June Medical Services LLC et al v. Caldwell et al

Filing 84

SECOND ORDER CLARIFYING TEMPORARY RESTRAINING ORDER OF 8/31/2014 : The 31 TRO of 8/31/2014 remains in force until the Preliminary Injunction hearing of 3/30/2015 or as otherwise modified by this Court. Signed by Judge John W. deGravelles on 1/15/2015. (LLH)

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
v.
NO.14-525-JWD-RLB
KATHY KLIEBERT, in her official capacity as
Secretary of the Louisiana Department of Health
and Hospitals and MARK HENRY DAWSON,
M.D., in his official capacity as President of the
Louisiana State Board of Medical Examiners,
CONSOLIDATED WITH
WOMEN’S HEALTH CARE CENTER, INC., on
behalf of its patients, physicians, and staff;
DELTA CLINIC OF BATON ROUGE, INC., on
behalf of its patients, physicians, and staff;
JOHN DOE 5, M.D., on behalf of himself
and his patients,
CIVIL ACTION
v.
NO. 14-597-JWD-RLB
KATHY KLIEBERT, in her official capacity as
Secretary of the Louisiana Department of Health
and Hospitals and MARK HENRY DAWSON,
M.D., in his official capacity as President of the
Louisiana State Board of Medical Examiners,
SECOND ORDER CLARIFYING TEMPORARY RESTRAINING
ORDER OF AUGUST 31, 2014
The procedural history of this case prior to this Court’s November 3, 2014 Order Clarifying
Temporary Restraining Order of August 31, 2014 (Doc. 57) is set forth in that ruling. On December

5, 2014, the newly joined Women’s Health Plaintiffs moved to dismiss their case without prejudice.
(Doc. 70.) The Court invited briefs regarding the effect this dismissal might have, if any, on the
Court’s existing temporary restraining order. (Doc. 73.) The Court has read and considered those
briefs. (Docs. 74, 75 and 76.) On December 11, 2014, Plaintiff’s Motion to Dismiss was granted
with the consent of all parties. (Doc. 77.) Having reviewed the pleadings, the Court concludes that
its TRO of August 13, 2014 (Doc. 31) as clarified by its ruling of November 3, 2014 (Doc. 57)
remains in force and is unaffected by the dismissal of the Women’s Health Plaintiffs.

In its previous ruling, the Court stated the following in clarifying its TRO:
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. As the Defendants
correctly stated, “Defendants do not see how the Court can decide the underlying
merits issue, even at the preliminary injunction phase, if the factual picture remains
in flux.” (Doc. 38, p. 2.) The Court also agrees with the contention of Plaintiffs that
if the TRO did not remain in effect with regard to each of the Plaintiff clinics and
their doctors (even as to the doctors’ whose applications have been acted upon), the
Court would necessarily have to entertain as many as five separate TRO applications
which would be disruptive and time-consuming not only to the Court but also to the
parties in their efforts to complete discovery before the March 30, 2015 hearing.
Furthermore, trying these TROs separately as each physician’s application is acted
upon would necessarily require the Court to rule in each case on an incomplete
record, before the full impact of the law can be measured. On the other hand, the
Court finds that, by maintaining the status quo until the preliminary injunction
hearing, Defendants will suffer no irreparable harm or substantial prejudice.
At the time the TRO was originally issued, the Court had before it only three of five
clinics and two of an unknown number of physicians performing abortions in the
State of Louisiana. (Doc. 31, p. 17, citing Decl. of Kathleen Pittman, Doc. 5-3, p. 23.) The record was therefore unclear regarding important questions bearing on the
central issue of the potential undue burden of the law on Louisiana women’s right
to an abortion. “How many patients do these other two facilities treat? How many
doctors practice there? How many of these doctors have applied for admitting
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.” (Doc. 31, p. 8, 17-18, emphasis
added.)
But the circumstances have changed significantly since the Court’s original ruling.
Now, all five facilities providing abortions in Louisiana are before the Court. Also
before the Court are four of the six physicians who perform abortions in Louisiana:
Drs. Doe 1, 2, 5 and 6. (Docs. 50 and 51.) Although Dr. Doe 4 is not a party, he is
providing to the Court, through counsel for the June Medical Plaintiffs, information
regarding the status of his applications for admitting privileges. (Doc. 51.) Dr. Doe
3 has submitted a Declaration in which he states that he has admitting privileges at
a hospital within 30 miles of where he performs abortions but if the applications of
the other physicians are denied and he is the only physician performing abortions in
Louisiana, he will discontinue performing abortions because of fears for his personal
safety. (Doc. 5-7, p. 4, ¶ 12.) If admitting privileges are denied to five of the only six
physicians performing abortions in Louisiana and, for the reasons stated, the sixth
physician quits performing abortions, Louisiana women would be denied any and all
access to abortions in Louisiana, a situation likely to place an undue burden on this
constitutionally protected right. Jackson Women’s Health Organization v. Currier,
760 F3d. 448 (5th Cir. July 29, 2014).1
(Doc. 57.)
Although the Women’s Health Plaintiffs are no longer parties to this suit, their participation
in this proceeding prior to dismissal provided answers to important questions that the Court had at
the time of its original TRO, including that there are a total of six physicians performing abortions
at five clinics in Louisiana. Five of the six physicians have made at least one application for
admitting privileges at nearby hospitals. The conclusion I reached in the previous ruling remains
unaffected by the dismissal of the Women’s Health Plaintiffs, namely that if admitting privileges
are denied to five of only six physicians performing abortions and if the sixth physician quits
performing abortions, as he has indicated he will, Louisiana women would be denied any and all
access to abortions in Louisiana. This situation would likely place an undue burden on a
constitutionally protected right. Jackson Women’s Health Organization v. Currier, 760 F.3d 448 (5th

1

The Court’s earlier decision, quoted herein, cited Planned Parenthood v. Abbott, 748 F.3d 583 (5th Cir.
2014). Rehearing in Abbott has been denied. Planned Parenthood v. Abbott, 769 F.3d 330 (5th Cir. 2014).

Cir. July 29, 2014), reh’g denied, No. 00512843283 (5th Cir. Nov. 12, 2014).
The other reason given for the Court’s previous ruling is also unchanged by the dismissal:
if the TRO does not remain in effect with regard to each of the clinics and their doctors as their
applications are eventually acted upon, the Court may have to entertain multiple separate TRO
applications which would be disruptive and time-consuming not only to the Court but also to the
parties in their efforts to complete discovery and preparation for the March 30, 2015 hearing.
Furthermore, trying these TROs separately as each physician’s application is acted upon would
necessarily require the Court to rule in each case on an incomplete record, before the full impact of
the law can be measured. On the other hand, maintaining the status quo until the preliminary
injunction hearing of March 30, 2015 would not cause Defendants to suffer irreparable harm or
substantial prejudice.
Accordingly, the TRO of August 31, 2014 (Doc. 31) remains in force until the Preliminary
Injunction hearing of March 30, 2015 or as otherwise modified by this Court.
Signed in Baton Rouge, Louisiana, on January 15, 2015.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA