BRYANT et al v. WOODALL et al
Filing
71
MEMORANDUM OPINION, ORDER, AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/24/2018, that the Strike Motion (Docket Entry 69 ) is DENIED without prejudice to the filing , on or before September 4, 2018, of a motion that appropriately addresses the identified defects in the Strike Motion; FURTHER that the Clerk shall refer any such motion to the undersigned or, in the absence of such motion, the Clerk shall remo ve the access restrictions on the attachments to Docket Entry 53 (i.e., Docket Entries 53 -1 through 53 -5); RECOMMENDED that the Court deny the Summary Judgment Motion (Docket Entry 44 ) and dismiss this action for want ofsubject-matter jurisdiction due to Plaintiffs' lack of standing.(Taylor, Abby)
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, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
On behalf of themselves and their patients seeking abortions,
Amy Bryant, M.D., Beverly Gray, M.D., Elizabeth Deans, M.D., and
Planned Parenthood South Atlantic (collectively, the “Plaintiffs”)
filed a “Complaint for Injunctive and Declaratory Relief” (Docket
Entry
1)
(the
“Complaint”),
seeking
“to
challenge
the
constitutionality of state statutes,” specifically, North Carolina
General Statute Sections 14-44, 14-45, and 14-45.1 “(collectively
the ‘20-week ban’)[, that] ban abortion after the twentieth week of
pregnancy” (id., ¶ 1).
North Carolina imposed the challenged 20-
week ban in May 1973, see, e.g., 1973 N.C. Sess. Laws 1057-58, and
Plaintiffs concede that, in its entire forty-five-year existence,
“no physician has been prosecuted under [it]” (Docket Entry 66 at
6).1
Nevertheless, Plaintiffs seek both a declaratory judgment
holding
North
Carolina’s
20-week
ban
unconstitutional
and
a
1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
permanent
injunction preventing
its
enforcement
(See, e.g., Docket Entry 1, ¶¶ 55, 56.)
against them.
Because Plaintiffs lack
standing to pursue this lawsuit, the Court should deny “Plaintiffs’
Second Motion for Summary Judgment” (Docket Entry 44) (the “Summary
Judgment Motion”) and should dismiss this lawsuit for lack of
subject-matter
jurisdiction.
In
addition,
for
the
reasons
discussed below, the Court will deny “The Parties’ Joint Motion to
Strike” (Docket Entry 69) (the “Strike Motion”).
BACKGROUND
On November 30, 2016, Plaintiffs filed the Complaint, alleging
that:
“North Carolina imposes a general criminal ban on abortion”
(Docket Entry 1, ¶ 16) after the twentieth week of pregnancy,
subject to a maternal health exemption (see id., ¶¶ 17-19).
North
Carolina amended the maternal health exemption, found in North
Carolina
General
January 1, 2016.”
Statute
Section
(Id., ¶ 20.)
14-45.1(b),
“effect[ive]
on
The amended maternal health
exemption authorizes “abortion after the twentieth week of a
woman’s pregnancy if there is a medical emergency.”
(Id., ¶ 17.)
“Prior to that amendment, the statute provided a health condition
exception that allowed a physician to perform an abortion after
twenty weeks ‘if there is substantial risk that the continuance of
the pregnancy would threaten the life or gravely impair the health
2
of the woman.’”
(Id., ¶ 20 (quoting N.C. Gen. Stat. “§ 14-45.1(b)
(amended 2015)”).)
As such,
[t]h[at] preexisting health exception, like the
current emergency exception, banned some previability
abortions. The 2016 amendment narrowed the scope of the
exception even further so that it now applies only in
medical emergencies. Under the current law, Plaintiffs
cannot perform certain previability abortions after the
twentieth week of pregnancy that were authorized under
the preexisting health exception. However, both prior to
and after the amendment, the ban prohibited some
previability abortions.
(Id.,
¶
21.)
“The
untenable choice:
20-week
ban
presents
physicians
with
an
face criminal prosecution for providing medical
care in accordance with their best medical judgment, or refuse to
provide the critical care their patients seek.”
(Id., ¶ 51.)
Thus, on the theory that “the 20-week ban is unconstitutional as
applied to all women seeking previability abortion after the
twentieth week of pregnancy” (id., ¶ 2), “Plaintiffs . . . seek a
declaration that the 20-week ban is unconstitutional and permanent
injunctive relief prohibiting its enforcement as to previability
abortions” (id., ¶ 3).2
Two weeks after filing the Complaint, Plaintiffs moved for
summary judgment.
(See Docket Entry 13.)
In response, Jim
Woodall, Roger Echols, Eleanor E. Greene, M.D., and Rick Brajer
(collectively,
the
“Defendants”)
requested
leave
to
conduct
2 Accordingly, rather than challenging the contours of the
maternal health exemption, Plaintiffs challenge North Carolina’s
general prohibition on abortions after 20 weeks.
3
“limited, expedited discovery” on issues pertinent to Defendants’
opposition
to
the
summary
judgment
“[P]laintiffs have standing.”
motion,
including
whether
(Docket Entry 21 at 9, 10.)
Court (per the undersigned) granted Defendants’ request.
Docket
Entry
31
at
20.)3
Following
that
limited
The
(See
discovery,
Plaintiffs again moved for summary judgment (see Docket Entry 44),
which Defendants oppose, in part on grounds that Plaintiffs failed
to establish their standing to pursue this lawsuit (see, e.g.,
Docket Entry 52 at 7-9).4
Plaintiffs dispute that assertion.
(See Docket Entry 58 at 2-5.)
In light of its “oblig[ation] to inquire sua sponte whenever
a doubt arises as to the existence of federal jurisdiction,” Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278
(1977),
the
Court
thereafter
ordered
supplemental
briefing
regarding Plaintiffs’ standing. (See Docket Entry 65 (the “Order”)
at 6.)
In particular, the Order explained that “a plaintiff
‘contesting the constitutionality of a criminal statute’ must
establish, inter alia, that ‘there exists a credible threat of
3 Plaintiffs objected to that ruling. (See Docket Entry 34.)
The Court (per then-Chief United States District Judge William L.
Osteen, Jr.) overruled Plaintiffs’ objections (see Docket Entry 36)
and, in light of the approved discovery, denied Plaintiffs’ thenpending summary judgment motion as not ripe and moot (see Docket
Entry 43).
4 In particular, Defendants maintain that Plaintiffs lack
standing because they cannot “establish that, because of the
statute, they turned away patients with non-viable, 20-24 week
pregnancies.” (Id. at 8.)
4
prosecution thereunder.’”
(Id. at 4 (quoting Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).)5
The Order
further noted that North Carolina’s apparently undeviating history
of not “prosecut[ing] any doctor for violating th[e] 20-week
ban . . . raises questions regarding the existence of ‘a credible
threat of prosecution.’” (Id. at 5.) Because the parties’ filings
did not “address th[at] aspect of the standing analysis” (id. at
6), the Court directed “Plaintiffs [to] file a memorandum of no
more than ten pages, exclusive of exhibits, regarding their Article
III standing to pursue this lawsuit” (id.).
directed
Defendants
to
respond
to
The Court further
Plaintiffs’
memorandum
permitted Plaintiffs to reply to Defendants’ response.
and
(Id.)
In response to the Order, Plaintiffs filed a “Supplemental
Memorandum of Law in Support of Plaintiffs’ Second Motion for
Summary Judgment” (Docket Entry 66) (the “Standing Brief”).
They
declined, however, to file any exhibits in support thereof.
(See
Docket
Entries
dated
May
3,
2018,
to
present.)
Defendants
similarly filed a response devoid of exhibits (see Docket Entry
67),
and
Plaintiffs
replied
thereto
(see
Docket
Entry
68).
Thereafter, the parties jointly moved to strike certain exhibits to
Defendants’
summary
judgment
opposition
—
namely,
Plaintiffs’
5 The Order also cautioned that Plaintiffs bore the burden of
establishing standing (see id. at 4), with the requisite “‘manner
and degree of evidence required at the successive stages of the
litigation’” (id. at 4 n.4 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992))).
5
discovery responses — and replace them with redacted versions.
(See Docket Entry 69 at 1; see also Docket Entries 69-1 to 69-4.)
In
support
of
this
request,
the parties
maintained
that the
proposed replacement exhibits “(1) redact confidential information
not relevant to the arguments before this Court, and (2) contain
all information necessary for this Court to make a decision on the
merits.”
(Docket Entry 69 at 1.)
DISCUSSION
I. Legal Framework
Article III of the Constitution empowers federal courts to
decide only “‘Cases’” and “‘Controversies.’” Ansley v. Warren, 861
F.3d 512, 517 (4th Cir. 2017).
bedrock principle
is
that
“An essential element of this
any
party
authority must establish standing.”
who
Id.
invokes
the
court’s
Generally speaking, to
establish “standing, a plaintiff must prove that he has suffered a
‘concrete and particularized’ injury that is ‘fairly traceable to
the challenged conduct of the defendant’ and is likely to be
redressed by a favorable judicial decision.”
Id.
As such, “a
party’s ‘keen interest in the issue’ is insufficient by itself to
meet Article III’s [standing] requirements.”
Id.
“Article III’s
case-or-controversy limitation ensures that federal courts respect
‘the proper — and properly limited — role of the courts in a
democratic society.’”
criminal
statutes
are
Id. at 523.
challenged,
6
In addition, “[w]here state
the
[case-or-controversy]
requirement protects federalism by allowing the states to control
the application of their own criminal laws.”
Doe v. Duling, 782
F.2d 1202, 1205 (4th Cir. 1986).
The
limitations
imposed
by
Article
III
on
the
federal
judiciary demand scrupulous adherence, for, as the United States
Supreme Court recently explained:
Few exercises of the judicial power are more likely
to undermine public confidence in the neutrality and
integrity of the Judiciary than one which casts the Court
in the role of a Council of Revision, conferring on
itself the power to invalidate laws at the behest of
anyone who disagrees with them. In an era of frequent
litigation, class actions, sweeping injunctions with
prospective effect, and continuing jurisdiction to
enforce judicial remedies, courts must be more careful to
insist on the formal rules of standing, not less so.
Making the Article III standing inquiry all the more
necessary
are
the
significant
implications
of
constitutional litigation, which can result in rules of
wide applicability that are beyond Congress’ power to
change.
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 145-46
(2011). Thus, there exists an “enduring principle that judges must
consider
jurisdiction
“[n]othing
plaintiff
can
justify
as
first
adjudication
lacks standing
justiciability.”
the
or
there
order
of
is
a
some
of
suit
business,”
in
other
as
which
the
obstacle
to
Sherman v. Community Consol. Sch. Dist. 21 of
Wheeling Twp., 980 F.2d 437, 440 (7th Cir. 1992).
“In its constitutional dimension, the standing inquiry asks
whether the party before the court has such a personal stake in the
outcome
of
the
controversy
as
7
to
warrant
his
invocation
of
federal-court jurisdiction and to justify exercise of the court’s
remedial powers on his behalf.”
Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91, 119-20 (1979) (internal quotation marks
omitted; emphasis in original).
Accordingly, “the irreducible
constitutional minimum of standing contains three elements.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (emphasis
added).
Specifically, “[t]he plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.”
Spokeo, Inc. v. Robins, __ U.S.
__, __, 136 S. Ct. 1540, 1547 (2016); see also Gladstone, 441 U.S.
at 120 (“To demonstrate the ‘personal stake’ in the litigation
necessary to satisfy the Constitution, the party must suffer ‘a
distinct and palpable injury’ that bears a ‘“fairly traceable”
causal connection’ to the challenged action.” (citation omitted)).
“The party invoking federal jurisdiction bears the burden of
establishing
these
elements.”
Lujan,
504
U.S.
at
561.
Furthermore, because “they are not mere pleading requirements but
rather an indispensable part of the plaintiff’s case, each element
must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of
evidence
litigation.”
required
at
Id.
8
the
successive
stages
of
the
To establish an “injury in fact, the first and foremost of
standing’s three elements,” Spokeo, __ U.S. at __, 136 S. Ct. at
1547 (internal quotation marks and brackets omitted), a “plaintiff
must show that he ‘has sustained or is immediately in danger of
sustaining some direct injury’ as the result of the challenged
official conduct and the injury or threat of injury must be both
‘real and immediate,’ not ‘conjectural’ or ‘hypothetical,’” City of
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983); see also Babbitt,
442 U.S. at 298 (“A plaintiff who challenges a statute must
demonstrate a realistic danger of sustaining a direct injury as a
result
of
added)).
the
statute’s
Accordingly,
operation
as
relevant
or
to
enforcement.”
the
instant
(emphasis
matter,
a
plaintiff “contesting the constitutionality of a criminal statute”
must establish, inter alia, that “there exists a credible threat of
prosecution thereunder.”
Babbitt, 442 U.S. at 298 (emphasis
added).
In this regard, the United States Court of Appeals for the
Fourth Circuit has explained:
The Supreme Court has made it abundantly clear that
one challenging the validity of a criminal statute must
show a threat of prosecution under the statute to present
a case or controversy. The threat must be “credible” and
“alive at each stage of the litigation.” The [Supreme]
Court has noted, however, that “persons having no fears
of state prosecution except those that are imaginary or
speculative, are not to be accepted as appropriate
plaintiffs.” A litigant must show more than the fact
that state officials stand ready to perform their general
duty to enforce laws. Even past threats of prosecution
may not be sufficient to establish a controversy
9
susceptible of resolution in federal court. In short,
one must show a threat of prosecution that is both real
and immediate before a federal court may examine the
validity of a criminal statute.
Duling,
782
F.2d
at
1205–06
(citations
omitted).
Finally,
plaintiffs who “seek declaratory and injunctive relief . . . must
establish an ongoing or future injury in fact.”
Kenny v. Wilson,
885 F.3d 280, 287 (4th Cir. 2018).
II. Standing Analysis
In their Standing Brief, Plaintiffs maintain that, “although
no physician has been prosecuted under [the challenged] 20-week
ban, that in no way undermines Plaintiffs’ standing.”
Entry 66 at 6.)
this proposition.
(Docket
Plaintiffs offer three arguments in support of
(See id. at 6-15.)
As discussed below, those
arguments lack merit.
First, Plaintiffs maintain that the absence of prosecutions
demonstrates
physicians’
compliance
with
the
law,
creating
“constitutionally-suspect chilling effect” (id. at 11).
a
(See id.
at 6 (asserting that the absence of prosecutions “demonstrates that
physicians have complied with the law, chilling the provision of
constitutionally-protected care for women in North Carolina”).) As
a preliminary matter, Plaintiffs offer no evidence in support of
this sweeping assertion. (See generally Docket Entry 66.) At this
stage in the proceedings, however, Plaintiffs may not rely on “such
mere allegations, but must set forth by affidavit or other evidence
specific facts” in support of their standing assertions.
10
Lujan,
504 U.S. at 561 (internal quotation marks omitted).
Moreover, the
evidence before the Court raises serious doubts about the veracity
of
such
contention.
In
particular,
Bryant’s
interrogatory
responses reflect that she performed an estimated ten post-20-week
abortions between the years 2014 and 2016 “because of diagnoses of
fetal anomalies and/or maternal health indications” (Docket Entry
53-1 at 8).
(See id. at 6-8.)
Notably, though, “diagnoses of
fetal anomalies” (id. at 8) do not appear to constitute valid
grounds for such abortions under North Carolina law. See N.C. Gen.
Stat. § 14-45.1(b).
Furthermore, Plaintiffs’ “chilling effect” theory fails to
establish standing in this case.6
The notion that a “chilling
6 In this regard, it bears noting that the evidence does not
clearly establish that the 20-week ban has prevented Plaintiffs
from conducting abortions. Plaintiffs aver that “[b]ut for the
20-week ban, [they] would provide abortion[s] after 20 weeks”
(Docket Entry 13-1, ¶ 14) and that the 20-week ban “forc[es them]
to deny and delay care for [their] patients” (id., ¶ 19). (Accord
Docket Entry 13-3, ¶¶ 7, 10; see also Docket Entry 13-2, ¶¶ 6, 7.)
They further indicate that they provide (and seek to provide)
first- and second-trimester abortions (see Docket Entry 13-1, ¶ 8;
Docket Entry 13-3, ¶ 6), until a maximum of 24 weeks (see Docket
Entry 34 at 7; Docket Entry 53-1 at 6). Yet, although they note
their “aware[ness]” (Docket Entry 53-2 at 4) of requests for
abortions from women with post-20-week pregnancies, they do not
identify any woman whom they (or their practices) refused to
provide an abortion because she fell in the 20-24-week pregnancy
range but did not qualify for the maternal health exemption rather
than, say, because her pregnancy had progressed beyond the 24-week
gestational mark at which they cease — or, in the absence of the
20-week ban, allegedly would cease — providing abortions.
For
instance, Bryant states only that she “is aware that her practice
. . . receives multiple requests each year for abortion procedures
at various gestational ages” and “it is [her] understanding that
the administrative staff would then inform the individual making
11
effect” can support a lawsuit derives from the First Amendment
realm.
(4th
See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 300
Cir.
2011)
(“The
Constitution
provides
protection
from
overbroad laws that chill speech within the First Amendment’s vast
and privileged sphere.” (internal quotation marks omitted)).
“In
the context of threats to the right of free expression, courts
justifiably
often
lessen
standing
requirements.”
American
Booksellers Ass’n, Inc. v. Virginia, 802 F.2d 691, 694 n.4 (4th
Cir. 1986), vacated sub nom. Virginia v. American Booksellers
Ass’n, Inc., 488 U.S. 905 (1988), certified question answered sub
nom. Commonwealth v. American Booksellers Ass’n, Inc., 372 S.E.2d
618 (Va. 1988); see also Secretary of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 956 (1984) (“Within the context of the
First Amendment, the [Supreme] Court has enunciated other concerns
that justify a lessening of prudential limitations on standing.”).7
the request if the [practice] cannot provide the requested
abortion.” (Docket Entry 53-1 at 4-5; see also Docket Entry 13-1.)
As a further example, Planned Parenthood states that it “turned
away” at least 31 women seeking abortions with post-20-week
pregnancies in 2016 (Docket Entry 53-4 at 5), but does not indicate
whether (1) any of those women fell in the 20-24-week range in
which Planned Parenthood theoretically would provide abortions in
the absence of the 20-week ban or (2) whether any of those women
qualified for abortions under the maternal health exemption. (See
id. at 5-7; see also Docket Entry 13-2.) Finally, Plaintiffs do
not identify any patient whose abortion they had to delay to ensure
that she qualified for the maternal health exemption. (See Docket
Entries 13-1 to 13-3; Docket Entries 53-1 to 53-4.)
7 Courts adopt this approach because of the risk that those
whose protected first-amendment activities a statute burdens will
refrain from the protected speech or expressive activity “rather
12
Yet, “[e]ven in the area of First Amendment disputes, the
Supreme
Court
has
generally
required
a
credible
threat
of
prosecution before a federal court may review a state statute.”
Duling, 782 F.2d at 1206; see also Joseph H. Munson, 467 U.S. at
957-58 (explaining that even litigants bringing first-amendment
overbreadth
challenges
must
controversy
requirement”
by
meet
“the
Art[icle]
“satisf[ying]
the
III
case-or-
requirement
of
‘injury-in-fact’”); Benham v. City of Charlotte, 635 F.3d 129, 135
(4th Cir. 2011) (“Although the assertion of a facial challenge to
an
ordinance
based
on
the
First
Amendment
may
warrant
some
relaxation of the prudential rule that a claimant may assert her
own
rights
only,
the
claimant
must
nevertheless
satisfy
the
injury-in-fact requirement grounded in Article III.”).8
than risk punishment for his conduct in challenging the statute.”
Joseph H. Munson, 467 U.S. at 956.
As the Supreme Court has
explained:
[W]hen there is a danger of chilling free speech, the
concern that constitutional adjudication be avoided
whenever possible may be outweighed by society’s interest
in having the statute challenged. Litigants, therefore,
are permitted to challenge a statute not because their
own rights of free expression are violated, but because
of a judicial prediction or assumption that the statute’s
very existence may cause others not before the court to
refrain from constitutionally protected speech or
expression.
Id. at 956-57 (internal quotation marks omitted).
8
In other words,
[o]verbreadth is an exception to the prudential standing
doctrine requiring plaintiffs to show that their own
13
Nonetheless, Plaintiffs maintain that the mere existence of
the 20-week ban creates a coercive, chilling impact that provides
them with standing.
(See, e.g., Docket Entry 66 at 11.)
this argument, Plaintiffs rely on two decisions:
In making
MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118 (2007), and Richmond Medical
Center for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999),
aff’d, 224 F.3d 337 (4th Cir. 2000).
12.)
(See Docket Entry 66 at 11-
Neither decision supports Plaintiffs’ position.
To begin with, MedImmune involved a patent and contract
dispute and presented the question of
whether Article III’s limitation of federal courts’
jurisdiction to “Cases” and “Controversies,” reflected in
the “actual controversy” requirement of the Declaratory
Judgment Act, 28 U.S.C. § 2201(a), requires a patent
licensee to terminate or be in breach of its license
agreement before it can seek a declaratory judgment that
the underlying patent is invalid, unenforceable, or not
infringed.
MedImmune, 549 U.S. at 120-21.
Those circumstances bear little
connection to the standing questions raised by the instant dispute.
More importantly, however, MedImmune itself reflects the necessity
of “[a] genuine threat of enforcement” before a plaintiff can mount
a pre-enforcement challenge to governmental conduct.
See id. at
First Amendment rights (as opposed to the rights of third
parties) have been violated, but it does not exempt
plaintiffs — even plaintiffs bringing facial challenges
on overbreadth grounds — from the bedrock Article III
standing requirements of injury-in-fact, causation, and
redressability.
Winsness v. Yocom, 433 F.3d 727, 734 (10th Cir. 2006).
14
129.
Plaintiffs merely chose to omit that pivotal portion of the
Supreme Court’s decision in the quotation they presented to this
Court.
the
(See Docket Entry 66 at 11.)
quotation
“‘threatened
Plaintiffs
action
by
present
[the]
threatened to be enforced.’”
Moreover, even the portion of
reflects
government,’”
(Id. at 11.)
the
necessity
such
as
“‘a
of
law
The other decision
cited by Plaintiffs likewise recognizes the necessity of “the
existence of a credible threat that the challenged law will be
enforced against the plaintiffs.”
Gilmore, 55 F. Supp. 2d at 461.
Put simply, “[t]he mere presence on the statute books of an
unconstitutional statute, in the absence of enforcement or credible
threat of enforcement, does not entitle anyone to sue, even if they
allege an inhibiting effect on constitutionally protected conduct
prohibited by the statute.”
Winsness v. Yocom, 433 F.3d 727, 732
(10th Cir. 2006); see Younger v. Harris, 401 U.S. 37, 41-42 (1971)
(rejecting the plaintiffs’ argument that they possessed standing
because “they feel inhibited” by, inter alia, “the presence of [an]
Act
on
the
books”
(internal
quotation
marks
omitted));
see
also Arizona Christian, 563 U.S. at 135 (explaining that “[t]he
party who invokes the power of the federal courts must be able to
show not only that the statute is invalid, but that
he has
sustained or is immediately in danger of sustaining some direct
injury as a result of its enforcement” (brackets and internal
15
quotation marks omitted)).
After all, if the mere existence of a
statute sufficed to establish standing,
the case or controversy requirement would be set at
naught. Every criminal law, by its very existence, may
have some chilling effect on personal behavior. That was
the reason for its passage. A subjective chill, however,
is ‘not an adequate substitute for a claim of specific
present objective harm or a threat of specific future
harm,’ save in rare cases involving core First Amendment
rights.
Duling, 782 F.2d at 1206 (citation omitted) (quoting Laird v.
Tatum,
408
U.S.
1,
13-14
(1972))
(rejecting
the
plaintiffs’
argument that they possessed standing because “they are fearful of
[engaging
in
statutorily
prohibited
conduct]
since
they
have
learned of the statutes in question”).
Plaintiffs next assert that, “where, as here, the State has
not
disavowed
an
intent
to
prosecute
prosecution is no bar to standing.”
violations,
lack
of
(Docket Entry 66 at 11 (citing
Babbitt, 442 U.S. at 301-02); see also id. at 15 (arguing that “the
State defends the [20-week] ban”).)
As an initial matter, the
decision Plaintiffs cite in support of this argument involved a
first-amendment challenge to provisions of a recently enacted law
(the “Act”) that, by their plain language, applied to the unionplaintiff’s
campaigns).
expressive
activities
(i.e.,
Babbitt, 442 U.S. at 292, 302.
consumer
publicity
Since its passage, the
Act had been enforced against the union and its members and
supporters through seven lawsuits and at least one set of charges.
See United Farm Workers Nat’l Union v. Babbitt, 449 F. Supp. 449,
16
452 (D. Ariz. 1978), rev’d, 442 U.S. 289 (1979), and vacated sub
nom. Babbitt, 442 U.S. 936; see also Babbitt, 442 U.S. at 293 &
n.2.
Before
the
Supreme
Court,
however,
the
governmental
defendants argued that a criminal penalty provision applicable to
any violations of the Act “has not yet been applied and may never
be applied to commissions of unfair labor practices, including
forbidden
consumer
Rejecting
this
publicity.”
argument,
the
Babbitt,
Supreme
442
Court
U.S.
found
at
302.
that
the
plaintiffs possessed standing, as the plain language of the Act
applied to the plaintiffs’ expressive activities and, “[m]oreover,
the State has not disavowed any intention of invoking the criminal
penalty
provision
practices,” id.
against
unions
See id. at 301-02.
that
commit
unfair
labor
Babbitt thus does not support
the proposition that a State’s defense of the constitutionality of
its laws, by itself, creates standing for the parties suing it.
Nor does this proposition accurately reflect the law.
For
instance, in both Duling and Poe v. Ullman, 367 U.S. 497 (1961),
state officials defended the constitutionality of the challenged
state laws and yet the plaintiffs lacked standing to pursue their
challenges.
See Poe, 367 U.S. at 507-08 (finding the plaintiffs
lacked standing, explaining that “[i]t is clear that the mere
existence of a state penal statute would constitute insufficient
grounds
to
support
constitutionality
in
a
federal
proceedings
17
court’s
brought
adjudication
against
the
of
its
State’s
prosecuting officials if real threat of enforcement is wanting,”
id. at 507); Duling, 782 F.2d at 1202, 1204 (holding that the
plaintiffs lacked standing in lawsuit defended by state officials);
see also, e.g., Doe v. Duling, 603 F. Supp. 960, 967-68 (E.D. Va.
1985) (analyzing government defendants’ arguments in support of the
challenged statute), vacated, 782 F.2d 1202 (4th Cir. 1986).
In Plaintiffs’ view, however, Poe “is distinguishable” from
the instant matter:
Although in Poe v. Ullman, the Court held plaintiffs
lacked standing to challenge a statute restricting
medical advice on and use of contraceptives because there
were
no
recorded
prosecutions,
that
case
is
distinguishable because “contraceptives were commonly and
notoriously sold in Connecticut drug stores.” The court
held that “certainly such ubiquitous, open, public sales
would more quickly invite the attention of enforcement
officials than the conduct alleged in the suit — the
giving of private medical advice by a doctor to his
individual patients, and their private use of the devices
prescribed.” The court concluded that “the undeviating
policy
of
nullification
by
Connecticut
of
its
anti-contraceptive laws throughout all the long years
that they have been on the statute books bespeaks more
than prosecutorial paralysis.” Here, however, there are
no analogous “notorious” but unprosecuted violations of
the ban.
(Docket
Entry
66
at
10
(citations,
brackets,
and
footnote
In making this argument, Plaintiffs misread Poe.
In that
omitted).)
case,
the
Supreme
Court
held
that
the
absence
of
relevant
prosecutions, not the existence of contraceptive sales, established
the absence of a credible threat of prosecution.
See, e.g., Poe,
367 U.S. at 501-02 (“The Connecticut law prohibiting the use of
18
contraceptives has been on the State’s books since 1879.
During
the more than three-quarters of a century since its enactment, a
prosecution for its violation seems never to have been initiated,
save in [one test case in 1940]. . . .
researches
have
discovered
any
Neither counsel nor our own
other
attempt
to
enforce
the
prohibition of distribution or use of contraceptive devices by
criminal
process.”
(citation
omitted)),
508
(“The
fact
that
Connecticut has not chosen to press the enforcement of this statute
deprives
these
controversies
of
the
immediacy
which
is
an
indispensable condition of constitutional adjudication. . . .
To
find it necessary to pass on these statutes now, in order to
protect appellants from the hazards of prosecution, would be to
close our eyes to reality.”); see also, e.g., id. at 509 (Brennan,
J., concurring) (“I agree that this appeal must be dismissed for
failure
to
present
a
real
and
substantial
controversy
which
unequivocally calls for adjudication of the rights claimed in
advance of any attempt by the State to curtail them by criminal
prosecution.”).9
9
As Justice Brennan explained:
The true controversy in this case is over the opening of
birth-control clinics on a large scale; it is that which
the State has prevented in the past, not the use of
contraceptives by isolated and individual married
couples.
It will be time enough to decide the
constitutional questions urged upon us when, if ever,
that real controversy flares up again. Until it does, or
until the State makes a definite and concrete threat to
enforce these laws against individual married couples —
19
Moreover, Plaintiffs provide no support for the proposition
that
“there
are
no
analogous
‘notorious’
violations of the [20-week] ban.”
but
unprosecuted
(Docket Entry 66 at 10.)10
Further, the record raises some doubt as to this contention.
To
begin with, Plaintiffs objected to Defendants’ request to conduct
discovery and their interrogatories on the grounds that North
Carolina law obliges doctors to report all abortions they perform
to state officials, “includ[ing] information on abortions provided
by Plaintiffs from 2014–2016” (Docket Entry 34 at 23).
(See id. at
7-8; see also, e.g., Docket Entry 53-4 at 5 (“Plaintiff is required
to, and does, report to the North Carolina Department of Health and
Human Services [(the “DHHS”)] information concerning the number of
abortion
procedures
performed
by
gestational
age
on
the
Confidential Induced Abortion Case Report form (DHHS 1891).”);
Docket Entry 53-2 at 10 (objecting to interrogatory on the grounds
that “Plaintiff’s employer is required to, and does, report to
[DHHS] information about its abortion procedures . . . [on] DHHS
1891” and “stat[ing] that she can recall performing one abortion
a threat which it has never made in the past except under
the provocation of litigation — this Court may not be
compelled to exercise its most delicate power of
constitutional adjudication.
Id.
10
“Notorious” means “well known; commonly or generally
known;” and “well or widely known.”
Notorious, Oxford English
Dictionary, http://www.oed.com/view/Entry/128640 (last visited Aug.
24, 2018).
20
procedure after the gestational limit set forth in N.C. Gen. Stat.
§ 14-45.1” in the relevant period).)
The record further reflects
that, in the years 2014 to 2016, two Plaintiffs collectively
performed roughly eleven abortions after the 20-week gestational
limit.
(See Docket Entry 53-1 at 6; Docket Entry 53-2 at 6.)
Finally, the record reflects that at least some of these abortions
occurred because of “diagnoses of fetal anomalies” (Docket Entry
53-1 at 8), action that does not appear permissible under the 20week ban, see N.C. Gen. Stat. § 14-45.1.
Accordingly,
reporting
the
record
obligations, North
reveals
Carolina
that,
pursuant
received
to
legal
information
on
abortions performed after 20 weeks — some of which appear to
violate the 20-week ban — without initiating enforcement measures.
Further, to the extent that such reporting requirements fail to
disclose the potentially violative nature of those abortions,
Bryant’s interrogatory responses brought this matter to light.
(See Docket Entry 53-1 at 6-8 (indicating that Bryant performed
approximately ten post-20-week abortions between 2014 and 2016
“because of diagnoses of fetal anomalies and/or maternal health
indications”).)
2017.
Plaintiffs disclosed this information on July 17,
(Id. at 12.)
Notably, though, in the year since they
received this information, Defendants have not — as far as the
record reflects — initiated any enforcement efforts against Bryant.
21
Under
the
circumstances,
both
Plaintiffs’
attempt
to
distinguish Poe and their arguments regarding Defendants’ defense
of this litigation lack merit.
Finally, Plaintiffs maintain that they possess standing to
challenge
the
20-week
ban,
despite
the
total
absence
of
prosecutions against physicians during its 45-year-history, because
“every federal appellate court faced with a previability abortion
ban has ruled that it violates the Fourteenth Amendment, and none
have questioned physicians’ standing” (Docket Entry 66 at 14).
(See also id. at 9, 10, 12-14; Docket Entry 45 at 14, 15 & nn.6,
7.)
Significantly, though, every decision Plaintiffs cite in
support of this proposition involves either a recently enacted law
or a recent enforcement measure.
(See Docket Entry 66 at 9, 10
(citing, in turn, Diamond v. Charles, 476 U.S. 54 (1986); Planned
Parenthood of Wis. v. Doyle, 162 F.3d 463 (7th Cir. 1998); Doe v.
Bolton, 410 U.S. 179 (1973); City of Akron v. Akron Ctr. for
Reprod. Health, Inc., 462 U.S. 416 (1983), overruled by Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Colautti v.
Franklin, 439 U.S. 379 (1979); Planned Parenthood of Cent. Mo. v.
Danforth, 428 U.S. 52 (1976)), 12-14 (citing, in turn, Gilmore, 55
F. Supp. 2d 441; Greenville Women’s Clinic v. Bryant, 222 F.3d 157
(4th Cir. 2000); Greenville Women’s Clinic v. Bryant, 66 F. Supp.
2d 691 (D.S.C. 1999), rev’d, 222 F.3d 157 (4th Cir. 2000); Stuart
v. Camnitz, 774 F.3d 238 (4th Cir. 2014); Stuart v. Loomis, 992
22
F. Supp. 2d 585 (M.D.N.C. 2014); North Carolina Right to Life, Inc.
v. Bartlett, 168 F.3d 705 (4th Cir. 1999); Isaacson v. Horne, 716
F.3d 1213 (9th Cir. 2013); Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908 (9th Cir. 2004); McCormack v. Herzog, 788 F.3d
1017 (9th Cir. 2015); Planned Parenthood of Greater Tex. Surgical
Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014); Doyle, 162
F.3d 463; Planned Parenthood Ass’n of the Atlanta Area, Inc. v.
Miller, 934 F.2d 1462 (11th Cir. 1991); Planned Parenthood Sw. Ohio
Region v. DeWine, 64 F. Supp. 3d 1060 (S.D. Ohio 2014); Guam Soc’y
of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir.
1992); Jackson Women’s Health Org. v. Currier, No. 3:18-cv-171,
2018 WL 1567867 (S.D. Miss. Mar. 20, 2018)); see also Docket Entry
45 at 14, 15 & nn.6, 7 (citing, in turn, MKB Mgmt. Corp. v.
Stenehjem, 795 F.3d 768 (8th Cir. 2015); Edwards v. Beck, 786 F.3d
1113 (8th Cir. 2015); Isaacson, 716 F.3d 1213; Carhart v. Stenberg,
192 F.3d 1142 (8th Cir. 1999), aff’d, 530 U.S. 914 (2000); Women’s
Med. Prof’l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997); Jane
L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996); Sojourner T. v.
Edwards, 974 F.2d 27 (5th Cir. 1992); Guam Soc’y, 962 F.2d 1366;
DesJarlais v. State, Office of the Lieutenant Governor, 300 P.3d
900 (Alaska
2013);
In
re
Initiative
Petition
No.
395,
State
Question No. 761, 286 P.3d 637 (Okla. 2012); Wyoming Nat’l Abortion
Rights Action League v. Karpan, 881 P.2d 281 (Wyo. 1994); In re
23
Initiative Petition No. 349, State Question No. 642, 838 P.2d 1
(Okla. 1992)).)11
To begin with, many of these decisions involve lawsuits
initiated prior to the effective date of the relevant law or
regulation.
See Akron, 462 U.S. at 425; Colautti, 439 U.S. at 383;
MKB Mgmt., 795 F.3d at 770; Camnitz, 774 F.3d at 243; Abbott, 748
F.3d at 587; Isaacson, 716 F.3d at 1217-18; Greenville Women’s, 222
F.3d at 160, 162; Women’s Med., 130 F.3d at 190-92; Loomis, 992
F. Supp. 2d at 588; Edwards v. Beck, 946 F. Supp. 2d 843, 845 (E.D.
Ark. 2013); Gilmore, 55 F. Supp. 2d at 444; see also Planned
Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 506-07 (6th
Cir.
2006)
(detailing
initial
litigation
history
of
statute
11 Notably, although not abortion cases, Virginia v. American
Booksellers Ass’n, Inc., 484 U.S. 383 (1988), and Babbitt likewise
reflect this pattern. See American Booksellers, 484 U.S. at 392
(lawsuit initiated before effective date), certified question
answered sub nom. Commonwealth v. American Booksellers Ass’n, Inc.,
372 S.E.2d 618 (Va. 1988); Babbitt, 442 U.S. at 292 (indicating law
enacted in 1972); United Farm Workers, 449 F. Supp. at 449 (bearing
“72” case number), 450 (reflecting intervention granted to certain
parties in 1973).
The first-amendment decision in Epperson v.
State of Arkansas, 393 U.S. 97 (1968), likewise involved a recent
official mandate: the use of a new biology textbook containing a
chapter on evolution, in contravention of a state law prohibiting
such instruction on pain of dismissal and criminal punishment. See
id. at 98-99. As the Supreme Court noted, the plaintiff (a biology
teacher) “faced at least a literal dilemma because she was supposed
to use the new textbook for classroom instruction and presumably to
teach the statutorily condemned chapter; but to do so would be a
criminal offense and subject her to dismissal.”
Id. at 100.
Accordingly, “[s]he instituted the present action [in state court],
seeking a declaration that the Arkansas statute is void and
enjoining the State and the defendant officials of the Little Rock
school system from dismissing her for violation of the statute’s
provisions.” Id.
24
challenged in DeWine, see DeWine, 64 F. Supp. 3d at 1062-63);
DesJarlais, 300 P.3d at 901 (involving proposed initiative); In re
Initiative Petition No. 395, 286 P.3d at 637-38 (same); Wyoming
Nat’l Abortion, 881 P.2d at 283-84, 293 (same); In re Initiative
Petition No. 349, 838 P.2d at 3 (same).
Further, with two exceptions, the remaining decisions concern
legislation
“recently
enacted,”
Bolton,
410
U.S.
at
181.
See Diamond, 476 U.S. at 57 (lawsuit filed same day as law
enacted); Danforth, 428 U.S. at 56 (lawsuit initiated three days
after law enacted); Wasden, 376 F.3d at 914 (law enacted in 2000,
lawsuit initiated in June 2000 challenging “then-new” statute, law
amended in
2001,
and complaint
“revised
to
reflect
the 2001
amendments”); Carhart, 192 F.3d at 1145 (“Shortly after the passage
of LB 23, Dr. LeRoy Carhart filed a complaint challenging the
constitutionality
of
the
statute.”);
Doyle,
162
F.3d
at
464
(challenging “recently enacted” statute); Jane L. v. Bangerter, 61
F.3d 1493, 1495 (10th Cir. 1995) (law passed January 25, 1991, and
lawsuit initiated April 1991), cert. granted, judgment rev’d sub
nom. Leavitt v. Jane L., 518 U.S. 137 (1996); Sojourner T., 974
F.2d at 29 (“The Louisiana Abortion Statute was passed on June 18,
1991,” and the district court opinion issued August 7, 1991,
see Sojourner v. Roemer, 772 F. Supp. 930, 930 (E.D. La. 1991),
aff’d sub nom. Sojourner T., 974 F.2d 27); Guam Soc’y, 962 F.2d at
1368
(“The
validity
of
the
Act
25
was
immediately
challenged
. . . .”); Miller, 934 F.2d at 1466-67 (law enacted 1987, lawsuit
filed and law enjoined the same year, while appeal pending, law
amended (in 1988) and again enjoined (in 1988)); Jackson Women’s,
2018 WL 1567867, at *1 (lawsuit filed same day as law enacted).
The two other decisions involve recent enforcement measures.
See McCormack, 788 F.3d at 1022-23 (prosecution initiated on May
18, 2011, and dismissed for lack of probable cause on September 7,
2011; lawsuit initiated on September 16, 2011; law preliminarily
enjoined on November 14, 2011; and prosecutor decided not to refile charges against the original plaintiff on August 22, 2012);
Bartlett,
168
F.3d
at
709-11
(lawsuit
initiated
after
state
officials notified (1) the plaintiffs that their proposed actions
violated certain legal provisions and (2) a similarly situated
organization that it needed to comply with the remaining challenged
legal provision).12
12 The parties devote much attention to Bartlett, but, in so
doing, overlook certain key differences between that case and the
instant matter. (See Docket Entry 66 at 12 n.3; Docket Entry 67 at
2-3; Docket Entry 68 at 2-3.) First, Bartlett involved a firstamendment challenge to certain state laws, a context in which, as
discussed above, concerns for chilling effects upon protected
expressive activities inform the standing analysis.
See also,
e.g., id., 168 F.3d at 710. Second, in Bartlett, the defendants
argued that, contrary to the plain language of the relevant
statutes, the State did not (and had never) applied these statutes
to groups such as the plaintiffs or activities such as they
proposed to do. See id. at 710-11. However, state officials had
twice informed one set of plaintiffs that their proposed expressive
activity (distributing a voter guide) violated these laws, see id.
at 709-10, and had informed an entity similarly situated to the
remaining plaintiff that it had to comply with the relevant laws,
see id. at 711.
In light of those state notifications, the
26
Thus, in all the decisions that Plaintiffs cite, the credible
threat of enforcement arose from the recency of the challenged
provision’s enactment and/or the government’s enforcement measures,
circumstances
which
provide
standing,
see,
e.g.,
Virginia
v.
American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (“We are
not troubled by the pre-enforcement nature of this suit. The State
has not suggested that the newly enacted law will not be enforced,
and we see no reason to assume otherwise.
We conclude that
plaintiffs have alleged an actual and well-founded fear that the
law will be enforced against them.”), certified question answered
sub nom. Commonwealth v. American Booksellers Ass’n, Inc., 372
S.E.2d 618 (Va. 1988); Hoffman v. Hunt, 845 F. Supp. 340, 347
plaintiffs refrained from their proposed expressive activities and
altered their speech to comply with the relevant laws. See id. at
710-11. Accordingly, the Fourth Circuit concluded that a credible
threat of enforcement existed, chilling the plaintiffs’ firstamendment rights and establishing the required case or controversy:
In sum, this case presents a statute aimed directly
at [the] plaintiffs who will have to take significant
. . . compliance measures or risk criminal prosecution.
In such a circumstance, courts have long recognized that
the statute’s mere existence risks chilling First
Amendment rights. Indeed, in this case, [one plaintiff]
has discontinued distributing its voter guide and
[another plaintiff] has stopped soliciting without
providing a disclaimer because of a credible threat of
prosecution. Consequently, a case or controversy inheres
in each provision.
Id. at 711 (citation and internal quotation marks omitted; ellipsis
in original). By contrast, the instant matter involves neither
first-amendment rights nor state enforcement measures that would
generate the necessary credible threat of enforcement.
27
(W.D.N.C. 1994) (explaining that, like in Bolton, “the [p]laintiffs
are faced with a statute . . . so new that it has yet to be fully
enforced” and that “the newness of this statute is also what gives
it vigor and potential potency,” for “[i]ts youth counsels not that
it
will
go
unenforced,
but
instead
that
the
reach
of
its
proscriptions and the zeal of their enforcement remains unknown”).
Here, however, North Carolina enacted the 20-week ban more
than forty-five years ago, see 1973 N.C. Sess. Laws 1057-58, and
has never enforced it against a physician.
5; Docket Entry 66 at 6.)13
(See Docket Entry 65 at
Accordingly, the cases upon which
13
Although the parties do not discuss this matter
(see Docket Entries 66-68), it appears that North Carolina has only
prosecuted a violation of the 20-week ban one time in its fortyfive-year history. In February 1987, the Cumberland County Grand
Jury indicted a defendant for murdering a pregnant woman, “‘in
violation of North Carolina General Statutes Section 14-17,’” as
well as for “‘unlawfully, willfully and feloniously . . .
employ[ing] an instrument, a 410 shotgun, on Donna Faye West Beale,
a pregnant woman, by firing the 410 shotgun with intent to destroy
the unborn child, in violation of North Carolina General Statutes
Section 14-44.” State v. Beale, 324 N.C. 87, 88, 376 S.E.2d 1, 1
(1989). (The Grand Jury thereafter issued a superseding indictment
charging the defendant with two counts of murder, in violation of
Section 14-47, and dropping the Section 14-44 charge. See id., 376
S.E.2d at 1.)
Given, inter alia, its entirely distinguishable
factual setting, this thirty-one-year-old prosecution does not give
rise to a credible enforcement threat against physicians under the
20-week ban. See, e.g., Duling, 782 F.2d at 1206-07 (finding the
plaintiffs lacked standing where ongoing arrests and prosecutions
involved factually distinguishable conduct, noting, inter alia,
that “not one arrest has been shown to involve the behavior at
issue in this case,” as such arrests “arose instead from
prostitutional or non-private behavior, not at issue here,” id. at
1206); see also Poe, 367 U.S. at 501 (plurality opinion)
(concluding that the plaintiffs lacked standing notwithstanding a
case decided twenty-one years previously, whose circumstances “only
prove the abstract character of what is before us”).
28
Plaintiffs
rely
fail
to
establish
their
standing
in
this
litigation.
In
sum,
Plaintiffs
have
not
shown a credible
prosecution under the 20-week ban.
threat
of
As such, Plaintiffs fail to
establish Article III standing to pursue this lawsuit.
See, e.g.,
Duling, 782 F.2d at 1206 (“In short, one must show a threat of
prosecution that is both real and immediate before a federal court
may
examine
omitted)).
the
validity
of
a
criminal
statute.”
(citation
The Court should therefore dismiss this lawsuit for
lack of subject-matter jurisdiction.
See Stephens v. County of
Albemarle, 524 F.3d 485, 486 (4th Cir. 2008) (“[B]ecause [the
plaintiff] lacks standing to pursue her claims, the district court
was without subject-matter jurisdiction to consider the merits of
her claims.”).
III.
Strike Motion
Finally, the parties jointly seek to strike certain exhibits
to Defendants’ opposition to the Summary Judgment Motion on the
grounds that such exhibits “contain information that Plaintiffs
marked
as
confidential
pursuant
to
the
parties’
Protective
Agreement, dated July 14, 2017, and entered into by the consent of
the parties.”
(Docket Entry 69 at 2.)14
The parties seek to
14 This Protective Agreement does not appear in the record,
and the parties did not seek a Protective Order based on such
agreement. (See Docket Entries dated June 1, 2017, to present; see
also Docket Entry 60 at 1 (“Said answers and responses contain what
Plaintiffs believe is confidential, Privacy Act information
29
replace these exhibits “with redacted versions, which (1) redact
confidential information not relevant to the arguments before this
Court, and (2) contain all information necessary for this Court to
make a decision on the merits.”
(Id. at 1.)
In particular, “[t]he
[p]arties agree that none of the redacted information in the
Exhibits is relevant to Defendants’ arguments contained in The
Defendants’ Response to the Plaintiffs’ Second Motion for Summary
Judgment, ECF No. 52.”
(Docket Entry 70 at 4.)
As authority for this request, the parties cite only “Longman
v. Food Lion Inc., 186 F.R.D. 331, 334–35 (M.D.N.C. 1999) (citing
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 529 F.
Supp. 866, 893–94 (E.D.P.A. [sic] 1981) (discussing impropriety of
declassification
after
discovery
began
where
there
was
no
contemporaneous objection to any confidentiality designation)).”
(Docket Entry 70 at 4.)
However, Longman provides inadequate
support for the parties’ request.
In that case, the plaintiffs
sought “to generally strike the Confidentiality Order,” which had
been “entered by the Court” more than four years earlier, and
“unseal the entire record on appeal, . . . request[ing] full public
disclosure of the discovery material in the nine volumes submitted
in connection with the summary judgment motion,” which “w[ere]
filed under seal, as required by the Confidentiality Order.”
protected under the parties’ Protective Agreement, dated July 14,
2017, and entered into by the consent of the parties (without Court
order).”).)
30
Longman, 186 F.R.D. at 332.15
Here, by contrast, no such court
order exists and the parties did not file the relevant materials
under seal.
(See Docket Entries dated June 1, 2017, to present.)
Rather, on representation by counsel two weeks after filing said
exhibits that they were “filed publicly in error” and that a
“[m]otion
to
seal
[was]
forthcoming,”
the
Clerk
“temporarily
restrict[ed access to the] attachments pending [a] ruling on [such]
motion to seal.”
(Docket Entry dated Dec. 4, 2017.)16
Now, though, the parties have opted “not [to] file[] a motion
to seal,” on the theory that such “remedy is unnecessary where, as
here, the less drastic alternative of providing this Court with
redacted copies of the exhibits, which contain all the information
relevant to the arguments before the Court, will afford adequate
protection.”
(Docket Entry 70 at 4 n.1 (citing M.D.N.C. LR
5.4(b)(2)).)
As an initial matter, it seems a dubious proposition
that permanently altering the court record by permitting the
parties to strike materials filed eight months previously and
replace them with revised versions qualifies as “less drastic” than
15 “[C]onclud[ing] that [the p]laintiffs have failed to show
good cause for modification of the protective order,” the Longman
court denied their “Motion to Strike Confidentiality Order . . .,
and the Confidentiality Order as entered on December 2, 1994
remain[ed] in effect.” Id. at 335.
16 Defendants submitted five exhibits with their opposition
(Docket Entries 53-1 through 53-5), but the parties seek only to
strike and replace four of those exhibits (i.e., Docket Entries 531 through 53-4) (see Docket Entry 69 at 1).
31
sealing the portions of those filings that the parties now seek to
redact.
Moreover, if the parties do not seek to submit redacted
versions of these materials in connection with a motion to seal, it
remains unclear under what authority they bring their request.
Even setting aside such concerns, the Strike Motion suffers
from a fatal defect:
it seeks redaction of information directly
relevant to arguments Plaintiffs advanced in their Standing Brief
and thus to this Court’s standing analysis.
(Compare Docket
Entries 69-1 to 69-4, with Docket Entries 53-1 to 53-4.)
For
instance, the parties seek to strike information concerning the
number
of
post-20-week
abortions
Bryant
performed
in
2016.
(Compare Docket Entry 53-1 at 6, with Docket Entry 69-1 at 6.)
By
way of further example, they also seek to redact information
concerning the reasons (i.e., “diagnoses of fetal anomalies and/or
maternal health indications” (Docket Entry 53-1 at 8)) for the
post-20-week abortions Bryant performed in 2014, 2015, and 2016
(see id. at 6).
8.)
(Compare id. at 7-8, with Docket Entry 69-1 at 7-
The parties fail to acknowledge this impediment to their
request.
(See generally Docket Entries 69, 70.)
Accordingly, the Court will deny the Strike Motion, but
without prejudice to the parties promptly filing a motion that
appropriately addresses the foregoing concerns.
If the parties
decline to submit such motion, the Court will direct the Clerk to
32
remove
the
“temporar[y]”
access
restrictions
on
the
relevant
exhibits.
CONCLUSION
Plaintiffs failed to establish their Article III standing to
pursue this lawsuit.
In addition, the parties have not presented
grounds justifying their Strike Motion.
IT IS THEREFORE ORDERED that the Strike Motion (Docket Entry
69) is DENIED without prejudice to the filing, on or before
September 4, 2018, of a motion that appropriately addresses the
identified defects in the Strike Motion;
IT IS FURTHER ORDERED that the Clerk shall refer any such
motion to the undersigned or, in the absence of such motion, the
Clerk shall remove the access restrictions on the attachments to
Docket Entry 53 (i.e., Docket Entries 53-1 through 53-5);
IT IS RECOMMENDED that the Court deny the Summary Judgment
Motion (Docket Entry 44) and dismiss this action for want of
subject-matter jurisdiction due to Plaintiffs’ lack of standing.
This 24th day of August, 2018.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
33
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