BRYANT et al v. WOODALL et al
Filing
31
MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE L. PATRICK AULD on 4/7/2017, that Defendants' Rule 56(d) Motion (Docket Entry 21 ) is GRANTED. Defendants may conduct discovery until June 6, 2017, regarding: (1) whether any fetuses between 20 and 26 weeks in North Carolina meet the definition of "viable" adopted by the Supreme Court, and, if so, how many and when; (2) whether fetuses between 20 and 26 weeks experience pain and, if so, when and to what degree; (3) whether ab ortions of fetuses between 20 and 26 weeks pose any greater health risks to pregnant women than abortions of fetuses before 20 weeks and, if so, when and to what degree; and (4) Plaintiffs' standing to bring this action. Defendants shall file any response to Plaintiffs' Motion for Summary Judgment (Docket Entry 13 ) by July 6, 2017. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AMY BRYANT, M.D., et al.,
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
JIM WOODALL, et al.,
Defendants.
1:16CV1368
MEMORANDUM OPINION AND ORDER
Defendants have filed, pursuant to Federal Rule of Civil
Procedure 56(d), a Verified Motion for an Order Deferring Any
Further Briefing on and Postponing Any Hearing or Decision on
Plaintiffs’ Motion for Summary Judgment until Defendants Have Had
an Opportunity to Conduct Limited, Expedited Discovery and to
Gather Documents and Evidence Necessary to Allow Them to Respond to
Plaintiffs’ Summary Judgment Motion. (Docket Entry 21 (“Rule 56(d)
Motion”).)
For the reasons that follow, the Court will grant
Defendants’ Rule 56(d) Motion.
INTRODUCTION
By statute, North Carolina generally makes it a crime to
perform an abortion, see N.C. Gen. Stat. §§ 14-44, 14-45, but
nonetheless recognizes the legality of all abortions:
(1) “during the first 20 weeks of a woman’s pregnancy, . . .
when the procedure is performed by a qualified physician licensed
to practice medicine in North Carolina in a hospital or clinic
certified by the Department of Health and Human Services to be a
suitable facility for the performance of abortions,” N.C. Gen.
Stat. § 14-45.1(a) (emphasis added); and
(2) “after the twentieth week of a woman’s pregnancy, . . .
when the procedure is performed by a qualified physician licensed
to practice medicine in North Carolina in a hospital licensed by
the Department of Health and Human Services, if there is a medical
emergency as defined by [N.C. Gen. Stat. §] 90-21.81(5),” N.C. Gen.
Stat. § 14-45.1(b) (emphasis added); see also N.C. Gen. Stat. § 9021.81(5) (“Medical emergency.--A condition which, in reasonable
medical judgment, so complicates the medical condition of the
pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create
serious risk of substantial and irreversible physical impairment of
a
major
emotional
bodily
function,
conditions.
not
For
including
purposes
of
any
this
psychological
or
definition,
no
condition shall be deemed a medical emergency if based on a claim
or diagnosis that the woman will engage in conduct which would
result in her death or in substantial and irreversible physical
impairment of a major bodily function.”).
Plaintiffs, three North Carolina-licensed medical doctors and
a nonprofit corporation with health centers in North Carolina (see
Docket Entry 1, ¶¶ 7-10), have challenged this statutory scheme, in
-2-
an
action
against
Defendants,
two
North
Carolina
District
Attorneys, the President of the North Carolina Medical Board, and
the Secretary of the North Carolina Department of Health and Human
Services (see id., ¶¶ 12-15).
Plaintiffs’ Complaint alleges that,
“[i]n a normally progressing pregnancy, viability typically does
not occur before approximately 24 weeks from the woman’s last
menstrual period.”
(Id., ¶ 26 (emphasis added); see also Docket
Entry 13-1, ¶¶ 6 (“The opinions in this declaration are [Plaintiff
Amy Bryant’s] expert opinions.”), 15 (“Pregnancy is measured from
the first day of a woman’s last menstrual period, also referred to
as ‘lmp.’ . . .
Viability generally occurs at approximately 24
weeks lmp.”), 16 (opining that, by restricting abortions after 20
weeks of pregnancy except for medical emergencies, North Carlina
law “prohibits abortion at a point in pregnancy when no fetus is
viable”).
Carolina’s
The Complaint seeks “a declaratory judgment that [North
above-quoted
abortion]
statutes
.
.
.
are
unconstitutional as applied to previability abortions, under the
Fourteenth Amendment to the United States Constitution” (Docket
Entry 1, ¶ 55 (emphasis added)), as well as “a permanent injunction
restraining Defendants, their employees, agents, and successors
from enforcing in any way state law limiting Plaintiffs’ ability to
provide previability abortions” (id., ¶ 56 (emphasis added)) and an
award of their “reasonable costs and attorney’s fees” (id., ¶ 57).
-3-
Defendants accepted service of process on December 7, 2016
(see Docket Entry 16 at 1), resulting in the initial establishment
of a responsive pleading deadline of December 28, 2016, Fed. R.
Civ. P. 12(a)(1)(A)(i). Two weeks before that deadline, Plaintiffs
moved for summary judgment (Docket Entry 13), which (in the normal
course) would have required Defendants to file their summary
judgment response by January 13, 2017, M.D.N.C. LR 7.3(f).
At
Defendants’ request and with Plaintiffs’ consent (see Docket Entry
19), the Court extended Defendants’ responsive pleading deadline to
January 13, 2017, and their summary judgment response deadline to
January 27, 2017 (Text Order dated Dec. 27, 2016).
Thereafter, Defendants timely answered (Docket Entry 20) and
timely filed their Rule 56(d) Motion requesting an extension of
their summary judgment response deadline until 30 days after a 60day discovery period (see Docket Entry 21 at 1-2).
Defendants’
Rule 56(d) Motion indicates that they wish to conduct discovery on
(1) fetal viability beginning at 20 weeks, (2) fetal susceptibility
to pain, (3) increased health risks for women who have abortions
after 20 weeks, and (4) Plaintiffs’ standing to bring this action.
(See id. at 7, 9 (stating that Defendants sought Plaintiffs’
consent “to a brief, sixty-day period of discovery limited to” the
foregoing items (1), (2), and (3)), 10-11 (describing Defendants’
interest in pursuing discovery as to “whether [] [P]laintiffs have
standing” and providing examples of such discovery).)
-4-
The Court
stayed Defendants’ summary judgment response deadline, pending
completion of briefing on and final resolution of their Rule 56(d)
Motion.
(Text Order dated Jan. 26, 2017.)
Plaintiffs have
responded in opposition to Defendants’ Rule 56(d) Motion (Docket
Entry 27) and Defendants have replied (Docket Entry 28).1
DISCUSSION
“As a general proposition, summary judgment is appropriate
only after adequate time for discovery.”
Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d
264, 280 (4th Cir. 2013) (en banc) (emphasis added) (internal
quotation marks omitted) (vacating entry of summary judgment for
the plaintiff on its free speech claim).
Accordingly, although
(absent a contrary local rule or court order) a party may move for
summary judgment before discovery closes, see Fed. R. Civ. P.
56(b), “when a party lacks material facts necessary to combat a
summary judgment motion, she may file an ‘affidavit or declaration
that,
for
specified
reasons,
the
party
cannot
present
facts
essential to justify its opposition,’” McCray v. Maryland Dep’t of
Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014)
(brackets omitted) (quoting Fed. R. Civ. P. 56(d)) (vacating entry
1
In addition, without objection from the parties, the Court
permitted the filing of an amicus brief by the President Pro
Tempore of the North Carolina Senate and the Speaker of the North
Carolina House of Representatives. (See Text Order dated Feb. 28,
2017; see also Docket Entry 29 (amicus brief).)
-5-
of summary judgment against the plaintiff on her Title VII claim).2
In particular, where (as here) a party faces a summary judgment
motion before any discovery has occurred, the party takes “the
proper course when it file[s a verified] Rule 56([d]) [motion],
stating that it could not properly oppose summary judgment without
a chance to conduct discovery.”
Greater Balt. Ctr., 721 F.3d at
281 (ellipsis and internal quotation marks omitted).
“Further, such motions are broadly favored and should be
liberally granted in order to protect non-moving parties from
premature summary judgment motions.”
McCray, 741 F.3d at 484
(internal quotation marks omitted) (emphasis added); see also In re
PHC, Inc. S’holder Litig., 762 F.3d 138, 144 (1st Cir. 2014)
(“‘Typically, when the parties have no opportunity for discovery,
denying the Rule 56([d]) motion and ruling on a summary judgment
motion is likely to be an abuse of discretion.’” (quoting CenTra,
Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008))); Greater Balt.
Ctr., 721 F.3d at 280 (“Chief among its errors was the district
court’s award of summary judgment to the [plaintiff] without
allowing the [defendant] any discovery.”); Doe v. Abington Friends
Sch., 480 F.3d 252, 257 (3d Cir. 2007) (“District courts usually
grant properly filed Rule 56([d]) motions as a matter of course.”
2
“The language of Rule 56(d) appeared in Rule 56(f) before
amendments in 2010, but these amendments made no substantial change
to the rule.” McCray, 741 F.3d at 484 n.2.
-6-
(internal quotation marks omitted)); Burlington N. Santa Fe R.R.
Co. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323
F.3d 767, 773 (9th Cir. 2003) (“Where, however, a summary judgment
motion is filed so early in the litigation, before a party has had
any realistic opportunity to pursue discovery relating to its
theory of the case, district courts should grant any Rule 56([d])
motion fairly freely.”); Wichita Falls Office Assocs. v. Banc One
Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992) (“[C]ontinuance of a
motion for summary judgment for purposes of discovery should be
granted almost as a matter of course unless the non-moving party
has not diligently pursued discovery of the evidence.” (internal
quotation marks omitted)).
Notably, the Center for Reproductive Rights (“CRR”), whose
attorneys represent Plaintiff Bryant here (see, e.g., Docket Entry
27 at 153), also participated in the Greater Balt. Ctr. litigation,
see Appellants/Cross-Appellees’ Brief for the En Banc Court at 1,
Greater Balt. Ctr., 721 F.3d 264 (Nos. 11-1111, 11-1185), 2012 WL
3812702, at unnumbered cover page (identifying CRR attorney as
counsel for the appellants/cross-appellees). In that appeal, a CRR
3
Plaintiffs’ brief opposing Defendants’ Rule 56(d) Motion
begins assigning sequential arabic numerals only to pages after the
cover page, table of contents, and table of authorities (all of
which bear sequential lower case roman numerals), but the footer
appended to that brief upon its docketing via the CM/ECF system
assigns sequential arabic numerals beginning with the cover page.
(See Docket Entry 27.) In this Memorandum Opinion, citations to
that brief refer to the page numbers in the CM/ECF footer.
-7-
attorney contended to the United States Court of Appeals for the
Fourth Circuit that “the district court’s ruling on the merits of
[the plaintiff’s] motion for partial summary judgment was premature
because it came before [the defendants] had the opportunity to
conduct any discovery or fully develop expert testimony on key
factual issues.”
Id. at 45 (emphasis added); see also id. at 45
n.15 (noting that the plaintiff “filed [its] motion for partial
summary judgment before the deadline for the [defendants] to
respond to the [c]omplaint had expired and, thus, before the
opportunity to conduct discovery even arose”).
According to the
CRR attorney, the defendants in the Greater Balt. Ctr. case “could
not test the veracity of [the plaintiff’s] factual allegations
because the district court denied [the defendants] the opportunity
to conduct discovery. . . .
This lack of discovery improperly
prejudiced the [defendants] and require[d] reversal of the district
court’s judgment.”
Similarly,
in
Id. at 46.
prior
appellate
litigation
(conducted
even
before the issuance of the Fourth Circuit’s decisions in McCray and
Greater Balt. Ctr., which (as quoted above) strongly counsel
district courts to grant relief under Rule 56(d) when no discovery
has occurred), the legal arm of the American Civil Liberties Union
of North Carolina (“ACLU-NC”) (which represents Plaintiffs in this
action (see, e.g., Docket Entry 27 at 14-15)) argued to the Fourth
Circuit
that
“[e]ntry
of
[s]ummary
-8-
[j]udgment
[a]gainst
[its
client],
[w]ithout
[p]ermitting
[h]er
[d]iscovery, [w]as [i]nappropriate.”
to
[c]onduct
[a]ny
Brief of Appellant at 21,
Willis v. Town of Marshall, 426 F.3d 251 (4th Cir. 2005) (Nos. 032252, 04-1240), 2004 WL 3200530, at *21 (4th Cir. Apr. 12, 2004);
see also id. at unnumbered cover page (listing attorney with ACLUNC as “Counsel for Appellant”). Moreover, in doing so, the ACLU-NC
attorney asserted that decisions “allow[ing] summary judgment to be
entered in the absence of discovery . . . have arisen predominantly
in the context of frivolous litigation such as pro se prisoner
cases.”
Id. at 24 (emphasis added).
Ultimately, in that case (as
it later did in McCray and Greater Balt. Ctr.), the Fourth Circuit
“conclude[d] that the granting of summary judgment was premature.”
Willis, 426 F.3d at 263; see also id. (“Because the district court
granted
summary
plaintiff]
had
judgment
no
before
opportunity
allowing
to
any
demonstrate
discovery,
that
[the
[evidence
supporting her claim existed].”).
In the face of the foregoing authority4 and prior litigation
positions of organizations with whom Plaintiffs have partnered in
this case, all of which supports the view that the Court should not
resolve Plaintiffs’ summary judgment motion without first allowing
Defendants some chance for discovery, Plaintiffs have insisted that
4
Regrettably, Plaintiffs did not actually “face” the abovediscussed authority, including the recent Fourth Circuit opinions
in McCray and Greater Baltimore Ctr. (See Docket Entry 27 at 5-14
(omitting any reference to said cases).)
-9-
the Court should deny Defendants’ Rule 56(d) Motion, because North
Carolina’s limitation on abortions after 20 weeks “must be struck
down under controlling Supreme Court precedent” (Docket Entry 27 at
14) and Defendants “cannot propose to provide this Court with any
evidence that would alter th[at] conclusion” (id.).
Specifically,
Plaintiffs have argued that “the only material fact at issue before
this Court[ is whether] the 20-week ban [on abortions except for
medical emergencies] prohibits some previability abortions.”
(Id.
at 5 (emphasis added).) According to Plaintiffs, no dispute exists
between the parties on this question, because “Defendants concede
that fetal viability is a determination that must be made by a
physician on a case-by-case basis and do not and cannot claim that
they will provide the Court with evidence that all fetuses reach
viability immediately after the twentieth week of pregnancy.” (Id.
(emphasis added); see also id. at 8 (“Defendants concede this very
point
[i.e.,
that
the
determination
of
fetal
viability
lies
exclusively with the attending physician] in their [A]nswer.”
(citing Docket Entry 20, ¶ 27)).)
Plaintiffs’ efforts have not
persuaded the Court to deny Defendants all right to discovery.
As an initial matter, Defendants have not made the sweeping
concession about the determination of fetal viability attributed to
them by Plaintiffs. To the contrary, Defendants only made the more
limited admission “that the moment of fetal viability is determined
by a licensed physician operating within the bounds of law, as
-10-
prescribed by the State’s duly authorized law makers.
[They]
further admit[ted] that the moment of fetal viability varies from
pregnancy to pregnancy, within limitations, depending on various
factors.”
(Docket Entry 20, ¶ 27 (emphasis added).)5
Additional issues arise in connection with Plaintiffs’ abovequoted framing of “the only material fact at issue” (Docket Entry
27
at
5),
as
impossibility
of
well
as
showing
their
that
related
“all
contention
fetuses
reach
that
the
viability
immediately after the twentieth week of pregnancy” (id.) requires
the Court to enter a pre-discovery judgment invalidating North
Carolina’s
restriction
on
abortions
after
20
weeks
“under
controlling Supreme Court precedent” (id. at 14). To support their
pronouncements about such matters, Plaintiffs principally rely on
three decisions:
Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833 (1992), Colautti v. Franklin, 439 U.S. 379 (1979), and Isaacson
v. Horne, 716 F.3d 1213 (9th Cir. 2013).
7-11.)
(See Docket Entry 27 at
The last of those decisions involved an Arizona law, which
(like the challenged North Carolina statutes) “forb[ade], except in
5
Plaintiffs’ Complaint alleges that “[v]iability is a
determination that must be made by a physician, and it will vary
from pregnancy to pregnancy, depending on the health of the woman
and the fetus.”
(Docket Entry 1, ¶ 27.) “Except as expressly
admitted [in the above-quoted language from their Answer,
D]efendants den[ied] the allegations contained in paragraph 27 of
[the] Complaint.” (Docket Entry 20, ¶ 27.) Deciding which side’s
view on this subject must prevail remains for another day, but
Plaintiffs cannot re-write Defendants’ Answer to circumvent the
process for resolving such disputes (which includes discovery).
-11-
a medical emergency, abortion of a fetus determined to be of a
gestational age of at least twenty weeks.”
1217.
Isaacson, 716 F.3d at
The United States Court of Appeals for the Ninth Circuit
held that “Arizona’s twenty-week law [wa]s a preclusion prior to
fetal viability and [wa]s thus invalid under binding Supreme Court
precedent.”
Id.
In so holding, the Ninth Circuit heavily relied
(like Plaintiffs) on Casey, particularly this statement:
“‘Before
viability, the State’s interests are not strong enough to support
a prohibition of abortion or the imposition of a substantial
obstacle to the woman’s effective right to elect the procedure.’”
Id. at 1222 (quoting Casey, 505 U.S. at 846).
However, as a concurring judge pointed out, in Isaacson:
[T]he parties d[id] not dispute that the 20–week line
Arizona ha[d] drawn is three or four weeks prior to
viability. [The d]efendants d[id] not argue that the 20
to 23 or 24 week fetuses protected by the statute are
viable, and offer[ed] no evidence to that effect. [The
Ninth Circuit was] bound, in th[at] particular case, by
the absence of any factual dispute as to whether the
fetuses to be killed between gestational ages 20 and 23
or 24 weeks are viable. . . . [N]on-viability [wa]s the
underlying factual assumption of both parties in [the
Isaacson] case.
For th[at] case, Arizona concede[d]
non-viability.
Id. at 1233 (Kleinfeld, S.J., concurring).6
6
Thus, contrary to Plaintiffs’ suggestion, Isaacson did not
determine that Supreme Court precedent mandates the invalidation of
a state law if 99.99% (but not “all”) of the abortions it restricts
involve viable fetuses, because .01% (i.e., “some”) of the
restricted abortions involve non-viable fetuses. Instead, Isaacson
decided that, where a State concedes that all of the abortions
(continued...)
-12-
Contrastingly, in Defendants’ Rule 56(d) Motion, their counsel
has averred as follows:
[Defendants] believe[] that the evidence which [they]
propose[] to develop through limited, expedited discovery
will show that the state of medical and scientific
knowledge has advanced dramatically since [the Supreme
Court’s prior rulings on abortion] and that, inter alia,
fetal viability is now known to occur before the point
identified
.
.
.
in
[Plaintiffs’]
experts’
affidavits. . . . [D]efendants wish to . . . put[] on
their own evidence as to when viability begins . . . .
(Docket Entry 21 at 12 (emphasis in original).)
Given this
significant distinction between the litigation approach taken by
the defendants in Isaacson and the one forecast by Defendants’
counsel here, the Court cannot conclude that Isaacson or Casey
precludes Defendants from pursuing discovery before responding to
Plaintiffs’ summary judgment motion.
Plaintiffs’ brief opposing Defendants’ Rule 56(d) Motion also
quotes Colautti for the proposition that a state may not “dictate
6
(...continued)
prohibited by a law involve non-viable fetuses, the law cannot
stand in light of Supreme Court precedent. Nor has the Court found
language in Supreme Court decisions about abortion, including
Casey, that stretches as far on this front as Plaintiffs apparently
would have this Court go. Defendants also seem to have resorted to
hyperbole by arguing in reply that, if allowed discovery, they will
“attempt to obtain evidence, inter alia, that all post-twenty week
abortions involve a viable fetus.” (Docket Entry 28 at 2 (bold
emphasis added).) Any such attempt likely would run directly into
an admission Defendants did make in their Answer. (Compare Docket
Entry 1, ¶ 28 (“Some fetuses are never viable, such as those with
fatal anomalies . . . .”), with Docket Entry 20, ¶ 28 (“Given the
[Complaint’s] use of the term ‘fatal,’ . . . [D]efendants admit the
allegations contained in paragraph 28 of the . . . Complaint.”).)
-13-
where the point of viability lies, because ‘the determination of
whether a particular fetus is viable is, and must be, a matter for
the judgment of the responsible attending physician.’”
Entry 27 at 7 (quoting Colautti, 439 U.S. at 396).)
(Docket
Although they
accurately quoted Colautti, Plaintiffs wrenched that language from
its context, including the next sentence of the decision, which
appears to acknowledge that, consistently with the Constitution,
States may place some limits on the range within which doctors may
exercise their judgment about viability:
“State regulation that
impinges upon this determination [i.e., of a fetus’s viability], if
[such regulation] is to be constitutional, must allow the attending
physician the room he needs to make his best medical judgment.”
Colautti, 439 U.S. at 397 (internal quotation marks omitted).
Moreover, the Supreme Court (albeit in fractured fashion)
later reversed a decision that relied on Colautti to strike down a
state law “requir[ing] that, prior to performing an abortion on any
woman whom a physician has reason to believe is 20 or more weeks
pregnant, the physician ascertain whether the fetus is viable by
performing such medical examinations and tests as are necessary to
make a finding of the gestational age, weight, and lung maturity of
the unborn child.” Webster v. Reproductive Health Servs., 492 U.S.
490, 501 (1989) (internal quotation marks omitted); see also id. at
517 (stating, in plurality opinion, that state law mandating
certain
viability-related
tests
-14-
(approved
by
the
majority)
“superimpose[s] state regulation on the medical determination [of]
whether a particular fetus is viable”).
Further, the Supreme Court now has stated (in affirming a
federal ban on partial-birth abortion procedures) that it “give[s]
state and federal legislatures wide discretion to pass legislation
in areas where there is medical and scientific uncertainty. . . .
The law need not give abortion doctors unfettered choice in the
course of their medical practice, nor should it elevate their
status above other physicians in the medical community.”
Gonzales
v. Carhart, 550 U.S. 124, 163 (2007).
Given such context, questioning the degree to which Colautti
prevents a State from setting parameters on a physician’s ability
to deem a fetus non-viable, at a minimum, does not constitute a
frivolous litigation position warranting denial of any opportunity
for discovery.
Indeed, even Justice Kennedy, who co-authored the
Casey
on
opinion
which
Plaintiffs
rely,
joined
the
Webster
plurality opinion which pilloried Colautti as among the decisions
that improperly “mak[es] constitutional law in th[e abortion] area
a virtual Procrustean bed.”
Webster, 492 U.S at 517.7
7
“Procrustes was a ‘legendary robber of ancient Greece who
forced his victims to fit a certain bed by stretching or lopping
off their legs.’ . . . [A] ‘procrustean bed’ means an arbitrary
standard to which precise conformity is forced.”
Abraham v.
Piechowski, 13 F. Supp. 2d 870, 878 n.7 (E.D. Wis. 1998) (quoting
Webster’s Third New Int’l Dictionary at 1809 (1986)).
-15-
On an even more fundamental level, the United States Court of
Appeals for the Eighth Circuit recently offered this critique of
the entire “viability” framework:
The viability standard is clearly on a collision course
with itself. As medical science becomes better able to
provide for the separate existence of the fetus, the
point of viability is moved further back toward
conception. . . . [S]tates in the 1970s lacked the power
to ban an abortion of a 24–week–old–fetus because that
fetus would have not satisfied the viability standard of
that time period. Today, however, that same fetus would
be considered viable, and states would have the power to
restrict such abortions. . . . [L]egislatures are better
suited to make the necessary factual judgments in this
area. . . . Courts are ill-suited to second-guess these
legislative judgments.
Edwards v. Beck, 786 F.3d 1113, 1118 (8th Cir. 2015) (brackets,
citations, and internal quotation marks omitted); see also Webster,
492
U.S.
at
518-19
(criticizing
use
of
“viability”
as
a
constitutional standard given that it is “not found in the text of
the Constitution or in any place else one would expect to find a
constitutional principle” and denying the existence of a principled
justification for judicial enforcement of “a rigid line allowing
state
regulation
viability”);
after
Isaacson,
viability
716
F.3d
but
at
prohibiting
1233
it
(Kleinfeld,
before
S.J.,
concurring) (describing constitutionalization of “viability” as “an
odd rule, because viability changes as medicine changes,” and
observing that, between the ruling in Roe v. Wade, 410 U.S. 113
(1973), “and the time Casey was decided in 1992, viability dropped
-16-
from 28 weeks to 23 or 24 weeks, because medical science became
more effective at preserving the lives of premature babies”).
Keenly aware of such criticisms, Plaintiffs properly have
noted that, “if a precedent of the Supreme Court has direct
application in a case, lower courts should follow the case which
directly controls ‘leaving to the Supreme Court the prerogative of
overruling its own decisions.’” (Docket Entry 27 at 11 (brackets
omitted) (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)).)
Granting Defendants’ Rule 56(d) Motion, however, does not overrule
a Supreme Court decision; instead, allowing Defendants to conduct
discovery on viability simply recognizes “the importance of the
parties, particularly the [S]tate, developing the record in a
meaningful way so as to present a real opportunity for the [C]ourt
to examine viability, case by case, as viability steadily moves
back towards conception.”
Edwards, 786 F.3d at 1119.
Similarly, although Defendants’ planned pursuit of “discovery
[to] show that an infant in utero begins to feel pain . . . quite
probably by the twenty-week gestational age point” (Docket Entry 21
at 12) and to “show that the risk to maternal health increases
exponentially as one moves beyond the first trimester of pregnancy
to the latter part of the second trimester” (id.) appears to hold
a lesser likelihood of ultimately affecting the disposition of
Plaintiffs’ summary judgment motion than discovery into viabilityrelated matters, see Isaacson, 716 F.3d at 1234-35 (Kleinfeld,
-17-
S.J., concurring), the Court will allow discovery in those two
areas as well.
“As the Supreme Court has observed, ‘the law may
change or clarify in the midst of litigation.’
Due to this
potential mutability, unfavorable precedent does not necessarily
mean that [Defendants] ha[ve] no reasonable grounds for [litigating
an issue]. A contrary rule would chill parties from advocating for
changes
in
the
law.”
Baker
v.
Windsor
Republic
Doors,
No.
1:06CV1137, 2009 WL 2461383, at *6 (W.D. Tenn. Aug. 10, 2009)
(brackets and citation omitted) (quoting Christiansburg Garment Co.
v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412, 422 (1978)); see
also Babyage.com, Inc. v. Center for Envtl. Health, 90 F. Supp. 3d
348, 358 (M.D. Pa. 2015) (“[E]ven if we assume arguendo that the
[plaintiff’s] claim is barred under the available precedent, claims
based on ‘a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law’ are explicitly
authorized by the Federal Rules. . . .
Because the [p]laintiffs
[sic] claim is asserted under a [constitutional provision] marked
by a history of controversy and fluidity, the [c]ourt is not
prepared to label [the plaintiff’s litigation position] ‘frivolous’
under Rule 11.” (quoting Fed. R. Civ. P. 11(b)(2))).8
8
Indeed, as Defendants well-stated in their reply, if
Plaintiffs “succeed[ed] in persuading this Court to prevent . . .
[D]efendants from putting the latest scientific and medical
information on these matters into the record in this case, then
they would succeed in preventing any subsequent appellate court,
(continued...)
-18-
Finally,
Plaintiffs
have
opposed
discovery
on
standing,
asserting that their affidavits “ma[k]e a sufficient showing to
establish standing.” (Docket Entry 27 at 12.) The Court, however,
agrees with Defendants that they “are entitled to test [the]
assertions [in Plaintiffs’ affidavits] through discovery.” (Docket
Entry
28
at
4
(emphasis
generally
is
a
matter
in
dealt
original).)
with
at
the
“Although
earliest
standing
stages
of
litigation, usually on the pleadings, it sometimes remains to be
seen whether the factual allegations . . . necessary for standing
will be supported adequately by the evidence adduced at trial.”
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31
(1979); see also MKB Mgmt. Corp. v. Burdick, No. 1:13CV71, 2013 WL
6147204, at *5 (D.N.D. Nov. 15, 2013) (“[A]lthough it appears [the]
plaintiffs’ standing is well-established, some discovery regarding
that issue may be undertaken if the State is going to contest
it.”), aff’d, 2014 WL 11516246 (D.N.D. Jan. 28, 2014).
CONCLUSION
Given the representations in Defendants’ Rule 56(d) Motion
regarding their need for discovery to respond to Plaintiffs’
summary judgment motion and the Fourth Circuit’s holding that “such
motions are ‘broadly favored and should be liberally granted,’”
8
(...continued)
including the Supreme Court, from even being able to exercise
. . . ‘its prerogative of modifying its own decisions.’” (Docket
Entry 28 at 4 (brackets omitted) (quoting Docket Entry 27 at 11).)
-19-
McCray, 741 F.3d at 484 (quoting Greater Balt. Ctr., 721 F.3d at
281), the Court concludes Defendants should have the opportunity
for some discovery before the summary judgment process resumes.
IT IS THEREFORE ORDERED that Defendants’ Rule 56(d) Motion
(Docket Entry 21) is GRANTED.
Defendants may conduct discovery
until June 6, 2017, regarding:
(1) whether any fetuses between 20
and 26 weeks in North Carolina meet the definition of “viable”
adopted by the Supreme Court, and, if so, how many and when; (2)
whether fetuses between 20 and 26 weeks experience pain and, if so,
when and to what degree; (3) whether abortions of fetuses between
20 and 26 weeks pose any greater health risks to pregnant women
than abortions of fetuses before 20 weeks and, if so, when and to
what degree; and (4) Plaintiffs’ standing to bring this action.9
Defendants shall file any response to Plaintiffs’ Motion for
Summary Judgment (Docket Entry 13) by July 6, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 7, 2017
9
For items (1), (2), and (3) above, the Court selected 26
weeks as the upper end of the inquiry, because the Complaint does
not allege that Plaintiffs perform third-trimester abortions (see
Docket Entry 1, ¶¶ 7-10), and the two Plaintiffs who have offered
affidavits both averred only that they perform first- and secondtrimester abortions (see Docket Entry 13-1, ¶ 8; Docket Entry 13-3,
¶ 6). In addition, the Court focused item (1) on fetuses in North
Carolina, because location-specific considerations (such as the
availability of medical care) would appear to impact viability as
defined by the Supreme Court, see Casey, 505 U.S. at 870.
-20-
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