June Medical Services LLC et al v. Caldwell et al

Filing 31

ORDER granting 5 Motion for Temporary Restraining Order to the extent that any enforcement of § A(2)(a) of Act 620, amending La. R.S. 40:1299.35.2, is enjoined until a hearing is held for the purpose of determining whether a preliminary injun ction 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 w ithout the relevant admitting privileges during the applications process. Plaintiffs will be allowed to operate lawfully while continuing their efforts to obtain privileges. Plaintiffs Application for a Preliminary Injunction will remain pending. A ll parties indicated at the TRO Hearing that, if a TRO was granted, additional time was needed to conduct discovery and prepare for the hearing on the preliminary injunction. Thus, in accordance with Fed. R. Civ. P. 65(b)(2), a status conference will be set no later than 30 days hence for the purpose of receiving a status report regarding the pending applications for admitting privileges, determining the amount of time needed by the parties to prepare for the hearing on the preliminary injunctio n, setting a date for the preliminary injunction hearing, discussing the scope of the issues and nature of the proof which will be presented and discussing all additional issues which the parties and the Court deem relevant. The Court understands tha t the events in this case are fluid. Should circumstances change, the parties are free to seek any other relief as they may deem appropriate. Given the nature of the relief sought and because there is no risk of monetary loss to the defendant by virt ue of the granting of this injunction, it is unnecessary for Plaintiffs to post a bond in this matter...IT IS FURTHER ORDERED that 16 Motion to Dismiss Louisiana State Health Officer and Medical Director, Dr. Jimmy Guidry, is granted and Dr. Jim my Guidry is hereby DISMISSED..IT IS FURTHER ORDERED that the Motion to Dismiss filed by Defendant Attorney General James David Caldwell is hereby GRANTED and Louisiana State Health Officer and Medical Director, Dr. Jimmy Guidry, is hereby DISMISSED... Signed by Judge John W. deGravelles on 08/31/14. (KDC) Modified on 8/31/2014 (KDC).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUNE MEDICAL SERVICES, LLC
d/b/a HOPE MEDICAL GROUP FOR WOMEN,
on behalf of its patients, physicians, and staff;
BOSSIER CITY MEDICAL SUITE, on behalf of
its patients, physicians, and staff;
CHOICE, INC., OF TEXAS d/b/a CAUSEWAY
MEDICAL CLINIC, on behalf of its patients,
physicians, and staff; JOHN DOE 1, M.D.
and JOHN DOE 2, M.D.

CIVIL ACTION

VERSUS
JAMES DAVID CALDWELL, in his official
capacity as Attorney General of Louisiana;
JIMMY GUIDRY, in his official capacity as
Louisiana State Health Officer & Medical
Director of the Louisiana Department of Health
and Hospitals; and MARK HENRY DAWSON,
in his official capacity as President of the
Louisiana State Board of Medical Examiners

NO.: 3:14-cv-00525-JWD-RLB

TEMPORARY RESTRAINING ORDER
Before the Court is Plaintiffs’ 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. Plaintiffs’ Application is filed in
accordance with Fed. R. Civ. P. (“Rule”) 65 and this Court’s Local Rules, see M.D. La. LR65.
Defendants oppose Plaintiffs’ Application. (Docs. 17, 18, 19, 20.)
For reasons explained below, the Court GRANTS Plaintiffs’ Application for Temporary
Restraining Order as to Defendants Kathy Kleibert and Dr. Mark Henry Dawson to the extent that
any enforcement of § A(2)(a) of Act 620, amending La. R.S. 40:1299.35.2, is enjoined 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 applications process.
Plaintiffs will be allowed to operate lawfully while continuing their efforts to obtain privileges.
In accordance with Rule 65, this Temporary Restraining Order shall be effective as of
Sunday, August 31, 2014, 11:59 p.m. and shall remain pending until the hearing on Plaintiffs’
Motion for Preliminary Injunction. See Fed. R. Civ. P. 65(b)(2)-(3).
Plaintiffs’ Motion for Preliminary Injunction is DEFERRED. A status conference to monitor
the progress of Plaintiffs’ applications and set a hearing date for the preliminary injunction shall be
held on a date to be set by the Court not longer than 30 days following the issuance of this Order.
For the reasons set forth below, the Motion to Dismiss filed by Defendant Attorney General
James David Caldwell is hereby GRANTED and Louisiana State Health Officer and Medical
Director, Dr. Jimmy Guidry, is hereby DISMISSED.
I.

Facts, Procedural History and Contentions of the Parties
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. Defendants are James David “Buddy”
Caldwell, sued in his official capacity of the Attorney General of Louisiana; Dr. Jimmy Guidry,
sued in his official capacity as the Louisiana State Health Office and Medical Director; Kathy
Kliebert sued in her official capacity as the Secretary of the Louisiana Department of Health and
Hospitals (“DHH”);1 and Dr. Mark Dawson, sued in his official capacity as the President of the
Louisiana State Board of Medical Examiners (“Board”).

1

Secretary Kliebert was added as a defendant in an Amended Complaint. (Doc. 14.)

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 this Act contains other requirements,
this provision is the only one being challenged. (Doc 5-1, p. 8, note 1.) Act 620 was signed into law
on June12, 2014. Its effective date is 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 3 perform
abortions at Hope, Dr. Doe 2 performs abortions at Bossier and Choice and Dr. Doe 4 performs
abortions at Choice.2
Plaintiffs allege that, following June 12, 2014, the date the Act was signed into law by the
Governor, Drs. Doe 1, 2 and 4 applied for admitting privileges at nearby hospitals in an effort to
comply with the Act. However, their applications are pending and, because the admission process
can take several months, there will have been no action taken on the applications at the time Act 620
becomes effective on September 1, 2014. Dr. Doe 3 has admitting privileges at a hospital within
30 miles of where he performs abortions but claims that, if the applications of Drs. 1, 2 and 4 are
denied and he is the only physician performing abortions at any of the three facilities, he will
discontinue performing abortions due to fears for his personal safety.

2

Drs. Doe 1 and 2 are plaintiffs; Drs. Doe 3 and 4 are not. A Protective Order was issued
protecting the identity of these doctors. (Doc. 24.)

Because it is impossible for Drs. 1, 2 and 4 to comply with the admitting privileges
requirement before the Act’s effective date, they allege that, without an order enjoining enforcement
of the Act, they will be exposed to a $4,000 per violation penalty3 and possible suspension or
revocation of their medical licenses by the Board4 despite the fact that they are attempting to comply
with the Act. Hope, Bossier and Choice argue that, for the same reason, they will be exposed to
suspension or loss of their clinic licenses.5 This, Plaintiffs argue, constitutes a violation of their
constitutional right to due process.
In addition, Plaintiffs allege that they have received some informal indication that the
applications for active admitting privileges of some of the doctors may be denied6 and, if they are
denied, enforcement of the Act against them “will either drastically reduce or completely eliminate
the availability of legal abortion in the state...” (Doc 5-1, p. 22); “will result in every doctor
currently providing abortions at a clinic in Louisiana to stop providing those services...” (Doc. 5-1,
p. 6) and that “no other doctor in Louisiana would be able to provide abortion services as of
September 1...” (Doc 5-1, p. 18). Furthermore, Plaintiffs contend that enforcement would result in
“the majority if not all” abortion clinics being unable to render services (Doc. 5-1, p. 25) and would
“effectively eliminate all access to legal abortion in Louisiana” (Doc. 5-1, p. 26).

3

La. R.S. 40:1299.35.2(A)(2)(c).

4

At the hearing on the Application for Temporary Restraining Order, counsel for Dr.
Mark Dawson, President of the Board, conceded that a physician’s violation of state law might
be considered “unprofessional conduct,” a grounds for the suspension or revocation of the
physician’s license. See LSA-R.S. Sections 37:1261.1 and LSA-R.S. 37:1285(A)(13).
5

6

LSA-R.S. 40:1299.35.2(A)(1) and LSA-R.S. 40:2175.6.

Dr. Doe 1 states that he has been told by the Chairman of the Family Medicine
Department of one of the hospitals where he has applied that his application for privileges has
been “met with resistence.” (Decl. Dr. John Doe 1 Doc. 5-5, p. 2-3, ¶ 7.) The application is still
pending.

Attorney General Caldwell filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12 (B)(1)
arguing that he has no connection with the enforcement of the Act. (Doc. 16.) Defendants Dr. Jimmy
Guidry and Dr. Mark Dawson make similar arguments in their memoranda. (Docs. 18, 20.)
On the merits, Defendants first argue that a TRO is not warranted because they do not intend
to enforce the new law against any physician whose applications for privileges is pending.
Specifically, Secretary of DHH Kliebert pledges that she will abide by the instructions of the U.S.
5th Circuit in Planned Parenthood of Greater Texas v. Abbott, 748 F.3d 583, 600 (5th Cir. 2014) that
an admitting privileges requirement cannot be enforced “against a physician who [has] applied for
admitting privileges during the law’s grace period but who [has] not yet received a response on that
application before the effective date of the law.” (Doc. 27, p. 3-4.)
Similarly, Dr. Dawson has filed a Declaration pledging that he will abide by Abbot’s
instructions not to enforce Act 620 but, in any event, the Board has no enforcement authority
regarding this Act. Because Secretary Kliebert and President Dawson are pledging not to enforce
the Act against anyone whose application is pending, they argue there is no need nor justification
for a TRO since there is no “substantial threat of irreparable harm” from an authority attempting to
enforce the Act.
Second, Defendants argue that even if the doctors’ applications are denied and Plaintiff
doctors are unable to perform abortions, there are two other abortion facilities and other doctors
performing abortions in Louisiana. Thus, Plaintiffs have failed to demonstrate that the enforcement
of the Act would put an undue burden on or create a substantial obstacle to the Constitutional right
of Louisiana women to receive abortions.
On August 28, 2014, a hearing was held on the Plaintiffs’ Motion for Temporary Restraining
Order. All parties were present and participated. No evidence was offered by Plaintiffs other than

the submission made with Plaintiffs’ Application. (Doc. 5.) No evidence was offered by Defendants
prior to the hearing other than the Declaration of Kathy Kliebert. (Doc. 25.) After the hearing,
Secretary Kliebert submitted a supplemental Declaration (Doc. 27) and Dr. Dawson submitted a
Declaration (Doc. 26).
II. Proper Parties, Article III Standing and 11th Amendment Immunity
All Defendants other than Secretary Kliebert7 have raised the issue of whether they are
properly before the Court and whether there is Article III standing and/or Eleventh Amendment
immunity. Before a district can issue a TRO, it must first determine that it has Article III jurisdiction
to do so. See, e.g., Doe v. Jindal, 2011 WL 3664496, *2 (M.D. La. 2011) (noting in the TRO context
that “jurisdiction ‘is a threshold issue that must be resolved before any federal court reaches the
merits of the case before it’”) (quoting Perez v. U.S., 312 F.3d 191, 194 (5th Cir. 2002)).
In its Motion to Dismiss, the Attorney General argues that he is not a proper party based on
his immunity under the Eleventh Amendment.8 He claims that the exception to this immunity
provided in Ex Parte Young9 does not apply because the Attorney General has “no connection” with
the enforcement of Act 620.10 Plaintiffs argue, on the other hand, that he has at least “some
7

Secretary Kliebert concedes that, as the Secretary of DHH, she “is responsible by law
for enforcing Louisiana’s recently passed admitting privileges law, Act 620....” (Doc. 27, p. 2.)
8

The Attorney General concedes that it received notice of this constitutional challenge to
Act 620 for purposes of 28 U.S.C. Section 2403(b) and Fed. R. Civ. P. 5.1 and that he has the
discretion to intervene in this case (Doc. 16-1, *3-4). However, during the the TRO hearing,
counsel for Mr. Caldwell stated that he did not intend to exercise that discretion. While Mr.
Caldwell did not raise the issue of the Court’s lack of Article III jurisdiction, the Court finds that
jurisdiction is lacking because, for the reasons stated herein, the Attorney General lacks the
power to enforce Act 620. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Doe v. Jindal.
supra *2.
9

209 U.S. 123, 155-56 (1908).

10

Id., at 158-59. Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001). Secretary of DHH
Kathy Kliebert states in her declaration that DHH has the “primary authority” for enforcing the

connection”11 by virtue of the broad powers granted to him in the Louisiana Constitution as the
State’s chief legal officer. (Doc. 23, p. 10.) This argument was rejected in Doe v. Jindal, supra,
where the Court found this broad power to be too “indirect and remote” to qualify the Attorney
General for the Ex Parte Young exception.12 This Court agrees.
Plaintiffs contend that the Attorney General is given the right to prosecute regulatory
violations which, arguably, includes the violation of Act 620. Mr. Caldwell responds that the
Attorney General only performs this task when asked to do by the regulatory body or when
empowered to do so by statute or regulation. (Doc. 30.) Since he has not been asked by DHH to
represent that agency and Act 620 does not empower the Attorney General to act on behalf of DHH
in carrying out its mandate, the Court finds that the Attorney General does not have sufficient
connection to the enforcement of Act 620 to make applicable the Ex Parte Young exception. The
Court therefore grants the Attorney General’s Motion to Dismiss.
Defendant Dr. Jimmy Guidry was sued in his capacity as Louisiana State Health Officer and
Medical Director of the DHH. Based on the representation of counsel for Dr. Guidry that Dr. Guidry
has no decision making authority as to Act 620 which is independent from that of Secretary Kliebert,
counsel for Plaintiffs stated at the TRO Hearing that Plaintiffs did not object to Guidry’s dismissal.13
Accordingly, the Court orders that Dr. Jimmy Guidry be dismissed.
Defendant Dr. Dawson, the President of the Board, argues that he too has no power of
enforcement of Act 620 and therefore should be dismissed. The Board is authorized under a

Act. (Doc. 27, p. 2.)
11

Ex Parte Young, 209 U.S. at 157.

12

2011 WL 3664496 at *3.

13

To the same effect, see Plaintiffs’ Reply Brief. ( Doc. 23, p.11.)

separate section of Act 620 (La. R.S. 40:1299.35.2.1, regulating the use of drugs or chemicals in an
abortion) to “take disciplinary action as authorized in R.S. 37:1261 et seq. or any other provision
of law against a physician who violates any provision of this Section.”
While there is no comparable provision in § 1299.35.2(A), the Board is empowered under
La. R.S. 37:1285A(13) to revoke or suspend a physician’s license for “unprofessional conduct.” At
the TRO Hearing, counsel for Dr. Dawson conceded that, under this provision, the Board could
suspend or revoke a doctor’s license for the violation of any statute, including Act 620. The Court
finds that the ability to suspend or revoke a physician’s license is therefore a mechanism of
enforcement of the Act and one not “so indirect and remote” as to render the Ex Parte Young
exception inapplicable.
Furthermore, under the Art. III standing analysis,14 the Court finds that the Board’s ability
to suspend or revoke the license of Drs. Doe 1 and 2 could cause these Plaintiffs to suffer an “injury
in fact,” that there is a causal connection between such Board action and the injury, and finally, that
the injury would be redressed by granting the injunction. See K.P. v. LeBlanc, 627 F.3d 115, 122125 (5th Cir. 2010), which held that plaintiffs met all three elements of the test for Art. III standing
against the Louisiana Patients’ Compensation Fund although the potential harm from not enjoining
the law was “not as concrete as some might be” and “not yet materialized.” 627 F.3d at 122.
Whether the enforcement connection “arises out of the general law, or is specially created by the act
itself, is not material so long as it exists.” Ex Parte Young, 209 U.S. 123, 157 (1908) (quoted in
LeBlanc, 627 F.3d at 124). Accordingly, Dr. Dawson’s 11th Amendment and Art. III challenges are
denied.

14

See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Okpalobi v. Foster, 244 F.3d
405, 425 (5th Cir. 2001)

III. Temporary Restraining Order
A.

The Standard
A temporary restraining order “is an extraordinary and drastic remedy, and should only be

granted when the movant has clearly carried the burden of persuasion.” Anderson v. Jackson, 556
F.3d 351, 360 (5th Cir. 2009) (quotations omitted); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th
Cir.1991) (citing Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th
Cir.1985)).
The movant “must satisfy a cumulative burden of proving each of the four elements
enumerated before a temporary restraining order … can be granted.” Clark v. Pritchard, 812 F.2d
991, 993 (5th Cir. 1987). The four elements are well known: the movant bears the burden of clearly
proving: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat
that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened
injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that
granting the preliminary injunction will not disserve the public interest. Janvey v. Alguire, 647 F.3d
585, 595 (5th Cir.2011); Women’s Med. Center of Nw. Houston v. Bell, 248 F.3d 411, 419, n. 15 (5th
Cir. 2001); Jackson Women’s Health Organization v. Currier, 2014 WL 3730467, *5 (5th Cir., July
29, 2014), (quoting Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998)); see also generally Doe
v. Jindal, 2011 WL 3664496, *2 (M.D. La. Aug. 19, 2011) (unpublished); Scott v. Livingston Parish
Sch. Bd., 548 F. Supp. 2d 265, 266-67 (M.D. La. 2008).
B.

Analysis
“[F]or more than 40 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
Organization v. Currier, ___ F.3d ____, 2014 WL 3730467, *4, (5th Cir. July 29, 2014), Petition

for Rehearing en Banc pending, No. 13-60599 (5th Cir. August 13, 2014), citing Roe v. Wade, 410
U.S. 113, 153 (1973) (hereinafter “Currier IV”15). The Supreme Court has also held that this right
can be regulated by a state consistent with the state’s interest in protecting potential life and health
as long as the regulation does not place an “‘undue burden’ on the basic right to terminate a
pregnancy by abortion prior to the fetus’s viability.” Id., citing Planned Parenthood of S.E. Penn.
v. Casey, 505 U.S. 833, 877 (1992).
Act 620 attempts to regulate this right by requiring a physician who performs abortions to
obtain active admitting privileges within thirty miles of the facility where the abortions are
performed. The question before the Court is whether the Plaintiffs have shown a substantial
likelihood of proving that enforcement of the Act will violate the Constitution’s guarantee of due
process or a woman’s right to choose an abortion.
Plaintiffs’ first challenge the statute on the basis that the 81 days given the doctors to apply
for admitting privileges is simply not enough time to complete the application process before the
September 1, 2014 effective date. Despite the attempt by the doctors to comply with the Act by
applying for privileges, they will be in violation of the Act after September 1 and subject to its
sanctions while their applications are still pending. This, they contend, is a denial of their right to
due process.
Louisiana has no time limit for hospitals to act upon an application for admitting privileges.
La. Rev. Stat. § 40:211(C) only requires that a doctor meet the “reasonable criteria for membership

15

There are four Currier opinions. The District Court’s decision granting a TRO, 2012
WL 2510953 (S.D. Miss. July 1, 2012) (“Currier I”); the District Court’s granting of the
preliminary injunction, 878 F.Supp.2d 714 (S.D. Miss. July 12, 2012) (“Currier II”); the District
Court’s granting plaintiffs’ second Motion for Preliminary Injunction, 940 F. Supp. 2d 416 (S.D.
MS April 15, 2013) (“Currier III”) and Currier IV, __ F. 3d __, 2014 WL 3730467 (5th Cir. July
29, 2014) in which the Court of Appeal (Judge Garza, dissenting) affirmed but modified the
District Court’s preliminary injunction.

of a hospital,” and 40:2114(E) only requires that hospitals “establish rules, regulations and
procedures” for admitting privileges. The statute establishes no time limit for doing so.
Defendants do not contest Plaintiffs allegations that the process for applying for and
receiving hospital admitting privileges varies from hospital to hospital and can last many months.16
This means that the physician who has applied for privileges in an effort to comply with the law but
whose application is still pending on September 1, 2014 will be subject to a fine of $4,000 per
violation and possible loss or suspension of license if he continues to perform abortions after this
date.
The Declarations in this case show that Drs. Doe 1, 2 and 4 have applied for active admitting
privileges at hospitals within 30 miles of where they perform abortions. Dr. Doe 1 applied for
admitting privileges at three nearby hospitals on June 17, July 25 and August 15, 2014 (Dr. Doe 1
Decl., Doc. 5-5, ¶ 6) and, as of the time of the hearing, had not received a formal response from any
of the hospitals. Dr. Doe 2 applied for privileges at one nearby hospital on May 12, 2014 (Dr. Doe
2 Decl., Doc. 5-6, ¶ 7,) and another on an undisclosed date prior to his Declaration of August 21,
2014 (Dr. Doe Decl., Doc. 5-6, ¶ 8). As of the time of hearing, he had received no formal action on
his applications. Dr. Doe 4 is not a plaintiff and has not provided a Declaration. However, according
to the Declaration of Robert Gross, Dr. Doe 4 applied for active admitting privileges at OcshnerKenner Medical Center on August 4, 2014 and has received no response. (Gross Decl., Doc. 5-4,
¶ 5.) It is therefore impossible for these doctors, notwithstanding their best efforts, to comply with
the law before the effective date of the statute.

16

Attached to Plaintiffs’ Application are the rules for granting admitting privileges at five
separate hospitals, (Declaration of Kathleen Pittman, Doc. 5-3, p.1-112) as well as a summary of
same (Doc. 5-9, p.1-8). These documents show that the process can last as long as 240 days or
longer.

This issue was recently considered in Planned Parenthood of Greater Texas Surgical Health
Services v. Abbott, 748 F.3d 583 (5th Cir. 2014), Petition for Rehearing en Banc pending, No. 1351088 (5th Cir. April 10, 2014). There the Court considered the constitutionality of 2013 Texas
House Bill No. 2 which, much like Act 620, required a physician performing or inducing an abortion
to have admitting privileges at a hospital no more thirty miles from the location where the abortion
was to be provided. Texas House Bill No. 2 offered a 100 day grace period within which to comply
with the admitting privileges requirement. While the Court held that this grace period was sufficient
on its face, it stated that:
...it would be absurd to enforce [Texas House Bill No. 2] against physicians who
timely applied for admitting privileges but have not heard back from the
hospital.***Obviously, it would be unreasonable to expect that all abortion providers
will be able to comply the admitting-privileges requirement within 100 days where
receiving a response from a hospital processing an application for admitting
privileges can take 170 days.17 Accordingly, we conclude that, pursuant to [Texas
House Bill No. 2]’s severability provision, the admitting privileges provision may
not be enforced against abortion providers who applied for admitting privileges
within the grace period allowed...but are awaiting a response from a hospital. Abbott,
748 F.3d at 600 (emphasis the Court’s).
The Court in Abbott upheld the constitutionality of the Texas law but ordered that “it may
not be enforced against abortion providers who timely applied for admitting privileges under the
statute but are awaiting a response.” Abbott, 748 F.3d at 604.
Defendant Kliebert concedes in her Declaration18 that Abbott set forth “instructions regarding
the proper enforcement of an admitting privileges law” and “instructed the government defendants

17

TEX. HEALTH & SAFETY CODE, Section 241.101 sets a 170 day deadline by which
hospitals must act on admitting-privileges applications. Abbott, 748 F.3d at 600. As stated above,
Louisiana sets no such limit and the Declarations submitted show that the process can take as
long as 240 days.
18

Secretary Kiebert’s initial Declaration (Doc. 25), pledging not to attempt to enforce
Act 620 was filed on August 28, 2014, the morning of the TRO hearing. A second and more
detailed Declaration (Doc 27) was filed after the hearing.

that they could not enforce the admitting-privileges law against a physician who applied for
admitting privileges during the law’s grace period but who had not yet received a response on that
application before the effective date of the law.” (Doc. 27, p. 3-4.) Defendant Dawson makes
essentially the same statement in his Declaration. (Doc. 26, p. 2.)
The question before the Court is whether, under these circumstances, the Plaintiffs have
carried their burden in establishing the four elements required in order for the Court to issue a TRO.
The first element (whether there a substantial likelihood that plaintiffs will prevail on the merits) is
easily met by turning to Abbott, supra, and the concessions of the parties regarding same. This is a
case challenging the constitutionality of Act 620. In their Declarations, Defendants Kliebert and
Dawson concede that Act 620 as applied against Drs. Doe 1, 2 and 4 or any other physician who has
applied for active admitting privileges not yet acted upon would constitute a violation of the doctors’
due process rights.
Thus, the Court finds that Plaintiffs have shown that irreparable injury would occur if the Act
were enforced against them. It is well settled that, in cases challenging laws based on a violation of
constitutional rights, once a constitutional violation is demonstrated, no further showing of
irreparable injury need be shown. Elrod v. Burns, 427 U.S. 347, 373 (1976); Deerfield Medical
Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Springtree Apartments, APLC
v. Livingston Parish Council, 207 F.Supp.2d 507, 515 (M.D. La. 2001).
Defendants argue, however, that there is no substantial threat of irreparable harm to the
doctors because they have pledged not to enforce Act 620 while the applications are pending.
(Kliebert Decl., Doc. 27, p. 4; Dawson Decl., Doc. 26, p. 2.)
Plaintiffs counter first, that Secretary Kliebert’s promise that DHH will not prosecute doctors
for violations of Act 620 is an empty one since the Act only gives the DHH the right to prosecute

the clinics for hiring a doctor who is not admitted. The Act is silent as to who has the authority to
pursue the doctor for this violation.19 Furthermore, Secretary Kliebert’s Declaration that DHH has
the “primary” authority for enforcement of the Act does not preclude the possibility that some other
State or local authority (who has made no pledge not to enforce) might attempt to enforce the Act
against them.20
Defendant Dawson’s assurances are more tentative than those of Kliebert. Dr. Dawson’s
Declaration does not pledge that the Board will not initiate proceedings to revoke or suspend the
license of any doctor technically violating the statute while his or her application is pending. Rather,
it states only that “[t]he Board does not have any current or planned administrative or enforcement
action against any physician based on his compliance or non-compliance with Act 620.” (Doc. 26,
p. 2.)
A similar situation faced the Court in Currier I and II. There, a Mississippi abortion clinic
and others challenged a Mississippi law that required, among other things, all doctors associated
with an abortion clinic to have admitting and staff privileges at a local hospital. Currier II, 878
F.Supp.2d at 715. Unlike the Louisiana statute under consideration, the Mississippi law gave
Plaintiffs a “reasonable time” to comply. Currier II at 717. However, like here, various state officials

19

Section A(1) states, in pertinent part, “Any outpatient abortion facility that knowingly
or negligently employs, contracts with, or provides any valuable consideration for the
performance of an abortion in an outpatient abortion facility by any person who does not meet
the requirements of this Section is subject to having its license denied, non-renewed, or revoked
by the Department of Health and Hospitals in accord with R.S. 40:2175.6.” There is no
comparable provision specifying who has the enforcement responsibility as regards the doctor
and the fine of $4,000 per violation. Section A(2)(c).
20

During the TRO hearing, the Court suggested that Secretary Kliebert might clarify this
issue and give greater reassurance to the Plaintiffs if she were to represent that DHH was the sole
authority to enforce Act 620. Secretary Kliebert’s second Declaration did not do that, only
saying that DHH had the “primary” enforcement authority.

gave assurances that the Plaintiffs would not be prosecuted at the time of the proceedings. Currier
II, at 716.
Under these circumstances, the Court found that there was an “imminent threat” of a
Constitutional violation and granted a limited TRO:
Defendants, while saying that they will not prosecute now, have never promised to
abstain from future prosecution for the days of non-compliance that will begin when
the Act takes effect.***Given the highly charged political context of this case and
the ambiguity still present, the Court finds that there would be a chilling effect on the
Plaintiffs’ willingness to continue to operate the Clinic until they obtained the
necessary privileges. Therefore, an irreparable injury currently exists. Currier II at
719.
The Court finds that a very similar situation exists in this case. Secretary Kliebert’s
Declaration does not promise to abstain from future prosecution for days of non-compliance that
would begin on September 1, 2014. Rather, her Declaration states, “I have no intention of enforcing
the Act against the physicians in this matter until their admitting-privileges have been acted on
finally by the respective hospitals. Only at that time, and not before, will I instruct the Department
to enforce the Act against physicians in this position.” (Doc. 27, p. 4, emphasis added.)
Defendant Dawson’s affidavit does not promise to abstain from initiating proceedings to
revoke or suspend the doctors’ licenses; rather, he only says that there are no “current or planned”
actions underway at this time. (Doc. 26, p. 2.)
The Plaintiffs have also clearly proved the remaining two elements. Exposing the Plaintiffs
to potential fines of $4,000 per violation and possible loss of license outweighs any possible injury
to Defendants from maintaining the status quo. This is especially true given the assurances made by
the Defendant Kliebert that she does not intend to enforce Act 620 while applications are pending
and that of Dr. Dawson who states the Board has no present intention to pursue disciplinary action.
Currier II, at 720. Finally, the grant of this injunction will not disserve the public interest since this

element is generally considered met when the injunction is designed to protect against a
constitutional violation. Currier II, at 720.
Under the facts presented, the Court finds that a temporary restraining order is needed to
avoid placing Plaintiffs “between the Scylla of flouting state law and the Charybdis of foregoing
what (they believe) to be constitutionally protected activity in order to avoid being enmeshed in...a
criminal proceeding.” Concerned Citizens v. Sills, 567 F. 2d 646, 651 (5th Cir. 1978) (citing Wooley
v. Maynard, 430 U.S. 705, 710 (1977), quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)). The
Application for TRO is therefore granted to the limited extent that Plaintiffs will not be subject to
the risk of the fines and sanctions called for or allowed under the Act now or in the future for
performing abortions without the relevant admitting privileges during the application process. This
will maintain the status quo since Defendants do not now contemplate or intend to enforce the Act
while Plaintiffs pursue the application process. Plaintiff doctors will continue to pursue their
applications and will be permitted to operate lawfully while doing so.
But Plaintiffs argue that the TRO should be granted for broader reasons as well. They argue
that if, as they fear, the doctors’ applications are denied, the effect will be to place an “undue
burden” on the rights of their patients to get an abortion by creating “substantial obstacles” to the
exercise of those rights thus rendering the statute unconstitutional as applied. Specifically, Plaintiffs
argue that this would result in an unconstitutional denial of the right of women in this state to choose
to have an abortion. In support of that position, Plaintiffs point to the recently decided Currier IV,
supra, finding Mississippi’s admitting-privileges requirement placed an undue burden on a woman’s
right to an abortion and was therefore unconstitutional.
In support of this contention, Plaintiffs argue that the denial of the applications will “either
drastically reduce or completely eliminate the availability of legal abortion in the state...” (Rec. Doc

5-1, p. 22); that enforcement “will result in every doctor currently providing abortions at a clinic in
Louisiana to stop providing those services...” (Rec. Doc. 5-1, p. 6) and that “no other doctor in
Louisiana would be able to provide abortion services as of September 1...” (Rec. Doc 5-1, p. 18).
Plaintiffs contend that enforcement would result in “the majority if not all” of the abortion clinics
in Louisiana being unable to render services (Rec. Doc. 5-1, p. 25) and that this would “effectively
eliminate all access to legal abortions in Louisiana” (Rec. Doc. 5-1, p. 26).
The Court finds that the evidence currently before it cannot carry the weight of these
allegations. It is possible that the applications of one or more of the doctors will be granted. The
Plaintiffs could not point out to the Court any constitutional violation that would exist if the
applications of Drs. 1, 2 and 4 were granted. Because the applications of the doctors have not been
acted upon at this time, the Court believes any undue burden that might occur if they were denied
is speculative. While the doctors point to some preliminary indications that their applications may
not be granted,21 the Court finds this evidence insufficient to carry their burden.
In Currier IV, unlike the present case, the preliminary injunction based on potential 14th
Amendment violations was granted and affirmed at a time when the hospitals at which all seven
doctors had applied for privileges had denied their applications. Currier IV, 2014 WL 3730467 at
*2. Here, none of the applications have been denied.
Furthermore, even if the applications of all Plaintiffs doctors were to be denied in this case,
the overall impact on the right of women to have an abortion in Louisiana is unclear. According to
Plaintiffs’ Application, the Plaintiffs’ facilities are only three of five which operate in Louisiana.
(Decl. of Kathaleen Pittman, Doc. 5-3, p. 3,¶ 7.) How many patients do these other two facilities
treat? How many doctors practice there? How many of these doctors have applied for admitting

21

See, e.g. Dr. Doe 1 Decl. ¶ 7, Doc. 5-5, *2-3

privileges and what is the status of their applications? If these other two facilities remain open (or
don’t), what would be the overall effect in terms of the time and distance patients would need to
travel in order to receive their care? This, and other information not currently before the Court,
would be relevant in measuring the impact on the Constitutional right. See, e.g. Abbott, 748 F.3d 583
(5th Cir. 2014). Based on the record before it at this time, the Court finds that Plaintiffs have not
shown a substantial likelihood of success on this ground.
For the reasons stated above, IT IS ORDERED that
1.

The Motion to Dismiss filed by Defendant Attorney General James David Caldwell is hereby
GRANTED and Louisiana State Health Officer and Medical Director, Dr. Jimmy Guidry,
is hereby DISMISSED.

2.

The Plaintiffs’ Application for Temporary Restraining Order is GRANTED to the extent that
any enforcement of § A(2)(a) of Act 620, amending La. R.S. 40:1299.35.2, is enjoined 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 applications process. Plaintiffs will be allowed to operate lawfully while continuing their
efforts to obtain privileges.

3.

Plaintiffs’ Application for a Preliminary Injunction will remain pending. All parties indicated
at the TRO Hearing that, if a TRO was granted, additional time was needed to conduct
discovery and prepare for the hearing on the preliminary injunction. Thus, in accordance
with Fed. R. Civ. P. 65(b)(2), a status conference will be set no later than 30 days hence for
the purpose of receiving a status report regarding the pending applications for admitting

privileges, determining the amount of time needed by the parties to prepare for the hearing
on the preliminary injunction, setting a date for the preliminary injunction hearing,
discussing the scope of the issues and nature of the proof which will be presented and
discussing all additional issues which the parties and the Court deem relevant. The Court
understands that the events in this case are fluid. Should circumstances change, the parties
are free to seek any other relief as they may deem appropriate.
4.

Given the nature of the relief sought and because there is no risk of monetary loss to the
defendant by virtue of the granting of this injunction, it is unnecessary for Plaintiffs to post
a bond in this matter.

Baton Rouge, La., this 31 day of August, 2014.
______________________________________________
JOHN W. deGRAVELLES, JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA