicing without the relevant admitting privileges during the application
process. Plaintiffs will be allowed to operate lawfully while continuing their efforts to obtain
privileges.” (Doc. 31, p. 18).
On September 19, 2014, a separate Complaint for Declaratory and Injunctive Relief was
filed by Women’s Health Care Center, Inc., Delta Clinic of Baton Rouge, Inc., Dr. John Doe 5
and Dr. John Doe 6 (referred to hereafter as “Women’s Health Plaintiffs”). (No. 3:14-cv-00597,
2
Docs. 1 and 5 respectively). These two cases were consolidated on September 24, 2014. (No.
3:14-cv-00597, Doc. 8)
All parties agreed in briefs and orally at a status conference held on September 30, 2014,
that significant discovery would need to be done to prepare for the hearing; therefore, the Court
set the preliminary injunction hearing for March 30, 2015. A Joint Proposed Scheduling Order
was submitted by the parties on October 8, 2014 (Doc. 49) and made the order of the Court on
October 21, 2014. (Doc. 56).
On November 3, 2014, following the addition of the Women’s Health Plaintiffs, this
Court issued an Order Clarifying Temporary Restraining Order of August 31, 2014 (Doc. 57) in
which, for the reasons given therein, the Court ruled that “It was and is the intention of this Court
that the TRO remain in effect as to all parties before it until the end of the Preliminary Injunction
Hearing.” (Doc. 57, at p.6).
On December 5, 2014, the Women’s Health Plaintiffs filed a Motion For Voluntary
Dismissal (Doc. 70), and with the consent of all remaining parties, the Court dismissed their suit
without prejudice on December 14, 2014. (Doc. 77). In light of that dismissal, the Court on
January 15, 2015, issued a Second Order Clarifying Temporary Restraining Order of August 31,
2014 (Doc. 84) in which it, for reasons explained therein, ruled that “the TRO of August 31,
2014 remains in force until the Preliminary Injunction hearing on March 30, 2015.”
On February 16, 2015, Defendants filed the present Motion for Partial Summary
Judgment (Doc. 87) and a briefing schedule on the motion was set. On February 24, 2015,
Defendants filed a Motion for Oral Argument on Motion for Partial Summary Judgment (Doc
90). On March 3, 2015, the Court granted that motion (Doc 92), and oral argument was set and
heard on March 19, 2015.
3
Based on a stipulation reached among the parties, a Joint Motion to Dismiss Defendant
Mark Dawson was filed on March 17, 2015 (Doc. 110) and granted the same day. (Doc. 111). On
March 20, 2015, the parties conferred with the Court and agreed to a continuance of the hearing
on the preliminary injunction until the week of June 22, 2015. (Doc. 129). The parties agreed that
the Temporary Restraining Order would remain in effect until the completion of the trial and
ruling on the merits of the preliminary injunction. (Doc. 129)
On April 1, 2015, oral argument was heard on motions in limine filed by the parties. In its
ruling (Doc. 136), the Court denied Plaintiffs’ Motion in Limine to Preclude Expert Testimony
of Dr. Tumulesh Solanky (Doc 96) and Defendant’s Motion to Exclude Expert Testimony of
Sheila Katz, Ph.D. (Doc. 99). Plaintiffs’ Motion in Limine to Preclude Expert Testimony of Dr.
McMillan (Doc. 97) was denied as moot. Because of their connection to Defendant’s Motion for
Summary Judgment, Defendant’s Motion in Limine to Exclude Irrelevant Evidence (Doc. 95)
and Plaintiffs’ Motion in Limine to Preclude Evidence of DHH Deficiency Reports and Related
Evidence (Doc. 98) were taken under advisement.
II.
CONTENTIONS OF THE PARTIES
In Plaintiffs’ Application for Temporary Restraining Order and Motion For Temporary
Restraining Order, Plaintiffs challenge Act 620 as an unconstitutional abridgment of their
patients’ right to an abortion guaranteed under the Fourteenth Amendment. (Doc. 5, p. 2).
Plaintiffs contend that Act 620 does not have a rational basis, and its purpose and effect is to
place an undue burden on the right of Louisiana women to receive an abortion. (Docs. 5, 5-1 and
102).
“[F]or more than forty years, it has been settled constitutional law that the Fourteenth
Amendment protects a woman’s basic right to choose an abortion.” Jackson Women’s Health
4
Org. v. Currier, 760 F.3d 448, 453 (5th Cir. 2014), petition for cert. pending, No. 14-997 (filed
February 19, 2015) (citing Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705 (1973)). The Supreme
Court has held that this right can be regulated by a state consistent with the state’s interest in
protecting potential life and health, but only if the regulation does not place an “undue burden”
on the basic right to terminate a pregnancy by abortion prior to the fetus’s viability. Planned
Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 877, 112 S. Ct. 2791 (1992) (plurality
opinion). An “undue burden . . . exists if a regulation’s ‘purpose or effect is to place a substantial
obstacle in the path of a woman seeking a[] [pre-viability] abortion.’” Gonzales v. Carhart, 550
U.S. 124, 146, 127 S. Ct. 1610 (2007) (quoting Casey, 505 U.S. at 878).
In addition to the “undue burden” test, abortion restrictions must pass rational basis
review. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (“Abbott II”),748
F.3d 583 (5th Cir. 2014), reh’g & reh’g en banc denied, 769 F.3d 330 (5th Cir. 2014); Currier,
760 F.3d at 453 (“In addition to creating no undue burden, an abortion restriction must pass a
rational basis test.”); see also Whole Woman’s Health v. Lakey, 769 F.3d 285 (5th Cir. 2014),
vacated in part, 135 S. Ct. 299 (2014).
The issue of whether the effect of Act 620 places an undue burden on a woman’s right to
an abortion is not raised in Defendant Kliebert’s Motion for Partial Summary Judgment.
Defendant concedes that the Preliminary Injunction hearing can properly consider the issue of
the Act’s effect. (Doc. 137, pp. 32-33). Rather, Defendant contends that she is entitled to
summary judgment on two specific claims made by Plaintiffs: 1) that Act 620 imposes a
medically unreasonable requirement, and 2) that Act 620 has the improper purpose of placing an
undue burden on abortion access in Louisiana. (Doc. 87-1, p. 7). Defendant argues that the Fifth
Circuit’s Abbott II and Currier decisions rejecting a rational review challenge to statutes similar
5
to Act 620 are binding on this Court and dispositive of these two claims (See, e.g., Doc. 87-1, pp.
9-10 (citing Abbott II, 748 F.3d at 594 and Currier, 760 F.3d at 454)).
Furthermore, Defendant argues that the rational review test applied by the Fifth Circuit,
although admittedly different from that used in other circuits (See, e.g., Planned Parenthood of
Ariz. v. Humble, 753 F.3d 905, 913 (9th Cir. 2014)), does not permit the introduction of evidence
of the kind that Plaintiffs believe creates a factual issue in this case. Defendant points to Abbott
II’s suggestion that the taking of evidence on the issue of rational review is unnecessary and
inappropriate. Abbott II, 748 F.3d at 596 (“[T]here is ‘never a role for evidentiary proceedings’
under rational basis review.” (quoting Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d
1124, 1127 (7th Cir. 1995))). Thus, Defendant argues, while there may be issues of fact, these
fact issues are no longer material to the Plaintiffs’ rational review challenge, and therefore
summary judgment should be granted in her favor as a matter of law. In conclusion, Defendant
argues that Currier and Abbott II “compel[] the conclusion that Louisiana Act 620 reasonably
furthers valid interests in protecting the safety of women who seek abortion.” (Doc 87-1 at p.
11).
As to Plaintiffs’ claim that Act 620 was passed with the unlawful purpose of placing an
undue burden on a woman’s right to an abortion, Defendant argues that this too is foreclosed by
Abbott II and Currier, both of which held that laws identical to Act 620 furthered valid interests.
(Doc. 87-1, p. 18). Defendant concedes that “[t]he Fifth Circuit has not clarified the relationship
between the rational basis inquiry and Casey’s purpose prong.” (Id.). However, Defendant posits
that “whether an abortion regulation furthers legitimate interests is highly relevant to whether the
regulation has a valid purpose under Casey.” (Id.). Therefore, “given [the] binding Fifth Circuit
precedent finding identical privileges laws from other states further . . . valid interests, it is
6
legally untenable for plaintiffs to argue that Act 620 has some other, hidden purpose that runs
afoul of Casey.” (Id.).
Plaintiffs argue that Act 620 is not rationally related to a legitimate state interest. (See,
e.g., Doc. 102, pp. 5-7; Doc. 104, pp. 7-10). They argue that, despite the holdings in Abbott II
and Currier, this Court must make an independent and “context–specific” examination of
whether Act 620 has a relationship to the State’s purported goals and must therefore “examine
the State[’s] . . . rationale informed by the setting and history of the challenged rule.” (Doc. 104,
p. 9 (quoting St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013), cert denied, 134 S.
Ct. 423 (2013))).
Plaintiffs believe that evidence regarding undue burden is relevant to and intertwined
with the rational basis review and that Plaintiffs’ proposed evidence raises a substantial question
of whether the admitting privileges requirement is reasonably designed to further the state’s
interest in women’s health or whether, to the contrary, it “would result in a net harm to women
seeking abortions.” (Doc. 104, p. 11). Because this evidence raises factual issues which are in
dispute, Plaintiffs argue that the Motion for Partial Summary Judgment should be denied.
Even if the rational review prong is foreclosed by Abbott II and Currier (which they
dispute), Plaintiffs contend that the evidence on the issue of “medical justification is crucial to
the undue burden analysis” because “[t]he undue burden standard, properly understood, is highly
fact-dependent and requires this Court to evaluate whether the particular law, in the factual
context in which it operates: (a) actually furthers a valid state interest, (b) has a valid purpose,
taking into account its practical operation and the fit between the means and the purported ends
of the restriction, and (c) places a substantial obstacle in the path of a woman seeking an
7
abortion.” (Id. at p. 6). Thus, argue Plaintiffs, “such evidence is crucial in the analysis of the
effects under the undue burden standard.” (Id. at p. 23).
III.
STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). If the mover bears his burden of showing that there is no genuine issue of
fact, “its opponent must do more than simply show that there is some metaphysical doubt as to
the material facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing
that there is a genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586–587, 106 S.Ct. 1348 (1986) (internal citations omitted). The non-mover's
burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations
and internal quotations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita
Elec. Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable [fact-finder] drawing all
inferences in favor of the nonmoving party could arrive at a verdict in that party's
favor, the court must deny the motion.
International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.1991).
The procedures in a Rule 65(a) preliminary injunction hearing are “less formal
and [the] evidence . . . is less complete than in a trial on the merits.” Jonibach Mgmt.
Trust v. Wartburg Enterprises, Inc., 750 F.3d 486, 491 (5th Cir. 2014) (quoting
University of Tex. v. Comenisch, 451 U.S. 390, 395, 101 S. Ct. 1830 (1981)). This less
8
formal standard is in accordance with the primary purpose of a preliminary injunction,
namely “to preserve the relative positions of the parties until a trial on the merits can be
had.” Id.; see also 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure §2947 (3d ed. 2013) (“[A] preliminary injunction is an
injunction that is issued to protect plaintiff from irreparable injury and to preserve the
court's power to render a meaningful decision after a trial on the merits.”).
IV.
DISCUSSION
Plaintiffs challenge Act 620 as unconstitutional on three broad grounds. First, under the
rational review prong of the Casey test, Act 620 does not serve a legitimate state interest. (Doc.
102, pp. 5-7). Second, the effect of Act 620 imposes an undue burden on the right of Louisiana
women to have an abortion. (Id. at 7-16). And third, the purpose of Act 620 is to create a
substantial obstacle to a Louisiana woman’s right to an abortion. (Id. at 16-19). Both sides agree
that the question of whether the effect of Act 620 creates an undue burden is properly before the
Court for consideration in the upcoming preliminary injunction hearing. In her Motion for
Summary Judgment, Defendant seeks to eliminate two discrete issues from consideration at the
hearing: 1) whether Act 620 imposes a medically unreasonable requirement, and 2) whether Act
620 has the improper purpose of placing an undue burden on abortion access in Louisiana. (Doc.
87-1, p. 7).
The essence of Defendant’s argument is that both issues were decided in Abbott II and
Currier, which are binding on this Court and require the granting of Defendant’s motion.
Further, Defendant argues that Plaintiffs have failed to offer admissible and relevant evidence in
support of their position that Act 620 has an improper purpose. The essence of Plaintiffs’
response is that: 1) Abbott II and Currier do not bind this Court on rational review because that
9
analysis is fact-specific and must be evaluated in the context of this specific statute as applied in
this specific state; 2) that medical justification is relevant to the issue of the statute’s alleged
undue burden; and 3) that medical justification is relevant to the statute’s purpose, an issue
related to but separate from rational basis or the statute’s effect, and one not addressed in Abbott
II or Currier.
A. Recent Fifth Circuit Precedent Governing Abortion Regulations
The Court must start with an evaluation of Abbott II, Currier and Lakey because, if
applicable to the issues of this case, this Court is bound to follow them.
i. Abbott II
Abbott II involved a challenge to two provisions of 2013 Texas House Bill No. 2 (“Texas
H.B. 2"). Abbott II, 748 F.3d 583. One of those provisions is similar to Act 620 in that it requires
a physician performing or inducing an abortion to have admitting privileges at a hospital no more
than thirty miles from the location where the abortion is provided. Abbott II, 748 F.3d at 587.3
Plaintiffs challenged the constitutionality of Texas H.B. 2 as a violation of patients’ substantive
due process rights, a violation of physicians’ procedural due process rights, an unlawful
delegation of authority to hospitals and as being impermissibly vague.
After a bench trial, the district court found parts of the admitting privileges requirement
unconstitutional as lacking a rational basis and placing an undue burden on a woman’s right to an
abortion and issued an opinion permanently enjoining that provision of the statute. Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 909 (W.D.
Tex. 2013), rev'd in part, 748 F.3d 583 (5th Cir. 2014). The State filed an emergency motion to
stay the district court’s injunction pending the resolution of the State’s appeal, which the Court
3
Texas H.B. 2 also mandates that the administration of abortion producing drugs comply with the protocol
authorized by the Food and Drug Administration, with limited exceptions. Abbott II, 748 F.3d at 587. There is no
comparable provision in Act 620. This opinion deals only with the admitting privileges issue.
10
of Appeals granted in part. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott
(“Abbott I”), 734 F.3d 406 (5th Cir. 2013). In a five-four decision, the Supreme Court refused to
vacate the Court of Appeals’ stay. Planned Parenthood of Greater Tex. Surgical Health Servs.
Of Greater Tex. v. Abbott, ___ U.S. ___, 134 S. Ct. 506 (2013).
On appeal of the district court’s judgment, the Fifth Circuit held that the issue of an
abortion regulation’s constitutionality is decided in two parts: it “must pass rational basis
review” and also must not place an undue burden on a woman’s right to an abortion. Abbott II,
748 F.3d at 590 (citing Gonzales, 550 U.S. at 158). In Abbott II, the plaintiffs challenged Texas
H.B. 2 as unconstitutional both facially and as-applied. Id. at 589. As to the facial challenge, the
Court noted that the “[s]tandard principles of constitutional adjudication require courts to engage
in facial invalidation only if no possible application of the challenged law would be
constitutional.” Id. at 588. However, the Court stated that “whether the Supreme Court applies
this rule in the same way in abortion cases as in others is uncertain.” Id. (“[A]n abortionregulating statute . . . fail[s] constitutional muster if it erect[s] an undue burden on women’s
decisions to choose abortion in a ‘large fraction’ of the cases.” (citing Casey, 505 U.S. at 895;
Gonzales, 550 U.S. at 168)).
In terms of sequencing, the Court said that “[t]he first-step of the analysis of an abortion
regulation . . . is rational basis review, not empirical basis review.” Abbott II, 748 F.3d at 596
(emphasis in original) (citing Gonzales, 550 U.S. at 158).4 As to this first-step, the Court
reversed the district court’s holding that the admitting privileges requirement failed rational basis
4
In Currier, the Fifth Circuit acknowledged that there is disagreement as to whether the rational review test is
independent from and precedes the undue burden test but found it unnecessary to resolve the dispute. Currier, 760
F.3d at 454. Lakey, however, clearly reaffirms Abbott II in what it calls the Fifth Circuit’s “two-step approach, first
determining whether the law at issue satisfies rational basis, then whether it places a substantial obstacle in the path
of a large fraction of women seeking abortions.” Whole Woman’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.
2014), vacated in part, 135 S. Ct. 299 (2014).
11
review. Abbott II, 748 F.3d at 591. The Court took issue with the district court’s conclusion
because it was based on the failure of the State to produce evidence that a rational relationship
existed between this requirement and improved patient care and the failure of the State to
produce evidence that the requirement “address[ed] issues of patient abandonment, hospital costs
or accountability.” Id. at 593-94. In support of its conclusion, the Court pointed to “the Supreme
Court’s oft-repeated guidance, that there is ‘never a role for evidentiary proceedings’ under
rational basis review.” Id. at 596 (quoting Nat’l Paint & Coatings Ass’n v. City of Chicago, 45
F.3d 1124, 1127 (7th Cir. 1995)).5 “[L]egislative choice is not subject to courtroom fact-finding.”
Abbott II, 748 F.3d at 594 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.
Ct. 2096 (1993)).
The Court set out a number of principles to observe in deciding whether abortion
regulation passes rational review, i.e. whether it is rationally related to a legitimate state interest.
The rational basis test seeks only to determine whether there is any conceivable basis for the
enactment. Abbott II, 748 F.3d at 594 (citing Beach Commc’ns, 508 U.S. at 313). A district court
should not relitigate the facts that led to the passage of the law. Abbott II, 748 F.3d at 594 (citing
Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637 (1993)). Rather, “[a] law based on rational
speculation unsupported by evidence or empirical data’ satisfies rational basis review.” Abbott II,
748 F.3d at 594 (quoting Beach Commc’ns, 508 U.S. at 315).
As to Plaintiffs’ contention that the Texas H.B. 2 had an impermissible purpose, the
Court found that the district court erred in placing the burden on the State to disprove improper
purpose. This, said the Court, is “plainly backwards.” Abbott II, 748 F.3d at 597 (the burden of
5
It is interesting, however, that the Court did discuss testimony and other evidence introduced at the trial in
connection with its conclusion that the law passed rational review by serving a medical purpose and that the thirty
mile geographic restriction requirement also passed rational review. Abbott II, 748 F.3d at 594-96 (“There is
sufficient evidence here that the geographic restriction has a rational basis.”).
12
proving the unconstitutionality of the abortion statute rests with the plaintiff (citing Mazurek v.
Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865 (1997))). The Court then found that the plaintiffs
produced no evidence to show that the admitting privileges requirement was passed to limit
abortions or for any other improper purpose. Abbott II, 748 F.3d at 597. Plaintiffs “did not attack
the State’s purpose at all. There is thus no basis for a finding of impermissible purpose under
Casey.” Id.
The Court also reversed the district court’s conclusion that the admitting privileges
requirement created an undue burden on the right of women to obtain an abortion. Id. Because
the effect prong of the undue burden test is not the subject of the motion before this Court, it is
not necessary to review the Court’s conclusions except that it found that the plaintiffs failed to
carry their burden of proof on the facts. Id. at 600 (“[T]he regulation will not affect a significant
(much less ‘large’) fraction of such women . . . .”).
ii. Currier
At issue in Currier was Mississippi House Bill 1390 (“Miss. H.B. 1390”) passed by the
Mississippi Legislature in April of 2102 which took effect in July of 2012. Jackson Women’s
Health Org. v. Currier, 760 F.3d 448, 450 (5th Cir. 2014), petition for cert. pending, No. 14-997
(filed February 19, 2015). Miss. H.B. 1390 requires that “[a]ll physicians associated with the
abortion facility must have admitting privileges at a local hospital and staff privileges to replace
local hospital on-staff physicians.” Id. The district court held that the statute created an undue
burden and therefore did not address the rational basis issue because to do so would be
“superfluous.” Currier, 760 F.3d at 454. The Fifth Circuit, “assum[ed] that a rational basis
review is a necessary first step.” Id. Acting on that assumption, the Fifth Circuit found that
13
because Abbott II held that “a virtually identical law” had a rational basis, “we are bound by that
precedent to accept that the Mississippi statute has a rational basis.” Id.
The Court then moved to whether the purpose or effect of the law created an undue
burden. Because the district court had not reached the “purpose inquiry,” and the parties did not
argue it, the Court did not consider or decide this prong of the test. Id. at 454-55. The district
court’s finding that the effect of the law would be to close Mississippi’s only abortion clinic was
not contested by the State. Id. at 452. The Court of Appeals affirmed the district court’s finding
that this effect created an undue burden and affirmed the preliminary injunction against the
enforcement of that portion of Miss. H.B. 1390.
iii. Lakey
In Lakey, Plaintiffs challenged the admitting privileges requirement of Texas H.B. 2 as
applied to two specific abortion clinics. Whole Woman’s Health v. Lakey, 769 F.3d 285 (5th Cir.
2014), vacated in part, 135 S. Ct. 299 (2014). In addition, they challenged the law’s requirement
that abortion clinics existing on or after September 1, 2014, comply with the same minimum
standards required of ambulatory surgical centers (hereinafter “ASC”). Id. at 290. The district
court held that, together, these two requirements “create[d] a brutally effective system of
abortion regulation” and issued a final judgment enjoining these two portions of the law and
others as to all abortion facilities in Texas. Id. at 289. Although Plaintiffs’ challenge to the
admitting privileges requirement was limited to an as-applied challenge, the district court held
that both the admitting privileges and the ASC provision were unconstitutional on their face. Id.
“To alleviate confusion and to fairly address the State’s emergency motion and the
Plaintiffs’ response, [the Court of Appeals] consider[ed] whether to stay injunctions of both the
admitting privileges requirement and the ambulatory surgical center provision on their face . . . .”
14
Id. at 292. As to the admitting privileges part of the law, the Court of Appeals found that the
State had shown a substantial likelihood of success on the merits and, therefore, granted the
State’s emergency motion for stay pending the resolution of the State’s appeal. Id. at 301.
In reaching its conclusion, the Court used what it called a “two-step approach,” applying
first a rational basis inquiry followed by an undue burden analysis. Id. at 297. As to the first step,
the Court reaffirmed its test for rational basis, stating that “if the State establishes that a law is
rationally related to a legitimate state interest, we do not second guess the legislature regarding
the law’s wisdom or effectiveness.” Id. at 294.
The Court then turned to the second step – the undue burden analysis. “The undue burden
inquiry looks to whether the challenged provision has either ‘the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ If it does, it
is unconstitutional.” Id. (emphasis in original) (quoting Casey, 505 U.S. at 877).
In evaluating the possible undue burden of the ASC requirement, the Court separately
considered “purpose” and “effect,” making the “purpose inquiry” first. Id. In reversing the
district court on the ASC provision, the Fifth Circuit emphasized that the district court “cited no
record evidence to support its determination that [this] provision was enacted for the purpose of
imposing an undue burden on women seeking abortions, nor did it make any factual finding
regarding an improper purpose.” Id. at 294-95 (emphasis added).
The Court then proceeded to examine the “effect” of the ASC provision. In doing so, it
reemphasized its uncertainty as to the proper test to measure the extent of the burden. Id. at 29596. While the general rule requires the plaintiff making a facial challenge to show that there is no
set of circumstances under which the statute could be held constitutional, “as we noted in Abbott
II, it is not clear whether the Supreme Court applies this general rule in abortion cases.” Id.
15
(citing Abbott II, 748 F.3d at 588). Thus, the Court measured the effect utilizing both the
traditional standard and what the Court saw as the standard used in Casey: a statute regulating
abortion will “fail constitutional muster if, ‘in a large fraction of the cases . . . it will operate as a
substantial obstacle to a woman’s choice to undergo an abortion.’” Id. at 296 (emphasis in
original) (quoting Casey, 505 U.S. at 895).6
The Fifth Circuit rejected the district court’s use of a test followed by other circuits
wherein the court measures the burden of the statute on a woman’s right to abortion by balancing
the efficacy of the provision against the burdens that it imposes. Id. at 296-97 (comparing
Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014) and Planned
Parenthood of Wisc., Inc. v. Van Hollen, 783 F.3d 786, 791-99 (7th Cir. 2013), with Abbott II,
748 F.3d at 593-94, 597, Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515
(6th Cir. 2012), Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) and Women’s
Health Center of W. Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989)); see also Lakey, 769
F.3d at 305 (“[O]ur circuit does not incorporate a balancing analysis into the undue burden
analysis.”). The Court also took issue with the district court’s failure to use the “large fraction”
test. Lakey, 769 F.3d at 298.
As to the admitting privileges requirement, the Court found that the unconstitutional asapplied challenge was likely barred by res judicata because the plaintiffs “could have brought,
but chose not to bring, as-applied challenges” in their suit. Id. at 301. In dicta, the Court found
that State was likely to succeed in proving that the effect of this and the ASC provisions had not
produced an undue burden on a woman’s right to an abortion as applied to the McAllen, Texas,
6
In Judge Higginson’s separate concurring and dissenting opinion, he notes that Casey invalidated the spousalnotification statute because it would prevent a “significant number” as well as a “large fraction” of women from
obtaining an abortion. Lakey, 769 F.3d at 308 (Higginson, J., concurring in part and dissenting in part) (citing Casey,
505 U.S. at 893-95).
16
clinic but had not so proved that likelihood of success regarding the El Paso clinic. Id. at 302-04.
In its review of the undue burden of the admitting privileges provision, the Court did not engage
in a separate “purpose inquiry.”
B. Analysis
In applying these principles to the case at hand, the Court notes that unlike any of the
cases previously discussed, this is a motion for partial summary judgment.7 As such, the burden
is on mover, Defendant Kliebert, to show that there is no material issue of fact and that she is
entitled to judgment on her motion as a matter of law.
Defendant contends that she is entitled to summary judgment on two specific claims
made by Plaintiffs: 1) that Act 620 imposes a medically unreasonable requirement, and 2) that
Act 620 has the improper purpose of placing an undue burden on abortion access in Louisiana.
(Doc. 87-1, p. 7). The two are related and therefore analyzed together.
The admitting privileges requirement of Act 620 is substantially similar to both Texas
H.B. 2 and Miss. H.B. 1390. To the extent that Plaintiffs contend that Act 620 is not rationally
related to a legitimate state interest because it is medically unreasonable or unnecessary, this
Court is bound by the Fifth Circuit’s previous rulings in Abbott II, Currier and Lakey. Abbott II,
Currier and Lakey make clear that the admitting privileges provision in Act 620 passes rational
basis review. Abbott II, 748 F.3d at 599-600; Currier, 760 F.3d at 454; Lakey, 769 F.3d at 293.
Plaintiffs argue, however, that Fifth Circuit jurisprudence allows for the introduction of
evidence to negate the statute’s alleged rational basis in the context of this specific statute. (Doc.
104, p. 9 (“[A]lthough rational basis review places no affirmative evidentiary burden on the
government, plaintiffs may nonetheless negate a seemingly plausible basis for the law by
7
Abbott II was an appeal from a trial on the merits. Abbott II, 748 F.3d at 587-88. Currier was an appeal from a trial
in which the district court granted a preliminary injunction. Currier, 760 F.3d at 451. And Lakey was an emergency
motion to stay the district court’s injunctions following a four day trial. Lakey, 769 F.3d at 289, 298.
17
adducing evidence of irrationality.… [T]he State[‘s] … chosen means must rationally relate to
the state interests …. Our analysis does not proceed with abstraction for hypothesized ends[,] and
means do not include post hoc hypothesized facts. Thus, we will examine the State[‘s] …
rationale informed by the setting and history of the challenged rule.”) (quoting St. Joseph’s
Abbey v. Castille, 712 F.3d 215, 233 (5th Cir. 2013), cert. denied, 134 S. Ct. 423 (2013))).
But in considering the similar Mississippi statute, the Court of Appeals in Currier held
that,
[O]ur court in Abbott [II] has addressed the rational basis of a virtually identical
law, and we are bound by that precedent to accept that the Mississippi statute has
a rational basis.… [W]e … held that the Texas regulation satisfied a rational basis
review because it was based on the rational speculation that it would ‘assist in
preventing patient abandonment’ by the doctor providing the abortion. We see no
basis for distinguishing the rational basis of [Mississippi] H.B. 1390. None of the
other rationales discussed in Abbott [II] was state specific, and each would be
equally applicable to H.B. 1390. Accordingly, we hold that H.B. 1390 satisfies the
rational basis review upon our binding precedent in Abbott [II].
Currier, 760 F.3d at 454 (footnote omitted).
This Court is likewise bound by this precedent and therefore finds that Act 620 passes
rational basis review. Accordingly, Defendant’s Motion for Partial Summary Judgment is
granted in part. The issue of medical reasonableness – as it pertains to the issue of Act 620’s
rational review – is decided as a matter of law.
Rational basis review, however, is only one part of the test for constitutionality. The
statute must not place an undue burden on a woman’s right to an abortion. “The undue burden
inquiry looks to whether the challenged provision has either ‘the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ If it does, it
is unconstitutional.” Lakey, 769 F.3d at 294 (emphasis in original) (quoting Casey, 505 U.S. at
877).
18
Plaintiffs contend that the statute’s alleged medical unreasonableness is relevant to the
undue burden question. (e.g., Doc. 104, pp. 10-11). They also argue that the statute’s purpose is
an integral part of the undue burden analysis, that the purpose inquiry is fact sensitive and that it
is informed by, among other fact issues, the question of whether the statute is medically
necessary or medically unreasonable. (Id.). Plaintiffs’ contested factual issues are listed in Doc.
104-1, pp. 2-16. Plaintiffs also point the Court to the evidence attached to their opposition (a
listing of these exhibits is found at Doc. 104-2).
Defendant argues the issue of medical necessity is relevant only to the rational basis
inquiry, which has been decided by Abbott II. (Doc. 87-1, p. 7). Further, Defendant contends that
while “[t]he Fifth Circuit has not clarified the relationship between the rational basis inquiry and
Casey’s purpose prong.… Abbott II’s statements on that issue are dicta.” (Doc 87-1, p. 18 and p.
18, n.2). She argues that Abbott II’s holding that the admitting privileges statute furthered a
legitimate state interest is “highly relevant to whether the regulation has a valid purpose under
Casey.” (Id.). In any event, Defendant points to the exhibits attached to its motion showing Act
620’s legislative history (a listing of these exhibits is found at Doc. 87-1, p. 2). Defendant
contends that the Plaintiffs have not offered sufficient admissible evidence to raise a material
issue of fact regarding any alleged improper purpose. (Doc. 107, pp. 7-11).
In resolving these issues, the Court is required to follow the test set out in Abbott II,
Currier and Lakey. While Plaintiffs urge this Court to apply the undue burden balancing test
used by other circuits in such cases as Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905,
914 (9th Cir. 2014), Planned Parenthood of Wisc., Inc. v. Van Hollen, 783 F.3d 786, 791-99 (7th
Cir. 2013), Planned Parenthood Se, Inc. v. Strange, 33 F. Supp. 3d 1330, 1338-39 (2014), Lakey
specifically rejected this test. Lakey, 769 F.3d 296-97, 305. Applying the Fifth Circuit test, the
19
Court finds that there are questions of material fact which preclude granting Defendant’s Motion
for Partial Summary Judgment in its entirety.
Abbott II instructs that the rational basis review is conducted without evidence. Abbott II,
748 F.3d at 596 (“[T]here is ‘never a role for evidentiary proceedings’ under rational basis
review.”) (quoting Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1127 (7th
Cir. 1995)).8 “[L]egislative choice is not subject to courtroom fact-finding.” Abbott II, 748 F.3d
at 594 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315, (1993)). While the Court
agrees with the Defendant that there may be some lack of clarity in the Fifth Circuit’s view of the
relationship between the rational basis and purpose prong of the test, it is clear that the Fifth
Circuit treats these prongs separately and that, as to the latter, proof is allowed and, indeed,
required.
After having held that Texas H.B. 2 was rationally related to a legitimate state interest,
the Lakey Court then turned to the separate and distinct “purpose inquiry.” Lakey, 769 F.3d at
294. It is instructive to this Court that Lakey did not consider its holding that the statute passed
rational basis review as dispositive of whether the statute had a legitimate purpose under Casey.
Indeed, in evaluating the possible undue burden of the ambulatory surgical center requirement,
the Court separately considered “purpose” and “effect,” first making the “purpose inquiry.” Id. In
reversing the district court, the Fifth Circuit emphasized that the district court “cited no record
evidence to support its determination that [this] provision was enacted for the purpose of
imposing an undue burden on women seeking abortions, nor did it make any factual finding
regarding an improper purpose.” Id. at 294-95 (emphasis added).
8
It is interesting, however, that the Court pointed to testimony and other evidence introduced at the trial to bolster
its conclusion that the thirty mile geographic restriction requirement passed rational review. Abbott II, 748 F.3d at
595-96 (“There is sufficient evidence here that the geographic restriction has a rational basis.”).
20
Abbott II also separated the purpose prong of the undue burden test from the rational
basis review. It noted that “plaintiffs offered no evidence implying that the State enacted the
admitting privileges provision in order to limit abortions; in fact, as their reply brief states, they
did not attack the State’s purpose at all.” Abbott II, 748 F.3d at 597.
This Court draws three conclusions from the approach taken in Abbott II and Lakey to the
purpose inquiry: first, that the purpose inquiry is separate and distinct from the rational basis
review; second, the fact that a statute passes the rational basis review does not, by itself, answer
the question of whether it has a legitimate purpose for purposes of measuring undue burden; and
finally, the purpose inquiry is fact sensitive and a plaintiff challenging a statute on this basis
must offer evidence in order to prevail. The question here is whether the evidence offered by
Plaintiffs in opposition to Defendant’s Motion for Partial Summary Judgment is sufficient to
raise issues of material fact so as to require the denial of the motion. This begs the question of
what kind of evidence the Court can consider for purposes of the present motion and the
preliminary injunction hearing.
In answering this question, we get little help from Abbott II, Lakey and Currier. In Lakey,
the Court found that as to the ASC requirement, Plaintiffs had offered no evidence on the
purpose issue. Lakey, 769 F.3d at 299, n.15. As to the admitting privileges provision, the Lakey
Court did not separately consider the purpose inquiry but, in evaluating the evidence introduced
at preliminary injunction trial, found that the State was likely to ultimately win on both
requirements as to the McAllen clinic but not as to the El Paso clinic. Id. at 303-04. In Currier,
“[t]he district court did not reach the purpose inquiry, and the parties [did] not address it [on
appeal].” Currier, 760 F.3d at 455. In Abbott II, the Court found that “plaintiffs offered no
evidence implying that the State enacted the admitting privileges provision in order to limit
21
abortions; in fact, as their reply brief states, they did not attack the State’s purpose at all.” Abbott
II, 748 F.3d at 597. All three decisions were rendered not at the summary judgment stage, as in
the present case, but after a preliminary injunction trial where testimony and evidence were
presented and weighed by the district court.
Defendant concedes that the Fifth Circuit “has not clarified the relationship between the
rational basis inquiry and Casey’s purpose prong” (Doc. 87-1, p. 18), but argues that in finding
that Act 620 furthers a legitimate state interest, Abbott II has answered the purpose inquiry and
finally determined that the statute has a valid purpose (Id. at pp. 13, 17-18). To the extent that the
purpose inquiry has not already been decided by Abbott II, Defendant contends in the alternative
that the only relevant evidence of the statute’s purpose is the language of the statute, its
legislative history and its furtherance of a legitimate state interest, (Id. at pp. 19-22) and that
evidence offered by Plaintiffs to show an improper purpose is irrelevant or, at the very least,
insufficient, to overcome Act 620’s legislative text and history for purposes of the summary
judgment motion. (Id. at pp. 9-13, 22-24).
Plaintiffs argue that the Court must consider the following kinds of evidence in
determining whether Act 620's purpose is to place a substantial obstacle in the path of a woman
seeking an abortion: 1) evidence that the Act will have the effect of creating this substantial
obstacle (i.e. evidence of its effect is relevant to its purpose) (Doc. 104, p. 14); 2) evidence of the
lack of medical necessity of Act 620, the Plaintiffs again arguing that this informs the question of
the Act’s effect and purpose (Doc. 104, pp. 10-11, 23); and 3) evidence regarding the
circumstances of the Act 620's creation and passage. (Doc. 104, pp. 22-23)
In deciding the scope of evidence which is relevant to the purpose (as well as the effect)
prong of the undue burden summary judgment analysis, this Court is bound by this circuit’s
22
rejection of the undue burden balancing test used by other circuits. Lakey, 769 F.3d at 296-97,
305. Therefore, this Court follows only the test set forth in Abbott II, Currier and Lakey.
In her Motion for Partial Summary Judgment, Defendant does not challenge the right of
Plaintiffs to offer evidence on the “effect” prong of the undue burden analysis. Therefore, the
effect of Act 620 will clearly be an issue at the trial of the preliminary injunction, and evidence
on the issue of the Act’s effects, if any, on a woman’s right to an abortion will be admissible and,
indeed, extremely important to the outcome of the trial. That inquiry will necessarily be fact
specific to Louisiana, and this Court will obviously not be bound by any factual findings on how
the similar statutes in Texas and Mississippi affected the women in those states. Clearly, the
factual differences on this question can lead to very different legal results on the constitutional
question. Compare Abbott II, 748 F.3d 583 and Lakey, 769 F.3d 285 with Currier, 760 F.3d 488.
And while Defendant argues that the “purpose inquiry” is foreclosed or, at the very least,
the evidence on this issue should be limited to the statute’s text and legislative history, the Court
agrees with the Plaintiffs that other kinds of evidence may also inform this inquiry. In Okpalobi
v. Foster, 190 F.3d 337, 337, 354-56 (5th Cir. 1999), superseded on other grounds on rehearing
en banc, 244 F.3d 405 (5th Cir. 2001), the Court addressed the issue of the “type of inquiry lower
courts should undertake to determine whether a regulation has the ‘purpose’ of imposing an
undue burden on a woman’s right to seek an abortion.” Okpalobi, 190 F.3d at 354. The Court
found that a district court is “not to accept the government’s proffered purpose if it is a mere
‘sham.’” Id. (quoting Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987)), and can look to
“various types of evidence, including the language of the challenged act, its legislative history,
23
the social and historical context of the legislation, or other legislation concerning the same
subject matter as the challenged measure.” Id.9
Furthermore, evidence of the effect of the statute is relevant not only to the “effect
prong,” but also relevant, albeit indirectly, to the purpose inquiry. If for instance, after hearing
the evidence, this Court concludes that the effect of Act 620 produces no undue burden, this
finding would not necessarily be dispositive of whether the Act’s purpose is legitimate. This
finding, however, would certainly be relevant and support the argument that there was no
improper purpose. The converse is also true. Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 535, 113 S. Ct. 2217 (1993) (“[T]he effect of a law in its real operation is
strong evidence of its object.”).
The same rationale applies with respect to evidence of the alleged lack of medical
reasonableness of the admitting privileges requirement. If after hearing evidence on this issue,
this Court were to conclude as a matter of fact that the admitting privileges requirement is
medically reasonable, this finding would certainly inform and support (albeit indirectly) a
finding that the statute has a legitimate purpose. And the converse is also true.10
The Court in Abbott II discussed evidence presented by the State to the Texas Legislature
and at trial in support of the State’s argument that the admitting privileges requirement was
medically reasonable. Abbott II, 748 F.3d at 594-95. But this evidence was considered by the
Court in the context of its rational basis inquiry which asks only whether the law, “‘based on
rational speculation[,] unsupported by evidence or empirical data[,]’ satisfies rational basis
9
See also, Roy G. Speece, Jr., The Purpose Prong of Casey’s Undue Burden Test and Its Impact on the
Constitutionality of Abortion Insurance Restrictions in the Affordable Care Act Or Its Progeny, 33 Whittier L. Rev.
77, 99, where, reviewing Okpalobi and other cases, the author lists a “broad array of factors” considered by courts to
determine purpose, including “a bill’s social and historical context.”
10
The Court again emphasizes that it finds these matters relevant not for purposes of weighing the severity of the
obstacle against the state’s justification for passing the law, but rather, as bearing simply on the question of the
statute’s purpose.
24
review.” Id. at 594 (emphasis added). Given the Abbott II Court’s emphatic insistence that “there
is never a role for evidentiary proceedings under rational basis review,” its finding relative to
medical reasonableness in the context of rational review does not foreclose this Court’s fact
based examination of this issue for the separate and distinct “purpose inquiry.”
On this issue of purpose, like the issue of effect, the parties have attached evidence to the
motion and opposing memoranda which points in very different directions. For this reason, the
Court finds that there are material issues of fact as to the statute’s purpose as it relates to the
undue burden inquiry. There are also issues of fact as to the Act’s medical reasonableness as it
relates to the purpose and effect prongs of the undue burden test. Therefore, summary judgment
on the issue of purpose and medical reasonableness, as it pertains to both the purpose and effect
prongs of the undue burden test, is inappropriate and is denied.
V.
Conclusion
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed by Defendants Kathy
Kliebert, is GRANTED IN PART. The Court finds as a matter of law that Act 620 is rationally
related to a legitimate State interest; and therefore, Defendant’s Motion for Partial Summary
Judgment to eliminate Plaintiffs’ claim of Act 620’s medical unreasonableness as it pertains to
Act 620’s rational basis review is GRANTED. Defendant’s Motion for Partial Summary
Judgment is in all other respects DENIED.
Signed in Baton Rouge, Louisiana, on May 12, 2015.
S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
25
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