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

Filing 6

MEMORANDUM in Support re 5 MOTION for Temporary Restraining Order filed by Jackson Women's Health Organization, Willie Parker (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.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

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

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

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

Plaintiffs respectfully seek emergency injunctive relief that will preserve the status quo—
namely, their ability to continue providing safe abortion care to women in Mississippi. To the
best of Plaintiffs’ knowledge, Plaintiff Jackson Women’s Health Organization (“the Clinic”) is
the sole abortion provider in the State. Without relief from the Court, abortion will be effectively
banned in Mississippi on July 1, 2012.
This litigation is a constitutional challenge to new, medically-unjustified, requirements in
Mississippi House Bill 1390 (“HB 1390” or “the Act”), the State’s latest attempt to make
Mississippi “abortion-free.” On June 25, 2012, the Mississippi Department of Health (“the
Department”) informed the Clinic that, contrary to the Department’s past practices and past
assurances, it had decided to enforce those new requirements when the law goes into effect on
Sunday, July 1. Further, the Department notified the Clinic that it would not issue it a renewal
license until the Department received proof of compliance with the Act. Despite the Clinic’s
diligent efforts to comply with the new requirement that all physicians associated with it have
privileges at a local hospital, Plaintiffs are virtually certain that the hospitals will not have
completed their review of the Clinic’s physician applications by Sunday, July 1 and that,
accordingly, compliance with the Act by that date will be impossible.
There is no legitimate justification for immediate implementation of the Act, and
certainly not for the Department’s refusal to issue a renewal license until receipt of proof of
compliance with the new requirements. Indeed, on May 29, 2012, the Department advised the
Clinic that it would be following its normal rulemaking process, which would have delayed
enforcement until approximately mid-August 2012, and assured the Clinic that a renewal license
could be issued based on the Department’s last inspection of the Clinic.

Although there is no justification for the Department’s reversal, there is an explanation.
In the days and weeks leading up to the decision on June 22, 2012, elected officials subjected the
Department to intense pressure, including an open letter dated June 20, 2012 from the new law’s
sponsor demanding that the Department enforce the new requirements immediately. But elected
officials’ hostility to abortion providers and patients is not a constitutionally permissible basis for
state action and, indeed, will cause serious and irreparable harm to the constitutional rights and
health of women seeking abortion care in Mississippi.
Without immediate relief from this Court, Plaintiffs will be forced to stop providing
abortion care to women in a few short days. Because of the extremely short timeframe until
enforcement, Plaintiffs respectfully request that the Court issue a temporary restraining order
immediately, to preserve the status quo for the approximately twenty-five to thirty women who
are expected to seek abortion care at the Clinic next week, and who will experience harms to
their health and violations of their constitutional rights without such relief, until such time as the
Court may decide to hold a hearing and/or hear argument and/or issue a ruling on Plaintiffs’
motion for preliminary injunction.
I.

Facts
A.

Plaintiffs and Their Patients

The Clinic has been providing safe, high-quality abortion care and other reproductive
health care services to women in Mississippi for almost twenty years. For almost ten years, the
Clinic has been the only option for women seeking abortion care in Mississippi.

Ex. A

(“Brewer-Anderson Decl.”) ¶ 3. The Clinic provides abortion services to women who are up to
sixteen weeks of pregnancy, as calculated from the first day of a woman’s last menstrual period
(“lmp”). Id. The Clinic has been continuously licensed by the Mississippi Department of Health

2

since Mississippi law first required health care facilities that provide abortions to obtain licenses.
Id. ¶ 5. The Clinic provides The Department regularly inspects the Clinic to assess compliance
with all applicable laws; during the most recent inspections on April 12, 2012 and June 18, 2012,
the Department found the Clinic to be in in full compliance. Id.
Currently, two board-certified obstetrician/gynecologists (“ob/gyn”) provide the majority
of the abortions that women seek at the Clinic: Plaintiff Willie Parker, M.D., MPH, M.Sc.; and
John Doe, M.D.1 Dr. Parker and Dr. Doe are not residents of Mississippi, and travel to the state
periodically to provide care to women at the Clinic. Another out-of-state physician has, in the
past, traveled to the Clinic when one of the Clinic’s regular physicians is unexpectedly unable to
make the trip, in order to ensure that women who seek abortion care at the Clinic are able to
receive it at their scheduled appointments. A fourth physician has provided extremely limited
abortion care at the Clinic; he lives in Mississippi and maintains a busy ob/gyn practice, and has
admitting privileges at a local hospital. Brewer-Anderson Decl. ¶ 11.
Legal abortion care is one of the safest medical procedures in the United States. Ex. B
(“Parker Decl.”) ¶ 12. The risk of a woman experiencing a complication after an abortion is
extremely low; less than one percent of the women who obtain abortions experience a serious
complication. Id. ¶ 14. In the vast majority of cases, the types of complications that may occur
following an abortion can be safely handled in an outpatient office setting. Id. ¶ 15. Overall, the
risk of a woman experiencing a post-abortion complication that requires hospitalization is 0.3
percent; for women obtaining abortions before 16 weeks of pregnancy, that risk is even lower.
Id. ¶ 14. Dr. Parker’s complication rate is even lower than the national average. Id. ¶ 16.

1

Plaintiffs are using a pseudonym to refer to the other physician out of concern for his safety and privacy.

3

The Clinic gives each of its patients the phone number for the Clinic and for the afterhours nurses, so that they have someone to call at any time if they have questions or experience
any complications. Brewer-Anderson Decl. ¶ 6. The Clinic’s safety record has been impeccable.
Id. ¶ 7. Since the current owner took over in 2010, the Clinic has had no major incidents, nor has
a single patient required admittance to the emergency room after receiving an abortion procedure
at the Clinic. Id. ¶ 7. Thus, while the Clinic has a written transfer agreement with a local
hospital in compliance with Miss. Admin. Code 15-16-1:44.12, and one of its physicians has
admitting privileges at a local hospital in compliance with Miss. Admin. Code 15-16-1:42.9.7, it
has never been necessary to use those arrangements. Brewer-Anderson ¶ 7.
Women travel from all over the State of Mississippi, and sometimes from other states, to
obtain care at the Clinic. Brewer-Anderson Decl. ¶ 4, 8. In general, women seek abortions for a
variety of medical, family, economic, and personal reasons; most are mothers who decide they
cannot parent another child at the time. Parker Decl. ¶ 11. Some women seek abortions because
they face serious health issues that make it dangerous to carry a pregnancy term. Id. Some are
young women who do not feel ready to carry a pregnancy to term. Id. Others are coping with
abusive relationships, or are pregnant as a result of rape, sexual assault, or incest. Id. And some
have received a diagnosis of fetal anomaly. Id.

In 2012, to date, the Clinic has provided

abortions to approximately 1,100 women. Brewer-Anderson Decl. ¶ 4.
Because of current Mississippi law, women must make two trips to the Clinic, at least
twenty-four hours apart; the first visit to receive state-mandated counseling, and the second to
obtain their abortions. Brewer-Anderson Decl. ¶ 8. Many of the Clinic’s patients are unable to
stay the night near the Clinic, and so cannot obtain an abortion the day after counseling,
especially if they need to request additional time off from work or make child care arrangements.

4

Id. Accordingly, most women come back to the Clinic to obtain their abortions at least a week
after their initial counseling appointment. Id. Based on past experience, the Clinic expects at
least twenty-five to thirty of those women would return during the week after July 1, 2012 to
obtain their abortions. Id. ¶ 9.
B.

Enactment of H.B. 1390

On April 5, 2012, the Mississippi Legislature sent H.B. 1390 to Governor Phil Bryant for
his signature. In response, Lieutenant Governor Tate Reeves issued a public statement declaring
that the Act “should effectively close the only abortion clinic in Mississippi.” Joe Sutton and
Tom Watkins, Mississippi Legislature Tightens Restrictions on Abortion Providers, CNN
Politics (Apr. 4 2012). As of this filing, Lieutenant Governor Reeves’s website still states, “The
Legislature took steps to end abortion in Mississippi by requiring doctors performing abortions
to have admitting privileges at a local hospital. This measure not only protects the health of the
mother but should close the only abortion clinic in Mississippi.” Lt. Governor Tate Reeves
Website, ltgovreeves.ms.gov/Pages/About.aspx (last visited June 27, 2012).

For his part,

Governor Bryant vowed to sign the bill, saying “I will continue to work to make Mississippi
abortion-free.” James Eng, Mississippi On Way to Becoming ‘Abortion-Free’ State?,
msnbc.com. (Apr. 5, 2012, 3:26 PM), usnews.msnbc.msn.com/_news/2012/04/05/11039503mississippi-on-way-to-becoming-abortion-free-state. Governor Bryant signed H.B. 1390 into law
on April 16, 2012.
The Act amends the definition of “abortion facility” in Mississippi’s statutory licensure
scheme for ambulatory surgical facilities in two ways that are at issue in this litigation.2 One of
the amendments would require that all physicians “associated with the abortion facility must be

5

board certified or eligible in obstetrics and gynecology.” H.B. 1390 § 1, to be codified at Miss.
Code Ann. § 41-75-1(f). The second amendment is the subject of the instant motion; it requires
that all physicians “associated with the abortion facility must have admitting privileges at a local
hospital and staff privileges to replace local hospital on-staff physicians” (“the Admitting
Privileges Requirement”). Id.
C.

Plaintiffs’ Attempts to Comply With H.B. 1390

Knowing that the process of applying for privileges can be lengthy and unpredictable, Dr.
Doe began the process of trying to obtain privileges in April 2012. Brewer-Anderson Decl. ¶ 13.
After consulting with others about his most likely avenue for successfully obtaining privileges,
Dr. Doe contacted Central Mississippi Medical Center (“CMMC”) to get the process started. Id.
¶ 14. He received the application from CMMC on April 24, 2012. Id. The Clinic’s Director,
Ms. Shannon Brewer-Anderson, took over the process at that point, so that Dr. Doe—then the
sole physician providing abortion care on a regular basis at the Clinic—could focus on proving
care to the Clinic’s patients. Id. ¶ 15. As soon as Dr. Parker joined the Clinic’s medical staff on
June 18, 2012, the Clinic began to seek privileges for him as well. Id.
The process quickly proved so burdensome that the Clinic was required to call on outside
assistance, and hired the Clinic’s former Director, Ms. Betty Thompson, to assist in the project of
seeking privileges from the remaining eleven hospitals in the area. Id. ¶ 16. Ms. Thompson
determined that five of the hospitals in the area would not be potential sources of privileges:
four of the hospitals provide limited services, and the fifth hospital is a Catholic hospital that
requires potential applicants for privileges to sign the Catholic Ethical and Religious Directives,
which explicitly prohibit abortion and discourage association with abortion providers, as a
2

Abortion facilities, such as the Clinic, that provide abortion care to women who are past the end of their first
trimester are required to comply with the standards for ambulatory surgical facilities in addition to the statutes and

6

condition of receiving an application. Ex. C (“Thompson Decl.”) ¶¶ 8-16. By the end of the
first week in May, Ms. Thompson had attempted to contact the appropriate staff member at each
of the remaining six hospitals, in some cases making multiple attempts simply to get someone on
the phone. Id. ¶ 17-29. For example, after speaking with and leaving messages for multiple
people at University Medical Center, Ms. Thompson was advised that she could not obtain an
appointment to discuss receiving an application for privileges until May 31, 2012. Thompson
Decl. ¶ 23. Pursuant to the instructions she was given during the May 31 call, Ms. Thompson
ensured that Dr. Doe sent a letter to UMC requesting an application immediately thereafter. Id.
¶ 25. Despite the efforts that she and Dr. Doe have made to obtain an application, they have not
received one from UMC to date. Id.
With the exception of UMC and Madison County Medical Center, which did not send its
application to Ms. Thompson until quite recently, Dr. Doe has sent an application or preapplication to each of the possible hospitals. Thompson Decl. ¶ 10. Ms. Thompson and Ms.
Brewer-Anderson have made several attempts to follow up on the submissions, explaining the
urgency of the situation, but no hospital has granted privileges to Dr. Doe as of this filing.
Brewer-Anderson ¶ 20-21; Thompson ¶ 8, 30. For example, Ms. Brewer-Anderson personally
delivered CMMC’s application for privileges on May 30, 2012, in an effort to ensure that the
hospital board would consider it at its June 19, 2012 meeting. Brewer-Anderson Decl. ¶ 18.
After submitting the application, Ms. Brewer-Anderson made several attempts to contact CMMC
staff to ensure that it was complete. Id. ¶ 20. On June 19, 2012, CMMC staff advised her that,
despite having had the application in its possession for three weeks, hospital staff had not
completed the tasks required for submission of the application to the board for consideration and

regulations applicable to abortion facilities. See Miss. Code Ann. § 41-75-1; Miss. Admin. Code 15-16-1:44.2.

7

that the application was not considered at the June 19 meeting. Id. As of this filing, no hospital
has granted privileges to Dr. Doe or to Dr. Parker. Id.
D.

Contact With the Department of Health

While the lengthy and laborious process of applying for privileges was underway, on
May 15, 2012, the Clinic’s owner wrote to the Department to request a “grace period” before
enforcement of the Admitting Privileges Requirement so that the Clinic could complete the
process of applying for privileges. Brewer-Anderson Decl. (Letter from Derzis to Miss. Dep’t of
Health dated May 15, 2012). The Department responded by letter dated May 29, 2012, refusing
to grant a grace period but indicating that it would be following its normal rulemaking
procedures to implement the new law. Id. (Letter from Miss. Dep’t of Health to Derzis dated
May 29, 2012).
On Friday, June 22, 2012, however, the Clinic became aware of an open letter sent by HB
1390’s sponsor to the Department of Health. The letter, dated June 20, 2012, demanded that the
Department implement the Act immediately upon its effective date: July 1, 2012. Id. ¶ 26. Ms.
Brewer-Anderson promptly contacted the Department, seeking assurances that they would
follow their normal rulemaking process, as the Department had previously stated. Id.
Department staff advised her that, instead, the Department would begin enforcing the law
immediately upon its July 1 effective date. Id. ¶ 27.
On June 25, 2012, the Clinic received a letter from the Department stating that, in order
to “remain licensed and operate an abortion facility in the State of Mississippi” the Clinic was
required to produce written proof of compliance with the Act “on or before July 1, 2012.” Id.
(Letter from Miss. Dep’t of Health to Derzis dated June 25, 2012).

8

E.

Impact of Immediate Enforcement

As a general matter, the Admitting Privileges Requirement will not benefit the Clinic’s
patients—or public health, generally—because it is cumulative, at best, of the Clinic’s
arrangements with a local hospital and with the local physician who has admitting privileges
nearby. See Parker Decl. ¶ 19. Moreover, it is not consistent with the way an emergency patient
transfer would occur: in the extremely unlikely event that a patient at the Clinic experienced a
serious complication requiring hospitalization, an ambulance would be called to transport the
patient. Id. ¶ 20. Whether or not a physician has privileges at a hospital, the customary practice
is for a facility that accepts a patient in emergency situations to remain in contact with the
physician who made the decision to transfer the patient. Id. ¶ 19.
The Department’s decision to immediately enforce the Admitting Privileges Requirement
and to refuse to issue a renewal license to the Clinic without proof of compliance with the Act
will force the Clinic to close, for no legitimate purpose. As of the date of this filing, it appears
virtually certain that neither Dr. Parker nor Dr. Doe will have privileges at a local hospital and,
further, that the Clinic will not receive the renewal license it applied for in May 2012. Thus,
because of the risk of criminal liability as well as the risk to the Clinic’s license, Plaintiffs cannot
provide abortion care to women after July 1, 2012. This will have serious consequences for the
twenty-five to thirty women expected to seek abortion care at the Clinic next week. Unless this
Court acts quickly to preserve the status quo, those patients will not be able to obtain their
abortions during the week of July 1, 2012, and they will have nowhere else in Mississippi to turn.
II.

Argument
Temporary and preliminary injunctive relief is proper when Plaintiffs establish (1) a

substantial likelihood of success on the merits; (2) substantial threat of irreparable injury to them;

9

(3) the injury to them outweighs any harm the injunction might cause Defendants; and (4)
granting the injunction will not disserve the public interest. See, e.g., Janvey v. Alguire, 647 F.3d
585, 595 (5th Cir. 2011). Each factor weighs heavily in Plaintiffs’ favor here, as discussed
below.
A.

Plaintiffs Have Shown A Substantial Likelihood of Success on the Merits.
1.

Immediate Enforcement Of The Admitting Privileges Requirement
Will Effectively and Unconstitutionally Ban Abortion In Mississippi.

Plaintiffs have established a substantial likelihood of success on the merits of their claim
that, absent emergency relief, Defendants will violate the constitutionally-protected privacy and
liberty interests of Mississippi women by imposing a de facto ban on pre-viability abortion as of
July 1, 2012. The complete unavailability of abortion will endanger the health of Mississippi
women by delaying or preventing them from being able to access safe and needed medical care.
Thus, the Department’s decision to immediately enforce the Act and its refusal to renew the
Clinic’s license without written proof of compliance with the Act has the effect of placing a
substantial obstacle – in fact, an insurmountable one – in the path of women seeking pre-viability
abortions in Mississippi.
It is axiomatic that a State may not ban pre-viability abortion. Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833, 879 (1992) (holding that “a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability.”); see id. at 878 (a
restriction on abortion is an unconstitutional undue burden if “its purpose or effect is to place a
substantial obstacle in the path of a woman seeking an abortion before the fetus attains
viability.”). Here, the Department’s actions will shut down the only remaining abortion clinic in
Mississippi, even though the Department found that the Clinic was in compliance with all of the
State’s licensure requirements at its last two inspections of the Clinic, and even though the
10

Department indicated it would issue the Clinic’s renewal license. Brewer-Anderson Decl., Ex. B
(Letter dated May 29, 2012 from Dep’t of Health to Diane Derzis). Despite the Clinic’s best
efforts, it has not been able to obtain admitting privileges at a local hospital for all physicians
associated with it and does not reasonably expect to have such privileges in place by the Act’s
July 1, 2012 effective date or even by the end of July. Without such privileges or relief from the
Court, Plaintiffs will need to cease operations to avoid licensure and criminal penalties. Thus,
there will be a complete ban on abortion in Mississippi.
Under the Casey standard, 505 U.S. at 877, Plaintiffs are likely to succeed on the merits
of their claim that the Department’s implementation of the Act has unduly burdened their
patients’ right to choose an abortion by eliminating abortion services in Mississippi. Numerous
courts have found an undue burden when faced with similar facts. Federal courts around the
country have held that laws that ban all, or nearly all, abortions prior to viability are
unconstitutional. See Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999) (“A measure that
has the effect of forcing all or a substantial portion of a state’s abortion providers to stop offering
such procedures creates a substantial obstacle to a woman’s right to have a pre-viability abortion,
thus constituting an undue burden under Casey.”), rev’d on other grounds, 244 F.3d 405 (5th Cir.
2001); Jane L. v. Bangerter, 102 F.3d 1112, 1117-18 (10th Cir. 1996) (striking near ban on
abortions after twenty weeks gestation, regardless of viability, as undue burden); Women’s Med.
Prof’l. Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (“An abortion regulation that
inhibits the vast majority of second trimester abortions would clearly have the effect of placing a
substantial obstacle in the path of a woman seeking a pre-viability abortion.”); Planned
Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1465 (8th Cir. 1995) (holding that
abortion restriction constituted an unconstitutional “substantial obstacle to a woman’s right to

11

have a pre-viability abortion” because measure would unconstitutionally chill physicians’
willingness to provide abortions), cert. denied sub nom. Janklow v. Planned Parenthood, Sioux
Falls Clinic, 517 U.S. 1174 (1996).
Further, it is clear that the Constitution prohibits states from imposing de facto bans on
abortion, just as it prohibits states from imposing de jure bans. Courts have held that states
cannot impose a de facto ban by, for example, permitting abortion care only in compliance with
requirements that the State then makes impossible to satisfy. See, e.g., Zbaraz v. Hartigan, 763
F.2d 1532, 1541 (7th Cir. 1985), aff’d mem. by an equally divided court, 484 U.S. 171 (1987)
(enjoining new law requiring parental consent for minors’ abortions where no rules had been
promulgated to implement statutorily required judicial bypass procedure); see also Michigan
Injured Workers v. Blanchard, 647 F. Supp. 571 (S.D. Mich. 1986) (enjoining new worker’s
compensation scheme because, in part, the state had not hired any magistrates to hear the
claims).
The State of Mississippi has repeatedly employed a de facto ban strategy in its attempt to
make abortion entirely unavailable in the state, in all circumstances; the Act is simply the latest
such effort.

Less than ten years ago, this Court issued injunctive relief against the State’s

attempt to ban second-trimester abortions by making it impossible to obtain a license to provide
them. Jackson Women’s Health Org. v. Amy, 330 F. Supp.2d 820 (S.D. Miss. 2004). In that
case, the plaintiffs challenged a 2004 law that permitted second-trimester abortions to be
performed only in facilities licensed as ambulatory surgical facilities. See id. at 821. The
Department then refused to allow the Clinic to apply for licensure as an ambulatory surgical
facility, regardless of whether the Clinic met the applicable standards for such licensure, on the
argument that the Clinic was required to obtain a Certificate of Need in order to file such an

12

application even though, as a “single-specialty” facility, a Certificate of Need was not available
by law. See id. at 824-25. Thus, while the new law did not, on its face, ban second-trimester
abortions, the State’s application of the new law effectively did.
This Court rejected the State’s attempt to justify its 2004 effective ban by claiming it was
motivated by a concern for women’s health, explaining:
it would hardly be reasonable to conclude that the State’s effective decision to ban
early second-trimester abortions by this plaintiff, without reference to whether it
meets the relevant health and safety criteria, does anything to further the State’s
professed desire to protect the health and safety of women who choose abortion.
Id. at 825. Accordingly, the Court issued injunctive relief. Id. at 827.
Similarly, in 1996, this Court enjoined the State’s attempt to allow abortion providers to
obtain licenses to operate only if they satisfied certain requirements, some of which were
impossible to meet, when the State could not show that the requirements were necessary to any
legitimate purpose. Pro-Choice Mississippi v. Thompson, CV No. 3:96CV596BN, Tr. of Hr’g
and Bench Op. at 18 ln.14-19 (Sept. 28, 1996) (attached to Plaintiffs’ Motion as Exhibit D). Of
particular relevance here, the Court specifically rejected a requirement that abortion providers
obtain a written transfer agreement from a nearby hospital. Id. Taking “judicial notice of the
fact that there is wide-spread public opposition and protest to abortions in this state,” the Court
recognized that “local pressure can and will be brought upon hospitals to deny these written
transfer agreements to abortion providers.” Id. Because this would effectively give hospitals
“third-party vetoes over whether the abortion providers can obtain a license,” the Court issued an
injunction to prevent that requirement from effectively banning abortion care in the state. Id.
Here, too, injunctive relief is proper and should issue to prevent the State’s enforcement
of the Admitting Privileges Requirement from operating as an unconstitutional de facto ban on
abortion care in Mississippi. Just as, in 2004, the State imposed a seemingly-neutral requirement
13

for provision of abortion care, but then made it impossible in practice to comply, the
Department’s eleventh-hour decision to enforce the Admitting Privileges Requirement and
require proof of compliance as a condition of licensure renewal, without even giving Plaintiffs a
reasonable opportunity to seek privileges makes compliance impossible in practice. Further, just
as, in 1996, the State made abortion providers’ licenses subject to veto by decision makers at
local hospitals, the Department’s actions here put Plaintiffs’ ability to operate at the mercy of
these same third parties who will be subject to the same political pressure recognized by the
Court in 1996 to exercise veto power over the provision of abortion services in the State.
Indeed, Plaintiffs cannot even influence the hospitals’ timeframe for making a decision
on Plaintiffs’ applications for privileges. Although some hospitals refused to estimate the length
of their process for considering applications for privileges, others estimated that the process
would take approximately three months. One hospital had indicated that, at a meeting on June
19, 2012, it would be considering the application for privileges submitted by the Clinic in April –
but when a Clinic staff member contacted that hospital to ask about the outcome of its meeting,
she learned that the hospital had decided not to consider the application after all.
There is no legitimate purpose for the Department’s actions.

Plaintiffs have been

providing safe abortion care for years, and their current backup arrangements are more than
adequate to ensure patient health in the extraordinarily unlikely event of a need to hospitalize a
patient. The Department undoubtedly recognized the lack of urgency for implementing the
Admitting Privileges Requirement when it indicated, in the May 29, 2012 letter, that it intended
to follow its normal rulemaking process, which would have given Plaintiffs another six weeks to
attempt to comply. It was only after blatantly anti-abortion political pressure was brought to bear
on the Department, most notably through the open letter sent by the sponsor of the Admitting

14

Privileges Requirement to demand its immediate enforcement, that the Department reversed
course and decided to require immediate compliance. The bare goal of banning abortion is not a
legitimate state interest and cannot justify the Department’s actions.
Accordingly, because immediate enforcement of the Admitting Privileges Requirement
will effectively ban abortion in Mississippi, Plaintiffs are likely to succeed on the merits of their
claim that the Department’s actions impose a substantial obstacle in the path of women seeking
pre-viability abortions in Mississippi and thereby violate the rights of Plaintiffs’ patients under
the Due Process Clause of the Fourteenth Amendment.
2.

The Purpose of the Admitting Privileges Requirement is To Prevent
Women From Obtaining Pre-Viability Abortions.

Plaintiffs are also likely to succeed on the merits of their claim that the Admitting
Privileges Requirement is unconstitutional because the proponents of this requirement have been
clear that its purpose is to end abortion in Mississippi.
When a statute’s purpose is to place a substantial obstacle in the path of a woman seeking
a pre-viability abortion, the statute “is invalid because the means chosen by the State to further
the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”
Casey, 505 U.S. at 877. Although a legislature’s articulation of the purpose of a statute is
typically afforded significant deference, a court must not accept a proffered purpose if it is a
mere “sham.” Okpalobi, 190 F.3d at 354 (quoting Edwards v. Aguillard, 482 U.S. 578, 586-87
(1987)); accord Hope Med. Grp. for Women v. LeBlanc, 2012 WL 701174, at *2-3 (holding that
a statute creating unlimited civil liability for any abortion was motivated by improper purpose
because it made it impossible for any physician to provide abortions); cf. Jane L. v. Bangerter,
102 F.3d 1112, 1116-17 (10th Cir. 1996), cert. denied sub nom. Leavitt v. Jane L., 520 U.S. 1274
(1997); Planned Parenthood of the Heartland v. Heineman, 724 F. Supp. 2d 1025, 1043-46 (D.
15

Neb. 2010) (holding that a statute creating nearly insurmountable informed consent requirements
was motivated by an unconstitutional purpose). In conducting an improper purpose inquiry, a
court should examine the social and historical context of the legislation, other legislation
concerning the same subject matter, the language of the challenged statute, and its legislative
3

history. Okpalobi, 190 F.3d at 354-55 (collecting cases); Hope Med. Grp. for Women v.
LeBlanc, 2012 WL 701174, at *2-3 (adopting Okpalobi analysis and holding).
First, the social and historical context of the Act, and specifically the Admitting
Privileges Requirement, makes it abundantly clear that the new law is intended to make abortion
inaccessible in Mississippi. Countless statements by elected officials about the Act make that
plain. See e.g. supra Section I(B) (examples of such statements). One legislator’s discussion of
the Admitting Privileges Requirement in a speech to a local political party was particularly vivid:
We have literally stopped abortion in the state of Mississippi. [APPLAUSE.]
Three blocks from the Capitol sits the only abortion clinic in the state of
Mississippi. A bill was drafted. It said, if you would perform an abortion in the
state of Mississippi, you must be a certified OB/GYN and you must have
admitting privileges to a hospital. Anybody here in the medical field knows how
hard it is to get admitting privileges to a hospital…. [he went on to provide
specific information about the physicians who provide abortions at the Clinic.]
It’s going to be challenged, of course, in the Supreme Court and all - but literally,
we stopped abortion in the state of Mississippi, legally, without having to – Roe
vs. Wade. So we’ve done that. I was proud of it. The governor signed it into
law. And of course, there you have the other side. They’re like, “Well, the poor
pitiful women that can’t afford to go out of state are just going to start doing them
at home with a coat hanger. That’s what we’ve learned over and over and over.
But hey, you have to have moral values. You have to start somewhere, and that’s
what we’ve decided to do. This became law and the governor signed it, and I
think for one time, we were first in the nation in the state of Mississippi.”
See Alcorn County G.O.P., Rep. Bubba Carpenter: We Have Literally Stopped Abortion in the
State

of

Mississippi,

YouTube,

http://www.youtube.com/watch?v=N3LOm2iXa4U&no

3 Unfortunately, reports of floor debate and other customary components of legislative history appear to be
unavailable; Mississippi does not collect or publish such information. State of Mississippi Judiciary State Library
Frequently Asked Questions, courts.ms.gov/faq/library_faqs.pdf (last visited June 27, 2012).

16

redirect=1 (last visited June 26, 2012). Anti-abortion state officials have made repeated and
consistent efforts to restrict abortion care in Mississippi to the maximum extent possible. As
discussed above, Mississippi’s previous efforts included its attempt to effectively ban secondtrimester abortion in 2004, and its 1996 attempt to give hospitals “third party vetoes over
whether the abortion providers can obtain a license,” Pro-Choice Mississippi v. Thompson, No.
3:96-cv-596BN (S.D. Miss. 1996) (Bench Opinion). Mississippi has also enacted numerous laws
restricting access to abortion care that remain in force. See Miss. Code Ann. §§ 41-41-45
(criminal ban on abortion, enacted in 2007 with an effective date ten days after the Mississippi
Attorney General determines Roe v. Wade is overruled); 41-41-53 (requiring two parents to
consent to a minor’s abortion, with some exceptions); 41-41-73 (criminal ban on a method of
abortion); 41-41-91 (prohibition on use of public funds “in any way for, to assist in, or to provide
facilities for abortion” with limited exceptions); 41-75-1 et seq. (requiring licensure by the
Department in order to operate an abortion facility, directing rulemaking, and establishing
extensive standards); 41-79-5(3) (prohibiting school nurses from providing students with any
counseling or referral services concerning abortions); 41-41-99 (prohibiting inclusion of abortion
coverage in health insurance plans); 93-21-309 (prohibiting certain funds from being used to
provide any counseling or other services associated with abortion); 97-3-3 (criminal ban on
performance of abortion by anyone other than a physician); 97-3-37 (defining “human being” to
include “an unborn child at every stage of gestation from conception until live birth” for certain
crimes). All of these laws are in force, as are the comprehensive regulations implementing
certain of the laws.
Currently, and consistently since it opened, the Clinic has been a target for ongoing
harassment and violence; some of the activity reached such a fever pitch that the United States

17

Department of Justice repeatedly prosecuted the offender. See, e.g., United States v. McMillan,
53 F. Supp. 2d 895 (S.D. Miss. 1999) (prosecution of anti-abortion extremist who shouted
“Where is the pipe-bomber when you need him?” every time he saw the Clinic’s physician); see
also Mot. for Order to Show Cause Why Deft. Should Not Be Held in Civil Contempt, United
States v. McMillan, No. 2:95-cv-633 HTW JCS (S.D. Miss. 2008) (prosecution of same antiabortion extremist for ongoing threats and violence).

In addition to this criminal activity,

protestors are at the Clinic daily to harass and threaten the physicians, staff and patients. Id.
Brewer-Anderson Decl. ¶ 10.
The third Okpalobi factor, likewise, reflects the improper purpose at work. At best, the
Admitting Privileges Requirement is cumulative of the existing regulation that requires a Level I
abortion facility—such as the Clinic—to have on its medical staff a physician with admitting
privileges at a local hospital. Miss. Admin. Code 15-16-1:42.g. This regulation specifically
differentiates between ambulatory surgical facilities, whose physicians must all have admitting
privileges, and abortion facilities, which are required only to have one physician with such
privileges. Such differentiation reflects the Department’s recognition that a requirement for all
physicians at an abortion facility is simply not necessary because of the extraordinarily safe
nature of abortion care. In other words, until Friday, June 22, 2012, the Department did not
believe that admitting privileges were necessary to provide safe care at a licensed abortion
facility, such as the Clinic.
Finally, an improper purpose need not be the only reason a law was passed or a regulation
was enacted in order to make it unconstitutional – merely the “predominant” one. Miller v.
Johnson, 515 U.S. 900, 916 (1995).

The sponsor of the Act has stated publicly that the

Admitting Privileges Requirement is motivated, variously, by a belief “that the physician [who

18

provides a woman’s abortion] ought to be able to follow that patient to a hospital if something
4

goes wrong,” and by a desire “to cause fewer abortions.”

5

But the language of the new law

makes plain that only the latter of these is the actual purpose at work here. For example, the
Admitting Privileges Requirement is an obligation imposed on physicians to obtain privileges –
it is not a requirement that hospitals allow physicians who provide abortions to follow their
patients in the event of a serious complication.
Taken together, all of these factors demonstrate that the Admitting Privileges
Requirement has nothing to do with patient safety or any other legitimate state interest. Rather,
it is the latest in a long series of attempts by the Mississippi Legislature to make it impossible for
women to obtain abortion care. Cf. Hope Med. Grp. for Women, 2012 WL 701174, at *3-4
(granting permanent injunctive relief on a purpose claim where the challenged act’s “structure
and language put the lie to the State’s insistence that the legislation is designed merely to
enhance the information furnished to women seeking abortions”). Accordingly, Plaintiffs have
demonstrated a substantial likelihood of success on this claim.
3.

Immediate Enforcement Of The Admitting Privileges Requirement
Will Violate Plaintiffs’ Procedural Due Process Rights.

Plaintiffs have established a substantial likelihood of success on the merits of their claim
that the Department’s eleventh-hour decision to immediately enforce the Admitting Privileges
Requirement will violate Plaintiffs’ procedural due process rights.
Plaintiffs have protected property and liberty interests in continuing their provision of
safe abortion and other reproductive health care services to women in Mississippi. See United

4

Vershal Hogan, Bill Could End Miss. Abortions, NatchezDemocrat.com (Apr. 7, 2012, 12:10 AM),
http://www.natchezdemocrat.com/2012/04/07/bill-could-end-miss-abortions/
5

MJ Lee, Bill Dooms Only Miss. Abortion Clinic, Politico (Apr. 6, 2012, 6:38 AM),
http://www.politico.com/news/stories/0412/74871.html

19

States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir. 1969) (“The right to pursue a lawful business . .
. has long been recognized as a property right within the protection of the Fifth and Fourteenth
Amendments of the Constitution.”); see also Women’s Health Med. Prof’l Corp. v. Baird, 438
F.3d 595, 612 (6th Cir. 2006) (“[T]he Constitution protects a person’s choice of careers and
occupations.”). The Clinic has been in continuous operation for seventeen years and serves
thousands of women who seek care every year. Dr. Parker decided to provide abortions to
women at the Clinic at the end of last year, and for that exclusive purpose applied for and
received a Mississippi medical license in May. The Constitution forbids the State to interfere
with these protected interests without first providing constitutionally adequate procedures. See
Bell v. Burson, 402 U.S. 535, 542-43 (1971).
Earlier this year, the Fifth Circuit held that the procedural due process rights of a business
owner were violated when the zoning board that had granted her permits to operate in July 2009
revoked them, without notice, in mid-September, 2009. Bowlby v. City of Aberdeen, 681 F. 3d
215 (5th Cir. 2012). The business owner was not invited to the zoning board’s discussion of her
permits in mid-September, and she was given no opportunity to be heard prior to its decision. Id.
Rather, the day after the zoning board met and decided to revoke her permits, she was presented
with a list of putative reasons for the board’s decision and instructed to immediately cease
operation.

Id.

Affirming the lower court’s holding, the Fifth Circuit held that in such

circumstances, “due process demands more than no hearing at all.” Id. at *4 (applying the
Mathews factors).
Similarly, just last year, a federal district court in Kansas issued preliminary injunctive
relief against enforcement of incredibly onerous regulations of abortion facilities that made
compliance practically impossible. Transcript of Temporary Restraining Order Hearing at 40,

20

45-46, Hodes & Nauser, MD’s, PA v. Moser, 2011 WL 4553061 (D. Kansas July 1, 2011) (No.
11-2365) (transcript attached as Exhibit E). The regulations required extensive renovations and,
potentially, new construction; nevertheless, the Department decided to give abortion facilities
only nine days to comply. Id. Recognizing that the Department’s decision effectively forced the
affected facilities to close, at great harm to their patients, without giving the facilities any
opportunity to be heard, the district court temporarily enjoined enforcement. Id.
Here, too, Plaintiffs will be forced to stop operating without having had any meaningful
opportunity to be heard, in violation of their procedural due process rights.

Under these

circumstances, as in Bowlby and Hodes & Nauser, injunctive relief is proper. Cf. Baird, 438
F.3d at 611-13 (holding that state health department denied physician’s right to due process by
denying the physician’s request for a waiver from a regulatory requirement without granting the
physician a pre-deprivation opportunity to be heard).6 Therefore, Plaintiffs have demonstrated a
substantial likelihood of success on the merits of this claim.
B.

Plaintiffs And Their Patients Will Experience Irreparable Injury Absent
Preliminary Injunctive Relief.7

Enforcement of the Admitting Privileges Requirement before Plaintiffs even know
whether they can comply with it will cause irreparable harms to Plaintiffs, their patients, and
public health. It will shut down Plaintiffs’ provision of abortion care, exposing Plaintiffs’
patients to unnecessary delays in obtaining their abortions and leaving women with nowhere to

6 While “summary administrative action may be justified in emergency situations,” Hodel v. Va. Surface Mining
and Reclamation Ass’n, Inc., 452 U.S. 264, 300 (1981), no evidence of any such emergency exists here, given the
Department’s initial decision to follow its normal rulemaking process before enforcing the Admitting Privileges
Requirement.
7

While it is plain that Plaintiffs and their patients will suffer irreparable injury if the Department’s decision is
allowed to stand, no showing of injury is necessary to prevail on Plaintiffs’ procedural due process claim: “the right
to procedural due process is ‘absolute’ in the sense that it does not depend on the merits of a claimant’s substantive
assertions and because of the importance to organized society that procedural due process be observed.” Bowlby, at
*5 (quoting and citing Carey, 435 U.S. at 266).

21

turn for an abortion in the State of Mississippi. These harms constitute irreparable injury. See,
e.g., Chalk v. Court, 840 F.2d 701, 709-10 (9th Cir. 1988) (emotional and psychological injury
constitutes irreparable harm); Amer. Med. Ass’n v. Weinberger, 522 F.2d 921, 925-26 (7th Cir.
1975) (irreparable harm exists where regulations undermine patient confidence in physicians and
prevent physicians from treating patients effectively). Moreover, where, as here, there is a
threatened violation of constitutional rights, that threat alone constitutes irreparable injury. See,
e.g., Elrod v. Burns, 427 U.S. 346 (1976); Deerfield Med. Ctr. v. City of Deerfield Beach, 661
F.2d 328, 338 (5th Cir. 1981) (alleged violation of women’s right to privacy); Adams v. Baker,
919 F. Supp. 1496, 1505 (D. Kan. 1996) (alleged violation of Fourteenth Amendment rights).
C.

The Injury To Plaintiffs And Their Patients Far Outweighs Any Harm To
Defendants.

Plaintiffs and their patients will suffer serious injury absent injunctive relief that will
allow continued provision of safe abortion care after July 1, 2012. Defendants, on the other
hand, will suffer no injury whatsoever, because such relief will simply preserve the status quo.
The State has no interest in violating the federal Constitution and therefore cannot be harmed by
being prevented from doing so. See Deerfield Med. Ctr., 661 F.2d at 338-39. Moreover,
Mississippi law expressly provides for abortion facilities and ambulatory surgical facilities to be
granted a “grace period”—which the Department inexplicably refused to apply here—for coming
into compliance with new licensure regulations.

See Miss. Code Ann. § 41-75-16.

The

importance of such a “grace period” is particularly obvious where, as here, Plaintiffs cannot
control hospitals’ process and timeline for making decisions concerning privileges applications.
Thus, the balance of hardships tips decidedly in favor of granting the immediate injunctive relief
Plaintiffs seek.

22

D.

Granting Injunctive Relief Will Serve the Public Interest.

An injunction against immediate enforcement of the Admitting Privileges Requirement
would plainly serve the public interest. Indeed, “[t]he public interest … requires obedience to
the Constitution ….” Carey v. Klutznick, 637 F.2d 558, 568 (2d Cir. 1980); see Reinert v. Haas,
585 F. Supp. 477, 481 (S.D. Iowa 1984) (holding that the public interest “is always well served
by protecting the constitutional rights of all its members.”). It is a well-established principle that
the “public interest [is] not disserved by an injunction preventing [the] implementation” of a law
that violates constitutional rights. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th
Cir. 1996). Further, the public interest is well-served by preserving the status quo “until the
merits of a serious controversy can be fully considered by a trial court.” Blackwelder Furniture
Co. v. Selig Mfg. Co., 550 F.2d 189, 197 (4th Cir. 1977). Here, immediate injunctive relief
would protect women’s ability to access abortion care in a timely way.

Between twenty-five

and thirty women are expected to obtain their procedures next week alone. Brewer-Anderson
Decl. ¶ 9. Without injunctive relief, those women will have nowhere else to turn. Even if some
women are able to travel out of state to obtain an abortion, the resulting delay is detrimental to
patient health and therefore not in the public interest.

Thus, restraining Defendants from

enforcing the Admitting Privileges Requirement will serve the public interest.
III.

Conclusion
For all of these reasons, Plaintiffs respectfully request that the Court grant their motion

for temporary restraining order and preliminary injunction.

23

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

24

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]

25