Jackson Women's Health Organization et al v. Currier et al

Filing 5

MOTION for Temporary Restraining Order by Jackson Women's Health Organization, Willie Parker (Attachments: # 1 Exhibit A - Brewer Declaration, # 2 Exhibit B - Parker Declaration, # 3 Exhibit C - Thompson Declaration, # 4 Exhibit D - Judge Barbour preliminary injunction in Pro-Choice v. Fordice, # 5 Exhibit E - Transcript excerpt of TRO ruling in Hodes v. Moser)(McDuff, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON WOMEN’S HEALTH
ORGANIZATION, on behalf of itself and its
patients,
and
WILLIE PARKER, M.D., M.P.H., M.Sc., on
behalf of himself and his patients,
Plaintiffs,
v.
MARY CURRIER, M.D., M.P.H. in her
official capacity as State Health Officer of
the Mississippi Department of Health,
and
ROBERT SHULER SMITH, in his official
capacity as District Attorney for Hinds
County, Mississippi,
Defendants.

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Case No. 3:12-CV-00436-DPJ-FKB

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs, by and through
their undersigned counsel, hereby move this Court to issue an immediate temporary restraining
order, prior to July 1, 2012, restraining Defendants, and their agents and successors in office,
from enforcing Mississippi House Bill 1390 (“the Act”) unless and until Plaintiffs obtain
admitting privileges at a local hospital.

The Act was passed with the stated goal of making

Mississippi “abortion-free” by imposing medically unjustified requirements on the one
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remaining abortion provider in the state. The undersigned attorneys certify that they have
attempted to provide notice of this Motion to Defendants by email immediately after filing the
Complaint with the Clerk’s Office.
In addition, Plaintiffs respectfully request that this Court issue an order preliminarily
enjoining Defendants, their employees, agents, and successors in office from enforcing the Act
until such time as the Court issues a final ruling in this case.
The Act takes effect July 1, 2012 and will force Plaintiff Jackson Women’s Health
Organization (“the Clinic”), the sole provider of abortion services in the State of Mississippi, to
cease providing abortion care to women. Thus, without relief from the Court, abortion will be
effectively banned in Mississippi as of July 1, 2012, violating the constitutional rights of
Mississippi women and endangering their health. The Act will make abortion unavailable in
Mississippi even though the Clinic has an excellent safety record, and even though the
Mississippi Department of Health found it to be in compliance with all current regulations only
two weeks ago.
Emergency injunctive relief is appropriate here for the following reasons:
1. Plaintiffs are likely to succeed on the merits of their claim that the Department of
Health’s last-minute decision to require immediate compliance with the Act,
including as a condition of licensure renewal, violates the liberty interests of
Plaintiffs’ patients under the Due Process Clause of the Fourteenth Amendment
because it imposes a de facto ban on pre-viability abortion;
2. Plaintiffs are likely to succeed on the merits of their claim that the Act is
unconstitutional because its proponents have made clear that it has nothing to do with
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any legitimate state interest but rather, its purpose is to end abortion in Mississippi;
and
3. Plaintiffs are likely to succeed on the merits of their claim that the Department’s lastminute decision to require immediate compliance with the Act, including as a
condition of licensure renewal, violates Plaintiffs’ right to procedural due process by
depriving them of protected interests without any process whatsoever.
4. Enforcement of the Act will irreparably harm Plaintiffs and women seeking abortion
care in Mississippi by depriving them of their constitutional rights and endangering
women’s health.
5. A temporary restraining order and/or preliminary injunction will impose no harm on
Defendants, because it will impose no affirmative burdens or costs on them but,
rather, will merely preserve the status quo.1

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The Court may issue temporary and preliminary injunctive relief in this case without bond
under Rule 65(c) because the balance of hardships tips decidedly in favor of Plaintiffs. See Fed.
R. Civ. P. 65(c); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (noting it is
within a court’s discretion to require no security at all and holding that the district court did not
violate Rule 65(c) by failing to require plaintiff to post bond); Corrigan Dispatch Co. v. Casa
Guzman, S. A., 569 F.2d 300, 302 (5th Cir. 1978) (holding that a court “may elect to require no
security at all”). Given the lack of any possible financial or other harm to the Department if
injunctive relief is granted, the irreparable harm that Plaintiffs and their patients face, and the
importance of the constitutionally-protected right that Plaintiffs seek to enforce, waiver of the
bond requirement is appropriate here. See Cohens v. Coahoma County, Miss., 805 F. Supp. 398,
408 (N.D. Miss. 1992) (granting preliminary injunction to prevent violation of plaintiff’s
constitutional rights and waiving the security requirement in light of the fact that defendants
were unlikely to “incur any significant costs or any damages as a result of the preliminary
injunction”).
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6. Injunctive relief is in the public interest to protect against the violation of
fundamental constitutional rights.
In support of this Motion for a Temporary Restraining Order and/or Preliminary Injunction,
Plaintiffs respectfully submit the following documents:
•

A Memorandum of Law in Support of Plaintiffs Motion for a Temporary Restraining
Order and/or Preliminary Injunction;

•

Declaration of Shannon Brewer-Anderson dated
Exhibit A);

•

Declaration of Willie Parker, M.D., MPH, M.Sc., dated June 26, 2012 (annexed hereto as
Exhibit B);

•

Declaration of Betty Thompson dated June 26, 2012 (annexed hereto as Exhibit C); and

•

Transcript of Bench Opinion and Written Order from Pro-Choice Mississippi v.
Thompson, CV No. 3:96CV596BN (Sept. 28, 1996) (annexed hereto as Exhibit D).

•

Transcript Excerpts of Temporary Restraining Order Hearing, Hodes & Nauser, MD’s,
P.A., v. Moser, No. 11-2365-CM (D. Kan. July 1, 2011) (annexed hereto as Exhibit E).

June 26, 2012 (annexed hereto as

Plaintiffs request oral argument on their motion for a preliminary injunction.
WHEREFORE, Plaintiffs respectfully request that this Court: (1) immediately issue an
emergency temporary restraining order, prior to July 1, 2012, prohibiting Defendants, their
employees, agents and successors in office, from enforcing the Act unless and until Plaintiffs
obtain admitting privileges at a local hospital; restraining Defendants from taking any negative
licensure action, including non-renewal of the Clinic’s license, because of the Clinic’s failure to
comply with the Act; restraining Defendants from imposing any licensure or criminal penalties
on Plaintiffs because of non-compliance with the Act; and (2) issue a preliminary injunction
prohibiting Defendants, and their agents and successors in office, from enforcing the Act until
such time as the Court issues a final ruling in this case.
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Respectfully submitted this 27th day of June, 2012,

_/s/ Robert B. McDuff_________
Robert B. McDuff, MS Bar #2532
Law Office of Robert McDuff
767 North Congress Street
Jackson, MS 39202
[phone] Phone
[phone] Fax
[e-mail]

Michelle Movahed*
NY Bar #4552063
IL Bar#6291836
Center for Reproductive Rights
120 Wall Street, 14th Floor
New York, NY 10005
[phone] Phone
[phone] Fax
[e-mail]
*Pro Hac Vice Admission To Be Filed

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing has been served by delivery
to the following counsel through the Court’s ECF system, or by email or hand delivery:
Harold Pizzetta
Office of the Attorney General
Sillers Building
Jackson, MS
Robert Shuler Smith
Hinds County District Attorney
Hinds County Courthouse
Jackson, MS

This the 27th day of June, 2012.

__/s/ Robert B. McDuff_________
Robert B. McDuff, MS Bar #2532
Law Office of Robert McDuff
767 North Congress Street
Jackson, MS 39202
[phone] Phone
[phone] Fax
[e-mail]

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